By Claire McNear, on 13 March 2014
By Claire McNear
“It is not for the High Court of New Zealand to alter the scope of the Refugee Convention…. Rather that is the task, if they so choose, of the legislatures of sovereign states.”
So wrote New Zealand High Court judge John Priestley in his November 2013 denial of a rather unusual legal petition: a man from Kiribati was seeking to become the world’s first environmental refugee.
The Refugee Convention Priestley refers to is the United Nations Convention relating to the Status of Refugees, the 1952 international treaty establishing who is eligible for refugee status and what rights he or she is entitled to, most notably asylum. The Refugee Convention is the backbone of international refugee law today; in 2012 alone, 893,700 people submitted applications for asylum, according to the UN High Commissioner for Refugees.
It was under this convention that Ioane Teitiota sought to remain in New Zealand. Teitiota first came to New Zealand in 2007. When his work visa expired in early 2013, he faced deportation back to his native Kiribati, along with his wife and their three children. Teitiota appealed, claiming in the Auckland High Court that he and his family would face “serious harm” and suffering if they were made to return.
The plight of Kiribati is a serious one. The central Pacific island nation, home to 100,000, is made up of 33 low-lying atolls, which at their highest point are just 2 meters above sea level. Faced with rising seas that have already caused widespread water contamination and crop damage, Kiribati teeters at the edge of catastrophe: its president has said that the entire nation may be uninhabitable in as little as 30 years. In October 2011, just months after issuing the nation a $20 million grant to devise methods to cope with climate change that was followed shortly thereafter by $2 million in emergency food aid, the World Bank published a report calling Kiribati “one of the most vulnerable countries to the effects of climate change,” citing rising seas, agricultural damage, and exposure to extreme weather events like cyclones. So great is the sense of impending crisis that the Kiribati government recently purchased a 6,000-acre tract in neighboring Fiji for agricultural, and perhaps future resettlement, purposes. Neighboring, that is, only in the sense that it one of the nearest significant landmasses in the Pacific Ocean: Fiji lies some 2,100 miles to the southwest, and is facing its own environmental and social crises for many of the same reasons as Kiribati.
Teitiota’s claims of the potential for harm on returning to Kiribati are not, then, without basis. But in order to qualify as a refugee under the UN’s Refugee Convention, a person must fear persecution upon returning home. Teitiota’s legal team attempted a novel tact: they argued that Teitiota was being “persecuted passively” by the environment. Furthermore, they argued, Teitiota could reasonably be thought to suffer from human persecution as well, because “climate change is believed to be caused by the pollution humans generate” – a proposition supported by an Intergovernmental Panel on Climate Change (IPCC) report last year.
Teitiota’s lawyer argued that the international community’s refugee laws are outdated. “The refugee convention which came into effect at the end of the Second World War needs to be changed, to incorporate people who are fleeing climate catastrophe,” he told Radio New Zealand.
Kiribati is just one of a number of island nations whose existences are threatened by rising seas, among them the Marshall Islands, Tuvalu, and Tokelau. The world’s oceans have risen an average of 3.2 millimeters each year since 1970, a rate that is expected to accelerate; scientists theorize that seas could rise by more than one meter by the end of the century.
The future of the Maldives, a nation of 338,000 that lies 250 miles off the southwest coast of India, looks much like that of Kiribati. The former Maldivian president, Mohamed Nasheed, has become a kind of self-appointed emissary on this count, traveling the globe to raise awareness of the Maldives’s plight. Given the combined effects of rising seas, overfishing, pollution, and overreliance on a tourist industry that might well vanish as waves wash away the white sand beaches and corrals bleach and die in acidified seas, Nasheed has put the odds of his grandchildren inheriting an inhabitable Maldives at 50–50.
