Emerging human rights norms on climate change displacement – Annika Reynolds

This article analyses emerging international human rights law jurisprudence on climate change displacement and the right to life, notably Ioane Teitiota v New Zealand. This case is the first time the Human Rights Committee has recognised climate change is a threat to the right to life, and thus that states may have non-refoulement obligations to ensure ‘climate change refugees’ are not returned to dangerous environmental conditions. This article will first critically analyse Ioane Teitiota v New Zealand, before discussing how these emerging human rights norms on climate change displacement are expanding state obligations to address climate change.

The South Pacific is at the forefront of climate change, often portrayed as a region drowning in rising seas. The IPCC reports that the mean sea level of the tropical South Pacific is rising faster than the global average, increasing the frequency of extreme weather events, salination of fresh water sources, and predictions of territory loss in the coming decades. These changes heighten food and water insecurity, contribute to higher disaster-related fatalities and damage, and increase migration and the risk of inter-communal violence.This emerging reality has been labelled by the Human Rights Council as a ‘pressing’ human rights threat, notably to the right to life with dignity. Indeed, in Ioane Teitiota v New Zealand, the Human Rights Committee accepted that climate change was a threat to life that would make countries like Kiribati ‘uninhabitable’ in the coming decades. But human rights – deemed inalienable and fundamental – exist in tension with another pillar of international law – state sovereignty.

Ioane Teitiota v New Zealand: Forcing a drowning person back into a sinking vessel

Ioane Teitiota, a Kiribati national, applied for refugee status for himself and his family in New Zealand in 2013. The New Zealand Immigration and Protection Tribunal rejected his claim for asylum stating that Teitiota, as a person displaced by environmental factors, did not meet the definition of a refugee under the Refugee Convention nor a protected person under the International Covenant on Civil and Political Rights (ICCPR). Teitiota appealed the decision to the Human Rights Committee, who handed down their view affirming New Zealand’s decision to reject Teitiota’s claim in 2019.

The majority of the Committee accepted that climate change is ‘likely to render’ Kiribati ‘uninhabitable’ by 2040 [9.12]. In their view, the right to life (protected under art 6 of the ICCPR) was at risk of violation by a range of climate-induced harms in Kiribati, including restricted access to fresh water, potentially violent land disputes and sudden-onset natural disasters [9.8 – 8.9]. However, Teitiota was unable to demonstrate that the climate-induced risks were imminent and ‘likely’ to lead to loss of life [2.9]. The majority’s view was criticised by dissenting member Muhumuza who argued the threshold established by the majority was bordering on ‘unreasonable’ [3]. Indeed, Muhumuza highlighted that it would be:

counterintuitive to the protection of life, to wait for deaths to be more frequent and considerable, in order to consider the threshold of risk met…[this view] is more like forcing a drowning person back into a sinking vessel, with the “justification” that after all there are other voyagers on board. [6]

However, the majority also offered a new pathway for future climate change displacement cases. They outlined that receiving States may be bound by non-refoulement obligations in the future, where returning displaced people to climate change affected countries would constitute an unacceptable risk to the right to life. Non-refoulement is a foundational principle of international human rights law, reflecting the commitment of the international community to ensure all persons are able to enjoy their human rights. In practice, non-refoulement has been largely articulated through refugee law. The recognition of the broader applicability to climate displaced persons that do not necessarily meet the definition of ‘refugee’ under the Refugee Convention is a major development.

State obligations to uphold the right to life in a hotter world

Non-refoulement obligations would significantly expand the responsibilities of States that receive climate displaced persons. The principle of non-refoulement was first articulated in the Universal Declaration of Human Rights as the right to ‘seek and enjoy in other countries asylum from persecution’ (art 14). The Refugee Convention fleshes out the obligations of States to uphold this right, including a prohibition on States ‘expel[ing] or return[ing] a refugee in any manner’ to territories where their life is at risk (art 33(1)). 

