[ ]

Tag: RightToLife

Posted on

Daniel Billy et al. v Australia

Date: 22 September 2022

Court: United Nations Human Rights Committee

Citation: Views adopted by the Committee under Article 5 (4) of the Optional Protocol, concerning Communication No. 3624/2019

Short summary 

The indigenous minority group of four low-lying islands in the Torres Strait region, one of the most vulnerable populations to climate change impacts, filed a petition against the Australian government alleging a violation of articles 2, 6, 17, 24 and 27 of the International Covenant on Civil and Political Rights (ICCPR) due to Australia’s failure to implement measures for mitigation and adaptation to climate change, threatening habitability on the islands and displacement of the Torres Strait Islanders. In finding a violation of articles 17 and 27, the Committee requires Australia to make full reparation to individuals, providing adequate compensation, engaging in meaningful consultation with affected communities for assessment and continue implementing strategies for the safe existence of the islands and their inhabitants.

Summary by: Irene Sacchetti

Link to Original Judgement

Click here to open the case in PDF format

Weight of decision 

Though not legally binding, for the first time the Committee ascertains State’s responsibility for climate inaction leading to a violation of multiple rights, including cultural rights under the ICCPR.

Key facts 

The petitioners’ claims were based on Australia’s failure to implement adaptation strategies (e.g., infrastructure such as sea walls) and mitigation measures to reduce GHG emissions to combat adverse climate change impacts. They argued that sea level rise — already causing coastal erosion – flooding, and the destruction of marine ecosystems and resources all result in violations of Islanders’ rights to life and a healthy environment (article 6), home (article 17), practice cultural traditions on ancestral land (article 27) and intergenerational equity (article 24).

Citing the Teitiota decision, Australia responded that the petitioners “invoke a risk that has not yet materialized” and that “the State party is taking adaptation measures in the Torres Strait, thus rendering the harm invoked by the authors too remote to demonstrate a violation of the right to life.”

The Committee was asked to determine whether Australia violated the Covenant by failing to implement adaptation and/or mitigation measures to combat adverse climate change impacts within its territory resulting in harms to the authors’ rights.

Previous instances 

None: The petitioners’ rights under the ICCPR are neither protected by the Australia Constitution nor other domestic legislation – and the highest Court in Australia has ruled that the state have a duty of care to prevent environmental harm – so this was a case of first impression before the Committee.

Continued on the next page…

Pages: 1 2
Posted on

Bundesverfassungsgericht, Order 1 BvR 2656/18, 1 BvR 96/20, 1 BvR 78/20, 1 BvR 288/20, 1 BvR 96/20, 1 BvR 78/20

Date of judgement: 24 March 2021

Court: Federal Constitutional Court of Germany 

Citation(s): BVerfG, Order of the First Senate of 24 March 2021 – 1 BvR 2656/18 -, paras. 1-270

Short summary 

In its decision, the Federal Constitutional Court classified the German Climate Protection Act in its current form as violative of fundamental rights because it disproportionately shifts the burden of greenhouse gas reduction to future generations, thereby recognising for the first time the existence and violation of the intertemporal dimension of their civil rights. 

Summary by: Robert Los

Link to original judgement 

Click here to open the case in PDF format

Weight of decision 

The order bears immense weight in Germany as the judgement indirectly grants a right to future generations with regard to protection or relief from CO2 emissions and other climate changes. 

Key facts

The Federal Climate Change Act (Klimaschutzgesetz – KSG) was drafted in response to the need for greater climate action efforts. Its purpose is to afford protection against the effects of global climate change (§ 1 S.1), and as stated under § 1 S.3, the basis of the KSG is the obligation under the Paris Agreement as well as the commitment made by the Federal Republic of Germany to pursue the long-term goal of greenhouse gas neutrality by 2050. 

Greenhouse gas emissions must be gradually reduced by the target year 2030 by at least 55%, relative to 1990 levels (§ 3(1)). In conjunction with Annex 2, § 4(1) sets out the annual permissible emission levels for various sectors in line with the reduction quota for the target year 2030. Provisions applicable beyond 2030 are not contained in the KSG. Rather, § 4(6) provides that in the year 2025, the Federal Government must – by way of ordinances – set annually decreasing emission levels for periods following 2030.

