Ioane Teitiota v New Zealand (advance unedited version),CCPR/C/127/D/2728/2016,UN Human Rights Committee (HRC),7 January 2020

Facts of the case

Ioane Teitiota communicated to the committee in 2016 that New Zealand violated Teitiota and his family's Right to life under Article 6 (1) of the International Covenant of Civil and Political Rights ¹ (the Covenant) by deciding to deport them to the Republic of Kiribati. Teitiota had approached the New Zealand Immigration and Protection Tribunal for protection as a Refugee. He had claimed to be a refugee fleeing climate change in his country of origin, that is, Kiribati. The Tribunal, The Court of Appeal and The Supreme Court of New Zealand all dismissed his claim for protection as a refugee.

To ascertain the facts and background of the case, the Committee examined the following material in detail:

The 2007 National Adaptation Programme of Action filed by the Republic of Kiribati to UNFCCC. ² An examination of the programme allowed the tribunal and the Committee to understand the range of challenges arising due to the adverse effects of climate change. ³ The Committee observed, on the basis of the programme, that “the government of Kiribati had taken steps to address the effects of climate change”. ⁴

The Tribunal found the author (Teitiota) wholly reliable on the information he shared about Tarawa. Then, the Tribunal analysed whether the author and his family could qualify as a refugee or a protected person under either the 1951 Refugee Convention, ⁹ The 1984 Convention Against Torture ¹⁰ or the Covenant. The Tribunal noted, firstly, that the increasing population adversely impacted the carrying capacity of Tarawa that was aggravated by the sudden and slow-onset disasters. Secondly, the author was unemployed for several years before coming to New Zealand and thirdly, the author and his family did not want to return to Kiribati due to collective burden of sea-level rise and overpopulation.

After the analysis, the Tribunal firstly concluded that Teitiota did not face a real risk of being persecuted if returned to Kiribati and therefore, he was not a “refugee” under the 1951 Convention. Secondly, there are no substantial grounds to believe that Teitiota or any his family members would be in danger of a violation of their rights to life and right against torture under Articles 6 & 7 of the Covenant, respectively.

Key elements of the judgement

There are two broad elements of this judgement, that is, admissibility and merits. The State, New Zealand, contested that Teitiota exhausted all domestically available remedies ¹¹ and consequently failed to sufficiently substantiate his claim on Right to Life under Article 6 of the Covenant. ¹² The Committee referred to its decision in Aumeeruddy-Cziffra v. Mauritius ¹³ and cited that the claim of being at a risk of human rights violations should be ‘more than a theoretical possibility’. Additionally, Teitiota was able to ‘sufficiently demonstrate’ that he was at risk due to the decision of removal from New Zealand. ¹⁴

As for the merits of the case, the Committee probed the non-refoulement obligations under Articles 6 & 7 of the Covenant, detailed in general comment No. 31 (2004) ¹⁵ and No. 36 (2018). ¹⁶ The principle not to deport or return or expel a person from a territory applies if there are substantial grounds to believe that “there is a real risk of irreparable harm” to the claimant. ¹⁷ The threshold to prove that ‘there is a real risk of irreparable harm’ is high ¹⁸ but it should not be too high or unreasonable. ¹⁹ The Committee referred to general comment No. 36 and said, right to life includes right to be free from acts or omissions that can cause unnatural or premature death ²⁰ and reasonably foreseeable threats and life-threatening situations. ²¹ Environmental degradation and climate change impacts are some of the most serious threats to enjoy the right to life. ²²

It is recognised that in the difficulty to apply the 1951 Refugee Convention to protect people from climate-related displacement, ‘human rights-based protection from refoulement may apply, which prevents states from sending people to places where they face a real risk of being arbitrarily deprived of life, or subjected to cruel, inhuman, or degrading treatment’. ²³ The Committee noted that protection from environmental degradation and climate change is part of protections under right to life under Article 6, which includes protection from refoulement, if threat to life is proved. ²⁴ Additionally, Article 7 non-refoulement protection may apply to people who can satisfy that they are at a risk of torture, or other cruel, inhuman or degrading treatment or punishment. ²⁵ Teitiota claimed that he was at ‘a real risk of suffering serious physical harm from violence linked to housing, land or property dispute’; however, there was no evidence to prove it. ²⁶

The Committee was of the view that climate change can expose people to a violation of their right under Article 6, thereby triggering the non-refoulement obligation of the state. ²⁷ Notwithstanding this, Teitiota's case did not trigger the non-refoulement obligation of New Zealand. The Committee concluded that Teitiota ‘did not establish that he faced a risk of an imminent, or likely, risk of arbitrary deprivation of life upon return to Kiribati’. ²⁸ Additionally, after evaluating materials and testimony on record about the living conditions in Kiribati and impacts of climate change, the Committee, concluded that it ‘is not in a position to hold that the author's rights under Article 6 of the Covenant were violated upon his deportation to the Republic of Kiribati in 2015’. ²⁹

