Escaping Atlantis: The Human Rights Approach (Part IV)

This article is Part IV of an investigative series about climate migration. For Part III of Escaping Atlantis, click here.

Iaone Teitiota (pronounced Tes-see-yo-ta) is a Kiribati climate migrant. Teitiota claimed New Zealand violated his right to life by denying his refugee application. He claimed his family's well was contaminated with salt, preventing them from growing crops. Transportation systems and drinking water was regularly flooded. Teitiota predicted Kiribati will be uninhabitable in 10-15 years.

Teitiota declared he should qualify for refugee status - the Immigration and Protection Tribunal and the New Zealand Supreme Court disagreed. Adhering to the 1951 Refugee Convention, Teitiota cannot qualify for refugee status without a real risk of persecution. Furthermore, New Zealand ruled that the environmental conditions of Kiribati were not so perilous that his life would be jeopardized. Therefore, New Zealand dismissed the case and sent Teitiota back to Kiribati.

Teitiota appealed to the United Nations Human Rights Council (UNHRC) on the grounds that his repatriation to Kiribati infringed on his right to life and the principle of non-refoulement. The 1951 Refugee Convention non-refoulement principle forbids a state from transferring an individual to a foreign territory that poses an imminent or present danger to the human rights of the individual. The UNHRC determined Teitiota faced "a real risk of impairment to his right to life" when New Zealand ordered his return to Kiribati.

Despite citing a genuine risk of harm, the UNHRC affirmed the ruling of New Zealand because Teitiota failed to demonstrate he was at personal risk of irreparable harm upon returning to Kiribati. Under Teitiota, collective endangerment to the right to life does not automatically translate to individual endangerment to the right to life. Climate migrants must prove that their personal harm surpasses the broader risks faced by their community to qualify for human rights protection under the principle of non-refoulement.

The UNHRC concluded that Teitiota did not face imminent risk of being arbitrarily deprived of his life after he was removed to Kiribati. The UNHRC cited the 10-15 year timeframe before Kiribati's projected collapse, arguing that this window allows Kiribati to improve its environmental conditions or execute relocation strategies.

The resilience initiatives of the Kiribati government were examples of programs that could repair the harm of Teitiota. The Kiribati Adaptation Program demonstrated resilience by constructing sea walls, renovating coastal development, regulating fresh water sources, and increasing climate change education. The 2019 Temaiku Land and Urban Development Project envisioned elevating 300-hectares of Kiribati by two meters over the projected 2200 sea levels.

International protection only activates when the internal protection of the state fails to safeguard its citizens - these programs suggest Kiribati's internal protection can reasonably persist. As long as the migrant state has a system of protection with reasonable enforcement, foreign states have no legal obligation to provide protection. Thus, the UNHRC affirmed the New Zealand ruling because they believed Kiribati had the projected capacity to protect its citizens from adverse climate impacts.

Teitiota confirms that states only have the duty of care for international migrants when direct actions or negligence of the state actively threatens the rights of migrants to an irreparable degree. Serious risk of human rights abuse is only irreparable if the international protection of the migrant's state is completely incapacitated.

Using imminence as a benchmark for human rights protection, as applied in Teitiota, raises legal concerns due to its high burden of proof. To properly evaluate imminence, courts should emphasize an analysis of the reasonable possibility of harm and the necessity of harm from repatriation. The focus is not on the likelihood of harm, but if harm could foreseeably occur.

The opposite occurred in Teitiota. The Immigration and Protection Tribunal analyzed if Teitiota's risk to life was likely to occur, seeking greater evidence and greater predictability of the climate system. When considering that Teitiota's children could drown from a cyclone or severe flooding, the Tribunal dismissed the claim. They thought Kiribati did not experience extreme weather events in sufficient regularity for the harm to be imminent.

The Tribunal disregards the inherent uncertainty of forecasting onset disasters, especially severe and sudden events. Current scientific evidence is not robust enough to precisely predict the emergence of disasters that may sink conditions below the threshold of a minimally good life. The Tribunal should have relied on analyses of rising sea levels and storm frequency tracking to examine the imminence of harm.

Even then, suspicions about climate disasters and island disappearance are not new. Since 1990, the Intergovernmental Panel on Climate Change has recognized the potential for island degradation overwhelming the need for migration and resettlement. Much of the literature in Part I of this series indicates a foreseeable collapse in deteriorating ecosystems.

These recurring warning signs are not absolute divinations. Rather, they are logical estimates based on long-standing patterns and trends. Extrapolating the possibility of serious harm given these harrowing indications is far from unreasonable - it is arguably more unreasonable to overlook the scientific data. By prioritizing predictability over foreseeability, the Tribunal imposed an impractical standard for analyzing the imminence of risk.

The UNHRC followed the nearsightedness of the Tribunal. The UNHRC's application of imminence excessively relied on optimistic projections of resilience. In arguing Teitiota's lack of imminent risk, the UNHRC depended on the likelihood of Kiribati implementing effective adaptive measures within a 10-15 year window. While initiatives such as the Kiribati Adaptation Program have made progress in fostering resilience, other projects have experienced major delays in development.

