Violation of rights of indigenous groups due to failure to take mitigation and adaptation measures against climate change

Facts

The eight authors of the communication are Australian nationals and Torres Strait region residents. Sea level rise had caused flooding and erosion as well as death and decline of nutritionally and culturally important marine species. Family graves had been destroyed and saltwater had made soil uncultivable. The authors claim that this would present social, cultural, and economic challenges, impact their livelihood, infrastructure, housing, food production, and generate health problems.

The authors claim that the State party has violated their rights under article 2 (non-discrimination / legal framework / right to remedies) read with articles 6 (right to life), 17 (right to privacy) and 27 (rights of minorities); and articles 6, 17 and 27 alone. They also claim violations of their children’s rights under article 24(1) (rights of the Child) alone and read with articles 6, 17 and 27 of the Covenant. They claim that the State party failed to implement mitigation measures to reduce greenhouse gas emissions and fossil fuel extractions, and adaptation measures to ensure long-term habitability.

Admissibility

The Committee has ascertained that this matter is not being examined under another procedure of investigation or settlement and that the authors had exhausted local remedies. With regard to the article 2 violations, since the authors alleged violations under articles 6, 17, 24 (1) and 27 due to the defects in the State party’s legislative and policy framework, the Committee considers that reviewing article 2 violations separately cannot create a claim as article 2 lays down general obligations for State parties, and further cannot be reviewed in conjunction with the other articles as this would not be distinct from an examination of the violation of the said articles, and is inadmissible. As the authors indicated problems, they are facing due to disruptive climate events, the Committee considers that the impairment of their rights is not a potential future harm or theoretical possibility, but is a real and ongoing risk. Therefore, the authors’ remaining claims are admissible.

Merits

The Committee recalls that the right to life with dignity extends to reasonably foreseeable threats and life-threatening situations that can – but not necessarily - result in loss of life. This includes adverse climate change impacts, environmental degradation, climate change and unsustainable development. In the current situation, the Committee considers that the information provided indicates that the State party is taking adaptive and mitigative measures to reduce vulnerabilities and build resilience to climate change, such as construction of seawalls, upgrading stormwater drainage, and other coastal mitigation works. Therefore, there exists no violation of article 6. However, the State party’s delay in construction and providing explanations for reduction of marine resources and crops, indicate failure to discharge its positive obligation to protect the authors’ home and private life under article 17. Further, the State party’s failure to adopt timely measures to protect the authors’ traditional way of life amounts to a violation of article 27 of the Covenant. Having found these violations, the Committee does not deem it necessary to examine article 24(1).

Recommendations

The State Party, in furtherance of its obligation to provide the author with an effective remedy, is obligated, inter alia:

(a) to take appropriate steps to provide adequate compensation to the authors for the harm they have suffered;

(b) to engage in meaningful consultations with the authors’ communities in order to conduct needs assessments;

(c) to continue its implementation of measures necessary to secure the communities’ continued safe existence on their respective islands;

(d) to monitor and review the effectiveness of the measures implemented and resolve any deficiencies as soon as practicable; and

(e) to take steps to prevent similar violations in the future.

Implementation

Deadline: January 21, 2023

More information on the case:

Office of the United Nations High Commissioner for Human Rights – Australia violated Torres Strait Islanders’ rights to enjoy culture and family life, UN Committee finds

EJIL:Talk! – Torres Strait Islanders: United Nations Human Rights Committee Delivers Ground-breaking Decision on Climate Change Impacts on Human Rights

Reuters – Australia climate change inaction violated Torres Strait Islanders’ rights, U.N. says

Nature – Climate Justice: UN rules Australia violated islander rights

By: Smrithi Ramakrishnan