In support of their constitutional claims, the complainants − some of whom live in Bangladesh and Nepal − relied primarily on constitutional duties of protection arising from Art. 2(2) of the German Constitution Grundgesetz (GG), and Art. 14(1) GG, as well as the a fundamental right to a future in accordance with human dignity, and the fundamental right to an ecological minimum standard of living (ökologisches Existenzminimum), which they derived from Art. 2(1) GG in conjunction with Art. 20a GG and from Art. 2(1) GG in conjunction with Art. 1(1) GG. 

With regard to future burdens arising from the obligations to reduce emissions in the periods following 2030 – described by the complainants as an “emergency stop” – they relied on fundamental freedoms more generally.

Continued on the next page…

Pages: 1 2 3 4
Posted on

Ioane Teitiota decision, CCPR/C/127/D/2728/2016

Date of judgement: 23 September 2020

Court: United Nations Human Rights Committee

Citation(s): CCPR/C/127/D/2728/2016; Views adopted by the Committee under article 5 (4) of the Optional Protocol, concerning communication No. 2728/2016

Short summary 

In its first ruling on a complaint by an individual seeking asylum from the effects of climate change, the United Nations Human Rights Committee found that states may not deport individuals who face climate change-induced conditions that violate the right to life.

Summary by: Makaela Fehlhaber

Link to original Judgement 

Click here to open the case in PDF format

Weight of decision 

This decision is significant in that it is one of the first to acknowledge climate change-induced conditions as drivers of asylum claims. The Committee is responsible for holding states to account for upholding the International Covenant on Civil and Political Rights, however, its decisions are not binding. 

Key facts

The applicant sought asylum (and in the alternative, to be regarded as a protected person) on environmental grounds and argued that this was within the scope of the 1951 Refugee Convention. 

Further, the applicant contended that deportation back to Kiribati would violate Art. 6 (the right to life) of the International Covenant on Civil and Political Rights. The applicant sought determination by the Committee on the basis that he had exhausted all available domestic remedies (para. 8.3), a fact not disputed by the State party. 

New Zealand’s primary arguments surrounded the lack of evidence put forth by the applicant to support the argument that there was an imminent risk to his right to life, and that the claim should be deemed inadmissible. 

The Committee was asked to determine whether New Zealand had breached its obligations under the ICCPR by deporting the applicant back to Kiribati on the basis that the evidence did not support a finding that the applicant would face the risk, or would likely face the risk of arbitrary deprivation of life upon his return to Kiribati. 

Continued on the next page…

Pages: 1 2 3
Posted on

Leghari v. Federation of Pakistan


Date: 1 January 2018

Court: Lahore High Court, Pakistan

Citation: W.P. No. 25501/2015

Short summary 

The plaintiff sued the Federal Government of Pakistan and Regional Government of Punjab for failure to address climate change, arguing that the government’s failure to implement national climate change policy threatened citizens’ rights to life, a healthy and clean environment, and human dignity. The High Court agreed and mandated certain administrative changes to ensure citizens’ fundamental rights to water, food, and energy.

Summary by: Saw Aung Aung

Link to Original Judgement

Click here to open the case in PDF format

Weight of decision 

This decision holds great weight in Pakistan, as the judgment from the High Court binds the national government to further ensure implementation of national climate change policy and to enforce the fundamental rights of its citizens in the context of climate change.. 

Key facts 

Pakistan is particularly vulnerable to the impacts of climate change, as seen recently from massive damage, death, and displacement caused by flooding. According to articles 9 (right to life) and 14 (right to a healthy and clean environment and to human dignity) of the Pakistani Constitution, citizens can turn to the courts to recognize state obligations to ensure these fundamental rights.

Under the National Climate Change Policy of 2012 (“Policy”) and the 2014-2030 Framework for Implementation of Climate Change Policy (“Framework”), the courts also have the authority to install and remove members of the Climate Change Commission (“CCC”), including relevant experts from the Ministry of Water Resources, Ministry of Climate Change, and Ministry of Inter Provincial Coordination, and to require reports from the CCC on whether citizens’ rights are properly safeguarded in the context of environmental and climate change.

