UN Human Rights Committee, 21 July 2022, Daniel Billy and Others v Australia (Torres Strait Islanders Petition), Communication No. 3624/2019

Torres Strait Islanders – Climate Change – Uninhabitability – Small Island Developing States (SIDS) – Adaptation – Mitigation – Prevention – Anticipation – Relocation – Resettlement – Climate Justice – Common but Differentiated Responsibility (CBDR) – Indigenous – Loss and Damage.

When questioned by the Torres Strait Islanders, the United Nations Human Rights Committee finds that Australia’s failure to adopt timely adequate adaptation measures violated their right to home, private and family life, and their right to enjoy their minority culture, but did not violate their right to life. The Committee considers that Australia still has time to take measures to preserve the authors’ lives, including by relocating them, while the preservation of their home, private and family life, and the maintenance of their culture as a minority, cannot be conceived of anywhere but on their islands. The judgment sets the stage for a reflection on the protection of human rights in the face of the future uninhabitability of certain territories. Despite some limitations, most notably the large disregard for mitigation on the merits, the views offer additional arguments to peoples whose territories are being degraded, especially when they are indigenous and live on low-lying islands.

Marie Courtoy

A. Facts and Ruling

Daniel Billy, Ted Billy, Nazareth Fauid, Stanley Marama, Yessie Mosby, Keith Pabai, Kabay Tamu and Nazareth Warria are “nationals of Australia and residents of the Torres Strait region” (§ 1.1). They have submitted a communication to the UN Human Rights Committee (hereafter, “the Committee”) in their own names and on behalf of some of their children. They claim violations of several articles of the ICCPR: Articles 6 (right to life), 17 (right to privacy, family and home) and 27 (right to culture, religion and language of minorities), as well as Article 24(1) with regard to the children.[1]

The authors “belong to the indigenous minority group of the Torres Strait Islands” (§ 2.1) and live specifically on low-lying islands there, which places them “among the most vulnerable populations to the impact of climate change” according to the Committee (§ 2.1). They explain that they are already suffering from the impact of climate change, but that the anticipated harm is expected to be even more severe, especially if adequate action is not taken.

Indeed, today we already see that the combination of extreme events, erosion and flooding are causing the loss of traditional territories and the destruction of houses and graveyards. Salt is infiltrating land used for agriculture. Rising temperature is causing ocean acidification and the decline of “nutritionally and culturally important marine species” (§ 2.3). The increasing unpredictability of weather events makes the transmission of traditional ecological knowledge more difficult.

As for the future, the Torres Strait Regional Authority, a government body, has noted in its Torres Strait Climate Change Strategy that “even small increases in sea level due to climate change will have an immense impact on Torres Strait communities, potentially threatening their viability” and that “large increases would result in several Torres Strait islands being completely inundated and uninhabitable”.

1. Admissibility

Several admissibility hurdles have been raised by Australia. The first one concerns the exhaustion of domestic remedies, since the authors went directly to the Committee. The latter notes the authors’ position that there are no available or effective domestic remedies based on their uncontested statement that the highest court in Australia has ruled that state organs do not owe a duty of care for failing to regulate environmental harm (§ 2.9). The Committee also takes note of Australia’s position that it is not required to provide domestic remedies since there is no breach of rights as recognized by the Covenant as properly understood (§ 6.6), and concludes that this issue cannot be dissociated from the merits of the case (§ 7.3).

Australia’s argument that the authors’ claims regarding violations of international climate change treaties are inadmissible ratione materiae is also rejected by the Committee, which considers that “the authors are not seeking relief for violations of the other treaties before the Committee but rather refer to them in interpreting the State party’s obligations under the Covenant” (§ 7.5).

Australia also makes a usual argument in climate litigation: climate change “is a global phenomenon arising from myriad acts committed by innumerable private and State entities over decades that are unquestionably beyond [its] jurisdiction and control” (§ 6.7). In its response, the Committee distinguishes between adaptation measures, which must be taken as part of the positive obligations of States under the Covenant rights, and mitigation measures, for which it considers Australia’s particular situation in this regard. The Committee notes that Australia “is and has been in recent decades among the countries in which large amounts of greenhouse gas emissions have been produced” and “ranks high on world economic and human development indicators”, and thus concludes that “the alleged actions and omissions fall under the State party’s jurisdiction” (§ 7.8).