Under refugee law, non-refoulement obligations have come to encompass prohibitions on any form of forcible removal, including informal transfers or ‘renditions’ – where refugees are not admitted at the border. Additionally, States are bound by non-refoulement obligations even if the person has not yet been formally recognised as a refugee. Therefore, Ioane Teitiota v New Zealand represents the opening of a legal door to a rich and extensive regime of human rights protections that were previously inaccessible to “climate refugees”.

Indeed, the UN High Commissioner for Refugees, Filippo Grandi emphasised that Ioane Teitiota v New Zealand established that:

if you have an immediate threat to your life due to climate change, due to the climate emergency, and if you cross the border and go to another country, you should not be sent back because you would be at risk of your life, just like in a way or in a situation of persecution.

This emerging human rights norm can be seen as a warning to the Global North, who have historically benefited from emissions-intensive practices and externalised the costs of development to the Global South. The extension of non-refoulement obligations means receiving States will have to engage in a genuine assessment of whether climate change constitutes an unacceptable risk to life. The view in Ioane Teitiota v New Zealand also contributes to a growing chorus of voices calling on Global North states to assist vulnerable states, especially in the Pacific, to address climate risks that are a significant danger to the enjoyment of human rights.

However, non-refoulement obligations do not resolve the tension between human rights obligations and state sovereignty. At the core of international law is the recognition that states are sovereigns over their own territories. States are not obligated to grant individuals asylum merely to provide a safe location and fair procedure for the processing of a refugee claim. If a state does not wish to grant an individual asylum or residency, the principle of state sovereignty triumphs, and the state has the power to manage migration flows and determine which non-nationals are able to remain permanently.

The future of human rights claims for climate change displacement

The extension of non-refoulement principles to climate displaced persons is a shift in the human rights norms surrounding climate change. Since Ioane Teitiota v New Zealand, a group of Torres Strait Islanders has lodged a petition with the Human Rights Committee that alleges Australia’s failure to take climate action, coupled with the impacts of climate change in the Torres Strait, is a violation of human rights – including the right to life. 

Although the Torres Strait Island Petition is different from Teitiota’s refugee claim, they are both responding to the emerging norm that the right to life involves protecting the environmental, economic and social conditions that enable humans to live in dignity. In Ioane Teitiota v New Zealand, the Committee upheld this argument even though the petition ultimately failed. It is likely that the Committee will further affirm the expanded definition of the right to life in future litigation – which may see Australia in violation of its obligations to Torres Strait Islanders.

Ioane Teitiota v New Zealand represents a significant development in the law of international human rights, especially for the norms that govern climate displaced persons. However, the Human Rights Committee’s decision has been criticised for setting an unreasonable burden on applicants to prove an ‘imminent’ threat to life from climate change. Nonetheless, the majority’s argument that climate displaced persons may be protected under non-refoulement obligations offers a new pathway for climate displaced persons to seek safety. 

Ultimately, whether Ioane Teitiota v New Zealand results in a new wave of “climate refugees” will depend on whether states not only deliver on their non-refoulement obligations but go a step further in recognising claims to asylum. The challenge will be influencing states to adopt the spirit of Ioane Teitiota v New Zealand and expand their refugee programs, before the Pacific sinks into a large-scale humanitarian crisis.

Annika Reynolds is a Research Assistant at the ANU College of Law and is currently studying a Bachelor of Laws (Hons)/International Security Studies. She founded GreenLaw in 2019, a young person-led research and law reform institute for substantive environmental and climate justice. Annika has previously published on federal environmental regulation and climate-induced ethnic relocation in the South Pacific.

Suggested citation: Annika Reynolds, ‘Emerging human rights norms on climate change displacement’ on ILA Reporter (11 March 2021) <http://ilareporter.org.au/2021/03/emerging-human-rights-norms-on-climate-change-displacement-annika-reynolds/>