Climate refugees? Alternative and Broadened Protection Avenues for Refugees from Small Island Developing States (SIDS)

Maine Astonitas  - Opinion Piece - Small island developing states meeting - pic courtesy wiki commonsMAINÉ ASTONITAS is a PhD Candidate in Development Studies at The University of Auckland. Her main interest is the impact of transnational migration, and she currently focuses on labour and social relations around seasonal migration from the Recognised Seasonal Employer scheme (RSE) in New Zealand and Vanuatu.

JACQUELINE FA’AMATUAINU is a PhD Candidate in Development Studies at The University of Auckland.  She is following the UNFCCC negotiations as part of her doctoral research and was an Advisor for the Government of Samoa’s delegation to the 2014 UNFCCC 20th session of the Conference of Parties (COP20) in Lima, Peru.

AHMED INAZ is a PhD Candidate in Development Studies at The University of Auckland. He has worked in various development departments of the government of the Maldives, and his research interests are institutions, climate change adaptation, participation, political ecology, sustainable development and tourism development.

Abstract:
New migration trajectories arise out of the increasing vulnerability of fragile environments and the eventual movement of affected people beyond their national borders. However, “climate refugees” and similar terms, which were coined in a context of environmental degradation and climate change, are often contested. This has contributed to the lack of recognition of a potential new category of protection for climate-induced migrants. The imminence of climate change and related migration is a particular concern for Small Island Developing States (SIDS), which have limited capacity to adapt to extreme weather events. With this opinion piece, we aim to contribute to the ongoing discussion on environmentally-induced migration from SIDS. The following discussion will focus on the Pacific context, in which power differences between sending and receiving nations have influenced regional legal regimes for granting refugee status. We believe that the insufficiency of legal definitions that are not tied to an international protection scheme is apparent, but we also explore alternative avenues of protection that find a domestic context in Kiribati, Tuvalu, and New Zealand. We argue that the effects of climate change can be considered a legitimate form of persecution under the 1951 Refugee Convention for those leaving climate-affected SIDS, broadening its scope and providing a viable avenue of international protection.


Introduction
While academic debate has introduced nuance to the original concept of “climate refugees” defined by the United Nations Environment Programme[1] to refer to the climate-related movement of people, current international legal frameworks do not offer protection to those affected. The more recent variety of terms, such as ecomigrants,[2] climate exiles[3], and ecological refugees[4] lack clear legal and operational definitions. More specifically, practical solutions to the increased climate-related challenges faced by the SIDS community have yet to be acknowledged and problematised. This opinion piece will discuss whether the current legal framework contained within the 1951 Refugee Convention[5] can be expanded to provide an avenue for international protection for those affected by climate change induced migration from SIDS.

Small Island Developing States (SIDS) are, due to their topography and location, particularly vulnerable to climate variability and rising sea levels caused by climate change. For the most part, developing low-lying countries are those considered most at risk of producing migrants due to the effects of climate change.[6] At an international level, the UNHCR does not support the climate migration label as a viable ground for claiming refugee status under the 1951 Refugee Convention.[7] The UNHCR does, however, project an increase of climate induced displacement by 2050, which could mean up to a billion people.[8] While it is already known that climate change and rising sea levels will especially affect countries with low altitudes, potential migration from developed countries is hardly considered in the regional policy discourses that raise alarm over increases in the number of displaced people and refugees.[9] This absence creates myths which greatly oversimplify human-environment interactions, and portray affected populations who are primarily non-Western as victims.[10] If climate change generates different migration patterns, those affected by these patterns need to be incorporated into the existing protection frameworks of the 1951 Refugee Convention[11] as well as the United Nations Framework Convention on Climate Change (UNFCCC).[12] These mandates require a clear definition of climate migration to create protocols that would allow governments to grant or deny asylum.

In this opinion piece, we will discuss whether the current legal framework of the 1951 Refugee Convention[13] can be expanded to provide an avenue for international protection of those affected by climate change induced migration from SIDS. We exemplify the complex situation of SIDS and refugee protection with two recent cases in New Zealand: Teitiota v Chief Executive of Ministry of Business, Innovation and Employment [2014] NZCA 173[14] and AD (Tuvalu) [2014] NZIPT 501370-371. Both cases consider claims for refugee or protected person status available under New Zealand’s Immigration Act 2009. The Teitiota decision highlights the reluctance to broaden the refugee or protection person status to apply to a person who was vulnerable to the impacts of climate change. In contrast, AD (Tuvalu) shows how the appellants from Tuvalu successfully prevented their deportation from New Zealand on humanitarian grounds, as the Immigration and Protection Tribunal (IPT) decision acknowledged the effects of climate change as a contributing factor against deportation.

