UNHRC is Turning up the Heat: Human Rights Violations Due to Inadequate Adaptation Action to Climate Change  

1. Introduction

In its highly anticipated decision in Daniel Billy at al. versus Australia (“Torres Strait Islanders case”), issued on 23 September 2022, the UN Human Rights Committee finds that by failing to implement timely and adequate adaptation measures, Australia is violating CCPR rights of several Australian citizens who are residents of the Torres Strait Islands.

This decision falls in line with the importance accorded to climate change in the context of human rights by this and other UN human rights treaty bodies in previous decisions and general comments (e.g. here, here, here, here and here), and the reports of the UN Special Rapporteurs (for example, see the reports of the Special Rapporteur on the right to food (A/70/287 and A/70/287); Special Rapporteur on human rights and the environment (A/HRC/43/53, A/74/161, and A/HRC/40/55); Special Rapporteur on extreme poverty and human rights (A/HRC/41/39); and the establishment of the mandate of Special Rapporteur on the promotion and protection of human rights in the context of climate change in 2021 (A/HRC/RES/48/14).)

In the current case, the Human Rights Committee had to assess whether Australia was violating the rights of eight applicants and their children under Articles 2, 6, 17 and 27 CCPR by failing to adopt adequate adaptation and mitigation measures. The applicants belong to the indigenous minority group of the Torres Strait Islands and reside on four of the small low-lying islands. The fact that these islands are highly exposed to adverse climate change impacts and that the applicants´ lives and cultures are highly dependent on the availability of limited natural resources and on the predictability of natural phenomena were not contested. The Committee found the communication admissible and considered that articles 17 and 27 were violated.

2. Breaking New Grounds

Thus, the decision breaks new ground in several ways.

The committee considered the claim admissible. One important finding in this regard was the status of the applicants as “victims”, which according to article 1 of the Optional Protocol requires the claimants to be “affected”. Australia had argued that the claimants invoked future harm, and therefore were not (yet) affected by a past or existing violation of or threat to their rights due to climate impacts. The committee boldly rejected that argument on the basis of the high risk (i.e. high exposure and extreme vulnerability) of the claimants to the adverse effects of climate change. It concluded that the risk of impairment of rights, “owing to alleged serious adverse impacts that have already occurred and are ongoing, is more than a theoretical possibility”. The core issue here was whether the (undisputed) climate impacts could amount to a violation of rights. In addressing it, the committee followed the logic: the more vulnerable and exposed the claimants are, the higher is their risk, and the more likely is the impairment of rights due to already occurring climate impacts.

The most significant conclusion is nevertheless the one on the merits, i.e. that in failing to implement timely and adequate adaptation measures to protect the applicant’s home, private life and family, Australia violated the applicants´ rights under Articles 17 and 27 CCPR. This has important legal implications.

First, it clearly underlines that states have positive legal obligation to ensure the protection of individuals under their jurisdiction against the violation of their rights as a consequence of adverse climate change impacts. This usually entails taking all reasonable and appropriate measures to prevent violations of rights. By adding the requirement “timely”, the HRC included also a temporal dimension.

Second, in building on this, the committee makes a number of observations on the standard of care in taking such measures. In general, a positive legal obligation involves having in place adequate legislative, institutional, fiduciary frameworks and implementing effective measures to prevent any rights´ violation including those caused by the adverse impacts of climate change. Australia does have adaptation measures in place as set out in the 2016-2021 Torres Strait Regional Adaptation and Resilience Plan (TSRA) and the Torres Strait Seawalls program (2019-2023). It also invested several billions AUD in climate finance with the aim of achieving adaptation outcomes. However, the Committee finds that the delay in constructing adaptation infrastructure, especially upgraded seawalls (which are expected to be completed by 2023) has led to adverse effects on the ways on which the applicants live their lives. This happened in particular by flooding and inundation of village grounds and ancestral burial lands, destruction of gardens and affecting on the supply with nutrients. This is an important point: adaptation measures, even if of necessary scale, are not adequate if they come too late. Timeliness in relation to impacts is thus part of the standard of care expected of a good government. Given the increasing magnitude, speed and likelihood by which climate change will impact individual and communities, adaptation will become more and more difficult to plan with long time-horizons and limited financial allocations. Yet, the standard of care in discharging the positive obligations to avoid rights violations will require of states – all states – that adaptation planning and implementation has to happen much faster, needs to be more comprehensive and cross-sectoral, commensurate to the scientific scenarios of temperature increases, and is given significant political and financial importance. In other words, this decision is a warning sign for all states that adaptation needs to rise on the political agenda, and that time frames may have to be flexible and adjustable to implementing measures faster, and to upscaling and expanding adaptation programs, if needed.

