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

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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).

Although the HRC decided that Teitiota’s removal was lawful because this risk could not be suitably established (para. 10), its reasoning sheds light on how climate change impacts are caught within the expanding scope of the ICCPR right to life.

The right to life and core minimum obligations under the International Covenant on Economic, Social and Cultural Rights

The HRC reaffirmed how the right to life is a broad right to a dignified life, and how climate change is a ‘pressing and serious’ threat to its enjoyment (para. 9.3, General Comment 36 (2018), para. 62). Teitiota’s innovation is encapsulated in the HRC’s holding that the effects of climate change per se can lead to a violation of individuals’ right to life, such as to require protection from refoulement. The HRC took the view that: 

‘[W]ithout robust national and international efforts, the effects of climate change in receiving states [of rejected 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’ (para. 9.11)

The HRC clarified the kinds of climate change impacts which will have a bearing on the right to life, and by extension the inquiry which would-be sending States are required to conduct to ascertain if a non-refoulement obligation is opposable against them. 

It accepted that sea level rise will likely render Kiribati eventually uninhabitable (para. 9.12), and recognised that the gravity of ‘the risk of an entire country becoming submerged under water’ meant that ‘the conditions of life in such a country may become incompatible with the right to life with dignity before the risk is realized’ (para. 9.11). 

In recognising that the right to life entails an entitlement to certain living conditions, the HRC has acknowledged the binding force of the right’s economic and social components. Previously, it was not completely clear whether the legal obligation to protect life required States to ensure access to basic economic and social entitlements. This ambiguity was a consequence of the language used by the HRC in General Comment 36 on the economic, social and cultural dimensions of a dignified life (see e.g. General Comment 36, para. 26). 

As Sarah Joseph has pointed out, those remarks were (at least on one reading) merely suggestions on desirable steps which States could take to improve living conditions. They were ‘arguably written in the language of aspiration, with the continuous use of the word ‘should’ and other forms of soft language’ (p. 357). Teitiota dispels these doubts. The binding obligation to protect life under the ICCPR requires States to ensure access to basic economic and social entitlements. 

This is confirmed by the HRC’s reasoning on the admissibility of Teitiota’s complaint. The initial admissibility hurdle was satisfied because of evidence, previously accepted by the New Zealand Tribunal, that the village where Teitiota had resided was overcrowded, had its wells impacted by salinization, and suffered from regular tidal flooding (para. 2.5). These impacts were relevant to the risk Teitiota faced to his right to life (para. 8.6).

The HRC thereby included paradigm economic and social entitlements within the ambit of the right to life. The overlap between the climate change impacts considered relevant to the ICCPR right to life, and the content of the core minimum obligations of States under the International Covenant on Economic, Social and Cultural Rights (ICESCR) is notable.

Take for example the Committee on Economic Social and Cultural Rights’ (CESCR) General Comment 14 (2000) on the ICESCR right to health. There, the CESCR listed the provision of ‘basic… housing’, ‘an adequate supply of safe and potable water’, and ‘minimum essential food’ as binding obligations requiring immediate fulfilment (General Comment 14, para. 43). 

These map coherently onto the aforementioned impacts which affected Teitiota and his family: overcrowding and flooding clearly have a bearing on individuals’ housing, while sea water contamination may deprive individuals of sufficient drinking water, as well as food (both directly via crop destruction and by depriving farmers of subsistence income). Given their substantial overlap post-Teitiota, guidance as to what precise entitlements are required by the ICCPR right to life can be obtained by referring to the content of ICESCR core obligations.

Applying the ‘real risk’ test

Another key takeaway is Teitiota’s demonstration of how a real risk of irreparable harm to an individual’s right to life is to be ascertained. The HRC required New Zealand to have ensured there was no ‘reasonably foreseeable’ risk to Teitiota’s right to life (a standard New Zealand met) (paras. 9.7-9.9). 

The HRC’s invocation of this foreseeability standard in previous non-refoulement decisions has been inconsistent (Adrienne Anderson, Michelle Foster, Hélène Lambert and Jane McAdam, p. 136). Teitiota indicates that it may feature more heavily in future HRC reasoning. Utilising reasonable foreseeability in the climate change non-refoulement context mirrors the approach in Portillo Cáceres v Paraguay (analysed here, and cited at paras. 9.4-9.5). There, the HRC held that ICCPR States parties are required to safeguard individuals from reasonably foreseeable threats to their right to life connected with environmental degradation.

