LAW MANTRA THINK BEYOND OTHERS

(National Monthly Journal, I.S.S.N 23216417)

"Ioane Teitiota
v.
The Chief Executive of the Ministry of Business Innovation and Employment [2013]
NZHC 3125"


Introduction
In recent years there has been a lot of debate on the status of persons displaced from their
countries due to rapid growth in climate change. While some are of the opinion that they
should be termed as environmental refugees, others are against the notion of labelling them as
a refugee, since there is lack of persecution among factors necessary to establish them as
refugee under the current legal framework. The effect of recognition as environmental refugees
would be, to entitle them to certain rights available under the UN convention on refugees.
However the present position is that they do not find protection under any international
instrument. In light of this situation courts are bound to uphold the letter of the law and seem as
helpless as the people in these situations in coming to a decision averse to these persons
interests. The authors intend to look into this case as an example of the fate of people displaced
due to climate change under the current legal regime.
Background
Refugees are among the most vulnerable people in the world. Therefore to protect the refugees
and to safeguard their rights, Article 14(1) of the Universal Declaration of human rights 1948
1
,
recognizes the right of persons to seek asylum from persecution in other countries
2
. The United
Nations came up with Refugee Convention 1951 for further strengthening the refugee laws, the

1
Everyone has the right to seek and to enjoy in other countries asylum frompersecution.
2
United Nation General Assembly resolution 429(V) of 14 December 1950, [last accessed-30
th
March 2014];
http://www.unhcr.org/refworld/docid/3b00f08a27.html


Convention came into force on 22 April 1954, and was only once amendment in the form of a
1967 Protocol, which removed the geographic and temporal limits of the 1951 Convention.
3

The Convention and the Protocol specifies the rights of the refugees and the duties of the 148
States that are party to one or both of these instruments. Under these two instruments, United
Nations High Commissioner for Refugees (UNHCR) has a particular role. States comply with
UNHCR in the exercising of its functions which are set out in its Statute of 1950 along with a
range of other General Assembly resolutions.
New Zealands obligations towards 1951 Convention and 1967 Protocol is not to expel or
return a refugee to any other country or border, where their life or freedom would be threatened
on account of their race, religion, nationality, membership of a particular social group or
political opinion. The Refugee laws of New Zealand are incorporated under Immigration Act
2009. New Zealand also abides to other Conventions as well; these conventions through their
Articles support the refugee laws in different dimensions and aspects. These Conventions are
as follows-
Article 3 of Convention against Torture and Other Cruel, Inhuman or Degrading
Treatment or Punishment, 1984
4
.
Article 6(1)
5
and Article 7
6
of International Covenant on Civil and Political Rights,
1966. Articles 6 and 7 create absolute obligations not to send a person back to another
country in certain circumstances.
7

Article 3
8
and Article 9
9
of the Convention on the Rights of the Child, 1989.
10


3
Protocol relating to the Status of Refugees; [last accessed-30
th
March 2014] ;
http:/ / www.refworld.org/ cgi-bin/ texis/ vtx/ rwmain?docid=3b00f1cc50

4
No State party may expel or extradite a person to a State where there are substantial grounds for believing that
he would be in danger of being subjected to torture
5
Every human being has the inherent right to life. This right shall be protected by law. No one shall be
arbitrarily deprived of his life.
6
No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment. In particular, no
one shall be subjected without his free consent to medical or scientific experimentation.
7
International Covenant on Civil and Political Rights; [Last accessed-1
st
April 2014];
http://legal.un.org/avl/ha/iccpr/iccpr.html
8
The best interests of children must be the primary concern in making decisions that may affect them. All adults
should do what is best for children. When adults make decisions, they should think about how their decisions will
affect children. This particularly applies to budget, policy and law makers.
9
Children have the right to live with their parent(s), unless it is bad for them. Children whose parents do not live
together have the right to stay in contact with both parents, unless this might hurt the child.
10
A summary of the rights under the Convention on the Rights of the Child; [Last accessed- 1
st
April 2014];
http://www.unicef.org/crc/files/Rights_overview.pdf


