Ioane Teitiota v New Zealand and the evolving concept of the climate change refugee

The issue of climate change has been recognised as one of the most serious issues faced by the international community. The United Nations Framework Convention on Climate Change 1992 (UNFCCC) states in its preamble that: it is ‘[acknowledged] that change in the Earth's climate and its adverse effects are a common concern of humankind’. [1] However, the UNFCCC makes no mention of how climate change affects vulnerable populations, which may, consequently, be forced to leave their country because of this phenomenon. The 2016 Paris Agreement preamble does recognise that migration may occur because of climate change,[2] but has no clear policy on the matter.


Hence, much uncertainty prevails concerning any potential future increase in the number of refugees or migrants arising as a result of degrading conditions due to climate change. This Article will limit its scope to ‘refugeehood’ within the context of climate change, and whether the concept of climate refugees may one day be addressed in any of the existing legal frameworks, i.e., the Refugee Convention[3], or whether new frameworks are likely to be established to ensure their recognition internationally.


Allegedly, there is an ongoing debate within the climate change discourse on whether the creation of a climate change refugee framework, in anticipation of such a reality, is truly the best way forward. Within the existing climate change regime, there has been much attention towards the undertaking of mitigation and adaptation measures. [4] However, there is often a larger focus on mitigation rather than adaptation. Some scholars suggest that more focus should, perhaps, be placed on adaptation within the context of population displacement due to climate change. [5] Instead of seeing greater migratory flows as a problem, the international community could perhaps begin to see it as being a part of the solution. [6]


There are suggestions that instead of focusing on the worst outcome possible: notably, the submersion by water of, i.e., the small Pacific Islands which would lead to people fleeing this situation; perhaps, we should be actively working to curb climate change and its effects by adapting to the new reality before us to allow these populations to remain within their countries. [7] In any case, it seems clear that the international community must adapt to the changing realities of the world and work to mitigate the extreme harms that affect our environment. However, it is also important to anticipate the potential rise in refugeehood because of climate change, which seems inevitable, as states are slow in reducing their emissions to achieve the goals set in various climate conventions.

Current Refugee Framework

The notion of a climate change refugee has been a source of major debate, notably, on whether one can benefit from refugee status due to climate change. Many posit that refugeehood is only open to those who fall within the ambit of Article 1(A) [2] of the 1951 Refugee Convention’s definition[8]. Currently, climate change refugees cannot benefit from this Convention as they do not fit the definition. The definition is quite limited in its scope, as it was created following World War II, and leaves no room for manoeuvre in what is understood as persecution. [9] Simply stated, 'a person fleeing the effects of climate change is not escaping his or her government, but rather is seeking refuge from […] States that have contributed to climate change' [10]. Hence, the Convention as it currently stands does not cover climate change refugees. [11]


It has been suggested that the Convention should be altered to catch up with the changing realities of the planet [12], i.e., as seen from the impact of climate change. This has been strongly opposed due to fears that improper protection will then be given to refugees that are currently recognised under the Convention. [13] Furthermore, others posit that this would not resolve the issue as many people that have been affected by climate change become internally displaced and do not cross any international border; therefore, they would not be able to benefit from the Convention’s protection. [14]


Worldwide, it also seems that such an expansion of the definition is not accepted. Various national courts, notably in Australia and New Zealand, have found that the definition cannot be expanded to include situations of displacement resulting from climate change. [15] One notable case in New Zealand, went up to the Human Rights Committee which, although found that the definition could not be expanded in this way, did open doors for potential future recognition of climate change refugees under international law. [16]

Ioane Teitiota v New Zealand – A positive step forward?


Although the Refugee Convention does not recognise the existence of climate change refugees, the Human Rights Committee (HRC) potentially opened a door to the possibility of such a category coming into existence. In the case of Ioane Teitiota v New Zealand, the HRC, ultimately, found that Mr Teitiota’s claim to not be sent back to Kiribati, after being denied refugee status in New Zealand, could not be enforced as sending him and his family back to Kiribati would not violate his Article 6 right to life. [17]


Interestingly, Ambassador Duncan Laki Muhumuza dissented and claimed that Mr Teitiota and his family should not be sent back to Kiribati as they would be faced with a real risk of being stripped of their right to life in the process. [18] He famously stated that: 'New Zealand’s action is more like forcing a drowning person back into a sinking vessel, with the “justification” that after all there are other voyagers on board'.[19] Hence, there is clear consensus that something must be done to secure the rights of climate change refugees.


