The Importance of Transforming the Status of Climate Migrants Under International Law

Credit: Stock Image

The effects of climate change are felt worldwide to varying degrees. For some, a particularly hot day can cost them a few extra dollars on their electricity bill, while for others, saltwater intrusion can entirely eliminate their source of income. Climate change is already jeopardizing many jobs, food sources, and even lives. Indeed, the crisis has forced extensive migration as people move in search of better lives or for the sake of survival. However, the legal standing of those who migrate due to climate change is complex and unclear. The United Nations (UN) Human Rights Committee (HRC) case Teitiota v. New Zealand addressed the status of these individuals under international law, when a man from the Republic of Kiribati was denied asylum in New Zealand and deported. While the HRC decision affirmed New Zealand’s right to deport Teitiota, it maintained the possibility of victims of climate displacement being protected under refugee law. As it stands currently, there is no international legal protection for those who migrate due to climate change, and “climate refugees” is not a legally recognized term. Therefore, they are referred to as “climate migrants.” Refugee status for climate migrants would grant them protections under international law, including non-refoulement and fair asylum procedures. International law must establish a concrete method for providing protection to climate migrants – including formally recognizing the existence of “climate refugees” – which addresses the unique and nuanced nature of a threat which is indiscriminate in its victims, cannot be measured with traditional risk assessments, and supersedes national action.

The primary definition of a refugee under international law is derived from the 1951 Refugee Convention. Article 1(A)(2) describes a refugee as an individual with a “well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion” who is unwilling or unable to return to the country of their “former habitual residence.” Article 33 discusses non-refoulement as well, stating that no state “shall expel or return (“refouler”) a refugee in any manner whatsoever to the frontiers of territories where his life or freedom would be threatened on account of his race, religion, nationality, membership of a particular social group or political opinion.” Notably, these definitions of a refugee pertain primarily to those marginalized or threatened due to their identity; therefore, their application to climate is unclear due to the universal nature of the threat. Climate change is a threat multiplier, and thus often exacerbates threats for marginalized or under-resourced communities. However, due to the universality of climate change, its impacts are not always correlated directly to identity, and therefore the refugee definition does not have a clear application in the context of climate migrants.

In addition, The UN International Covenant on Civil and Political Rights (ICCPR) is directly relevant to the status of climate migrants. Article 6 affirms each individual’s, “inherent right to life” which is “protected by law.” The “right to life” detailed in the ICCPR is interpreted in international law as the right to a dignified life. The ICCPR’s definition is more directly applicable to climate change than that of the Convention because the impacts of climate change often either threaten an individual’s life or prevent them from living a dignified life. Additionally, the Covenant can be applied to any individual whose life is at risk, regardless of the nature of the threat, unlike the Refugee Convention, which primarily applies to identity-related threats.

The 2015 UN Human Rights Committee case Teitiota v. New Zealand directly addresses the status of climate migrants under international law. Iaone Teitiota is a national of the Republic of Kiribati who fled the island of Tarawa to live in New Zealand due to the effects of climate change. Teitiota applied for refugee status for himself and his family. The New Zealand Immigration and Protection Tribunal decided that he didn’t meet the definition of a refugee under the Refugee Convention, nor a protected person under the ICCPR. The view was affirmed by the Human Rights Committee, yet the decision did not preclude the possibility of non-refoulement protecting climate migrants.

In their decision, the Tribunal first examined the Republic of Kiribati’s 2007 National Adaptation Programme of Action under the UNFCCC. The plan recognized extensive adverse climate effects such as forced relocations and malnutrition. Next, they turned to Teitiota’s testimony. Teitiota explained that he had been unable to find work since the mid-1990s, had moved into a traditionally-constructed home with his wife’s family in Tarawa, and had observed a massive influx of residents to the island due to it being the site of most of Kiribati’s government services, including hospitals. Additionally, Teitiota’s family largely relied on subsistence farming, and there were significant amounts of coastal erosion, extreme flooding, salinization of wells and destruction of crops. After hearing in the news that there would be no future for life in their country, Teitiota and his wife decided to leave for New Zealand. Teitiota accepted that his experiences were common for residents of Kiribati, and believed that the government was powerless to stop sea level rise.

The Tribunal concluded that Teitiota did not face a real risk of persecution on return to Kiribati, and therefore was not a “refugee” as defined by the Refugee Convention. Teitiota had not been subjected to a land dispute in the past, and therefore, despite his concerns about overpopulation, lacked proof that he faced a real threat of physical harm from disputes in the future. Importantly, the Tribunal also found no evidence that he was unable to grow food or obtain potable water. With regards to the Covenant, the Tribunal stated that the right to life must be interpreted broadly, and constitutes a positive obligation of the state to provide for the basic necessities of life. Teitiota could not indicate an act or omission by the Government of Kiribati which would indicate he would be arbitrarily deprived of his life. The Tribunal specifically cited Kiribati’s positive actions on the international stage concerning the threats of climate change, emphasized that a risk of a violation to the right to life must be “imminent,” and that Teitiota’s risk to life remained a conjecture.

