Clifford Chance

The UN Human Rights Committee (CCPR) reasoned that Australia has failed to implement adequate climate change adaptation measures to protect indigenous communities of the Torres Strait Islands.

The complainants belong to an indigenous minority group residing on low-lying islands. They complained that they are "among the most vulnerable populations to the impact of climate change" – rising sea-levels having already caused flooding and erosion on their islands. They claimed that Australia had failed to take adequate measures to mitigate the impact of climate change and to protect the Islands from the adverse effects of climate change, in violation of their human rights.

The Committee's September 2022 decision found that Australia's failure to implement adequate adaptation measures violated the complainants' rights under the International Covenant on Civil and Political Rights (ICCPR) to protection of their private, family and home life (Article 17) and their rights to enjoy their minority culture (Article 27), but concluded that, on the information before it, no violation of their right to life was disclosed (Article 6).

The Committee reaffirmed that the articles invoked each entail positive obligations of State parties to ensure the protection of individuals under their jurisdiction against violations of these provisions (§7.7).

The Committee stated that Australia is obliged under the ICCPR to provide an effective remedy, requiring it to make "full reparation" to individuals whose rights have been violated. Australia is also obliged to take steps to prevent similar violations in the future (§11).

The CCPR and the effect of its decision

The CCPR is a body of experts mandated to supervise and monitor the implementation of the obligations of States parties to the ICCPR. The CCPR receives and considers individual complaints made by individuals who claim violations of their ICCPR rights by a State party. This is its second decision relating to climate change.

The CCPR is not a judicial body and its decisions do not have any binding legal effect on the State party concerned.¹ Nor do the CCPR's decisions form binding precedent regarding the interpretation of the ICCPR. Nevertheless, they have norm-setting potential and may well be invoked in future litigation before courts and tribunals considering climate litigation involving either States or corporates. The significance (if any) that domestic courts or tribunals may attach to such decisions will differ according to jurisdiction and factors such as domestic courts' assessment of the quality of reasoning of decisions.

Key takeaways

This complaint forms part of a trend of human rights-based claims/complaints against States and, increasingly, corporations, to address climate change. These typically focus on measures concerning climate adaptation, mitigation or both. Mitigation refers to actions to tackle climate change – primarily through reducing greenhouse gas emissions, whereas adaptation refers to actions taken to address the adverse consequences of climate change – so, for example, in the present case, building or reinforcing sea defences.

The Committee's decision contains numerous significant features and themes common to climate litigation, some of which we highlight below.

CCPR finds a failure to adapt but not to mitigate

The Committee confined its findings to failures by Australia to implement adequate adaptation measures (see §8.12 and §8.14), thus sidestepping some of the thornier issues relating to mitigation, such as how to determine State's individual responsibilities to reduce greenhouse gas emissions.

Given that climate change is a global phenomenon to which all States contribute, a common challenge that complainants face is the establishment of a causal link between acts (or omissions) of government relating to climate change and the impact on human rights. Difficult questions of (individual) State responsibility and attribution arise under international law. Notably, Committee Member Zyberi asserts in his concurring opinion that the majority should have linked the State's Article 27 obligations to protect minority rights "more clearly to mitigation measures … as it is mitigation actions which are aimed at addressing the root cause of the problem and not just remedying the effects".

The Committee did, however, accept that claims both for failure to adapt and to mitigate can give rise to human rights violations in principle (i.e., the claims are admissible). Regarding mitigation, the Committee considered it a relevant factor that Australia is a large emitter and ranks high on world economic and human development indicators (see §7.8).

International environmental law may be relevant in determining whether a State has failed to protect Convention rights

The Committee confirmed that, while it is not competent to determine compliance with other international treaties or agreements, it may be appropriate to have regard to other international treaties when interpreting State parties' obligations under the ICCPR. (§7.5).

It is a live issue in climate litigation around the world whether, and to what extent, courts and tribunals interpreting human rights treaties can have regard to international agreements relevant to climate change, in particular the Paris Agreement.²

No breach of the complainants' right to life

The Committee reaffirmed that States parties' obligations to protect Article 6 rights to life entail a positive obligation to ensure protection of individuals against violations of their right to life, including reasonably foreseeable threats and life-threatening situations that can result in loss of life. Significantly, the Committee confirmed that such threats may in principle include adverse climate change impacts (§8.3) and stated that environmental degradation can adversely affect an individual's well-being and lead to a violation of the right to life (§8.5).

However, on the facts, the Committee was not satisfied that the adaptation measures taken by Australia were insufficient so as to represent a direct threat to the complainants' right to life. A number of Committee Members dissented from this part of the majority's findings (see Annexures I and III).

Future rights-based complaints and litigation

Whilst the Torres Straight decision is of interest, it remains something of an open question whether and to what extent climate litigants and complainants will succeed in bringing human rights-based claims, both before UN treaty bodies and domestic courts and tribunals. A key milestone will be the outcome of a number of climate change-related complaints currently pending before European Court of Human Rights.

1. _{UN CCPR General Comment No. 33, 'The Obligations of States Parties under the Optional Protocol to the International Covenant on Civil and Political Rights' (CCPR/C/GC/33), 5 November 2008.}
2. _{See for example, Klimatická žaloba ČR v. Czech Republic (14A 101/2021), §230; PSB et al. v. Brazil (on Climate Fund) (ADPF 708), §17; and Urgenda v the Netherlands (ECLI:NL:HR:2019:2007).}