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III. Who is a Refugee?
The Convention and its 1967 Protocol establish the international framework for refugees. Thus, to qualify for asylum and non-refoulement protection under Article 33(1) of the Convention, one must first meet the Convention’s definition of a refugee as defined in Article 1(A)(2). To fall within purview of Article 1(A)(2) the individual must have a fear of persecution due to 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. It is worth noting, however, that Article 1(A)(2) was partly created in response to State persecution in post-World War II Europe, where the concerns posed by climate change were not even considered. Thus, as noted in a 2011 UNHCR report, climate-induced asylum seekers seeking protection under the Convention face an often-insurmountable job fitting their claims within the Convention’s Article 1(A)(2).[1]
This was noted in the Teitiota case, which was tried in 2013 before the New Zealand Immigration and Protection Tribunal. Despite the grave environmental degradation caused by flooding and soil salinization in Kiribati, which may result in a lack of safe drinking water; the possibility of disease; the inhabitants’ potential inability to sustain a livelihood through agriculture; and violent land disputes, the Court required IoT to demonstrate that Kiribati’s persecution caused the risk to his life due to one of the Convention grounds.
Unsurprisingly, the Court determined that IoT was not being persecuted by the State of Kiribati on one of the Convention’s grounds, as the effects of Kiribati’s environmental degradation affected not only IoT but the entire population, and that the Kiribati government did not fail to take adequate steps to protect him from environmental harm (para. 75). On appeal, the High Court and the Supreme Court reaffirmed this (para. 12 and 55). IoT was therefore deemed ineligible for refugee status under the Convention and was repatriated to Kiribati.
IV. Equating Safe Drinking Water with Potable Water?
To examine whether IoT would qualify for asylum under the ICCPR as a refugee, the Committee referred to the Refugee Convention (para. 2.8). The Committee determined that there was no indication that IoT lacked access to potable water or that the environmental circumstances he encountered or would encounter upon his return were dangerous enough to threaten his life. For these reasons, he did not qualify as a “refugee” under the Refugee Convention.
The UNHRC appears to believe that potable drinking water is synonymous with safe drinking water. However, as stated in Dissent 1, water can be labelled as potable even if it contains bacteria that are harmful to health, particularly for children (IoT has three children). The criterion for qualification should be the availability of drinkable water. The UNHRC appears to believe that as long as there is no complete absence of potable water, no danger exists. Additionally, the burden of proof for establishing that there is no access to drinkable water appears to be on IoT. Should not the burden of proof rest with the state party to demonstrate that the refugee would have access to safe drinking water upon their return? A question for the international community to ponder upon.
V. Ioane Teitiota faces a real risk of harm:
Obtaining refugee status requires proof of imminent harm. The UNHRC referred back to its decision in the Aalbersberg case to reaffirm this concept. Emphasis must be placed on the phrase “imminent,” as that single word eliminates IoT’s chances of obtaining refugee status entirely. Although Kiribati is sinking, its sinking seems to not lead to an “imminent” loss of life by IoT. Additionally, the UNHRC noted that Kiribati is doing whatever it can to prevent its sinking. What the Committee conveniently ignored is that Kiribati’s sinking is not only inevitable; it is imminent. Does the UNHRC expect the citizens of Kiribati to wait for the island to sink before seeking refuge? Because that appears to be the message sent by this judgement. Duncan Laki Muhumuza expressed a similar sentiment in Dissent 2.
In Dissent 2, Laki Muhumuza notes that the threshold for causing bodily damage and qualifying as a refugee should not be unachievably high. A warning clearly ignored by the Committee when reaching their decision. The Committee recognized that Kiribati would submerge in the near future, but since it has not sunk yet, IoT does not qualify as a refugee at the moment. There is an inherent flaw in such a holding. The issue is in the fact that the threshold is not met since Kiribati is trying to take active steps to mitigate the damage posed to the island by climate change. However, does this indicate that the threat is eliminated? Certainly not. The threshold should be the actual risk of harm posed to the individual and not the measures taken by the country.
VI. Conclusion:
This piece argues that the UNHRC’s position that a violation of the ICCPR and an individual’s right to life can occur only as a result of the State’s (in this example, Kiribati) failure to act, and not as a result of the situation itself, is erroneous. Even in the absence of State action, a violation of a person’s right to life and a serious risk of harm can exist. To address the issue of climate refugees, such a narrow reading of the ICCPR must be abandoned.
Climate change is a fact of life, and given our current treatment of the planet, it will not be kind to us. Climate refugees are almost certain to be the next significant refugee catastrophe. When the issue becomes significant, States will be compelled to address it and provide accommodations for climate refugees. Nevertheless, that does not mean that the international community ignores it until the problem becomes inevitable to address. Individuals such as IoT are at a real risk of harm. Unless the international community abandons a restrictive approach towards climate refugees, numerous others like IoT will be sent back to countries where they are at risk of harm.
[1] UNHCR and Jane McAdam, “Climate Change Displacement and International Law: Complementary Protection Standards” (UNHCR 2011) <https://www.unhcr.org/4dff16e99.pdf> accessed January 2, 2021, page 12-14.
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