The Potential of a Future International Legal Basis for Granting Refugee Status to Individuals Fleeing Climate Change Situations

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The Potential of a Future International Legal Basis for Granting Refugee Status to Individuals Fleeing Climate Change Situations: Ioane Teitiota v New Zealand CCPR/C/127/D/2728/2016

The Nexus between Climate Change, Human Rights and Migration

Climate change is one of the most pressing issues of our time. Often when discussing climate change, its monumental impact on human rights is neglected from the conversation. However, climate change is a huge human rights issue, the impact of which is only beginning. According to the World Bank, more than 140 million economically disadvantaged people from sub-Saharan Africa, South Asia and Latin America will be forced to migrate internally due to climate change impacts including water shortages, decreasing agricultural productivity, and rising sea levels by 2050. In just 2019, it was reported that there were 24.9 million weather related displacements caused by climate change. Despite the cataclysmic conditions resulting in areas most heavily impacted by climate change, migrants fleeing climate change disasters are not yet afforded protection under international law. Unfortunately, it is often those who have contributed least to the issues who are affected the most when it comes to climate change, including Small Island Developing States (SIDS). In recent times the SIDS have been predicted to be completely overcome by climate change as a result of changes to ecosystems. As a result of this, there has been great emphasis placed on climate change displacement within policy making, litigation and academic literature as part of the wider discussion about the nexus between human rights and climate change.

The Non Refoulement Guarantee
The threat has prompted the domestic tribunals of several states to decide whether national authorities are prevented from expelling people to places where they face serious risks arising from the impacts of climate change. Put simply, courts have been forced to consider whether the non-refoulement guarantee can apply in situations where an individual is fleeing a state where conditions are or will be seriously affected by climate change. Non-refoulement is a principle of international law which prohibits an individual from being sent back to any country where they will face a risk of persecution, torture, or any threat to their right to life. The right to non-refoulement is said to be a jus congens norm but it is additionally codified in several international treaties and instruments. Furthermore, regional human rights courts and UN Treaty Monitoring Bodies have expanded States’ protection obligations beyond the ‘refugee’ category, to also protect persons at risk of arbitrary deprivation of life, torture or cruel, inhumane, or degrading treatment or punishment. This is known as complementary protection, as it complements the protection afforded within the legislative measures

Teitiota v New Zealand
The issue of complementary protection with regards to climate change related displacement was at the forefront of the 2020 case of Ioane Teitiota v New Zealand .The author in this case communicated to the Human Rights Committee in 2016 that his ICCPR Article 6 right to life had been breached by New Zealand in their decision to not to grant him refugee status and return him and his family to their place of origin, the Republic of Kiribati on the island of Tarawa (a SIDS). He had applied to the New Zealand Immigration and Protection Tribunal for protection as a refugee fleeing climate change. To contextualize this, an expert of climate change in Tarawa testified at trial that the population of Tarawa was growing at a rapid rate which was causing issues for the fresh water supply. An increased level of waste contamination was affecting the fresh water underground placing a heavy burden on the scarce amount of fresh water. Areas in South Tarawa were uninhabitable because of a rise in the sea level and subsequent flooding. As a result, 60% of South Tarawa’s population had their water supply rationed. The tribunal considered their obligations under the 1951 Convention Relating to the Status of Refugees (hereinafter 1951 Convention) and the International Covenant on Civil and Political Rights (hereinafter ICCPR) and rejected his application. He subsequently appealed to all the available domestic bodies prior to his Human Rights Committee (HRC) complaint.

Mr. Teitiota proceeded to file this complaint with the UN HRC, arguing that by deporting him, New Zealand had violated his right to life under Article 6 ICCPR. The Committee rejected this by majority as they did not deem New Zealand to have breached the author’s rights at the time of the facts. While there was no dispute that sea levels rising had impacted the quality of life in Tarawa and would continue to do so, they found the threat of violence was not sufficiently personable to the claimant; that potable water, whilst scarce, was nevertheless sufficiently available, and that although salt water inundation of the soil made it “difficult to grow crops, it was not impossible”. Nevertheless, this decision is still hailed a landmark decision as it is the first time that it has been internationally recognized that climate change effects could give rise to violations of the right to life. The Committee acknowledged that climate change impacts could potentially violate Article 6 ICCPR and, whilst this case did not meet this threshold, potentially allow future climate refugee claims. As was expressed by Committee expert Yuval Shany, “this ruling sets forth new standards that could facilitate the success of future climate change related asylum claims”.

Furthermore, it is the first international recognition that impacts of climate change affecting migrants within their state of origin could potentially trigger binding obligations of non- refoulement on the states they enter. The landmark statement was: “The Committee is of the view 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”.

The significance of this ruling can be observed in its contrasts to cases which came before it. For example in the case of RTT, the tribunal stated “the environmental problem of the rise in sea level around Tuvalu is not Refugee Convention related”. However, the significant differentiator with this case is it was taken under the 1951 Refugee Convention whereas Teitiota’s case was taken under the ICCPR. The 1951 Convention and its 1967 Protocol does not provide any potential for climate refugees in its definition given that it requires the individual be facing persecution, climate change is not one of the accepted reasons under this definition and because climate change migration can be internal rather than external. This further outlines the significance of a potential international mechanism which can be relied upon by refugees under the ICCPR.

At present, a lacuna exists within international law which deprives climate refugees, a legitimate and equally deserving category of refugee, of the level of protection afforded to other categories of refugee. Due to the difficulties the exist concerning the adaption of Human Rights Law to include climate refugees under its protection it is crucial to consider what will happen if the existing refugee protections are not expanded. Climate change is a conflict multiplier, and a lack of action by the international community with regards to climate refugees will eventually lead to more and more of these individuals qualifying under the current refugee definition. Kirabati, for example, has been reported as experiencing rising levels of violence due to land and resource scarcity. Ioanne Teitiota’s case has brought the idea of a ‘climate refugee’ into the contemporary human rights sphere and established a precedent for a future successful claim for climate refugee status under ICCPR Article 6 right to life.

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