Climate Refugees

Displacement caused by climate change

Millions of people are displaced due to climate change-related events every year. These events include chronic floods, droughts, rising sea levels and other devastating weather events. In 2020, the number of people displaced by extreme weather events and other climate-change related disasters was three times the number displaced by conflict.[1]

According to a report by the Internal Displacement Monitoring Centre, much of the displacement caused by these events is internal, with 30.7 million people traveling domestically to flee the damage.[2] A UNHCR Report in 2021 showed that countries which already host large populations of refugees and internally displaced peoples are the same countries which are suffering the worst effects of climate change.[3] This compounds the strain on host countries’ resources. The majority of climate change-related displacement is occurring in Asia, putting a strain on the region more generally.[4]

The number of displaced persons seems to be on an upward trend, with 2020 being the highest number after several years of increases.[5] The Institute for Economics and Peace estimates that some 1 billion people will be displaced by both conflict and natural disasters by 2050.[6] Though much of this displacement is internal, those who travel across international borders will likely have to contend with the receiving state’s immigration policies.

Who ‘counts’ as a refugee?

The Government of Canada defines the distinction between immigrants and refugees as follows: “An immigrant is a person who chooses to settle permanently in another country. Refugees are forced to flee.”[7] While this is a very simplified distinction between two categories of people whose experiences may often overlap considerably, it is useful to keep it in mind when considering the legal consequences of that distinction.

The legal definition of a refugee is set out in the Convention and Protocol Relating to the Status of Refugees (“1951 Convention”) under Article I A.[8] Under the 1951 Convention, a refugee is a person who,

“owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country;…”[9]

Breaking the definition down

This definition means that refugee claimants must generally satisfy a receiving state that

They are fearful, and that this fear is reasonable;
This fear is based on persecution;
The persecution is being done because of their race, religion, nationality, membership of a particular social group or political opinion;
They are outside their country(ies) of nationality; and
Their country of nationality is unable or unwilling to protect them.

Those persons who meet the criteria in this definition, and who don’t fall within one of the exceptions established under the 1951 Convention[10], enjoy the protection of the Convention. The Convention imposes obligations on signatory states, including but not limited to the following:

Principle of non-refoulement: The state cannot expel or return a refugee to a place where their “life or freedom would be threatened on account of his race, religion, nationality, membership of a particular social group or political opinion”.[11] Therefore, a state cannot deport a person claiming refugee status until they have determined that they are not entitled to that status.

Note that the principle of non-refoulement may not only be triggered when the person is found to have refugee status. In the Teitiota case (see below), the principle of non-refoulement was found to apply to those who do not technically meet the criteria for a refugee claimant established under the Convention, but who will face violations of their right to life upon deportation, for example as a result of the effects of climate change.[12] While the non-refoulement principle as codified in the 1951 Convention will not apply, a broader non-refoulement protection may.

The state cannot expel a refugee except on grounds of national security and public order.[13]
The state must make efforts to facilitate and expedite the process of naturalization (becoming a citizen of the receiving state) of refugees.[14]
The state must provide certain welfare standards.[15]

The 1951 Convention affords the above protections to those who have a reasonable claim as refugees, and thus signatory states must make some good faith attempt to determine whether they are refugees. Migrants who are not considered to meet the refugee definition are typically subject to different procedures and may be turned away or deported for a variety of reasons, according to the receiving country’s immigration laws.[16]

Cases

Refugee claims based on environmental degradation often fail on the basis that claimants cannot establish that they will be persecuted for a Convention ground (i.e., because of their race, religion, nationality, membership in a particular social group, or political opinion).

To date, those fleeing environmental degradation caused by climate change have been largely unsuccessful in claiming refugee status and protection abroad. In a few instances, people have explicitly applied for refugee status based on the 1951 Convention definition. Those claims that have been made have mostly been from the Pacific Island states, in particular Tuvalu and Kiribati.

