05 Oct Why Did the UN Human Rights Committee Refuse Broader Protections for Climate Change Victims?
[Nicole Barrett is the Clinic Director and Aishani Gupta is the Research Associate at Allard Law School’s International Justice and Human Rights Clinic, University of British Columbia, which provides legal support to the Canadian member of the Human Rights Committee. All information used for this blog post is publicly available and the views expressed in this blog are strictly our own.]
The closely-watched case of Billy v Australia, decided during the July 2022 session of the UN Human Rights Committee (HRC), presented an opportunity for the HRC to interpret the International Covenant on Civil and Political Rights (“the Covenant”) to provide comprehensive protections against the pressing problem of climate change. While the HRC’s decision (or “Views”), released this past week offers some protections, it does not go far enough.
The eight authors of the Billy complaint are native inhabitants of the Torres Strait Islands off the North coast of Australia. They provided evidence that the islands have been subject to severe flooding and warming waters due to climate change, which, if left unchecked, would risk the authors’ communities and lives as the islands submerge under the rising sea (Views, para. 5.3). The authors specifically argued that Australia’s failure to implement adaptation or mitigation measures to counter climate change violated their rights under articles 6 (right to life), 17 (right to privacy), 24 (children’s rights), and 27 (minority rights) of the Covenant. The majority found violations of articles 17 and 27, but not of articles 6 or 24. Finding violations of articles 17 and 27 are significant to help protect the privacy, family life, and indigenous culture of the authors, whose reaction to the decision has been positive. However, given its own article 6 jurisprudence, the majority missed a unique opportunity to find that Australia also violated the authors’ right to life.
Although as a quasi-judicial body, the HRC is not technically required to follow precedent, it should strive to do so to maintain its consistency, legitimacy, and authority. The HRC has, in fact, followed its precedent in many previous cases. While the Billy separate opinions signal consistency with prior jurisprudence, the majority decision disregards its prior article 6 jurisprudence, resulting in an unduly constrained definition of the right to life.
First, the majority did not rigorously apply General Comment 36 on the right to life, issued only four years earlier. Second, the majority unnecessarily limited its interpretation of the right to life by comparing it to a factually dissimilar case, Teitiota v New Zealand, resulting in the use of a higher-than-necessary standard to determine an article 6 violation. Third, by accepting not-yet-completed State projects as sufficient adaptation measures to address climate change, while simultaneously overlooking article 6 violations that have already occurred, the majority allowed Australia to skirt its positive obligations to its citizens living in the Torres Strait Islands (General Comment 36, para 21). Taken together, these three issues in the majority’s Views not only problematically narrow the right to life protections under article 6 of the Covenant, but also raise questions about the value of the HRC’s precedent.
What Happened to General Comment 36?
In Billy, the majority appears to have forgotten General Comment 36 when considering how climate change impacts dignity and the right to life.
General Comment 36’s inclusion of climate change was widely embraced by environmental and other civil society groups. The Comment explicitly mentions climate change and environmental degradation as impacting the right to life and also discusses the principle of dignity as a component of the right to life (General Comment, 36 para 62). It states that environmental degradation and climate change “constitute some of the most pressing and serious threats to the ability of present and future generations to enjoy the right to life […] and in particular life with dignity.”
Despite General Comment 36’s clear language and the Billy authors’ equally clear evidence of serious loss of primary food sources, increase in water temperatures, and damage to the authors’ homes, the majority declined to find a violation of the right to life (Views, paras 2.3-2.6 and 8.3). Why was the HRC unwilling in Billy to draw the connections between climate change and right to life it told us exist in General Comment 36, leaving the value of general comments in question. In contrast, the separate opinion of Arif Bulkan, Marcia V.J. Kran and Vasilka Sancin (Views, Annex III) offers a progressive interpretation of the HRC’s jurisprudence, discussing the impact of environmental harms on the right to life and the right to live with dignity.
The majority’s Views in Billy also fail to explore the concept of dignity, identifying it as integral to the case, but then not discussing the principle in a robustly (Views, para 8.3-8.4). The HRC has decided numerous cases using the principle of dignity to fortify claims for other human rights violations. Given the urgency and destructive, life-ending results of climate change, it is curious dignity was not similarly utilized by the majority in Billy to protect life—the primary right—in the climate change context. Dignity is, in General Comment 36, also cited in the context of indigenous persons (General Comment 36, paras 23 and 26), yet the majority’s Views fail to use this connection, despite the opportunity to do so.