Petitioner Leghari filed this case against the Federal Government of Pakistan and the Regional Government of Punjab, alleging that the impacts of climate change, and a lack of action from the government, violated his rights as a citizen. In particular, Leghari alleged that failure to implement the national Policy and Framework on climate change threatened his livelihood as an agriculturist, given his economic dependency on access to clean water, energy, and food.

Previous instances

Previous cases in Pakistan (Tiwana v. Punjab [PLD 2015 Lahore 522] and Zia v. WAPDA [PLD 1994 SC 693]) established that national and provincial environmental laws should be enforced consistent with international principles of environmental law, including respect for fundamental rights and proper execution of environmental impact assessments.

Summary of holding 

The Court first recognized that climate change in Pakistan has led to heavy flooding and droughts, threatening citizens’ fundamental rights to water and food security, especially the most vulnerable in the country. It then held that the government had not taken sufficient action to implement its climate change Policy or Framework, despite notable progress by the CCC. Nonetheless, the Court dissolved the CCC, and future authority to coordinate implementation of the national Policy and Framework was vested in a Standing Committee on Climate Change, to “act as a link between the Court and the Executive . . . to ensure that the Policy and the Framework continue to be implemented.”

The Court agreed with Leghari that their authority to intervene was connected with the rights to life and human dignity “under articles  9 and 14 of the Constitution,” especially with respect to his right as a citizen to access clean water: “Climate Justice and Water Justice go hand in hand.” Moreover, the Court’s decision referenced “international environmental principles of sustainable development, [the] precautionary principle, environmental impact assessment[s], inter[-] and intra-generational equity[,] and [the] public trust doctrine” among the mechanisms used to justify its ruling.

Potential takeaways for future climate migration litigation

  • Leghari is a relatively successful example of a citizen directly asserting their rights in court against a national government in the context of climate change. The High Court’s willingness to hear such a rights-based claim and respond with a substantive policy change order should be of interest to future litigators bringing national cases related to climate mitigation or adaptation.
  • While the policy changes mandated by the Court may or may not bring Pakistan into compliance with its own climate change Policy or Framework, advocates should note that, in a country already frequently devastated by the impacts of climate change, the High Court asserted a muscular role for itself in coordinating executive and legislative actions, including via the creation of a new Standing Committee to enforce fundamental rights in the context of climate change. In doing so, the Court seemed especially moved by rural citizens’ dependence on clean and consistent water sources, a perennial environmental issue in Pakistan. In mobility-related cases, then, it may be wise to assert claims with reference to environmental hazards already well-recognized in a given jurisdiction.
Posted on

AF (Tuvalu) [2015] NZIPT 800859

Date: 20 October 2015

Court: New Zealand Immigration and Protection Tribunal

Citation: [2015] NZIPT 800859

Short summary

This case was heard before the New Zealand Immigration and Protection Tribunal. It is an appeal against the decision taken by a refugee and protection officer to deny refugee status or protected person status to the appellant, a 25-year-old man of Tuvaluan nationality who had been served with a deportation order. The appellant based his appeal on the claim that he had a real chance of being persecuted if returned to his country of nationality in relation to an infringement of his right to work and of his right to safe drinking water. The appellant also claimed that his deportation to Tuvalu would be a violation of his daughters’ rights under the 1989 Convention on the Rights of the Child. The Tribunal dismissed the appeal on the ground that the appellant could reasonably access clean drinking water and reasonably attempt to gain employment in Tuvalu.

Summary by: Lucas Robinson

Link to original judgement

Click here to open the case in PDF format

Weight of decision

The New Zealand Immigration and Protection Tribunal is an independent judicial body and has jurisdiction to hear appeals against deportations, refugee claims, and other immigration decisions. A decision from the New Zealand Immigration and Protection Tribunal can be reviewed by the High Court only if an appeal is made on a point of law. In that sense, the New Zealand Immigration and Protection Tribunal’s decisions carry substantial weight in New Zealand domestic law.

