A United Nations panel has ruled refugees fleeing the effects of the climate crisis cannot be forced to return home by their adoptive countries:
[CNN Report: Climate refugees cannot be sent back home, United Nations rules in landmark decision]
Factual background
2.1 The author claims that the effects of climate change and sea level rise forced him to migrate from the island of Tarawa in the Republic of Kiribati to New Zealand. The situation in Tarawa has become increasingly unstable and precarious due to sea level rise caused by global warming. Fresh water has become scarce because of saltwater contamination and overcrowding on Tarawa. Attempts to combat sea level rise have largely been ineffective. Inhabitable land on Tarawa has eroded, resulting in a housing crisis and land disputes that have caused numerous fatalities. Kiribati has thus become an untenable and violent environment for the author and his family.
2.2 The author has sought asylum in New Zealand, but the Immigration and Protection Tribunal issued a negative decision concerning his claim for asylum. Still, the Tribunal did not exclude the possibility that environmental degradation could “create pathways into the Refugee Convention or protected person jurisdiction.” The Court of Appeal and the Supreme Court each denied the author’s subsequent appeals concerning the same matter.
2.3 In its decision of 25 June 2013, the Immigration and Protection Tribunal first examined in detail the 2007 National Adaptation Programme of Action filed by the Republic of Kiribati under the United Nations Framework Convention on Climate Change. As described by the Tribunal, the National Adaptation Programme of Action stated that the great majority of the population had subsistence livelihoods that were heavily dependent on environmental resources. The Programme of Action described a range of issues that had arisen from the existing and projected effects of climate change-related events and processes. Among the effects of climate change, coastal erosion and accretion were most likely to affect housing, land and property. In South Tarawa, 60 sea walls were in place by 2005. However, storm surges and high spring tides had caused flooding of residential areas, forcing some to relocate. Attempts were being made to diversify crop production, for example, through the production of cash crops. Most nutritious crops were available and could be prepared into long-term preserved food. However, the health of the population had generally deteriorated, as indicated by vitamin A deficiencies, malnutrition, fish poisoning, and other ailments reflecting the situation of food insecurity.
2.4 The Tribunal next considered the expert testimony of John Corcoran, a doctoral candidate researching climate change in Kiribati at the University of Waikato in New Zealand. Mr. Corcoran, a national of the Republic of Kiribati, characterized the country as a society in crisis owing to climate change and population pressure. The islands constituting the country rose no more than three meters above sea level. Soils were generally poor and infertile. Unemployment was high. The population of South Tarawa had increased from 1,641 in 1947 to 50,000 in 2010. In Tarawa and certain other islands of Kiribati, the scarcity of land engendered social tensions. Violent fights often broke out and sometimes led to injuries and deaths. Rapid population growth and urbanization in South Tarawa had compromised the supply of fresh water. No island in Kiribati had surface fresh water. As a result of the increase in population, the rate of water extraction from the freshwater lens exceeded the rate of its replenishment through the percolation of rainwater. Waste contamination from Tarawa had contributed to pollution of the freshwater lens, rendering some of the five underground water reserves unfit for the supply of fresh drinking water. Increasingly intense storms occurred, submerging the land in certain places on South Tarawa and rendering it uninhabitable. This often occurred three or four times a month. Rising sea levels caused more regular and frequent breaches of sea walls, which were in any case not high enough to prevent saltwater intrusion over the land during high tides. Household wells in high-density housing areas could not be used as a water supply due to increasing contamination, and rainwater catchment systems were only available in homes constructed of permanent materials. Thus, approximately 60 per cent of the population of South Tarawa obtained fresh water exclusively from rationed supplies provided by the public utilities board. Trash washed onto the beach posed health hazards for local landowners. According to Mr. Corcoran, the Government of the Republic of Kiribati was taking some steps to address this. It had a Programme of Action in place to help communities adapt to climate change.1
2.5 Next, the Tribunal examined the testimony given by the author during the appeal hearing. According to the Tribunal’s description of the testimony, the author was born on an islet situated north of Tarawa, a journey of several days away by boat. He completed secondary school and obtained employment for a trading company, which ended in the mid-1990s when the company folded. He had not been able to find work since then. In 2002, the author and his wife moved in with his wife’s family in a traditionally-constructed dwelling in a village in Tarawa. The dwelling was situated on ground level and had electricity and water but no sewage services. Beginning in the late 1990s, life progressively became more insecure on Tarawa because of sea level rise. Tarawa became overcrowded due to the influx of residents from outlying islands, because most government services, including those of the main hospital, were provided on Tarawa. As villages became overcrowded, tensions arose. Also beginning in the late 1990s, Tarawa suffered significant amounts of coastal erosion during high tides. The land surface regularly flooded, and land could be submerged up to knee-deep during king tides. Transportation was affected, since the main causeway separating north and south Tarawa was often flooded. The situation caused significant hardship for the author and other inhabitants of Tarawa. The wells on which they depended became salinized. Salt water was deposited on the ground, resulting in the destruction of crops. The land was stripped of vegetation in many places, and crops were difficult to grow. The author’s family relied largely on subsistence fishing and agriculture. The sea wall in front of the author’s in-laws’ home was often damaged and required constant repair. The author and his wife left the Republic of Kiribati for New Zealand because they wished to have children, and had received information from news sources that there would be no future for life in their country. The author accepted that his experiences were common to people throughout the Republic of Kiribati. He believed that the country’s Government was powerless to stop the sea level rise. Internal relocation was not possible. The author’s parents lived on Tarawa but faced similar environmental and population pressures.
