One of the topics under scrutiny at the December 2015 climate talks in Paris was the role of the UNFCCC governance and legal framework in responding to ‘climate change induced displacement, migration and planned relocation’.
Many media commentators continue pitch this issue as a question of how developed nations should deal with ‘climate refugees’. Accompanied by the obligatory image of a Palm-fringed low-lying atoll in king tide conditions, the thrust of much of stock-narrative is something like this. Idyllic, but under-developed Pacific island states are in imminent danger of sinking beneath rising seas. The only hope of salvation for their residents lies in the ability to migrate to safer havens in developed countries – in this region, Australia and New Zealand. But authorities and the courts in those countries won’t or can’t respond. Conventional refugee protection pathways are not available, because the current international regime doesn’t recognise environmentally displaced people as refugees. We should change update our interpretation of the Refugee Convention, or change it, or make a new convention.
The issue is, of course, more far more nuanced than that. The phrase ‘climate refugee’ is itself fraught, at least in a strict legal sense. Even the more neutral phrase ‘climate changed-displaced’ person has its shortcomings. Climate change is best understood as a ‘threat multiplier’ rather than single cause of displacement – especially in the case of ‘slow onset’ climate change-related pressures, such as sea-level rise and some forms of drought or sustained meteorological changes. This suggests that simplistic analyses of the causes for or solutions to displacement or migration are not especially helpful. Appropriate responses need to take into account the complexity of environmental, economic, cultural and other contributors to decisions to move from locations and countries vulnerable to the impacts of climate change.
The issue of climate-related displacement has been lurking on the fringes of the UNFCCC framework for a number of years. In 2010 in Cancun, parties agreed that under an adaptation framework, consideration should be given to ‘measures to enhance understanding, coordination and cooperation with regard to climate change induced displacement, migration and planned relocation’. However, progress in the area has been slow, in part, perhaps, because not all countries at risk from the effects of climate change have been enthusiastic about offering a ‘free pass’ to developed countries to continue to emit greenhouse gases by supporting a climate change-migration scheme.
Early drafts of the Paris climate package included an explicit reference to the need to develop approaches to address climate change induced displacement, migration and planned relocation in the operative text of the agreement, supplemented by words in the accompanying Conference decision. The President’s draft text released on Wednesday 9 December 2015 contained the following as a bracketed option in the much-debated ‘loss and damage’ section:
A climate change displacement coordination facility shall be established under the Warsaw International Mechanism…to help coordinate efforts to address climate change induced displacement, migration and planned relocation.
Those words were steadily watered down over the remaining 4 days of negotiations. The final adopted text of the Agreement contains no explicit reference to climate-related displacement in the operative agreement, however paragraph 50 of the accompanying COP decision requests the:
Executive Committee of the Warsaw International Mechanism [for Loss and Damage] to establish, according to its procedures and mandate, a task force to…develop recommendations for integrated approaches to avert, minimize and address displacement related to the adverse impacts of climate change.
The removal of legally binding obligation to establish a climate change displacement coordination facility in the final Agreement will have come as a disappointment to a number of states and international organisations, as well as many among the thousands of activists who – defying a French government ban – gathered in central Paris for a ‘red lines’ protest on the final day of the talks.
However, an explicit acknowledgement of the importance of addressing climate-related displacement in the COP decision will, it is suggested, continue to strengthen momentum building elsewhere on this issue – including through the UN High Commissioner on Refugees, International Organisation on Migration, the Nansen Initiative and other international organisations – inching towards a coordinated framework for oversight and collaboration on displacement responses, and potentially a system of legal protection for environmentally displaced people.
At a side event at the Paris-Le Bourget Conference Centre on 10 December, some common themes emerged in presentations by UN experts in this area. One was the need for proactivity.
“We must focus more on prevention and preparedness” was the message from Assistant Secretary-General for Humanitarian Affairs and Deputy Emergency Relief Coordinator Kyung-wha Kang, “so that the losses, and the need for humanitarian interventions are minimized when disasters do strike. And they will strike.”
Speakers also highlighted the potential positive effects of climate-related migration, not only for affected communities, but for their future hosts, in the event that permanent movement is necessary. Michelle Leighton of the International Labour Organization put it like this:
“We have to stop seeing migration as a failure of development, and we have to start looking at it as an opportunity and potential solution for a climate changed future…These are people who bring skills, and talents, and ideas that can help fill labour shortages (of which there are many) not only from countries within their region, but in other regions. They can become entrepreneurs, run small businesses, and contribute to the economies of their host communities. And at the same time, these movements reduce pressure on climate-affected landscapes.”
