Recognizing Climate Change as a Threat: The UN Human Rights Committee Can Extend Refugee Protections to Climate Migrants

Javier Piñeiro

Vol. 44 Associate Editor

In the upcoming years, climate change will become a significant driver of migration, as entire countries face climate-induced land disappearance.[1] Due to climate change, sudden disasters are stronger and more frequent, causing floods and landslides that wipe out ecosystems.[2] Simultaneously, slower degradation processes, such as sea-level rise and droughts, threaten communities across the globe.[3] Just as climate effects are not isolated to one region of the planet, land disappearance poses a significant risk of mass migration due to either sudden or gradual events.[4] As the United Nations (UN) informed, a record high in refugees worldwide[5], people in areas prone to land disappearance are migrating seeking international protection[6] without qualifying for refugee status under International Human Rights Law (IHRL).[7] Two major sources of IHRL lay out the framework to determine refugee status: the International Covenant on Civil and Political Rights (ICCPR)[8] and the 1951 Convention Relating to the Status of Refugees along with its 1967 Protocol (the Refugee Convention)[9]. Under IHRL, Member States have the obligation to recognize refugee status, but only in specific situations.[10] The Refugee Convention’s definition of “refugee” consists of four elements. First, the refugee must have fled their country. Second, the refugee must be unable or unwilling to return home. Third, the refugee’s inability or unwillingness to return must be due to a fear of a specific threat. Fourth, the specific threat must be related to the refugee’s status in a particular group defined by the Convention.[11] The issue with this definition is that “climate migrants” is not a particular group under the Convention, and climate change is not included as one of the “specific threats” necessary to satisfy the third and fourth element. As such, IHRL does not currently protect those who migrate due to climate change. In recent years, people fleeing climate disasters have filed individual petitions for refugee status by asserting their right to life under the ICCPR.[12] One critical case was brought upon the UN Human Rights Committee (HRC) by Ioane Teitiota, a citizen of Kiribati who fled to New Zealand because of climate change.[13] Coastal communities and small islands like Kiribati are particularly threatened by land disappearance[14], which is why Teitiota decided to migrate.[15] Teitiota applied for refugee status under section 129 of New Zealand’s Immigration Act 2009[16], but his application was unsuccessful as this country did not grant him refugee status.[17] After the Supreme Court of New Zealand denied Teitiona’s appeal, he brought individual petition before the HRC claiming  that his removal from New Zealand and the forced return to Kiribati violated his right to life, as “[s]ea level rise in Kiribati has resulted in the scarcity of habitable space, which has, in turn, caused violent land disputes that endanger [his] life.”[18] Although the HRC did not deny the adverse effect of climate change on Teitiota’s life, it held that the plaintiff did not provide enough evidence to prove a specific threat.[19] While Teitiota’s individual petition was denied on the grounds that he was not at imminent risk,[20] the HRC declared that refugees fleeing because of the effects of a climate crisis cannot be forced to return home by their adoptive countries under the ICCPR.[21] This reasoning constitute the cornerstone  for future cases of climate migrants seeking refugee protection.[22] Most importantly, this ruling recognized that sudden-onset events and slow-onset processes could propel mass migration due to life-threatening risks.[23]  In addition, this decision is now joined by the UN Global Compact for Migration, affirmed in 2018, in recognizing that climate change is a  leading driver of refugee cases worldwide.[24] Given that refugee status is typically determined on an individual basis,[25] a single case is not persuasive enough for States to extend this approach to every individual who migrates due to climate change.[26] In situations of mass migration, however, States and the HRC have adopted a group determination approach, presuming that members of the same migrating group are all refugees and thus should be afforded international protection.[27] This group determination approach can serve to formulate a solution that protects people facing climate-induced migration under the ICCPR. The HRC’s core mandate is to supervise the implementation of the ICCPR and is comprised of independent experts in human rights that, among many functions, periodically publish instruments known as General Comments.[28] General Comments aim to clarify the content of human rights set out in IHRL treaties and instruments, outline potential violations of civil and political rights arising after the adoption of the treaty, and provide guidance to State parties to safeguard human rights.[29] But how can the HRC extend refugee status for groups of migrants displaced by climate change? Although the ICCPR was framed at a time when climate change was not deemed an urgent issue, General Comments issued by the HRC are powerful instruments available to expand the applicability of the ICCPR to new situations.[30] In its most recent comment on the right to life[31], the HRC reaffirmed States’ duty to protect life. It warned that “States parties [are required] to take special measures of protection towards persons in vulnerable situations whose lives have been placed at particular risk because of specific threats or pre-existing patterns of violence.”[32] Following this prior action and in light of the Teitiota decision, the HRC is enabled to take a substantial step to protect people in areas prone to land disappearance by issuing a new General Comment to expand the right to life. In this regard, the HRC is in the best position to ensure consistent interpretation and applicability of the right to life in future cases of climate-induced migration. Therefore, the scope of the “threat” element can be extended to afford protection for climate refugees by including climate change as one of such specific threats. Specifically, the HRC should clarify that “specific threats” can originate from human beings, organizations (including governmental authorities or non-state actors), and environmental causes.[33] Having this expanded definition, people displaced by climate change would qualify for refugee status under IHRL. Subsequently, each member State would be able to assess the threat of land disappearance to extend refugee status, thus recognizing climate change as part of the valid reasons for migration worldwide.[34] This powerful action will ensure protection for some of the most vulnerable groups of migrants in history and redefine the role of international human rights in the era of climate change.

