The claim is legally significant for all Pacific islands, as it is the first lodged with the UNHRC by island inhabitants threatened by climate change.
The case was brought under the International Covenant on Civil and Political Rights (ICCPR) to which Australia is a party. Article 6 of the ICCPR requires State parties to respect and to ensure the right to life of everyone.
Implementation of the obligation to respect and ensure the right to life, and in particular life with dignity, depends on measures taken by States parties to preserve the environment and protect it against harm, pollution and climate change caused by public and private actors for all persons over whom the government exercises power or effective control. (UN Human Rights Committee, in General Comment 36 (2018)). This includes:
- sustainable use of natural resources;
- development and implementation of substantive environmental standards;
- environmental impact assessments; and
- consultation with relevant States about activities likely to have a significant impact on the environment.
International courts have held that a complaint can be lodged by anyone 'already adversely affected in his or her enjoyment of such a right, or that such an effect is imminent'.
However, the Torres Strait Islanders' claim is not fully provided for by the current processes for an application to the Committee.
Firstly, the UNHRC requires the claimant to have unsuccessfully petitioned domestic tribunals in Australia. But there are no relevant Australian courts or tribunals for hearing such matters.
Second, it may be difficult to assess the extent of harm specifically caused by Australia's failure to protect the Islands from environmental degradation. Environmental harm may be caused by different, interdependent and varied factors, and the actions of multiple nations may be involved.
The nature and extent of causation in such cases may have to be revised. Even so, it could be argued that Torres Strait Islanders who have already sustained severe