New Zealand government representatives have participated in discussions on development of international frameworks for disaster response, including the Sendai Framework for Disaster Risk Reduction 2015-2030 and the Nansen Initiative. The Nansen ‘Agenda for the Protection of Cross-Border Displaced Persons in the Context of Disasters and Climate Change’ adopted in October 2015 identifies as ‘effective state practices with regard to preparedness’:
Including cross-border displacement scenarios within bilateral or regional disaster contingency planning exercises…
Reviewing existing legal frameworks at the regional and national level and, if relevant, harmonizing them, with respect to receiving cross-border disaster-displaced persons.
Neither of those common-sense actions are, publicly at least, on the government’s current agenda. The administration has effectively adopted a ‘wait and see’ policy under which (according to a January 2013 MFAT briefing paper to the Associate Climate Change Minister), New Zealand would “continue to respond to climatic disasters in the Pacific and manage changes as they arise…” but otherwise has no active planning for responses to climate-related displacement underway. The renewed call for purposeful and pre-emptive policy towards climate-related displacement in the Paris package is a timely reminder for the need for a refreshed approach in New Zealand towards this emerging and critical issue.
(This piece was originally published on Victoria University's Deconstructing Paris page on 17 December 2015)
The origin of phrase “environmental refugees" is typically credited to a United Nations Environment Program researcher Essam El-Hinnawi in a 1985 paper with that phrase as its title. The concept of “Climate change refugees” had been in circulation amongst academic and NGOs circles since the late 1970s and in recent years has entered popular consciousness through widespread media coverage assuming ever-increasing levels of drama and sensationalism.
In the South Pacific context, the high water mark of media spin on the issue might be represented by Al Gore's mention in his 2006 documentary An Inconvenient Truth of the supposed evacuation of the residents of a number of low-lying islands in the Pacific Ocean to New Zealand because of the effects of global warming, an observation specifically rejected as baseless in the 2007 UK High Court decision in Dimmock v Secretary of State for Education and Skills.
Widespread and consistent rejection within academic and policy circles of both the concept and terminology of "environmental refugee" or "climate change refugee" has not, it seems, deterred commentators (and even some non-governmental organisations (PDF) who should know better) from continuing to adopt the labels.
So it has been no particular surprise that when a family from Tuvalu holding expired visitors permits appealed to the New Zealand Immigration and Protection Tribunal against deportation citing, amongst other things, hardship resulting from climate change-related environmental degradation in their home country - and secured the right to stay (PDF) - another round of sensationalist international media coverage has ensued.
As is typically the case with the reporting of court decisions, within the confines of a six-sentence story or three-minute clip, subtle (and sometimes not so subtle) points are overlooked or misreported. The surface needs scratching a little deeper.
This article by Prof Jane McAdam at UNSW Law does exactly that. Prof McAdam has published widely on issues of forced migration and has rightly established a reputation as a leading international academic researcher, analyst and advisor on displacement/forced migration and refugee law. She's been living and breathing climate change-related international and domestic law for many years and has unsurprisingly become the ‘go to' legal academic for commentary and advice on these issues.
My analysis generally lines up with hers on the interpretation and significance of the NZ IPT Tuvalu decision. But I draw some additional, and possibly slightly different, points from the case to those outlined by Prof McAdam.
We both agree that media descriptions of the IPT decision as "the first climate refugees" are wildly off the mark. The Tribunal devoted 37 pages of carefully reasoned analysis to conclude exactly the opposite. Like the earlier case dealing with i-Kiribati national Ione Teitiota and his family, the IPT (affirmed on appeal by New Zealand's High Court, and then Court of Appeal) held - uncontroversially from the perspective of most refugee practitioners and commentators - that although the impacts of climate change on low-lying atoll such as Kiribati and Tuvalu are real and concerning, except in very specific circumstances (which did not apply in either case) people fleeing climate change are not "refugees" in the legal sense. Nor could they be regarded as "protected persons" under the International Covenant on Civil and Political Rights or the Convention against Torture.
Where the recent case involving a Tuvaluan family differed from the line of decisions in the Teitiota litigation was that the appellants from Tuvalu were able to appeal against deportation under a particular provision of New Zealand's immigration legislation: section 207 of the Immigration Act 2009. It states:
The Tribunal must allow an appeal against liability for deportation on humanitarian grounds only where it is satisfied that--
(a) there are exceptional circumstances of a humanitarian nature that would make it unjust or unduly harsh for the appellant to be deported from New Zealand; and
(b) it would not in all the circumstances be contrary to the public interest to allow the appellant to remain in New Zealand.
The statutory references to "exceptional circumstances" and "in all the circumstances" require, as you would expect, the full factual matrix surrounding the appellants and their appeal against deportation to be analysed. That is what the Tribunal did.
