Turning the Tide: Atoll Nations During the Era of Climate Change Emergency.

• Author: Blue, Rachel

1. INTRODUCTION

   Situated between Hawaii and Australia, the Republic of Kiribati rises out of the Pacific Ocean, an idyllic, "postcard" version of island life: cerulean waters meet white sand, and pristine beaches await the presence of tourists and locals alike. It is touted as one of Australia's foremost vacation destinations, offering an abundance of fly fishing, kitesurfing, and scuba diving. It is also home to over 100,000, known as the I-Kiribati; most live on South Tarawa Atoll, which is one of the thirty-three pieces of land that create the Republic. (1) And soon, it will be buried by the ocean. Its inundation is projected to occur as early as 2050. (2) The culprit will be the rising sea level produced by climate change occurring due to anthropogenic greenhouse gas emissions. To put Kiribati's demise into perspective, its people have resided on the atolls for over 3,000 years. (3) Only in the last thirty years has the Republic seen its territory continually submerged by high tides and tropical storms. (4)

   Ioane Teitiota is a farmer from Kiribati. In 2007, he applied for a work visa to New Zealand after his family home flooded twice within a year; the visa was granted. (5) He and his wife relocated, quickly gaining employment as a laborer and caregiver, respectively. (6) Teitiota's visa was set to expire in 2011, so he sought to extend it, specifically because three daughters had been born in that time. (7) However, rather than following a fairly mundane route of reapplication, his case earned the attention of a local attorney, who realized Teitiota's plight was one shared by a growing number of islanders. (8) The legal fight became the first of its kind: asylum based on climate change impact. (9) It lasted over three years, reaching the highest court of New Zealand, only to receive a final, precedent-setting rejection, (10) yet it established the foundation for other cases to be built upon. Now, millions face a similar hardship as Teitiota and his family: (11) they must soon leave their homes not for choice but for survival. Using Teitiota's claim, more cases are currently being heard in domestic courts. In their path, stands the likes of New Zealand and its four-corner interpretation of the rhetoric within the Convention Relating to the Status of Refugees:

   [A] refugee is defined as one who is "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." (12) While unsuccessful in its bid, Teitiota's lawsuit began the necessary dialogue regarding the existing law's application as it pertains to those most impacted by global warming. This was directly addressed within the New Zealand's Court of Appeals' opinion: "No-one should read this judgment as downplaying the importance of climate change. It is a major and growing concern for the international community. The point this judgment makes is that climate change effect on countries like Kiribati is not appropriately addressed under the Refugee Convention." (13) The New Zealand Supreme Court added equally important commentary, explaining that the collective decisions by the country's courts "did not mean that environmental degradation resulting from climate change or other natural disasters could never create a pathway into the Refugee Convention or protected person jurisdiction." (14) Its opinion addressed the urgency for States to discuss the predicament of those displaced by climate change and act, if need be, despite international law that is illequipped to address the unfolding, humanitarian crisis.

   Along with the loss of the Republic of Kiribati by 2050, it is projected that in that same year, 200 million people will be displaced due to climate change detrimentally impacting their way of life. (15) This number includes those known as the internally displaced: people pushed from their homelands who will remain within their current country's or continent's borders. (16) Atoll nations, however, will suffer a different outcome. These States can offer no such internal relocation because territory is limited by surrounding seas. Should part of the population migrate to a different area of the island, it is a temporary reprieve. Sea levels are expected to rise near or over two feet by 2100. (17) Comparatively, Kiribati sits just nine feet above sea level. (18) Kiribati is one of just four atoll nations that face extreme threats by climate change: the others are Tuvalu, the Marshall Islands, and the Maldives. (19) Ninety-nine percent of the Marshall Islands' inhabitants and the entirety of Tuvalu's and the Maldives' populations live within six feet of sea level. (20) As a result of rising seas and the ensuing loss of territory, 2.2 million people could be displaced from small island States, including all people residing among the atoll nations, by century's end. (21)

   This essay will focus on atoll nations' citizenry who may need to resettle within another State's borders to flee climate change impact. In doing so, the essay will offer insight into (1) the problematic nature of the term "refugee"; (2) international law's inadequacies; and (3) viable solutions for the islanders who face relocation. The atoll States, Kiribati, Tuvalu, the Marshall Islands, and the Maldives, are the focus of this essay because of their immediate vulnerability to rising sea levels.