Further, the majority appears to introduce a peculiar new procedural rule in Billy that the same set of facts cannot be used to claim multiple violations of the Covenant (Views, para 8.6). We cannot find any prior suggestion that each Covenant violation must arise from an independent set of facts. Nor does the HRC’s jurisprudence suggest that one exists. In fact, in numerous other cases the HRC has drawn upon one set of facts to prove violations of multiple articles of the Covenant, particularly in cases of enforced disappearance. The Bulkan, Kran and Sancin opinion rightly observes, even if independence of facts was a requirement, the violations of articles 27 and 6 are qualitatively independent in this case.
Why the Unnecessarily High Legal Standard?
The Billy majority states that a “real and foreseeable risk” standard is required to find a violation of the right to life. This stringent standard is generally used in refugee cases where the HRC requires proof of a “real and foreseeable risk” to the authors’ lives if returned to their country of origin to find an article 6 violation. In Teitiota v New Zealand, this standard was used where the author alleged that overpopulation and flooding of his home on Kiribati put his life at risk. Consequently, he argued that New Zealand’s denial of his asylum request violated his article 6 rights. The HRC found these risks insufficient to find a violation of article 6. The Billy case, however, is not about refugee status or deportation, so use of this high standard is neither clear nor required. Even if this stringent standard was the right standard to use in Billy, deprivation of food was explicitly noted in Teitiota as an example of a real and foreseeable risk (Teitiota, para 9.9). As such, it is difficult to understand why the loss of food sources, along with damage to shelter and increased water temperature, is no longer considered “real or foreseeable” enough to find an article 6 violation.
The Billy authors’ primary claim is that Australia’s failure to take mitigation or adaptation measures to address climate change is itself a violation of article 6. Instead of using the “real and foreseeable risk” standard, the majority could have used the “reasonably foreseeable” standard from the more analogous case of Portillo Cáceres et al. v Paraguay. In Portillo Cáceres the HRC found the use of pesticides and their impact on the environment was a reasonably foreseeable risk, leading to finding an article 6 violation (Portillo, para 7.5). Applying this standard in Billy would have logically led to finding Australia’s action a reasonably foreseeable threat, in light of the loss of food sources, damage to homes, increased water temperatures and the possibility the islands would become uninhabitable in 10-15 years due to inundation, as noted in the Bulkan, Kran, Sancin opinion.
Should the HRC Rely on Promises of Future Action?
In Billy, the majority suggests that adaptation projects proposed by Australia, scheduled to be completed in the future (approximately 2023), could sufficiently address the risks the authors allege (Views, para 8.7). This unusual logic of relying on a not-yet-undertaken promise is problematic for two reasons.
First, the source of Australia’s information in this regard is nowhere cited in the majority’s discussion on the State party’s submissions, which were made in 2020 and 2021. While it is certainly possible that Australia provided information on adaptation and mitigation in their submissions, the sea wall completed in 2022, which the majority relies on for its conclusions, could not have been contained in Australia’s submissions in 2020 or 2021. The completion of these works can be found on the Queensland government website as a press release in April 2022, which provides information, almost verbatim, contained in this paragraph (Views, para 8.7). We are concerned about this similar language given Rule 102 of the HRC’s Rules of Procedure, which requires the HRC to use information made available to it by the parties. Even if this information did come from Australia’s submissions and was simply not cited, the sea wall constructed earlier this year as part of the Australia’s adaptation measures was on Boigu island and did not include other home islands in the Torres Strait, including Poruma, Warraber, and Masig, where the authors also reside. To our knowledge, Australia has not yet constructed sea walls on these islands, despite their similar risk of submersion.
Second, the majority relies on adaptation projects that may be completed in the future. To state the obvious, proposed projects may or may not be completed for a wide variety of reasons. Why the majority decided to rely on a State promise of possible future adaptation is hard to reconcile, particularly in the legal context. In discussing possible future projects, the majority overlooks the already occurring violation to article 6 comprising food sources already lost, the damage to the authors’ homes and rising water temperatures (Views, para 2.3-2.6). The HRC’s remit is to consider violations that have occurred on the date on which they decide the communication, not to make guesses about whether violations will be alleviated by future actions, which may or may not occur. This point was raised in both the Bulkan, Kran, Sancin opinion and Hernán Quezada’s individual opinion (Annex V).In the HRC’s own words, the right to life is “the supreme right from which no derogation is permitted” (General Comment 36, para 2). To maintain the primacy of this right, the HRC should interpret it with care and not dilute its content. Failing to do so in Billy, the majority missed a golden opportunity to confirm its broad approach to article 6 in the context of a pressing global crisis. A more generous and consistent interpretation of its jurisprudence, such as the Bulkan, Kran, Sancin separate opinion envisages, would have provided a sorely-needed legal standard to assist communities and groups around the world fighting to decrease the human rights impacts caused by climate change. Given the international nature of the climate crisis and the difficulties of addressing it in most domestic systems, the global community needs all the help it can get from international courts, treaty bodies, and tribunals.
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