It is not just a matter of rising seas. Another phenomenon linked to global warming might prove even more catastrophic: the rise of extreme weather events. Adding to the problem is the fact that more people around the world are moving to coastal areas, where they are more at risk of severe disasters like typhoons. In 2003, 3 billion people lived within 200 kilometers of a coastline; by 2025, this number is likely to double.
A recent study by the Asian Development Bank predicted that given the combined effects of losses to agriculture, fisheries, and tourism, the GDPs of Pacific island nations stand to decline by 15% by 2100. One of the first researchers to highlight the threats of dramatic sea level rise, Jodi Jacobson, drew on worst case scenarios about sea levels in 1988 to predict that there might be six times as many environmental refugees as political refugees in the coming years.
The UN’s high commissioner for refugees has called climate change–related displacement “the defining challenge of our time.”
Which brings us back to Iaone Teitiota’s argument for refugee status: that he is in fact being persecuted by other people, because climate change, with its resultant disasters for Kiribati, is a manmade effect, as the IPCC suggested in its report. Looking at this more closely, we can understand the argument another way. Teitiota, as a resident of a low-lying island nation all but doomed by global warming, is facing persecution at the hands of the residents of countries producing the CO2 that caused the climate change in the first place – no small claim when the world’s top 6 emitters contribute 64% of annual emissions. That is, significant CO2 producers in developed nations are persecuting non-major CO2 producers in the developing world who will suffer adverse effects as a result of emissions, and thus are subsequently responsible, in the case of New Zealand, for providing people like Teitiota and his family with a new, safer home: a kind of refugeeism as loss and damage. The New Zealand High Court rejected this argument, but more, it seems, on the grounds of insufficient jurisdiction than anything else.
Is the existing UN Refugee Convention insufficient to cover the needs of today’s world? If we open the door to environmental refugees, can we put in appropriate controls to protect the rights of host countries? One of the New Zealand judge’s rationales for denying asylum was that Teitiota’s position “does not appear to be different from that of any other Kiribati national,” meaning that to grant him asylum would mean potentially granting it to all citizens of Kiribati, and indeed to all people who could demonstrate that their homes and livelihoods were endangered by climate change. If asylum were to be granted, Judge Priestley wrote, “at a stroke, millions of people who are facing medium-term economic deprivation, or the immediate consequences of natural disasters or warfare, or indeed presumptive hardships caused by climate change, would be entitled to protection under the Refugee Convention.” Judge Priestley demurred, stating that it is not the place of the New Zealand High Court to make such a decision – rather it is one that must be made by the international community, and more specifically the United Nations.
We might consider environmental refugees a new type of stateless person, who are afforded substantial protections in international law under a 1954 UN convention. If Kiribati and the Maldives have ceased to be habitable, as predictions hold they will in the coming decades, have the nations of Kiribati and the Maldives ceased to exist? There are other possibilities: we saw that the Kiribati government purchased land in Fiji to grow food, with the quiet suggestion that the land might serve as a new base for Kiribati residents should their current home become unlivable. The Kiribati government has also reportedly talked with a Japanese firm “about the possibility of constructing a floating island,” a Waterworld-esque possibility that is very much in vogue with today’s technocrats, and which would cost in the billions of dollars. (Kiribati has a GDP of $176 million.) Or should it be the case – will it be the case, as there is no indication that the threats these islands face will abate in the foreseeable future – that those forced by environmental changes to leave their homes over the coming decades take on new national identities? Even within the Kiribati government, views on this issue are divided. Rimon Rimon, a government spokesman, suggested that the government’s resources would be better spent teaching citizens the professional skills they will need to thrive in new homes abroad. It seems that the international community will be forced to make a decision about the validity and status of environmental refugees soon enough: others have submitted pleas for asylum as environmental refugees before, though none has been successful, and many more are sure to do so in the coming years as seas rise, storms intensify, and populations grow.
As for Ioane Teitiota? He is appealing the New Zealand High Court’s decision. Should that fail, “the family hopes an appeal to the Immigration Minister or the public is more successful.”