CCPR/C/135/D/3624/2019
physical or mental harm that they cause, the degradation of the environment may then
adversely affect the well-being of individuals and constitute foreseeable and serious
violations of private and family life and the home. 47 The Committee concludes that the
information made available to it indicates that, by failing to discharge its positive obligation
to implement adequate adaptation measures to protect the authors’ home, private life and
family, the State party violated the authors’ rights under article 17 of the Covenant.
Article 27
8.13 The Committee recalls that article 27 establishes and recognizes a right which is
conferred on individuals belonging to minority Indigenous groups and which is distinct from,
and additional to, the other rights that all persons are entitled to enjoy under the Covenant.48
The Committee also recalls that, in the case of Indigenous Peoples, the enjoyment of culture
may relate to a way of life which is closely associated with territory and the use of its
resources, including such traditional activities as fishing or hunting.49 Thus, the protection of
this right is directed towards ensuring the survival and continued development of cultural
identity.50 The Committee further recalls that article 27 of the Covenant, interpreted in the
light of the United Nations Declaration on the Rights of Indigenous Peoples, enshrines the
inalienable right of Indigenous Peoples to enjoy the territories and natural resources that they
have traditionally used for their subsistence and cultural identity. Although the rights
protected under article 27 are individual rights, they depend in turn on the ability of the
minority group to maintain its culture, language or religion.51
8.14 The Committee notes the authors’ assertion that their ability to maintain their culture
has already been impaired by the reduced viability of their islands and the surrounding seas,
owing to climate change impacts. The Committee also notes the authors’ claim that those
impacts have eroded their traditional lands and natural resources that they use for traditional
fishing and farming and for cultural ceremonies that can be performed only on the islands.
The Committee further notes their claim that the health of their land and the surrounding seas
is closely linked to their cultural integrity. The Committee notes that the State party has not
refuted the authors’ arguments that they could not practise their culture on mainland Australia,
where they would not have land that would allow them to maintain their traditional way of
life. The Committee considers that the climate impacts mentioned by the authors represent a
threat that could have reasonably been foreseen by the State party, as the authors’ community
members began raising the issue in the 1990s. While noting the completed and ongoing sea
wall construction on the islands where the authors live, the Committee considers that the
delay in initiating these projects indicates an inadequate response by the State party to the
threat faced by the authors. With reference to its findings in paragraph 8.14, the Committee
considers that the information made available to it indicates that the State party’s failure to
adopt timely adequate adaptation measures to protect the authors’ collective ability to
maintain their traditional way of life and 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, the Committee considers that the facts before it amount to a violation of the
authors’ rights under article 27 of the Covenant.
9.
The Committee, acting under article 5 (4) of the Optional Protocol, is of the view that
the facts before it disclose a violation by the State party of articles 17 and 27 of the Covenant.
10.
Having found a violation of articles 17 and 27, the Committee does not deem it
necessary to examine the authors’ remaining claims under article 24 (1) of the Covenant.
11.
Pursuant to article 2 (3) (a) of the Covenant, the State party is under an obligation to
provide the authors with an effective remedy. This requires it to make full reparation to
individuals whose Covenant rights have been violated. Accordingly, the State party is
47
48
49
50
51
16
See, mutatis mutandis, Benito Oliveira et al. v. Paraguay (CCPR/C/132/D/2552/2015); and
general comment No. 23 (1994).
General comment No. 23 (1994), paras. 1 and 6.1.
Benito Oliveira et al. v. Paraguay, para. 8.6.
Ibid., para. 8.3.
Käkkäläjärvi et al. v. Finland (CCPR/C/124/D/2950/2017), para. 9.9.