This post was contributed by Sarah Joseph, a Professor in the Griffith Law School and a member of the Law Futures Centre.
The UN Human Rights Committee (‘UNHRC’) issued a blockbuster climate change decision on 22 September 2022, Billy et al v Australia, in favour of a group of complainants from the Torres Strait Islands. The case is an important addition to the growing arsenal of climate-related legal challenges, both international and domestic.
The complainants in Billy are a group of Torres Strait Islanders who claimed that Australia breached a number of their rights under the International Covenant on Civil and Political Rights (’ICCPR’). In particular, they claimed that Australia had failed to take adequate adaptation and mitigation measures to reduce greenhouse gas emissions, which had led to current, and would lead to reasonably foreseeable, interferences with their rights as inhabitants of the Torres Strait Islands, which are particularly vulnerable to the impacts of climate change. For example, they claimed that sea level rise had already caused:
flooding and inundation of villages; flooding and inundation of ancestral burial lands; loss and erosion of traditional lands, including plants and gardens; destruction or withering of traditional gardens through salinification caused by flooding or seawater ingress; decline of nutritionally and culturally important marine species caused by climate change, and associated coral bleaching (reef death) and ocean acidification; and a reduced ability to practice their traditional culture and pass it on to the next generation.
The anticipated harm is even worse, including the complete inundation of the Torres Strait Islands.
The relevant rights at issue are: Article 17 (freedom from interference with private, family and home life), Article 27 (Indigenous cultural rights), fand Article 6 (right to life).
Admissibility of the Complaint
The Australian government argued against admissibility of the complaint, claiming that most of the alleged violations were speculative, and that no causal link to actions or omissions by the State party could be established. Its position can be summed up in the following extracts:
6.3 Climate change is a global phenomenon attributable to the actions of many States. It requires global action, unlike other environmental issues previously considered by the Committee. The general effects of climate change, and the effectiveness of any mitigation or adaptation measures to address those effects, are not within the complete control of any State. …
6.7 The obligation to respect under article 2 (1) of the Covenant is a positive obligation of non-interference with Covenant rights that only extends to real risks against which a State party can offer protection. The alleged threat to the authors’ rights is a global phenomenon arising from myriad acts committed by innumerable private and State entities over decades that are unquestionably beyond the jurisdiction and control of the State party. It would be perverse if the Covenant were to impose a duty or obligation on the State party – to ensure that climate change does not impair the authors’ rights – that the State party could not hope to fulfil. …
Australia here is raising some of the difficulties associated with human rights claims regarding climate change. Complaints under the ICCPR have traditionally concerned the obligations of single States towards identifiable victims of their acts and omissions. We can readily agree that Australia has been a laggard on climate change action. However, it is not easy to draw a causative link between those (in)actions and specific harm caused or likely to be caused to particular people, given so many other actors have contributed and are contributing to global warming.
This particular lock on human rights remedies has been seemingly unpicked, however. Previous climate change cases had been brought by a group of children, including Greta Thunberg, from all over the world against five individual States under the Convention on the Rights of the Child. Ultimately, in the decisions issued in late 2021, the cases were found to be inadmissible due to a failure to exhaust potential local remedies. However, the Committee on the Rights of the Child (‘CRC Committee’) echoed an earlier ground-breaking Advisory Opinion of the Inter-American Court of Human Rights in saying:
10.8 … while climate change and the subsequent environmental damage and impact on human rights it causes is a global collective issue that requires a global response, States parties still carry individual responsibility for their own acts or omissions in relation to climate change and their contribution to it. …
10.10. the collective nature of the causation of climate change does not absolve the State party of its individual responsibility that may derive from the harm that the emissions originating from its territory may cause to children, whatever their location.
In its decision on admissibility, the UNHRC stated:
7.8 With respect to mitigation measures, … the information provided by both parties indicates 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. The Committee also notes that the State party ranks high on world economic and human development indicators. In view of the above, the Committee considers that the alleged actions and omissions fall under the State party’s jurisdiction … and therefore, it is not precluded from examining the present communication.
The UNHRC is therefore hinting that richer States, especially those with a comparatively poor record on climate change mitigation, might be held to a higher standard under the ICCPR in this regard than other States.
Despite the relevance of mitigation to the admissibility decision, the findings focus on failures in adaptation rather than mitigation. In terms of traditional human rights law, it is much easier to draw a causative line between Australia’s adaptation failures, which are its own, and its mitigation failures, which it shares with the world.
