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.