In these cases, the decision-makers in Australia and New Zealand (the receiving states) have largely accepted the seriousness of climate-change related degradation. The hardships faced by the claimants include evidence of oceans rising, increased flooding due to king tides, salination of freshwater supplies, sewerage problems leading to disease particularly in children, and extreme issues with agriculture and growing traditional foods due to salt and flooding.[17] However, receiving states routinely find that the claimants fail to fulfill the Convention definition of a refugee because they are not persecuted on an enumerated Convention ground. For one, the state finds there is no identifiable agent of persecution.[18] Second, and perhaps more importantly, any persecution that is faced is not based on reasons of race, religion, nationality, membership of a particular social group or political opinion.[19]

One such case made headlines, however, when an unsuccessful refugee claimant, Mr. Teitiota, brought a case to the UN Human Rights Committee, alleging that the decision of the State of New Zealand to deport him back to Kiribati violated his right to life under the International Covenant on Civil and Political Rights.

Ioane Teitiota v. New Zealand

Case name: Ioane Teitiota v. New Zealand, UN HRC, 2019^[20]

Jurisdiction: International

Type of claim: Challenge of deportation order

Summary of result: Case dismissed

Decision final: Yes

Decision making body

United Nations Human Rights Commission, Judgment of 24 October 2019
Type of decision: Decision on violation of rights under International Covenant on Civil and Political Rights
Summary of decision: Dismissal of rights claim

Summary of decision

Facts and background of the case

Mr. Teitiota tried to claim refugee status in New Zealand, after he and his wife moved from Kiribati to New Zealand. They had left Kiribati due to hardships faced by residents there, including rising sea levels and inadequate protection against this, sanitation issues arising from mixing of salt and fresh water, the lack of freshwater reserves because of rising sea levels and flooding, and conflict over increasingly limited land space.

His refugee status application was rejected by the New Zealand Immigration and Protection Tribunal in 2013. Following this, he was denied leave to appeal this decision by the High Court in 2013, and the Court of Appeal as well as the Supreme Court denied his applications for leave to appeal to each court in 2014 and 2015, respectively. In 2015, Mr. Teitiota was served with a deportation order, and was shortly thereafter removed to Kiribati, along with his family.[21]

The UN Human Rights Committee

The UN Human Rights Committee (“the Committee”) was tasked with deciding whether the decision of the State of New Zealand to deport Mr. Teitiota violated a right under the International Covenant on Civil and Political Rights (“the Covenant”). Article 6(1) of the Covenant states the following:

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.[22]

The majority decision of the Committee ultimately rejected all four of Mr. Teitiota’s arguments and thus did not consider that they were in a position to find that Mr. Teitiota’s Art 6(1) rights under the Covenant had been violated by his deportation from New Zealand back to Kiribati. The Committee found that the New Zealand authorities had not made their decisions based on arbitrariness, error, or injustice.

Argument 1: Conflict

Mr. Teitiota argued that due to the increasing scarcity of habitable land in Kiribati, violent conflict had occurred, and that this threat was enough to create a risk to his life. The Committee found that Mr. Teitiota had failed to show that the domestic decision-makers in New Zealand made a decision based on arbitrariness or error when finding that he did not face a “real, personal and reasonably foreseeable risk of a threat to his right to life” due to land disputes in Kiribati. The Committee noted that the absence of a situation of general conflict in Kiribati influenced its decision with respect to this factor.[23]

Argument 2: Potable/fresh water

The Committee also rejected Mr. Teitiota’s argument that his lack of access to potable water on Tarawa would harm his right to life, given that 60% of the residents on Tarawa received rationed drinking water from government suppliers. Though the Committee recognized “the hardship that may be caused by water rationing”, there was not enough evidence to establish a reasonably foreseeable health risk that would interfere with Mr. Teitiota’s right to life.[24]

Argument 3: Subsistence

Mr. Teitiota advanced the argument that he would be deprived of his means of subsistence due to salt deposits on soil, which the Committee also rejected.[25]

