Torres Strait Islanders: United Nations Human Rights Committee Delivers Ground-Breaking Decision on Climate Change Impacts on Human Rights 

In a landmark decision the UN Human Rights Committee found that Australia’s failure to adequately protect indigenous Torres Strait Islanders against adverse impacts of climate change was a breach of the International Covenant on Civil and Political Rights.  

The complaint was brought by Daniel Billy, Ted Billy, Nazareth Fauid, Stanley Marama, Yessie Mosby, Keith Pabai, Kabay Tamu and Nazareth Warria, in their own names and on behalf of five children (children of two of the authors).  They belong to the indigenous minority group of the Torres Strait Islands, in Australia, and live on the islands of Boigu  Masig, Warraber, and Poruma.  They denounced that sea level rise was causing flooding and erosion on the authors’ islands, and higher temperature and ocean acidification produced coral bleaching, reef death, and the decline of seagrass beds and other nutritionally and culturally important marine species for them. They argued that Australia had violated their rights under articles 2, read alone and in conjunction with articles 6, 17 and 27; and articles 6, 17 and 27, each read alone. They also claimed violations article 24 (1) (rights of the child), read alone and in conjunction with articles 6, 17 and 27 of the Covenant.  The denounced that the State party has failed to adopt adaptation measures (infrastructure to protect the authors’ lives, way of life, homes and culture against the impacts of climate change, especially sea level rise.) and to adopt mitigation measures to reduce greenhouse gas emissions and cease the promotion of fossil fuel extraction and use, which continue to affect the authors and other islanders, endangering their livelihood, resulting in the violation of their rights under article 6 of the Covenant.

This was the first legal action brought by climate-vulnerable inhabitants of low-lying islands against a Sovereign state, and the decision has set several ground-breaking precedents for international human rights law and climate justice. This decision has set a number of important precedents which confirm the justiciability of climate change adverse impacts before international human rights organs and vindicates the rights of indigenous peoples. The Committee found that the authors, indigenous peoples, are “among those who are extremely vulnerable to intensely experiencing severely disruptive climate change impacts”. (§7.10) In my view, the following are seven key aspects of this important decision:

The Myth that failure to address climate change impacts cannot be attributable to a State is dispelled

The Committee rejected the argument by Australia that “Climate change is a global phenomenon attributable to the actions of many States” (§6.3) and that the Committee therefore could not find Australia in any way responsible for it.  Citing Benoit Mayer and Alexander Zaha (Debating Climate Law (Cambridge University Press, 2021, p. 159)) and Fanny Thorton (“The Absurdity of Relying on Human Rights Law to Go After Emitters”) Australia attempted to support this position asserting that “academic scholars have noted that ‘causal pathways involving anthropogenic climate change, and especially its impacts, are intricate and diffuse,’ and that human rights law ‘[could not] actually address the depth and breadth of the causes and impacts of climate change’.  The Committee dismissed this central argument.  It found that a State can be held responsible for its own acts and omissions. In this particular case, the Committee observed, in addition, that:

“the information provided by both parties indicates that the State party is and has been in recent decades among the countries in which large amounts of greenhouse gas emissions have been produced. The Committee also notes that the State party ranks high on world economic and human development indicators.” (§ 7.8)

Indeed the authors have identified specific acts and omissions by the State party (relating to adaptation and mitigation) instead of relying on abstract arguments. They argued that “Those acts and omissions have already and will continue to impair the authors’ rights in ways that will worsen over time, because of the latent and/or irreversible nature of climate change.” ( § 5.4) They submitted that Australia was responsible for its own emissions contribution, lack of due diligence, and failure to take adaptation measures to protect the authors’ rights and fulfil its obligation to reduce emissions. The protection of the right to life requires States to review their energy policies and prevent the dangerous emission of greenhouse gases. (§ 5.5)

Binding environmental treaties relevant to the interpretation of human rights in the context of climate change litigation

Reliance of the authors on the Paris Agreement and other environmental instruments was rejected by Australia (§6.5). The Committee observed that it is not competent to determine compliance with other international instruments or agreements (indeed the authors never argued so).  However, the Committee accepted that such international agreements are relevant for the interpretation of human rights obligations under the ICCPR:

