{"id":5327,"date":"2020-09-22T00:00:00","date_gmt":"2020-09-22T08:02:19","guid":{"rendered":"https:\/\/voelkerrechtsblog.org\/?post_type=articles&p=5327"},"modified":"2021-01-08T18:06:50","modified_gmt":"2021-01-08T17:06:50","slug":"climate-change-and-human-rights-a-next-big-step-for-the-human-rights-committee","status":"publish","type":"post","link":"https:\/\/voelkerrechtsblog.org\/de\/climate-change-and-human-rights-a-next-big-step-for-the-human-rights-committee\/","title":{"rendered":"Climate change and human rights: a next big step for the Human Rights Committee?"},"content":{"rendered":"

In May 2019, eight Torres Strait Islanders filed a communication<\/a> alleging that the inaction of the Australian government over climate change is resulting in violations of their rights under the International Covenant on Civil and Political Rights (ICCPR). Now, news reached<\/a> that Australia has asked the Human Rights Committee (HRC) to declare the communication inadmissible. Whilst the HRC examines \u00a0communications in closed sessions and only releases information once it has completed its deliberations (Rule 110<\/a>, Rules of procedure of the HRC), the authors of the communication have spoken about their complaint publicly<\/a>. Furthermore, the communication is accompanied by the petition<\/a> \u201cOur Islands, Our Home\u201d. Pursuant to reporting by The Guardian<\/a>, which includes an interview with the legal counsel of the authors, Australia seeks to have the case declared inadmissible as firstly, it concerns future risks and secondly, Australia is not the main or sole contributor to climate change, contesting that \u201cclimate change action is not its legal responsibility under human rights law\u201d.\u00a0This post looks at the situation in the Torres Strait Islands and places the pending communication in the context of the HRC\u2019s pronouncements on human rights and climate change.<\/p>\n

The situation in the Torres Strait Islands<\/strong><\/p>\n

The Torres Strait Islands are low-lying islands situated between Australia\u2019s north coast and Papua New Guinea. Torres Strait Islanders<\/a> form part of Australia\u2019s indigenous population but are distinct from aboriginal peoples. The authors of the communication are seeking protection from the effects of climate change. According to The Guardian<\/a>, the communication alleges the government\u2019s insufficient actions over two issues: the reduction of emissions and the implementation of adaptation measures on the Torres Strait Islands. The communication argues that both amount to a failure of the government\u2019s human rights obligations towards the Torres Strait Islanders.<\/p>\n

A recent opinion piece<\/a> by Yessie Mosby, one of the authors of the communication, also published by The Guardian, outlines how the impacts of advancing sea levels can be felt on the islands\u2019 infrastructure as well as on its flora. This destroys crops and contaminates drinking water wells. The rise in sea levels has also damaged burial sites. Beyond these immediate impacts, the threat of displacement and resettlement to the mainland looms over the Torres Strait Islanders. This threat extends to their culture. Mosby argues that as their culture is inextricably connected with the traditional (is)lands, relocation would signify its extinction.<\/p>\n

Pursuant to the petition, the authors of the communication demand that Australia rapidly reduces its emissions and immediately implements adaptation measures. More specifically, the Torres Strait Islanders will ask<\/a> the HRC to find that Australia\u2019s international human rights obligations require it to \u201cmeet the 1.5 degree temperature target of the Paris Agreement by increasing its emission reduction target to at least 65% below 2005 levels by 2030, going net zero by 2050, and phasing out coal\u201d. Moreover, adaptation measures need to be predicated on a study across the islands, involving the participation and consultation of the Torres Strait Islanders in this process.<\/p>\n

A closer look at the Human Rights Committee\u2019s work on climate change<\/strong><\/p>\n

In recent years, the HRC has started to address the impacts of climate change on human rights, specifically on the right to life (Article 6 ICCPR). In 2018, the Committee asserted in general comment No. 36<\/a> that \u201cenvironmental degradation, climate change and unsustainable development\u201d form part of \u201cthe most pressing and serious threats to the ability [\u2026] to enjoy the right to life\u201d (para. 62). Accordingly, state parties\u2019 obligations under international environmental law \u201cshould [\u2026] inform the contents of article 6 of the Covenant\u201d and vice versa (para. 62). This assertion \u2013 whilst couched in soft language \u2013 might bear relevance in challenging Australia\u2019s aforementioned contestation that \u201cclimate change action is not its legal responsibility under human rights law\u201d.<\/p>\n

