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This article was written by Blandine Garot–Jacquey, a master’s student in international human rights law at Lund University. She holds an LL.B. in German Law from the University of Potsdam, an LL.B. in French Law and an LL.M. in European Law from the University of Paris Nanterre. She specializes in immigration law and data protection law.
International Migrants Day is celebrated every year on December 18, the date of the adoption of the International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families. While the term “migrant” refers to any person who moves or has moved across an international border or within a State away from his or her habitual place of residence, this article will focus on climate refugees, a specific category of migrants who are forced to move “due to consequences associated with climate change such as drought, floods, severe weather events and sea-level rise”. However, climate refugee is not yet a legal category recognized under international law.
Current protection gaps in the Refugee Convention regarding climate refugees
The 1951 Refugee Convention in its current form cannot protect climate refugees for three main reasons. The first reason is that this Convention can only grant refugee status to those persecuted for specific reasons, such as race, religion, nationality, membership of a particular social group or political opinion. These grounds make it impossible to include climate as such. The second reason is that according to the interpretation of the definition of refugee in the Convention, the persecution of the refugee must be carried out by a human agent, such as a state or non-state actor, which cannot be established when it comes to climate as a persecutor. The third reason is that the Refugee Convention requires that the refugee be outside his or her country of residence, which is unable or unwilling to provide protection to that person. In the case of climate change, however, the vast majority of climate change displacement occurs internally, within the person’s country of residence.
A Step Forward with the Case of Ioane Teitiota vs. New Zealand
The case of Ionae Teitiota vs. New Zealand concerned a citizen of the Pacific nation of Kiribati who was denied of asylum as a “climate refugee” before New Zealand authorities and courts. He claimed that the effects of climate change, sea-level rise and living conditions in Kiribati forced him to leave his habitual place of residence. He brought the case against the government of New Zealand before the United Nations Human Rights Committee in February 2016 and the Human Rights Committee issued its decision on January 7, 2020. In its decision, the Human Rights Committee finds that Ioane Teitiota’s denial of asylum was not unlawful because he did not face an imminent threat to his life.
However, the most important contribution of this decision for climate refugees is that the Human Rights Committee recognized that climate change is a serious threat to life and that the principle of non-refoulement can be applied in this situation. Indeed, the principle of non- refoulement means that a person cannot be deported to his or her country of residence if there is a risk of human rights violations. The Human Rights Committee explicitly states that the effects of climate change risk exposing asylum seekers to human rights violations if no energy measures are taken at national and international level. Moreover, the risk of a state disappearing completely under water is such a serious risk that the living conditions in the county may be incompatible with the right to live in dignity even before the disaster occurs. The Human Rights Committee’s decision has been interpreted as paving the way for the future recognition of climate refugees in international law.
The world’s first climate resettlement treaty: the Australia-Tuvalu Falepili Union Treaty
A different approach to the legal recognition of climate refugees has been taken in the world’s first climate resettlement treaty, which still offers protection to people who could be considered as climate refugees. This approach consists of a treaty between at least two countries, one of which is severely affected by climate change, granting residency in a country without any reference to or recognition of refugee status. This is the approach taken by the Australia-Tuvalu Falepili Union Treaty, signed on November 9, 2023. Tuvalu is a Pacific Island State with an area of 26 square kilometers and a population of 11,200, which is facing rising sea and will be submerged within 30 to 50 years, according to the Prime Minister of Tuvalu, Mr. Kausea Natano. More specifically, Article 3 of the Australia-Tuvalu Falepili Union Treaty provides that every citizen of Tuvaluans has the right to (a) live, study and work in Australia; (b) have access to Australian education, health, and key income and family support on arrival. The question that still remains is how the State of Tuvalu will survive concretely without a territory, even though the treaty recognizes that the statehood and sovereignty of Tuvalu will continue. In conclusion, this treaty is undoubtedly an important step forward in the protection of persons who could be considered as climate refugees.
Conclusion
The case of Ioane Teitiota vs. New Zealand and the Australia-Tuvalu Falepili Union Treaty represent a step forward in the protection of climate refugees, although nether explicitly recognizes the legal category of climate refugee. However, is recognition really necessary? The Australia-Tuvalu Falepili Union Treaty shows that Tuvaluans can settle in Australia and have some specific rights without being granted climate refugee status. Dina Ionesco, Head of the Migration, Environment and Climate Change Division at the UN’s International Organization for Migration, argues that recognizing this legal category fails to acknowledge that climate migration is mainly internal and not necessarily forced. Furthermore, she also argues that many responses can come from existing migration management and policies.
Sources:
Amnesty International, ‘UN landmark case for people displaced by climate change’ (20 January 2020)
Australia-Tuvalu Falepili Union Treaty
Convention relating to the Status of Refugees, 1951
Dina Ionesco (UN Migration Agency), ‘Let’s talk about climate migrants, not climate refugees’ (6 June 2019)
Douglas Guilfoyle and Alex Green, ‘The Australia-Tuvalu Falepili Union Treaty: Security in the face of climate change … and China?’ (28 November 2023) EJLT
France Info, ‘Climat: trois questions sur l’archipel de Tuvalu, menacé de disparition d’ici un siècle’ (10 November 2023)
Guy S. Goodwin-Gill and Jane McAdam, The Refugee in International Law (OUP 2021) Chapter 12
International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families
International Organization for Migration, Definition of “Migrant”
Ioane Teitiota v. New Zealand, CCPR/C/127/D/2728/2016 (7 January 2020) UNHRC Sumudu Anopama Atapattu, “A new category of refugees? ‘Climate refugees’ and a gaping hole in international law” in Simon Behrman and Avidan Kent (eds), ‘Climate refugees’ Beyond the Legal Impasse? (Routledge 2018)
UNGA Res 55/93 (28 February 2021) UN Doc A/RES/55/93 (Proclamation of 18 December as International Migrants Day)
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