Lastly, Australia argues that the authors are not victims as “their allegations … represent possible impacts of climate change, but not existing or imminent violations of Covenant rights” (§ 6.1). The Committee begins by recalling its jurisprudence that a person can only claim to be a victim if he or she is actually affected, that is, when his or her rights have already been impaired or if the impairment is imminent. It then focuses on the fact that the authors live on small, low-lying islands and that their lives and cultures are highly dependent on natural resources, making them particularly vulnerable to climate change, and concludes that “the risk of impairment of those rights, owing to alleged serious adverse impacts that have already occurred and are ongoing, is more than a theoretical possibility” (§ 7.10).

2. Merits

The Committee finds a violation of Articles 17 (right to privacy, family and home) and 27 (right to culture, religion and language of minorities), but not of Article 6 (right to life), and does not “deem it necessary to examine” Article 24 (children) since it has already found a violation of Articles 17 and 27.

With respect to Article 17, the Committee emphasizes that “the authors depend on fish, other marine resources, land crops, and trees for their subsistence and livelihoods, and depend on the health of their surrounding ecosystems for their own wellbeing”, all of which “constitute components of the traditional indigenous way of life of the authors, who enjoy a special relationship with their territory”, and fall under the scope of protection of Article 17 (§ 8.10). Climate change adversely affects their way of life, jeopardizing their food resources, and damaging or threatening their villages, burial lands and graveyards, while “their most important cultural ceremonies are only meaningful if performed on native community lands” (§ 8.12). The authors therefore also “experience anxiety and distress” about upcoming impacts notably related to erosion (§ 8.12). The Committee notes that, although Australia has taken numerous adaptation measures including in the authors’ territory, the State party has not explained the delay in seawall construction. The Committee therefore finds a violation of the Article.

The reasoning is similar for Article 27. The Committee begins by recalling that Article 27 “enshrines the inalienable right of indigenous peoples to enjoy the territories and natural resources that they have traditionally used for their subsistence and cultural identity” (§ 8.13). The Committee then takes note of “the authors’ claim that those impacts have eroded their traditional lands and natural resources that they use for traditional fishing and farming and for cultural ceremonies that can only be performed on the islands” and considers that the threat faced by the authors could have been foreseen by Australia, but that the State party did not proceed with the seawall construction in time (§ 8.14). The Committee therefore finds a violation of Article 27 as Australia failed to “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” (§ 8.14).

On the other hand, the Committee does not find a violation of Article 6. The Committee recalls its general comment No. 36 which states that the right to life also includes the right “to enjoy a life with dignity”, that it “extends to reasonably foreseeable threats and life-threatening situations that can result in loss of life … even if such threats and situations do not result in the loss of life”, and that “environmental degradation, climate change and unsustainable development constitute some of the most pressing and serious threats to the ability of present and future generations to enjoy the right to life” (§ 8.3). Yet the Committee considers that the authors “have not indicated that they have faced or presently face adverse impacts to their own health or a real and reasonably foreseeable risk of being exposed to a situation of physical endangerment or extreme precarity that could threaten their right to life, including their right to a life with dignity”, and that their claim under Article 6 in fact “mainly relate to their ability to maintain their culture”, namely Article 27 (§ 8.6).

Reiterating its jurisprudence in Teitiota (for a commentary, see here), 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” and that “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” (§ 8.7). However, it 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” (§ 8.7).

B. Discussion

This is not a migration case as such. However, the concern about the future uninhabitability of the authors’ territories underlies the whole case. One senses a certain discomfort on the part of the Committee to take on future issues, which mix mitigation and adaptation to climate change, with a rather ambiguous position with respect to possible relocations (1). On the other hand, the Committee accedes to the authors’ request and recognizes climate justice grounds that open up new avenues for the inhabitants of territories that are being degraded by climate change, especially if they are indigenous and/or live on low-lying islands (2).

1. The Discomfort in Dealing with the Future Uninhabitability of Certain Territories

When asked about the human rights consequences of the future uninhabitability of certain territories due to climate change, the Committee must answer several new and delicate questions: whether people must be protected against future harm, whether possible relocations are compatible with human rights, and whether the protection of people living in degrading territories requires the combination of mitigation and adaptation measures.

- Protecting Human Rights, a Preventive Obligation?

Australia argues that 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” (§ 6.7) and that it “would be both inappropriate and unfounded for the Committee to interpret the Covenant in such a way as to allow it to re-make the informed, good faith and difficult policy decisions of a democratically elected government that inherently involve compromises, trade-offs and the allocation of limited resources across the range of challenges to the full enjoyment of human rights” (§ 6.11). The argument that the Committee cannot “place an impossible burden on States” nor “displace reasonable policy choices made in good faith by States as they assess a range of threats and challenges … and decide how to distribute limited resources to address them” (§ 6.10) becomes even more compelling when it comes to future risks.

