Escaping Atlantis: The Human Rights Approach (Part V)

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

The Teitiota ruling was a heart-wrenching outcome for climate migration advocates. The UNHRC ruling enforced overly strict refugee requirements, excluding many climate migrants from life-saving international protection. Thus, many climate migrants remain trapped in increasingly dire situations.

However, as the UNHRC slammed the door on Teitiota's refugee status, their ruling cracked upon the slightest window.

The Immigration and Protection Tribunal and Supreme Court of New Zealand declared that their ruling does not confirm that environmental degradation could never "create pathways into the Refugee Convention or protected person jurisdiction."

The UNHRC decision expanded on this statement by establishing environmental degradation as a factor that can contribute to the violation of one's right to life, which includes the right to life with dignity. Furthermore, the UNHRC acknowledges that the non-refoulement obligations of foreign states can apply when environmental degradation presents a genuine risk to one's right to life.

Teitiota introduced the possibility for states to bear the responsibility of protecting people displaced by environmental degradation if the criteria for eligibility are met, and the discriminatory treatment is sufficiently severe. I.L. v. The Italian Ministry of the Interior et al. uses Teitiota to further clarify the extent of 'sufficiently severe' environmental degradation.

The I.L. case stems from the Niger Delta. The Delta is Nigeria’s oil hotspot, producing over 80% of the country’s national revenue. Tormented by deforestation, oil pollution, gas flaring, chemical discharge, and pipeline vandalism, this low-lying region of over 1,500 communities has suffered extensive environmental harm.

As of June 2025, the Nigerian Oil Spill Monitor recorded at least 102.6 million barrels of oil (over 27.1 million gallons) spilling into the Delta since 2010.

Delta oil spills have reduced soil fertility, crop quality, and crop yield, leading to a 24% increase in childhood malnutrition. These oil spills are associated with surges in diarrhea, sore eyes, itchy skin, and occupational injuries. Decreased food security and inhabitable living standards contribute to greater rates of prostitution, teenage pregnancy, clandestine abortion, and STDs.

I.L., a Niger Delta resident, fled from these environmental conditions and sought asylum in Italy. After his application was denied by the Ancona Territorial Commission for the Recognition of International Protection, he appealed to the Court of Appeal of Ancona.

Similar to the New Zealand Tribunal, the Court agreed with the rejection of the application. The Court determined that I.L. was not at risk of serious harm from the environmental degradation of their origin state.

Dissatisfied, I.L. appealed to the Italian Supreme Court of Cassation under the reasoning that the appellate court failed to properly analyze the Delta environment. If a thorough examination was conducted, the prosecution believed the court would recognize serious harm in repatriating I.L., triggering human rights protection under the principle of non-refoulement.

The Supreme Court reversed the lower court decisions. The Supreme Court agreed that the lower courts did not adequately assess the plaintiff's right to life upon sending I.L. back to the Niger Delta. Reflecting on Teitiota, the Supreme Court believed the evaluation of the environmental degradation is critical in determining human rights protection.

Although the lower courts recognized the severe environmental degradation of the Delta, they failed to consider these climate conditions as a valid means for human rights protection. The Supreme Court cited a "minimum essential limit" to where the right to life is effectively threatened or violated.

Thus, the Supreme Court remanded the case to the Court of Appeal, ordering for the fair assessment of whether the conditions in the Delta meet the minimum threshold for a dignified life.

I.L. distinguishes its ruling from the traditional human rights framework. Human rights conventions, in conjunction with refugee law, fluctuate based on the scenario. Courts require a case-by-case evaluation of state-sponsored personal harm. If the plaintiff does not demonstrate a situation considerably worse than their fellow countrymen, their risk does not entitle them to human rights protection.

Like the Kiribati coastline, this understanding of human rights fails to adapt to the surging tides. Climate change devastates populations without targeting specific individuals. While its impact is disproportionate on a global scale, its effects tend to victimize vulnerable populations equally.

