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Climate Change as a Trigger of Non-Refoulement Obligations Under International Human Rights Law

Published on February 6, 2020        Author: 


The recently published decision of the UN Human Rights Committee (HRC) pursuant to Individual Communication No. 2728/2016 (Teitiota v New Zealand) offers an insight into how the international legal system is coming to address climate change displacement. Teitiota is significant for its recognition that climate change impacts affecting migrants in their State of origin can trigger obligations of non-refoulement binding on the States they enter.

The HRC expounded on the effect of climate change on migrants’ right to life under Article 6(1) of the International Covenant on Civil and Political Rights (ICCPR), and provided guidance on how the applicable test of a ‘real risk of irreparable harm’ is to be deployed in this novel context.

The HRC’s decision concerned a complaint brought under the ICCPR First Optional Protocol by Ioane Teitiota, a Kiribati national, against New Zealand. Teitiota applied for asylum in New Zealand, on the basis that climate change affecting Kiribati exposed himself and his family to inter alia: violent land disputes, a lack of fresh drinking water, an inability to sustain a livelihood via agriculture due to soil salinization, and flooding (paras. 2.5-2.6). The New Zealand Immigration and Protection Tribunal, considering both the Refugee Convention and the ICCPR, rejected his application. His subsequent domestic appeals were also unsuccessful (paras. 2.2, 2.8-2.9).

Teitiota was removed to Kiribati in September 2015, and his family also returned from New Zealand (para. 4.4). His HRC complaint argued his removal placed New Zealand in breach of his Article 6(1) ICCPR right to life. The question before the HRC was whether it could depart from New Zealand’s findings to hold that Teitiota was exposed to a ‘real risk of irreparable harm’ to his right to life in Kiribati (para. 9.3). Only if this question could be answered in the affirmative was a non-refoulement obligation derived from Article 6(1) opposable against, and breached by, New Zealand (see HRC General Comment 31 (2004), para. 12). Read the rest of this entry…