Kiribati, officially known as the Independent and Sovereign Republic of Kiribati is one of the
poorest countries. It is an island nation in the central tropical Pacific Ocean. The small island
States most vulnerable to extinction, they are members of the group of Small Island
Developing States (SIDS), and Kiribati, amongst others, belong to the group of Least
Developed Countries (LDCs).
11

People who live on Kiribati's main island which is South Tarawa duly rely on the surrounding
seas for their livelihoods. But ocean is the greatest threat to their future survival; the island is
not more than 2m (6ft 6in) above sea level.
12
Therefore, the country adopted the Kiribati Adaptation
Program(KAP) which aims to reduce Kiribatis vulnerability to climate change, climate variability and
sea level rise by raising awareness of climate change, assessing and protecting available water resources
and managing coastal erosion; and population settlement planning to reduce personal risks.
13
However
even after repeated trials by the Kiribati officials, there is not much success reached following adoption
of the program.
Facts
The applicant, resident of Kiribati Island after completing his secondary education went to stay
with his relatives in Tawara Islands and was unemployed in 90s. In 2002, he got married and
due to insecurity regarding the climate, decided to settle in New Zealand in 2007. The couple
had three children in New Zealand but could not be citizens of New Zealand after the, The
Citizenship Amendment Act 2005, which changed section 6(1) of the Citizenship Act
14
( Prior
to this amendment all persons born in New Zealand on or after 1 J anuary 1949 were New
Zealand citizens).
After the lapse of the due time, they were asked to leave New Zealand. But the appellant did
not wish to return to Kiribati because of the difficulties they faced due to the combined
pressures of over-population and sea-level-rise. The house they were living in on South Tarawa
was no longer available to them on a long term basis. Although their families have land on

11
The listing of Small Island Developing States prepared by the UN Office of the High Representative for the
Least Developed Countries, Landlocked Developing Countries and Small Island Developing States;[ Last
accessed - 7
th
April, 2014]; http://www.un.org/special-rep/ohrlls/sid/list.htm
12
Republic of Kiribati Island Report Series, South Tawara; [Last accessed- 2
nd
April 2014];
http://www.climate.gov.ki/wp-content/uploads/2013/01/6_SOUTH-TARAWA-revised-2012.pdf.
13
Kiribati Adaption Program; [Last accessed 2
nd
April 2014];
http://www.climate.gov.ki/kiribati-adaptation-program/
14
Under the Citizenship Act 1977 an individual will only be a New Zealand citizen by birth if under s 6(1)(a) the
person was born in New Zealand on or after 1 J anuary 1949 and before 1 January 2006; or if under s 6(1)(b) the
person was born in New Zealand on or after 1 J anuary 2006 and at least one of the persons parents was a New
Zealand citizen or entitled in terms of the Act to reside in New Zealand indefinitely. Neither section applies.



other islands, they face similar environmental pressures and the land available is of limited size
and has other family members living there.
A refugee and protection officer declined to grant the applicant refugee status and/or protected
person status. The applicant exercised his statutory right of appeal to the Immigration and
Protection Tribunal (the Tribunal). The Tribunal held that the applicant was neither a refugee
nor a protected person. The issue then went before the Honble High Court of New Zealand as
the applicant filed a leave to appeal under Section 245 of the Immigration Act 2009 from the
decision of Immigration and Protection Tribunal. The Court while supporting the view of the
Tribunal rejected the leave to appeal.

