LAW MANTRA THINK BEYOND OTHERS (National Monthly Journal, I.S.S.N 23216417)

"Ioane Teitiota

v.

The Chief Executive of the Ministry of Business Innovation and Employment [2013]

NZHC 3125"

Introduction

In recent years there has been a lot of debate on the status of persons displaced from their

countries due to rapid growth in climate change. While some are of the opinion that they

should be termed as environmental refugees, others are against the notion of labelling them as

a refugee, since there is lack of persecution among factors necessary to establish them as

refugee under the current legal framework. The effect of recognition as environmental refugees

would be, to entitle them to certain rights available under the UN convention on refugees.

However the present position is that they do not find protection under any international

instrument. In light of this situation courts are bound to uphold the letter of the law and seem as

helpless as the people in these situations in coming to a decision averse to these persons

interests. The authors intend to look into this case as an example of the fate of people displaced

due to climate change under the current legal regime.

Background

Refugees are among the most vulnerable people in the world. Therefore to protect the refugees

and to safeguard their rights, Article 14(1) of the Universal Declaration of human rights 19481,

recognizes the right of persons to seek asylum from persecution in other countries2. The United

Nations came up with Refugee Convention 1951 for further strengthening the refugee laws, the

1 Everyone has the right to seek and to enjoy in other countries asylum from persecution. 2 United Nation General Assembly resolution 429(V) of 14 December 1950, [last accessed-30th March 2014]; http://www.unhcr.org/refworld/docid/3b00f08a27.html

Convention came into force on 22 April 1954, and was only once amendment in the form of a

1967 Protocol, which removed the geographic and temporal limits of the 1951 Convention.3

The Convention and the Protocol specifies the rights of the refugees and the duties of the 148

States that are party to one or both of these instruments. Under these two instruments, United

Nations High Commissioner for Refugees (UNHCR) has a particular role. States comply with

UNHCR in the exercising of its functions which are set out in its Statute of 1950 along with a

range of other General Assembly resolutions.

New Zealands obligations towards 1951 Convention and 1967 Protocol is not to expel or

return a refugee to any other country or border, where their life or freedom would be threatened

on account of their race, religion, nationality, membership of a particular social group or

political opinion. The Refugee laws of New Zealand are incorporated under Immigration Act

2009. New Zealand also abides to other Conventions as well; these conventions through their

Articles support the refugee laws in different dimensions and aspects. These Conventions are

as follows-

Article 3 of Convention against Torture and Other Cruel, Inhuman or Degrading

Treatment or Punishment, 19844.

Article 6(1)5 and Article 76 of International Covenant on Civil and Political Rights,

1966. Articles 6 and 7 create absolute obligations not to send a person back to another

country in certain circumstances.7

Article 38 and Article 99 of the Convention on the Rights of the Child, 1989.10

3 Protocol relating to the Status of Refugees; [last accessed-30th March 2014] ; http://www.refworld.org/cgi-bin/texis/vtx/rwmain?docid=3b00f1cc50 4 No State party may expel or extradite a person to a State where there are substantial grounds for believing that he would be in danger of being subjected to torture 5 Every human being has the inherent right to life. This right shall be protected by law. No one shall be arbitrarily deprived of his life. 6 No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment. In particular, no one shall be subjected without his free consent to medical or scientific experimentation. 7 International Covenant on Civil and Political Rights; [Last accessed-1st April 2014]; http://legal.un.org/avl/ha/iccpr/iccpr.html 8 The best interests of children must be the primary concern in making decisions that may affect them. All adults should do what is best for children. When adults make decisions, they should think about how their decisions will affect children. This particularly applies to budget, policy and law makers. 9 Children have the right to live with their parent(s), unless it is bad for them. Children whose parents do not live together have the right to stay in contact with both parents, unless this might hurt the child. 10 A summary of the rights under the Convention on the Rights of the Child; [Last accessed- 1st April 2014]; http://www.unicef.org/crc/files/Rights_overview.pdf

