By Paul Van Benthem

Photo by Jcob Nasyr on Unsplash

Since 1992, as the United Nations treaty body for the International Covenant on Civil and Political Rights (ICCPR), the Human Rights Committee (HRC) has been tasked with interpreting the scope and content of the “right to life” (Article 6). In September 2019, the HRC noted climate change was among “the most pressing and serious threats to the ability of present and future generations to enjoy the right to life”. This may lead speculators to wonder how this idea might influence the HRC’s decisions concerning individuals facing deportation back to areas that are becoming progressively uninhabitable due to climate change.

The definition of “refugee” under the Refugee Convention only includes people leaving their country for fear of persecution for their race, religion, nationality, or membership in a social group. This often leaves individuals who abandon their nations because of climate risks without protection from being deported to conditions that threaten their right to life. In the case of Teitiota v New Zealand, a resident of the Pacific island nation of Kiribati, attempted to supplement existing refugee law by claiming that deporting victims of climate change violated States’ obligations to protect individuals right to life with dignity.

Many communications heard by the HRC are submitted by persons who claim that they are at risk of being deported by States that are parties to the ICCPR, and that deportation would violate the provisions of the ICCPR.  As the effects of global warming become more prevalent, the HRC’s views in Teitiota provide insight into issues that are likely to be considered in future cases.

The Case of Teitiota

Mr. Teitiota lives in Kiribati, a low-lying Pacific Island of about 120,000 inhabitants. Sea level rise created social and ecological challenges that made living in Kiribati increasingly difficult. Mr. Teitiota fled to New Zealand with his partner in 2007 and filed an asylum claim. While in New Zealand, Mr. Teitiota and his partner had two children.

New Zealand authorities issued an order to deport Mr. Teitiota and his family after denying his claim for asylum. After appeals in New Zealand were unsuccessful, Mr. Teitiota took his case to the HRC, claiming that deportation of he and his family back to Kiribati would violate his right to life under Article 6 of the ICCPR.

Mr. Teitiota’s claim centered on the risks posed by sea level rise and the accompanying adverse social conditions exacerbated by climate effects (para 3). Other than referring to the current social conditions in Kiribati (e.g., flooding, economic challenges, et cetera), Mr. Teitiota provided evidence of future effects of climate change on the nation. Mr. Teitiota submitted a report published by the Intergovernmental Panel on Climate Change (IPCC), which the HRC recognized as indicating “Kiribati would face serious survival issues if the increase in global temperatures and sea level continued.” Kiribati’s situation is unique because the rise of sea level threatens the entire nation, making internal relocation of populations next to impossible.

A violation of article 6 requires that the conditions in the country of origin constitute a “real risk” to a person’s ability to enjoy the right to life with dignity. The HRC noted that such a risk must be “personal in nature”. In some cases, the HRC has also accepted that risk present in the general conditions in the country may be sufficient in passing the “real risk” test. Elsewhere, the HRC has suggested that the risk must be “imminent” upon return to the receiving country.

In Teitiota, the HRC made a significant finding when it acknowledged that “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” (para 9.11). Not only did the HRC appear to accept that rising sea levels may constitute an extreme form of risk arising from general conditions, it rejected the argument that climate risk must be imminent upon a person return to the country of origin.

However, the HRC also pointed to factors weighing against finding that Mr. Teitiota and his family would face a real risk to their lives upon return to Kiribati. In particular, the HRC referred to the observation of the New Zealand Tribunal, which stated that Kiribati was taking adaptive measures to mitigate the effects of climate change. The HRC accepted that the timeline for taking such adaptive measures “could allow for intervening acts by Kiribati, with the assistance of the international community, to take affirmative measures” (para 9.12), including population relocation. Given there was no mention in the New Zealand Tribunal’s decision of ongoing international support or promises of support, it is difficult to interpret such findings as more than speculation.

Interestingly, other than stating New Zealand’s observations, the HRC did not assess how such adaptive measures could counteract the effect of climate change, but rather accepted Mr. Teitiota’s claim that sea level rise will likely “render Kiribati uninhabitable” in a 10-to-15-year time window (para 9.12).  Thus, while the HRC acknowledged sea level rise may pose an “extreme risk” to the inhabitants of Kiribati, Teitiota suggests a low threshold for required adaptation measures to overcome such risks.

In the end, however, the HRC rejected Mr. Teitiota’s claim by adopting its conventional approach of deferring to the New Zealand tribunal, since the HRC must show “clear arbitrariness, error or injustice”, to reverse the domestic tribunal’s decision. The HRC decided that the New Zealand Tribunal’s evaluation did not show any such issues, and thus rejected Mr. Teitiota’s claim without determining whether the conditions in Kiribati posed an individual risk to Mr. Teitiota. It is difficult to say whether the HRC’s conclusion would have been different if it had conducted its own assessment of risk. As reports indicate greater numbers of people vulnerable to sea-level rise, more cases like Teitiota involving individuals fleeing sinking states are likely to arise in the future.

About the author: Paul Van Benthem is a third-year student at the Peter A. Allard School of Law and is working with the IJHR Clinic as part of the UN Human Rights Committee team.