There were a number of compelling circumstances which took the case out of the ordinary. The Tuvalu-based husband was among the remnants of a sizeable family which had effectively relocated to New Zealand. All but one of his six sisters had secured residency in New Zealand and established a strong family base here. His elderly mother - also resident in New Zealand - required care and support relying on her son to perform that role. The couple had produced two children while in New Zealand. They were well settled and integrated into their New Zealand family and society. It appeared that there may have been legitimate “pathways” to legal residency which, had they been better pursued at the right time, would have regularised their New Zealand residency.
Alongside the family circumstances and facts relating to the residency process, factors relating to climate change were also advanced, and accepted as factually credible by the Tribunal. These included regular events of seawater inundation resulting in coastal erosion and impact on food production. Referring to the 1989 United Nations Convention on the Rights of the Child, the Tribunal recorded a specific finding (at paragraph 25) that the young age of the two children (five and three years):
“…makes them inherently more vulnerable to natural disasters and the adverse impact of climate change as noted above.”
As Professor McAdam notes, “in the end, the Tribunal allowed the family to stay in New Zealand on humanitarian grounds.” She goes on to note:
“The Tribunal’s decision to let the family stay in New Zealand as permanent residents was not based on the impacts of climate change in Tuvalu. Indeed, the Tribunal deliberately refrained from making a finding on this point. It did not need to do so because there were other exceptional humanitarian circumstances – namely, strong family ties – that justified granting them resident visas.”
I agree that the decision was not "based on” the impacts of climate change in Tuvalu. The evidence and submissions relating to climate change-related hardship that would be suffered if the family were required to return would not, alone, have been enough to satisfy the stringent "exceptional humanitarian grounds" test. It’s fairly clear that the family would have been granted humanitarian relief in any event because of the other compelling factors at play.
However – and this is where I take a slightly different tack to Professor McAdam – that is not to say that the climate change-related factors were not taken into account at all as part of the wider factual assessment required under section 207.
As I read the decision, the Tribunal accepted not only that the climate change-related factors cited on behalf of the Tuvaluan family were legally relevant in principle, but were in fact taken into account when reaching a conclusion on exceptional circumstances of a humanitarian nature. I take that point from paragraph 30:
 The Tribunal is satisfied that, when the above matters are taken into account on a cumulative basis, there are exceptional circumstances of a humanitarian nature, which would make it unjust or unduly harsh for the appellants to be removed from New Zealand.
The “above matters” were not specifically identified in paragraph 30. Paragraph 30 is immediately preceded by three paragraphs under the heading "Climate Change and Environmental Degradation as a Humanitarian Circumstance”. In paragraph 29 (directly “above” paragraph 30) the Tribunal refers to the companion refugee and protection decision in the same set of appeals, and cites a passage from para  of that decision:
“…Population growth was already placing pressure on sensitive environments and major sources of food security and livelihoods, and these effects can be exacerbated by adverse effects of climate change. Drought was anticipated to increase in severity in the future. The low elevation and limited land area of Tuvalu meant that the most direct and severe anticipated effects of climate change will be an increasing risk of coastal erosion, flooding and inundation. Other anticipated direct effects were stated to include an increase in dengue fever risks and water borne diseases, an increase in human stress, and decreasing agricultural yields.”
I think the natural interpretation of the words in paragraph  is that the Tribunal had regard to all of the surrounding facts and circumstances - the climate change-related ones alongside the family connections and other matters. Climate change was not an overriding factor. But it was there as part of the mix. The combination of the strong familial connections in New Zealand, the husband’s obligations towards his mother, the peculiarities of his residency application process, and the climate change considerations cumulatively amounted to "exceptional circumstances of a humanitarian nature, which would make it and just or unduly harsh for the appellants to be removed from New Zealand."
The Tribunal - no doubt acutely alive to the potential for further applicants relying on climate change-related circumstances - considered it necessary to manage expectations regarding that issue. At paragraph 33, it said:
“It is not, however, necessary on the facts of this appeal to reach any conclusion on this [climate change] issue in relation to any of the appellants as the Tribunal is satisfied that by reason of the other factors identified in this case, there are exceptional circumstances of a humanitarian”
In the context of the decision as a whole, I don’t read that as inferring that the climate change factors were put to one side entirely.
If that had been the intention, paragraph 30 would sit a little awkwardly: at best ambiguous (was the reference to "above matters" meant to be to everything above except climate change, or, something broader?) at worst, just inconsistent with paragraph 33. And I'm not sure that the acceptance of the “inherent vulnerability of the young children to natural disasters and the adverse impact of climate change” would have been conveyed in the unqualified words of paragraph 25 if, ultimately, the Tribunal proposed to put all of this to one side.
