Category: Right to culture

Categories
Adaptation Australia Climate-induced displacement Human Rights Committee Imminent risk Indigenous peoples rights Indigenous peoples' rights Private and family life Right to culture Right to life Sea-level rise Standing/admissibility Vulnerability

Billy et al. v. Australia (Torres Straits Islanders case)

Summary:
This petition against Australia was brought to the UN Human Rights Committee by a group of eight indigenous Torres Straits Islanders in 2019, in their own names and on behalf of their children. In their petition, they argued that the Australian government had violated their rights, as inhabitants of low-lying islands, under the International Covenant on Civil and Political Rights (ICCPR) because of its inaction in addressing climate change (failure to mitigate emissions and to take adaptation measures).

Rights at stake:
The applicants in this case invoked a series of rights in the ICCPR, on behalf of themselves and their children, contesting the respondent State’s failure to adopt mitigation measures to reduce greenhouse gas emissions and cease the promotion of fossil fuels. To support this, they drew on Article 27 (the right to culture), Article 17 (the right to be free from arbitrary interference with privacy, family and home), and Article 6 (the right to life) ICCPR. They argued that the indigenous peoples of the Torres Strait Islands, especially those who reside on low-lying islands, are among the most vulnerable to the impacts of climate change. They considered that the Australian government must ensure both mitigation and adaptation measures in order to adequately protect their rights. Previously, the Torres Strait Regional Authority (TSRA), a government body, had stated that “the effects of climate change threaten the islands themselves as well as marine and coastal ecosystems and resources, and therefore the life, livelihoods and unique culture of Torres Strait Islanders.”

Outcome:

On 21 July 2022, the Human Rights Committee adopted its Views in this case.

Observations of the State:

The Australian Government argued that the case was inadmissible, contesting the relevance of climate-related international agreements and its own ability to be held (legally or practically) responsible for climate-related harms. It also submitted that it was not possible to attribute climate change to the State party under international human rights law.

The HRC’s considerations on the admissibility:

On the issue of the exhaustion of domestic remedies, the Government’s position was that it did not owe a duty of care for failing to regulate environmental harm, and that it was not required to provide a remedy where (including in the present case) it understood there to be no breach of ICCPR rights. This question was accordingly reserved to the examination of the merits.

Concerning mitigation measures, the HRC noted that Australia is and has been a major greenhouse gas emitter, and ranks high on economic and development indices. As a result, it found that the alleged (in)actions fell under its jurisdiction under articles 1 or 2 of the Optional Protocol.

Concerning the imminence of the risk concerned, and accordingly the issue of victim status / standing, the Committee found that the authors of this Communication, “as members of peoples who are the longstanding inhabitants of traditional lands consisting of small, low-lying islands that presumably offer scant opportunities for safe internal relocation – are highly exposed to adverse climate change impacts”. Given the uncontested dependence of their lives and cultures on natural resources and phenomena, and their inability to finance adaptation measures on their own, the authors were considered to be “extremely vulnerable to intensely experiencing severely disruptive climate change impacts”. Given the authors’ allegations of serious ongoing adverse impacts, the HRC declared their claims under articles 6, 17, 24 (1) and 27 of the ICCPR admissible.

Merits:

Article 6

The Committee recalled that the right to life cannot be interpreted restrictively, and that it requires States to adopt protective measures (i.e. that it entails positive obligations). It recalled its own General Comment No. 36, issued in 2018, in establishing that the right to life also extends to reasonably foreseeable threats to life, including adverse climate change impacts and environmental degradation.

The Committee rejected Australia’s allegation that the interpretation of the ICCPR contained in this General Comment was not compatible with the rules of treaty interpretation under general international law. It then went on to recall its own earlier Teitiota v. New Zealand case (on climate-induced displacement), ultimately finding that the authors were not currently facing health impacts or real and reasonably foreseeable risks of being exposed harms to their right to life. The Committee also noted that the right-to-life claim being made largely related to the authors’ ability to maintain their culture, which falls under article 27 ICCPR.