In their request, the authors approach from several fronts: they point to violations already suffered, present anxiety and distress due to future violations, imminent threats of violations, and violations to be expected if their territory becomes unviable. Interestingly, the authors also counter-argue that

“the State party has already violated its duty to avert devastating and future irreversible impacts on rights protected by the Covenant, including impacts caused by existing greenhouse gas emissions. Protective measures must be initiated today. Climate change is a slow-onset process. Thus, a State party may violate its obligations before the worst effects occur” (§ 5.2, footnote omitted).

The Committee’s response is in favor of the authors, but remains within conventional arguments. At the admissibility stage, when examining victim status, the Committee bases itself solely on past and present harm since it considers that “the risk of impairment of those rights, owing to alleged serious adverse impacts that have already occurred and are ongoing, is more than a theoretical possibility” (§ 7.10, emphasis added). On the merits, the Committee sits on the fence. It does not find the violation of Article 6 on the grounds that there is still time for the State party to act, even though it recognizes that “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” (§ 8.7). Yet it finds that Articles 17 and 27 have been violated in particular or even predominantly because the authors’ way of life cannot be pursued outside their islands – thereby implying that it takes into account the potential future uninhabitability of the islands.

In an individual opinion, Committee member Carlos Gómez Martínez highlights this inconsistency: if the Committee considers itself “not in a position to conclude that the adaptation measures taken by the State party would be insufficient so as to represent a [violation of Article 6]”, he does not understand “how the Committee considers itself in a position to conclude that the adaptation measures taken by the State party are insufficient for the purposes of finding a violation of Articles 17 and 27” (Annex IV, § 5, translation by the author). He therefore concludes that the majority should have found no violation of Articles 17 and 27. However, he expresses an isolated opinion, since three of the five opinions conclude, on the contrary, that the majority should also have found a violation of Article 6. While Committee members Duncan Laki Muhumuza and Hernán Quezada argue in their individual opinions that the violation of Article 6 has been sufficiently substantiated, in their joint opinion Committee members Arif Bulkan, Marcia Kran and Vasilka Sancin criticize the use of the “real and foreseeable risk” standard that is borrowed from the dissimilar context of refugee cases.[2]

Verena Kahl therefore regrets the Committee’s “reluctance to capture future harm, … [which] reveals the limits of preventive protection in contemporary human rights dogma”. According to Sarah Joseph, “This demonstrates that, in the view of the UNHRC, climate change impacts are not yet so irreversible or unmanageable as to breach Article 6”.

- Relocation: Problem or Solution?

The difference in the Committee’s examination of Article 6, on the one hand, and Articles 17 and 27, on the other, is also surprising in another respect: the treatment of possible relocation. Under Article 6, the Committee rejects the authors’ claim on the grounds 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” (§ 8.7), thus considering relocation as a way of avoiding a violation of Article 6. On the other hand, under Articles 17 and 27, the Committee recognizes that the authors’ cultural ceremonies can only be performed on the islands (§§ 8.12 and 8.14) and, even more tellingly, that “they could not practice their culture on mainland Australia, where they would not have land that would allow them to maintain their traditional way of life” (§ 8.14). It therefore concludes on a violation of Articles 17 and 27 due to Australia’s failure to take adequate adaptation measures in time, in particular the delay in seawall construction, thereby implying that relocation is not an option.

Perhaps this is the difference: life can be protected by leaving the place of risk, but can we only ask for a right to life when it goes against everything that makes sense in our existence?[3] Under Article 6, reference is made to the Teitiota case. However, the situation was different: weighing the interests to stay and those to leave, the Kiribati national went to New Zealand of his own free will. It is a different matter when people still live in their territory and hope to live there in the future. Moreover, crucial to the Committee’s views was the fact that Torres Strait Islanders have a special connection to their environment, described by the Committee as indigenous, and that they live on small islands from which the Committee infers that they “presumably offer scant opportunities for safe internal relocation” (§ 7.10) – as will be developed.

- After the Focus on Mitigation, a Focus on Adaptation: Can the Two Objectives Be Reconciled?

In any case, the previous considerations demonstrate the importance of continuing efforts in terms of climate change mitigation. Yet, the issue of mitigation is conspicuous by its absence from the Committee’s consideration of the merits. Climate change adaptation was a latecomer to the international climate negotiations, lest it demonstrate pessimism about achieving mitigation goals, but is now gaining prominence as it is known that existing emissions are already creating harm. In the present views, though, the Committee approaches the authors’ request almost exclusively through the lens of adaptation, largely disregarding mitigation. Protecting individuals who live in deteriorating territories, however, cannot be limited to curbing the symptoms without jointly addressing the cause. John Knox, the former UN Special Rapporteur on Human Rights and the Environment, called it a missed opportunity (see also, among many others, Christina Voigt).