Kiribati, officially known as the Independent and Sovereign Republic of Kiribati is one of the

poorest countries. It is an island nation in the central tropical Pacific Ocean. The small island

States most vulnerable to extinction, they are members of the group of Small Island

Developing States (SIDS), and Kiribati, amongst others, belong to the group of Least

Developed Countries (LDCs).11

People who live on Kiribati's main island which is South Tarawa duly rely on the surrounding

seas for their livelihoods. But ocean is the greatest threat to their future survival; the island is

not more than 2m (6ft 6in) above sea level.12 Therefore, the country adopted the Kiribati Adaptation Program (KAP) which aims to reduce Kiribatis vulnerability to climate change, climate variability and

sea level rise by raising awareness of climate change, assessing and protecting available water resources

and managing coastal erosion; and population settlement planning to reduce personal risks.13 However

even after repeated trials by the Kiribati officials, there is not much success reached following adoption

of the program.

Facts

The applicant, resident of Kiribati Island after completing his secondary education went to stay

with his relatives in Tawara Islands and was unemployed in 90s. In 2002, he got married and

due to insecurity regarding the climate, decided to settle in New Zealand in 2007. The couple

had three children in New Zealand but could not be citizens of New Zealand after the, The

Citizenship Amendment Act 2005, which changed section 6(1) of the Citizenship Act14 ( Prior

to this amendment all persons born in New Zealand on or after 1 January 1949 were New

Zealand citizens).

After the lapse of the due time, they were asked to leave New Zealand. But the appellant did

not wish to return to Kiribati because of the difficulties they faced due to the combined

pressures of over-population 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 their families have land on

11The listing of Small Island Developing States prepared by the UN Office of the High Representative for the Least Developed Countries, Landlocked Developing Countries and Small Island Developing States;[ Last accessed - 7th April, 2014]; http://www.un.org/special-rep/ohrlls/sid/list.htm

12Republic of Kiribati Island Report Series, South Tawara; [Last accessed- 2nd April 2014]; http://www.climate.gov.ki/wp-content/uploads/2013/01/6_SOUTH-TARAWA-revised-2012.pdf. 13Kiribati Adaption Program; [Last accessed 2nd April 2014]; http://www.climate.gov.ki/kiribati-adaptation-program/ 14 Under the Citizenship Act 1977 an individual will only be a New Zealand citizen by birth if under s 6(1)(a) the person was born in New Zealand on or after 1 January 1949 and before 1 January 2006; or if under s 6(1)(b) the person was born in New Zealand on or after 1 January 2006 and at least one of the persons parents was a New Zealand citizen or entitled in terms of the Act to reside in New Zealand indefinitely. Neither section applies.

other islands, they face similar environmental pressures and the land available is of limited size

and has other family members living there.

A refugee and protection officer declined to grant the applicant refugee status and/or protected

person status. The applicant exercised his statutory right of appeal to the Immigration and

Protection Tribunal (the Tribunal). The Tribunal held that the applicant was neither a refugee

nor a protected person. The issue then went before the Honble High Court of New Zealand as

the applicant filed a leave to appeal under Section 245 of the Immigration Act 2009 from the

decision of Immigration and Protection Tribunal. The Court while supporting the view of the

Tribunal rejected the leave to appeal.

Analysis

The Refugee convention is clear in that it covers only five conventional grounds on the basis of

which a person can claim protection as a refugee. In its observation of the term refugee, the

Honble High Court of New Zealand came to the conclusion that while protection for the

individuals, displaced due to climate change might be desirable, but the absence of well-

founded fear of persecution on grounds of race, religion, nationality, membership of a

particular social group or political opinion is the main factor because of which they cannot

receive protection under this framework on refugee law.