Analysis
The Refugee convention is clear in that it covers only five conventional grounds on the basis of
which a person can claim protection as a refugee. In its observation of the term refugee, the
Honble High Court of New Zealand came to the conclusion that while protection for the
individuals, displaced due to climate change might be desirable, but the absence of well-
founded fear of persecution on grounds of race, religion, nationality, membership of a
particular social group or political opinion is the main factor because of which they cannot
receive protection under this framework on refugee law.
In the given case the applicant belonged to Kiribati which is part of the group of islands called
as Sinking islands. Sea level rise poses one of the most widely recognized climate change
threats to low lying coastal areas on islands and atolls.
15
While considering the problem of the
low lying islands, IPCC recently referred to Storey and Hunter
16
to conclude that the Kiribati
problem does not refer to the whole of Kiribati but rather to the southern part of Tarawa atoll
where pre existing issues of severe overcrowding, proliferation of informal housing and
unplanned settlement, inadequate water supply, poor sanitation and solid waste disposal,
pollution and conflict over land ownership are of concern. They stated that these problems
require immediate resolution, if the vulnerability of the South Tarawa community to the real
and alarming threat of climate change is to be managed effectively. Health issues are not far.
In Pacific islands, the incidence of diseases such as malaria and dengue fever has been
increasing, especially endemic dengue in Samoa, Tonga and Kiribati. Studies conducted so far

15
IPCC ; Climate Change 2014: Impacts, Adaptation, and Vulnerability; Chapter 29, Small Islands, Volume II;
[Last accessed- 12
th
April 2014]; http://ipcc-wg2.gov/AR5/report/final-drafts/
16
Storey, D. and S. Hunter; Kiribati: an environmental 'perfect storm'; 41(2), 167-181 ( 2010)



in the Pacific have established a direct link between malaria, dengue and climate variability,
these and other health risks including cholera, are projected to increase as a consequence of
climate change.
17

The applicant along with his wife had left Tarawa atoll for New Zealand since they wished to
raise children and were insecure because of ocean inundation. The Immigration and Protection
Tribunal had accepted evidence with regard to the effects on the population of South Tarawa
caused due to population growth, urbanization, limited infrastructure in light of sudden onset
environmental events and slow onset process, but rejected the plea of the applicant to be
considered as internally displaced person who had a right to be protected under refugee status
in New Zealand. The basis being that Article 1A(2) does not cover Internally Displaced
persons since they are not outside their country of nationality.
The Immigration and Protection Tribunal while deciding on the issue, had then observed, a
view which found approval by High Court as well, that though the possibility that natural
disasters may lead to persecution cannot be ruled out but it is recognized that in most cases
natural disasters affect persons indiscriminately, thus ruling out persecution. Drawing on the
same lines it was concluded that since the population of Kiribati was facing the same situation
as the applicant, there was absence of well-founded fear of persecution. In spite knowing there
might be conflict as a result of events brought on by climate change.
This view of exclusion of climate change refugee from the protection under Refugee
Convention is the current approach under the international framework. Mr. Antnio Guterres,
UN High Commissioner for Refugees has noted, that UNHCR has a duty to alert states to these
problems and help find answers to the new challenges they represent.
18
Climate change is
argued not to give rise to persecution. It is said that whether something amounts to
persecution is assessed according to the nature of the right at risk, the nature and severity of
the restriction, and the likelihood of the restriction eventuating in the individual case.
19

The first problem which then arises is identifying the persecutor which poses such a risk. The
counsel for the applicant did not identify the government of Kiribati, but identified the
international community as a persecutor holding out its failure to control greenhouse gases

17
Russell, L; Poverty, Climate Change and Health in Pacific Island Countries; (2009)
18
Opening Statement by Mr. Antnio Guterres, United Nations High Commissioner for Refugees, at the High
Commissioner's Dialogue on Protection Challenges; Theme: "Refugee Protection, Durable Solutions and
International Migration," Geneva, 11 December 2007; [Last accessed - 7
th
April 2014]
http://www.unhcr.org/475fb70f4.html
19
G. S. Goodwin-Gill and J. McAdam, The Refugee in International Law 92; (3
rd
Edition, Oxford 2007)


which are responsible for rising sea levels and changes of weather patterns (inherent in climate
change). Arguing this meant that the applicant sought refuge in the country which he called as
the persecutor. This is against the traditional concept of seeking refuge away from the
persecuting country.
Again the impacts of climate change are largely indiscriminate, rather than tied to particular
characteristics such as a persons background or beliefs.
20
An argument that people affected by
its impacts could constitute a particular social group would be difficult to establish, because
the law requires that the group must be connected by a fundamental, immutable characteristic
other than the risk of persecution itself.
21