He is not the only one to deplore the lack of consideration for mitigation, the individual opinions of two Committee members address it too. Committee member Duncan Laki Muhumza bases his argument for the violation of Article 6 inter alia on the fact that “the State Party has not taken any measures to reduce greenhouse gas emissions and cease the promotion of fossil fuel extraction and use” (Annex I, § 11). Committee member Gentian Zyberi devotes his entire opinion to mitigation. He reiterates the Paris Agreement’s commitment to the highest possible ambition as part of the due diligence standard, which is higher for “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” (Annex II, § 5) – as is the case with Australia. He also considers that the majority should have linked the violation of the authors’ right to enjoy their minority culture under article 27 “more clearly to mitigation measures … – as it is mitigation actions which are aimed at addressing the root cause of the problem and not just remedy the effects [and i]f no effective mitigation actions are undertaken in a timely manner, adaptation will eventually become impossible” (Annex II, § 6).

On a positive note, it should be pointed out that while mitigation was sidelined on the merits, it passed the admissibility test in a very interesting and rather innovative way – as will be developed. Furthermore, Monica Feria-Tinta, who acted as counsel in the case, considers that the Committee’s statement “that ‘the State party is also under an obligation to take steps to prevent similar violations in the future’ … falls within the scope of guarantees of non-repetition and it can only be achieved by adequate mitigation measures”.

2. The Breakthrough of Climate Justice, Providing New Tools for Victims

Despite some limitations, the views are encouraging. This is the first international climate decision where the applicants have won on the merits (as noted by Verena Kahl and Maria Antonia Tigre). It also opens up several avenues for holding (wealthier and more responsible) States accountable, protecting the most vulnerable, and strengthening loss and damage claims. It is therefore in line with domestic decisions that show a growing concern for climate issues.

- Common but Differentiated Responsibility

As noted above, the issue of mitigation is not discussed on the merits. However, the reasoning behind its admissibility is worth considering:

“With respect to mitigation measures, although the parties differ as to the amount of greenhouse gases emitted within the State party’s territory, and as to whether those emissions are significantly decreasing or increasing, 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 …” (§ 7.8)

The Committee not only goes beyond the drop in the ocean argument by establishing that each State has its share of responsibility, but also declares that Australia has a heightened responsibility due to its greater capacity and contribution to climate change. This reflects the principle of “common but differentiated responsibility” in its two dimensions. Indeed, while the principle is accepted as part of environmental law, its exact scope is still debated, with Southern States seeing the differentiation as being based on contribution to climate change, and Northern States on capacity[4]. The reference to one or the other dimension of the principle is not new in climate litigation[5], but invoking both dimensions in an international decision is undoubtedly innovative and contributes to strengthening a principle often decried for its poor impact.

- Indigenous and Inhabitants of Low-lying Islands

The fact that the inhabitants are indigenous and live on low-lying islands constantly comes up in the views. On the very first page, the Committee declares that “The indigenous people of the Torres Strait Islands, especially the authors who reside in low-lying islands, are among the most vulnerable populations to the impact of climate change” (§ 2.1). In assessing eligibility, the Committee dwells at length on the special status of Torres Strait Islanders. It observes that “the authors – as members of peoples who are the longstanding inhabitants of traditional lands consisting of small, low-lying islands that presumably offer scant opportunities for safe internal relocation – are highly exposed to adverse climate change impacts” and deems it uncontested that “the authors’ lives and cultures are highly dependent on the availability of the limited natural resources to which they have access, and on the predictability of the natural phenomena that surround them”. It thus returns to the previously made conclusion that “the authors are among those who are extremely vulnerable to intensely experiencing severely disruptive climate change impacts” (§ 7.10).

On the merits, not surprisingly, the fact that they are indigenous is not mentioned in the review of Article 6. The authors’ argument, that “the health of their islands is closely tied to their own lives”, is even used to say that their Article 6 claim is mostly related to their Article 27 claim, i.e. their ability to maintain their culture (§ 8.6). On the other hand, the finding of violation of Articles 17 and 27 is based primarily on the threat posed by climate change to the traditional indigenous way of life of the authors, which is threatened by the loss of traditional lands and resources, but also the prospect of having to abandon their homes. Highly exposed, on a limited territory, while their life is so strongly tied to their environment, this makes them striking victims of climate change, even more so given their insignificant contribution to the problem. This recognition of the need for increased attention to indigenous peoples and in particular the inhabitants of low-lying islands gives them an additional voice to be heard (as welcomed by Sarah Joseph, Verena Kahl and Maria Antonia Tigre).

