South Pacific – Cabot Institute for the Environment blog

Climate change displacement: a step closer to human rights protection

Posted on March 17, 2020April 13, 2023 by janet.crompton

On 20th January this year the United Nations Human Rights Committee released a landmark decision on people seeking international protection due to the effects of climate change. The decision did not include specific guidance as to where the tipping point lies, but it nevertheless remains highly relevant to future similar potential cases around the world.

The case and the plot twist

The case deals with the individual communication made by Ioane Teitiota, a national from the South Pacific country of Kiribati, under the Optional Protocol to the International Covenant on Civil and Political Rights (ICCPR). Based on this Protocol, he claimed that New Zealand had violated his right to life by rejecting his request for refugee status and returning him and his family home in 2015.

Flooded sea wall by a village on Tarawa, Kiribati (UN)

Teitiota argued in his case that the effects of climate change, such as sea-level rise, had forced him to migrate from Tarawa (the principle island in Kiribati) to New Zealand. He claimed that freshwater on Tarawa had become scarce due to salinization and that eroded inhabitable lands had resulted in not only a housing crisis but also land disputes. These, combined with social-political instability, created a dangerous environment for him and his family.

New Zealand’s judicial system did not find evidence that Teitiota had been involved in a land dispute or that he faced a real chance of being harmed in this context – that he was unable to grow food, find accommodation or access to potable water; that he faced life-threatening environmental conditions; and that his situation was materially different from other residents of Kiribati.

The Human Rights Committee supported the decision adopted by New Zealand and rejected almost all arguments brought by Teitiota. However, it specifically acknowledged that “without robust national and international efforts, the effects of climate change in receiving states may expose individuals to a violation of their rights under Article 6 or 7 of the Covenant, thereby triggering the non-refoulement obligations of sending states […] given that the risk of an entire country becoming submerged under the water is such an extreme risk, the conditions of life in such country may become incompatible with the right to life with dignity before the risk is realized.” (Parag. 9.11)

This paragraph has caught international attention. To be clear, the Committee is not expressly banning the return home of someone requesting international protection due to the impacts of climate change. But it indicates that states, individually and/or collectively, could be prohibited from sending people back to life-threatening conditions if they don’t cooperate to tackle the adverse effects of climate change in those countries. If the conditions in those countries are not thoroughly analyzed before discarding risk, they could breach the powerful international obligation of non-refoulement.

Landmark decision or a passing storm?

Despite delivering an important message, the Human Rights Committee ruling does not provide explicit guidance for its implementation. Nevertheless, assumptions can be extracted from the document that shed light on its relevance and growing significance.

To begin with, it is the first-ever ruling adopted by a UN Committee regarding the claim of a person seeking refuge due to climate change. It also reinforces the idea that environmental degradation, climate change and unsustainable development can compromise effective enjoyment of the right to life, as stated previously in the General Comment No. 36 and the case of Portillo Cáceres et al. v. Paraguay.

Furthermore, despite not being legally binding, the decision is based on international legal obligations assumed by the 172 States Parties to the ICCPR, and almost 106 States Parties to the Optional Protocol. The latter allows individual claims against the ICCPR such as Teitiota’s.

Contrary to media reports, such as those by CNN and The Guardian, the Human Rights Committee did not address Teitiota as a climate refugee. Instead it considered him a person under the protection of the ICCPR whose life could be at risk of being exposed to cruel, inhuman or degrading treatment due to the impacts of climate change. This means that the Committee´s examination was based on factors and standards intended to consider if there was a threat to Teitiota’s life in Kiribati from the perspective of International Human Rights Law, which is wider and more inclusive than that of International Refugee Law.

Sandbags attempt to prevent village huts flooding on Tarawa, Kiribati (Brad Hinton)

The Committee established that individuals seeking refugee status are not required to prove that they would face imminent harm if returned to their countries, implicitly relaxing the probatory standard required for pursuing international protection under a human rights scope. It argued that individuals could be pushed to cross borders looking for protection from climate change-related harm, caused not only by sudden-onset events but also slow-onset processes (Parag. 9.11).

The Human Rights Committee has continually raised the standard of states’ analyses of protection requests. In this ruling, it recognised that New Zealand’s courts carried out a careful and in-depth examination of both Kiribati’s and Teitiota’s situations before proceeding to deport him. But alongside this it highlighted factors that must be considered in future similar cases: for example, the prevailing conditions in the person’s country of origin; the foreseeable risks; the time left for authorities and the international community to intervene; and the efforts already underway (Parag. 9.13).