“to the extent that the authors are not seeking relief for violations of the other treaties before the Committee but rather refer to them in interpreting the State party’s obligations under the Covenant, the Committee considers that the appropriateness of such interpretations relates to the merits of the authors’ claims under the Covenant.”  (§7.5)

This is an important aspect of the decision, setting a precedent for other international organs’ and courts’ application of rules of interpretation of their own human rights treaties. The Committee’s position upheld the authors’ argument that: “International environmental legal obligations of States are indeed relevant to interpreting the scope of their duties under the Covenant. Treaties should be interpreted in the context of their normative environment.” (§ 5.6)

Climate Change: No mere ‘future’ impact

Australia’s argument that “the authors invoke potential future harms and have not sufficiently substantiated their claim that they are victims of a past or existing violation or imminent threat of a violation of their rights by the State Party” was likewise rejected by the Committee (§7.9).    

The Authors argued that this contradicted the evidence that the authors had already provided and the reports of the TSRA, a state agency:

“the State party has already violated its duty to avert devastating and future irreversible impacts on rights protected by the Covenant, including impacts caused by existing greenhouse gas emissions. Protective measures must be initiated today. Climate change is a slow-onset process. Thus, a State party may violate its obligations before the worst effects occur.” (§5.2)

Distinguishing between a violation of a primary obligation from the effects (when the harm materialises) was fundamental here. While the Committee agreed with the authors and dismissed the argument of Australia, the key distinction between the violation of the primary obligation from the effects of climate change is of paramount importance in this type of litigation.

The rejection of Australia’s position in this regard is a significant aspect of the decision.

Moreover, the Authors submitted that “The State party erred in asserting that the adverse effects of climate change have yet to be suffered”.  It was affirmed that “the authors’ claims are based both on current violations and an imminent threat of violations”. (§5.2). Among those severe impacts from climate change they were already experiencing were:

“flooding and inundation of villages; flooding and inundation of ancestral burial lands; loss by erosion of their traditional lands, including plantations and gardens; destruction or withering of traditional gardens through salinification caused by flooding or seawater ingress; decline of nutritionally and culturally important marine species caused by climate change, and associated coral bleaching (reef death) and ocean acidification; and a reduced ability to practice their traditional culture and pass it on to the next generation. They also experience anxiety and distress owing to erosion that is approaching some homes in the community. For six of the authors, upkeeping ancestral graveyards and visiting and feeling communion with deceased relatives is at the heart of their cultures, and the most important ceremonies (such as coming-of-age and initiation ceremonies) are only culturally meaningful if performed on the native lands of the community whose ceremony it is.” (§5.2)   

The Committee accepted that:

“the authors presented in their communication information indicating the existence of real predicaments that they have personally and actually experienced owing to disruptive climate events and slow-onset processes such as flooding and erosion. The authors argue in part that those predicaments have already compromised their ability to maintain their livelihoods, subsistence and culture”(§7.10)

and

“the authors are among those who are extremely vulnerable to intensely experiencing severely disruptive climate change impacts. The Committee considers, based on the information provided by the authors that the risk of impairment of those rights, owing to alleged serious adverse impacts that have already occurred and are ongoing, is more than a theoretical possibility.” (§7.10)

Positive obligations and due diligence

Another key aspect of the decision pertains to  the notion of positive obligations.  The State argued that:

“Positive obligations under the Covenant do not require maximum possible resources nor highest possible ambition. To adopt such an unprecedented test would not only place an impossible burden on States but would also displace reasonable policy choices made in good faith by States as they assess a range of threats and challenges that impact on the enjoyment of human rights under the Covenant and decide how to distribute limited resources to address them. “ (§6.10).