Articles 17 and 27
The HRC found violations of Articles 17 and 27 of the ICCPR. Regarding Article 17, The evidence demonstrated that the complainants had already suffered from grave impacts on their rights to private and family life and the home, including disruption of food sources and frequent flooding. The complainants also faced the real prospect of ‘having to abandon their homes’.
The particular violation was entailed in Australia’s failure to take prompt and appropriate adaptation measures to protect the complainants from climate change harms. While it acknowledged recent actions whereby Australia had constructed new sea walls on the Torres Strait Islands, it found that Australia had failed to explain the delay in doing so despite multiple requests from Torres Strait Island residents.
A similar decision was made in respect of Article 27:
8.14 … the Committee considers that the information made available to it indicates that the State party’s failure to adopt timely adequate adaptation measures to protect the authors’ collective ability to maintain their traditional way of life, to transmit to their children and future generations their culture and traditions and use of land and sea resources discloses a violation of the State party’s positive obligation to protect the authors’ right to enjoy their minority culture. Accordingly, the Committee considers that the facts before it amount to a violation of the authors’ rights under article 27 of the Covenant.
Article 6 (right to life)
No violation was found of the right to life, Article 6. First, the UNHRC found that the complainants had not indicated that they faced such adverse health impacts, or reasonably foreseeable impacts, that equated with the ‘physical endangerment or extreme precarity that could threaten their right to life, including their right to a life with dignity’. Furthermore:
8.7 Regarding the authors’ assertion that their islands will become uninhabitable in 10 years (Boigu and Masig) or 10 to 15 years (Poruma and Warraber) in the absence of urgent action, the Committee recalls that without robust national and international efforts, the effects of climate change may expose individuals to a violation of their rights under article 6 of the Covenant. Furthermore, given that the risk of an entire country becoming submerged under water is such an extreme risk, the conditions of life in such a country may become incompatible with the right to life with dignity before the risk is realized.
After detailing current adaptation and mitigation measures by Australia, including the Torres Strait Seawalls Program (2019-2023), it found:
The Committee considers that the time frame of 10 to 15 years, as suggested by the authors, could allow for intervening acts by the State party to take affirmative measures to protect and, where necessary, relocate the alleged victims. The Committee considers that the information provided by the State party indicates that it is taking adaptive measures to reduce existing vulnerabilities and build resilience to climate change-related harms in the Islands. Based on the information made available to it, the Committee is not in a position to conclude that the adaptation measures taken by the State party would be insufficient so as to represent a direct threat to the authors’ right to life with dignity.
This part of the decision recalls the UNHRC’s previous decision in Teitiota v New Zealand(2020). This demonstrates that, in the view of the UHRC, climate change impacts are not yet so irreversible or unmanageable as to breach Article 6, even though the development in the Torres Strait Islands of conditions incompatible with life reasonably foreseeable. There is still time, according the UNHRC, for measures to be taken to at least save the lives of complainants, including the drastic step of relocation. That drastic step would not apparently breach the right to life, though it would undoubtedly engage other rights, such as Articles 17 and 27.
Having found violations of Articles 17 and 27, the UNHRC stated the following regarding an appropriate remedy:
11. Pursuant to article 2 (3) (a) of the Covenant, the State party is under an obligation to provide the authors with an effective remedy. This requires it to make full reparation to individuals whose Covenant rights have been violated. Accordingly, the State party is obligated, inter alia, to provide adequate compensation, to the authors for the harm that they have suffered; engage in meaningful consultations with the authors’ communities in order to conduct needs assessments; continue its implementation of measures necessary to secure the communities’ continued safe existence on their respective islands; and monitor and review the effectiveness of the measures implemented and resolve any deficiencies as soon as practicable. The State party is also under an obligation to take steps to prevent similar violations in the future.
In keeping with the decision, the recommended remedy does not explicitly contain a direction to Australia to do more to mitigate the impacts of climate change. Mitigation obligations are, at best, implied.
A number of UNHRC members appended separate opinions, all of which constituted stronger findings against Australia. (Please note that I am not in a position to comment specifically on two of the opinions, those from Members Carlos Gómez Martínez and Hernán Quezada, as they are currently only available in Spanish).
