The Historic Case of Teitiota: Climate-Induced Asylum and Its Future

[Malcolm Wu is an LL.M. candidate at the London School of Economics and Political Science.]

Introduction

Ioane Teitiota is from the sinking island nation of Kiribati. In 2013, he made a historic application for refugee status in New Zealand on the grounds of risk of life due to the adverse effects of climate change in his home country. Nonetheless, the rejection of his application and appeal by the New Zealand Immigration and Protection Tribunal (2013), High Court (2013) and Supreme Court (2015) led to his family’s deportation in September 2015 (HRC Decision, para. 4.4). Undeterred, Teitiota filed a complaint to the UN Human Rights Committee under the International Covenant on Civil and Political Rights First Optional Protocol that the New Zealand Supreme Court’s decision to deport him violated his right to life. Addressing his complaint on January 7^th, 2020 in Individual Communication No.2728/2016, the HRC wrote:

‘The obligation not to extradite, deport or otherwise transfer pursuant to article 6 of the [International] Covenant [on Civil and Political Rights], 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.’ (HRC Decision, para. 9.3)

…

‘[W]ithout robust national and international efforts, the effects of climate change in receiving states [of returned climate-induced asylum seekers] 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.’ (HRC Decision, para. 9.11)

This landmark decision has been argued to have forged a new path towards recognising climate-induced asylum. This post examines how the limitations of the 1951 Refugee Convention have left a lacuna of protection for climate-induced asylum seekers in relation to cross-border climate-induced displacement. It argues that this HRC decision has attempted to fill this lacuna by establishing an alternative asylum framework through the ICCPR. However, the high threshold to qualify for protection under the ICCPR may nonetheless render it difficult for climate-induced asylum to be successfully sought under this alternative framework. 

The limitations of the 1951 Refugee Convention

The international refugee framework is enshrined under the 1951 Refugee Convention and its 1967 Protocol. To qualify for asylum and non-refoulement protection under article 33(1) of the Convention, i.e. the practice of not forcing asylum seekers to return to a country in which they are liable to be subjected to persecution or risk of life, one must first fit the definition of a refugee per article 1(A)(2) of the Convention. However, it is pertinent to note that article 1(A)(2) was drafted largely as a response to State persecution faced in post-WWII Europe, where the dangers posed by climate change were not even an issue. Thus, as pointed out by Jane McAdam and published by the UNHCR in 2011, climate-induced asylum seekers who seek protection under the Convention face the often insurmountable task of fitting their plight within article 1(A)(2) of the Convention. That is, framing the climate-induced risk to life as caused by State persecution on the Convention grounds of their race, religion, nationality, political opinion, or membership of a particular social group (McAdam, p. 12-14; also see IOM Report, p. 28).

This was observed in the case of Teitiota when it was tried at the New Zealand Immigration and Protection Tribunal in 2013 (NZIPT Decision). Notwithstanding the dire environmental degradation of flooding and soil salinization in Kiribati that may lead to the lack of fresh drinking water; the possibility of disease and deterioration of health; inhabitants’ potential inability to sustain a livelihood via agriculture; and violent land disputes, the Court still required Teitiota to demonstrate that the risk to his life was due to the persecution by the State of Kiribati for one of the aforementioned Convention grounds under article 1(A)(2) (NZIPT Decision, para. 52). Unsurprisingly, the Court found that Teitiota was not being persecuted by the State of Kiribati for one of the Convention grounds as the effects of Kiribati’s environmental degradation not only affected Teitiota but the general population, and that the Government of Kiribati did not fail to take adequate steps to protect him from environmental harm (NZIPT Decision, para. 75). On appeal, this was reaffirmed by the High Court (NZHC Decision, para. 55) and by the Supreme Court (NZSC Decision, para. 12). As such, Teitiota was not eligible for protection under the Refugee Convention and was deported back to Kiribati.

However, the Courts noted that Teitiota did not set a blanket precedent of excluding climate-induced asylum-seekers from the scope of the Refugee Convention (NZIPT Decision, para. 55; NZSC Decision, para 13). In exceptional cases, where environmental degradation causes disasters or armed conflict and the State denies humanitarian relief  or protection towards sections of the population owing to discrimination on Convention grounds, such risks to their life could then potentially fall within the definition of article 1(A)(2) and refugee status may be recognised (NZHC Decision, paras. 27-28; UNHCR Report, para. 10; McAdam and Limon, p. 16). Unfortunately, for the majority such as Teitiota who face a risk to their life caused by environmental degradation in and of itself, they would be left unprotected by the Refugee Convention.

