Blog post by Sabrina P. Vecchioni. Lawyer and member of the Interdisciplinary Network of Human Rights –REDii. Between 2012 and 2018 she worked as a defense lawyer for asylum seekers and refugees in the Commission for Integral Assistance and Protection of Refugees of the Public Ministry of Defense in Argentina.

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On January 20th, the United Nations Human Rights Committee published the decision on the case presented by Mr. Ioane Teitiota – national from Kiribati – against the rejection of the asylum petition and subsequent expulsion by the New Zealand authorities. The complaint was about the affectation of the right to life and integrity in accordance with articles 6 and 7 of the International Covenant on Civil and Political Rights, considering the gravity of changing circumstances in Kiribati due to climate change.

Despite the adverse resolution of the communication, it should be noted that the present case is the first one presented and analyzed by the Committee that considers the complexities that climate change poses to the full validity of International Human Rights Law and International Refugee Law.This sets an important potential path for future cases to draw on these principles and argue a case for non-refoulement in climate change contexts.

That is why this post will seek to analyze the facts and legal circumstances that led to the decision of the Committee, as well as, if the resolution constitutes a path to the inclusion of climate change as a “reason for persecution” in the terms of the International Convention on the Status of Refugees of 1951.

Climate change and forced displacement

In recent years the number of asylum petitions has arguably increased as a result of climate change. These forces that are presumed to be nature’s own have put in check the international protection that refugee status seeks to ensure. The Internal Displacement Monitoring Center reported in 2018 that, the number of internally displaced persons increased by 18.8 million compared to 2017, largely as a result of natural disasters associated with climate change, causing population displacements and increasing their vulnerability.

Those who are forced to move from their countries of origin under these conditions, often call on the asylum system for international protection when their States of nationality are not in a position to guarantee access to basic rights. In these cases, the response of the receiving States has been none other than to deny requests for protection in the understanding that refugee status is not the applicable legal remedy given the current incompatibilities of framing the objective situation that climate change produces within the classic definition of refugee established in article 1 (A) 2 of the 1951 Refugee Status Convention and its 1967 Additional Protocol.

Climate change and regulatory frameworks: Public International Law, International Human Rights Law and International Refugee Law

The question at this point is: how can existing regulatory frameworks respond to the needs of the population forced to leave their homes as a result of climate change? Nowadays, the burdensome consequences of the phenomenon have been recognized as an affection of good governance – the need for states to design and implement public policies aimed at carrying out concrete actions that allow their populations to continue living within their borders, accessing and enjoying their rights – as well as the responsibility of the international community in giving an answer and providing assistance to those States that, in addition to the consequences of climate change, are affected by situations of armed conflict or serious internal disorders that affect democratic government.

Due to this background, the existing regulatory frameworks require a harmonious interpretation and the interrelationship between international human rights law and international refugee law cannot be denied. However, there remains a barrier in the interpretation that is made of the classic definition of refugee contained in the 1951 Convention and its 1967 Additional Protocol, which has been applied by national authorities in an adverse sense to the recognition of climate change as a situation that would merit the recognition of protection status. Since there would not be a situation of persecution under conventionally recognized grounds, the so-called category of “climate refugees” is nonexistent in international refugee law.

This is not an obstacle to promoting protection mechanisms based on human rights treaties when the life and integrity of the person are at serious risk -through the International Covenant on Civil and Political Rights, the Convention against Torture, among others. The reluctance to promote concrete actions to include the problem in the definition of refugee is observed, despite the work carried out by UNHCR in the recognition of the rights of people displaced by natural disasters and the special vulnerability they present and the position of the international community in this regard, which was evidenced in the Refugee Global Compact (2018), where the majority of States in the United Nations General Assembly referred to the concern that the situation generates recognizing that “climate change, the environmental degradation and the increase in natural disasters are factors that combined with others are refugee movement generators”.

The case of Ioane Teitiota before the New Zealand courts

In 2007, as a result of the serious consequences of climate change in Kiribati, Mr. Teitiota and his wife decided to move to New Zealand and applied for asylum claiming the impossibility of returning. This was due to: the lack of access to drinking water, the overpopulation of the island of Tarawa (the main geopolitical center of the island chain), the increase in sea level and the flooding of large areas of land formerly destined for agriculture, increased pollution, and the impossibility of government authorities to provide a lasting solution to this situation despite having presented programs against this phenomenon. Mr. Teitiota’s statements are confirmed by the Group of intergovernmental experts on the evolution of the climate change – IGEC – which indicated that by 2050 the Kiribati’s island chain would disappear due to sea level rise.

