No Refuge From Climate Change

1024px-Tuvalu_Inaba-4Collin Gannon

In a June 4, 2014 decision the New Zealand Immigration and Protection Tribunal (NZIPT) dismissed a Tuvalu family’s appeal from a 2013 Refugee Status Branch decision denying them refugee and protected persons status, while contemporaneously issuing a separate opinion granting residence visas to the very same family. This judgment may be the first of its kind – in which a successful residency application rested in part on the destructive impact of climate change and consequent coastal inundation in an applicant’s home country. Notably, this result sharply contrasts with the same Tribunal’s decisions to deport similar applicants both in 2013 and earlier in 2014.

Following the NZIPT’s decision, there was a rush of media attention announcing victory for the first-ever “climate change refugees.” A closer analysis of the Tribunal’s decision, however, reveals that while the ultimate judgment granting residency moves optimistically toward practically dealing with climate change in the context of international protection, it is clear that the applicants’ success did not ultimately rest in international refugee law. Rather, the case turned on the NZIPT’s interpretation of domestic law and its finding the family’s plight, for mostly non-climate reasons, an “exceptional humanitarian ground” worthy of relief.

The impact of climate change is well documented. The Fifth Assessment Report of the UN’s Intergovernmental Panel on Climate Change concludes, with very high confidence, that because of anthropogenic carbon emissions and subsequent relative sea rise, coastal systems and low-lying areas will increasingly experience adverse impacts such as submergence, flooding, and erosion. That is, sea level rise represents doom for low-lying developing countries and small-island states having neither the tools to prevent environmental destruction nor the proper infrastructure to protect their citizens from its effects.

Such looming catastrophe was insufficient to give rise to refugee or protected persons status; NZIPT found, despite deeming the threat of climate change credible, that appellants were not (a) refugees within the meaning of the Refugee Convention; (b) protected persons within the meaning of the Convention Against Torture; nor (c) protected persons within the meaning of the Covenant on Civil and Political Rights. Still, perhaps recognizing a growing need to address “climate change refugees,” NZIPT concurrently found that climate change was a contributing – but not sufficient – factor in classifying the family’s circumstances as exceptionally dire, therefore making deportation unjust for humanitarian reasons. With other factors – such as the applicants’ extended family network present in New Zealand – ostensibly doing much of the work in the opinion, the NZIPT was able to leave aside the explicit issue of climate change for now. However, by analytical incorporation, the NZIPT breaks ground in the context of climate refugees.

Unfortunately, NZIPT’s decision underscores the fact that international refugee law is incapable on its own of handling the humanitarian consequences of climate change. This is exemplified in the case of low-lying island nations whose very existence is threatened by rising seas and whose citizens fall outside the black letter refugee definition of the 1951 Refugee Convention. Until developed countries adopt comprehensive “climate change refugee” covenants, Tribunals will continue accommodating climate-based refugee applicants under domestic statutes. Such an unpredictable process, though, is untenable: agreements must promptly be made amongst nations to ensure the protection of people displaced by climate change.

Collin Gannon is a third-year law student at the University of Michigan Law School.

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