Regarding the authors’ submission that, absent urgent action, their islands will become uninhabitable within 10 to 15 years, the Committee noted the adaptation and mitigation measures currently planned or being taken, and found that the time frame of 10 to 15 years could allow for additional protective measures or relocation programmes. As a result, it found that there had been no violation of the right to life in this case.

Article 17

The authors claimed that climate change already affects their private, family and home life, given that they may be forced to abandon their homes. The Committee considered that the authors’ dependence on marine and terrestrial resources and ecosystems is a component of their traditional indigenous way of life, falling under the scope of Article 17 ICCPR.

Considering the adaptation measures and related plans in place, the Committee noted the existence of unexplained delays in seawall construction and the lack of explanation concerning the loss of marine resources, crops and fruit trees. It noted the ongoing inundation of villages and ancestral burial lands; the withering of traditional gardens through salinification; the decline of nutritionally and culturally important marine species; coral bleaching and ocean acidification; and the authors’ anxiety and distress. The Committee also noted the importance of community lands for the authors’ most important cultural ceremonies. It accordingly found that:

“that when climate change impacts – including environmental degradation on traditional [indigenous] lands (…) – have direct repercussions on the right to one’s home, and the adverse consequences of those impacts are serious because of their intensity or duration and the physical or mental harm that they cause, then the degradation of the environment may adversely affect the well-being of individuals and constitute foreseeable and serious violations of private and family life and the home.”

Finding that Australia had failed to discharge its positive obligation to implement adequate adaptation measures to protect the authors’ home, private life and family, the HRC found a violation of the authors’ rights under article 17 ICCPR.

Article 27

Article 27 ICCPR recognizes the right of members of minority indigenous groups to the enjoyment of culture, and protects the survival and continued development of their cultural identity. Interpreted in the light of the UN Declaration on the Rights of Indigenous Peoples, this right enshrines the inalienable right of indigenous peoples to enjoy their traditional territories and natural resources. Here, the authors argued that their ability to maintain their culture has already been impaired due to climate change impacts, which have eroded their traditional lands and natural resources, for which there is no substitute on mainland Australia. The Committee found that these climate impacts represent a threat that was reasonably foreseeable by the State party, as the authors’ community had been raising the issue since the 1990s. While noting existing seawall construction projects, it considered that the delay in initiating these projects indicated an inadequate response by the State party to the threat in question. It found that the failure to adopt timely and adequate adaptation measures “to protect the authors’ collective ability to maintain their traditional way of life, to 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.” Accordingly, it found a violation of Article 27 ICCPR.

As a result of its findings concerning Articles 17 and 27 ICCPR, the HRC considered it not necessary to examine the authors’ remaining claims under article 24 (1) ICCPR.

Remedies:

Under Article 2 (3) (a) ICCPR, the HRC noted that the State was required to make full reparation to the authors, which meant providing adequate compensation; engaging in meaningful consultations with their communities to conduct needs assessments; continuing its adaptation measures and monitoring and reviewing the effectiveness of existing measures; and taking steps to prevent similar violations in the future. The Committee requested the State to provide it with information about the measures taken in this regard within 180 days.

Separate opinions:

Several HRC members appended individual opinions to the Views. These include:

  • The individual opinion by Committee Member Duncan Laki Muhumuza, arguing that there had been a violation of Article 6 ICCPR (the right to life);
  • The individual opinion by Committee Member Gentian Zyberi, concurring but arguing that the Committee had focused too heavily on adaptation measures, and should instead have more clearly linked the right under Article 27 ICCPR to mitigation measures;
  • The joint opinion by Committee Members Arif Bulkan, Marcia V. J. Kran and Vasilka Sancin (partially dissenting), who argued that there had been a violation of Article 6 ICCPR (the right to life). They argued in particular that the “real and foreseeable risk” standard employed by the majority interpreted Article 6 too restrictively, and was inappropriate here as it had been borrowed from the dissimilar context of its refugee cases (Teitiota v. New Zealand, the HRC’s first climate-induced displacement case).

Full decision:

The HRC’s Views are available here.