To adopt an analogy described by a dissenting UNHRC member state representative in Teitiota, environmentally eviscerated communities are similar to survivors stranded on a shipwreck.

The quality of life throughout the ship is impoverished and unbearable. Everyone is similarly deprived. All passengers deserve to be rescued. Granting human rights protections to the most destitute creates a competition for the most miserable life.

The system awards human suffering. The system incentivizes human deprivation. The system only provides when the property, the dignity, the soul is lacerated from the person, like a kindergartner administering a vasectomy. Even when robbed of all possession, only the most destitute can receive refuge if they endure a uniquely disproportionate harm.

Deporting a migrant for lacking significantly worse conditions than his fellow migrants fuels a perpetual cycle of misery. As voiced by the dissenting UNHRC member state representative, deporting climate migrants is "like forcing a drowning person back into a sinking vessel, with the 'justification' that, after all, there are other voyagers on board."

I.L. pivoted from this perspective. The Italian Supreme Court of Cassation ordered the lower courts to perform a holistic analysis on the objective environmental conditions of the Niger Delta. By examining the general state of the applicant's origin state, the lower courts can determine if denying humanitarian protection risks refoulement. I.L. established serious widespread risk as a sufficient standard for granting humanitarian protection.

Under the I.L. precedent, climate migrants do not have to demonstrate exceptional personal harm from environmental degradation; they must demonstrate general harm severe enough to threaten their human rights. Therefore, the burden of proof for the plaintiff is relaxed.

This development represents the progression of climate migrant protections, acknowledging the collective and non-discriminatory nature of climate change impacts.

No longer must a migrant demonstrate a completely bloodied hand. With this new precedent, the crimson palms of all citizens can indicate widespread harm (included environmental harm) that is worthy of human rights protection. Quite the heartfelt sign of hope.

The human rights interpretation within I.L. is innovative yet incremental. By building on the precedent of Teitiota, the I.L. decision developed a legal human rights pathway for climate migrants to obtain human rights protection. On the other hand, constructing on the foundation of Teitiota tethers I.L. to the structural flaws of traditional human rights law.

One concerning parallel is that both cases featured slow-onset changes with severe environmental degradation, yet struggled demonstrating a real risk to life. Climate migrants must demonstrate such extreme endangerment for their human rights appeal to even be considered.

The bar is set too high: objectively devastating environmental conditions are not sufficiently harmful to warrant human rights intervention.

If the environmental conditions of these origin states - poverty, resource scarcity, depletion of the agricultural sector, destruction of land and infrastructure, widespread disease and injury, loss of biodiversity, and threats to security, sovereignty, and cultural identity - cannot easily meet the unsurpassed threshold of serious harm, what will?

Given that serious harm requires clear causation and discrimination, the New Zealand High Court suggested a pathway to international protection: "Environmental issues sometimes lead to armed conflict. There may be ensuing violence towards or direct repression of an entire section of the population... where some group inside a disadvantaged country is the target of direct discrimination."

Other commentators agree that the threats of personal violence are necessary for human rights protection. Violence arising from land disputes and resource scarcity demonstrates life-threatening conditions that may activate climate migrant protection.

If citizens must be pitted against one another to receive human rights protection, climate migrants are incentivized to commit crimes against humanity - a Lord of the Flies simulation becomes true. As professors Simon Behrman and Avidan Kent declared, "affected communities are expected to display the worst aspects of human behavior towards one another in order to benefit human rights protection."

With every ounce of flagrance festering in the cesspool of all that is wicked, international legal mechanisms for human rights are fanning the flames before salvaging the fucking ashes of their trashfire.

• To view Nigerian oil spill maps, explore the Nigerian Oil Spill Monitor
• For more on the oil industry and its pollution in the Delta, read Craig
• To learn more about the I.L. case, read NYU Climate Law Accelerator
• For more on the high minimum threshold, read Behrman and Kent
• 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 VI of Escaping Atlantis, click here.

Full Copyright of Cover Image: Courtesy of Luka Tomac and Friends of the Earth International (CC BY-SA)