Research suggests that last four decades have seen a threefold rise in the frequency of natural disasters. Additionally, World Bank predicts that by 2050 there will be an increase in the number of climate migrants by at least 143 million. With regards to sea levels, estimates suggest that by the year 2100 around 48 islands will be lost to the rising ocean. The last time rise in sea levels gathered international attention was at the Copenhagen Conference in 2009. Since then, the rise in sea levels has only increased. Yet, there have been no laws to rectify the chaos resulting from climate change. It was only in January this year that the need for law became imminent when the UN Human Rights Committee (Committee) expressed its opinion in the matter of the Kiribati family that fled to New Zealand in 2015.
On 7 January 2020, the Committee, in the matter of Ioane Teitiota, upheld the ruling of the New Zealand Tribunal and opined that the Kiribati family cannot be granted protection under the principle of ‘non refoulement’ citing the reasons mentioned below.
One, that the family does not face either ‘arbitrary deprivation of life ‘or’ real, personal and reasonably foreseeable risk of a threat to their right to life’ in Kiribati. Hence, they cannot allege a violation of the ‘non- refoulement’ principle by the state of New Zealand.
Two, the Committee did recognise the threat posed by the impact of climate change and held that “the effects of climate change may expose individuals to a violation of their rights under the Covenant, triggering the non- refoulement obligations of sending states”. Yet, it held that the timeframe of 10 to 15 years allows for intervening acts by Kiribati to take affirmative measures to protect and relocate its population.
Therefore, the court held that the family’s rights were not violated under Article 6(1) of the International Covenant on Civil and Political Rights(Covenant).
The Committee’s views bring to light the international community’s strife with inadequacies in international law when dealing with implications of rise in sea levels. However, in my opinion, the Committee’s views will act as a catalyst in the development of lex ferenda. Ever since the International Law Association(ILA) identified issues created by rising sea levels, the need for a law that settles the issues of the law of the seas; statehood and human rights has continued. However, its evolution has been slow.
The reasons given by the Committee are not flawed in their foundation. However, they lack in their scope and highlight the vast lacuna in law to deal with circumstances created by climate change. The Kiribati family’s claim under Article 6 of the Covenant falls short in its protection due to shortcomings in its defined applications. Under Article 6, the requirement of risk that grants protection is such that the risk must be personal in nature and cannot derive merely from the general conditions in the receiving State, except in the most extreme cases. In the present case, the court identified that there was neither reasonably foreseeable harm nor risk i.e. personal in nature. Therefore, protection under Article 6 was denied.
I believe that Article 6 entails the scope for protection even in cases of life-threatening situations created by climatic degradation. Firstly, Article 6 guarantees individuals the entitlement to be free from acts and omissions that are intended or may be expected to cause their unnatural or premature death and to enjoy a life with dignity. Secondly, under Article 6, “the obligation not to extradite, deport or otherwise transfer may be broader than the scope of the principle of non-refoulement under international refugee law, since it may also require the protection of aliens not entitled to refugee status.” The article dictates that ”parties must, allow all asylum seekers claiming a real risk of a violation of their right to life in the State of origin access to refugee or other individualized or group status determination procedures that could offer them protection against refoulement.” Thirdly, the Committee itself recognised that “when an entire country runs the risk of becoming submerged underwater, the conditions of life in such a country may become incompatible with the right to life with dignity before the risk is realized.”
The right to life should not be construed narrowly. Given its expansive provisions, protection under Article 6 could be extended to life threatened by climate change. Firstly, awareness of the fact that ‘right to life’ is under threat due to impending risk could be interpreted as ‘risk’ enough to grant protection in cases of displacement due to environmental threat. In fact, Committee member Duncan Laki wrote that “it would indeed be counterintuitive to the protection of life, to wait for deaths to be frequent in order to consider the threshold of risk as met”. Secondly, “acts or omissions that may cause unnatural or premature death” could include a threat to life due to climate change as appropriate cause. Thirdly, there must be created “individualized or group status determination procedures” to ensure protection to people displaced due to rise in sea levels. The Kiribati incident establishes that the absence of law should no longer be tolerated. Law needs to account for lives under threat as sea levels rise continually.
The issue has made significant progress given ILA’s Declaration of Principles on the Protection of Persons Displaced in the Context of Sea Level Rise. However, practically the process of displacement due to rising sea levels is not and will not be an isolated event. With the mounting threat of rising sea levels, migrating away from the place should be granted as a right. In the Kiribati case the Committee, Tribunal and the Supreme Court identified that the effects of climate change or other natural disasters could provide a basis for protection. This reflects on the revision required in law to accommodate the adverse impacts of climate change.
During the 67th session of the International Law Commission(ILC) in 2017, the commission identified the “special situation of low-lying coastal areas and small island developing States due to sea-level rise” and ensured that the issue be given serious consideration. In fact, a lot of work in this direction has been done in the last decade.
First ,the ILA Committee’s 2018 report put forward two suggestions to the issue of the law of seas. They suggested that once determined under UNCLOS the baselines and the outer limits of the maritime zones should not be recalculated even if the coastline has changed geographically due to rise in sea level and the impacts of the same on maritime boundaries should not be regarded as a fundamental change of circumstances. This bodes well for maritime laws and avoids chaos among states. Recurring changes in territorial limits will cause instability. It is time to create exceptions in law to ensure international cooperation in the face of climate change.
Second, arguments have been made in the issue of statehood. A state is not necessarily extinguished by substantial changes in territory, population or government, or a combination of all three (Crawford, 2007). In principle, states can continue to function even when their governments operate from outside their territory. Jane McAdam writes that recognition of deterritorialized states is testimony that continuity of statehood remains even if the state loses some characteristics of statehood. The significance of the argument can only be understood in conjunction with the rights of the people involved. If a country is deprived of its identity as a state, that will by-default render its inhabitants stateless and their rights redundant. The development of international law needs to be pre-emptive in character and focus on the needs of the affected populations.
Third, the Refugee Convention 1951, does not account for people displaced due to environmental threat. Though the 2016 draft articles on Protection of persons in the event of disasters by ILC extend protection to disasters, the rights and well- being of ‘environmental migrants’ have found no solid accommodation. It has been argued that “where persecution occurs in the context of climate change and individuals face serious harm or systemic violation of human rights and not just threats posed by the adverse impacts of climate change, one can qualify as ‘refugee’.” This is a sad state of affairs. The need is to create room in law for the climate affected population. Moving away from a place under threat of extinction should be granted as a ‘right’ in line with the right to live with dignity.
More than ten years have passed since Mohammed Nasheed, implored nations to collectively formulate a law to fight climate change and ensure that his nation stays afloat. Yet, there is no provision in the law that deals with problems the Kiribati family faces today. The need to fill this gap in the law is imminent. While small island states face maximum brunt in this catastrophe, the international community must cooperate and work to protect their statehood, security and rights of their population.
Namrata Yadav is a Masters in International Affairs Candidate at the Lee Kuan Yew School of Public Policy, National University of Singapore. A graduate in law, she is an international law enthusiast with particular interest in humanitarian affairs.