CCPR/C/135/D/3624/2019
cultural transmission, there is nothing to suggest that the State party has directly interfered in
or failed to protect the authors’ ability to transmit their culture across generations.
6.13 Article 24 (1) of the Covenant does not itself set out the rights of children but refers
to necessary measures of protection for children. Instead of identifying any measures
specifically sought by the authors to obtain such protection for children, their comments only
describe climate change impacts that affect the Torres Strait population generally, adults and
children alike. The special measures warranted by article 24 of the Covenant seek to protect
children because of their status as minors. The effects of climate change do not depend upon
a person’s status as a minor.
Issues and proceedings before the Committee
Consideration of admissibility
7.1
Before considering any claim contained in a communication, the Committee must
decide, in accordance with rule 97 of its rules of procedure, whether the communication is
admissible under the Optional Protocol.
7.2
The Committee has ascertained, as required under article 5 (2) (a) of the Optional
Protocol, that the same matter is not being examined under another procedure of international
investigation or settlement.
7.3
The Committee recalls the requirement under article 5 (2) (b) of the Optional Protocol
that the author of a communication must exhaust all judicial or administrative domestic
remedies, insofar as such remedies offer a reasonable prospect of redress and are de facto
available to the author.28 The Committee recalls that for the purpose of article 5 (2) (b) of the
Optional Protocol, authors must make use only of all those avenues that offer them a
reasonable prospect of redress, that relate to the alleged violation and that offer redress that
would be proportionate to the harm done.29 In this regard, the Committee notes the authors’
uncontested statement that the highest court in Australia has ruled that State organs do not
owe a duty of care for failing to regulate environmental harm. The Committee takes note of
the State party’s position that States parties to the Covenant are not required to make available
domestic remedies in cases where, as in the present case, there is no breach of rights
recognized by the Covenant as properly understood. With due regard for its remaining
findings on admissibility in the paragraphs below, the Committee considers that the issue of
whether the authors’ Covenant rights were breached cannot be dissociated from the merits of
the case. In the above circumstances, and in the absence of information from the State party
indicating that effective and available domestic remedies existed at the relevant time for the
authors to raise the alleged Covenant violations before competent State bodies, the
Committee considers that article 5 (2) (b) of the Covenant does not preclude it from
examining the communication.
7.4
The Committee notes the authors’ claims under article 2, read alone and in conjunction
with articles 6, 17, 24 (1) and 27 of the Covenant. The Committee recalls that according to
its jurisprudence, the provisions of article 2 of the Covenant lay down a general obligation
for States parties and do not give rise, when invoked separately, to a claim in a
communication under the Optional Protocol. Furthermore, article 2 of the Covenant may not
be invoked in a claim in a communication under the Optional Protocol in conjunction with
other provisions of the Covenant, except when the failure by the State party to observe its
obligations under article 2 is the proximate cause of a distinct violation of the Covenant
directly affecting the individual claiming to be a victim.30 In the present case, the Committee
observes that the authors’ claims under article 2, read in conjunction with articles 6, 17, 24 (1)
and 27 of the Covenant lie in the alleged failure of the State party’s policies to give effect to
their rights in relation to life, private life, family, home and culture. The Committee notes,
however, that the authors have already alleged violations of their rights under articles 6, 17,
24 (1) and 27, resulting from alleged defects in the legislative and policy framework and
28
29
30
10
For example, D.G. et al. v. Philippines (CCPR/C/128/D/2568/2015), para. 6.3.
Portillo Cáceres et al. v. Paraguay, para. 6.5.
For example, Devi Maya Nepal v. Nepal (CCPR/C/132/D/2615/2015), para. 6.6.