Climate change is impacting human populations and environments around the world in numerous ways. One of these ways includes rising sea levels which, amongst other things, are endangering the very existence of various island-states. The rise in sea levels not only poses dangers of flooding with ensuing damage to agriculture and aquifers, there are also serious dangers of such islands completely being consumed by the ocean/sea.
The dangers that these developments pose have led some to seek refuge in other countries on the basis of the 1951 Convention Relating to the Status of Refugees (as amended by the 1967 Protocol Relating to the Status of Refugees). Yet, as a recent decision of the New Zealand Court of Appeal illustrates, those seeking protection under the Refugee Convention likely have little chance of success. In Teitiota v The Chief Executive of the Ministry of Business, Innovation and Employment, [2014] NZCA 173, the asylum-seeker unsuccessfully argued that he qualified for refugee status. As I discuss below, the Court's conclusion was based on a sound interpretation of the Convention. However, what it also signals is the need for international attention to the plight of these islands and a considered response to the real dangers faced by their residents.
The Case
Ioane Teitiota's country of nationality is the state of Kiribati situated in the Pacific Ocean between Australia and Hawaii. It consists of 32 atolls and one raised island. The situation for Kiribati has become increasingly dire. Rising tides and flooding in various parts have led to many of the 100,000-plus population to migrate to the Kiribatian island of Tarawam. This has led to overpopulation on Tarawam, scarcity of employment, in addition to the continued dangers of rising sea levels.
Teitiota was a subsistence farmer and fisherman who became increasingly concerned with the rising sea levels and its impact on his family's survival. This was in addition to the overpopulation of the main island due to internal migration. Teitiota in turn decided to migrate to New Zealand. He lived there illegally for several years but was eventually intercepted by immigration officials. Teitiota sought refugee status to prevent being returned to Kiribati.
The Immigration and Protection Tribunal (IPT) concluded that Teitiota failed to demonstrate that he had a well-founded fear of persecution. By his own admission, Teitiota testified that his fear of persecution stemmed not from human agents but from "mother nature". He asserted that
the
refugees they run away from persecution and comparing that to myself and my
family, especially my children, going back to the Island I won’t face
persecution as such but I will face a lot of problems from the sea level rise
and that problem includes flooding and us drowning.
The claim was also bound to fail because as the IPT concluded, amongst other reasons, "the effects of environmental degradation were faced by the population of Kiribati generally[...]." This was something that Teitiota concurred with in his testimony before the IPT. As a general rule, persecution requires that a refugee claimant have a well-founded fear that is in some way individualized and differentiated from the general population.
The Court of Appeal affirmed the IPT's decision. The Court's judgment was reasonable given the text of the Convention (as incorporated into national legislation). Persecution is an intentional act. Climate change affects populations broadly and indiscriminately. Climate change resulting in mass flooding impacts populations regardless of race, nationality, religion, membership in a particular social group or political opinion.
Broadening the Scope of Protection
For the reasons mentioned, the Convention as it stands does not and was not designed to help applicants such as Teitiota. What a decision such as this suggests is that the discourse surrounding the protection of vulnerable peoples needs to shift away from paradigms constructed during the immediate post-World War Two era.
Some guidance may be sought from regional treaties to understand that refugees (as legally defined) are not just those who have a well-founded fear of persecution. For instance, the African Union Convention Governing Specific Aspects of Refugee Problems in Africa includes (in addition to the Refugee Convention definition) the following definition. Article 2 states
The term "refugee" shall also apply to every person who,
owing to external aggression, occupation, foreign domination or events
seriously disturbing public order in either part or the whole of his
country of origin or nationality, is compelled to leave his place of
habitual residence in order to seek refuge in another place outside his
country of origin or nationality.
Individual states have also sought to grant greater protections than those which the Convention and/or Protocol provide. For instance, section 10(2) of the Constitution of East Timor states that the government "shall grant political asylum, in
accordance with the law, to foreigners persecuted as a result of their struggle
for national and social liberation, defence of human rights, democracy and
peace." Article 53-1 of the French Constitution of 1958 provides that the authorities: "shall remain empowered to grant asylum to any foreigner who is
persecuted for his action in pursuit of freedom or who seeks the
protection of France on other grounds."