In January 2020, the HRC published its views in Teitiota v. New Zealand<\/a> (communication No. 2728\/2016), discussed here<\/a>. The case concerned Ioane Teitiota, a Kiribati national and a \u201cclimate refugee\u201d, who challenged the lawfulness of his removal to Kiribati from New Zealand, where he had applied for asylum. Alleging a violation of his right to life, Teitiota inter alia <\/em>argued that the effects of climate change, specifically the rising sea level, were rendering Kiribati uninhabitable, leading to \u201can untenable and violent environment\u201d for himself and his family (para. 2.1). He cited lack of habitable space that resulted in violent land disputes as well as environmental degradation contaminating the freshwater supply (para. 3). Although the HRC found Teitiota\u2019s removal to be lawful, it held that \u201cthe effects of climate change [\u2026] may expose individuals to a violation\u201d of their right to life, \u201cthereby triggering the non-refoulement<\/em> obligation of sending states\u201d (para. 9.11). In other words, this positioning shows that \u2013 at least in the eyes of the HRC \u2013 it is not a question anymore whether being exposed to the adverse effects of climate change can pose a threat to an individual\u2019s right to life.<\/p>\n

A next step for the Human Rights Committee?<\/strong><\/p>\n

Upon ratifying<\/a> the Optional Protocol to the ICCPR, Australia recognised the HRC\u2019s competence to receive and consider communications. The Torres Strait Islanders\u2019 communication focuses on the human rights obligations of Australia towards its own citizens. Broader in terms of allegations of violations<\/a> than its \u201cpredecessor\u201d, Teitiota v. New Zealand, the communication not only alleges a violation of the right to life (Article 6 ICCPR) but also of the right to be free from arbitrary interference with privacy, family, and home (Article 17 ICCPR) and of the right of minorities to enjoy their own culture (Article 27 ICCPR).<\/p>\n

Engaging with the question of attribution in the pending communication will constitute a significant next step for the Committee. The 2009 report on the relationship between climate change and human rights<\/a> by the Office of the UN High Commissioner for Human Rights concluded that \u201cthe physical impacts of global warming cannot easily be classified as human rights violations\u201d chiefly because \u201cclimate change-related harm often cannot clearly be attributed to acts or omissions of specific States\u201d (para. 96). Australia\u2019s dismissal of the allegations inter alia <\/em>on the 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. In the pending communication, attributing the climate change-related impacts on the human rights of Torres Strait Islands to Australia\u2019s failure to reduce its emission levels, could prove more difficult in light of causation, as pointed out here<\/a>.<\/p>\n

Yet, the communication does not hinge on this claim but also alleges the concrete failure to implement sufficient adaptation measures on the islands. If the HRC finds the communication admissible, it will be of interest to see if and how it concretises Australia\u2019s positive obligations concerning Articles 6, 17, and 27 ICCPR vis-\u00e0-vis the adverse impacts of climate change.<\/p>\n

In Teitiota v. New Zealand, the Committee\u2019s reasoning focused on the suggested timeframe of 10 to 15 years \u2013 an estimate of when the island would become uninhabitable. According to the Committee, this timeframe could allow for intervention by Kiribati and the international community to protect the population, including through relocation (paras. 9.10\u20139.12). It is evident that the pending communication precisely seeks to prevent relocation to the mainland, as this would result in inter alia <\/em>a denial of the Torres Strait Islanders\u2019 right to culture and way of life. In December 2019, Australia announced<\/a> a $25 million sea wall in the Torres Strait that seeks to reduce the risk of flooding. This has been perceived<\/a> as \u201ca start\u201d but has not satisfied the authors of the communication, arguing that the sea wall needs to be split over 18 islands already adversely impacted, and indeed does not address Australia\u2019s continuous contribution to climate change, and thus the rising sea levels.<\/p>\n