When the case was brought to the UN Committee, they accepted that the impact of climate change created a real risk of impairment to Teitiota’s life under Article 6 of the Covenant, for the sake of admissibility. The Committee recognized that the right to life requires States parties to adopt positive measures, and includes the right of individuals to enjoy a life with dignity and to be free from acts or omissions that would cause unnatural or premature death. However, they also noted that the author was not alleging a risk of harm specific to him, but to all individuals in Kiribati. Again, the Committee found limited evidence to suggest an immense and specific danger to Teitiota’s life. Ultimately, they decided that the State party’s decision was not arbitrary, did not amount to a manifest error or denial of justice, and the courts did not otherwise violate their obligation of independence and impartiality.

The decisions of both the Tribunal and the Committee cited the actions taken by the Republic of Kiribati to combat climate change to suggest that the threat in Kiribati was limited. In traditional refugee cases, in which individuals are being subjected to or at risk of physical violence, positive government action has the ability to directly protect citizens. Yet, with climate change, government action often does not necessarily create immediate, or in some cases any, protection. Any government, but particularly those of developing nations, are largely powerless against the most powerful impacts of climate change such as sea level rise, and citizens can be harmed regardless of adaptation efforts. As another dissenting opinion by Duncan Laki Muhuzuma states, “Even as Kiribati does what it takes to address the conditions, for as long as they remain dire, the life and dignity of persons remains at risk.” and the approach to climate change must uphold “the sanctity of human life.” He also elucidates that it would be counterintuitive to the protection of life to wait for deaths to be occurring with regularity to reach the threshold, as impacts of climate change can be sudden and unpredictable, and therefore it is highly possible for someone to be at risk of losing their life without frequent deaths already occurring. In reference to the Tribunal’s decision, Muhumuza asserts, “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.”

More recently, both the International Court of Justice (ICJ) and the Inter-American Court of Human Rights (IACtHR) have published new advisory opinions on international legal responsibilities and climate change. The IACtHR recognizes the many ways in which freedom of movement and residence can be hindered by climate change, and human rights violations that can occur as a result of climate migration. It outlines the obligation of states to combat forced displacement from climate change and establish a regulatory framework for protecting climate migrants, specifically including non-refoulement. The ICJ establishes that “states have obligations under the principle of non-refoulement” when an individual’s return to their home country would create “a real risk of irreparable harm to the right to life in breach of Article 6 of the ICCPR.” Judge Arescu of the ICJ provided a separate opinion, detailing his disappointment in the lack of attention paid to non-refoulement, especially as it pertains to sea-level rise. He also described his desire for the ICJ to outline positive obligations, citing examples such as “a duty to conduct an individualized risk assessment” and “to take appropriate protective measures against arbitrary detention and acts by non-State actors that may lead to refoulement.”

Neither advisory opinion asserts whether the Court would have broken with the Teitiota Human Rights Committee decision. Additionally, neither addresses the questions still left unanswered by climate non-refoulement cases, including how immediate and specific threats need to be. Climate migration is only going to become more common. Explicit guidance is needed at the international level to establish protections for, and explicitly recognize the existence of, climate refugees, and detail how the non-refoulement principle functions in the climate context. Individualized risk must be calculated with a nuanced understanding of how climate change’s impacts reach beyond socioeconomic, ethnic, and other divisions. While climate change can certainly exacerbate risks for already-marginalized or threatened groups, it does not target individuals in the same fashion that the current refugee definition is designed to address. Likewise, due to the unpredictability of climate change, traditional measures of danger are not sufficient in establishing whether or not there is a risk to life. Finally, international law must acknowledge that even successful adaptation doesn’t preclude risk. Therefore, in considering climate migration cases, courts cannot take a nation’s climate commitments at face value, but rather should primarily analyze the current and projected conditions in the country.

Megan Newby is a Sophomore from the Bay Area, California studying International & Public Affairs and Business Economics. She is an editor for the Brown Undergraduate Law Review blog and can be contacted at megan_newby@brown.edu.

Aidan Fogarty is a junior from Geneva Switzerland studying International/Public Affairs and Entrepreneurship. He is an editor for the Brown Undergraduate Law Review blog and can be contacted at aidan_fogarty@brown.edu.

Alice Kovarik is a junior from St. Louis, Missouri studying International and Public Affairs and Economics. She is an editor for the Brown Undergraduate Law Review blog and can be contacted at alice_kovarik@brown.edu.