Hofmann, Laura

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Climate change and human rights: anext big step for the Human RightsCommittee?Laura Hofmann 2020-09-22T00:00:00In May 2019, eight Torres Strait Islanders filed a communication alleging thatthe inaction of the Australian government over climate change is resulting inviolations of their rights under the International Covenant on Civil and Political Rights(ICCPR). Now, news reached that Australia has asked the Human Rights Committee(HRC) to declare the communication inadmissible. Whilst the HRC examines communications in closed sessions and only releases information once it hascompleted its deliberations (Rule 110, Rules of procedure of the HRC), the authorsof the communication have spoken about their complaint publicly. Furthermore, thecommunication is accompanied by the petition “Our Islands, Our Home”. Pursuantto reporting by The Guardian, which includes an interview with the legal counselof the authors, Australia seeks to have the case declared inadmissible as firstly, itconcerns future risks and secondly, Australia is not the main or sole contributor toclimate change, contesting that “climate change action is not its legal responsibilityunder human rights law”. This post looks at the situation in the Torres Strait Islandsand places the pending communication in the context of the HRC’s pronouncementson human rights and climate change.The situation in the Torres Strait IslandsThe Torres Strait Islands are low-lying islands situated between Australia’s northcoast and Papua New Guinea. Torres Strait Islanders form part of Australia’sindigenous population but are distinct from aboriginal peoples. The authors of thecommunication are seeking protection from the effects of climate change. Accordingto The Guardian, the communication alleges the government’s insufficient actionsover two issues: the reduction of emissions and the implementation of adaptationmeasures on the Torres Strait Islands. The communication argues that both amountto a failure of the government’s human rights obligations towards the Torres StraitIslanders.A recent opinion piece by Yessie Mosby, one of the authors of the communication,also published by The Guardian, outlines how the impacts of advancing sea levelscan be felt on the islands’ infrastructure as well as on its flora. This destroys cropsand contaminates drinking water wells. The rise in sea levels has also damagedburial sites. Beyond these immediate impacts, the threat of displacement andresettlement to the mainland looms over the Torres Strait Islanders. This threatextends to their culture. Mosby argues that as their culture is inextricably connectedwith the traditional (is)lands, relocation would signify its extinction.- 1 -Pursuant to the petition, the authors of the communication demand that Australiarapidly reduces its emissions and immediately implements adaptation measures.More specifically, the Torres Strait Islanders will ask the HRC to find that Australia’sinternational human rights obligations require it to “meet the 1.5 degree temperaturetarget of the Paris Agreement by increasing its emission reduction target to at least65% below 2005 levels by 2030, going net zero by 2050, and phasing out coal”.Moreover, adaptation measures need to be predicated on a study across the islands,involving the participation and consultation of the Torres Strait Islanders in thisprocess.A closer look at the Human Rights Committee’s work on climate changeIn recent years, the HRC has started to address the impacts of climate changeon human rights, specifically on the right to life (Article 6 ICCPR). In 2018, theCommittee asserted in general comment No. 36 that “environmental degradation,climate change and unsustainable development” form part of “the most pressingand serious threats to the ability […] to enjoy the right to life” (para. 62). Accordingly,state parties’ obligations under international environmental law “should […] informthe contents of article 6 of the Covenant” and vice versa (para. 62). This assertion– whilst couched in soft language – might bear relevance in challenging Australia’saforementioned contestation that “climate change action is not its legal responsibilityunder human rights law”.In January 2020, the HRC published its views in Teitiota v. New Zealand(communication No. 2728/2016), discussed here. The case concerned IoaneTeitiota, a Kiribati national and a “climate refugee”, who challenged the lawfulness ofhis removal to Kiribati from New Zealand, where he had applied for asylum. Alleginga violation of his right to life, Teitiota inter alia argued that the effects of climatechange, specifically the rising sea level, were rendering Kiribati uninhabitable,leading to “an untenable and violent environment” for himself and his family (para.2.1). He cited lack of habitable space that resulted in violent land disputes as well asenvironmental degradation contaminating the freshwater supply (para. 3). Althoughthe HRC found Teitiota’s removal to be lawful, it held that “the effects of climatechange […] may expose individuals to a violation” of their right to life, “therebytriggering the non-refoulement obligation of sending states” (para. 9.11). In otherwords, this positioning shows that – at least in the eyes of the HRC – it is not aquestion anymore whether being exposed to the adverse effects of climate changecan pose a threat to an individual’s right to life.A next step for the Human Rights Committee?Upon ratifying the Optional Protocol to the ICCPR, Australia recognised the HRC’scompetence to receive and consider communications. The Torres Strait Islanders’communication focuses on the human rights obligations of Australia towards itsown citizens. Broader in terms of allegations of violations than its “predecessor”,Teitiota v. New Zealand, the communication not only alleges a violation of the rightto life (Article 6 ICCPR) but also of the right to be free from arbitrary interference withprivacy, family, and home (Article 17 ICCPR) and of the right of minorities to enjoytheir own culture (Article 27 ICCPR).