- Loss & Damage

Lastly, it is worth taking a look at the remedies requested by the Committee. Beyond implementing adequate and timely remedies in consultation with the authors and taking steps to prevent similar violations in the future, the Committee also requests Australia to “provide adequate compensation, to the authors for the harm that they have suffered” (§ 11).

The question of compensation for loss and damage is a burning issue, which was at the heart of COP 27. Northern States indeed refuse to compensate – thus avoiding acknowledging their responsibility – but only agree to assist Southern States in financing mitigation and adaptation measures. At COP 27, they eventually agreed to “establish new funding arrangements for assisting developing countries that are particularly vulnerable to the adverse effects of climate change, in responding to loss and damage” and “to establish a fund for responding to loss and damage” (Decision CMA.4, §§ 2-3). It remains to be seen if, how and when they will be concretely implemented. The Committee’s present views further emphasize the need to compensate for the harm already done and still being done, giving an additional argument to the victims of climate change.

C. Suggested Reading

To read the case: UN Human Rights Committee, 21 July 2022, Daniel Billy and Others v. Australia (Torres Strait Islanders Petition), Communication No. 3624/2019.

Case law

• UN Human Rights Committee, 24 October 2019, Ioane Teitiota v. New Zealand, Views on Communication No. 2728/2016.
• United Nations Committee on the Rights of the Child, 22 September 2021, Chiara Sacchi et al. v. Argentina, Views on Communication No. 104/2019.
• Hoge Raad, 20 December 2019, Urgenda v. the Netherlands, No. 19/00135.
• High Court of Australia, 5 December 2002, Graham Barclay Oysters v. Ryan [2002] HCA 54.

Doctrine

• J.-Y. Carlier, S. Sarolea, Droit des étrangers, Bruxelles, Larcier, 2016.
• A. Anderson et al., “Imminence in Refugee and Human Rights Law: A Misplaced Notion for International Protection”, International & Comparative Law Quarterly, vol. 68, no. 1, January 2019, pp. 111-140.
• S. Atapattu, C.G. Gonzalez, “The North–South Divide in International Environmental Law: Framing the Issues”, in C.G. Gonzalez et al. (eds.), International Environmental Law and the Global South, Cambridge, Cambridge University Press, 2015, pp. 1-20.
• B. Çalı, C. Costello, S. Cunningham, “Hard Protection through Soft Courts? Non-Refoulement before the United Nations Treaty Bodies”, German Law Journal, vol. 21, no. 3, April 2020, pp. 355-384.
• M. Courtoy, “Une décision historique pour les ‘réfugiés climatiques’? Mise en perspective”, Cahiers de l’EDEM, February 2020.
• M. Courtoy, “‘To Leave Is to Die’: States’ Use of Mobility in Anticipation of Land Uninhabitability”, German Law Journal, vol. 23, no. 7, September 2022, pp. 992-1011.
• J. Dehm, “Carbon Colonialism or Climate Justice? Interrogating the International Climate Regime from a TWAIL Perspective”, Windsor Yearbook of Access to Justice, vol. 33, no. 3, 2016, pp. 129-161.
• M. Feria-Tinta, “Torres Strait Islanders: United Nations Human Rights Committee Delivers Ground-Breaking Decision on Climate Change Impacts on Human Rights”, EJIL: Talk!, 27 September 2022.
• M. Foster, J. McAdam, “Analysis of ‘Imminence’ in International Protection Claims: Teitiota v New Zealand and Beyond”, International and Comparative Law Quarterly, vol. 71, no. 4, 1 August 2022, pp. 975-982.
• S. Joseph, “Climate Change and the Torres Strait Islands: UN Condemns Australia”, Law Futures Centre Blog, 26 September 2022.
• V. Kahl, “Rising Before Sinking: The UN Human Rights Committee’s landmark decision in Daniel Billy et al. v. Australia”, VerfBlog, 3 October 2022.
• M. A. Tigre, “United Nations Human Rights Committee finds that Australia is violating human rights obligations towards Torres Strait Islanders for climate inaction”, Climate Law Blog, 27 September 2022.
• C. Voigt, “UNHRC is Turning up the Heat: Human Rights Violations Due to Inadequate Adaptation Action to Climate Change”, EJIL: Talk!, 26 September 2022.

To cite this contribution: M. Courtoy, “Between discomfort on how to address the future uninhabitability of certain territories and new avenues for climate justice”, Cahiers de l’EDEM, November 2022.