2. BACKGROUND

   Customary international law is established once a "consistent and widespread practice of States" occurs. (22) International law derives from four sources: treaties, customs, general principles, and judicial or academic writings. Moreover, jus cogens is a general understanding present within international law to be followed by all States. (23) Examples of such are found most often in times of war or conflict. For instance, genocide is universally prohibited and denounced. The Universal Declaration of Human Rights (UDHR) comprises such rules. (24) No treaty, though, could convey jus cogens since these fundamental principles are a mere baseline for humanity to operate and function. Yet treaties are needed to legally bind States and their "behavior" since the intuitive jus cogens is not powerful enough to prevent crimes against humanity. So, too, are customs and general principles needed as they establish when a State's "general practice [is] accepted as law and opinio juris is in place," (25) meaning that States' conduct is based on a belief that it is the law's requirement. Additionally, judicial decisions and writings may create a precedent, with a judicial opinion or scholarly writing serving as a basis for a future ruling. (26) The protection of human rights for those who must endure climate change, however, toggles somewhere between the inherent philosophy of jus cogens, ratified treaties, and domestic law. As Teitiota's case exhibited, a binding, multilateral treaty was applied, but its interpretation relied on the domestic court of New Zealand. Further, New Zealand's Supreme Court opinion displayed the frustration beset by conflicting ideologies: no customary international law exists to offer necessary protections when climate change is the offender, leaving a State that is open to assisting individuals little room to maneuver under law as it is currently written.

   1. The 1951 Convention Relating to the Status of Refugees and the 1967 Protocol

      The 1951 Convention Relating to the Status of Refugees was created during the aftermath of World War II. Its purpose was twofold: (1) protect those fleeing a country that was no longer protecting them; (2) protect those left stateless during and after the conflict. (27) The 1951 Convention was originally limited in scope to persons fleeing events occurring before January 1, 1951, and within Europe. (28) The 1967 Protocol amended the original context of the Convention, which removed date and geographical limitations, and created a universal coverage for individuals seeking asylum if they fled persecution. (29) Based on the term "persecution," the fundamental principle of the Convention is non-refoulement; a refugee should not return to their homeland if facing "serious threats to their life or freedom." (30)

   2. United Nations Office of the High Commissioner on Human Rights (OHCHR) and the United Nations High Commissioner for Refugees (UNCHR)

      The UN is charged with keeping global peace. While war and conflict consume much of its attention, the assurance of human rights is the foundation of a peaceful world. To govern, guide, and protect in this realm, OHCHR and UNCHR are integral, complementary organizations within the UN.

      OHCHR began alongside the implementation of the UN; however, OHCHR expanded and formalized in 1993 due to growing and extensive atrocities. (31) The High Commissioner and their office work to protect "all human rights for all people." (32) Relying on the UDHR principles, the OHCHR upholds human rights using, in combination, the International Covenant on Economic, Social, and Cultural Rights (ICESCR) and the International Covenant on Civil and Political Rights (ICCPR). (33) Both entered into force in 1976. (34) ICESCR establishes the "right to adequate standard of living" and "the right of everyone to the enjoyment of the highest attainable standard of physical and mental health." (35) Recently, the Committee on ICESCR stated, "human rights mechanisms have an important role to play in ensuring that States avoid taking measures that could accelerate climate change, and that they dedicate the maximum available resources to the adoption of measures aimed at mitigating climate change." (36) Similarly, ICCPR protects one's "right to life" (37) but focuses primarily on individuals' right to partake in civil liberties, such as voting and the practicing of one's faith. (38) For protections of...