Exploring the untapped potential of the right to culture for future climate migration litigation

Irene Sacchetti, PhD Candidate NLS https://www.ntu.ac.uk/study-and-courses/courses/our-students-stories/law/irene-sacchetti

The Torres Strait Islanders case, formally known as Daniel Billy et al. v. Australia, serves as an important example of climate change's impact on the cultural rights of an indigenous minority group residing in a climate-vulnerable region. This blog post analyses the UN Human Rights Committee's ruling on the Islanders' petition against Australia for inaction on climate change and alleged human rights violations. It explores the potential of the right to culture as a crucial legal foundation for future climate migration litigation arguments. While the petition's successful outcome warrants reflection on the significance of the right to culture, it remains unclear whether this played a decisive role in the Committee's decision, particularly in comparison to other cases where the Committee was hesitant to recognise violations of the right to life due to climate change-related factors and cross-border displacement (such as Teitiota v. New Zealand).

The argument put forth by the authors is rooted in the fact that Australia has not taken sufficient measures to adapt to the effects of climate change (such as building sea walls) or to reduce greenhouse gas emissions. As a result, rising sea levels have led to coastal erosion, floods, and damage to marine ecosystems and resources. This not only violates the right to life and a healthy environment (as outlined in article 6 of the International Covenant on Civil and Political Rights (ICCPR)) but also the right to a home (article 17), the ability to practice cultural traditions on ancestral lands (article 27) for Islanders, the rights of future generations (including children named in the complaint) and intergenerational equity (article 24). The Committee is asked to determine whether Australia has violated the Covenant by failing to implement adaptation and/or mitigation measures to combat adverse climate change impacts that harm the authors’ rights.

Interestingly, in assessing the violation of the right to life (article 6 ICCPR), the Committee reasoning mirrors that of the Teitiota case, which failed exactly on the same grounds. Teitiota's claim, in fact, is based on the infringement of his right to life (article 6 ICCPR) following his expulsion by New Zealand authorities to his home country, Kiribati. This small island nation is facing an existential threat due to rising sea levels, resulting in devastating outcomes such as contamination of drinking water, soil salinization, increased vulnerability to floods, precarious housing situation and the spread of infectious diseases.

Specifically, the Committee highlights that the authors have not demonstrated the individual nature of the risk of being exposed to a situation of physical endangerment or extreme precarity, which could threaten their right to life, including their right to a life with dignity, and that this risk is real and reasonably foreseeable (para 8.6). Like Teitioita, the suggested timeframe of 10-15 years is used to justify state intervention to protect and relocate the alleged victims, with the same ambiguous exception if “the conditions of life in such a country become incompatible with the right to life with dignity before the risk is realised”.

Furthermore, the Teitiota case has created some ambiguity as to the level of protection that human rights law, particularly the right to life, can offer in climate-related migration litigation. However, the Torres case serves as a clear demonstration of the constraints of human rights law in this field. In fact, in supporting its observation, Australia recalled Teitiota while arguing that the authors “invoke a risk that has not yet materialised” (para 4.2), and that “the State party is taking adaptation measures in the Torres Strait, thus rendering the harm invoked by the authors too remote to demonstrate a violation of the right to life” (para 4.7).

Despite the argument based on article 6 ICCPR not yielding successful results, the Committee's reluctance to pursue legal action in the context of climate challenges to human rights was confirmed. However, a noteworthy development occurred as the Committee established the State's responsibility for violating the right to privacy and family life (article 17) and the right to culture of minorities under article 27 ICCPR due to climate inaction. Australia was found to have violated the authors' rights under article 17, as the State failed to address the islanders' requests to update seawalls over several decades and provided no explanation for the delay in constructing new ones. The resulting severe inundations of the villages and ancestral burial lands have compromised culturally significant community ceremonies on traditional lands, visits to ancestral graveyards, generated anxiety regarding community survival and lands' habitability, and therefore constituted "foreseeable and serious violations of private and family life and the home" (para 8.12).

Australia's failure to take timely action in initiating adaptation projects has resulted in a violation of the indigenous group's right to culture. The adverse effects of climate change have caused significant harm to these communities' traditional lands, ultimately contributing to the erosion of their cultural identities. The interdependence between indigenous communities and their traditional lands is a crucial aspect of their cultural traditions and practices, and any harm inflicted on these lands can severely compromise the cultural integrity of the community. According to the Committee, Australia failed 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” (para 8.14). To address such violations, Australia was asked to provide full reparation to individuals, offer adequate compensation, engage in meaningful consultation with affected communities for assessment, and continue implementing strategies to ensure the safety and well-being of the islands and their inhabitants.

The question of whether the right to culture , not explicitly included in Teitiota, played a decisive role in the positive outcome of the case is still a matter of debate. Nonetheless, it is clear that the decision has the potential to impact future climate migration litigation in a positive way. So, what insights can be gleaned from the Torres Strait Islander case?

The Committee has acknowledged that the rights of minority groups to their culture, family, and home have been violated in the face of the detrimental effects of climate change, stressing the importance of cultural ties with traditional lands of the islanders. As a result of the Committee reflections, future climate migration litigation can ground the legal argument on cultural rights as protected by article 27 in case of minority groups or article 1 when considering the right to self-determination and cultural development. The consequences of climate change and the inaction of States directly impact the ability of those affected to maintain their cultural traditions and way of life, as well as their relationship with their ancestral lands.

Moreover, the ruling highlights the inherent intergenerational dimension of the right to culture and reiterates the State's duty to safeguard authors' ability to pass down cultural traditions to future generations, particularly for communities that are at higher risk and more susceptible to the effects of climate change. Collective capacity of indigenous community to safeguard their cultural traditions and ensure their continuity should constitute a duty of States. Cultural identities are source of pride and identity for communities, from which future generations will continue to benefit from. The collective and intergenerational dimensions of cultural rights can prove useful in climate migration litigations of the future. These arguments can help address the intrinsic challenges that, for example, arise from the individualised nature of climate-related risks, particularly in the context of the right to life.

Lastly, the Committee's reflections on safeguarding the right to life entail the responsibility of State parties to protect victims from imminent and potential climate hazards, and facilitate relocation as required. This opens up potential opportunities for climate migration claims in the future, which could reinforce States' duty to assist relocation of vulnerable communities in consultation with those directly affected.

Exploring the untapped potential of the right to culture for future climate migration litigation

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