The Immigration and Protection Court of New Zealand negatively resolved the appeal against the refusal of asylum of Mr. Teitiota and his wife in 2013. After analyzing the evidence presented by the applicants and citing the expert opinion on the burdensome consequences of climate change in Kiribati, the Court established that in the present case, despite verifying the credibility of the applicant’s account regarding the objective situation in their country of origin, there would be no “persecution” under the terms of the 1951 Convention. That is: there was no factual situation caused by a state and / or non-state agent that made him reasonably fear about his life and integrity if he returned to his country of origin.

The Court noted that there is a complex relationship between vulnerability resulting from natural disasters and the actions of governments that could lead to their inclusion within the conventional definition of refugee. In many cases, natural disasters and environmental degradation occur in countries that are in armed conflict, linked to the action of armies and / or armed groups in the course of the fighting. States with anti-democratic regimes often implement economic measures that affect the development and production of food, or the deprivation of humanitarian assistance in the face of natural disasters, marginalizing sectors of the population considered to be opponents. In this scenario, international humanitarian assistance can be interpreted as an interference in the internal policy of the State, further aggravating the particular vulnerability of the population, which would allow its inclusion in the statute of protection.

The Court also noted that “[…] the requirement of the existence of some form of human action does not imply that the degradation of the environment, associated with climate change or not, can never lead to the recognition of refugee status” (Para. 55). However, there are no rules on the possibility of applying the definition of refugee status to these situations, so in these cases the applicant is required to establish through concrete evidence that meets the regulatory requirements of international refugee law. That is, the standard of proof at the head of the asylum seeker is increased, who must prove not only that there was a (past) violation of their human rights, but also a real possibility of individual and / or systematic violation of their rights in case to return and the impossibility of obtaining state protection. All of which translates into the imposition of the responsibility of framing their case in the regulations and with it, the success of such a company.

From the evidence gathered by the Court regarding the actions of the State, it was concluded that the government had adopted in 2007 the National Program of Adaptation of the United Nations Framework Convention on Climate Change demonstrating its willingness to respond to the problem of climate change and its consequences in its population, not being able to impute the inaction of the government or an action contrary to rights as a cause of the need for protection, while legislation had been adopted to respond to this situation, although nothing was established about the effectiveness of the program.

Finally, the Court analyzes the absence of violations of Mr. Teitiota’s rights under the International Covenant on Civil and Political Rights, establishing that the risk against the life and integrity of the applicant and his family in case of returning to his country of origin, due to the excessive increase in sea level and the floods that affect the supply of drinking water, sanitation, food and access to housing, it would not be “imminent”: “[…] in relation to the asylum application, there is no evidence that the situation in Kiribati is of such precariousness to mean that his life is ‘in danger’ ”.

This decision was appealed by Mr. Teitiota to the High Court and when the appeal was rejected, it was presented to the New Zealand Supreme Court that resolved it in 2015. Despite the new evidence presented by the applicant on the deterioration of the conditions of life in Kiribati as a result of climate change and the ineffectiveness of the National Program, the Supreme Court understood that there was no affectation of the law in general terms or an affectation of the public interest. Regarding the application of refugee status under the 1951 Convention and New Zealand legislation, it was pointed out that there was insufficient evidence that if Mr. Teitiota and his family returned, they would face a serious risk against their lives and integrity, or that the Kiribati government was not taking the necessary measures to protect its citizens from the effects of environmental degradation. However, the Supreme Court left open the possibility that in another case of similar characteristics could be resolved recognizing the need for international protection.

Human Rights Committee’s decision

On September 2015, after having resolved the last instance of appeal, Mr. Teitiota initiated a communication before the United Nations Human Rights Committee -hereinafter the Committee- alleging that New Zealand had violated his right to life and integrity, contained in the International Covenant on Civil and Political Rights with his expulsion and return to its country of origin.

The Committee analyzed the case establishing compliance with admissibility under the Optional Protocol and its Regulations, since in accordance with the evidence provided by Mr. Teitiota, as well as the evidence provided by the State party, the existence of a risk against his life under the terms of article 6 of the Covenant upon being returned to Kiribati under the conditions prevailing in that country that would enable the examination of the situation.

Once the admissibility analysis was completed, the Committee began the substantive analysis of the communication in accordance with the standards established in its general observations and other previous cases. The Committee understood that should submit to the analysis if the decision of the New Zealand authorities to deported Mr. Teitiota had been an arbitrary, erroneous or unfair decision and if the applicant had faced a real risk and / or threat against his life in the terms of article 6 of the International Covenant. To do so, The Committee analyzed the sentences of the Immigration and Protection Court, the Court of Appeals and the Supreme Court, seeking to establish whether there had been any arbitrariness or error. After that, the Committee established that the New Zealand courts complied with the expected standard of evidence at the time of analyzing the situation in Kiribati and the devastating effects of climate change, in particular the impact on the population’s basic rights such as access to water, sanitation, food and housing.