Climate change and refugee status claims in New Zealand

New Zealand ratified the primary instrument of refugee law, the 1951 Convention Relating to the Status of Refugees, on 30 June 1960 and the 1967 Protocol Relating to the Status of Refugees on 6 August 1973. Additionally, it signed the UNFCC on June 4 1992, which entered into force on March 21, 1994. The fact that New Zealand is subject to obligations under international law renders the 1951 Refugee Convention an appropriate instrument for seeking redress. However, the operationalization of a category for climate change refugees and vulnerable individuals leaving adverse environmental conditions is not yet legally binding. Individuals fleeing environmentally adverse conditions continue to lack any protection under New Zealand’s existing domestic legal framework and are treated as any other applicant for refugee protection.

Nonetheless, for the last decade, Pacific Island appellants have based their claims for protection on the effects of climate change in their place of origin, arguing for refugee status in New Zealand[15]. For example, the adverse effects of climate change on the low-lying atolls of Kiribati and Tuvalu have received considerable attention.  Pacific Island migrants coming from Kiribati or Tuvalu to New Zealand, who are unable to obtain residence and whose presence eventually becomes unlawful, have appealed to the effects of climate change to seek protection person status under the Immigration Act 2009.[16] Presently, stateless Pacific Island asylum claimants are treated as aliens, and refugee status is not granted for environmental reasons. A forward-looking assessment of risk faced by refugee status claimants on the grounds of climate change could be an avenue to explore if the government would decide to provide protection for Pacific countries already affected by climate change. Unfortunately, any potential new statutory class of ‘climate change refugee’ encounters the legal constraints associated with framing and recognizing new types of refugee claims.


Teitiota v Chief Executive of Ministry of Business, Innovation and Employment
[2014] NZCA 173

In the case of Teitiota v Chief Executive of Ministry of Business, Innovation and Employment,[17] the appellant was a citizen of Kiribati. Given the combined risks of climate change-related sea-level rise and the environmental changes in Kiribati, the appellant and his wife moved to New Zealand and had three children in the country. Once their presence in New Zealand became unlawful[18], Mr Teitiota sought refugee and protected person status in New Zealand due to the adverse environmental conditions in Kiribati and appealed to the Immigration and Protection Tribunal (IPT) when the Refugee Status Branch officer declined to grant this request.

While this was not the first case in New Zealand where appellants included climate change grounds in their appeal, local and international media portrayed this case as ground-breaking.[19] The key issue in this case concerned whether people especially vulnerable to the climate change phenomenon can be provided appropriate protection based primarily on these grounds.

In Teitiota, the IPT deemed it essential to apply the legal definition of refugee as contained within Article (1)(A)(2) of the 1951 Refugee Convention.[20] The requirement for refugee protection as per the Convention is that a person must have a fear of being persecuted for a number of reasons, such as ethnicity or political views. This persecution must relate to the violation of human rights and the failure of the state in question to protect the refugee claimant from persecution. Mr. Teitiota was classified a ‘sociological’ refugee[21] seeking better quality of life, but not the subject of persecution on environmental grounds.

Both the High Court and Court of Appeal upheld the original findings of the ITP. In Teitiota, Justice Priestley stated that the facts did not satisfy the persecution or serious harm elements under the five grounds provided by the 1951 Refugee Convention.[22] The Court of Appeal upheld the High Court decision by concluding that the appellant would not suffer physical harm from the deprivations arising out of the effects of climate change. The final judgement clearly stated that climate change and its effect on countries like Kiribati, however, is not appropriately addressed under the 1951 Refugee Convention.[23] Nonetheless, the Court upheld the IPT’s findings that because of the indiscriminate nature of climate change related events, there was no way in which the 1951 Refugee Convention could be specifically used to grant protection in this instance. Since the effects of climate change in Kiribati, one of the world’s lowest-lying nations, would equally affect the entire population, the Court found that no particular person faces individualized persecution, as necessary for obtaining refugee status under the 1951 Refugee Convention.

