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Climate change may expose asylum seekers to human rights violations

Llewellyn Spink

In a landmark decision, the United Nations Human Rights Committee (HCR) has recognised that states can breach their human rights obligations by returning asylum seekers to countries where they face imminent threats from climate change.

Ioane Teitiota, a man from Kiribati, submitted a communication with the HCR in February 2016, complaining that New Zealand had violated his right to life under the International Covenant on Civil and Political Rights (ICCPR) by denying his asylum claim and returning him to Kiribati in September 2015. Mr Teitiota argued, amongst other things, that he faced land disputes and difficulties accessing water as a result of climate change, which forced him to migrate and seek refugee status in New Zealand.

New Zealand’s immigration authorities and courts rejected his refugee claim, which ultimately led to his deportation.

The HCR agreed with New Zealand that the deportation did not breach its human rights obligations as Mr Teitiota was not facing, on the available evidence, a risk of an imminent, or likely, risk of arbitrary deprivation of life upon his return to Kiribati. But whilst the threat was not sufficiently imminent in this case, the HCR recognised that, “without robust national and international efforts, the effects of climate change…may expose individuals to a violation of their rights under articles 6 or 7” of the ICCPR, being the right to life and the protection against cruel, inhuman or degrading treatment or punishment.

This means that if a state returned an asylum seeker to a country where climate change posed a real and reasonably foreseeable threat to an asylum seeker’s life (for example, due to rising sea levels, or disappearing resources, such as habitable land or potable water), that state may breach its human rights obligations. Given that the United Nations Intergovernmental Panel on Climate Change has previously warned that Kiribati is one of the world’s most vulnerable countries to climate change and that large parts of the country may be uninhabitable by 2050, a future asylum seeker from Kiribati may be more successful than Mr Teitiota.

To be clear, the decision does not (and could not) alter the definition of refugee agreed under the 1951 Refugee Convention. A person unable to return to their home country due to the effects of climate change alone (and not otherwise facing persecution in accordance with the convention) would not, technically, be a refugee under the 1951 Refugee Convention. Notwithstanding the absence of refugee status, the state would not be permitted to return them to their home country without breaching its human rights obligations.

Of course, this is not the first time the international community has recognised the impact of climate change on refugees and asylum seekers. The Global Compact on Refugees, affirmed by the United Nations General Assembly in December 2018, expressly stated that “climate, environmental degradation and natural disasters increasingly interact with the drivers of refugee movements”. However, the HCR’s decision provides clear recognition of the threat of climate change on the human rights of asylum seekers.

Ultimately, this decision means that, to ensure compliance with the ICCPR, states should take into account the effects of climate change on an asylum seeker's home state when considering deporting him or her back to that state. However, whether states will do so in practice remains to be seen,especially given that some states' immigration policies already involve human rights violations.

For example, Australia has repeatedly been found to be in breach of its human rights obligations under the ICCPR and the Convention against Torture and other Cruel, Inhuman or Degrading Punishment (CAT) regarding its treatment of asylum seekers and the United States' detention of migrant children may similarly breach the CAT.

But given the increasing threat from climate change and record high levels of displaced persons, these issues cannot be ignored. The international community must seek to ensure that all states comply with their obligations and respect the human rights of asylum seekers, including in relation to the threats faced from climate change.

Llewellyn Spink is an international disputes lawyer who recently completed his Master of Laws at the University of Sydney, which focused on human rights and international law.


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