In September 2022, the United Nations Human Rights Committee (the ‘HRC’) in Billy v Australia found that Australia’s failure to protect the indigenous Torres Strait Islanders against the adverse impacts of climate change was in violation of article 17, the right to privacy, family and home, and article 27, the right of minority communities to practice their culture, of the International Covenant on Civil and Political Rights (ICCPR). The HRC’s decision has a significant bearing for those advocating for international human rights law (IHRL) as a vehicle to advance climate justice. In this piece I particularly focus on three points of significance in the HRC’s decision, demonstrating why it is indeed a win.
A brief summary of the facts of the case is as follows: eight Torres Strait Islanders (on behalf of six of their children), brought a complaint against Australia before the HRC. The applicants alleged that Australia has failed to take adequate action against rising sea levels and increasing emissions, thereby failing in its human rights obligations to the Torres Strait people. Specifically, the case invoked the right to life (art 6), the right to privacy, family, and home (art 17), the right to culture (art 27), and the rights of the child (art 24(1)) under the ICCPR.
DETANGLING THE CAUSAL ISSUE: PRIMARY OBLIGATION VS. HARMFUL EFFECTS
One of the key questions that confronts climate change litigation is establishing a causal link. This issue has confronted several jurisdictions as they attempt to detangle climate litigation claims (see, Massachusetts v EPA in the United States, the District Court of Essen’s Order in Huaraz, and the detailed discussion in Urgenda in the Netherlands). Simply put, as Peel notes, this issue often presents itself as follows: the development at issue will produce substantial greenhouse gas (GHG) emissions but, in the context of the global problem of climate change, is this a significant environmental impact?
Australia’s observations to the HRC highlight this reasoning perfectly: “as a legal matter, it is not possible to trace causal links between the State party’s contribution to climate change, its efforts to address climate change, and the alleged effects of climate change on the enjoyment of the authors’ rights” (¶ 4.3). However, the HRC effectively dispensed with this at the admissibility stage finding that the claimants presented impacts that were more than a theoretical possibility. Despite the parties differing as to the quantum of emissions within the territory of Australia, the HRC found it sufficient 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.” (¶ 7.8).
The importance of this is evidenced in the distinguishing between a violation of a primary obligation (i.e., duty to mitigate and avert adverse impacts of climate change) and the harmful effects (i.e., when the specific harm materialises) (see here). By drawing such a differentiation, Australia’s argument that the causal nexus could not be drawn to the specific harmful effect because these materialised in the future was thus moot. Rather, the HRC appears to have taken note of the primary obligation vs. effects distinction which is critical in litigating phenomena such as climate change with multi-causal actors, impacts on future generations, and difficulty in ascribing accountability in a linear manner.
CLIMATE CHANGE AND RIGHT TO CULTURE
A second point of significance is the HRC’s observation that the impact of climate change eroded the traditional lands and natural resources used by the Torres Strait Islanders. These were used for traditional fishing, farming, and for cultural ceremonies. Importantly, it was noted that the “health of their land and the surrounding seas [were] closely linked to their cultural integrity” (¶ 8.14). The focus on the right to culture and minority rights is significant for two key reasons.
First, the intimate link between indigenous peoples and their land and natural resources has been recognised in instruments such as the UN Declaration on the Rights of Indigenous Peoples, where article 29(1) provides the right of indigenous peoples to “conservation and protection of the environment and the productive capacity of their lands”. Similarly, other bodies such as the Inter-American Court of Human Rights have considered the clash between the individual and collective nature of traditional property rights which made members of the indigenous group especially vulnerable because their “manner of life (…) including their close relationship with the land” was distinguished from Western culture (Yakye Axa v Paraguay, on merits, ¶ 163). Most important in this context, even though indigenous groups have the right to free and informed consent to development on their land, these peoples cannot consent to the destruction of the natural world, as Irene Watson notes. This should foster environmental protection and hopefully mitigate the impact of climate change.
Second, the reliance on article 27 and the rights of minority communities to “enjoy their own culture” is significant as ‘culture’ is, fundamentally, intergenerational (see here). This means that the right to enjoy one’s culture encapsulates the right to transmit the same to future generations. Consequently, given that climate change impacts this right of transmission, the purpose of article 27 then gets frustrated as the right ceases to be ‘enjoyed’. The HRC appears to have favoured this line of reasoning, finding there has been a violation of the positive obligation to protect the authors’ right to enjoy their minority culture (¶ 8.14).
RIGHT TO LIFE AND THE ‘REAL AND REASONABLY FORESEEABLE RISK’ OF CLIMATE CHANGE
Regrettably, the HRC failed to find an article 6 violation on merits. Instead, it was reasoned that the evidence supplied concerning the impact of climate change was insufficient to indicate that they presented a “real and reasonably foreseeable risk (…) that could threaten their right to life, including their right to a life with dignity.” This was because the time frame of 10-15 years could allow for intervening acts and affirmative measures to protect and relocate victims.
Further, the HRC relied on evidence of coastal mitigation works and developing infrastructure in the islands that was seen as suitably indicative of adaptive measures by Australia. This made it insufficient to represent a ‘direct threat’ to the authors’ right to life with dignity (¶ 8.7). This affirms the reasoning established by the majority HRC members in Teitiota v New Zealand on merits, where it was found that adaptive measures could very well be taken by Kiribati before such ‘risk’ could be realised within the ambit of article 6. However, as noted by committee member Duncan Laki Muhumuza in the dissent, such a high standard to establish a risk would likely be “counterintuitive to the protection of life, to wait for deaths to be frequent and considerable” (¶ 5).
Thus, while there appears to be an acknowledgement that climate change can (and does) have an impact on protected human rights, the critical factor that the HRC appears to rely on for finding an article 6 violation on merits is the ‘imminence’ of harm. Despite this, it would be interesting to see if subsequent cases can establish such reasonable foreseeability by showcasing higher degrees of precarity.
CONCLUSION
While one could argue that a human rights approach to climate change justice merely addresses the symptoms of the problem as opposed to the problem of climate change itself, this ignores the ability of such litigation to compel states and institutions to begin taking mitigative and adaptive measures. This is not to suggest that IHRL is the only or the most desirable avenue to contest claims of climate justice. However, as the HRC in Billy has demonstrated, IHRL does indeed provide a means to interpret rights already conferred in existing treaties in a manner that favours those most suffering the consequences of climate change.
Mahima is a graduate of the BCL at the University of Oxford, and an alumnus of Jindal Global Law School, India.