The Torres Strait Islands are an archipelago of over 200 low-lying islands that form part of the state of Queensland in Australia. In May 2019, a group of Indigenous Torres Strait Islanders submitted a complaint before the UN Human Rights Committee (UNCCPR) arguing that the Australian government’s inadequate plans to mitigate greenhouse gas emissions, as well as insufficient funding for adaptation and resilience measures, violated the complainants’ human rights under the International Covenant on Civil and Political Rights (ICCPR). Grounded in the severe climate-change impacts already experienced, the petitioners requested, among other remedies, that the CCPR recommend full reparation and require adaptation and resilience measures to continue the safe existence of the petitioners on these islands.
Non-economic loss and damage in the Torres Strait case
As climate threats have accelerated, the idea of “loss and damage” has begun to take hold in climate litigation efforts. Loss and damage (L&D) refers to both short-term and long-term impacts of climate change that extend beyond communities’ adaptive capacities, such as the sudden devastation wrought by a heat wave or the long-term consequences of sea level rise. L&D can be divided into two equally important categories: economic and non-economic losses and damages (NELD). Both categories have increasingly appeared in climate litigation cases seeking compensation for damages in recent years, such as the Torres Strait case, Lliuya v. RWE, Falys v. TotalEnergies, Estado Libre Asociado de Puerto Rico v. Exxon Mobil, and County of Multnomah v. Exxon Mobil.
The Torres Strait case provides a unique example of a dispute that both incorporated NELD and resulted in a recommendation for compensation. The outcome of the case also reveals an important and necessary first step in human rights practice: specificity and valuation of NELD harms.
The Warsaw International Mechanism notes that NELD can occur at the individual (e.g., loss of life, health), societal (e.g., loss of territory, cultural heritage), or environmental level (e.g., loss of biodiversity). The Torres Strait case included all of these levels. In the complaint (¶¶ 52, 57), examples of NELD included the destruction of family graves and the scattering of ancestral remains due to tidal surge and flooding; the fear and anxiety caused by erosion approaching homes; the loss of communal gathering places and the concomitant feeling that “a piece of us is gone”; the loss of elder and traditional knowledge on gardening, seasons, weather patterns, and sources of food due to destabilized weather systems, saline intrusion, and land loss; the reduced quantities of specific marine animals for cultural ceremonies and traditional subsistence due to saline intrusion and coral bleaching; and the reduced ability to practice and pass on their culture. The risk of future NELD can also be seen in the devastating threat of forced displacement, which would amount to cultural extinction and render the Torres Strait Islanders “a dying race of people” (¶ 80).
The difficulty of assigning a monetary value to these personal losses makes providing adequate compensation challenging. Options for valuing NELD in economic terms often require comparing non-economic losses to economic ones, distributing “willingness to pay” questionnaires to affected communities, and comparing estimates of losses across different geographical locations. These costly options often fail to account for how “[i]tems can have different values across time, space, and possible states of the world.” Moreover, communities with fewer financial resources will often state that they are “willing to pay” less to avert or rectify NELD than their higher-income peers. Such valuation difficulties have historically hindered the incorporation of NELD into climate litigation and other efforts to recoup damages. In the Torres Strait complaint, for example, the petitioners gave no estimated value of the NELD suffered.
A symbolic NELD victory for Torres Strait Islanders
On September 23, 2022, the UN CCPR delivered a partial victory to the complainants when it found that Australia’s failure to protect them from adverse climate impacts violated the Islanders’ rights to enjoy their culture and be free from arbitrary interferences with their private life, family, and home (¶¶ 8.12-8.14, 9). The CCPR considered the Islanders’ special relationship with their territory and dependence on marine resources, crops, trees, and ecosystem health as components of their traditional way of life subject to the ICCPR’s protections (¶ 8.10). Multiple forms of NELD underscored this finding, as well as the violation of cultural rights, including anxiety over erosion near homes, the need for communion with deceased relatives through ancestral grave upkeep, and the ability to transmit this traditional way of life to future generations (¶ 8.12-8.14). The CCPR’s findings demonstrate an understanding of not only the connection between people, places, and cultures but also underscore how those who are most affected impart meaning on what constitutes a loss.
While the CCPR’s decision demonstrates a remarkable willingness to engage with NELD in detail, the same is not true for the remedies provided. The CCPR granted many of the requests for relief, but the “adequate compensation” that was ordered was noted in a single sentence. There was no specificity as to the amount of compensation, nor whether that amount covers the NELD claimed. In other words, the CCPR did not put a price on the intangible, like the fear and anxiety caused by erosion or the pain caused by the loss of family burials and scattered remains.
The CCPR’s decision remains historic. It is a landmark case validating the idea that climate change impacts and insufficient state action in response thereof can violate human rights and that the source of those violations can derive, in part, from NELD. Nevertheless, questions persist: was NELD both a cognizable and compensable harm in this case? If so, which NELD is compensable? Moreover, what monetary value was assigned to those harms, and what methodology determines the adequacy of such values?
Australia’s response to the UN CCPR’s decision, unfortunately, does not help to answer these questions. While Australia recognized the validity of the CCPR’s findings about cultural loss, it did not express any intention to comply with the CCPR’s compensation recommendation. Instead, the government wrote that “the Committee did not apply an appropriately high threshold in considering the obligations to take positive measures” and concluded that they, in collaboration with First Nations people, would achieve “[t]he most appropriate remedies.”
Recent scholarship on states’ responses to UNCCPR decisions finds that Australia’s response is not unique; compensation is the least commonly implemented form of redress in cases before the CCPR and other UN human rights treaty bodies. Scholars have also speculated that states’ low compliance with compensation orders might exist because “[UN treaty bodies] typically do not specify the quantum of compensation to be paid to the victim of a violation, which allows respondent states to default on payments by claiming uncertainty as to the amounts to be disbursed.” In the case of the Torres Strait Islanders, neither the complainants nor the CCPR stated a specific quantification of NELD for compensation purposes.
The Torres Strait case demonstrates that greater specificity is needed when ordering compensation for non-economic harms so that a body of precedent is created on how to value this important dimension of climate impacts. Now that this precedent exists, the valuation of NELD for dispute purposes similarly represents a fertile ground for scholars and practitioners to plant the seeds of specificity.