By Karin M Frodé, Andrea Olivares Jones and Joanna Kyriakakis
In a historic decision, the United Nations (UN) Human Rights Committee found on Friday 23 September that Australia’s failure to adequately adapt to climate change violates the human rights of Torres Strait Islanders.
The Committee, which oversees the implementation of the International Covenant on Civil and Political Rights (ICCPR) received a complaint by eight Torres Strait Islanders and six of their children in 2019. The group called for the Committee to recognise that the Australian Government had violated their human rights by failing to reduce carbon emissions, and introduce measures to adapt to climate change.
The Committee’s decision makes clear that inadequate responses to climate change can result in the violation of human rights. It is a landmark victory worth celebrating as part of a broader trend in climate change litigation which has seen human rights arguments put forward to hold both states (ie, the Netherlands, Pakistan and Belgium) and corporations (ie, Shell and other Carbon Majors) accountable. It is also an example of a rise in cases where Indigenous actors are central.
The decision adds to the pressure mounting against Australia to take climate change seriously.
The Torres Strait Islanders’ claimed that Australia has not fulfilled its legal obligations to protect their rights to life (Article 6), private life, family and home (Article 17) and culture (Article 27) under the ICCPR. Additionally, they claimed that Australia has failed to adequately protect the rights of future generations (Article 24(1)).
Communities on the Torres Strait Islands are already facing rising sea levels, extreme weather, the erosion of the coast, damaged reefs, and limited availability of freshwater. A tangible example of damage is graves that have been washed away on Sabai Island. Homes and many more cultural sites are at risk of damage. The risks of climate change to Torres Strait Islanders are not new. They were, for example, clearly set out in the 2008 Native Title Report of the Australian Human Rights Commission.
Reaction of the Australian Government
The former Morrison Government rejected the claims made by the Torres Strait Islanders, arguing that it cannot be held responsible for the effects of climate change due to the global nature of the crisis. It also argued that there was a lack of proof of ‘causation’, meaning the link between the claimed human rights harms and Australia’s actions or inaction ([4.2]). Further, Australia challenged whether there was sufficient evidence of a ‘current or imminent threat’ of any rights violations ([4.2]).
The Committee’s decision
The Committee found that Australia has violated the Torres Strait Islanders’ rights to private life, home and family and their enjoyment of culture. In doing so, the Committee noted Australia’s efforts to construct a seawall, but found it to be an inadequate response to the alarming threats that had been raised by Torres Strait Islanders since the 1990s, due to its delay initiating the project ([8.12], [8.14]).
The Committee did not find a violation of the right to life. The right to life includes the need to protect against ‘reasonably foreseeable threats…that can result in loss of life’, and this ‘may include adverse climate change impacts’ which amount to ‘some of the most pressing and serious threats to the ability of present and future generations to enjoy the right to life’ ([8.3]). However, in the present case, the Committee did not consider the necessary foreseeability was demonstrated ([8.6]), though not all Committee members agreed on this point.
The Committee did not to address child rights because violations of other rights were established.
Why is this decision important?
While decisions by UN bodies are not automatically binding in Australian law, they are persuasive opinions by independent experts that outline Australia’s international obligations and analyse whether they are complied with. The relationship between climate change impacts and human rights is an emerging area, so the clarity that decisions such as in the present case bring is critical.
This decision is therefore important not only to the complainants but for other climate justice advocates.
The present decision follows other climate related decisions by human rights bodies. In Teitiota, a case brought against New Zealand, the same Committee made important observations about state obligations and climate change in the context of asylum seekers and refugees, though it stopped short of finding a violation. Another complaint brought by young climate activists against five states for climate inaction before the Committee on the Rights of the Child, focused on child-centric impacts of climate change. Although dismissed for technical reasons, that decision made important findings that children fall within the jurisdiction of states where transboundary harm originates, following the approach of the Inter-American Court of Human Rights.
In what might be lamented as a missed opportunity, the Torres Strait Islander decision focuses on Australia’s failure to adapt to climate change in a timely manner. As noted by Committee member Gentian Zyberi, the decision does not make clear connections between the human rights violations and Australia’s failure to mitigate climate impacts by, for example, reducing greenhouse gas emissions.
Further, as the Committee members themselves did, it is possible to disagree regarding the application of the law and facts to the right to life. If the right to life includes ‘a life with dignity’, climate impacts upon the enjoyment by First Nations peoples of a way of life which puts central significance upon land would demonstrate a violation.
The decision is nonetheless critical on the responsibility of individual states to act to address climate change induced human rights impacts. It is accompanied by other significant developments, such as the 2022 UN General Assembly Resolution which recognised the ‘right to a clean, healthy and sustainable environment’ as a human right. This Resolution was supported by 161 states, including Australia.
The expectation now is for Australia to take the ‘measures necessary to secure the communities’ continued safe existence on their respective islands’ and to review those measures for effectiveness over time . It is also expected to compensate the claimants for the violations suffered. Time will tell if Australia does so, but Attorney-General, Mark Dreyfus has indicated openness to engaging with Torres Strait Islanders about climate change and to the findings in this case.
More broadly, it is time for Australia to take seriously its climate obligations and act now to avoid further human rights impacts. In that regard, the passage earlier this month of Australia’s first climate change legislation in over a decade is at least a step in the right direction.
Karin M Frodé is a PhD candidate at Monash University and a PhD Affiliate of the Castan Centre for Human Rights Law.
Andrea Olivares Jones is an advanced LLM Candidate in European and International Human Rights Law at Leiden University, The Netherlands and a former Policy Manager at the Castan Centre for Human Rights Law.
Dr Joanna Kyriakakis is a Senior Lecturer in the Faculty of Law at Monash University and an Academic Member of the Castan Centre for Human Rights Law.