Further reading:

  • Maria Antonia Tigre, ‘U.N. Human Rights Committee finds that Australia is violating human rights obligations towards Torres Strait Islanders for climate inaction’, available here.
  • Verena Kahl, ‘Rising Before Sinking: The UN Human Rights Committee’s landmark decision in Daniel Billy et al. v. Australia,’ Verfassungsblog, 3 October 2022, available here.
  • Nicole Barrett and Aishani Gupta, ‘Why Did the UN Human Rights Committee Refuse Broader Protections for Climate Change Victims?’, Opinio Juris blog, 5 October 2022, available here.
  • Christina Voigt, ‘UNHRC is Turning up the Heat: Human Rights Violations Due to Inadequate Adaptation Action to Climate Change’, EJIL:Talk! Blog, 26 September 2022, available here.
  • Monica Feria-Tinta, ‘Torres Strait Islanders: United Nations Human Rights Committee Delivers Ground-Breaking Decision on Climate Change Impacts on Human Rights’, EJIL:Talk! Blog, 27 September 2022, available here.

Suggested citation:

UN Human Rights Committee, Daniel Billy et al. v. Australia, Communication No. 3624/2019, 22 September 2022, UN Doc. CCPR/C/135/D/3624/2019.

Categories
Biodiversity Brazil Deforestation Indigenous peoples rights Indigenous peoples' rights International Criminal Court Right to a healthy environment Right to culture Right to health

The Prosecutor v. Bolsonaro

Summary:
On 12 October 2021, the Austrian NGO AllRise, which advocates for interests linked with the environment, democracy, and the rule of law, submitted a communication to the International Criminal Court in the Hague concerning then-acting Brazilian President Jair Bolsonaro. Although NGOs cannot initiate proceedings before the ICC, the Prosecutor can do so proprio motu (Art. 15(1) Rome Statute), and the communication’s aim is to convince the Prosectuor to do so regarding President Bolsonaro’s policy on the Amazon rainforest.

AllRise contends that the Bolsonaro government’s socio-economic policy has put the lives of environmental advocates at risk, and has dismantled the protections of the environment that were previously available under domestic law, which as facilitated the activities of criminal networks. By failing to prosecute the perpetrators of environmental crimes and undermining the protection of the climate, human health, and justice, AllRise argues, the Bolsonaro government has committed crimes against humanity, as proscribed by the Rome Statute of the ICC.

The NGO’s communication is supported by the Climate Observatory (Observatório do Clima), a network of 70 Brazilian civil society organizations.

Human rights claims:
AllRise argues that ‘these Environmental Dependents and Defenders have been and continue to be the subject of Crimes Against Humanity through severe deprivations of their fundamental and universal right to a healthy environment (also known as R2E) and other human rights related thereto’ (para. 15). It likewise invoked the rights of indigenous peoples, arguing that ‘[t]he destruction of the rainforest and the rivers of the Amazon has a devastating impact on the traditional, cultural and spiritual way of life of Indigenous peoples and others who depend upon the forest’ (para. 164). The NGO also describes the background of attacks and violence against environmental activists and human rights defenders (paras. 201-208).

More information:
To read the full complaint, click here.

Categories
2021 Domestic court Indigenous peoples' rights Just transition litigation Norway Right to culture

Statnett SF et al. v. Sør-Fosen sijte et al.

Summary:
In this judgment of 11 October 2021, the Supreme Court of Norway found that the construction of two wind power plants on the Fosen peninsula interfered with the rights of reindeer herders to enjoy their own culture under Article 27 of the International Covenant on Civil and Political Rights (ICCPR). The Supreme Court unanimously found that there had been an interference with this right, and accordingly invalidated the wind power licence and the expropriation decision.

Facts of the case:
In 2010, two wind power plants (the Roan and Storheia plants) received a license from the Norwegian Water Resources and Energy Directorate. These plants are located within the Fosen grazing district, where the Sør-Fosen sijte and Nord-Fosen siida keep their reindeer. In 2013, the Ministry of Petroleum and Energy rejected their claim that the construction of the wind power plants interfered with their right to cultural enjoyment. Construction on the plants commenced while the issue was pending before the courts, and the two plants – which are part of the largest onshore wind power project in Europe — were ready to become operational in 2019 and 2020, respectively.

