UN Human Rights Committee Views Adopted on Teitiota Communication

Pacific Island states do not need to be under water before triggering human rights obligations to protect the right to life.

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Kirabiti is a small island in the central Pacific Ocean, a nation of about 300 square miles and a population of 100,000 people.  In 2013, President Tong of Kirabti  has spoken of climate-change induced sea level rise as “inevitable”. “For our people to survive, then they will have to migrate. Either we can wait for the time when we have to move people en masse or we can prepare them—beginning from now …

The author of the communication is Ioane Teitiota, a national of the Republic of Kiribati born in the 1970s. His application for refugee status in New Zealand was rejected. He claims that the State party violated his right to life under the Covenant, by removing him to Kiribati in September 2015. The Optional Protocol entered into force for the State party on 26 August 1989.

The author is represented by counsel.

1.2 On 16 February 2016, pursuant to rule 92 of its rules of procedure, the Committee, acting through its Special Rapporteur on new communications and interim measures, decided not to request the State party to refrain fromremoving the author to the Republic of Kiribati while the communication was under consideration by the Committee. Summary:

A citizen of Kiribati filed a communication with the UN Human Rights Committee claiming that New Zealand had violated his right to life by denying him asylum despite his assertions that climate change made Kiribati uninhabitable. The Committee concluded that the communication was admissible, but that New Zealand’s decision was not clearly arbitrary, a manifest error, or a denial of justice.

In 2013, Ioene Teitiota, a Kiribati citizen, sought asylum in New Zeleand, asserting that the effects of climate change and sea level rise forced him to migrate. When the Immigration and Protection Tribunal denied his claim, he appealed to the New Zealand High Court. The High Court found that the impacts of climate change on Kirabati did not qualify Teitiota for refugee status because he was not subjected to persecution required for the 1951 United Nations Convention relating to the Status of Refugees. Teitioa appealed the decision to the Court of Appeals. In dismissing the application, the Court of Appeals noted the gravity of climate change but stated that the Refugee Convention did not appropriately address the issue. Teitiota again appealed, this time before the Supreme Court of New Zealand. In 2015, the Supreme Court affirmed the lower courts’ conclusions, but did not rule out the possibility “that environmental degradation resulting from climate change or other natural disasters could [] create a pathway into the Refugee Convention or protected person jurisdiction.”

On September 15, 2015, Teitiota filed a communication with the UN Human Rights Committee, alleging that New Zealand had violated his right to life under the International Covenant on Social and Political Rights. He argued that sea level rise in Kiribati caused by climate change has created a scarcity of habitable space, resulting in violent land disputes, and environmental degradation including saltwater contamination of the freshwater supply. On January 7, 2020, the Committee ruled that the communication was admissible because Teitiota had sufficiently substantiated his claim that when he was removed to Kiribati he faced an imminent risk of being arbitrarily deprived of his life due to the effects of sea level rise. The Committee reasoned that the requirement of imminence attaches to the decision to remove the individual, and not to the anticipated harm in the receiving state, although the latter is relevant in assessing the real risk faced by the individual.

The Committee dismissed the communication on the merits, however, explaining that it could only reverse a States party’s determination that was clearly arbitrary or amounted to a manifest error or a denial of justice. The Committee reasoned that the risk of an arbitrary deprivation of life must be personal, rather than rooted in the general conditions of the receiving state, except in the most extreme cases. The Committee recognized that environmental degradation and climate change constitute serious threats to the ability of present and future generations to enjoy the right to life, but upheld New Zealand’s determination that Teitiota had not provided evidence that he faced any real chance of being harmed in a land dispute, would be unable to grow food or access potable water, or otherwise faced life-threatening conditions.

The Committee did find, however, that “given that the risk of an entire country becoming submerged under water is such an extreme risk, the conditions of life in such a country may become incompatible with the right to life with dignity before the risk is realized.” Accepting Teitiota’s claim that sea level rise is likely to render Kiribati uninhabitable, the Committee explained that given the 10-15 year timeframe, there was sufficient time for intervening acts by the government of Kiribati to protect its citizens.

Two Committee members dissented. One attacked the majority’s reliance on the lack of evidence that Teitiota’s family lacked potable water, explaining that “potable” does not equate to “safe drinking water.” The second argued that the Committee placed an unreasonable burden of proof on Teitiota to establish a real risk of danger of arbitrary deprivation of life.

At Issue: Kiribati citizen argued New Zealand’s denial of refugee status violated international human rights.

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01/07/2020

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