CCPR/C/135/D/3624/2019
5.6
International environmental legal obligations of States are indeed relevant to
interpreting the scope of their duties under the Covenant. Treaties should be interpreted in
the context of their normative environment.
5.7
The State party has not so far taken any adequate concrete measures to prevent the
authors’ islands from becoming uninhabitable or to address the real and foreseeable threat of
the complete loss of the authors’ cultures. The Committee’s jurisprudence supports the notion
that environmental harm can lead to violations of fundamental human rights, given the
dependence of Indigenous minority cultures on a healthy environment and the strong cultural
and spiritual link between Indigenous Peoples and their traditional lands.
5.8
With respect to article 24 of the Covenant, the principle of intergenerational equity
places a duty on current generations to act as responsible stewards of the planet and ensure
the rights of future generations to meet their developmental and environmental needs. The
remedies requested by the authors are reasonable and proportionate.
State party’s additional observations
6.1
In its additional observations, submitted on 5 August 2021, the State party maintains
that the authors’ allegations (changes to seasonal patterns; erosion of ancestral land; saltwater
intrusion; and damage to cultural practices, species and homes) represent possible impacts of
climate change but not existing or imminent violations of Covenant rights caused by the State
party, either through act or omission. Those impacts only suggest that current adverse effects
may, subject to contingencies, worsen in the future. The possible impacts of a slow-onset
process do not confer victim status on the authors.
6.2
The authors acknowledge that there is still a window of time in which adaptation
measures can be planned and implemented. The authors themselves contemplate the
consequences that might arise if and when their islands become unviable for habitation.
6.3
Climate change is a global phenomenon attributable to the actions of many States.
Unlike other environmental issues previously considered by the Committee, it requires global
action. The general effects of climate change and the effectiveness of any mitigation or
adaptation measures to address those effects are not within the complete control of any
State.24
6.4
The State party’s position is not, as the authors allege, that they must simply wait and
suffer increasingly severe climate impacts. The international community has sought to
address climate change primarily, and rightly, as a matter requiring international cooperation
under international environmental agreements. Notwithstanding the authors’ dissatisfaction
with the pace and nature of the State party’s efforts, this does not mean that the State party’s
response to the threat of climate change, and consequently the response of many other States,
amounts to a violation of the Covenant.
6.5
In applying the principle of systemic integration described by the International Law
Commission, relevant rules for the purpose set out in article 31 (3) (c) of the Vienna
Convention on the Law of Treaties must concern the subject matter of the treaty term at
issue.25 Climate change treaties do not provide evidence of the object and purpose of the
Covenant or the meaning of its terms.
6.6
Regarding the exhaustion of domestic remedies, States parties to the Covenant are not
required to make available a domestic remedy for the purposes under article 2 (3) of the
Covenant where: (a) the alleged violations are outside the scope of the Covenant (as is the
case here, since the allegations relate to the compliance of Australia with international climate
change treaties); or (b) there is no breach of rights recognized by the Covenant as properly
understood, as is the case for the allegations in the present communication.
6.7
The obligation to respect under article 2 (1) of the Covenant is a positive obligation
of non-interference with Covenant rights that extends only to real risks against which a State
24
25
8
See Poma Poma v. Perú (CCPR/C/95/D/1457/2006).
Report of the International Law Commission on the work of its fifty-eighth session (A/61/10),
pp. 180 and 413.