Kiribati sought US$273 million for the Temaiku Land and Urban Development Project - more than their entire 2022 GDP of US$233 million. On top of this demand, Kiribati invested roughly US$4 million to workshop development plans and research project feasibility. Despite this overhaul of spending, Kiribati discreetly dropped the Temaiku Project because of a lack of international funding.

Resilience failures drive more pressure into the sinking ship. With limited resources and wavering international support, the ambitious goals of Kiribati are constantly swept by the tides.

This Human Rights Watch video features the same environmental and economic burdens for the Solomon Islands. These developing Pacific island nations lack the "financial and technical capacity to meet the challenges of climate change without the assistance of other states."

Even with successful initiatives, their long-term results remain uncertain. To assess the entire outcome of the Kiribati Adaptation Program, citizens must wait until 2050 - about 20 years too late to address the island's projected inhabitability by Teitiota. Meanwhile, Kiribati presently struggles with regular flooding, rising population, density, food insecurity, limited arable land, and poor waste management.

Although these adaptive responses are promising, some Kiribati inhabitants may reasonably want to escape their conditions, fearing their current and future harm. Teitiota and his wife expressed their desire to raise their children in New Zealand, believing in the lack of a stable future in Kiribati. The ongoing environmental degradation demonstrates the immediate and tangible risks of life in Kiribati, essentially forcing citizens to migrate.

Given how these resilience responses have yet to sufficiently suppress these risks, the threat of island disappearance grows more imminent. When the UNHRC admits that they are "not in a position to conclude... that the measures taken by the Republic of Kiribati would suffice to protect the author's right to life," they reveal their blind optimism towards the slim possibility of sustained resilience.

The indication of imminent harm through the uncertain success of these resilience initiatives is not an indictment against adaptation measures. Regardless of effectiveness, governments have a responsibility to preserve the territory, security, and sovereignty of their state. Given how the environmental degradation of Kiribati threatens the right to self-determination and right to culture, relinquishing these resilience efforts threatens the life, cultural identity, and nationality of citizens.

At its most extreme, a government's failure to uphold these protective measures could indicate a breakdown in administrative functions, potentially triggering human rights protection. Daniel Billy and others v. Australia demonstrated that the administrative failure to provide adaptation and resilience violates the right to cultural life. These resilience initiatives are extremely essential, not only as a security response to environmental risks, but as a fundamental obligation to protect human rights.

Each Kiribati citizen decides their residence. If they desire to evacuate Kiribati because of imminent harm from environmental degradation, the human rights approach should provide international protection. If they desire to stay in Kiribati, the government has a duty of care to provide resilience as internal protection.

Although adaptation responses are critically needed, a perverse sentiment pollutes the water: are adaptation responses merely delaying an inevitable demise?

Resilience is theoretically eternal, yet realistically mortal. As demonstrated by the Temaiku Land and Urban Development Project, resilience capacity is hampered by market value, political power, and human error. In the race between the sea walls and the tide, governments can only gamble with a limited amount of money for the sea walls to win. Kiribati cannot solely rely on innovation to fix their environmental degradation problems, given their finite financial capacity and international support.

If adaptation strategies are perceived as temporary fixes, Kiribati may consider terminating these resilience programs. Most distressingly, if Kiribati discontinued resilience programs, their decision may not be a ploy to repurpose investments - their decision may be a strategy to provoke human rights protection.

Since the meltdown of internal protection triggers international protection, a government could deliberately cease adaptation responses to garner human rights intervention for their citizens. The harrowing implication is that Kiribati could authorize the collapse of its environment, culture, and statehood to activate the mass exodus and protection of its citizens. While Kiribati is unlikely to implement a total government shutdown, its possibility accentuates the extremely unreasonable threshold to demonstrate human rights violation.

Even without the bleak projections of Kiribati, the Tribunal's deportation of Teitiota revealed clear imminence. After sending Teitiota back to Kiribati, one of his children contracted blood poisoning from contaminated water. Since past deportation led to serious harm, deporting again would (and did) foreseeably lead to more harm. Tribunal can debate the imminent risk of deporting this family all they want. But their deportation exposed a child to a lethal disease.

Repatriating climate migrants to the environment degradation they explicitly want to escape from reveals a severe lack of foresight. To affirm the Tribunal ruling, in spite of evidence showing serious harm as a direct result of past repatriation, reveals a severe lack of compassion.

Teitiota released the following statement after the UNHRC ruling:

Forgive my ignorance, but to be frank, I'm quite disappointed with the outcome of my case which has been recently released from the United Nations... It's still the same as before - I'm still worried about my family [because of] climate change... the sea level rise, the drinking water is not good... [and] I'm still yet to find a job until now. Personally, I think big countries like New Zealand should accept us and not ignore our plight because our islands are very low-lying and we are vulnerable even to the slightest bad weather or storm surge. I want to ask these big countries to please take our case seriously because we need their help.

• For the complete Teitiota decision, read the official UNHRC ruling
• To listen to the background of the case, listen to Teitiota's story
• For a further critical analysis of Teitiota, read Behrman and Kent
• To learn more about migrant protection, read Stevens
• For further sources, visit the Recommended Reading Folder

To view this investigative series with complete academic citations and references, visit my academic paper here.

For Part V of Escaping Atlantis, click here.