CLIMATE CHANGE
In those States in which ethnic, religious or linguistic minorities exist, persons belonging to such minorities shall not be denied the right, in community with the other members of their group, to enjoy their own culture, to profess and practise their own religion, or to use their own language.
- Every human being has the inherent right to life. This right shall be protected by law. No one shall be arbitrarily deprived of his life.
- In countries which have not abolished the death penalty, sentence of death may be imposed only for the most serious crimes in accordance with the law in force at the time of the commission of the crime and not contrary to the provisions of the present Covenant and to the Convention on the Prevention and Punishment of the Crime of Genocide. This penalty can only be carried out pursuant to a final judgement rendered by a competent court.
- When deprivation of life constitutes the crime of genocide, it is understood that nothing in this article shall authorize any State Party to the present Covenant to derogate in any way from any obligation assumed under the provisions of the Convention on the Prevention and Punishment of the Crime of Genocide.
- Anyone sentenced to death shall have the right to seek pardon or commutation of the sentence. Amnesty, pardon or commutation of the sentence of death may be granted in all cases.
- Sentence of death shall not be imposed for crimes committed by persons below eighteen years of age and shall not be carried out on pregnant women.
- Nothing in this article shall be invoked to delay or to prevent the abolition of capital punishment by any State Party to the present Covenant.
Daniel Billy et al v Australia (HRC)
Ioane Teitiota v New Zealand (HRC)
A significant application of Article 27 ICCPR in the context of Indigenous peoples’ rights is seen in recent decisions related to the environment and climate change. Although not a minority or Indigenous case, the first such communication was Ioane Teitiota v New Zealand (2020) in which the author claimed that a Tribunal decision to return him to Kiribati violated his right to life under Article 6 ICCPR due to the effects of climate change and sea level rise. 92 This claim was ultimately held inadmissible, but elements of the decision opened the door to communications related to climate change as violations of the ICCPR.93 The next such claim would bring a specific Indigenous rights angle. In Daniel Billy et al v Australia (2023),94 the eight communicants were Indigenous peoples of the low-lying Torres Strait islands whose lives and culture were threatened by climate change. The Committee found a violation of Article 27, holding that the authors’ ability to maintain their culture has been impaired by the reduced viability of their islands and the surrounding seas owing to climate change impacts.95 The decision does not escape the problematic text of Article 27, describing the authors as belonging to an ‘Indigenous minority group’, and Article 27 as ‘a right which is conferred on individuals belonging to minority Indigenous groups’.96 But it does also reference UNDRIP as an interpretive tool for Article 27, allowing the Committee to engage the collective aspect of the provision: ‘The Committee further recalls that article 27 of the Covenant, interpreted in the light of the United Nations Declaration on the Rights of Indigenous Peoples, enshrines the inalienable right of Indigenous Peoples to enjoy the territories and natural resources that they have traditionally used for their subsistence and cultural identity’.97 The Committee’s findings are of clear significance to climate change measures, as well as Indigenous peoples’ rights:
‘the State party’s failure to adopt timely adequate adaptation measures to protect the authors’ collective ability to maintain their traditional way of life and to transmit to their children and future generations their culture and traditions and use of land and sea resources discloses a violation of the State party’s positive obligation to protect the authors’ right to enjoy their minority culture.’98
The decision is seen as breaking new ground in relation to State obligations to enact adaptation measures, among other aspects.99 It is also the first case recognition by a UN human rights treaty body of the positive obligations of States Parties to protect Indigenous or minority groups against the adverse impacts of climate change.100 As noted, climate change and Indigenous rights arose also before the CRC in Saachi and M.E.V., S.E.V. and B.I.V., although neither decision reached substantive findings on this aspect.
92 UN Doc. CCPR/C/127/D/2728/2016 (2020).
93 Ibid. The Committee rejected the claim but noted that ‘severe environmental degradation can adversely affect an individual’s well-being and lead to a violation of the right to life’. It also accepted that ‘without robust national and international efforts, the effects of climate change in receiving States may expose individuals to a violation of their rights under articles 6 or 7 of the Covenant, thereby triggering the non-refoulement obligations of sending States.’ (paras 9.5 and 9.11) There were also dissenting views in favour of the author - see Individual Opinion of Committee member Duncan Laki Muhumuza.
94 UN Doc. CCPR/C/135/D/3624/2019 (2023).
95 Ibid para 8.14.
96 Ibid paras 2.1 and 8.13. See also the reference to ‘minority culture’ (at para 8.14).
97 Ibid para 8.13.
98 Ibid para 8.14.
99 Christina Voigt, ‘UNHRC is Turning up the Heat: Human Rights Violations Due to Inadequate Adaptation Action to Climate Change’ Ejil: Talk! 26 September 2022 <https://www.ejiltalk.org/unhrc-is-turning-up-the-heat-human-rights-violations-due-to-inadequate-adaptation-action-to-climate-change/>
100 Ibid.