AD (Tuvalu) [2014] NZIPT 501370371

In AD (Tuvalu), climate change was considered a relevant factor in a humanitarian appeal.  Mr. Sigeo Alesana and his wife had lived in Tuvalu until 2007, when the impacts of climate change and sea level rise were already making their life difficult. The couple, concerned about their future, moved to New Zealand with Mr. Alesana’s mother. After the couple overstayed their visa, they applied for refugee and protected person status. After several attempts to gain residency, Mr. Alesana, his wife, and two children successfully appealed to the IPT in New Zealand in August 2014. While environmental degradation was only one of several reasons that may have affected the family’s livelihood, the family was portrayed in the media as being ‘the first climate refugees.’[24]

However, climate-change related risk was not the determinative issue in the IPT”s decision to allow the family to stay in New Zealand. Climate change and environmental degradation as a humanitarian circumstance was submitted inter alia as one factor supporting the appeal. The IPT found that broader implications on the extended family and an eventual deportation could ultimately affect the wellbeing of the two children in question. The IPT is required by the United Nations Convention on the Rights of the Child to have regard for the best interests of children.[25] As such, the IPT also considered that the family’s children would become more vulnerable to natural disasters because of the adverse impact of climate change if they were to return to Tuvalu. Ultimately, the IPT granted the family of four Tuvaluans residence in New Zealand based on humanitarian grounds, accepting that exposure to the impacts of natural disasters can aggravate humanitarian circumstances and can form a part of the analysis for humanitarian claims. The IPT found that the family circumstances shifted this case beyond the threshold for granting relief based on humanitarian grounds.[26] The strong family ties to their community as well as children’s well-being and their adjustment to New Zealand, demonstrated by references collected from relatives, the church, and the children’s school, supported this family’s application. On a cumulative basis, the Tribunal held that this particular case warranted protection due to exceptional circumstances of a humanitarian nature, which proved that it would be unjust to deport the appellants from New Zealand as the children would lack adequate protection on the basis of these intersecting factors. Nonetheless, contrary to the media’s treatment of AD (Tuvalu), which emphasised climate change as a new avenue for refugee claims, the decision did not set a precedent for future claimants, as the Court found that the concept of ‘refugee’ cannot currently be applied to people fleeing climate change.

Protection status in New Zealand: The “Good” Migrant

In both Teitiota and AD (Tuvalu), it is clear that there is protection gap for people who are vulnerable to the impacts of climate change and wish to claim refugee status.

Taken together, two areas need to be examined in order to determine the protection status under the Immigration Act of 2009 for persons arguing the effects of climate change as relevant factors in a humanitarian appeal against deportation:

  • Prerequisite human rights, which are undermined as a result of being exposed to the effects of climate change;
  • Specific circumstances where the effects of climate change would be considered an exceptional circumstance making it unjust for a person to be deported to an area where exposure to these factors would be inevitable.[27]

On the basis of these factors, in Teitiota the IPT allowed deportation because escaping from a natural disaster was not considered a stand-alone reason to obtain protection under the 1951 Refugee Convention.[28] The Court of Appeal found that the IPT “concluded that whilst the applicant’s standard of living, if he returned to Kiribati, would be less than what he enjoyed in New Zealand, this did not constitute serious harm for Refugee Convention purposes,”[29] and at the same time, that the climate change appeal “question is essentially a question of fact not of law.”[30] On the other hand, in AD (Tuvalu), deportation was prevented on the grounds that such an act would be against the best interests of the concerned children, and because the family was considered to have already adapted to living in the country (there was “no adverse public interest”).[31] The Tribunal articulated that “(t)he breach of the Immigration Act [the family overstaying their visa] in this case does not outweigh the other positive factors in this case and create a public interest in deporting him.” He and his family were already engaged with the community and were leading a ‘productive life’ in New Zealand.[32]

These two cases demonstrate the extremes of what have been portrayed as ‘bad’ and ‘good’ types of mobility in the context of environmental migration to New Zealand.[33] The good type of mobility has been understood as derived from ‘adaptation’ measures against climate change: “it strives at forming adaptive and resilient self-entrepreneurs, docile subjectivities adapted to market economy – thereby obtaining a pacification of unruly sectors of populations yet to be inscribed under the neoliberal rule.”[34] While current immigration schemes in New Zealand[35] could be a feasible option for some migrants, for others, not being able to rely on labour mobility will mean that they are not protected[36]. In AD (Tuvalu), the family was portrayed as well-adapted to the receiving country, as all members of the family were involved in community life, through participation in school or at church, and already integrating into New Zealand society.[37] This contrasts with the discourse around the Teitiota case, where the claimant from Kiribati was described as a non-authorized migrant failing to integrate into the community.

