CCPR/C/135/D/3624/2019 Annex V [English only] Joint opinion of Committee members Arif Bulkan, Marcia V.J. Kran and Vasilka Sancin (partially dissenting) 1. In addition to a violation of articles 17 and 27 found by the majority of the Committee, we would also find a violation of the right to life under article 6 of the Covenant. 2. The majority opinion correctly states that article 6 should not be interpreted in a restrictive manner (see para 8.3 of the Views).1 Yet, the “real and foreseeable risk” standard employed by the majority interprets article 6 restrictively and was borrowed from the dissimilar context of refugee cases. 2 In Teitiota v. New Zealand, the Committee concluded that, owing to insufficient information from the author, climate change was not a real or foreseeable enough risk to require the State party to grant him refugee status. In contrast, here the primary question is whether the alleged violations of article 6 themselves ensue from inadequate mitigation and/or adaptation measures on climate change by the State party. Using a more accurate standard, from a factually similar case relating to environmental damage by pesticides, the question becomes whether there is “a reasonably foreseeable threat” to the authors’ right to life.3 The authors detail flood-related damage, water temperature increases and loss of food sources and, most importantly, they explain that the islands they live on will become uninhabitable in a mere 10 to 15 years, according to the Torres Strait Regional Authority, a governmental body. Together, this provides evidence of a reasonably foreseeable threat, constituting a violation of article 6. 3. Using the “real and foreseeable risk” standard, the majority opinion requires adverse health impacts to demonstrate an article 6 violation. Not finding such impacts, the majority fails to find a violation of article 6. Nonetheless, the authors detail real and foreseeable risks to their lives resulting from the flooding of the Torres Strait islands. First, the authors provide evidence of significant loss of food sources on which they rely to sustain themselves and their families. The crops lost include sweet potato, coconut and banana, which are required food sources and livelihood for the authors. The authors demonstrate that flooding has caused land erosion, making food production impossible. They also explain that warmer waters resulting from climate change reduced the availability of crayfish, another primary food source. Second, the authors detail repeated damage to their homes, including significant water damage to the foundation of one author’s home. Thus, the authors have demonstrated real and foreseeable risks to their lives through significant loss of food sources, livelihood and shelter. 4. In the majority opinion, article 6 is interpreted restrictively and it is observed that the authors conflate violations of the guarantee under article 27 of the rights of persons belonging to minorities to enjoy their own culture with violations of the guarantee under article 6 of every human being’s inherent right to life (see para. 8.6). Accordingly, the majority finds a violation of article 27, but not of article 6. While the authors do discuss these violations as related, citing similar facts, the Committee’s jurisprudence does not require that facts relating to different violations arise from different sets of facts. The risks to the authors’ right to life are independent and qualitatively different from the risks to their right to enjoy their culture. Consequently, we are unable to agree that a violation of article 27 sufficiently addresses the authors’ claims. 5. We endorse the view that integral to article 6 is the right to live with dignity (see paras. 8.3 and 8.4). It is critical, however, to do more than simply reference the Committee’s jurisprudence: it must also be used progressively, based on current realities. This 1 2 3 William A. Schabas, Nowak’s CCPR Commentary, 3rd revised ed. (Kehl am Rhein, N.P. Engel, 2019), p 122. Teitiota v. New Zealand (CCPR/C/127/D/2728/2016), para. 8.4. Portillo Cáceres et al. v. Paraguay (CCPR/C/126/D/2751/2016), para. 7.5. 25