It is likely that in the future ‘international movement may be a necessary adaptation strategy to avoid the long-term impacts of natural disasters and climate change’. ³⁰ Eckersley has argued for a shared responsibility of states ‘to assist people who are forced to leave their country’ due to climate change. ³¹ Scholars highlight and discuss that litigation concerning the ‘scope of refugee and human rights law to protect Pacific Islanders at risk from the impacts of climate change, disasters and environmental degradation’ is increasing. ³² If the movement of people across-border becomes a phenomenon in future, it will be in the best interest of the international community to extend and apply the principle of non-refoulement on such cross-border migrants.

Defining non-refoulement

Non-refoulement is a principle of international law that guarantees protection against return or deportation or expulsion to a country where they would be at a risk of persecution, torture of violation of right to life. ³³ While this principle has been claimed to be a jus cogens norm, ³⁴ it is currently a treaty obligation under 1951 Refugee Convention, ³⁵ the Covenant, ³⁶ Convention against Torture and Other Cruel Inhuman or Degrading Treatment or Punishment, ³⁷ International Convention on the Elimination of Racial Discrimination, ³⁸ Convention on the Rights of the Child ³⁹ and the Convention on the Elimination of All Forms of Discrimination against Women. ⁴⁰ The duty of non-refoulement extends beyond expulsion and applies to refugees and asylum seekers, with an objective to protect their human rights. ⁴¹

This principle includes a bar against return of aliens, if aliens would be exposed to a threat of persecution, torture, inhuman or degrading treatment or punishment; a threat to life, physical integrity or liberty. ⁴² In 1951, the principal obligation not to return aliens to their country of origin if they were fleeing persecution, was codified in the 1951 Refugee Convention. ⁴³ Today, the principle “forms an essential protection under international human rights, refugee, humanitarian and customary law’. ⁴⁴ The merits of an individual claim for protection under non-refoulement depend mainly on the risk the applicant would face in the country of return ⁴⁵ and is expanding as developing. It is well accepted that ‘the impacts of climate change and/or disaster generally will not satisfy the meaning of ‘persecution’ ⁴⁶ under the 1951 Convention and therefore the non-refoulement protection of the 1951 Convention will not apply to protect people fleeing climate change.

The non-refoulement protection, however, can be conferred where the alien would suffer serious harm upon return to the home state, ⁴⁷ and the jurisprudence is constantly developing. In D. v. United Kingdom, European Court of Human Rights (hereinafter EctHR) prohibited the return of an alien to St. Kitts because such refoulement would have entailed an agonising death from acquired immunodeficiency syndrome due to the absence of adequate medical resources in the country of origin. ⁴⁸ The Committee did not refer to this case, which may have eased out the threshold for Teitiota and his family for protection.

McAdam argues that non-refoulement may only apply ‘in exceptional circumstances’ in the context of climate change. ⁴⁹ It would be required to prove that ‘the very essence of the right is destroyed or nullified’. ⁵⁰ However, she also supports development of the concept of non-refoulement to be ‘construed as a dynamic concept, allowing for a gradual evolution of the basic duty to admit refugees into a more compete set of solution-oriented obligation’. ⁵¹ McAdam supports development of law and policy to facilitate ‘admission, stay and non-return of cross-border disaster-displaced person’. ⁵² These people have protection under the human rights law, through which, by analogy, ‘return is impermissible’ for some people. ⁵³

Is there a state practice of non-refoulement to protect people fleeing environmental degradation or climate change?

Currently, countries like Nigeria, ⁵⁴ Sweden ⁵⁵ and Finland, ⁵⁶ have a national migration framework to protect people fleeing environmental factors or natural disasters or climate change in their country of origin. There is paucity of data on whether these laws have been applied for the protection of specific individuals or groups fleeing climate change. However, New Zealand granted protection under its National Migration Law in 2014 to a family fleeing climate change and its adverse impacts in Tuvalu. ⁵⁷ The protection, however, was granted on ‘humanitarian grounds’ aimed at preventing the separation of claimants from their mothers, sisters and other family who lived in New Zealand. It is not certain, why the Tribunal did not apply same ‘humanitarian grounds’ to protect Teitiota and his family. However, this is not a point of debate for this commentary, as the author focuses on the Committee's decision under the Covenant. These national laws were also not framed, specifically to protect right to life or right to clean environment or to fulfil an international treaty obligation of a state. It means, that currently, there is no international legal obligation to apply the non-refoulement obligation to environmental migrants or protect people fleeing climate change or other environmental degradation in their country of origin. The Committee noted that climate change can trigger non-refoulement obligation; however, there is no existing treaty obligation, specifically an International Human rights treaty obligation, for this issue.

