Gordon Campbell on New Zealand’s obligations towards the victims of climate change

When the UN Refugee Convention was passed in 1951, climate change was unimaginable. In those days and in the shadow of WWII, the focus was on establishing the obligations that UN member countries have to protect people fleeing from systematic violations of their right to life, shelter etc that had been caused by war, discrimination and persecution – at least until such time as they and their families could safely return home. In a test case however, the New Zealand courts have refused a man from Kiribati even the right to argue against being denied refugee status because of the systematic violation of his rights to life, shelter etc due to rising sea levels caused by climate change. This morning RNZ carried the details:

Ioane Teitiota, who is facing deportation after overstaying his visa, sought leave to appeal against an Immigration and Protection Tribunal decision, at the High Court in Auckland on 26 October. His lawyer spelled out how high tides breach sea walls on the island and said the ocean is contaminating drinking water, killing crops and flooding homes. Justice Priestly ruled the claim fell short of the legal criteria for refugee status and upheld the original immigration tribunal decision. He said there would be no sustained and systemic violation of Mr Teitiota’s basic human rights if he returned to Kiribati.

By the court’s reading of the Refugee Convention, Teitiota’s “basic human rights” suffer “sustained and systemic violation” only if they are caused directly by human agents via war, discrimination, persecution etc. The vast bulk of scientific opinion now agrees that human action is causing (and seriously exacerbating) the global warming that has been triggering the life – endangering conditions in Kiribati. Yet this is something that the New Zealand courts evidently feel unwilling, or unable, to even consider – at least within the context of an asylum application. Ironically, if the people of Kiribati started fighting and killing each other over access to the best available land still above sea level, Teitiota would probably have an open and shut case for asylum status in New Zealand.

The UN’s refugee agency – UNHCR – has known about this loophole in international law for some time. As António Guterres, the UN High Commissioner for Refugees has conceded : “Although there is a growing awareness of the perils of climate change, its likely impact on human displacement and mobility has received too little attention.” The scale of the problem is also known by the UNHCR:

Climate change is already undermining the livelihoods and security of many people, exacerbating income differentials and deepening inequalities. Over the last two decades the number of recorded natural disasters has doubled from some 200 to over 400 per year. Nine out of every ten natural disasters today are climate-related. The Norwegian Refugee Council recently indicated that as many as 20 million people may have been displaced by climate-induced sudden-onset natural disasters in 2008 alone. As temperatures rise and land becomes less productive, the process of urbanization will accelerate, generating additional competition for scarce resources and public services in cities across the globe. The incidence of vector-borne diseases will also increase as a result of climate change, as will the cost of food and energy. Increased social tension and political conflict is thus likely, though it may remain difficult to trace the origins of such tensions to climate change.

Right. The question is whether there is a legal protection for Teitiota and his family, and for other people like him. Many New Zealanders would recoil from the thought that he and his children (who were born in New Zealand) should be sent back to a hopelessly deteriorating habitat that is sinking into the Pacific Ocean, endangering health and destroying the traditional means of growing food and earning a living. If the 1951 Refugee Convention did not envisage this situation, even a cursory search reveals other, more recent UN documents that signal the evolving intentions of the global community. The 1998 UN Guidelines on Displaced Persons for instance says (page 5) that its principles “reflect and are consistent with international human rights law and international humanitarian law.” They are also meant to be recognised by UN member states:

They provide guidance to:
(a) The Representative of the Secretary-General on internally displaced persons in carrying out his mandate;(b) States when faced with the phenomenon of internal displacement.

Therefore, New Zealand and its courts should be guided by these principles. And what do the principles say about our obligations towards displaced persons?

Principle 5
All authorities and international actors shall respect and ensure respect for their obligations under international law, including human rights and humanitarian law, in all circumstances, so as to prevent and avoid conditions that might lead to displacement of persons.

Note: “In all circumstances” – not just the ones cited in the 1951 Refugee Convention. Furthermore, note 6d:

Principle 6
1. Every human being shall have the right to be protected against being arbitrarily displaced from his or her home or place of habitual residence.
2. The prohibition of arbitrary displacement includes displacement:
3. (a) When it is based on policies of apartheid, “ethnic cleansing” or similar practices aimed at/or resulting in altering the ethnic, religious or racial composition of the affected population;
(b) In situations of armed conflict, unless the security of the civilians involved or imperative military reasons so demand;
(c) In cases of large-scale development projects, which are not justified by compelling and overriding public interests;
(d) In cases of disasters, unless the safety and health of those affected requires their evacuation; and
(e) When it is used as a collective punishment.

OK. So natural disasters can’t be used as an excuse for policies of displacement – unless “the safety and health of those affected requires their evacuation” when it is, evidently, justified. That would seem to fit Teitiota’s situation. Principle 15 also seems to apply to Teitiota and his family:

Internally displaced persons have:
(a) The right to seek safety in another part of the country;
(b) The right to leave their country;
(c) The right to seek asylum in another country; and
(d) The right to be protected against forcible return to or resettlement in any place where their life, safety, liberty and/or health would be at risk

Sure, these guidelines are about internal displacement and the focus is still primarily on war, persecution etc caused by conscious human agency. Yet by focussing so narrowly upon the letter of the 1951 Refugee Convention – and ignoring subsequent, consistent documents such as the 1998 Guidelines that show the direction in which the global response to displaced persons is headed – the New Zealand courts are trying to close their eyes to a problem that will not be going away. In all likelihood, it will increase. Internal displacement caused by rising sea levels – or by natural disasters made worse by climate change – will increase. The bulk of scientific evidence says so, and the existing UNHCR frameworks indicate what the response of UN member states should be. On humanitarian grounds alone, surely our courts cannot refuse to even consider whether there may be grounds here to argue whether a case for asylum may exist under international law. Probably, the New Zealand courts are hoping and praying that some other jurisdiction will pick up this hot potato and create a precedent before it has to. No doubt, the weakness of the existing international law framework to deal with the effects of climate change is a genuine problem. Some highly relevant background reading is here and the wider picture is also discussed by the UNHCR here.

In the meantime, the Teitiota case needs to be heard. Not only to do justice to the legitimate claim for the protection due to him and his family, but to establish what position New Zealand is planning to adopt ( over the coming decades) towards the innocent victims of humanly exacerbated climate change.