However a contrary maximalist view holds that the presence of indirect human agency which
causes carbon emissions leading to climate changed is part of the concept of well-founded fear
of persecution. As the counsel for the applicant argued, like many other propagators of this
view would, that the threat from such indirect human agency is not remote or speculative but
actually occurring and thus should be covered within the convention. Norman Myers one of
main propagators of the concept defined environmental refuges as people who can no
longer gain a secure livelihood in their erstwhile homelands because of drought, soil erosion,
desertification, and other environmental problems
22
and cited global climate change as one of
the primary factors behind environmental refugee.
23

The court was however correct in observing, that it would be wrong for the court to exceed its
authority, where the sovereign states have decided not to cover such individuals within the
definition. Further, since there was found to be a standard of life and access to food, clothing
and housing in the same manner as the general population of Kiribati, the argument that
sending the applicant back to Kiribati would be violative of Article 6 of International Covenant
on Civil and Political Rights
24
and Article 11 of International Covenant on Economic, Social
and Cultural Rights
25
was also rejected. Therefore the various arguments raised by counsel for
the applicant were rejected, though the court noted that the intention behind the same was
noble.

20
UNHRC; Protection Policy and Legal Advice; May 2011; [ Last accessed -10 April 2014]
http://www.unhcr.org/pages/4a16b17a6.html
21
G. S. Goodwin-Gill and J. McAdam, The Refugee in International Law 92 ; (3
rd
Edition, Oxford 2007)
22
Myers Norman; Environmental refugees in a globally warmed world.; Bioscience 43 (11): 752- 761; (1993)
23
Myers, Norman; Environmental Refugees: An emergent security issue; 13th Economic Forum, Prague; May
2005.
24
States every human being has an inherent right to life which must be protected and that no one should be
arbitrarily deprived of life
25
States that the States Parties to the present Covenant recognize the right of everyone to an adequate standard of
living for himself and his family, including adequate food, clothing and housing, and to the continuous
improvement of living conditions. The States Parties will take appropriate steps to ensure the realization of this
right, recognizing to this effect the essential importance of international co-operation based on free consent.


Conclusion
The sea-level rise impacts on the low-lying Pacific Island atoll States of Kiribati, Tuvalu,
Tokelau and the Marshall Islands may, at some threshold, pose risks to their sovereignty or
existence.
26
Therefore even if there might not be an agreement on the definition, the threat
facing the population is very apparent.
The court was within the bounds of law while refusing the leave to appeal under Section 245 of
the Immigration Act 2009 from the decision of Immigration and Protection Tribunal. As is
apparent the only relief which individuals might seek is humanitarian relief. This however
seems difficult given how the hands of international humanitarian bodies
27
are full with
providing aid to war torn and other aspects covered in the Convention grounds.
The fate of future generations hangs on how the international community manages to timely
take efforts and come to an agreement which would benefit those under threat from the climate
change effects. Unless a suitable framework is established whereby these individuals can seek
relief, the courts will not be keen, as has been the case till now
28
, on accepting applications of
migrants seeking asylum on the basis of climate change.
By :- Ms. Sukarma Thapar and Ms. Jyotsna Singh


26
J on Barnett; Adapting To Climate Change In Pacific Island Countries: The ProblemOf Uncertainty; (2001);
[Last accessed on- 10
th
April 2014]; http://www.sustainable.unimelb.edu.au/files/mssi/Barnett_Adapting-to-
climate-change-in-Pacific-countries-2001_67062.pdf
27
UN, humanitarian partners sound global alarmon behalf of Syrias children; [Last accessed on- 9
th
April 2010];
http://www.un.org/apps/news/story.asp/story.asp?NewsID=47210&Cr=syria&Cr1=#.U0fRl_mSySo
28
Mohammed Matahir Ali v Minister of Immigration [1994] FCA 887; 0907346 [2009] RRTA 1168 (10
December 2009) (Kiribati); 1004726 [2010] RRTA 845 (30 September 2010) (Tonga)