The Committee noted that while the burdensome living conditions in Kiribati should be recognized for the general population, Mr. Teitiota had failed to establish that his return to that country constituted a real risk against his life and safety, such as his family. The lack of information about the inability to access drinking water and sanitation, and decent housing, was noted. The information provided to the Committee has not indicated that upon returning to Kiribati, Mr. Teitiota was at serious risk of living in poverty, being deprived of adequate food or subjected to a situation of extreme precariousness that would affect his right to a decent life.

The Committee also noted that the decision of the New Zealand courts found support in the situation of that country in 2015, which did not imply a serious risk to their lives, which does not preclude the understanding that the effects of climate change can expose individuals to violations of their rights in accordance with the provisions of articles 6 and 7 of the International Covenant, leading to the validity of the principle of non-refoulement by the host States. Especially, when the risk of a country being submerged below sea level, constitutes an extreme danger that affects the right to life and the dignity of the person.

Furthermore, the Committee analyzed whether the decisions of the New Zealand courts met the standards of legality and due process, which once fulfilled allowed to establish that there was no imminent or current risk – at the time of deportation- that it was affected the right to life and integrity of the applicant.

The questions left by this decision were summarized in the dissenting opinion of the Committee member Mr. Duncan Laki Muhumuza, who noted that Mr. Teitiota faces a real risk against his life and integrity as a result of the conditions prevailing in Kiribati. Climate change and its effects on the access and enjoyment of basic rights such as water, sanitation, food and housing should not be merited with a standard of future potential tending to discredit current consequences, but with a vision that encompasses the phenomenon in its whole and not in the simple requirement of proof in the applicant’s head regarding whether he currently lives in poverty, does not have access to drinking water, health services, and how it affects his life. The situation of the applicant and his family in contrast to the facts and circumstances of the situation in his country of origin is revealed as one of those that seeks to protection under the International Covenant. Moreover, the internal policies of the Kiribati government are insufficient to respond to the serious situation facing by the population.

However, for the majority of the members of the Committee, at the time of Mr. Teitiota’s deportation, a situation of imminent affectation of his life and integrity that would allow the application and validity of the principle of non-refoulement in the terms of articles 6 and 7 of the International Covenant was not verified in Kiribati. According to the Committee in the general comment No. 31 parag 12  (2004), the risk must be personal, it cannot derive merely from the general conditions in the receiving State, except in the most extreme cases, and that there is a high threshold for providing substantial grounds to establish that a real risk of irreparable harm exists. They stated:

“The obligation not to extradite, deport or otherwise transfer pursuant to article 6 of the Covenant may be broader than the scope of the principle of non-refoulement under international refugee law, since it may also require the protection of aliens not entitled to refugee status.  Thus, States parties must allow all asylum seekers claiming a real risk of a violation of their right to life in the State of origin access to refugee or other individualized or group status determination procedures that could offer them protection against refoulement”.

In the present case, the Committee established that the damages and risks alleged by Mr. Teitiota could occur within 10 or 15 years, so that the standards of validity of the principle of non-refoulement were not met, nor in the International Refugee Law, nor according to the Covenant.

Some reflections on climate change, “climate refugees” and refugee status

Mr. Teitiota’s case is one of many asylum applications that claim for an interpretation of the existing regulations regarding the recognition of refugee status. Although there are numerous attempts by the international community, such as by the UNHCR, in terms of standards applicable to internally displaced people due to climate change, we can observe a different scenario when people cross a border. When that happens, the test required for applicants seems impossible to achieve. The asylum petitioners are required to prove the lack of specific state policies and actions, as well as that the situation in their countries is of such magnitude that it constitutes a serious, real and imminent risk against their lives.

The truth is that in the current state of international refugee law, a modification in the interpretation of the 1951 Convention that allows the recognition of refugee status in cases of forced displacement due to climate change is not visible in the short term and, according to the decision of the Committee under analysis, we cannot establish the validity of the principle of non-refoulement, given the threshold of proof required of asylum seekers, so we are in an interpretive alley where the person is affected by both decisions and indecisions of their country of origin, as of the receiving state.

References

AF (Kiribati) [2013] NZIPT 800413, New Zealand: Immigration and Protection Tribunal, 25 June 2013, available at: https://www.refworld.org/cases,NZ_IPT,5dad6b754.html 

Ioane Teitiota v. The Chief Executive of the Ministry of Business, Innovation and Employment, [2015] NZSC 107, New Zealand: Supreme Court, 20 July 2015, available at: https://www.refworld.org/cases,NZL_SC,55c8675d4.html

Historic UN Human Rights case opens door to climate change asylum claims, available at: https://www.ohchr.org/EN/NewsEvents/Pages/DisplayNews.aspx?NewsID=25482UN Human Rights Committee decision on climate change is a wake-up call, according to UNHCR, available at: https://www.unhcr.org/news/briefing/2020/1/5e2ab8ae4/un-human-rights-co

Photo: Flikr

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