Daniel Billy et al. vs. Australia (Torres Strait Islanders Petition)
The authors, Indigenous Peoples of the Torres Strait Islands, brought a petition against Australia for violations of the International Covenant on Civil and Political Rights (ICCPR). The petitioners argued that Australia’s insufficient climate action violated their human rights, under ICCPR Articles 6 (right to life), 17 (right to private, family and home life) 24(1) (right of the child to protective measures), and 27 (right to culture).
The petitioners right to life centered on impacts on livelihood and access to food. High temperatures and ocean acidification linked to climate change threaten the islanders’ food production: “Seagrass beds and dependent species have disappeared. While crayfish is a fundamental source of income for the authors, they no longer find crayfish in areas where coral bleaching has occurred.” This is also true of other “culturally important marine species.” Further, erosion has increased flooding into agricultural lands, and the salt of the ocean water kills crops so “areas previously used for traditional gardening can no longer be cultivated.” For example, saltwater from flooding had killed coconut trees, “such that they do not produce fruits or coconut water, which are part of the authors’ traditional diet.” This increases the islanders’ financial precarity, as it makes them “reliant on expensive imported goods that they often cannot afford.”
The petitioners claimed a violation of Article 17, the right to be free from arbitrary or unlawful interference with privacy, family, and home life, as they belong to one of the most vulnerable populations to the impact of climate change. Sea-level rise threatens to inundate the low-lying islands, making them uninhabitable. Indeed, “approximately one metre of land is lost every year.” Petitioners claim that Australia has “failed to prevent a foreseeable loss of life” and permanent displacement within the petitioners’ lifetimes: sea-level rise threatens to make the islands “completely inundated and uninhabitable” within 10-15 years.
The petitioners also claimed a violation of Article 27, right of minorities to their cultural enjoyment. For one, unpredictable weather patterns due to climate change make it “harder for the authors to pass on their traditional ecological knowledge” to younger generations. Additionally, sea-level rise threatened family graves and ancestral burial grounds and reduce the ability to practice their traditional culture and pass it onto the next generation. For some of the authors, “upkeeping ancestral graveyards and visiting and feeling communion with deceased relatives is at the heart of their cultures, and the most important ceremonies are only culturally meaningful if performed on the native lands of the community whose ceremony it is.”
The petitioners also claimed a violation of Article 24(1), right of the child to protective measures; however, the Committee did not address this right in its discussion of the merits.
The Australian government argued: (1) specific adaptation and mitigation measures are being taken to address climate change, making petitioners’ claims moot; and (2) Australia cannot be solely to blame for climate change impacts on its population as it is a global phenomenon. With respect to Article 6, Australia argued the harm was based on speculations of future harm which has not occurred, as opposed to an existing injury due to Australia’s actions or omissions.
The Human Rights Committee did not find an Article 6 violation. The Committee first defined the right to life under the Convention. It stated that “the right to life cannot be properly understood if it is interpreted in a restrictive manner.” Instead, it “requires States parties to adopt positive measures to protect the right to life, including “reasonably foreseeable threats and life-threatening situations that can result in loss of life.” This “may include adverse climate change impacts.” However, the Committee agreed with Australia that the purported harms are too in the future and too tenuous to establish a “foreseeable risk of being exposed to physical endangerment or extreme precarity that could threaten their right to life.” Further, the Committee acknowledged the various infrastructure programs designed to mitigate submergence and inundation of the Torres Strait islands to address the effects of climate change on petitioners.
The Committee found Australia violated Article 17, right to be free from arbitrary or unlawful interference with privacy, family, and home life. The Committee attributes responsibility to the State to prevent such interference where it is “foreseeable and serious,” including when this disruption is caused by climate change. Additionally, the dependence on marine life, land crops, trees and overall “surrounding ecosystem” are core components of this right and thus protected under it. While the Committee noted the extensive programs cited by Australia on how they are addressing climate change, the Committee found that delay in implementing these projects still constituted a violation of Article 17.
The Committee found Australia violated Article 27, right to cultural enjoyment. The Committee defined the purpose of the right as “ensuring the survival and continued development of the cultural identity,” as well as “the right of Indigenous peoples to enjoy the territories and natural resources that they have traditionally used for their subsistence and cultural identity.” Here, the Committee also found that Australia’s delay in implementing adaptation measures– regardless of their existence– constituted a violation of Article 27. Specifically, the Committee noted that climate change impacts have “eroded their traditional lands and natural resources that they use for traditional fishing and farming and fort cultural ceremonies that can only be performed on the islands.” Australia’s “failure to adopt timely adequate adaptation measures to protect the authors’ collective ability to maintain their traditional way of life, 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.”
The Committee determined that Australia should (1) provide the islanders with adequate compensation for the harm suffered; (2) begin consultations with the islanders in order to conduct needs assessments; (3) continue implementing adaptation measures against climate change; and (4) prevent similar violations in the future. Australia has 180 days to inform the Committee of steps taken to implement the decision.
This is a case of many firsts for the advancement of environmental protection at the international law level, as well as for the advancement of Indigenous Persons’ rights. It represents a successful legal action grounded in human rights brought by climate-vulnerable inhabitants of low-lying islands against a nation state. It also represents the first time that a United Nations body has found a State violated international human rights law through inadequate climate policy, establishing that human rights law applies to climate harm. It is also the first ruling recognizing that Indigenous Peoples’ culture is at risk from climate change impacts.
The Committee notably rejected Australia’s efforts to skirt responsibility for climate change by attributing it to a “global” and broader international phenomenon, setting a precedent barring States from hiding behind the drop-in-the-ocean argument and failing to take charge of their own responsibility for climate mitigation.