[1] Intergovernmental Panel on Climate Change [hereinafter IPCC], 2022: Summary for Policymakers, in Climate Change 2022: Impacts, Adaptation And Vulnerability – Contribution Of Working Group II To The Sixth Assessment Report Of The Intergovernmental Panel On Climate Change 3, 13 (H.-O. Pörtner, D.C. Roberts, M. Tignor, E.S. Poloczanska, K. Mintenbeck, A. Alegría, M. Craig, S. Langsdorf, S. Löschke, V. Möller, A. Okem, B. Rama eds., 2022). [2] NOAA, supra note 3. [3] UNHCR, supra note 4. [4] Id. [5] UNHCR, A record 100 million people forcibly displaced worldwide, U.N. News (May 23, 2022) https://news.un.org/en/story/2022/05/1118772. [6] United Nations High Commissioner for Refugees [hereinafter UNHCR], Climate Change and Disaster Displacement, UNHCR (2022), https://www.unhcr.org/en-us/climate-change-and-disasters.html. [7] David J. Cantor, Law Policy and Practice Concerning the Humanitarian Protection of Aliens on a Temporary Basis in the Context of Disasters 16, The Nansen Initiative (Feb. 2015). [8] International Covenant on Civil and Political Rights [hereinafter ICCPR], 999 U.N.T.S. 171; S. Exec. Doc. E, 95-2 (1978); S. Treaty Doc. 95-20; 6 I.L.M. 368 (1967) [9] Convention relating to the Status of Refugees [hereinafter CPSR], Apr. 22, 1954, 189 U.N.T.S. 150.; see also, UNHCR Office of the High Commissioner [hereinafter OHC], International Bill of Human Rights, United Nations, https://www.ohchr.org/en/what-are-human-rights/international-bill-human-rights; see also, Adrian-Nicusor Popescu, The First Acknowledged Climate Change Refugee, 23 ROMANIAN J. INT’l L. 96, 100 (2020) (discussing the binding and customary application of the 1951 Convention). [10] Id. [11] CPSR, supra note 8; see also, Adrian-Nicusor Popescu [hereinafter Popescu], The First Acknowledged Climate Change Refugee, 23 Romanian J. Int’l L. 96, 100 (2020) (discussing the elements of a refugee recognition under the Convention). [12] McAdam, supra note 11, at 713; see also ICCPR, supra note 7, at 4. [13] Ioane Teitiota v. New Zealand [hereinafter Teitiota v NZ], CCPR/C/127/D/2728/2016, UN Human Rights Committee (HRC), (Jan. 7, 2020). [14] National Oceanic and Atmospheric Administration [hereinafter NOAA], Ocean Heat Content Rises, NOAA, (Jan. 23, 2020), https://www.ncei.noaa.gov/news/ocean-heat-content-rises. [15] Id. at ¶ 3. [16] Immigration Act, 2009 (Act No. 51/2019) (N.Z.). https://www.legislation.govt.nz/act/public/2009/0051/latest/DLM1440799.html. [17] Teitiota v NZ, supra note 12, at ¶ 1.2. [18] Id. at ¶ 3. [19] Id. at ¶ 2.8. [20] Id. at ¶ 4.5. [21] Andrej Mahecic, UN Human Rights Committee decision on climate change is a wake-up call, according to UNHCR, UNHCR News (Jan. 24, 2020), https://www.unhcr.org/news/briefing/2020/1/5e2ab8ae4/un-human-rights-committee-decision-climate-change-wake-up-call-according.html [22] Popescu, supra note 15, at 114. [23] Teitiota v NZ, supra note 20, at ¶ 9.11. [24] Global Compact on Safe, Orderly, and Regular Migration, UN Doc. A/RES/73/195, 9 (Dec. 19, 2018). UN General Assembly, https://refugeesmigrants.un.org/sites/default/files/180713_agreed_outcome_global_compact_for_migration.pdf. [25] McAdam, supra note 11, at 724. [26] Popescu, supra note 15, at 99. [27] Cantor, supra note 5, at 19. [28] U.N. Human Rights Committee, Fact Sheet No. 15 (Rev. 1): Civil and Political Rights: The Human Rights Committee 12 (May 1, 2005), https://www.ohchr.org/sites/default/files/Documents/Publications/FactSheet15rev.1en.pdf. [29] U.N. Library Online, What are General Comments of the Human Rights Treaty Bodies?, Ask U.N. (Sep. 15, 2021), https://ask.un.org/faq/135547. [30] Id. [31] UNHRC, General Comment No. 36: Article 6 (Right to Life), 124th Sess, adopted 3 September 2019, UN Doc CCPR/C/GC/35, https://tbinternet.ohchr.org/Treaties/CCPR/Shared%20Documents/1_Global/CCPR_C_GC_36_8785_E.pdf. [32] Id. at 5. [33] Popescu, supra note 15, at 108. [34] Id. at 8. The views expressed in this post represent the views of the post’s author only.