Argument 4: Flooding and breaching of sea walls

The Committee considered in more detail Mr. Teitiota’s argument that he faced a “risk to his right to life because of overpopulation and frequent and increasingly intense flooding and breaches of sea walls”[26]. They found that without the imposition of robust standards in Kiribati, serious risks to life would occur, which could lead to a violation of rights under Art 6(1), thereby triggering non-refoulement obligations of receiving states.[27] The Committee accepted that the non-refoulement principle as expressed in the Convention only applies to persons who are entitled to refugee status.[28] They noted, however, that the non-refoulement principle, in the context of international law more generally, may have a broader scope and apply in situations where deportation would expose persons to risks to life (including those caused by climate emergencies).[29] They also accepted Mr. Teitiota’s evidence that rising sea levels would render Kiribati uninhabitable in the intervening decades, perhaps as soon as 10-15 years from then. However, the Committee found that this time frame still allowed the Kiribati government to “take affirmative measures to protect and, where necessary, relocate its population”[30]. They accepted the New Zealand state’s findings that Kiribati was taking such measures and saw no reason to interfere with that finding.[31]

Dissenting opinions

There were two dissenting opinions.

The first dissenting member would have found that Mr. Teitiota’s Art 6(1) rights had been violated by the deportation, due to the lack of access to clean drinking water in Kiribati. She found that given the circumstances in Kiribati, the burden of establishing that Mr. Teitiota and his family would enjoy safe drinking water was upon the State.[32]

The second dissent stressed that Mr. Teitiota should not have to prove that he has no access to fresh water, just that there was “considerable difficulty in accessing fresh water”, which he found he had. In addition, the dissent criticized New Zealand’s argument that the government of Kiribati still had time to implement policies, saying

“New Zealand’s action is more like forcing a drowning person back into a sinking vessel, with the “justification” that after all there are other voyagers on board. Even as Kiribati does what it takes to address the conditions; for as long as they remain dire, the life and dignity of persons remains at risk.”[33]

Takeaways from Teitiota:

While the majority decision of the Committee ultimately rejected Mr. Teitiota’s position that the deportation decision violated his rights, the Committee nonetheless recognized that states may not deport individuals whose right to life may be violated by climate-related conditions.[34] They recognized that climate change-related effects could be a reason for people to seek asylum, and that even where a receiving state determines that a person is not a refugee under the 1951 Convention, they cannot deport them back to their country of nationality where environmental degradation would violate their Art 6(1) rights, citing the principle of non-refoulement.[35]

Given that climate change-related events can occur through both slow-onset and sudden-onset process, the Committee recognized that claimants do not have to prove that the risk to their rights is imminent, but rather that it be reasonably foreseeable.[36]

Sheel

Case name: CA Bordeaux, 18 December 2020, Sheel, No 20BX02193, 20BX02195

Jurisdiction: France

Type of claim: Challenge of deportation order

Summary of result: Appeal dismissed

Judgment final: Yes

Court instances:

Court	Type of decision	Summary of decision
Administrative Court of Toulouse, Judgment of 15 June 2020	First instance decision	Claim granted, deportation order cancelled.
Court of Administrative Appeals in Bordeaux, Judgment of 18 December 2020	Decision on appeal	Appeal dismissed

Summary of Judgment

Facts and background of the case

Mr. Sheel fled persecution in Dhaka, in Bangladesh, and arrived in France in 2011. Though he was not granted political asylum, he was able to stay in France under a “sick foreigner” temporary residence permit, which allows foreign nationals suffering from an illness for which they cannot receive adequate treatment in their home country to stay in France. Mr. Sheel had severe asthma and sleep apnea. In 2019, the French Prefecture (the administrative body in charge) declined to renew his temporary residence permit, finding that Mr. Sheel could in fact receive proper treatment for his health issues in Bangladesh. It issued a deportation order to Mr. Sheel.[37]

Administrative Court of Toulouse

Mr. Sheel argued that due to his conditions, he would not be able to receive proper treatment in Bangladesh. In addition, the high levels of air pollution in Bangladesh, which ranked 179^th in terms of air quality in 2020, would exacerbate his conditions.

The Administrative Court found in favour of Mr. Sheel and cancelled the deportation order, largely based on its finding that he would not be able to receive proper treatment for his condition in Bangladesh should he be deported.[38]

The Prefecture appealed the decision.