Right to Life
Several members found violations of Article 6 alongside Articles 17 and 27. For example, Members Arif Bulkan, Marcia V.J. Kran and Vaslika Sancin find that there currently exist ‘”real and foreseeable risks” to [the complainants’] lives resulting from flooding on the Torres Strait Islands’, which Australia has failed to adequately minimise. Member Duncan Laki Muhumuza agrees.
These members take a broader view of the right to life than the majority. In particular, Bulkan et al criticise the majority for requiring ‘adverse health impacts to demonstrate an article 6 violation’.
The difference seems to relate to the interpretation of the ‘right to life’ per se but ‘the right to life with dignity’, a concept which emerged with insufficient explanation in the UNHRC’s General Comment 36 on the right to life (2018). Australia criticised the concept in its submissions regarding Billy:
4.8 … Although a laudable policy objective that is shared by the State party, the extension of article 6 (1) of the Covenant to a right to life with dignity is unsupported by the rules of treaty interpretation, the ordinary meaning of article 6 (1), and any relevant jurisprudence.
Two views are possible. The majority in Billy seemed to indicate that the concept refers to the need for States to adopt positive measures to protect people from plausible deadly threats to their lives. A broader view entails more than protection from theats that kill to encompass a right to live a life to a certain standard of dignity. In the former version, forced relocation due to certain future uninhabitability would not breach Article 6 (unless relocation was foreseeably dangerous), whereas it probably would with the latter version. The latter version might, however, lead to such an expansive view of the right to life that it swallows up many other recognised rights, such as Articles 17 and 27.
Mitigation versus Adaptation
As explained above, the majority ultimately focused on Australia’s failures in adaptation despite its mention of mitigation in its admissibility decision. Many of the separate opinions found violations regarding mitigation. For example, Member Duncan Laki Muhumuza stated:
11. In the instant case before us, the State Party has not taken any measures to reduce greenhouse gas emissions and cease the promotion of fossil fuel extraction and use, which continue to affect the authors and other islanders, endangering their livelihood, resulting in the violation their rights under article 6 of the Covenant.
Member Gentian Zyberi addresses the difficulty in traditional human rights law in finding breaches regarding mitigation:
5. A clear limitation of the law on international responsibility in cases of climate change and related litigation, is the difficulty involved in addressing what constitutes shared responsibility. Since it is the atmospheric accumulation of CO2 and other GHGs that, over time, gives rise to global warming and climate change, States should act with due diligence when taking mitigation and adaptation action, based on the best science. This is an individual responsibility of the State, relative to the risk at stake and its capacity to address it. A higher standard of due diligence applies in respect of those States with significant total emissions or very high per capita emissions (whether these are past or current emissions), given the greater burden that their emissions place on the global climate system, as well as to States with higher capacities to take high ambitious mitigation action. This higher standard applies to the State party in this case.
While Zyberi concurs in the outcome of the case, he criticises the majority for its focus on adaptation rather than mitigation:
… it is mitigation actions which are aimed at addressing the root cause of the problem and not just remedy the effects. If no effective mitigation actions are undertaken in a timely manner, adaptation will eventually become impossible. Such land and sea resources will not be available for indigenous peoples or even for humanity more generally, without diligent national efforts, as well as joint and concerted mitigation actions of the organized international community.
As has been noted by the former UN Special Rapporteur on Human Rights and the Environment, John Knox, the UNHRC missed an opportunity here to address mitigation. It probably cannot avoid the issue for too much longer. Zyberi’s opinion may signpost the way forward from here.
The UNHRC is not an international court; it is a quasi-judicial tribunal, though its findings are authoritative and influential for the purposes of interpreting a binding international treaty, the ICCPR. Australia has a poor record of implementing the views of the UNHRC. Its responses commonly cite its lack of judicial status.
Having said that, Australia might well implement most of the recommendations, at least to the extent they are aimed at adaptation rather than mitigation. There are likely to be increased adaptation measures for the Torres Strait Islands, and greater consultation with its population. I doubt, however, that Australia will compensate the complainants.
The biggest impact of the decision will likely be its effect on domestic litigation, in Australia and beyond. Billy could inform proceedings under the Queensland Human Rights Act against Clive Palmer’s proposed Galilee Coal Project and a class action by Torres Strait Islanders designed to force greater cuts in Australia’s emissions. Billy may also inspire further international challenges from both Indigenous and non-Indigenous communities, such as for example the people of Lismore.