A new hope?<\/strong><\/p>\n

As previously highlighted<\/a>, the HRC\u2019s views in Teitiota v. New Zealand opened the door to asylum claims by individuals seeking protection from the effects of climate change. They, however, also show how the treaty bodies, as part of the international human rights system, can be utilised \u201cto exert pressure on the international community to address issues of climate change effectively\u201d, as argued here<\/a>. Precisely by addressing the scope of human rights obligations and by engaging state parties through inter alia <\/em>their views, treaty bodies can have a subtle yet formative influence on international human rights law (see e.g. the work<\/a> of the International Law Commission, McCall-Smith<\/a>). Beyond the communications received by the HRC on the effects of climate change, another communication is currently pending<\/a>before the Committee on the Rights of the Child. That communication, discussed here<\/a>, was filed by sixteen children from various nationalities that claim to be victims of climate change.<\/p>\n

Although the communication by the Torres Strait Islanders is just one of three communications before the UN treaty bodies, it may be indicative of the significance attributed to human rights bodies in the context of climate change. Although the HRC cannot render legally binding decisions, its interpretation of human rights law has been ascribed \u201cgreat weight\u201d by the International Court of Justice (Diallo, para. 66<\/a>). After the HRC addressed the international community in Teitiota v. New Zealand (paras. 9.12\u20139.13), the anticipated views in the pending communication may indicate the course the HRC will take on the issue of human rights obligations in the context of climate change in the future. The views will therefore be of interest to all state parties of the ICCPR. It is to be hoped that the Committee\u2019s views \u2013 and the pronouncements of the treaty bodies more generally \u2013 will continue to expound on states\u2019 human rights obligations vis-\u00e0-vis the impacts of climate change.<\/p>\n","protected":false},"excerpt":{"rendered":"

In May 2019, eight Torres Strait Islanders filed a communication alleging that the inaction of the Australian government over climate change is resulting in violations 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. […]<\/p>\n","protected":false},"author":8,"featured_media":0,"comment_status":"open","ping_status":"closed","sticky":false,"template":"","format":"standard","meta":{"_acf_changed":false,"footnotes":""},"categories":[6639],"tags":[],"authors":[5618],"article-categories":[5108],"doi":[],"class_list":["post-5327","post","type-post","status-publish","format-standard","hentry","category-uncategorized","authors-laura-hofmann","article-categories-bofaxe"],"acf":{"subline":""},"meta_box":{"doi":"10.17176\/20210107-184524-0"},"_links":{"self":[{"href":"https:\/\/voelkerrechtsblog.org\/de\/wp-json\/wp\/v2\/posts\/5327","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/voelkerrechtsblog.org\/de\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/voelkerrechtsblog.org\/de\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/voelkerrechtsblog.org\/de\/wp-json\/wp\/v2\/users\/8"}],"replies":[{"embeddable":true,"href":"https:\/\/voelkerrechtsblog.org\/de\/wp-json\/wp\/v2\/comments?post=5327"}],"version-history":[{"count":1,"href":"https:\/\/voelkerrechtsblog.org\/de\/wp-json\/wp\/v2\/posts\/5327\/revisions"}],"predecessor-version":[{"id":11277,"href":"https:\/\/voelkerrechtsblog.org\/de\/wp-json\/wp\/v2\/posts\/5327\/revisions\/11277"}],"wp:attachment":[{"href":"https:\/\/voelkerrechtsblog.org\/de\/wp-json\/wp\/v2\/media?parent=5327"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/voelkerrechtsblog.org\/de\/wp-json\/wp\/v2\/categories?post=5327"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/voelkerrechtsblog.org\/de\/wp-json\/wp\/v2\/tags?post=5327"},{"taxonomy":"authors","embeddable":true,"href":"https:\/\/voelkerrechtsblog.org\/de\/wp-json\/wp\/v2\/authors?post=5327"},{"taxonomy":"article-categories","embeddable":true,"href":"https:\/\/voelkerrechtsblog.org\/de\/wp-json\/wp\/v2\/article-categories?post=5327"},{"taxonomy":"doi","embeddable":true,"href":"https:\/\/voelkerrechtsblog.org\/de\/wp-json\/wp\/v2\/doi?post=5327"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}