The HRC’s assessment of reasonable foreseeability of risk in Teitiota took its lead from the approach of the New Zealand courts in relation to Teitiota’s case. The decisions of both the New Zealand courts and the HRC were strongly influenced by the ‘the time left for the Kiribati authorities and the international community to intervene’ to protect the population (para. 9.13), including through relocation (para. 9.12). 

This consideration meant much of the HRC’s reasoning focused on the intensity of climate change impacts already felt in Kiribati in the present (c.f. para. 8.5). The HRC appears to have attempted to identify risks which could reasonably eventuate in the present, while excluding those grave risks which while reasonably foreseeable today, would not eventuate until years in the future.

The conclusion that New Zealand had not violated Teitiota’s right to life thus became difficult to escape. Previous jurisprudence established that the real risk threshold is high (see para. 9.3). For example, it was not enough that Teitiota was affected by water rationing implemented in response to salinization – the supply of fresh water was not sufficiently ‘inaccessible, insufficient or unsafe’ (para. 9.8). The difficulty of meeting the threshold was amplified by the deference which the HRC affords to State organs’ factual examinations. Their assessments of risk must be clearly arbitrary, erroneous or unjust to be impugned (see para. 9.3).

Conclusion

Teitiota represents an important contribution to the capacity of international human rights law to deal with climate change displacement, achieved through the augmentation of the scope of the Article 6(1) ICCPR right to life. While displaced migrants seeking protection from refoulement will continue to face difficulty in proving a real risk of irreparable harm to their right to life, the decision is a warning to destination States. They must take seriously both their assessment of climate change impacts when making protection decisions, as well as their obligations to assist vulnerable States in averting climate disaster.

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Anton Smitsendonk says

February 6, 2020

I have given this article a first reading, and so far I cannot reject the feeling that the "extension of rights" gets into nonsensical proportations.
Has there been an analysis of how in Kiribati the lower and higher authorities look for ways to avoid the obvious dangers by other means than unregulated unobstructed privately undertaken emigration attempts ?
I would guess that a question of this enormous amplitude cannot be decided by judicial authorities of any country.
Yet great thanks to the authors to bring us this question

Anton Smitsendonk

Kishor Dere says

February 6, 2020

It is a good beginning which at least acknowledges that climate change indeed harms weak and vulnerable people more than anybody else. Therefore, it is quite natural and reasonable to expect that the receiving states in such cases should fulfill their obligations of non-refoulement. This may be a baby-step towards reaching the ambitious goal of climate justice.

Maine Astonitas says

February 9, 2020

Thanks for the piece, an important step. It would be important to see further developments within the context of a common but differentiated responsibilities (CBDR) framework.

https://refugeereview2.wordpress.com/opinion-pieces/climate-refugees-alternative-protection-avenues-for-refugees-from-small-island-developing-states-sids-by-maine-astonitas-jacqueline-faamatuainu-ahmed-inaz/

Leave a Comment

Your comment will be revised by the site if needed.

Comments

3 comments

Anton Smitsendonk says

February 6, 2020

I have given this article a first reading, and so far I cannot reject the feeling that the "extension of rights" gets into nonsensical proportations.
Has there been an analysis of how in Kiribati the lower and higher authorities look for ways to avoid the obvious dangers by other means than unregulated unobstructed privately undertaken emigration attempts ?
I would guess that a question of this enormous amplitude cannot be decided by judicial authorities of any country.
Yet great thanks to the authors to bring us this question

Anton Smitsendonk

Kishor Dere says

February 6, 2020

It is a good beginning which at least acknowledges that climate change indeed harms weak and vulnerable people more than anybody else. Therefore, it is quite natural and reasonable to expect that the receiving states in such cases should fulfill their obligations of non-refoulement. This may be a baby-step towards reaching the ambitious goal of climate justice.

Maine Astonitas says

February 9, 2020

Thanks for the piece, an important step. It would be important to see further developments within the context of a common but differentiated responsibilities (CBDR) framework.

https://refugeereview2.wordpress.com/opinion-pieces/climate-refugees-alternative-protection-avenues-for-refugees-from-small-island-developing-states-sids-by-maine-astonitas-jacqueline-faamatuainu-ahmed-inaz/