In this way, the Committee’s ruling represents a significant step forward. It has established new standards that may lead to the eventual international protection of people impacted by climate change. From now on, states should examine in detail the climatic and environmental conditions of a migrant’s country of origin under the possibility of breaching the non-refoulement obligation. As the former UN Special Rapporteur on human rights and the environment, John Knox, said: “If the crisis continues to worsen, a similar case in a few years may reach a very different result.”

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This blog is written by Ignacio Odriozola, who is studying the MSc in Migration and Mobility Studies at the University of Bristol. He is a lawyer for the Universidad de Buenos Aires and a researcher for the South American Network for Environmental Migrations (RESAMA). This blog has been republished with kind permission from the Migration Mobilities Bristol. View the original blog.

Exploring legal approaches to climate justice: Reflections from the South Pacific

Posted on October 14, 2016April 6, 2023 by janet.crompton

A traditional canoe painted with world flags on Port Olry beach on the island of Espiritu Santo in Vanuatu

The South Pacific is one of the most vulnerable regions in the world to climate change impacts. The images conjured up of sinking small islands surrounded by miles of rising oceans however do little justice to the vibrant cultures, diverse landscapes and close-knit communities I recently encountered there. As part of my PhD project exploring the legal protection available to climate vulnerable states and communities I was fortunate enough, with the support of the South West Doctoral Training Centre, to be awarded a three month visiting researcher position at the University of the South Pacific in Port Vila, Vanuatu. I spent my time there gathering data, primarily through a series of interviews with key stakeholders from national government, local law firms and NGOs, as well as with a number of regional organisations during a short trip to Fiji.

While being hosted by USP undoubtedly opened doors with participants and made the fieldwork far simpler to organise remotely, I still encountered the inevitable challenges associated with conducting research in a developing country context, thousands of miles from the familiarity of home. The techniques I had prepared for setting up interviews through methodically emailing, calling and making appointments ahead of time proved to be ineffective in a cultural context in which face to face conversations and storying are the norm. After two fruitless weeks of desk-based attempts to contact participants, I abandoned my USP office to wander Port Vila’s streets, notebook and dictaphone in hand, searching out the relevant office buildings. Luckily, as detailed maps and road signs were also hard to come by, government buildings marked with flags were relatively easy to spot. Once I had met with a handful of very helpful people I was armed with a list of relevant organisations and some directions, my study finally began to take off.

Market house in the capital, Port Vila on Efate island

The experience was eye-opening and rewarding, both personally and academically. Vanuatu, as a least developed country, the world’s most at risk to natural disasters according to the UN’s 2015 World Risk Index[1], and extremely vulnerable to climate change impacts, faces numerous challenges. Cyclone Pam, which struck the islands in March 2015, caused an estimated $449 million in loss and damage amounting to a staggering 64% of the country’s GDP[2]. The devastating power of climate related impacts in the region is clear, not only in terms of immediate damage but also, more indirectly, through the economic hardship caused by reduced crop yields among many remote subsistence farming communities, or the impacts of oceanic acidification and warming upon marine ecosystems that many coastal villages depend on for both food and tourism. Talking to those who work closely with these communities at the grassroots level revealed many anticipated issues, from geographic remoteness to a lack of access to institutional support. However, it also revealed the inherent resilience, strong sense of community and traditional knowledge which has enabled devastated communities to recover and should play a central role in the development of climate change responses going forward.

Through the case study, I set out to examine the existing climate policy responses at the regional and national levels, the availability of legal mechanisms and the challenges associated with access to justice faced by communities in practice. In the wake of the adoption of the Paris Agreement at COP21 in December, climate change and debates surrounding the follow-up action needed is at the top of the Pacific policy agenda. While the Agreement has been hailed as a significant step forward for the international community with many states making voluntary commitments to cut their greenhouse gas emissions through Intended Nationally Determined Contributions (INDCs), many aspects of the Agreement leave much to be desired, particularly from the point of view of the most climate vulnerable. There has been no clear mapping out of the financial support pledged by developed countries to assist in the adaptation and mitigation efforts of developing countries.