Court of Administrative Appeals in Bordeaux

The court of Administrative Appeals upheld the lower court’s decision. It allowed Mr. Sheel to remain in France.

The court relied heavily on the environmental data presented to it and found that deporting Mr. Sheel would result in the “aggravation of his respiratory disease due to air pollution”.[39]

Takeaways from Sheel

The court’s finding that the environment itself – in this case, air pollution – meant it was unsafe to return a person to their home country is a step French courts have not previously taken.[40] This decision seemed to consider many of the same criteria considered by the UN Human Rights Committee in Teitiota.

Like Teitiota, Sheel is not strictly speaking a refugee case. Like Mr. Teitiota, Mr. Sheel had applied for asylum, claiming persecution, but that was never granted to him.

Perspectives on the refugee narrative

As the cases demonstrate, individuals claiming refugee status based on environmental or climate effects have so far failed to meet crucial elements of the 1951 Convention definition. They are neither persecuted (under the meaning of the Convention) nor facing the effects of climate change for one of the enumerated grounds.[41]

While there are a few countries that have their own migration frameworks which grant protections to those crossing international borders to flee climate change-related effects[42], there are currently no clear international legal obligations for states to apply the non-refoulement principle to such people.[43]

Some theorists and activists advocate for change to the definition under the Convention. This would allow for environmental degradation to meet the threshold for refugee status for those who flee their country of nationality.[44] This perspective considers that the theoretical underpinnings that justified the 1951 Convention, namely the principle of non-refoulement, can also justify a concept of climate or environmental refugee.[45]

Others, including Pacific Islander activists, question how helpful the refugee narrative is. Some argue that the refugee narrative places Islanders (and other ‘future’ climate refugees) in a position of victimhood vis à vis the international community and fails to recognize their community resilience, including accepted and traditional migration practices.[46] These theorists emphasize the need for Northern emitting nations to provide funding to countries experiencing the effects of extreme weather events to build strong climate-resilient infrastructures and communities, only using the refugee narrative as a last resort.[47]

[1] Saeed Kamali Dehghan, “Climate disasters ‘caused more internal displacement than war’ in 2020” (20 May 2021), online: The Guardian<https://www.theguardian.com/global-development/2021/may/20/climate-disasters-caused-more-internal-displacement-than-war-in-2020>.

[2] Laura Millan Lombrana, “In 2020, more people displaced by extreme climate than conflict” (25 May 2021), online: Aljazeera<https://www.aljazeera.com/economy/2021/5/25/bbin-2020-more-people-displaced-by-extreme-climate-than-conflict>.

[3] “Climate change link to displacement of most vulnerable is clear: UNHCR” (22 April 2021), online: UN News<https://news.un.org/en/story/2021/04/1090432>.

[4] “Over 10 million displaced by climate disasters in six months: report” (March 17 2021), online: Reuters<https://www.reuters.com/article/us-climate-change-displacement-idUSKBN2B90Z8>.

[5] supra, note 2.

[6] supra, note 4.

[7] Government of Canada, “How Canada’s refugee system works” (27 November 2019), online: canada.ca <https://www.canada.ca/en/immigration-refugees-citizenship/services/refugees/canada-role.html>.

[8] Convention and Protocol Relating to the Status of Refugees, 28 July 1951, 189 UNTS 137 (entered into force 22 April 1954) [UNHCR] [“Convention”].

[9] Ibid, Art I A(2).

[10] Ibid, Art I C-F. For instance, Art I D says that the Convention does not apply to persons who are already receiving aid from bodies of the United Nations other than the United Nations High Commissioner for Refugees. Also, under Art I F the Convention does not apply to persons where there are serious reasons to consider that they have committed certain crimes, including crimes against peace, war crimes, and crimes against humanity.

[11] Ibid, Art 33(1)

[12] Chhaya Bhardwaj, “Ioane Teitiota v New Zealand (advance unedited version), CCPR/C/127/D/2728/2016,
UN Human Rights Committee (HRC), 7 January 2020”, Note, (2021) 23:3 Envtl L Rev 263–271 at 267.

[13] Convention, supra note 8, Art 32(1).

