International Recognition of the Human Rights Impacts of Climate Change: the Torres Strait Islanders Case
By: Lianne Baars and Taofeeq Alatise
Introduction
Climate change is indisputably impacting the lives and livelihoods of people across the world, but especially those of vulnerable populations (here). Droughts, sea-level rise, floods and heatwaves mainly have an effect on the communities with the smallest carbon footprints and the lowest resilient capacity – making them pay the ultimate price. These impacts exacerbate already existent food and health crises, social conflicts and displacement. Nonetheless, States remain reluctant and inefficient in their efforts to address the climate crisis. As the call for climate justice for vulnerable and impacted communities is growing and gaining traction across the world, the United Nations Human Rights Committee (UNHRC or Committee) has produced its highly-anticipated views on these matters.
This blog post discusses the recent outcome in Daniel Billy and others v Australia (Torres Strait Islanders case). This climate case is innovative and pivotal in many respects, yet neglects to fully optimise the opportunities present for furthering climate justice.
The Torres Strait Islanders case
For the indigenous Torres Strait people living on low-lying islands, the struggle for climate justice is an arduous, yet crucial exercise. Comparable to other vulnerable communities of Small Island Developing States (SIDS), the Torres Strait Islanders have been suffering from the impacts of climate change, as floods, cyclones and tidal surges have wreaked havoc on the islands. Consequently, allegations have arisen that the Australian government has failed to protect its citizens against extreme weather events, due to its insufficient climate mitigation and adaptation measures. In 2019, the indigenous Islanders thus communicated a complaint against the Australian government to the UNHRC. They alleged that Australia’s insufficient climate mitigation and adaptation action violated their fundamental human rights under the International Covenant on Civil and Political Rights (ICCPR). Particularly, they claimed violations of their right to life (article 6 ICCPR), right to freedom from arbitrary interference with privacy, family and home (article 17 ICCPR), their minority right to culture (article 27 ICCPR) and the children’s right to protection (article 24(1) ICCPR).
The Islanders argued that climate change has had an adverse impact on their lives, culture and the ecosystems on which they rely. As Australia adopted insufficient mitigation targets, failed to cease fossil fuel extraction and use, and failed to adopt and implement adaptation measures, the Torres Strait Islanders submitted that the State is at least partly responsible for these negative interferences with their human rights.
In favour of the Torres Strait Islanders and contrary to Australia’s contentions, the UNHRC found the case to be admissible. More importantly, the Committee (for the most part) also ruled in favour of the Torres Strait Islanders in its substantive considerations. It contemplated that the failure of Australia to sufficiently protect the indigenous Torres Strait Islanders from the negative impacts of climate change should be regarded as a violation of both their right to freedom from arbitrary interference with privacy, family and home, and their minority right to culture. As Australia did not implement adequate adaptation measures to protect the families, homes, and traditional culture of the Torres Strait Islanders, it failed to fulfil its positive obligations under articles 17 and 27 ICCPR. However, the UNHRC also found that Australia’s (in)action did not violate their right to life under article 6 ICCPR. Although it is well-established that climate change can negatively affect the enjoyment of the right to life (here), the Committee considered that there was not yet a ‘real and foreseeable risk’ – a standard stemming from the earlier UNHRC climate change case Teitiota v New Zealand – to the right to life, as it is predicted that it will still take 10 to 15 years before the islands become uninhabitable. Because this provides Australia with sufficient time to protect or relocate the victims, its climate inaction cannot yet be seen as a violation of their right to life. This approach was criticised in the Joint Opinion of Committee Members Arif Bulkan, Marcia V. J. Kran and Vasilka Sancin, as they argued that adopting the ‘real and foreseeable risk’ standard from a dissimilar refugee case was misguided. The UNHRC did not further deem it necessary to consider the claims under article 24(1) ICCPR.
As a consequence of these considerations, Australia was found to be under the obligation to provide an effective remedy. This includes, but is not limited to, providing compensation for the harm suffered and continuing its implementation of measures for the security of the community.