It is important to note that the HRC did leave open the possibility that climate change refugees may become internationally recognised in the near future. It has been claimed that they opened up the possibility of recognising climate change refugees through the use of the non-refoulement obligation which is found in human rights law.[20] This obligation, simply, means that a state is not allowed to send a person back to where they came from if they may suffer torture, cruel, inhuman or degrading treatment as a result.[21]


Although this judgment is not a legally binding one, it does send a signal as to where states’ obligations lie in this context and how international law could hold them accountable.[22] Notably, the leeway given in the judgment in favour of such a possibility and the various dissenting judgments do suggest that there is a possibility of expanding this idea through the HRC jurisprudence, but also, through other human right courts and legal instruments.[23] Although the unfortunate outcome of this case has not allowed people that were displaced because of climate change to enjoy the protections usually accorded to refugees, it did not affect the impact of the case which has, nevertheless, been very positive in that it has opened the possibility that such jurisprudence should soon follow. [24]

Concluding Thoughts


International refugee law remains a very inflexible legal area whereby judicial creativity is necessary. Indeed, it is becoming increasingly recognised that the issue of displacement because of climate change must be addressed and that a framework should, eventually, be implemented to ensure that people such as climate refugees are protected. Even if the international community continues to adapt its practices to climate change and does its best to prevent it from worsening, the impacts of climate change have already been felt and will, ultimately, lead to the displacement of many more people. The international human rights regime is, therefore, seen as the route through which a solution to the issue could possibly be given [25] but we are (yet) to see how it will pan out to the benefit of climate change refugees.





Endnotes



[1] United Nations Framework on Climate Change 1992, Preamble (p.2).

[2] United Nations Paris Agreement 2015, Preamble (p.1).

[3] Convention Relating to the Status of Refugees (adopted 28th July 1951, entered into force 22nd April 1954), 189 UNTS 137 (Refugee Convention)

[4] (N1), Article 4(1)(e) and Article 4(2)(a).

[5] Carol Farbotko & Heather Lazrus ‘The first climate refugees? Contesting global narratives of climate change in Tuvalu’ (2012) 22 Global Environmental Climate Change 382, 383.

[6] Ibid.

[7] Ibid. 388.

[8] (N3).

[9] Angela Williams, ‘Turning the Tide: Recognising Climate Change Refugees in International Law’ (2008) 30:4 Law and Policy 502, 508.

[10] Jane McAdam, ‘Refusing ‘Refuge’ in the Pacific: (De)Constructing Climate-Induced Displacement’ in Étienne Piguet et al. (eds.) Migration and Climate Change (Cambridge University Press, 2011), 7.

[11] Bonnie Docherty & Tyler Giannini, ‘Confronting a Rising Tide: Proposal for a Convention on Climate Change Refugees’ (2009) 33 Harvard Environmental Law Review 349, 393.

[12] Ibid.

[13] Ibid.

[14] (N10), 14.

[15] Ibid. 14-15.

[16] Human Rights Committee ‘Views adopted by the Committee under Article 5(4) of the Optional Protocol, concerning communication No.2728/2016’ CCPR/C/127/D/2728/2016.

[17] International Covenant on Civil and Political Rights (adopted 16th December 1966, entered into force 23rd March 1976) 999 UNTS 171 (ICCPR), Article 6 and (N16), [10].

[18] Individual Opinion of Committee member Duncan Laki Muhumaza (Dissenting) in (N15) [5].

[19] Ibid. [6].

[20] Gabriella Citroni, ‘Human Rights Committee’s decision on the case Ieoane Teitiota v New Zealand: Landmark or will-o’-the-wisp for climate refugees?’ (2020) 75 QIL, Zoom-in) accessed 15th April 2021.

[21] OHCHR, ‘The principle of non-refoulement under international human rights law’ (OHCHR) accessed 13th November 2021.

[22] Lyons K., ‘Climate refugees can’t be returned home, says landmark UN human rights ruling’ (The Guardian, 20th January 2020) accessed 15th April 2021.

[23] (N20).

[24] (N22).

[25] Camilla Schloss, ‘Climate migrants – How German courts take the environment into account when considering non-refoulement’ (Völkerrechtsblog, 3rd March 2021) ) accessed 13th April 2021 and Stellina Jolly & Nafees Ahmad, Climate Change Refugees in South Asia (Springer Nature Singapore Pte Ltd. 2019), 78.

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