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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

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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.

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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 

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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. 

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Simunek, Hastings, Tuzilova and Prochazka v. The Czech Republic, Communication No. 516/1992, U.N. Doc. CCPR/C/54/D/516/1992 (1995)

Date of judgement: 31 July 1995

Court: United Nations Human Rights Committee

Citation(s): Communication No. 516/1992, U.N. Doc. CCPR/C/54/D/516/1992 (1995)

Short summary 

This decision of the United Nations Human Rights Committee Violation of Article 26 ICCPR; OHCHR decision on Czech law requiring citizenship as a necessary condition for restitution of confiscated property.

Summary by: Yusuf Lahham

Link to original judgement 

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Weight of decision 

This case concerns the Czech Republic, a signatory of the Optional Protocol of the International Covenant on Civil and Political Rights, thus the ruling is legally binding in the sphere of International Law.

Key facts

The applicants, Alina Simunek (a Polish citizen) and Jaroslav Simunek (a Czech citizen), were forced to leave former Czechoslovakia in 1987 due to the actions of the security forces of the Communist regime. 

In 1990, following the fall of the Communist government, both applicants returned to the country in order to reacquire their property through the regulations that had been put in place for returning Czech citizens. However, the applicants were informed that between 1989 and 1990, their property had been auctioned and sold by the District National Committee (DNC) of Jablonece. Whilst some items had been destroyed, the real estate was transferred to Mr Simunek’s employer, the Sklarny factory in Jablonece. 

Previous instances 

An arbitration hearing was arranged between the applicants and representatives of the factory after a complaint was lodged against the DNC. However, the latter’s representatives argued that the transfer of real estate had not been conducted illegally. The applicants then requested an investigation by the district public prosecutor on the grounds that the transfer of property had taken place without court proceedings or a court order. An investigation was launched, and a report was produced in November 1990. It asserted that there had been no violation of the relevant regulations and that the applicants’ claims should be dismissed. 

In February 1991, the regulations were amended by Act 87/1991, which set out the conditions for returning Czech citizens to be entitled to restitution. Section 3(1) of the Act stated that those with State-seized property were only entitled to restitution if they were both citizens of the Czech and Slovak Federal Republic, and permanent residents in its territory. Other sections of the Act set out that where a property is illegally possessed and the claimant requests restitution, the burden of proof would be with the applicant to show that there was a valid claim to the property, and to prove how the property was turned over to the State. 

The Act stipulated that a request for restitution had to be submitted within 6 months of the entry into force of the Act, and failure to do so meant that the claim could be submitted to a tribunal within one year of the date of entry into force of the Act.

The applicants had not submitted a claim for restitution to the local courts as required by the Act, because due to Alina Simunek’s Polish citizenship, they did not fulfil the citizenship and residency requirements set out in Section 3(1).

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