2.6 The Tribunal also considered the oral testimony of the author’s wife. According to the Tribunal, she testified that she was born in the late 1970s on Arorae Island, in the south of the Republic of Kiribati. In 2000, her family moved to Tarawa. She married the author in 2002. Her parents’ house there was situated on the edge of a sea wall. The house and land were not owned by her parents but belonged to a neighbor. Since her arrival in New Zealand, the neighbor had passed away, and his children had been demanding that her family vacate the house. Her family was supported financially by one of her brothers, who had obtained employment in South Tarawa. If the family were obligated to vacate the house, they would have to travel back to Arorae Island and settle on a small plot of land. She was concerned for the family’s health and well-being. The land was eroding due to the effects of sea level rise. The drinking water was contaminated with salt. Crops were dying, as were the coconut trees. She had heard stories of children getting diarrhea and even dying because of the poor quality of the drinking water. Land was becoming very overcrowded, and houses were close together, which led to the spread of disease.
2.7 The Tribunal also considered many supporting documents submitted by the author, including several scholarly articles written by United Nations entities and experts. The Tribunal analyzed whether the author could qualify as a refugee or a protected person under the Refugee Convention, the Convention against Torture, or the Covenant. It found the author entirely credible. It noted that the carrying capacity of the land on the Tarawa atoll had been negatively impacted by the effects of population growth, urbanization, and limited infrastructure development, particularly in relation to sanitation. These impacts had been exacerbated by both sudden-onset environmental events, such as storms, and slow-onset processes, such as sea level rise. The Tribunal noted that the author had been unemployed for several years before arriving in New Zealand, and had relied on subsistence agriculture and fishing, while receiving financial support from his wife’s brother. The Tribunal noted the author’s statement that he did not wish to return to the Republic of Kiribati because of the difficulties he and his family faced there, due to the combined pressures of overpopulation and sea level rise. The house they were living in on South Tarawa was no longer available to them on a long-term basis. Although the couple’s families had land on other islands, they would face similar environmental pressures there, and the land available was of limited size and was occupied by other family members.
2.8 After a lengthy analysis of international human rights standards, the Tribunal considered that “while in many cases the effects of environmental change and natural disasters will not bring affected persons within the scope of the Refugee Convention, no hard and fast rules or presumptions of non-applicability exist. Care must be taken to examine the particular features of the case.” After further examination, the Tribunal concluded that the author did not objectively face a real risk of being persecuted if returned to Kiribati. He had not been subjected to any land dispute in the past and 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. He would be able to find land to provide accommodation for himself and his family.1 Moreover, there was no evidence to support his contention that he was unable to grow food or obtain potable water. There was no evidence that he had no access to potable water, or that the environmental conditions that he faced or would face on return were so perilous that his life would be jeopardized. For these reasons, he was not a “refugee” as defined by the Refugee Convention.
2.9 Regarding the Covenant, the Tribunal noted that the right to life must be interpreted broadly, in keeping with the Committee’s general comment No. 6 (1982) on article 6. The Tribunal cited academic commentary stating that under article 6, an arbitrary deprivation of life involves an interference that is: (a) not prescribed by law; (b) not proportional to the ends sought; and (c) not necessary in the particular circumstances of the case.2 On this basis, the Tribunal accepted that the right to life involves a positive obligation of the state to fulfil this right by taking programmatic steps to provide for the basic necessities for life. However, the author could not point to any act or omission by the Government of Kiribati that might indicate a risk that he would be arbitrarily deprived of his life within the scope of article 6 of the Covenant. The Tribunal considered that the Government of Kiribati was active on the international stage concerning the threats of climate change, as demonstrated by the 2007 Programme of Action. Moreover, the author could not establish that there was a sufficient degree of risk to his life, or that of his family, at the relevant time. Quoting the Committee’s jurisprudence in Aalbersberg et al. v. the Netherlands (CCPR/C/87/D/1440/2005), the Tribunal stated that under the Optional Protocol, the risk of a violation of the Covenant must be “imminent.” This means that the risk to life must be, at least, likely to occur. No evidence was provided to establish such imminence. The Tribunal accepted that, given the greater predictability of the climate system, the risk to the author and his family from sea level rise and other natural disasters could, in a broad sense, be regarded as more imminent than the risk posed to the life of the complainants in Aalbersberg et al v. the Netherlands. However, the risk to the author and his family still fell the Refugee Convention, the Convention against Torture, or the Covenant. It found the author entirely credible. It noted that the carrying capacity of the land on the Tarawa atoll had been negatively impacted by the effects of population growth, urbanization, and limited infrastructure development, particularly in relation to sanitation. These impacts had been exacerbated by both sudden-onset environmental events, such as storms, and slow-onset processes, such as sea level rise. The Tribunal noted that the author had been unemployed for several years before arriving in New Zealand, and had relied on subsistence agriculture and fishing, while receiving financial support from his wife’s brother. The Tribunal noted the author’s statement that he did not wish to return to the Republic of Kiribati because of the difficulties he and his family faced there, due to the combined pressures of overpopulation and sea level rise. The house they were living in on South Tarawa was no longer available to them on a long-term basis. Although the couple’s families had land on other islands, they would face similar environmental pressures there, and the land available was of limited size and was occupied by other family members.