Towards alternatives and a broadening of protection for SIDS

To adequately reflect the dynamics of climate change and migration, protected person status should incorporate the multiple stressors related to climate migration and the complexity of factors behind it. One alternative to these gaps in protection and problematic discourses is to widen the scope of New Zealand’s immigration policy to statutorily include categories of claims made by people who are vulnerable to natural or man-made disasters. As climate change was not a common concern when the 1951 Refugee Convention was signed, the inclusion of these more recent, relevant criteria could potentially aid in securing protection status for climate-induced refugees. Considering this protection as a fundamental human right undermined by exposure to the effects of climate change would mean showing that deporting a claimant to such an area would amount to persecution as defined in the 1951 Refugee Convention. The developments in international human rights law and other associated legal frameworks should facilitate rather than obstruct protection for new categories of refugees, as well as human rights considerations that transcend a good/bad mobility discourse.[38]

One potential step for helping SIDS overcome climate change-induced migration challenges is for the leaders of these countries to realise that practical solutions should come as a partnership between SIDS and the international community. Taking forward the message of the United Nations Third International Conference on SIDS’ 2014 meeting on climate change in Samoa, the current President of Kiribati, Mr. Anote Tong, challenged the global community to move forward to fill the gap “between what needs to be done and what is being done.”[39] At the same time, however, he strongly confirmed his rejection of creating a new category of climate change or environment refugees,[40] as he believed this would have serious implications on the dignified treatment of Kiribati citizens. Instead, he proposed the framework of migration with “dignity.”[41] This framework would include increasing the skill set of Kiribati citizens in order to allow them to migrate through existing migration channels, mainly to Australia and New Zealand.

The fact that SIDS communities have the likelihood of becoming refugees highlights the problems they face in terms of lost livelihoods and the need for increased international protection. While President Tong’s concerns dealt with the possibility of planning ahead to prevent a need for seeking refugee status, we believe that there is also a need to broaden the conceptualisation of the refugee to incorporate the climate change context into international refugee law. Environmental degradation and human migration issues are intertwined.  Practical solutions for environmentally motivated migration from SIDS require a wide network of cooperation on both the regional and international levels. National responses to environmentally displaced persons are inadequate and require an international intervention.

The SIDS are comprised of communities that have always borne the brunt of environmental change, and there is keen awareness among Pacific SIDS of their particular vulnerabilities to the effects of climate change. The Forum leaders of the Council of Regional Organisations of the Pacific (CROP) shares this awareness, and are mandated to improve the cooperation, coordination and collaboration among intergovernmental regional organisations.  In recent years, the Pacific Islands Forum Secretariat (PIFS), which includes 16 independent and self-governing states in the Pacific, has focused on human rights mechanisms throughout the region and the need to plan ahead for further climate-induced changes resulting in mass migration through regional agreements[42]. However, the governments of receiving states such as New Zealand have not actively supported an explicit engagement with policy and the legal and practical implications of the likely influx of climate change related migration to non-SIDS countries. We believe the starting point for this dialogue must prioritise a re-examination of the definition of a climate refugee and how climate change can be considered a form of persecution under international refugee law.

All states should share a common obligation to protect the environment,[43] but in reality states have different capacities and views on their responsibilities depending upon the technology and wealth of the country.[44] Different approaches to tackling environmental challenges also shape different social and economic outcomes that were previously unforeseen. Pacific SIDS currently rely upon the cooperation of global and regional partnerships for the financial support to protect and restore their environment. Even so, Pacific SIDS need to review their strategic plans and institutional frameworks by seeking robust partnerships to develop scenarios for potential migrants who might otherwise satisfy the definition of a refugee as per the 1951 Refugee Convention. SIDS need to be more proactive and draw up practical plans that are linked to their own annual budgets and other operational plans. It would therefore appear that immigration policy and processes should prioritise climate-vulnerable populations.