This might be a tough call. Not only will both mitigation measures and adaptation be pursued (planned, financed and effectively implemented) at the same time – as rises in temperatures will increase the risk of more adverse climate impacts. While adaptation measures have a more “direct” impact on protecting people´s life and livelihoods; they are eventually futile if the cause of the problem is not mitigated. Moreover, adaptation will have to address a myriad of different, accumulative impacts of GHG emissions, such as in the current case: flooding, storms, droughts, salination, coral bleaching, land erosion, loss or marine and terrestrial resources and species, destruction of cultural, ancestral and religious sites, ocean acidification, relocations, physical and mental harm. This requires adaptation measures to be a wide set of various well-designed and compatible tools and initiatives to increase resilience, including planning in the face of complexity and uncertainty. And finally, adaptation has limits beyond which the often-sudden impacts of climate change become unmanageable and to losses and damages. Not all climate impacts can be adapted to, and there remains a high risk (both in likelihood and magnitude) to life, private life, culture and family, despite most ambitious and comprehensive adaptation planning. The Committee did not address this issue, but it lurks in the back of the question of when and how exactly are adaptation measures “timely and adequate”?

Third, the Committee in finding a violation of Article 27 recognizes the particular (“extreme”) vulnerability of the applicants as members of an indigenous minority group to the adverse impacts of climate change. It concludes that the “ability of the applicants to maintain their culture has already been impaired by the reduced viability of their islands and the surrounding seas, owing to climate change impacts” (paragraph 8.14) The erosion of traditional and ancestral lands, fishing and farming grounds, and loss of cultural sites reduced or made impossible the practice of their culture. The constructing of sea walls is considered a way to address the reasonably foreseeable threat; and its delay amounts to a failure to adopt timely and adequate adaptation measures and constitutes a violation of the individual rights of the applicants under Article 27 CCPR. In the context of “timely and adequate adaptation measures”, much of the above-said applies here, too. It needs to be emphasized that this is the first recognition by a UN Human rights treaty body of the positive obligation of states to protect the distinct and additional right of a particularly vulnerable group against the adverse impacts of climate change. This “double” protection has legal significance in recognizing that some groups or individuals are more vulnerable to the impacts of climate change than others, owing to their way of life which is closely associated with the land, waters and the use of resources, including by traditional means.

Fourth, the committee also considered a violation of Art. 6, the right to life. In line with its General Comment nr. 36, it emphasized that the protection of that right requires states to adopt positive measures. In this sense, parties must also ensure the right to life and exercise due diligence to protect the lives of individuals against deprivations caused by persons or entities, whose conduct is not attributable to the State. 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. States parties may be in violation of article 6 even if such threats and situations do not result in loss of life (CCPR/C/GC/36, 30 October 2018, para 2). 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 (CCPR/C/GC/36, 30 October 2018, para 3). The Committee recalled that this requires taking measures to address reasonably foreseeable threats and life-threating situations. Such threats may include the adverse impacts from climate change. The committee states that climate change and unsustainable development constitute some of the most pressing and serios threats to the ability of present and future generations to enjoy the right to life. In the present case, however, it comes to the conclusion that the applicants did not substantiate a real or reasonably foreseeable risk of physical endangerment or extreme precarity that could threaten their right to life, including to life with dignity. Yet, it is important to note that while no violation was found this time, the committee clearly opened the door to recognizing a violation of a right to life by the failure to prevent climate change impacts.

Fifth, another important aspect of the decision is the identification of effective remedies. Not only is Australia required to make full reparation to the individuals whose rights have been violated. This includes adequate compensation of the harm suffered, engaging in meaningful consultations in order to conduct a needs assessment  and to continue implementing, monitoring and reviewing necessary measures. Importantly, Australia is further under the obligation to “take steps to prevent similar violations in the future”. (paragraph 11) The Committee does not substantiate what actions would need to be taken in order to fulfill the positive obligations to prevent future violations of CCPR rights. From the above, we get a better picture of what type of adaptation measures would need to be in place to discharge this duty. However, as mentioned, any adaptation measures need to go alongside with ambitious mitigation action. In order to “prevent similar violations”, mitigation actions at scale and ambition are urgently needed with the aim to address the cause of the problem and not only adaptation actions to remedy the effects.

3. Shortcomings

There may be more ground-breaking elements in the decisions and the list above is not exhaustive. There is, however, one major shortcoming of the decision: The Committee remained silent on the need for timely and adequate mitigation measures as the “backside of the coin” to fulfill its positive obligation towards the applicants.

This is a lost opportunity. The committee went so far as recognizing that international climate treaties constitute part of the overarching legal system that is relevant to the examination of a violation of the CCPR and considered the reference to other international treaties and agreements appropriate in the interpretation of the CCPR (para 7.5). This would have been an opportunity to interpret the positive obligations of the state concerned in light of the global consensus expressed in the Paris Agreement. It would have provided legal grounds for assessing the standard of care informing legal obligation to take effective mitigation action on climate change. A door is, however, opened and an anlysis of the implications of the Paris Agreement on the interpretation of other international law, including the UN Human rights treaties might be just a matter of time.

Australia is a Party to the Paris Agreement. In the examination and interpretation of the CCPR, the provisions of the Paris Agreement, especially Article 2, paragraph 1, and Article 4, paragraph 3, of the Paris Agreement are relevant as the normative environment against which human rights obligations need to be understood.

