THE UN HUMAN RIGHTS COMMITTEE’S RECENT DECISION ON CLIMATE DISPLACEMENT

Miriam Cullen

February 2020

On 7 January 2020, the UN Human Rights Committee (HRC) delivered its decision concerning a communication from Ioane Teitiota, a national of Kiribati, which alleged that the New Zealand Government had violated his right to life by returning him to Kiribati in September 2015. The case is significant because it was the first before the HRC to allege a violation of the right to life based on the threat posed by climate change and sea level rise; and because it confirmed the availability of complementary protection for people displaced across international borders for reasons associated with climate change. But these findings are also not a legal revolution. Moreover, what is missing from the debate thus far is the potential perspective from the states impacted. This post explains why the findings might be more politically than legally significant and the potential sensitivities for small island states.

Context and decision

The New Zealand courts found, inter alia, that Teitiota did not meet the definition of “refugee” as contained within the 1951 Convention Relating to the Status of Refugees and its 1967 Protocol. Nor did he qualify for complementary protection under the ICCPR. There was no meaningful dispute that sea level rise had, and would continue to, impact life on the islands. However, the degree of risk to Teitiota’s life was not considered sufficient at the time of the decision to meet the threshold that would warrant humanitarian protection. After unsuccessful appeals, Teitiota exhausted avenues for legal remedy in New Zealand, and in 2015 lodged a communication with the HRC alleging a violation of the right to life.

The HRC is an 18-member committee of independent experts who are responsible for the interpretation of the International Covenant on Civil and Political Rights (ICCPR). The ICCPR forms the basis for complementary protection under international law. Under the doctrine of complementary protection, states are under an obligation not to remove a person from their territory where there are substantial grounds for believing that there is a real risk of irreparable harm in violation of the right to life or the right to freedom from torture, cruel, inhuman or degrading treatment (Articles 6 and 7 ICCPR). One of the responsibilities of the HRC is to monitor compliance with the Covenant including through the receipt and determination of complaints from individuals who allege violations of their ICCPR rights by a state party to the ICCPR and its first Optional Protocol. While a decision of the HRC is not strictly binding, it is of both legal and political significance.

By majority, the HRC did not find a violation of the right to life in this instance. Like the New Zealand courts before it, the Committee accepted the claimant’s evidence that sea level rise caused by climate posed a threat to the islands. Fresh water had become scarce and was often contaminated, the construction of sea walls had been largely ineffective against storm surges and king tides, and there had been instances of violence caused by land disputes in tensions exacerbated by the environmental conditions. However, it found that the threat of violence was not sufficiently personal to the claimant; that potable water, while scarce, was nevertheless sufficiently available; and that although salt water inundation of the soil made it “difficult to grow crops, it was not impossible”. Overall, the HRC was not convinced that the claim demonstrated a level of “extreme precarity” sufficient to threaten his right to life (paras 9.9 to 9.14 of the decision).

Not a legal revolution

The idea that a state’s non-refoulement obligations are triggered where the right to life is threatened is not a legal revolution. It is an extant principle of customary international law and one that clearly falls within states parties obligations under the ICCPR (see General Comment 31 on the Nature of States Parties Obligations para 12).

Moreover, recognition by the HRC of the connection between climate change and the right to life is not new. In 2018, the Committee re-issued its General Comment on the Right to Life in which it unambiguously acknowledged that “environmental degradation, climate change and unsustainable development constitute some of the most pressing and serious threats to the ability of present and future generations to enjoy the right to life” (para 62). It also expounded that “the right to life includes the right of individuals to enjoy a life with dignity, free from acts or omissions that are expected to cause unnatural or premature death” (para 3).

With respect to displacement, the HRC is not the first UN human rights treaty body to accept that complementary protection ought to be available for violations of human rights associated with climate change. In September 2019, five UN human rights treaty bodies issued a Joint Statement on Human Rights and Climate Change. Among other things, the statement recommended that states should offer complementary protection mechanisms for migrant workers “displaced across international borders in the context of climate change and disasters” (para 6).

But nevertheless important

Notwithstanding the foregoing, it is significant, politically perhaps even more than legally, to have the Committee responsible for the interpretation of the ICCPR for the first time articulate that complementary protection arises in relation to the impacts of climate change. As the HRC states:

without robust national and international efforts, the effects of climate change in receiving states 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)

Accordingly, although this case failed on the merits, as climate impacts worsen, future similar claims might well succeed.

The decision is imprecise about when complementary protection would be triggered. Although, in relation to the specific threat posed by sea level rise to island states, the HRC recognises that the tipping point may be some point before the islands are inundated. It provides: “given that the risk of an entire country becoming submerged under water is such an extreme risk, the conditions of life in such a country may become incompatible with the right to life with dignity before the risk is realized.”  Here the Committee attempts to strike a balance between the relatively high threshold that constitutes a violation of the right to life with the need to avoid an unattainable standard. For island states this is important because the loss of potable water and arable land will occur well before “submersion” does, and much evidence was advanced, and accepted, on the diminishing fresh water supply in Kiribati.

The complexities facing small island states

Although this decision has received much commentary (see, for example here, here and here), one matter on which most commentators have been silent is the potential implications for the state of Kiribati itself. This makes good sense, human rights is the one area of international law in which the interests of the individual come first. But the broader issue is far more complex. While this case demonstrates that at least one Kiribati national has a desire to seek international protection, the state apparatus might be motivated in the opposite direction, at least for the time being.

When New Zealand tabled the idea of introducing a new category of humanitarian immigration visa for “climate refugees”—notably as a direct response to the court’s rejection of Teitiota’s legal claim—it was Pacific Island states themselves which rejected it. Small island states faced with the threat of sea level rise are far from ready to pull out the lifeboats. As the HRC decision notes, the Republic of Kiribati is taking adaptive measures and advancing its resilience. For the time being at least, small island states are advocating for greater support for adaptation, mitigation and regular migration pathways, to advance mobility choices: to leave or stay. Legal protected status, while not necessarily unwelcome, is a last resort.

There is also a point to be made about the broader legal and historical context. Territory underpins our Westphalian system of statehood and what constitutes territory has long been the subject of debate and one well within living memory for a number of Pacific Island countries. Kiribati itself gained independence as recently as 1979. In the 1960 UN General Assembly debate on the Granting of Independence to Colonial Countries and Peoples, several UN delegations were against the independence of small island states because their geography and potential for economic development were perceived as not viable. Shadows of this kind of thinking are apparent in the HRC’s findings in that it accepted the evidence that the state is not only losing land mass but it “can be expected to survive as a country for 10 to 15 more years” (paras 7.2 and 9.12 of the decision).

Of course the HRC has no authority to determine any legal question associated with statehood, and it does not purport to do so. But it is easy to see how aspects of the decision might pique political sensitivities. The issues it raises are both legally and politically complex and we ought not to be surprised if small island states are not universally applauding the HRC’s findings, notwithstanding the protections their citizens might ultimately be afforded as a result.

Miriam Cullen is Assistant Professor of Climate and Migration Law at Copenhagen University. She sits on the Advisory Committee to the Platform on Disaster Displacement and heads the Nordic Network on Climate Related Displacement and Mobility.