Climate change binds local and global stakeholders to a shared responsibility due to the complexity of an issue that demands complex solutions. We see climate change as a “societal problem that has an environmental constituent.”[45] Therefore, it is important to analyse both the multiple sources of vulnerabilities and the adaptive capacities of migrants at a local scale, while at the same time recognizing that these local manifestations are also products of larger-scale global forces.[46] Solutions for climate change should emphasize building safe and sustainable societies.

Conclusion: Regional Meets Global

The possibility of New Zealand offering protection to ‘climate refugees’ has recently been part of a new surge of regional policy interest in climate-induced migration. Understanding the roles, responsibilities and challenges of each involved party is critical in formulating a solid consensus as part of the international response to climate-induced migration from SIDS. In New Zealand, and around the world, there is no substantive legal framework that includes climate change as part of the definition of ‘refugee.’ Despite existing immigration policy not having been developed to respond to climate change-induced migration, there have been regional calls within the international community for New Zealand to scale up their technical and financial support for climate change action and, if necessary, to support relocations from SIDS.[47]

In the Pacific context, regional responses to climate displacement have been firmly placed on the agenda of Council of Regional Organisations in the Pacific (CROP). In Rarotonga, Cook Islands in May 2013, Pacific Regional consultations were organised to assess the merits of building consensus on the development of a protection agenda to address the needs of climate change induced migration.[48] Such dialogue on voluntary migration and resettlement is imperative for the development of coordinated regional responses and could provide some hope of upending the predominant climate induced migration discourse that anticipates mass relocation to more developed countries.

The impact of climate change cannot be contained within national boundaries.  Although most climate-induced migration occurs internally, there are many persons who have already moved across international borders. The increasing vulnerability of fragile environments will inevitably result in the movement of people beyond their home countries. If current legal definitions and instruments are limiting the protection measures offered to those endangered by the effects of climate change, then we must address these definitions. The value of life must not be subject to legal barriers that hinder the implementation of solutions. We need to see past our current limitations to address the issue of populations displaced forcefully from their lands, livelihoods and nations, by climate change. This is an issue that requires innovative solutions, and there is a need to redefine international responsibilities and legal provisions to support solutions for the pressing issue of climate induced migration.


[1]EL-Hinnawi, E. (1985). Environmental Refugees. Nairobi, Kenya: United Nations Environment.

[2]Wood, W. B. (1995). Hazardous journeys: Ecomigrants in the 1990s. In D. Conway & J. C. White (eds.) Global change: How vulnerable are north and south communities? Indiana: Indiana Center on Global Change and World Peace.

[3]Byravan, S., & Rajan, S.C. (2006). Providing new homes for climate change exiles. Climate Policy, 6, 247-252.

[4]Westra L. (2009) Environmental justice and the rights of ecological refugees, Earthscan, London. Nine, C. (2010) Ecological Refugees, States Borders, and the Lockean Proviso. Journal of Applied Philosophy, Vol.27 (4), 359-375.

[5]UNHCR Convention and Protocol Relating to the Status of Refugees. Retrieved from: http://www.unhcr.org/3b66c2aa10.html

[6] Small islands and coastal communities experience ecosystem losses due to the rising sea level caused by climate change.

[7] As the responsibility of the UNHCR falls in the area of forced displacement, they have “serious reservations with respect to the terminology and notion of environmental refugees or climate refugees.” UN High Commissioner for Refugees (UNHCR), Climate Change, Natural Disasters and Human Displacement: A UNHCR Perspective, 23 October 2008. Retrieved from: http://www.unhcr.org/4901e81a4.html.

[8] Low Carbon Development Partnership (2009). Climate change could mean a billion refugees by 2050 – UNHCR. Retrieved from: http://www.lowcvp.org.uk/news,climate-change-could-mean-a-billion-refugees-by-2050-unhcr_907.htm.

[9] For an interesting analysis of global policy discourses in relation to security and climate change see. Detraz, N. & Betsill, M. Climate Change and Environmental Security: For Whom the Discourse Shifts. International Studies Perspectives (2009) 10, 303–320 and DeWitte, C. At the Water’s Edge: Legal Protections and funding for a new generation of climate change refugees. Ocean and Coastal Law Journal (2010) 16, 211-234.

