The United Nation’s Human Rights Committee has rejected a Kiribati man’s application to return to New Zealand as a “climate refugee”. However, the Committee recognises that in certain places, the lack of alternatives to subsistence livelihoods may place individuals at a heightened risk of vulnerability to the adverse effects of climate change.

Mr Teitiota’s application for refugee status in New Zealand was rejected. He claimed that New Zealand violated his right to life under article 6(1) of the International Covenant on Civil and Political Rights by removing him to Kiribati in September 2015.

Mr Teitiota argued that the effects of climate change and sea level rise forced him to migrate from the island Tarawa in the Republic of Kirbati to New Zealand. The situation in Tarawa has become precarious due to sea level rise caused by global warming. Inhabitable land in Tarawa has eroded, resulting in a housing crisis and land disputes that have caused numerous fatalities.

After his 2013 application to the New Zealand Immigration and Protection Tribunal for asylum failed, Mr Teitiota unsuccessfully appealed to the Court of Appeal and the Supreme Court.

After examining his case the Tribunal concluded that Mr Teitiota did not objectively face a real risk of being persecuted if he returned to Kiribati. There was no evidence that he faced a real chance of suffering serious physical harm from violence linked to housing/land/property disputes in the future. There was also no evidence that he had no access to potable water, or that that the conditions on return would be “so perilous that his life would be jeopardized”. He was therefore not a “refugee” as defined by the Refugee Convention.

Human Rights Committee decision

Mr Teitiota claimed that as New Zealand endorsed the Fifth Assessment Report of the Intergovernmental Panel on Climate Change it opened the door to accepting the legal concept of a climate change refugee in cases where an individual faces a risk of serious harm. For climate change refugees, the risk of serious harm arises from environmental factors indirectly caused by humans, rather than from violent acts.

Admissibility

In accordance with rule 97 of its rules of procedure, the Committee first had to consider whether the communication was admissible under the Optional Protocol. New Zealand’s argument was that the communication was inadmissible under article 2 of the Optional Protocol because Mr Teitiota had not sufficiently substantiated his claim that when he was removed to Kiribati, he faced an imminent risk of being arbitrarily deprived of his life.

The Committee held that articles 1 and 2 of the Optional Protocol did not constitute an obstacle to the admissibility of the communication. Mr Teitiota had demonstrated, for admissibility, that due to the impact of climate change he faced a real risk of impairment to his right to life under article 6 of the Covenant.

Merits

The Committee recalled at (9.4) that States parties may be in violation of article 6 of the Covenant even if such threats and situations do not result in the loss of life citing Portillo Cáceres et al. v. Paraguay (CCPR/C/126/D/2751/2016). 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. Severe environmental degradation can adversely affect an individual’s well-being and lead to a violation of the right to life.

Present case

The Committee noted that in their decisions, the Immigration and Protection Tribunal and the New Zealand Supreme Court both allowed for the possibility that the effects of climate change or other natural disasters could provide a basis for protection.

However, the Committee accepted the Tribunal’s findings that there was no evidence that: (a) Mr T had been in any land dispute in the past, or faced a real chance of being physically harmed in such a dispute in the future; (b) he would be unable to find land to provide accommodation for himself and his family; (c) he would be unable to grow food or access potable water; (d) he would face life-threatening environmental conditions; (e) his situation was materially different from that of every other resident of Kiribati; or (f) the Government of Kiribati had failed to take programmatic steps to provide for the basic necessities of life, in order to meet its positive obligation to fulfill the author’s right to life.

It was therefore unable to conclude that Mr Teitiota’s removal to Kiribati violated his rights under article 6(1) of the Covenant.