[14] Ibid, Art 34.

[15] Ibid, Art 20-24.

[16] Alison Eldridge, “What’s the Difference Between a Migrant and a Refugee?”, online: Encyclopedia Britannica <https://www.britannica.com/story/whats-the-difference-between-a-migrant-and-a-refugee>.

[17] See Refugee Appeal Nos. 72189/2000, 72190/2000, 72191/2000, 72192/2000, 72193/2000, 72194/2000 & 72195/2000, Nos. 72189/2000, 72190/2000, 72191/2000, 72192/2000, 72193/2000, 72194/2000 & 72195/2000, New Zealand: Refugee Status Appeals Authority, 17 August 2000, <https://www.refworld.org/cases,NZL_RSAA,4d08cf7f2.html>; RRT Case No. 0907346, [2009] RRTA 1168, Australia: Refugee Review Tribunal, 10 December 2009, <https://www.refworld.org/cases,AUS_RRT,4b8fdd952.html> [“RRT Case No. 0907346”]; AF (Kiribati) [2013] NZIPT 800413, New Zealand: Immigration and Protection Tribunal, 25 June 2013, <https://www.refworld.org/cases,NZ_IPT,5dad6b754.html> [“AF (Kiribati) [2013]”]; AC (Tuvalu), [2014] NZIPT 800517-520, New Zealand: Immigration and Protection Tribunal, 4 June 2014, <https://www.refworld.org/cases,NZ_IPT,585151694.html>.

[18] See RRT Case No. 0907346, para 51.

[19] Ibid, para 38; AF (Kiribati) [2013].

[20] Ioane Teitiota v. New Zealand (advance unedited version), CCPR/C/127/D/2728/2016, UN Human Rights Committee (HRC), 7 January 2020, <https://www.refworld.org/cases,HRC,5e26f7134.html> [“Teitiota”].

[21] Teitiota, para 4.3.

[22] International Covenant on Civil and Political Rights, 19 December 1966, 999 UNTS 171 art 6 (entered into force 23 March 1976) [ICCPR].

[23] Teitiota, supra note 20, para 9.7.

[24] Ibid, para 9.8.

[25] Ibid, para 9.9.

[26] Ibid, para 9.10.

[27] Ibid, para 9.11.

[28] Ibid, para 9.3.

[29] Ibid, para 9.11.

[30] Ibid, para 9.12.

[31] Ibid, para 9.12.

[32] Ibid, Dissent 1, para 5.

[33] Ibid, Dissent 2, para 6.

[34] “Historic UN Human Rights case opens door to climate change asylum claims” (21 January 2020), online: United Nations Human Rights<https://www.ohchr.org/EN/NewsEvents/Pages/DisplayNews.aspx?NewsID=25482>.

[35] Ivanka Bergova, “Environmental Migration and Asylum: Ioane Teitiota v. New Zealand” (2021) 42:2 Justice System J 222-224 at 224.

[36] Ibid.

[37] Flora Bensadon, “France’s First Climate Refugee – A Sign of a Promising Future for Climate Migration?” (18 March 2021), online: Earth Refuge<https://earthrefuge.org/frances-first-climate-refugee-a-sign-of-a-promising-future-for-climate-migration/>.

[38] Amali Tower & Ryan Plano, “French Court Recognizes Country’s First Environmentally-Impacted Migrant” (January 15 2021), online: Climate Refugees<https://www.climate-refugees.org/spotlight/2021/1/15/french-court>.

[39] Bensadon, supra note 36.

[40] Tower & Plano, supra note 37.

[41] See Matthew Lister, “Climate change refugees” (2014) 17:5 Critical Rev of Intl Soc and Political Philosophy 618-634 at 620.

[42] Bhardwaj, supra note 13 at 268.

[43] Ibid.

[44] E.g. Lister, supra note 41.

[45] Ibid, at 621.

[46] Carol Farbotko & Heather Lazrus, “The first climate refugees? Contesting global narratives of climate change in Tuvalu” (2012) 22 Global Environmental Change 382-390 at 383.

[47] Ibid, at 387.