Key facts

The appellant was a citizen of Tuvalu, who was 25 years old at the time of the hearing. In 2003, he moved to New Zealand with his mother. This event forced him to drop out of school in Tuvalu. He has been living in New Zealand since then and never went back to school.  In 2008, he married a New Zealand citizen and they had two daughters together. Between 2008 and 2014, the appellant was convicted of multiple offences/crimes in New Zealand. As a result, in July 2014, the appellant was served with a deportation order. In December 2014, the appellant submitted a claim to be recognised as a refugee or as a protected person. A refugee and protection officer denied his claim. This case is the appeal against the aforementioned refusal.

The appellant appealed the decision on three grounds. First, the appellant fears returning to Tuvalu because of the lack of employment opportunities. Indeed, he fears that the government of Tuvalu will discriminate against him due to his criminal convictions and lack of formal education, therefore violating his right to work. Second, the appellant claims that, if returned to his country of nationality, he would not be able to exercise his right to access safe drinking water due to the effects of climate change. Third, the appellant claims that his deportation to Tuvalu would violate his daughters’ rights under the 1989 Convention on the Rights of the Child.

Previous instances

In July 2014, the appellant was served with a deportation order as a result of his convictions for crimes he committed between 2008 and 2014. His attempt to get this deportation order revoked was unsuccessful. Facing deportation, the appellant submitted an application to be recognised as a refugee or protected person. A refugee and protection officer declined to grant the appellant’s application.

Pages: 1 2
Posted on

Kolyadenko and Others v. Russia

Date: 28 February 2012 

Court: European Court of Human Rights, Strasbourg  

Citation: [2012] ECtHR 338 (Application No. 17423/05)

Short summary  

Six Russian applicants brought a case before the European Court of Human Rights because their government failed to protect their property and possessions from a dangerous flood. The Court held that Russia violated these applicants’ rights under the European Convention on Human Rights by failing to take preventative measures and warn them of the risk of flooding.  

Summary by: Yusuf Lahham 

Link to Original Judgement

Click here to open the case in PDF format

Weight of decision  

The European Court of Human Rights (ECtHR) applies the European Convention on Human Rights (ECHR) and all Contracting States are bound by its judgments. As this case originated in an application against the Russian Federation, a then Contracting State to the ECHR, the judgment had the weight of directly applicable constitutional law in Russia. ECtHR decisions are also relevant to other States as they are viewed as a ‘living interpretation’ of the ECHR.  

Key facts 

The applicants, six Russian nationals, brought complaints to the ECtHR between the 21st of April and the 2nd of September 2005, relying on Articles 2, 8, and 13 of the ECHR and Article 1 of Protocol 1. The applicants live near the city of Vladivostok, in an area near the Pionerskaya river and water reservoir, which was heavily affected by a flash flood in August 2001. The applicants alleged that Russian authorities were responsible for the flood and that there had been inadequate judicial response afterwards.    

Vladivostok is located on the southeast coast of Russia, giving it a monsoon-influenced continental climate with humid summers. The month of August is often the rainiest and is marked by typhoons, and it is widely known that the floodplain of the Pionerskaya river is subject to periodic flooding during heavy rains. Between the 7th of June 1999 and the 27th of July 2001, various different authorities in charge of the reservoir and of the region highlighted the fact that the river channel was blocked and needed to be emptied to ensure that no dangerous flooding would occur. However, despite the various different warnings and orders to act, it is unclear whether any significant measures were actually taken.     

On the 7th of August 2001, a heavy rainstorm affected the area. It is estimated that the rain that fell was the equivalent of a full month’s rainfall. By 12 PM, the reservoir was releasing water at a rate of 167 cubic metres per second. Due to the sudden release of water from the reservoir, a nearby area was immediately flooded, engulfing the applicants’ homes. There was no local emergency warning in place and the water rose quickly to a level of 1.50 metres. All 6 applicants suffered damages to their properties and their possessions.      

