The Pacific island of Kiribati is doomed to disappear. Its people are fated to become a generation of climate change refugees. The direction jurisprudence on this will take is not merely of academic interest.
The term 'climate change refugees' is coming into vogue and even Australia, whose politicians resist accepting its gloomy and turbulent realities, risks producing its very own. In the words of climatologist Michael Mann, 'It is conceivable that much of Australia simply becomes too hot and dry for human habitation. In that case, yes, unfortunately we could see Australians join the ranks of the world's climate change refugees.'
At the legal level, the debate about culpability for climate change inaction has found form in some 1300 legal actions across 28 countries, the vast majority of them being lodged in that land of litigation, the United States. As Joana Setzer of the Grantham Institute and the London School of Economics pointed out last year, 'Holding governments and businesses to account for failing to combat climate change has become a global phenomenon.'
In the legal field, the idea of expanding the categories of refugees that arise from climactic disaster is as bold as any, and has generated its share of supporters and sceptics. A remarkable effort to do so came in the New Zealand case of Teitiota v Chief Executive Ministry of Business, Innovation and Employment (2014), the first recorded instance of climate change being cited as a basis for refugee status, though the man in question, Ioane Teitiota, failed to convince the courts.
New Zealand's various judicial channels found against the Kiribati national, claiming that he did not satisfy the definition of refugee within the conventional understanding of international law. This was a different sort of threat to his livelihood, rooted neither in political oppression nor in tyrannical cruelty.
At stages of the appeal process, however, there was acceptance on the part of various judicial officers that climate change was a serious matter affecting Kiribati. The Immigration and Protection Tribunal, for instance, acknowledged 'that the limited capacity of South Tarawa to carry its population is significantly compromised by the effects of population growth, urbanisation, and limited infrastructure development, particularly in relation to sanitation'. These effects had been 'exacerbated by the effects of both sudden onset environmental events (storms) and slow-onset processes (sea-level rise)'.
Ultimately, the Supreme Court found that, in being returned to Kiribati, the applicant did not face the prospect of 'serious harm' and could not be granted asylum. Nor was there evidence that the Kiribati state had failed to take adequate steps to combat the effects of environmental degradation. Teitiota was subsequently deported.
"Even the UNHCR has preferred the tag of 'environmental migrants' rather than refugees. But words and categories change."
The last option open to Teitiota was the United Nations Human Rights Committee, a body not always governed by the rigidity of black letter law. In its decision this month, the majority of the HRC did not find the deportation unlawful, there being no immediate danger to Teitiota's life on account of climate change. They also noted that 'the timeframe of ten to 15 years, as suggested by the author, could allow for intervening acts by the Republic of Kiribati ... to take affirmative measures to protect and, where necessary, to relocate the population'.
That said, it was incumbent upon decision-makers to take the degrading nature of climate change into account when examining future deportation appeals. In the majority's words of warning, 'Without robust national and international efforts, the effects of climate change in receiving states may expose individuals to a violation of their rights under Articles 6 [the inherent right to life] or 7 [the right not to be tortured or subjected to cruel, inhuman or degrading treatment or punishment] of the [International Convention on Civil and Political Rights], thereby triggering the non-refoulement obligations of sending states.' States had to be on guard not to return future applicants to places of imminent danger.
Criticism has been heaped from across the spectrum. Former Fleet Street editor Damian Wilson was one. 'Irresponsibly, the UN human rights committee, in claiming that "something must be done" in its deliberations over the Kiribati family, has ducked out of directly helping them in any practical way, burnished its woke credentials and simply piled on the misery in the climate change mess.'
Others see the issue of climate change as merely one feature in forced migration, though there is an acceptance by President Bill Clinton's former White House Chief of Staff John Podesta that current legal standards are 'not equipped to protect climate change migrants, as they are no legally binding agreements obliging countries to support climate migrants'.
Even the UNHCR has preferred the tag of 'environmental migrants' rather than refugees. But words and categories change. Definitions can be stretched. The Human Rights Committee, albeit modestly, has done so.
Those intent on building walls will find little cheer in it. Those wishing to see breaches in the barriers of receiving states will take encouragement from the words of one of the two dissenting members of the HRC, Duncan Laki Muhumuza of Uganda, who openly found for Teitiota. The effects of climate change in Kiribati 'are significantly grave, pose a real, personal and reasonably foreseeable risk of a threat to life under Article 6(1) [of the ICCPR]. Moreover, the Committee needs to handle critical and significantly irreversible issues of climate change, with the approach that seeks to uphold the sanctity of human life.'
Dr Binoy Kampmark is a former Commonwealth Scholar who lectures at RMIT University, Melbourne.
Main image: Aerial view of South Tarawa, the capital and hub of the Republic of Kiribati and home to approximately half of Kiribati's population. (Government of Kiribati / Wikimedia Commons)