NON-REFOULEMENT: A HUMAN RIGHTS PERSPECTIVE ON ENVIRONMENTAL MIGRATION FROM SMALL ISLAND DEVELOPING STATES.

• Author: Keshen, Shaindl

INTRODUCTION

Environmental degradation and natural disasters are among the most significant contemporary drivers of global movement. (1) It is estimated that environmental disasters internally displaced 228 million people between 2008 and 2016 and 24.9 million people in 2019 alone. Small Island Developing States (SIDS) are particularly vulnerable to these adverse impacts of climate change. (2) Environmental disasters in the Pacific region displaced 320,000 people between 2008 and 2017, and rising sea levels have completely submerged some islands, affecting potable water supplies and forcing entire villages to relocate to higher ground. (3) The International Organization for Migration (IOM) estimates that three million residents of low-lying coastal areas are at further risk of displacement. (4)

The number of environmental migrants crossing international borders is likely to continue to grow as environmental conditions deteriorate and domestic pressures on population, economy, and ecology hamper internal migration. (5) Despite these dire and sometimes life-threatening conditions, persons fleeing the adverse effects of climate change are not yet afforded automatic legal protection under international law.

However, recent jurisprudence and academic developments have established that severe environmental conditions can amount to a violation of one's right to life. In such cases, the principle of non-refoulement may offer a pathway of protection for environmental migrants under the human rights law framework. (6) Thus, the increasingly severe environmental conditions in S1DS might trigger non-refoulement obligations in future migration cases.

REFUGEES OR MIGRANTS?

The IOM defines environmental migrants as:

Persons or groups of persons who, predominantly for reasons of sudden or progressive changes in the environment that adversely affect their lives or living conditions, are obliged to leave their homes, or choose to do so, either temporarily or permanently, and who move either within their country or abroad. (7) While some may erroneously use the phrase "climate refugees" to describe persons fleeing the effects of climate change, these persons on the move are considered "environmental migrants." Under international law, persons crossing international borders fleeing environmental degradation generally do not qualify as refugees, as they do not meet the persecution criteria in the definition of "refugee" under the 1951 Refugee Convention. (8)

Importantly, as laid out in legal considerations by the United Nations High Commissioner for Refugees regarding claims for protection in the context of climate change and disasters, the 1951 Convention may come into effect in cases where there exists a well-founded fear of persecution. An example is if a state prioritizes protecting specific populations from the effects of climate change while discriminately denying protection to other particular groups. (9)

If there is no evidence of persecution and persons are unable to qualify for protection under refugee law, environmental migrants must turn to other legal frameworks to seek protection. Non-refoulement, a principle under both international human rights law and refugee law, is one such potential pathway. (10)

NON-REFOULEMENT AS A PATHWAY FOR LEGAL PROTECTION

The principle of non-refoulement is now considered customary international law. Under the 1951 Refugee Convention, states receiving refugees are prohibited from returning them to a territory where their life or freedom may be unlawfully threatened. (11) Non-refoulement has an expanded scope under international human rights law, providing protection to persons on the move beyond only those who fall under the definition of refugee. Under international human rights law, non-refoulement also covers any persons who, upon return or deportation, may face irreparable harm, such as torture or violations of their right to life. (12)

Teitiota v. New Zealand, the first climate change-induced environmental migration case brought to the Human Rights Committee, offers valuable insights into the standards that must be met for non-refoulement obligations to be triggered under international human rights law.

THE TEITIOTA V. NEW ZEALAND CASE

Ioane Teitiota, a Kiribati national, moved to New Zealand in 2007. When Teitiota's visa expired in 2011, he applied for refugee status in New Zealand, claiming that environmental conditions in Kiribati posed a threat to his right to life. New Zealand's Immigration and Protection Tribunal denied the refugee claim in 2013, noting that he did not meet the definition of refugee. (13)

Teitiota appealed the Tribunal's decision to the Supreme Court, and after exhausting all domestic remedies, he brought his case to the Human Rights Committee, the UN body that adjudicates on alleged violations of the International Covenant on Civil and Political Rights. Teitiota asserted that by returning him to Kiribati, New Zealand violated his right to life, which implies that New Zealand violated the principle of non-refoulement. (14)

In its deliberations, the Human Rights Committee cited ICCPR General Comment no. 36, noting that non-refoulement cases require substantial grounds to establish that: 1) A real risk of irreparable harm exists; 2) The risk faced is personal and cannot derive merely from the general conditions; Except in 3) the most extreme cases. (15) The Committee decided that, while grim, the environmental conditions in Kiribati did not pose a personal risk to Teitiota's life and agreed with the Tribunal in that "the risk remained firmly in the realm of conjecture or surmise." (16)

The Committee determined that: 1) Kiribati upheld its positive obligations under the right to life, as it implemented adequate programmatic interventions; 2) Teitiota and his family were not at imminent risk of violence caused by land disputes; 3) Kiribati still had 10 to 15 years before the country would be rendered uninhabitable; 4) Teitiota could sufficiently find potable water and grow crops; and 5) Teitiota did not face a personal risk of harm, as his situation, including limited access to water, was not materially different from those of other residents of Kiribati. (17)

The factors considered by the Committee are stepping stones for future cases of a similar nature, especially as climate-induced environmental degradation continues. To justify non-refoulement, the evidence must sufficiently prove a severe violation of human rights. (18)

NON-REFOULEMENT: THE STANDARDS OF PROOF

1. A State's Positive Obligation to Protect

   The Human Rights Committee's decision in Teitiota v. New Zealand gained worldwide attention because it marked the first time an international human rights body recognized, in the context of non-refoulement and migration, the link between severe climate change-induced environmental conditions and the potential violation of the right to life. (19)

   To protect the right to life, states have a duty to take appropriate measures to address the general conditions in society that may give rise to direct threats to life. (20) Human rights jurisprudence has reinforced states' positive obligation to protect citizens from environmental harms, determining that a positive obligation can entail enacting appropriate legislation to reduce potential harms from environmental disasters or degradation and implementing early warning mechanisms, adaptation frameworks, or risk mitigation efforts. (21)

   In Teitiota v. New Zealand, the Committee concluded that the Government of Kiribati's National Adaptation Programme of Action, which aimed to improve water supply management, implement coastal management protections, and introduce population settlement planning, was evidence enough that the State had not failed its obligations and did not violate Teitiota's right to life. (22)

   The Committee acknowledged, however, that without "robust national and international efforts," the environmental conditions in Kiribati could foreseeably violate one day the right to life and trigger non-refoulement obligations. The Committee concluded that given Kiribati's existing interventions, and the 10 to 15-year window to introduce further interventions, current conditions in Kiribati did not yet trigger such obligations. (23)

2. Existence of Exceptional Circumstances

   In non-refoulement cases involving climate change-induced environmental degradation, it is far more difficult to establish that the potential harm faced is "personal" compared to other non-refoulement contexts, as the effects of climate change are often widespread and indiscriminate. (24)

   However, the New Zealand Supreme Court and the Human Rights Committee have both established that the "personal risk" requirement is...