So does it matter if climate change factors were or weren't taken into account as part of the assessment on exceptional humanitarian grounds in this particular case? I think so.
It's one thing to hold that the hardships on adults and children resulting from climate change in low-lying states such as Tuvalu and Kiribati might theoretically be relevant humanitarian circumstances but No Finding is Made In This Case. It’s something else to say that these climate change related factual circumstances are relevant, and because they are relevant, form part of the (inevitably wide) matrix of circumstances that will always need to be assessed cumulatively, on a case by case basis. Perhaps in a future IPT decision the point will be clarified. I think the latter interpretation fits, not only with a natural reading of the case, but the policy and legal framework. There’ll be other views, of course.
The Tribunal appropriately clarified that it is not enough to claim to be impacted by climate change to get over the line on exceptional humanitarian grounds.
To my mind, it is not necessary to read down the decision any more than that.
Over the last fortnight, international media have lavished attention on a decision (PDF) of the humble New Zealand Immigration and Protection Tribunal with an energy usually reserved for political scandals or celebrity breakups. Outlet after outlet have breathlessly heralded the bid for asylum in New Zealand by a 37-year old resident of low-lying Pacific atoll Kiribati as 'the world's first climate refugee', seemingly oblivious to the fact that 'first’ label has already been used to describe climate-displaced communities in Alaska, Papua New Guinea, and Tuvalu.
In fact, the Kiribati citizen’s attempt to secure refugee status in New Zealand because of climate change is not the first case of its kind to come before our immigration authorities. In 2000, a group of applicants from Tuvalu unsuccessfully sought refuge in New Zealand, citing rising sea-level and other challenges as grounds for asylum. The IPT’s predecessor, the New Zealand Refugee Appeals Authority, dismissed the claims (PDF), saying “This is not a case where the appellant can be said to be differentially at risk of harm amounting to persecution due to any one of these five [Refugee Convention] grounds. All Tuvalu citizens face the same environmental problems and economic difficulties living in Tuvalu.”
What makes the most recent IPT decision notable is the depth of analysis of Member Bruce Burson's examination of the i-Kiribati case under international refugee and New Zealand domestic immigration law.
And what makes the case news - big news all over the world - is that unlike most applications of this sort, this one has been taken to the High Court. So there is significant interest in what will be one of the first appellate rulings on issues which have been the subject of widespread academic debate, but hardly ever face detailed scrutiny by appellate judges.
The IPT's findings in its 25 June decision reflected mainstream views on the status of so-called ‘climate refugees’ at international law. The 1951 Refugee Convention, originally designed to address the legal status of millions of displaced people after the Second World War was crafted with quite different purposes in mind, and certainly well before the spectre of climate-displaced persons had entered public consciousness.
Despite the creative attempts of some lawyers and academics to argue otherwise, the Refugee Convention doesn't cover environmentally displaced people. It is almost certain that the High Court will confirm this in its reserved decision in a few weeks.
Acknowledging the widely accepted 'protection deficit' (PDF) at international law, international organisations have, for some time, been working on possible solutions. Earlier this year, the Norwegian and Swiss-led Nansen Initiative held a first round of consultation meetings in Raratonga to work towards arrangements to address the ‘needs of people displaced across international borders by natural disasters, including the effects of climate change.’
In light of predictions (PDF) of hundreds of thousands of climate-displaced people in the South Pacific by 2050 – a reasonable number of which can be expected to look towards New Zealand’s relatively safer shores for homes - is the Government working on a proactive response plan? Not so much. Papers that I obtained from MFAT under the Official Information Act earlier this year confirm that the government is aware of the issue, but is content, at this stage, to adopt a 'wait and see' approach. In a January 2013 MFAT briefing paper to the Associate Climate Change Minister, officials advised:
“‘[E]nvironmental refugees’… have no current status under international law…New Zealand has indicated that it will continue to respond to climatic disasters in the Pacific and manage changes as they arise…"
Media reporting that New Zealand has agreed to take ‘environmental refugees’ from Tuvalu…is incorrect. There is no such policy. However New Zealand will continue to monitor the situation and provide climate change assistance and disaster relief as it has always done.”
For now at least, would-be climate migrants from the Pacific and elsewhere seeking refuge in New Zealand continue to face deportation and an uncertain future in home countries increasingly at risk from the effects of global warming.
A blog on public, international & environmental law
I'm a New Zealand academic lawyer, lecturer, & writer, researching & teaching public, international & environmental law at AUT Law School, Auckland. I'm particularly interested in sustainability, climate change, fossil fuel subsidy reform & climate displacement.