This article was first published in The Conversation (France) on 12 February 2020 and appears here translated from the original French version.
By Camille Malafosse and Domenico Zipoli
Mr. Teitiota, from the Kiribati archipelago, has moved to New Zealand, where he has been seeking asylum since 2007, arguing that climate change and rising sea levels are making the situation on Tarawa atoll the untenable and dangerous archipelago.
The Kiribati archipelago is among the most exposed to rising sea levels. It is threatened with disappearance from 2050 according to an estimate by the IPCC (Intergovernmental Panel on Climate Change). For Mr. Teitiota, the archipelago could even become uninhabitable in the next ten to fifteen years since the consequences of the rising waters include, among other things, salinization, which leads to the scarcity of drinking water, pollution, destruction of crops, frequent flooding and a decrease in habitable land creating often violent conflicts between communities.
In 2015, after a long legal process, the courts of New Zealand finally all rejected Mr. Teitiota's asylum request and thus forced him to return to Kiribati with his family. He then turned to the Human Rights Committee to request arbitration, alleging that New Zealand had violated articles 6 (right to life) of the International Covenant on Civil and Political Rights ("the Pact ”).
The UN Human Rights Committee: Observer of the Covenant
The United Nations Human Rights Committee is a body made up of 18 independent experts who monitor the implementation of the International Covenant on Civil and Political Rights by States parties.
In general, the Committee examines the reports which the 172 States parties are required to submit on the implementation of the rights enshrined in the Covenant. It then expresses its concerns and recommendations to the State party in the form of concluding observations.
The first Optional Protocol to the Covenant , which has been ratified by 116 States - including New Zealand - also allows the Committee to examine individual complaints from individuals such as Mr. Teitiota who consider themselves victims of a violation of a or several rights recognized by the Covenant, once all legal remedies have been exhausted at the domestic level.
The observations made by the Committee in its state reports or in the context of individual complaints procedures are not legally binding in themselves, although they impose an obligation on States parties to comply with them in good faith.
The impact of environmental factors and disasters resulting from climate change is recognized as having "complex effects on countries, communities, the well-being of individuals and their ability to enjoy and exercise their rights".
However, neither international law nor the Committee's decision speaks of a "climate refugee", and the reason is simple. Persons displaced for climatic reasons do not seem to be able to be recognized as refugees under the terms of the 1951 Convention relating to the Status of Refugees (known as the Geneva Convention) since a refugee is a person who
“Fearing with reason to be persecuted because of his race, religion, nationality, membership of a certain social group or his political opinions, is outside the country of which he is a national and who cannot or, because of this fear, does not want to claim the protection of this country ”.
The Geneva Convention and its protocol are the main instruments of international law defining both what a refugee is, what his rights are and finally what are the obligations of the signatory states towards him.
Although the five criteria set out in the above definition seem exhaustive, other regional instruments as well as the practice of certain States have made it possible to broaden this definition in order to adapt it to modern conflicts. In sum, people fleeing armed conflict are generally considered today as refugees. For those fleeing the effects of climate change, this seems more delicate for the moment.
One of the essential principles of the Geneva Convention is that the refugees are neither expelled nor returned to a situation where their life and their freedom would be threatened: it is the principle of non-refoulement . This is therefore anchored in international asylum law, but also in humanitarian law and customary law. It is in particular enshrined in article 6 of the Covenant, and thus protects not only refugees but all those who can demonstrate that their expulsion or return to their country of origin would constitute a real and personal threat to their life and their freedom. However, the bar remains very high.
The Committee thus considered that the personal situation of Mr. Teitiota and his family was insufficient to overturn the decision of the New Zealand Supreme Court, and that the latter had therefore not violated the principle of non-refoulement in returning the Teitiota family to the Kiribati Islands in 2015.
Interviewed by the authors for this article, Professor Gentian Zyberi director of the Norwegian Center for Human Rights and member of the Human Rights Committee explained:"It is very difficult to form an opinion contrary to the decision of the courts of New Zealand. In light of the facts and the law, the judgment is neither erroneous, nor arbitrary, nor does it violate Mr. Teitiota's fundamental rights. "
However, when the risks of uninhabitability become imminent, the Committee has observed that it could be illegal for governments to return people to countries where the effects of climate change expose them to life-threatening phenomena (Article 6 of the Covenant) or in which they run a real risk of being subjected to cruel, inhuman or degrading treatment (Article 7).
Although the category of “climate refugee” does not yet exist in international law and therefore there is no “minimum threshold” of eligibility, people fleeing the harmful effects of climate change and the The impact of disasters, whether they are sudden or slow in onset, may have valid reasons for claiming refugee status under the Geneva Convention or other regional refugee instruments. The Committee believes that the scientific evidence must be examined on a case-by-case basis in order to draw the necessary legal conclusions.
The New Zealand courts themselves had previously ruled that environmental damage could be interpreted as meeting the criteria for defining a refugee under the Geneva Convention.
Thus, in practice, the importance of national and international efforts to counter climate change is a key element of the Committee's decision. As Professor Zyberi always explains: "The Committee recognizes from the evidence presented that Tarawa may well become uninhabitable in ten to fifteen years because conditions are deteriorating. Two things can happen in this interval. First, national or international authorities may find some solution by putting in place measures that would delay or halt the sea level rise process and its consequences. Or, it is possible that the situation will deteriorate completely and then a person who goes into exile in another jurisdiction to claim asylum could not be returned to Kiribati under the rule of non-refoulement. All the inhabitants of Kiribati would then potentially be in this situation. "
Hence the importance of finding structural solutions - in particular for small Pacific states, through regional and international cooperation among states, or through a resolution of the UN General Assembly . In addition, it is not only a question of countering the effects of climate change by the development of environmental policies, but also of thinking about the relocation of future displaced people.
If the Committee recognizes that the environmental policies of Kiribati show that the national authorities are seeking to remedy the causes and effects of climate change, in 2019 it received a communication from the Aboriginal communities of the Torres Strait (Australian islands located between Australia and the New Guinea) and their lawyers claiming that global warming threatens their survival and that the Australian authorities' inaction therefore constitutes a violation of their human rights. More specifically, they believe that their right to life, family life and culture guaranteed by the Pact are directly threatened by the Australian government's pro-coal policies.
Although this complaint is currently at the admissibility stage before the Committee, it has been described as "potentially revolutionary" by Professor John Knox, first UN Special Rapporteur on human rights and the environment. Indeed, under the Covenant and according to a comment by the Committee , state responsibility for the protection of populations depends, inter alia, on "measures taken by States parties to preserve the environment and protect it from damage, pollution and climate change resulting from the activity of public and private actors ”.
Even if the Committee takes into account the complaint of the inhabitants of the Strait of Torres, its decision cannot be legally binding. But it would help put pressure on the Australian government, in the same way as the case of Mr. Teitiota reminds the international community that the time to act, and to act together… it was already yesterday.