The Committee noted that the evidence ‘did not establish that he [Teitiota] faced a risk of an imminent, or likely, risk of arbitrary deprivation of life upon return to Kiribati’. ⁵⁸ If the evidence would have established an ‘imminent threat’ to Teitiota and his family life, protection under non-refoulement would have been extended to them. The threat to his life was not imminent, but potential which could have threatened their life in the next 10 to 15 years when Kiribati risks becoming inhabitable and ‘incompatible with the right to life with dignity before the risk is realized’ ⁵⁹ , thus, threatening Teitiota's life. ⁶⁰ The Committee, however, did not lay out any guidance to when such incompatibility would be reached and what legal discourse the states should follow. ⁶¹ McAdam shows that the general existence of ideal mechanisms related to forced migration have not shown promise in the context of climate change ⁶² and therefore highlights a need to establish global guidance or binding law in this context. Countries like the United States and Canada do not have specific legislation to protect people fleeing climate change or environmental challenges under their national migration laws. However, they can grant humanitarian visa protection under their existing migration laws. ⁶³ Additionally, both nations have historically granted protection to people after disasters like the Haiti earthquake ⁶⁴ under their respective domestic legal systems governing migration. These actions were taken to protect people, who were not able to return to their countries of origin due to these sudden onset disasters and most were temporary protections. ‘A more permanent protection status could be necessary in some cases, in addition to temporary protection’. ⁶⁵

The Committee did not apply ‘best interest of the child’ principle

The Committee referred to general comment no. 36 to elucidate if non-refoulement protection can be applied to Teitiota and his family's circumstances that involve a family with three children and adverse impacts of climate change on them. The general comment no. 36 clearly states that ‘the standards and guarantees of Article 6 both overlap and interact with other provisions of the Covenant’. ⁶⁶ For protection of children, it advocates for special measures that should be taken by individuals, society and state. ⁶⁷ It suggests that one should consider ‘best interest of child’ principle keeping in mind overall developmental needs of a child. ⁶⁸

In Baker v Canada, the Canadian Supreme Court held that if parents of a child are facing deportation, then they could apply for permanent residence on humanitarian grounds, in the best interest of the child. ⁶⁹ McAdam recognizes that ‘consideration of the “best interests” principle in the substantive determination of refugee status itself is widely overlooked’. ⁷⁰ She has argued for “an additional layer of consideration in cases involving children”, if cases are brought for protection under the 1951 Refugee Convention. ⁷¹ Further, she argues that the principle of the ‘best interest of the child’ should be applied ‘in all actions concerning children’. ⁷²

In 2019, the eldest child of Teitiota would have been 11 years old and the youngest 7 years old. ⁷³ The Committee did not take into consideration the impact of deportation of these children who were born in New Zealand to Kiribati. Any assessment of a child's best interest should be made keeping in mind each child's unique circumstances. ⁷⁴ This should include the child's view, preservation of ties of the child to family, friends and wider environment, protection of the child's right to health and education. ⁷⁵ This analysis or consideration was missing from the Committee's analysis on right to life. The Committee may have correctly examined the aspects of right to life of Teitiota and his wife; however, the examination of right to life for Teitiota's children was completely omitted or overlooked.

Conclusion and way forward

Before the Committee's final decision, there was speculation that Teitiota may become the first man to become a climate change refugee. ⁷⁶ While the decision was not in his favour, ‘it may open pathways’ ⁷⁷ for application of non-refoulement on people fleeing climate change in their country of origin. While the global advocacy for a global legal framework to protect people fleeing climate change, environmental challenges and natural disasters in their country of origin is gaining momentum, the courts may face more cases requesting non-refoulement protection on grounds of climate change. The case may also pave the way for a more robust and stregnthened protection within the existing legal framework on climate change, migration or international human rights.

In the past decade, the number of claims by people fleeing climate change has increased. ⁷⁸ In light of this, the global community may soon see its first climate-refugee crisis. Additionally, the state practice to protect cross-border displaced persons are also collected, disseminated, ⁷⁹ and is potentially growing. Additionally, the application of ‘best interest of the child’ principle in all child cases, may allow for a wider application of the principle of non-refoulement, paving the way for refugee protection for the child and family.

In the words of Durieux and McAdam, however, “non-refoulement extends through time, so that although persons are not returned to persecution and other situations of harm, they are in essence left in a legal limbo. ⁸⁰ McAdam believes that all human rights of refugees ‘cannot be realistically pursued’. ⁸¹ This implies that application of non-refoulement on climate change induced displaced persons may be just a step to their protection, not guaranteeing protection of all human rights. As a first step, application of non-refoulement on people fleeing climate change and their acceptance as a refugee can allow admission into presumed safety.