Climate justice: UN rules Australia violated islander rights

The United Nations Human Rights Committee has found that the Australian government violated the rights of people living on four islands in the Torres Strait and has ordered it to pay for the harm caused. The committee ruled last week that the country had failed to protect islanders from the effects of climate change, making their claim the first successful one of this kind.

The Torres Strait islands off the northern tip of Australia are already feeling the brunt of climate-change damage. Rising sea levels, coastal erosion and flooding have had devastating impacts on the island communities.

Bridget Lewis, at the Queensland University of Technology in Brisbane, studies how human rights law can be applied to environmental cases. Lewis spoke to Nature about the case and its implications for other communities seeking redress for climate-change harms.

What is the case about?

The Torres Strait Islanders’ case claimed that the Australian government had failed to take mitigation and adaptation measures to combat the effects of climate change, and had therefore failed to protect their human rights. They brought their complaint to the United Nations Human Rights Committee, which monitors compliance with the International Covenant on Civil and Political Rights.

The islanders say that their land is under threat from rising sea levels. Their culture, too, is in peril, because salt water is killing traditional food sources, such as coconuts, and storm surges have washed away culturally significant sites, including graveyards.

What did the UN committee decide?

The committee ruled that the Australian government did violate islanders’ rights in failing to implement adaptation measures to protect their homes, private lives and families — as well as their ability to maintain their traditional way of life, and to pass on their culture and traditions to future generations. It also decided that the Torres Strait Islanders were entitled to compensation for the harm that they have suffered.

The decision focused on adaptation, and basically ignored mitigation. Adaptation failures are much easier to prove, because there is no need to grapple with the question of who has caused the harms. It was enough to point out, for example, that the Australian government had failed to build the seawalls requested, which would have helped the communities to adapt to climate change.

The committee rejected the claim that Australia had violated the islanders’ “right to life with dignity”. That’s possibly because the threat was deemed not to have reached a sufficiently high level. But several committee members disagreed with this ruling.

The government has 180 days to respond, and there is still a lot of uncertainty about what it will do. In the wake of the decision, ministers have said that they are committed to working with the islanders on climate change.

Why is this decision significant?

This is the first time that a claim related to climate harm that’s been presented to the UN Human Rights Committee has been successful. The decision isn’t strictly legally binding — but it’s still significant, because an international group of experts has ruled that an international treaty has been breached. And this makes it a big deal for Australia.

Why are people using human-rights law to address environmental concerns?

Using human-rights law is a relatively new strategy. In 2005, a group of Inuit people took a case to the Inter-American Commission on Human Rights, claiming that the United States had violated the rights of Inuit people by failing to protect them against the impacts of climate change. The case wasn’t successful, but it kicked off the idea that it might be possible to apply human rights law to address climate problems.

Why did this case succeed?

One important reason was that the Torres Strait Islanders could point to effects that they were already experiencing. That triggered an obligation for Australia to protect them against those impacts. The country was a sitting duck for this kind of case, because it is such a high emitter of greenhouse gases. And it has been so recalcitrant to act.

The committee looked at how environmental changes are affecting the islanders’ ability to practise their culture. They can’t do this somewhere else, so adaptation that involves relocation is not adequate. It has to be something that allows the islanders to continue their way of life on their islands, and in their waters.

Does it have implications for other island communities?

Human-rights law has struggled with cases in which island states are threatened by climate change. Conventionally, complaints have been brought by individuals against their own government, which is seen as owing them an obligation. That doesn’t leave many options for people of small island nations being harmed by the collective actions of the rest of the world.

But other recent cases have pushed against those national boundary limitations. In 2019, for example, Swedish climate activist Greta Thunberg and 15 other children appealed to the UN Committee on the Rights of the Child against five nations that were failing to meet their own commitments to reduce greenhouse-gas emissions. The committee accepted that states could have obligations to people outside their territories — but ultimately it ruled the complaint inadmissible, holding that the petitioners had not exhausted legal avenues in the individual countries.

In another example, Vanuatu is seeking an advisory opinion from the International Court of Justice, which hears disputes between countries, to see whether nations can be held responsible under international law for the effects of climate change.

Taking these cases together, it certainly feels as if things are shifting in a positive direction.

This interview has been edited for length and clarity.