No, Teitiota isn’t a win for ‘climate change refugees’, and we shouldn’t be calling it one
By: Joe Fox
Tags: Refugees, International Law, Kiribati, Human Rights, Climate Change

Photo: Justin McManus, The Age

Earlier this year, the United Nations Human Rights Committee (‘HRC’) handed down a historic ruling in Teitiota v New Zealand. In a first for the UN, the Committee acknowledged that the effects of climate change could one day be severe enough to engage a states’ non-refoulement obligations under articles 6 and 7 of the International Covenant on Civil and Political Rights. Notwithstanding the significance of this acknowledgement, part of what makes this decision so remarkable is just how much of the commentary surrounding it has overlooked its most critical aspect — Mr Teitiota lost.

The HRC’s ruling follows a seven-year-long legal battle in which Mr Teitiota sought to prevent his deportation from New Zealand to Kiribati — where he claimed his right to life under article 6 would be at risk due to the effects of climate change. He submitted that rising sea-levels had caused land scarcity and subsequent violent conflicts; contaminated Kiribati’s limited freshwater supply and had caused environmental degradation which made growing crops and subsisting difficult. While the Committee found Mr Teitiota to be ‘entirely credible’ it rejected that these impacts had yet risen to a level that would threaten Mr Teitiota’s right to life. However, the Committee noted that:

“without robust national and international efforts, the effects of climate change in receiving states may expose individuals to a violation of their rights under articles 6 or 7 of the Covenant, thereby triggering the non-refoulement obligations of sending states. Furthermore, given that the risk of an entire country becoming submerged underwater 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”

Reactions to this acknowledgement were quick to announce its possible implications for future asylum claims emanating from communities vulnerable to climate change. What had begun as an effort to extend his visa quickly turned Mr Teitiota into a celebrity — ‘the world’s first climate change refugee’ and a stand-in for the millions set to be displaced by the effects of climate change.

Headlines proclaiming that Teitiota ‘opens the door to future climate change asylum claims’ or that ‘climate refugees can longer be forced home’ have heralded the decision as a watershed moment in international law and with good reason. The HRC’s ruling marks a turning point in a long line of international and domestic jurisprudence that has held that international refugee and human rights law has a ‘protection gap’ with respect to climate change displacement. But has our desire to ‘solve’ the displacement crisis that is likely to result from climate change coloured our perception of this decision?

Firstly, despite what the headlines might suggest, the protection gap with respect to climate change displacement has not been resolved. In fact, the decision sets an extremely high threshold for international protection and one that is arguably higher than what has been applied in other contexts. In cases involving long-term drivers of risk like healthcare and conflict, courts and tribunals have been willing to afford applicants a long-term assessment of their predicament and extend the ‘benefit of the doubt’ with respect to potential but uncertain mitigating factors. Instead, the Committee in Teitiota considered that the 10 to 15 years Kiribati had to mitigate the effects of sea-level rise meant that Mr Teitiota’s right to life was not at risk. Kiribati’s National Adaptation Programme was critical to this determination. However, as one of the dissenting opinions points out, key aspects of this policy — particularly with respect to water security — have yet to be implemented. The existence of adaptive measures should not be taken as a measure of their efficacy, potential or otherwise. Indeed, while the Intergovernmental Panel on Climate Change has forecast that mitigation and adaptation policies could offset the current trajectory of climate change, it’s latest assessment report suggests that global actions are far from doing so.

Significantly, the Committee continues to import notions like ‘imminence’ in its application of the ‘real risk’ standard. This concept — which has been outrightly rejected by leading scholars of international law — risks imposing an even higher burden on claimants seeking international protection. It obscures principles that are meant to ask ‘not (whether there is a) certainty of harm, but whether there is a real risk of it’. If it continues to be invoked in cases involving long-term risks like climate change — even implicitly — then at-risk individuals may only be able to gain international protection once their predicament reaches crisis proportions.

Noting these more challenging aspects of the HRC’s reasoning, it is concerning that Teitiota has been heralded as a win for climate-exposed communities. These headlines also mask a more concerning aspect of our discourse around climate change displacement- namely that so much of it occurs without regard to its implications or those actually affected by it. For a start, let’s stop calling people like Mr Teitiota ‘climate refugees’. Notwithstanding the fact that is not applicable to Mr Teitiota’s situation as his claim before the HRC did not concern the 1951 Refugee Convention, many climate-exposed communities do not wish to be associated with the term.

The term ‘refugee’ and the narrative it connotes also risks ‘essentializing how and why people move in response to the impacts of disasters and climate change’. This restricts our ability to respond to this kind of movement by constructing a narrative that people will only move at the point of crisis. Instead, thresholds of change will vary across climate-exposed communities — prompting migration as an adaptation strategy at different stages of their experience with the climate crisis.

How international lawyers talk matter. Indeed, the works of pre-eminent scholars are itself a source of international law. But when decisions such as Teitiota are heralded without critical scrutiny we risk allowing potentially problematic aspects of their reasoning to go unchecked. A case-in-point example of this — both the OHCHR and the UNHCR Special Advisor on Climate Action both stated after the decision that Teitiota sets an ‘imminent risk’ precedent.

Rather than call out these interpretative inconsistencies, our desire to resolve the climate change displacement protection gap has instead led us to highlight developments that have little practical utility for climate-exposed communities or — worse yet — see solutions where there aren’t any. For example, New Zealand’s Pacific Visa category has been regarded as a way of extending international protection from the effects of climate change despite the fact that it operates on a merit basis.

None of this should take away from the landmark significance of the Teitiota decision. Indeed, the HRC’s acknowledgement unlocks a door within the international law that for decades has been regarded as impenetrable. However, the door is far from being opened, and those that may decide to use it may be left waiting a long time. In fact, key aspects of the Committee’s reasoning impose a greater burden on those seeking protection than that traditionally required under international law. Commentators and international lawyers would do well to confront this inconsistency and acknowledge that international protection is not itself a solution to climate change displacement. It is the least we owe to these communities.