In the given case the applicant belonged to Kiribati which is part of the group of islands called

as Sinking islands. Sea level rise poses one of the most widely recognized climate change

threats to low lying coastal areas on islands and atolls.15 While considering the problem of the

low lying islands, IPCC recently referred to Storey and Hunter 16 to conclude that the Kiribati

problem does not refer to the whole of Kiribati but rather to the southern part of Tarawa atoll

where pre existing issues of severe overcrowding, proliferation of informal housing and

unplanned settlement, inadequate water supply, poor sanitation and solid waste disposal,

pollution and conflict over land ownership are of concern. They stated that these problems

require immediate resolution, if the vulnerability of the South Tarawa community to the real

and alarming threat of climate change is to be managed effectively. Health issues are not far.

In Pacific islands, the incidence of diseases such as malaria and dengue fever has been

increasing, especially endemic dengue in Samoa, Tonga and Kiribati. Studies conducted so far

15IPCC ; Climate Change 2014: Impacts, Adaptation, and Vulnerability; Chapter 29, Small Islands, Volume II; [Last accessed- 12th April 2014]; http://ipcc-wg2.gov/AR5/report/final-drafts/

16Storey, D. and S. Hunter; Kiribati: an environmental 'perfect storm'; 41(2), 167-181 ( 2010)

in the Pacific have established a direct link between malaria, dengue and climate variability,

these and other health risks including cholera, are projected to increase as a consequence of

climate change.17

The applicant along with his wife had left Tarawa atoll for New Zealand since they wished to

raise children and were insecure because of ocean inundation. The Immigration and Protection

Tribunal had accepted evidence with regard to the effects on the population of South Tarawa

caused due to population growth, urbanization, limited infrastructure in light of sudden onset

environmental events and slow onset process, but rejected the plea of the applicant to be

considered as internally displaced person who had a right to be protected under refugee status

in New Zealand. The basis being that Article 1A(2) does not cover Internally Displaced

persons since they are not outside their country of nationality.

The Immigration and Protection Tribunal while deciding on the issue, had then observed, a

view which found approval by High Court as well, that though the possibility that natural

disasters may lead to persecution cannot be ruled out but it is recognized that in most cases

natural disasters affect persons indiscriminately, thus ruling out persecution. Drawing on the

same lines it was concluded that since the population of Kiribati was facing the same situation

as the applicant, there was absence of well-founded fear of persecution. In spite knowing there

might be conflict as a result of events brought on by climate change.

This view of exclusion of climate change refugee from the protection under Refugee

Convention is the current approach under the international framework. Mr. Antnio Guterres,

UN High Commissioner for Refugees has noted, that UNHCR has a duty to alert states to these

problems and help find answers to the new challenges they represent.18 Climate change is

argued not to give rise to persecution. It is said that whether something amounts to

persecution is assessed according to the nature of the right at risk, the nature and severity of

the restriction, and the likelihood of the restriction eventuating in the individual case.19

The first problem which then arises is identifying the persecutor which poses such a risk. The

counsel for the applicant did not identify the government of Kiribati, but identified the

international community as a persecutor holding out its failure to control greenhouse gases

17 Russell, L; Poverty, Climate Change and Health in Pacific Island Countries; (2009)

18 Opening Statement by Mr. Antnio Guterres, United Nations High Commissioner for Refugees, at the High Commissioner's Dialogue on Protection Challenges; Theme: "Refugee Protection, Durable Solutions and International Migration," Geneva, 11 December 2007; [Last accessed - 7th April 2014] http://www.unhcr.org/475fb70f4.html 19 G. S. Goodwin-Gill and J. McAdam, The Refugee in International Law 92; (3rd Edition, Oxford 2007)

which are responsible for rising sea levels and changes of weather patterns (inherent in climate

change). Arguing this meant that the applicant sought refuge in the country which he called as

the persecutor. This is against the traditional concept of seeking refuge away from the

persecuting country.