It further argued that:

“It would be both inappropriate and unfounded for the Committee to interpret the Covenant in such a way as to allow it to re-make the informed, good faith and difficult policy decisions of a democratically elected government that inherently involve compromises, trade-offs and the allocation of limited resources across the range of challenges to the full enjoyment of human rights. In urging the Committee to adopt an unduly broad interpretation of a positive obligation, the authors invite the Committee to disregard States’ discretion in making relevant decisions, even if exercised in good faith. Fulfilment of positive obligations under the Covenant must recognise competing challenges to limited State resources. “ (§6.11)

In its Concurring Opinion, Committee Member Gentian Zyberi stated that:

“States are under a positive obligation to take all appropriate measures to ensure the protection of human rights. In this context, the due diligence standard requires States to set their national climate mitigation targets at the level of their highest possible ambition and to pursue effective domestic mitigation measures with the aim of achieving those targets. When a State is found to not have fulfilled these commitments, such a finding should constitute grounds for satisfaction for the complainant/s, while the State concerned should be required to step up its efforts and prevent similar violations in the future. “ (p.20)

In a lucid passage of his Concurring Opinion, Zyberi added:

“Since it is the atmospheric accumulation of CO2 and other GHGs that, over time, gives rise to global warming and climate change,6 States should act with due diligence when taking mitigation and adaptation action, based on the best science. This is an individual responsibility of the State, relative to the risk at stake and its capacity to address it. A higher standard of due diligence applies in respect of those States with significant total emissions or very high per capita emissions (whether these are past or current emissions), given the greater burden that their emissions place on the global climate system, as well as to States with higher capacities to take high ambitious mitigation action. This higher standard applies to the State party in this case.” (§6)

While the majority did not expressly refer to this point, the authors’ uncontested statement that the highest court in Australia has ruled that state organs do not owe a duty of care for failing to regulate environmental harm was one of the reasons why the Committee found the case admissible (§7.3).  In other words, state organs are required to owe a duty of care for failing to regulate environmental harm, under the Covenant.

Indigenous peoples’ Rights and climate change (Violations Article 17 and 27)

This is an important decision vindicating indigenous peoples’ rights.  The Committee acknowledged inter alia that the home of one of the authors “was destroyed due to flooding in 2010” and that the authors depended “on fish, other marine resources, land crops, and trees for their subsistence and livelihoods, and depend on the health of their surrounding ecosystems for their own wellbeing“ and considered that the aforementioned elements “constitute components of the traditional indigenous way of life of the authors, who enjoy a special relationship with their territory, and that these elements can be considered to fall under the scope of protection of article 17 of the Covenant” (§ 8,9)

The Committee made a number of important considerations concerning Article 27, including the  remark that “the Committee considers that the information made available to it indicates that the State party’s failure to adopt timely adequate adaptation measures to protect the authors’ collective ability to maintain their traditional way of life, to transmit to their children and future generations their culture and traditions and use of land and sea resources discloses a violation of the State party’s positive obligation to protect the authors’ right to enjoy their minority culture. Accordingly, the Committee considers that the facts before it amount to a violation of the authors’ rights under article 27 of the Covenant”(§8.14).  Having found a violation of Article 17 and 27 the Committee considered no longer necessary to examine whether Article 24(1) (rights of the child) of the Covenant. There was no reasoning offered.

Right to a life with dignity

The Committee recalled its general comment No. 36 (2018) on the right to life, in which it established that the right to life also includes the right of individuals to enjoy a life with dignity and to be free from acts or omissions that would cause their unnatural or premature death ( § 3),  The obligation of States parties to respect and ensure the right to life extends to reasonably foreseeable threats and life-threatening situations that can result in loss of life, and that “States parties may be in violation of article 6 of the Covenant even if such threats and situations do not result in the loss of life” (§8.3).   The Committee held that it considered:

“that such threats may include adverse climate change impacts, and recalls that environmental degradation, climate change and unsustainable development constitute some of the most pressing and serious threats to the ability of present and future generations to enjoy the right to life” (§8.3)