Previous instances  

A criminal investigation was opened on the 9th of August 2001, and the director of the State-owned company which regulated the reservoir (the Water Company) had criminal proceedings brought against him. However, in January 2003, the criminal proceedings were discontinued. It was contended that the evacuation of water from the reservoir was appropriate given how much rain had fallen on that day, and that such an evacuation was necessary to mitigate the risk of the dam breaking and claiming many lives. An expert report, concluded in January 2003, found that the main reason for the flood was to the blocked channel of the Pionerskaya river, which was littered with waste and overgrown trees and bushes. Consequently, the investigative authorities ordered criminal proceedings to be brought against officials in Vladivostok. Proceedings were brought against officials on the grounds that they had given permission for housing construction in a water protected zone by the river. However, in July 2004, these proceedings were also discontinued for lack of evidence. The civil proceedings the applicants brought were also dismissed in 2004, leaving them with minimal compensation for their losses.  

Continued on the next page…

Pages: 1 2
Posted on

Xákmok Kásek Indigenous Community v. Paraguay

Date: 24 August 2010

Court: Inter-American Court of Human Rights 

Citation: IACtHR, Xákmok Kásek Indigenous Community v. Paraguay, 24 August 2010, Series C, No. 214 (IACtHR 2010) 

Short summary  

The Xákmok Kásek Indigenous Community lodged a petition against the State of Paraguay before the Inter-American Court of Human Rights, alleging failure to enforce their right to property, especially because of the creation of a private protected nature reserve on their ancestral lands without consultation. The Inter-American Court on Human Rights found that the lack of access to nature implied not only the breach of those people’s human rights, but also constituted discrimination.

Summary by: Lorenza Contin 

Link to Original Judgement

Click here to open the case in PDF format

Weight of decision

The jurisprudence of the Inter-American Court on Human Rights at the nexus between Indigenous people, environment and right to life was already consolidated at the time, and its rulings are presumptively enforceable on the states which appear before it, including Paraguay.

Key facts

Historically, the economy of Indigenous communities in Paraguay was based on hunting, gathering, and fishing, and thus they used to roam a very extensive area of the Chaco region to follow the seasonal patterns of nature. During the process of colonisation of the Chaco, their ancestral lands were gradually privatised, and they were forced into a process of sedentarisation, settling often around new ranches. The Xákmok Kásek Community is formed by members of different peoples, who traditionally inhabited and roamed the area then occupied by the Salazar Ranch in the mid-twentieth century. However, they gradually faced critical restrictions to their customary activities due to the privatisation of those lands.

On 31 January 2008, Paraguay declared a big portion of the Salazar Ranch a private wildlife reserve for five years. Around 4,175 hectares of the reserve are included in the 10,700 hectares claimed by the Community since 1990. Nevertheless, the Community was not informed nor consulted. Paraguayan Law No. 352/94, regulating protected rural areas, establishes that private nature reserves cannot be expropriated while the declaration is in force. It also enshrines a prohibition to hunt, fish, and gather, enforced through armed park guards able to make arrests. Therefore, because of the creation of the reserve, the Xákmok Kásek Community had to leave and move to a small and remote land, “25 de Febrero.”

Because of this process of displacement, the religion and culture of the Community – male and female initiation rites, burial methods, shamanism, and more – have “been almost entirely lost” (¶ 178). Since their departure from the Ranch, the State has supplied scarce quantities of water during some time periods or no water at all during others, and in 25 de Febrero there is no water source. In addition, food was not delivered regularly and, when it was, the quantity was scarce, and it was critically deficient in nutrients. Access to health-care services was extremely difficult – the nearest clinic, operating “deficiently, (¶ 203) being 75 km from 25 de Febrero. “For years the children did not receive general medical care or vaccinations,” (¶ 205) resulting in a high mortality rate among children, and they had to receive their education in the open air.

Previous instances

On 28 December 1990, the Community’s leaders filed an administrative action before the Paraguayan Rural Welfare Institute to reclaim their traditional lands under the provisions of Law No. 904/81, also known as the “Indigenous Communities Statute.”

As the competent administrative bodies did not respond to the administrative action, the Community’s representatives went to the Congress of the Republic on 23 June 1999 to demand the expropriation of their ancestral lands. On 16 November 2000, the Paraguayan Senate rejected their request.