The alternative framework under the ICCPR

It appears that the HRC has noted the limitations of the Refugee Convention when applied to climate-induced asylum seekers.  Hence, in their 2020 decision, the HRC put forth a landmark argument: that even where climate-induced asylum seekers do not qualify for refugee protection, receiving countries have human rights obligations not to deport or to refoul them where returning them to their State of origin would lead to the violation of their right to life (HRC Decision, para. 9.3).

The HRC stated that the right to life must be broadly interpreted, as it includes the right to enjoy life with dignity free from acts or omissions expected to cause unnatural or premature death (HRC Decision, para 9.4). The HRC then stated that the effects of environmental degradation such as flooding and intense storms, sea level rise, land degradation and soil salinization may lead to the violation of an individual’s right to dignified life under article 6 of the ICCPR.  This may prompt their cross-border movement into receiving countries which would then trigger the receiving States’ non-refoulement obligations (HRC Decision, para 9.11).

This decision is thus significant for it broadens the scope of asylum and non-refoulement protection to the category of climate-induced asylum seekers through the alternative framework of the ICCPR. Unlike the Refugee Convention, under the ICCPR, it would suffice for climate-induced asylum seekers to show that the effects of environmental degradation in their home country in and of itself pose a sufficient risk to their life. No discrimination of assistance or protection from the State on account of Refugee Convention grounds would be needed.

It is pertinent to note that the HRC’s decision is not legally binding. However, the HRC’s reasoning is based on its interpretation of international human rights law and the ICCPR, a legally binding human rights instrument that most States have ratified and by which most are bound. With its influential status on the international plane, the HRC’s interpretation of the ICCPR giving rise to climate-induced non-refoulement protection obligations may well be the standard adopted by national and regional courts.

The threshold to qualify for non-refoulement protection under the ICCPR

Nevertheless, the HRC has stated that the threshold to qualifying for protection under this framework is still very high (HRC Decision, para. 9.3). That is, the effects of environmental degradation must pose a reasonably foreseeable risk of irreparable harm (HRC Decision, paras. 9.7-9.9). Applying this threshold to the facts of Teitiota, the majority of the Committee (with 2 dissenting) decided that Teitiota’s circumstances did not meet this threshold (HRC Decision, paras. 9.12-9.13).

In assessing this threshold, while recognising that Kiribati only had an estimated 15 years till complete land submergence (HRC Decision, para. 9.12), the HRC placed heavy weight on whether the Government of Kiribati had taken steps to combat the effects of climate change (HRC Decision, para 9.6). The HRC takes the position that while there may be considerable hardship in accessing basic human rights such as potable water, so long as it is not impossible with Government measures put in place, the threshold will not be met (HRC Decision, para. 9.8-9.9). However, such assessment appears to be more of a case of form over function. The majority relied heavily upon the NZ IPT’s findings that water rationing and the steps proposed to combat climate change by the Government of Kiribati in their 2007 National Adaptation Programme of Action were sufficient to refute Teitiota’s claims of intense flooding, inability to grow food, and lack of access to potable water in Kiribati (HRC Decision, para. 9.6). However, this is despite expert UN reports revealing that the Government of Kiribati had yet to implement their 2008 National Water Resources Policy and 2010 National Sanitation Policy’s priorities set for the first 3 years (HRC Decision, Annex 1.4). This is despite the fact that upon returning to his home village in Kiribati, intense flooding had led to knee-deep land submergence in king tides, the inability for Teitiota as a subsistence farmer to grow crops, and the deterioration of his family’s health – with one of his children having suffered a severe case of blood poisoning leading to boils all over his body (HRC Decision, Annex 2.2). If Teitiota’s circumstances do not qualify for asylum under the ICCPR, apart from death, it is hard to fathom what circumstances will.

As pointed out by Sendut, the HRC’s application of reasonably foreseeable risk has been inconsistent, yet Teitiota may be precedent for its larger role in future decisions. However, if this is so, and if States were to adopt the standard as so applied in Teitiota, this high threshold may serve as a significant impediment for climate-induced asylum seekers to qualify for non-refoulement protection under the ICCPR.

Concluding thoughts

With the limitations climate-induced asylum seekers face under the Refugee Convention, the HRC’s decision to recognise that the ICCPR can give rise to climate-induced non-refoulement obligations is very much welcomed. While an alternative path to asylum has been paved, it appears that there is still much more work to be done. The threshold of reasonably foreseeable risk of irreparable harm as applied in Teitiota appears to be too onerous and may even seem to render the HRC’s decision a pyrrhic victory. One can only wonder how drastic circumstances must get before climate-induced asylum seekers such as Teitiota and his family can meet the threshold set by the HRC and qualify for asylum under the ICCPR. Nevertheless, the forging of an alternative framework for climate-induced asylum is the first step in the right direction. It is hoped that States will recognise their non-refoulement obligations to climate-induced asylum seekers under the ICCPR and contribute to the much-needed jurisprudential development of climate-induced asylum.