Article 2, paragraph 1 (a) of the Paris Agreement establishes the goal of holding temperature increases to well below 2^oC compared to pre-industrial levels, and of pursuing efforts to limit increases to 1.5^oC. This sets an international standard with significant legal implications. In order to achieve this long-term temperature goal, Parties to the Paris Agreement have collectively committed to global peaking of greenhouse gas emissions as soon as possible, recognizing that this might take longer for developing countries, and to undertaking rapid reductions thereafter in accordance with best available science, so as to achieving a balance between anthropogenic emissions by sources and removals by sinks in the second half of this century (Article 4, paragraph 1), so called “climate neutrality” or “net-zero emissions”.

This goal included in Articles 2, paragraph 1 (a) and 4, paragraph 1, is informed by best available science, which is assessed by the Intergovernmental Panel on Climate Change (IPCC). The IPCC 6^th Assessment report (2021) states that pathways consistent with holding temperature increases to 1.5^oC need to achieve at least global net-zero CO₂ emissions around 2050. Emissions need to stay net negative thereafter until the end of this century.

To this extent, each party to the Paris Agreement has the obligation to prepare, communicate ad maintain successive nationally determined contributions (NDC), that it intends to achieve, and to pursue domestic measures, with the aim of achieving the objective of its NDC (Article 4, paragraph 2). Importantly, the nationally determined contribution will reflect each party´s “highest possible ambition” (Article 4, paragraph 3). The provision “highest possible ambition” in Article 4, paragraph 3, expresses an obligation of conduct that each Party will deploy its best efforts in setting its national mitigation target in its NDC and in pursuing domestic measures to achieve it. This paragraph establishes for each Party a due diligence standard to attain its highest possible ambition in a manner that reflects its national circumstances, i.e., its responsibilities and capabilities. An obligation of due diligence means that the respondent must deploy all reasonable and appropriate means, to exercise best possible efforts, or simply to do its utmost in its contribution to the global effort to mitigate climate change.

Acting with due diligence also requires governments to act in proportion to the risk at stake and with foresight (see here, Art 3(7). It also means taking all appropriate and necessary measures to address private behaviour, including adopting necessary regulatory measures, their monitoring and as well as their enforcement (see here). In the face of the risks of climate change and the violation to human rights, governments must take mitigation measures commensurate with that risk. It also implies, that States with greater capabilities are required to do more to decarbonize their economies and reduce emissions.

The due diligence standard expressed in Article 4, paragraph 3, of the Paris Agreement requires as an obligation of conduct that the respondent sets its climate change mitigation target at the highest possible level, i.e. the level which is not disproportionately burdensome or impossible to achieve. Such a target needs to be set in light of the overall long-term temperature goals of the Agreement, it needs to be comprehensive and cover all sectors, and based on a thorough assessment of all mitigation options and potential in all relevant sectors (see here, here and here). In setting the mitigation target, a party needs to deploy all political, legal, socio-economic, financial and institutional capacities and possibilities in defining such target. It also requires having domestic measures in place that are necessary, meaningful and, indeed, effective to achieve that target.

In light of science, this implies taking all measures, so as to achieve global net zero emissions by 2050. This requires deep reductions already in this decade to ensure that the achievement of global net zero emissions around mid-century remains possible. In this context, the IPCC indicates the need for emission reduction of 50% by 2030. In order to achieve global net zero emissions, those Parties that are in a position to do so, according to their responsibilities and capabilities, will need to reach net-zero targets much earlier than 2050, in order to enable Parties that might need longer, to also get there around 2050. This means that states with high capacity, such as Australia, would need to cut much earlier and much deeper in order to ensure the global goal remains achievable.

This is in line with the 2019 joint statement by five UN Human Rights Treaty Bodies that called upon states that:

‘[i]n order … to comply with their human rights obligations, and to realize the objectives of the Paris Agreement, they must adopt and implement policies aimed at reducing emissions, which reflect the highest possible ambition [article 4.3], foster climate resilience and ensure that public and private investments are consistent with a pathway towards low carbon emissions and climate resilient development’.

In other words, articles 2.1 and 4.3 of the Paris Agreement together are being used to determine the substance of human rights obligations with respect to climate change. In this statement, they further refer to an earlier (2018) statement by the Committee on Economic, Social, and Cultural Rights which observed that:

“human rights mechanisms have an essential role to play in ensuring that States avoid taking measures that could accelerate climate change, and that they dedicate the maximum available resources to the adoption of measures aimed at mitigating climate change.”

Complying with human rights obligations requires drastically accelerated climate action, at the level of each state´s highest possible ambition. By not adopting targets and reducing emissions at that level of ambition, states fail to prevent foreseeable human rights harms caused by climate change – and thereby violate their obligations. 

This does not mean that the Committee would have to be prescriptive in what Australia has to do or which exact type of measures it has to adopt. The Committee, however, could have determine whether the mitigation measures were adopted with due diligence, i.e. whether they were reasonable and adequate to prevent risk from climate change for the enjoyment human rights of the applicants. The committee may have found that the respondent set its climate targets with the diligence required. Or not. In case of the latter, however, it could have found a violation of rights and requested the respondent in order to “prevent similar violations in the future” to revisit its domestic policies and plans, and regulatory and administrative framework with the aim of doing its utmost in effectively mitigating climate change.