Thus, on 15 May 2001, the Community lodged the petition at stake against the State of Paraguay before the Inter-American Commission on Human Rights. On 2 July 2009, the Commission, alleging that Paraguay had not ensured the traditional property rights of the Community and that this had compromised the Community’s integrity and living conditions, asked the Court to declare the State responsible for the violation of Articles 3 (Right to Juridical Personality), 4 (Right to Life), 8(1) (Right to Judicial Guarantees), 19 (Rights of the Child), 21 (Right to Property), and 25 (Right to Judicial Protection) of the American Convention on Human Rights. The Commission asked the Court to order the State to take certain steps as reparation.

On 31 July 2008, the Community filed an action of unconstitutionality before the Supreme Court of Justice against the abovementioned nature reserve declaration, enacted by the State in January 2008. The Prosecutor requested the suspension of the time limit for responding to the action, which remained suspended until the Inter-American Court on Human Rights’ judgment.

Continued on the next page…

Pages: 1 2
Posted on

Case of the Indigenous Community Yakye Axa v. Paraguay 

Date: 17 June 2005 

Court: Inter-American Court of Human Rights 

Citation(s): IACHR Series C no 125 (Official Case No) IHRL 1509 (IACHR 2005) 

Short summary  

The Yakye Axa Indigenous Community brought a complaint against the state of Paraguay, alleging failure to acknowledge and enforce their right to own and occupy their ancestral lands. In ruling for the Community, the Inter-American Commission on Human Rights recognized that the realization of the right to life is necessarily linked to and dependent on the physical environment. The result was a state obligation to adopt positive measures to fulfill a standard of dignified life.  

Summary by: Sophie Sklar

Link to Original Judgement  

Click here to open the case in PDF format

Weight of decision  

This case holds substantial weight in Paraguay and precedential authority in other Inter-American disputes, insofar as it reaffirms the Inter-American Court’s broad interpretation of right to life, which includes consideration of health, environment, education, and food standards.  

Key facts 

The Yakye Axa Indigenous Community had a land claim under consideration since 1993 without resolution. This made it impossible for the Community and its members to own their territory or have adequate access to food and health care.  

Esteban Lopez, leader of the Yakye Axa Community, testified to the Inter-American Court that: 

“Living conditions of the members of the Yakye Axa Community at the place where they currently live are difficult. The settlement is surrounded by cattle ranchers’ land, which they are not allowed to enter. They cannot hunt freely, they have problems finding food and protecting themselves in the country to avoid conflicts with the white persons. The men of the Community cannot feed their children regularly. The witness has to go elsewhere to obtain water and food for the boys and girls. Most members of the Community are jobless.” (¶ 15) 

Previous instances  

On March 3, 1997, the Yakye Axa Indigenous Community filed a suit against firms which had rented the land claimed by the Community, invoking the Paraguayan Constitution, as well as the provisions of Article 14 of Law 234/93 that ratified the International Labor Organization Convention No. 169 on Indigenous and Tribal Peoples in Independent Countries. On April 17, 1997, the Civil and Commercial Trial Court, tenth rotation, Secretariat No. 19, dismissed this action on time of filing grounds.1 

In a separate but related proceeding, the Inter-American Commission on Human Rights filed before the Inter-American Court an application against the State of Paraguay. The Commission alleged that the State has not ensured the ancestral property rights of the Yakye Axa Indigenous Community and its members. The Commission filed the application based on the American Convention on Human Rights, for the Court to decide whether Paraguay breached Articles 4 (Right to Life); 8 (Right to Fair Trial); 21 (Right to Property) and 25 (Judicial Protection) of the Convention with respect to their treatment of the Yakye Axa. The Commission asked the Court to order the State to take certain steps as reparation and to reimburse costs and expenses. 

Summary of holding 

The Court had to establish whether the State generated conditions that worsened the difficulties of the Yakye Axa and, if so, whether it took appropriate positive measures to fulfill its obligations. 

Continued on the next page…

Pages: 1 2
Proudly powered by WordPress