[10] Bettini, G. & Andersson, E. (2014). Sand Waves and Human Tides: Exploring Environmental Myths on Desertification and Climate-Induced Migration. The Journal of Environment & Development, 23(1), 160-185.

[11] In addition to the 1951 Refugee Convention, the UNHCR mandate includes: victims of manmade disasters and persons of concern to the High Commissioner. See ECOSOC Resolution 2011 (LXI) of 2 August 1976. Retrieved from: http://www.unhcr.org/refworld/docid/3ae69ef418.html, General Assembly Resolution 31/35 of 30 November 1976, Retrieved from: http://www.unhcr.org/refworld/docid/3b00f0375c.html, and General Assembly Resolution 48/118 of 20 December 1993, Retrieved from: http://www.unhcr.org/refworld/docid/3b00f2641c.html. These instruments will not be further addressed in this paper.

[12] United Nations (1992). United Nations Framework Convention on Climate Change Retrieved from: http://unfccc.int/files/essential_background/background_publications_htmlpdf/application/pdf/conveng.pdf

[13]UNHCR Convention and Protocol Relating to the Status of Refugees. Retrieved from: http://www.unhcr.org/3b66c2aa10.html

[14]  The adverse effects of climate change were outlined in the Immigration and Protection Board decision, AF (Kiribati) [2013] NZIPT 800413. The Tribunal decision declined the claims for refugee and protected person status.  The application for leave to appeal to the High Court under s 245 of the Immigration Act 2009 was declined:  Teitiota v The Chief Executive of the Ministry of Business Innovation and Employment [2013] NZHC 3125.  The Court of Appeal upheld the High Court decision to decline leave to appeal:  Teitiota v The Chief Executive of the Ministry of Business Innovation and Employment [2014] NZCA 173. For a complete background, refer to both the High Court and Court of Appeal upholding the Tribunal’s original findings.

[15] Mc.Adam, J. (2010) Climate change displacement and international law. Retrieved from: http://www.unhcr.org/4d05ecf49.pdf .

[16] In 2000, a group of claimants from Tuvalu unsuccessfully argued that environmental factors combined with factors at the individual and household levels meant that they should be recognized as refugees. See, Refugee Appeal No 72185 (10 August 2000) at para [13] – [19]; Refugee Appeal No 72186 (10 August 2000); Refugee Appeal Nos 72189-72195 (17 August 2000); Refugee Appeal Nos 72313-72316 (19 October 2000).

[17] The application for leave to appeal to the High Court under s 245 of the Immigration Act 2009 was dismissed: Teitiota v The Chief Executive of the Ministry Innovation and Employment [2013] NZHC 3125.

[18] See, Immigration Act 2009 (NZ), section 9 for meaning of unlawfulness in New Zealand (in relation to a person who is not a New Zealand citizen). A person who is unlawfully in New Zealand has an obligation to leave New Zealand whether or not the person is aware of the obligation or of the implications of not meeting this. In this Act, a person who is not a New Zealand citizen is unlawfully in New Zealand if the person is in New Zealand but—(a) is not the holder of a visa granted under this Act; or (b) has not been granted entry permission under this Act. (2) A person’s status as being unlawfully in New Zealand is calculated—(a) as starting on the date the person arrived in New Zealand, if the person has never been lawfully in New Zealand since his or her arrival; or (b) as starting on the day after the date on which the person’s visa expired or was cancelled without another visa being granted; or (ba) [as starting on the day after the date on which a permit granted to the person under the former Act expired or was revoked without another permit being granted under that Act; or] (c) in accordance with sections 373 and 374, if—(i) the person was born in New Zealand on or after 1 January 2006; and (ii) he or she is not a New Zealand citizen. See also, Immigration Act 2009 (NZ), sections 129-131 on the claims sought for recognition as a refugee or protected person.