Again the impacts of climate change are largely indiscriminate, rather than tied to particular

characteristics such as a persons background or beliefs.20 An argument that people affected by

its impacts could constitute a particular social group would be difficult to establish, because

the law requires that the group must be connected by a fundamental, immutable characteristic

other than the risk of persecution itself.21

However a contrary maximalist view holds that the presence of indirect human agency which

causes carbon emissions leading to climate changed is part of the concept of well-founded fear

of persecution. As the counsel for the applicant argued, like many other propagators of this

view would, that the threat from such indirect human agency is not remote or speculative but

actually occurring and thus should be covered within the convention. Norman Myers one of

main propagators of the concept defined environmental refuges as people who can no

longer gain a secure livelihood in their erstwhile homelands because of drought, soil erosion,

desertification, and other environmental problems22 and cited global climate change as one of

the primary factors behind environmental refugee.23

The court was however correct in observing, that it would be wrong for the court to exceed its

authority, where the sovereign states have decided not to cover such individuals within the

definition. Further, since there was found to be a standard of life and access to food, clothing

and housing in the same manner as the general population of Kiribati, the argument that

sending the applicant back to Kiribati would be violative of Article 6 of International Covenant

on Civil and Political Rights24 and Article 11 of International Covenant on Economic, Social

and Cultural Rights25 was also rejected. Therefore the various arguments raised by counsel for

the applicant were rejected, though the court noted that the intention behind the same was

noble.

20 UNHRC; Protection Policy and Legal Advice; May 2011; [ Last accessed -10 April 2014] http://www.unhcr.org/pages/4a16b17a6.html 21G. S. Goodwin-Gill and J. McAdam, The Refugee in International Law 92 ; (3rd Edition, Oxford 2007) 22 Myers Norman; Environmental refugees in a globally warmed world.; Bioscience 43 (11): 752- 761; (1993) 23 Myers, Norman; Environmental Refugees: An emergent security issue; 13th Economic Forum, Prague; May 2005. 24 States every human being has an inherent right to life which must be protected and that no one should be arbitrarily deprived of life 25 States that the States Parties to the present Covenant recognize the right of everyone to an adequate standard of living for himself and his family, including adequate food, clothing and housing, and to the continuous improvement of living conditions. The States Parties will take appropriate steps to ensure the realization of this right, recognizing to this effect the essential importance of international co-operation based on free consent.

Conclusion

The sea-level rise impacts on the low-lying Pacific Island atoll States of Kiribati, Tuvalu,

Tokelau and the Marshall Islands may, at some threshold, pose risks to their sovereignty or

existence.26 Therefore even if there might not be an agreement on the definition, the threat

facing the population is very apparent.

The court was within the bounds of law while refusing the leave to appeal under Section 245 of

the Immigration Act 2009 from the decision of Immigration and Protection Tribunal. As is

apparent the only relief which individuals might seek is humanitarian relief. This however

seems difficult given how the hands of international humanitarian bodies27 are full with

providing aid to war torn and other aspects covered in the Convention grounds.

The fate of future generations hangs on how the international community manages to timely

take efforts and come to an agreement which would benefit those under threat from the climate

change effects. Unless a suitable framework is established whereby these individuals can seek

relief, the courts will not be keen, as has been the case till now28, on accepting applications of

migrants seeking asylum on the basis of climate change.

By :- Ms. Sukarma Thapar and Ms. Jyotsna Singh

26Jon Barnett; Adapting To Climate Change In Pacific Island Countries: The Problem Of Uncertainty; (2001); [Last accessed on- 10th April 2014]; http://www.sustainable.unimelb.edu.au/files/mssi/Barnett_Adapting-to-climate-change-in-Pacific-countries-2001_67062.pdf

27UN, humanitarian partners sound global alarm on behalf of Syrias children; [Last accessed on- 9th April 2010]; http://www.un.org/apps/news/story.asp/story.asp?NewsID=47210&Cr=syria&Cr1=#.U0fRl_mSySo

28 Mohammed Matahir Ali v Minister of Immigration [1994] FCA 887; 0907346 [2009] RRTA 1168 (10 December 2009) (Kiribati); 1004726 [2010] RRTA 845 (30 September 2010) (Tonga)