The Agreement itself contains no enforcement mechanism or legally binding GHG reduction targets and, particularly concerning for Small Island Developing States (SIDS) and Least Developed Countries (LDCs) such as Vanuatu, loss and damage has been consigned to a vaguely worded clause with an express exclusion of any right to compensation. These inadequacies are already being reflected in the reservations declared upon ratification by a number of Pacific nations including the Cook Islands, Tuvalu and the Marshall Islands providing that they view the progress so far to be insufficient to prevent a global temperature rise of 1.5 degrees and that they do not renounce any existing rights under international law. In light of the vast potential for resulting damage in Pacific SIDS, securing more direct access to climate finance and seeing loss & damage addressed more effectively at the international level have emerged as core priorities for both governments and regional bodies.

The question of whether alternative legal avenues can be of assistance in securing access to such funding however has yet to be answered. My own assumptions that human rights mechanisms would offer the greatest enforceability and therefore represented the best available avenue in terms of climate litigation have been fundamentally challenged. Limited institutional capacity and funding can be seen to restrict the ability of governments in the region to effectively engage with international human rights conventions along with their corresponding reporting requirements, leading to very limited numbers of ratifications and, in turn, a lack of access to the complaints mechanisms those conventions provide for. In addition to this, Pacific states are without any regional human rights mechanism which could have provided for both greater enforceability and greater engagement with international human rights standards. Despite efforts by regional bodies such as the Secretariat of the Pacific Community (SPC) to provide a blueprint for the development of such a mechanism, this is currently not on the political agenda.

Bottom of Mele Cascades, on Efate island, Vanuatu.

A great deal more research is needed to fully explore the legal options of climate vulnerable states in the region with respect to the loss and damage that they will continue to suffer. While it is clear that Pacific SIDS are keeping their options open with respect to international legal obligations and state responsibility, at present the hope appears to be that the momentum generated in the run up to the adoption of the Paris Agreement will carry through the stronger commitments needed, both in terms of emissions reductions and financial support. I have learned that climate justice has many facets, not merely the more obvious distributive injustice of the manner in which the impacts of climate change manifest themselves by hitting the poorest and those who have contributed the least to global emissions the hardest, but also more procedural aspects of access to justice and the efficacy and availability of institutional support.

Climate justice demands a focus on the challenges faced in practice by vulnerable communities, affording them the opportunity to exercise fundamental rights and to make their voices heard. The inter-linkages between the national, regional and international levels of governance and policy making should be strengthened, carving out a definitive role for civil society in the process. Civil society organisations are crucial, not only in terms of responding to immediate disasters, but also to raise awareness of climate change and its human rights implications, to assist governments in the implementation of climate policies where institutional capacity may be lacking, and to amplify the needs of communities. One approach encompassing all of these many facets will be difficult to construct and may seem near impossible politically to implement, but we as climate change researchers should take heed of the example set by Pacific SIDS who, in the face of incredible adversity, have rallied to lead by example in the international community with ambitious climate policy proposals, along with close and effective collaboration.

A ni-Vanuatu family paddling a traditional canoe off Mele beach, Efate

[1] United Nations University Institute for Environment and Human Security UNU-EHS, World Risk Report 2015, available online at: http://collections.unu.edu/eserv/UNU:3303/WRR_2015_engl_online.pdf (accessed 08/06/16) at 46.

[2] Simone Esler, Vanuatu Post Disaster Needs Assessment Tropical Cyclone Pam March 2015, Government of Vanuatu, available online at: https://www.gfdrr.org/sites/default/files/publication/PDNA_Cyclone_Pam_Vanuatu_Report.pdf (accessed 9/6/16) at ix. development of climate change responses going forward.

This blog has been written by University of Bristol Cabot Institute member Alice Venn from the School of Law. Alice’s research examines the protection of climate vulnerable states and peoples under international law from an environmental justice perspective.

The sinking Pacific – climate change and international aid in Tuvalu

Posted on March 25, 2013April 20, 2023 by janet.crompton

Sarah Hemstock (University of the South Pacific) came to visit the Cabot Institute on 20 March 2013 and presented the case study “Impacts of international aid on climate change adaptation in Tuvalu”. Here I sum up the main points raised by Sarah during her lecture. Please note all figures mentioned below are from Sarah’s talk.

Tuvalu

Climate change

Tuvalu is a microcosm for what is going on with climate change globally. There are issues with waste management, sea level rise, politics, energy, food production and others.

