On 23 September 2022, the U.N. Human Rights Committee of the International Covenant on Civil and Political Rights ruled in favour of indigenous Torres Islanders who had filed a complaint against Australia for failing to take sufficient measures to adapt to climate change, violating their rights to enjoy their culture, free from “arbitrary interference” with their private life, family and home.
This non-binding UN ruling upholds a complaint to the Committee by eight indigenous inhabitants of four small Torres Strait islands and six of their children, all indigenous inhabitants of Boigu, Poruma, Warraber and Masig, four small, low-lying islands in the country's Torres Strait region. All of them claim that Australia harmed their way of life by failing to reduce greenhouse gas emissions and delaying the urgent construction of breakwaters in the area.
According to the claimants, their islands have suffered severe flooding in recent years, which has destroyed family burial sites, dealing a severe blow to their ancestral culture. The islanders indicated that these tidal floods have destroyed family graves and left human remains scattered around their islands. On the other hand, changes in climate have degraded the soil, reducing its food production, based mainly on agriculture and fisheries.
The Committee of 18 independent experts has argued that Australia violated the rights of indigenous Torres Strait Islanders to "enjoy their culture and to be free from arbitrary interference with their privacy, family and home".
This decision is an important milestone, as this body has opened an avenue for people to complain about national policies that have failed to protect the most vulnerable from the impact of climate change.
Therefore, the Committee has called on Australia to compensate indigenous islanders for the harm they have suffered, conduct meaningful consultations with their communities to assess their needs, and take steps to continue to ensure the safe existence of the communities on their respective islands.
In these sense, this decision implies that States which fail to protect citizens within their jurisdiction from the adverse effects of climate change may be violating their human rights under international law.
Climate displacement across international borders: A priority of the Special Rapporteur for the Promotion and Protection of Human Rights in the Context of Climate Change
Since 2008, the Human Rights Council has addressed the relationship between climate change and human rights (A/HRC/10/61), in particular those impact affecting population who are already in a vulnerable situation (A/HRC/ 7/23 and A/HRC/10/4).
In its 50th regular session of the Human Rights Council, celebrated from the 13 June to 8 July 2022, the Council has addressed climate change as a phenomenon that increases violations of the rights of women and girls. In particular, it has addressed climate migration as a situation that exposes women and girls to even greater risk of violence.
Also, as a result of this Council session, the Special Rapporteur for the Promotion and Protection of Human Rights in the Context of Climate Change presented his first report to the Council (A/HRC/50/39) in accordance with Council Resolution 48/14. The Special Rapporteur took up his mandate on 1 May 2022 and in this first report, climate displacement is presented as one of the priorities of his mandate. In concrete, the Special Rapporteur mentions that the priority will be to address "the human rights implications of climate change displacement including legal protection of people displaced across international borders". This work is expected to be submitted by the fifty-third session of Human Rights Council in June 2023.
This is a welcome announcement in response to the current regulatory vacuum that leaves so many people around the world who face the effects of climate change, in particular women and girls, among other vulnerable groups, unprotected. In fact, in this report, the Special Rapporteur mentions that 84 million people are currently forcibly displaced worldwide, lesbian, gay, bisexual, trans and gender diverse persons are particularly vulnerable and marginalized. In these cases, the climate change impacts add another layer of fragility. These people are not only fleeing from climate change, but from the climatic conditions that determines or are determined by persecution and socioeconomic exclusion, in territories where there is a worrying weakening of human rights, based mainly on discrimination based on sexual orientation and gender identity.
Other priorities of the mandate are, namely:
- The promotion and protection of human rights in the context of mitigation, adaptation, and financial actions to address climate change, with particular emphasis on loss and damage;
- Exploring approaches to enhance climate change legislation, supporting climate change litigation and advancing the principal of intergenerational justice;
- Corporate accountability with respect to human rights and climate change;
- The protection of human rights through just transition for workers in industries that contribute to climate change; and
- Exploring the impacts of new technologies associated with climate change mitigation on human rights.
Actually, all these priorities, taken together, are interlinked, and most especially with climate displacement.
In its mandate, the Special Rapporteur will work in all of these areas in collaboration with other actors to address the complexities involved among climate change and human rights. Therefore other UN special procedures, States, civil society organisations, business enterprises and inter-government organisations will collaborate in his work.
In this sense, it would be important to take into account the voice of the people affected by the damages and losses caused by climate change and who have been forced to migrate, particularly those who have done so across international borders.
Marie Skłodowska-Curie Fellow (H2020-MSCA-IF-2020)nº101031252