Having stated all the above, it unconvincingly avoided the inherent contradiction of finding a violation of Article 27 and 17 in this case but not of Article 6.   How can indigenous peoples possibly have a “life with dignity” when their culture (accepted by the Committee) and their existence as a group, is threatened by climate change to the extent described by the authors in the case?  This gave rise to a number of separate opinions.  Committee member Laki Muhumaza found that there had been a violation of Article 6 (para 17 of his Individual Opinion) and stated: “the State Party is tasked with an obligation to prevent a foreseeable loss of life from the impacts of climate change, and to protect the authors’ right to life with dignity.” (p. 18). The Joint opinion by Committee Members Arif Bulkan, Marcia V. J. Kran and Vasilka Sancin (partially dissenting) also found a violation of the right to life (para 1 of their Joint Opinion). They critically noted “using the [real and foreseeable risk’ standard, the majority opinion requires adverse health impacts to demonstrate an article 6 violation” (§3).  This they found wrong.  In my view, the Joint Opinion is right, as the majority view reflects a confusion between obligations under Article 6 (and their breach) and effects of the violation of the primary obligation.  The Joint Opinion noted:

The majority opinion correctly states that article 6 should not be interpreted restrictively. Yet, the “real and foreseeable risk” standard employed by the majority interprets article 6 restrictively, and was borrowed from the dissimilar context of refugee cases. In Teitiota the Committee concluded that due to insufficient information from the author, climate change was not a real or foreseeable enough risk to require the State party grant him refugee status. In contrast, here the primary question is whether the alleged violations of article 6 themselves ensue from inadequate mitigation and/or adaptation measures on climate change by the State party. Using a more accurate standard, from a factually similar case relating to environmental damage by pesticides, the question becomes whether there is “a reasonably foreseeable threat” to the authors’ right to life. The authors detail flood related damage, water temperature increases, loss of food sources, and most importantly, explain that the islands they live on will become uninhabitable in a mere 10-15 years according to the Torres Strait Regional Authority (TSRA), a governmental body. Together, this evidence provides “a reasonably foreseeable threat” constituting a violation of article 6. (§2)

The Joint Opinion added at [§5]:

While we agree that the State party is not solely responsible for climate change, the main question before the Committee is significantly narrower: has the State party violated the Covenant by failing to implement adaptation and/or mitigation measures to combat adverse climate change impacts within its territory resulting in harms to the authors? The majority opinion relies on projects initiated by the State party since 2019, which might be completed by 2023. While these measures help build climate change resilience, the majority does not sufficiently consider the violations of article 6 that had already occurred at the time of filing this communication.

Committee Member Hernán Quezada, likewise found a violation of Article 6 in the case and emphasised that compliance with Article 6 requires the adoption of positive measures (Opinión Individual del miembro del Comité Hernán Quezada, §3)

Legal Consequences

In practical terms, however, whether via the gate of the right to life or via the gate of Article 17 and 27, the obligation to take mitigation measures is a legal consequence of the above findings.

The Committee accepted that the Torres Strait Islanders bringing the complaint are entitled to “full reparation” (§11).  The meaning of what full reparation entails is defined by international law. The Committee referred to compensation (which is a precedent now within the notion of loss and damage category) and the duty to“resolve any deficiencies as soon as practicable” relating to the adaptation measures needed.  Quite crucially, it also stated that “the State party is also under an obligation to take steps to prevent similar violations in the future.”(§ 11).  This falls within the scope of guarantees of non-repetition and it can only be achieved by adequate mitigation measures.  This is an important legal consequence arising from the findings of the Committee which now has to  be implemented.  The Committee gave the State 180 days to report on the measures taken to implement this decision (§12).

This is a legal pronouncement that no doubt will contribute to the potential Advisory Opinion on Climate Change sought by a low-lying State.

Yessie Mosby, a Kulkalgal man and Traditional Owner on the island of Masig and one of the authors in this case said concerning this historic win:

“This morning when I woke up on Masig, I saw that the sky was full of frigate birds. In my culture, we take this as a sign from my ancestors that we would be hearing good news very soon about this case.”

“I know that our ancestors are rejoicing knowing that Torres Strait Islander voices are being heard throughout the world through this landmark case. Climate change affects our way of life everyday. This win gives us hope that we can protect our island homes, culture and traditions for our kids and future generations to come.”

*The Author acted in this case as Counsel, instructed by ClientEarth.