Tuvalu grows taro, a staple carbohydrate which is sensitive to saltwater. Due to rising sea levels, Tuvalu is affected by high tides called king tides. These tides can contaminate agricultural land with saltwater and thus the staple crop will not grow.

Flood defences have been built by aid agencies to try to stop sea level rise. Unfortunately they do not work as seawater bubbles up through the island at king tide, flooding the airport and villages. There is now no fresh water and villages are completely dependent on collecting rainwater.

International aid and the economy

Sarah began to explain why Tuvalu needs to move away from aid to become more self empowering. She started to list the facts. Globally, $140bn has been given to international aid between 1970 and 2010, it certainly is a lucrative business. There are four agencies who accept international aid in the Pacific. Three of these agencies have mandates for climate change, fisheries, GIS and mapping etc which prevents any market driven approach to getting aid. Another problem with these agencies is their size. For example, Secretariat of the Pacific Community (SPC) has grown from 300 employees at its inception to 3000 today. Large numbers of employees can see international aid going towards feeding these agencies rather than having a smaller administrative group and diverting the main bulk of funds to helping save the islands of the Pacific. It could be argued that these large companies provide jobs for people in the Pacific, but in reality, these jobs are not very likely to go to people from the small island states such as Tuvalu (for which the aid is supposed to be for), which are isolated and poor.

Tuvalu has a weak economy. There is a lack of exports but a lot of imports to people who are not native to the island and want a little something from home. 83 % of Tuvalu’s energy comes from oil and a shocking 50% of Tuvalu’s annual GDP comes from aid. People in Tuvalu are subsisting on less than $2 a day. However, because Tuvalu receives a substantial amount of ‘aid’ they are recognised as a middle income country, but this aid does not filter down to the people and in fact Tuvalu should be considered as a low income country.

Tuvalu spends $6m on policy development, although these policies rarely do anything and could be considered a waste of money which could be better used in the community. The amount of diesel used for electricity consumption has increased. However, petrol usage has decreased, mainly due to people going back to using traditional canoes as they are cheaper to run.

A desperate situation – a sinking community

Between 2004 and 2007, fossil fuel use increased by 21%. Sarah felt that this was because funders ignore policy. For example, a Japanese company gave Tuvalu three diesel energy generators. Tuvalu asked for generators that could run on coconut oil in line with environmental policy but due to cost, the donators could not provide these. Tuvalu couldn’t afford to run the diesel generators so Japan donates $2m of oil every year to run them making Tuvalu totally dependent on donations for its energy supply.

There is no market, no money and no tourist industry in Tuvalu so there is no way of generating money. It is an isolated island and boats to Fiji run every 5-6 weeks. When weather is bad, food, oil and supplies are not delivered.

Sarah explained how there is no joined up thinking with international aid and no long term plans after the aid has disappeared. An example of this is where water tanks were given to each home in Tuvalu and they were also made in Tuvalu. The problem with the design was that it has a sealed top which meant it could not be stacked. This meant it would have taken 25 years to get everyone a tank, as only six tanks would fit on each ship. The good news was that they managed to get a barge to ship them out, but it is this lack of foresight which hampers the success of aid activities.

Sarah also mentioned how 35% of aid goes straight back to the company who gave the money to pay for ‘technical assistance’ and admin fees. There are other fees which come out of international aid. In fact if aid was taken away from Tuvalu, it wouldn’t affect the people much as the aid hardly reaches them anyway.

Interestingly, the people of Tuvalu are extremely mentally resilient to the threat of climate change. When asked if they would move off the island if climate change flooded their islands, they were determined to stay on the island no matter what. When the question was framed in an economic sense, for example would they move off the island for work, they were more open to the idea of moving off the island. This is a difficult ethical argument. What right do we have to move the islanders to safety, to move them to a different country, culture and language when they do not want to go?

Climate change may be physically sinking the small low-lying islands of the Pacific, but it is the international aid agencies which are arguably sinking them beyond recovery. A drastic change is needed in the management and distribution of international aid in order to save these dying islands from the rest of the world’s actions.

Listen again to Sarah Hemstock’s Cabot Institute seminar.

This blog was written by Amanda Woodman-Hardy (@Enviro_Mand), Cabot Institute

Amanda Woodman-Hardy, Cabot Institute