Drawing from these examples, refugee status does not have to be limited to the terms of the Convention. The Convention provides a floor, it is not a ceiling.
Humanitarian Grounds
A legal avenue which those fleeing the impacts of climate change may seek to exploit, however limited, is through appeals to humanitarian grounds. These are not subject to the limits imposed by the Refugee Convention. In a very recent decision reported in the news media, Sigeo Alesana, a claimant from Tuvalu along with his spouse and two children (the children were born in New Zealand and never lived in Tuvalu) were granted residency. Mr. Alesana and his wife left Tuvalu on account of climate change issues and rising sea water levels. After residing in New Zealand, Mrs. Alesana gave birth to their two children.
Although the IPT concluded (in a separate decision) that they were ineligible for refugee status, it determined that the family had strong ties to New Zealand and there were “exceptional circumstances which would make it unjust and unduly harsh to deport
the particular appellant from New Zealand" back to Tuvalu. The IPT posited that Mr. Alesana had six sisters residing in New Zealand as well as an elderly mother who needed assistance and relied heavily on him. In addition, both children were born and raised in New Zealand and part of an extensive family network. The IPT noted that "[l]ife in New Zealand
as part of an
extended family network is the only life they have known." The tribunal also observed that the children's young age "makes them inherently more vulnerable to
natural disasters and the adverse impact of climate change." The decision is fact-specific and climate change matters formed only part of the analysis. Indeed emphasis was placed on other considerations, and to the extent that climate change played a role, it appeared to be in connection with the impact on the children.
What this suggests is that humanitarian grounds as a a basis for legally remaining in the country for those fleeing their country of nationality on account of climate change will likely be limited and dependent on other compelling factors.
Conclusion
Through
little, if any, fault of their own, a number of societies are facing
drastic and imperiling changes to their living conditions due to climate
change and rising sea waters. There is a serious need for the international community to address these issues in a more comprehensive and attentive way. If current protection regimes are unable to address these matters, new ones need to be contemplated and the sooner the better. Regional and national approaches to refugee protection may provide some guidance.
Sources
Judgments
AD (Tuvalu) [2014] NZIPT 501370 (4 June 2014), online: <http://www.nzlii.org/nz/cases/NZIPT/2014/501370.html>.
Teitiota v The Chief Executive of the Ministry of Business, Innovation and Employment, [2014] NZCA 173, online: <http://img.scoop.co.nz/media/pdfs/1405/Teitiota_v_MBIE_CA502014_judgment.pdf>.
Articles
"NZ: Tuvalu ‘refugees’ given residency" Cook Island News (6 August 2014), online: <http://www.cookislandsnews.com/regional/item/47900-nz-tuvalu-refugees-given-residency/47900-nz-tuvalu-refugees-given-residency>.
Randy Astaiza, "11 Islands That Will Vanish When Sea Levels Rise" Business Insider (12 October 2012) online: Business Insider: <http://www.businessinsider.com/islands-threatened-by-climate-change-2012-10?op=1>.
Raveena Aulakh, "New Zealand decision created world’s first climate refugees" The Toronto Star (6 August 2014), online: The Toronto Star <http://www.thestar.com/news/world/2014/08/06/new_zealand_decision_created_worlds_first_climate_refugees.html>.
Amy Maas, "Tuvalu climate change family win NZ residency appeal" The New Zealand Herald (3 August 2014), online: The New Zealand Herald <http://www.nzherald.co.nz/nz/news/article.cfm?c_id=1&objectid=11303331>.
Rick Noack, "Has the era of the ‘climate change refugee’ begun?" The Washington Post (7 August 2014), online: The Washington Post <http://www.washingtonpost.com/blogs/worldviews/wp/2014/08/07/has-the-era-of-the-climate-change-refugee-begun/>.