Merits:
The main issue at stake before the Supreme Court was whether the development interfered with the reindeer herders’ rights under Article 27 ICCPR. That provision enshrines the right of persons belonging to an ethnic, religious or linguistic minority to enjoy their own culture, in community with the other members of their group. It was undisputed before the Supreme Court that reindeer husbandry is a protected cultural practice. The Supreme Court relied on the Court of Appeal’s finding that the winter pastures near Storheia and Roan had in practice been lost to reindeer husbandry, and that the wind power plants in question are a threat to the reindeer industry’s existence on Fosen peninsula absent remedial measures.    

The Supreme Court, relying on the work of the UN Human Rights Committee, held that the total effect of the development in question determines whether a violation of the ICCPR right has taken place. Although there is no room for a proportionality assessment, a balance must be struck if the rights under Article 27 ICCPR conflict with other fundamental rights. The Supreme Court established that the right to a healthy environment might constitute such a conflicting right.

The Supreme Court found that the herders’ cultural rights would face significant adverse effects and be violated if satisfactory remedial measures were not implemented. The Supreme Court agreed that a “green shift” and increased renewable energy production are important, but found that there were alternatives that were less intrusive for the reindeer herders less, so that there was no collision between environmental interests and the reindeers’ right to cultural enjoyment in this case.   

Remedial awards:
In its ruling, the Court of Appeal had previously stipulated sizeable compensation for the winter feeding of fenced-in reindeer, and on this basis it had found no violation of the right to cultural enjoyment. In the Supreme Court’s view, such a solution was too uncertain to be a determining factor in whether Article 27 ICCPR had been violated. In any event, the courts could not rely on such a measure as a part of the reindeer herders’ duty to adapt.  

Separate opinions:
N/A

Implementation:
N/A

Date of judgment:
11 October 2021

Links:
A summary of the judgment (in English) is available here.

The full text of the judgment (in Norwegian) is available here. An English translation is available here.

Suggested citation:
Supreme Court of Norway, Statnett SF et al. v. Sør-Fosen sijte, HR-2021-1975-S, Judgment of 11 October 2021.

Categories
Canada Emissions reductions/mitigation Indigenous peoples' rights Inter-American Human Rights System Right to culture Right to health Right to property Right to subsistence/food

Arctic Athabaskan Council v. Canada

Summary:
This case, brought before the Inter-American Commission on Human Rights by Athabaskan people living in Canada, concerned alleged rights violations relating to Arctic warming and melting caused by Canadian black carbon emissions. The case alleged that Canada, by failing to regulate black carbon emissions, had violated various human rights of the Athabaskan people, including their rights to health, subsistence, property, and culture.

The complaint:
The applicants in this case allege that Canada’s emissions of black carbon, which is a component of sooty fine-particle pollution and stems largely from diesel emissions and the burning of biomass, is particularly harmful to their rights and way of life because it is emitted in or near the Arctic.

The applicants submit that the warming effect of black carbon on the global climate is second only to carbon dioxide. In the Arctic, black carbon warms in two ways: it absorbs sunlight in the air, and it reduces the reflectivity of ice and snow-covered surfaces, accelerating their rate of melting.

In particular, the applicants cite their right to culture, particularly their ability to transmit their cultural knowledge to future generations, because “Arctic warming and melting has made the weather, the hunt, and the behaviors and occurrence of fish and wildlife so erratic that elders no longer feel confident in teaching younger people traditional ways.”

The also argue that warming and melting has affected the integrity of the land, compromising their right to property. This includes floods, forest fires, melting permafrost, erosion-related harms and landslides, as well as the destruction of cultural and historic sites and increased difficulty in accessing resources. The Athabaskans also invoke their right to means of subsistence, citing difficulties in accessing traditional food sources and adverse effects on biodiversity. Lastly, they cite their right to health, arguing that the loss of traditional foods has adversely affected the Athabaskan way of life. Melting permafrost is affecting water quality, and the loss of traditional food sources is forcing the people to rely on purchased food, leading to increases in the prevalence of chronic diseases.