2.8 After a lengthy analysis of international human rights standards, the Tribunal considered that “while in many cases the effects of environmental change and natural disasters will not bring affected persons within the scope of the Refugee Convention, no hard and fast rules or presumptions of non-applicability exist. Care must be taken to examine the particular features of the case.” After further examination, the Tribunal concluded that the author did not objectively face a real risk of being persecuted if returned to Kiribati. He had not been subjected to any land dispute in the past and 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. He would be able to find land to provide accommodation for himself and his family.1 Moreover, there was no evidence to support his contention that he was unable to grow food or obtain potable water. There was no evidence that he had no access to potable water, or that the environmental conditions that he faced or would face on return were so perilous that his life would be jeopardized. For these reasons, he was not a “refugee” as defined by the Refugee Convention.
2.9 Regarding the Covenant, the Tribunal noted that the right to life must be interpreted broadly, in keeping with the Committee’s general comment No. 6 (1982) on article 6. The Tribunal cited academic commentary stating that under article 6, an arbitrary deprivation of life involves an interference that is: (a) not prescribed by law; (b) not proportional to the ends sought; and (c) not necessary in the particular circumstances of the case.2 On this basis, the Tribunal accepted that the right to life involves a positive obligation of the state to fulfil this right by taking programmatic steps to provide for the basic necessities for life. However, the author could not point to any act or omission by the Government of Kiribati that might indicate a risk that he would be arbitrarily deprived of his life within the scope of article 6 of the Covenant. The Tribunal considered that the Government of Kiribati was active on the international stage concerning the threats of climate change, as demonstrated by the 2007 Programme of Action. Moreover, the author could not establish that there was a sufficient degree of risk to his life, or that of his family, at the relevant time. Quoting the Committee’s jurisprudence in Aalbersberg et al. v. the Netherlands (CCPR/C/87/D/1440/2005), the Tribunal stated that under the Optional Protocol, the risk of a violation of the Covenant must be “imminent.” This means that the risk to life must be, at least, likely to occur. No evidence was provided to establish such imminence. The Tribunal accepted that, given the greater predictability of the climate system, the risk to the author and his family from sea level rise and other natural disasters could, in a broad sense, be regarded as more imminent than the risk posed to the life of the complainants in Aalbersberg et al v. the Netherlands. However, the risk to the author and his family still fell well short of the threshold required to establish substantial grounds for believing that they would be in danger of arbitrary deprivation of life within the scope of article 6 of the Covenant. This risk remained firmly in the realm of conjecture or surmise. There was no evidence establishing that his situation in the Republic of Kiribati would be so precarious that his or his family’s life would be in danger. The Tribunal noted the testimony of the author’s wife that she feared her young children could drown in a tidal event or storm surge. However, no evidence had been provided to establish that deaths from such events were occurring with such regularity as to raise the prospect of death occurring to the author or his family members to a level rising beyond conjecture and surmise, let alone a risk that could be characterized as an arbitrary deprivation of life. Accordingly, there were not substantial grounds for believing that the author or any of his family members would be in danger of a violation of their rights under article 6 of the Covenant. The Tribunal also found that there was not a substantial risk that the author’s rights under article 7 of the Covenant would be violated by his removal.
2.10 The author also provided a copy of the decision of the Supreme Court, which denied the author’s appeal of the decision of the Tribunal on 20 July 2015. The Court considered, inter alia, that while the Republic of Kiribati undoubtedly faced challenges, the author would not, if returned there, face serious harm. Moreover, there was no evidence that the Government of the Republic of Kiribati was failing to take steps to protect its citizens from the effects of environmental degradation to the extent that it could. The Supreme Court was also not persuaded that there was any risk that a substantial miscarriage of justice had occurred. Nevertheless, the Court did not rule out the possibility that environmental degradation resulting from climate change or other natural disasters could “create a pathway into the Refugee Convention or other protected person jurisdiction.”
The complaint
3. The author claims that by removing him to Kiribati, New Zealand violated his right to life under the Covenant. Sea level rise in Kiribati has resulted in: (a) the scarcity of habitable space, which has in turn caused violent land disputes that endanger the author’s life; and (b) environmental degradation, including saltwater contamination of the freshwater supply.
RULING
9.5 The Committee also observes that it, in addition to regional human rights tribunals, have established that environmental degradation can compromise effective enjoyment of the right to life,1 and that severe environmental degradation can adversely affect an individual’s well-being and lead to a violation of the right to life.2