Legal significance
The Committee’s decision in the Torres Strait Islanders case has been described by many as groundbreaking for international human rights law, and its significance for further rights-based litigation should not be underestimated. For the first time, a (quasi-)judicial UN body has found a violation of international human rights law due to insufficient climate mitigation and adaptation strategies. Additionally, it is the first time that such an organ acknowledged that the indigenous people’s right to enjoyment of their own culture is at risk due to climate change. Moreover, the UNHRC’s request for adequate compensation from Australia for the harm suffered is significant, as it plays into the loss and damage debate. Although the decision of the UNHRC may not have binding force on the government of Australia, it does entail a well-reasoned interpretation of the ICCPR – a treaty that is binding on the State – and it creates a moral obligation to adopt significant climate adaptation measures to protect the indigenous Torres Strait people from the impacts of climate change.
This case has brought to the fore how victims of climate harm are – increasingly successfully – resorting to litigation as a means of redress for insufficient climate action. This bears great importance for both climate litigation at the national level, as well as the international level, including for the World’s Youth for Climate Justice campaign. Efforts to obtain an Advisory Opinion from the International Court of Justice addressing States’ obligations to protect present and future generations from climate change impacts are still materialising, but every win for climate justice is a step in the right direction. Vanuatu and other SIDS are continuously rallying other States to support and vote in favour of the United Nations General Assembly resolution to request such an Advisory Opinion. This Opinion, in turn, could clarify the rights and obligations of States in respect of the adverse impacts of climate change on SIDS, analyse the implications for the enjoyment of human rights by present and future generations, and encourage States to reflect the highest possible level of ambition in their climate action. The findings from the UNHRC that insufficient mitigation and adaptation measures can indeed violate the positive obligations that States have under international human rights law, can be taken into account by the International Court of Justice in considering these matters.
A critical note
Despite the wide celebration of the Torres Strait Islanders case as a pivotal moment in climate change litigation, this blog post would not be complete without a critical note. Firstly, the Committee failed to specifically consider the rights of children in the climate crisis, even though there was a clear opportunity to do so. The increasing discourse surrounding rights for future generations and intergenerational justice in a climate change context could have greatly benefited from a clear legal and authoritative pronouncement. Secondly, the UNHRC’s views focus mainly on adaptation measures to be implemented by the Australian government. Although adaptation is of great importance, and even indispensable for low-lying islands, the value of mitigation measures should not be forgotten. Mitigation is, and will remain, the only way to halt and prevent further climate change, and the Committee could have reflected this better in its views. Especially developed States, like Australia, should aim to implement mitigation measures that will significantly cut down their emissions. Thirdly, the decoupling of the right to life and the right to culture demonstrates a failure to take into account an indigenous perspective on life. The inherent connectedness of life, livelihood and culture in indigenous communities ensures that these rights cannot be seen as two purely separate elements. While the UNHRC had the opportunity to show consideration of the specific risks that the climate crisis poses to indigenous communities, it neglected to take it.
Conclusion
The discourse on climate justice is ever-evolving, and the engagement of a high-level UN human rights body with this matter should undoubtedly be regarded as a ‘win’. The Torres Strait Islanders case explicitly links climate action to the right to freedom from arbitrary interference with privacy, family and home, and the minority right to culture. This recognition is important for (indigenous) communities all over the world, and could be an entry point for an influential pronouncement from the International Court of Justice on human rights obligations relating to climate change.
Authors
Taofeeq Alatise is a lawyer based in Nigeria, an advocate for climate justice, and a volunteer for WYCJ’s African Front as well as part of the Academic Taskforce. His interests are climate change law and litigation.
Lianne P. Baars is currently pursuing her PhD, which analyses the procedural challenges of climate change litigation at international human rights bodies, at Leiden University. She previously studied Public International Law at Leiden University, and Environmental and Climate Change law at the University of Edinburgh. She contributes to WYCJ’s campaign through the Academic Taskforce.