Before the Commission, the applicants allege that the Canadian state’s acts and omissions represent an ongoing violation of their human rights, and that there are no domestic remedies suitable for addressing these violations. They argue that Canada has failed to take action to reduce black carbon emissions, and that such action could substantially remedy the Arctic warming and melting that are causing the violations at stake. They accordingly request the Commission to investigate and confirm the alleged harms; set forth the facts and applicable law, declaring a violation of the American Declaration of the Rights and Duties of Man; and recommend steps to limit black carbon emissions and protect Arctic Athabaskan culture and resources from Arctic warming and melting.

Forum:
Inter-American Commission of Human Rights

Date filed:
23 April 2013

Status of case:
Pending

Suggested citation:
Inter-American Commission on Human Rights, Arctic Athabaskan Peoples v. Canada, petition submitted on 23 April 2013, case pending.

Further information:
For more on this petition, see

The full text of the petition has been made available here by EarthJustice here: https://earthjustice.org/sites/default/files/AAC_PETITION_13-04-23a.pdf

For a summary of the petition, provided by EarthJustice, click here: https://earthjustice.org/sites/default/files/library/legal_docs/summary-of-inuit-petition-to-inter-american-council-on-human-rights.pdf

Further reading:
Agnieszka Szpak, ‘Arctic Athabaskan Council’s Petition to the Inter-American Commission on Human Rights and Climate Change—Business as Usual or a Breakthrough?’ 162 Climatic Change (2020) 1575–1593.

Categories
2006 Biodiversity Emissions reductions/mitigation Extraterritorial obligations Freedom of movement Indigenous peoples' rights Inter-American Human Rights System Private and family life Right to culture Right to health Right to property Right to subsistence/food United States of America

Sheila Watt-Cloutier et al. v. the United States of America

Summary:
Filed in 2005 by members of the Inuit people living in Canada, this application concerned the climate change-related responsibility of the United States of America. The Inter-American Commission of Human Rights refused to examine the case on the grounds that the information provided was insufficient.

More information on the petition:
In this petition to the Inter-American Commission on Human Rights, Sheila Watt-Cloutier, an Inuk woman and Chair of the Inuit Circumpolar Conference living in Canada, sought relief from human rights violations related to climate change caused by the acts and omissions of the United States. Ms. Watt-Cloutier, on behalf of herself, 62 other individuals, and all of the Inuit of the arctic regions of the United States of America and Canada, sought relief against the effects of climate change, which — it was argued — have the potential to affect every aspect of the life of the Inuit people, including the quality of the permafrost, land and water, biodiversity and food sources, and cultural rights. The petitioners relied on the United States’ obligations under the American Declaration of the Rights and Duties of Man, and other instruments that shape these obligations under the Declaration, including the International Convention on Civil and Political Rights, the International Convention on Economic, Social, and Cultural Rights, and the UN Framework Convention on Climate Change.

This case was extraterritorially framed: it was brought by Inuit people living in Canada, but against the United States of America for its climate change-related human rights impacts. The petitioners argued that the acts and omissions by the United States had violated the Inuit’s rights to the benefits of culture, to property, to the preservation of health, life, physical integrity, security, and a means of subsistence, and to residence, movement, and inviolability of the home under the American Declaration of the Rights and Duties of Man and other international instruments.

Outcome:
On 16 November 2006, the Commission refused to consider the petition because it considered that it had provided insufficient information. Specifically, it found that the petition did not “enable us [the Commission] to determine whether the alleged facts would tend to characterize a violation of rights protected by the American Declaration”.

The Commission held a hearing in 2007 concerning the case, however it did not revisit its decision not to examine the complaints made.

Forum:
Inter-American Commission of Human Rights

Date filed:
7 December 2005

Suggested citation:
IACHR, Sheila Watt-Cloutier et al. v. USA, petition rejected on 7 December 2005

Full text of the petition:
The text of the petition is available at climatecasechart.com. Click here to access it.

The video of the 2007 hearing is available here.

Further information:
For more on this petition, see:

Agnieszka Szpak, ‘Arctic Athabaskan Council’s petition to the Inter-American Commission on human rights and climate change—business as usual or a breakthrough?’ 162 Climatic Change (2020) 1575–1593.