On January 7, 2020, the UN Human Rights Committee, which, under the International Covenant on Civil and Political Rights (ICCPR), considers individual complaints against states that have ratified an optional protocol to the ICCPR, released a very indicative decision on the right to migration due to the effects of climate change.
The claimant, Ioane Teitiota of Kiribati, opposed the government of New Zealand. He migrated to New Zealand in 2007 and lived there illegally after 2010, when his residence permit expired. In 2013, he was brought before New Zealand’s Immigration and Protection Tribunal, which ruled to deport him. This was done in 2015 after a number of appeals on his part.
What is indicative about this trial is that right from the start Mr. Teitiota’s lawyer based his arguments on climate change rather than economic or human rights reasoning. In his logic, climate change leads to rising sea levels and therefore the low-lying Kiribati islands (most of them are atolls rising above the sea level by no more than 3 meters) are facing dramatic deterioration of fresh water quality in the wells. Its salt content is mounting, making the water increasingly unfit for drinking and causing outbreaks of illnesses. Thus, an increasing number of Kiribati residents (60 percent according to the court case) are issued with imported drinking water under a coupon system. To add to this, the growing salinity of the soil has reduced its fertility and accordingly the income of the locals. The sea is eroding dwellings and fields located in the vicinity of the seashore. All of this, along with a high density of the population on the main Kiribati isle, Atoll Tarawa, has led to increased communal violence, fistfights, and clashes not only for land and water, sometimes ending in fatalities. As a result, Mr. Teitiota’s lawyer inferred that Kiribati was so greatly impacted by the effects of climate change that his client’s right to life, under Article 6 of the ICCPR, would be violated if he were forced to return back there.
It must be noted that practically from the outset, the lawyer invoked the ICCPR rather than the domestic law of New Zealand. Presumably, he and his client were originally nurturing the idea to refer the case to the UN Human Rights Committee and make it public internationally. Similarly, lawyers in Russia handle certain first-time cases with an eye to internationalizing them through reference to the European Court of Human Rights. But these are mere details. The important thing is that the courts in New Zealand, though recognizing that climate change is a real threat to Kiribati, pointed out that the Kiribati government was fighting its consequences, with the international community helping it, and, secondly, Mr. Teitiota’s problems were no different from those of all other Kiribati residents and therefore he lacked individual grounds for claiming that his right to life would be violated by deportation. The court’s message was basically that if others managed to live there, you can do that too.
According to the decision made by the UNHRC, the right to a life with dignity is directly threatened by climate change. Under Clause 9.4., “environmental degradation, climate change and unsustainable development constitute some of the most pressing and serious threats to the ability of present and future generations to enjoy the right to life.” But two UNHRC members disagreed with the verdict and came up with dissenting opinions. One of these said directly that it was wrong to wait for real deaths to identify if there was a threat to life and that the UNHRC’s mission consisted in preemption.
Thus, the UNHRC decision, despite its dismissal of the complaint, can become an important precedent for similar cases in the future. One of the motives for the dismissal was insufficiency of proof. Mr. Teitiota’s lawyer claimed, with reference to a number of environmental reports, that Kiribati would disappear from the face of the Earth in anywhere between 10 and 15 years and therefore the right to a life with dignity of his children in the first place would be directly violated. The UNHRC did not recognize this as 100 percent proven. But if the immediate task were just to collect evidence, it would be possible to record with greater precision all the relevant facts, including soil contamination with salt, diseases caused by poor quality of drinking water, inundation of dwellings, fistfights with neighbors, and so on. Additional environmental tests might be conducted and then the UNHRC decision is likely to open the way to a legally recognized new type of migration, climate migration.
The UNHRC decision was discussed by the Valdai International Discussion Club as part of the debate on various aspects of the Global Commons idea. The Club’s experts started by pointing to the challenge of separating migration caused by climate change and purely economic factors. As a consequence, second, there is no universally accepted definition of the climate migrants as refugees. Third, international law by and large fails to regulate environmental migration and its consequences.
Therefore, the decision taken by the UNHRC is putting the climate migration problem on the global agenda. This may call for the urgent drafting of a relevant international norms, accumulation of the necessary financial and logistic resources, establishment of new global funds to this effect, and a strategy to adapt public opinion in host countries to the need to receive and accommodate masses of climate migrants. This also poses a very important and delicate question about the limits of state sovereignty in the face of global climate migration. It will shortly become clear, whether Pandora’s Box is being flung open by the UNHRC decision.