- 2 -Engaging with the question of attribution in the pending communication willconstitute a significant next step for the Committee. The 2009 report on therelationship between climate change and human rights by the Office of the UN HighCommissioner for Human Rights concluded that “the physical impacts of globalwarming cannot easily be classified as human rights violations” chiefly because“climate change-related harm often cannot clearly be attributed to acts or omissionsof specific States” (para. 96). Australia’s dismissal of the allegations inter alia onthe grounds that it is not the main or sole contributor to climate change reflects this.The circumstances in Teitiota v. New Zealand did not render attribution difficult. Inthe pending communication, attributing the climate change-related impacts on thehuman rights of Torres Strait Islands to Australia’s failure to reduce its emissionlevels, could prove more difficult in light of causation, as pointed out here.Yet, the communication does not hinge on this claim but also alleges the concretefailure to implement sufficient adaptation measures on the islands. If the HRC findsthe communication admissible, it will be of interest to see if and how it concretisesAustralia’s positive obligations concerning Articles 6, 17, and 27 ICCPR vis-à-vis theadverse impacts of climate change.In Teitiota v. New Zealand, the Committee’s reasoning focused on the suggestedtimeframe of 10 to 15 years – an estimate of when the island would becomeuninhabitable. According to the Committee, this timeframe could allow forintervention by Kiribati and the international community to protect the population,including through relocation (paras. 9.10–9.12). It is evident that the pendingcommunication precisely seeks to prevent relocation to the mainland, as this wouldresult in inter alia a denial of the Torres Strait Islanders’ right to culture and way oflife. In December 2019, Australia announced a $25 million sea wall in the TorresStrait that seeks to reduce the risk of flooding. This has been perceived as “a start”but has not satisfied the authors of the communication, arguing that the sea wallneeds to be split over 18 islands already adversely impacted, and indeed does notaddress Australia’s continuous contribution to climate change, and thus the risingsea levels.A new hope?As previously highlighted, the HRC’s views in Teitiota v. New Zealand opened thedoor to asylum claims by individuals seeking protection from the effects of climatechange. They, however, also show how the treaty bodies, as part of the internationalhuman rights system, can be utilised “to exert pressure on the internationalcommunity to address issues of climate change effectively”, as argued here.Precisely by addressing the scope of human rights obligations and by engaging stateparties through inter alia their views, treaty bodies can have a subtle yet formativeinfluence on international human rights law (see e.g. the work of the InternationalLaw Commission, McCall-Smith). Beyond the communications received by the HRCon the effects of climate change, another communication is currently pendingbeforethe Committee on the Rights of the Child. That communication, discussed here, wasfiled by sixteen children from various nationalities that claim to be victims of climatechange.- 3 -Although the communication by the Torres Strait Islanders is just one of threecommunications before the UN treaty bodies, it may be indicative of the significanceattributed to human rights bodies in the context of climate change. Although theHRC cannot render legally binding decisions, its interpretation of human rightslaw has been ascribed “great weight” by the International Court of Justice (Diallo,para. 66). After the HRC addressed the international community in Teitiota v. NewZealand (paras. 9.12–9.13), the anticipated views in the pending communicationmay indicate the course the HRC will take on the issue of human rights obligationsin the context of climate change in the future. The views will therefore be of interestto all state parties of the ICCPR. It is to be hoped that the Committee’s views – andthe pronouncements of the treaty bodies more generally – will continue to expoundon states’ human rights obligations vis-à-vis the impacts of climate change.- 4 -

Climate change and human rights: a next big step for the Human Rights Committee?

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Climate change and human rights: a next big step for the Human Rights Committee?

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