This is the first time a State has been found to be in breach of the International Covenant on Civil and Political Rights (ICCPR) for failing to adopt sufficient adaptation and mitigation measures to protect indigenous people against rising sea levels. The decision opens the door to further legal actions and compensation claims by other climate-affected people.
Eight Torres Strait Islanders (Islanders) residing in low-lying islands filed a joint complaint against Australia on behalf of themselves and their children, contending that Australia had failed to adopt adequate adaptation measures (such as protective infrastructure) to safeguard their lives and culture against climate change, especially rising sea levels. The Islanders also argued that Australia had failed to implement adequate mitigation measures to reduce greenhouse gas emissions and cease the promotion of fossil fuel extraction and use. This, they claimed, gave rise to a violation of their rights under ICCPR, Articles 2 (respect and implementation of the ICCPR), 6 (right to life), 17 (right to privacy), 24(1) (right to enjoy and benefit from culture) and 27 (right to the protection of a child).
For the reasons explained below, on 23 September 2022, the Committee upheld the Islanders’ complaint with respect to ICCPR Articles 17 and 27. The Islanders’ complaint under Article 2 was held to be inadmissible, and their complaint under Article 6 was dismissed on the basis that, although adverse climate change impacts could threaten the right to life, the Committee was not in a position to conclude that the measures taken by Australia to mitigate those impacts would be insufficient so as to represent a direct threat to the Islanders. Given its finding on Articles 17 and 27, it held that there was no need to examine the Islanders’ Article 24(1) complaint.
Right to privacy: Australia delayed measures that would protect the Islanders’ private life
The Committee observed that under ICCPR Article 17, a State must prevent interference with a person’s privacy, family or home from conduct not attributable to the State, including environmental damage, at least where such conduct is foreseeable and serious.
In light of the Islanders’ special relationship with their territory, the Committee noted that fish, other marine resources, land crops and trees could be considered to fall within the scope of protection under Article 17.
While the Committee noted that Australia had submitted extensive evidence regarding its actions to address climate change and carbon emissions, it observed that Australia had not explained its delay in constructing seawalls for the islands where the Islanders live. Australia also did not contest the Islanders’ claims about the concrete impacts of rising sea levels on their home, private life and family. This included the reduction of marine resources used for food, loss of crops and fruit trees, flooding of villages and ancestral burial lands and destruction of traditional gardens through salinification. Since such impacts were foreseeable and serious, the Committee held that Australia had violated Article 17.
Right to enjoy and benefit from culture: Australia’s response was inadequate to protect the Islanders’ traditional lands
The Committee observed that Article 27 protects the right of an individual in a minority indigenous group to enjoy his or her own culture, which may include protecting a way of life that is closely associated with the territory and use of its resources, including traditional activities such as fishing or hunting. Thus, the Committee held, the protection of this right is directed towards ensuring the survival and continued development of cultural identity.
The Committee noted the Islanders’ claim that rising sea levels had eroded their traditional lands, affecting traditional fishing and farming and cultural ceremonies that can only be performed on those territories. It held that such impacts were reasonably foreseeable by Australia. Australia’s delay in initiating adaptation projects represented an inadequate response, in breach of Article 27.
Remedy: Australia owed the Islanders’ full reparation
The Committee held that the Islanders were entitled to full reparation. It directed Australia inter alia to: (i) provide the Islanders with adequate compensation for the harm they have suffered; (ii) engage in meaningful consultations in order to conduct needs assessments; and (iii) continue its implementation of measures necessary to secure the Islanders’ communities’ continued safe existence on their respective islands. It also noted that Australia was under an obligation to take steps to prevent similar violations in the future.
Comment
This is a monumental decision that will likely be a key precedent in future climate-related human rights proceedings. Given the impact of climate change on rising sea levels, in particular, we can only expect complaints like this one to become more commonplace. According to the Intergovernmental Panel on Climate Change, coastal areas are home to approximately 28% of the global population, including around 11% living on land less than ten metres above sea level. As a result, sea-level rise is set to have a huge impact on the lives of many in the near future.
We may also anticipate proceedings related to sea level rise (and climate change more broadly) at an inter-State level (for example at the International Court of Justice (ICJ) or International Tribunal for the Law of the Sea). Indeed, a core group of 16 States led by Vanuatu are currently attempting to galvanise support for an advisory opinion from the ICJ on the obligations of States under international law to protect the rights of present and future generations against the adverse effects of climate change.
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