CCPR/C/135/D/3624/2019
Article 24
4.12 The authors have not demonstrated that the wide range of legislative and other
measures put in place by the State party to protect Australian children fail to comply with the
obligation under article 24 (1) of the Covenant. In article 24 (1), which measures of protection
are required are not specified; States parties have broad discretion in this regard.
Authors’ comments on the State party’s observations on admissibility and the merits
5.1
In their comments submitted on 29 September 2020, the authors maintain that the
State party did not challenge their arguments regarding several issues, including the science
of climate change and its current and future impacts on the islands on which they live; and
the interdependency between the authors’ unique and vulnerable culture and the surrounding
ecosystem of the islands.
5.2
The State party erred in asserting that the authors have yet to suffer the adverse effects
of climate change, if at all. This contradicts the evidence that the authors already provided
and the reports of the Torres Strait Regional Authority, a State agency. Moreover, the State
party has already violated its duty to avert devastating and future irreversible impacts on
rights protected by the Covenant, including impacts caused by existing greenhouse gas
emissions. Protective measures must be initiated today. 23 Climate change is a slow-onset
process. Thus, a State party may violate its obligations before the worst effects occur. The
authors’ claims are based on both current violations and an imminent threat of violations.
They already experience severe impacts arising from climate change, including damage to
their homes and disruption of their family life. In their combined statements, the authors
describe experiencing the following problems: flooding and inundation of villages; flooding
and inundation of ancestral burial lands; loss by erosion of their traditional lands, including
plantations and gardens; destruction or withering of traditional gardens through salinification
caused by flooding or seawater ingress; decline of nutritionally and culturally important
marine species caused by climate change, and associated coral bleaching (reef death) and
ocean acidification; and a reduced ability to practise their traditional culture and pass it on to
the next generation. They also experience anxiety and distress owing to erosion which is
approaching some homes in the community. For six of the authors, upkeep of ancestral
graveyards and visiting and feeling communion with deceased relatives is at the heart of their
cultures and the most important ceremonies (such as coming-of-age and initiation ceremonies)
are culturally meaningful only if performed on the native lands of the community observing
the ceremony.
5.3
The authors living on Boigu and Masig face a real prospect of displacement and loss
of culture within the next 10 years unless urgent and significant action is taken to enable the
islands to withstand expected sea-level rise. The authors living on Warraber and Poruma face
such a prospect within their lifetimes unless urgent action is taken within 10 to 15 years. Such
displacement can be prevented with reasonable adaptation and mitigation measures. If the
State party’s interpretation of imminence were followed, the authors would be forced to wait
until their culture and their land were lost in order to submit a claim under the Covenant.
5.4
The authors have identified specific acts and omissions by the State party (relating to
adaptation and mitigation) instead of relying on abstract arguments. Those acts and omissions
have already impaired and will continue to impair the authors’ rights in ways that will worsen
over time, because of the latent and/or irreversible nature of climate change.
5.5
The State party is responsible for its own emissions contribution, lack of due diligence
and failure to take adaptation measures to protect the authors’ rights and fulfil its obligation
to reduce emissions. The protection of the right to life requires States to review their energy
policies and prevent the dangerous emission of greenhouse gases.
23
According to land and sea profiles published in 2015 and 2016, the Torres Strait Regional Authority
assigned to the four islands where the authors live ratings of either high vulnerability to sea-level rise
(Masig, Poruma and Warraber) or very high vulnerability (Boigu) and considered them to have low
(Masig and Warraber), very low (Boigu) or medium (Poruma) sea-level rise response options.
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