[19] Irvine, C. (November 26, 2013). Kiribati climate change refugee rejected by New Zealand. Retrieved from: http://www.telegraph.co.uk/news/worldnews/australiaandthepacific/kiribati/10474602/Kiribati-climate-change-refugee-rejected-by-New-Zealand.html

Godfery, M. (May 12 2014) New Zealand refuses climate change refugees – mass action is now needed retrieved from: http://www.theguardian.com/commentisfree/2014/may/12/new-zealand-refuses-climate-change-refugees-mass-action-is-now-needed

Perry, N (November 26, 2013) Ioane Teitiota, Kiribati Man, Sees Climate Change Refugee Claim Rejected By New Zealand Judge. Retrieved from: http://www.huffingtonpost.com/2013/11/26/ioane-teitiota-kiribati-refugee_n_4342127.html

[20] It is important to note that this Tribunal is not a treaty supervisory body.  Instead, refugee status determinations by the IPT are concerned with answering a fundamentally different issue – whether the individual’s circumstances meet the legal international definition of ‘persecution,’ and thereby require international protection.

[21] The sociological definition of a refugee encompasses a person having to leave a country regardless of the cause.

[22] Teitiota v Chief Executive Ministry of Business, Innovation and Employment NZHC 3125, [2014] NZAR 162 at [54].

[23] Teitiota v Chief Executive of Ministry of Business, Innovation and Employment [2014] NZCA 173 at [41].

[24] ABC News Australia (August 5, 2014) Tuvalu climate family granted New Zealand residency on appeal. Retrieved from: http://www.abc.net.au/news/2014-08-05/an-tuvalu-climate-family-granted-nz-residency-on-appeal/5650584 ;

Mass, A. (August 3, 2014) Tuvalu climate change family win NZ residency appeal The New Zealand Herald Retrieved from: http://www.nzherald.co.nz/nz/news/article.cfm?c_id=1&objectid=11303331

Smith, T.  (August 7, 2014). Tuvalu climate refugees granted residency in New Zealand. Retrieved from: http://tcktcktck.org/2014/08/tuvalu-climate-refugees-granted-residency-new-zealand/63891

Noack, R. (August 4, 2014) Has the era of the ‘climate change refugee’ begun? The Washington Post. Retrieved from: http://www.washingtonpost.com/blogs/worldviews/wp/2014/08/07/has-the-era-of-the-climate-change-refugee-begun/

[25] Subject to Art 3 of the UN Convention on the Rights of the Child, New Zealand continues to affirm the principle of the best interests of the child.  The welfare and best interests of the child are the first and paramount consideration of New Zealand courts. See, Ministry of Social Development (2015). United Nations Convention on the Rights of the Child: Fifth Periodic Report by the Government of New Zealand 2015. Retrieved from: http://www.msd.govt.nz/  See, especially Chief Executive of the Ministry of Business, Innovation and Employment v Liu [2014] NZCA 37. Here Art 3.1 of the UN Convention of the Rights of the Child was engaged and there was no doubt that the interests of the child, a primary consideration under the Convention, favoured the respondent remaining in New Zealand.  See also, AD (Tuvalu) 2014] NZIPT 501370-371 at [23].

[26] AD (Tuvalu) [2014] NZIPT 501370-371 at [32].

[27] Some of these factors could include sea levels rising which lead to significant areas going underwater and results in land barren for growing crops; frequent submersion of land yielding it untenable for food production or the establishment of permanent homes; no prospects of finding employment and/or housing due to climate-induced changes; and the length of time and level of establishment of the applicants in New Zealand.

[28] [2013] NZHC 3125 at [26].

[29] [2013] NZHC 3125 at [56].

[30] [2013] NZHC 3125 at [62].

[31] [2014] NZIPT 501370-71 at [34].

[32] In [2014] NZIPT 501370-71 at [34] the Tribunal assesses as positive the potential of Alesana to become a role model “for other resident or citizen children of Tuvaluan origin.”

[33] Bettini, G. (2013) Climatised Moves – Climate-induced Migration and the Politics of Environmental Discourse. LUCSUS (Lund University Centre for Sustainability Studies).

[34] Ibid .p. 55.

[35] Historically, New Zealand has had temporal migration programs oriented to Pacific SIDS. Pacific Access Category (PAC), which grants residence in New Zealand has a lottery selected quota of people from Kiribati, Tuvalu, and Tonga. Samoan citizens have the option to apply to the Samoan Quota.

[36] Settlement visas in New Zealand require a pre-arranged work relationship. As such these schemes designed to improve labour mobility privilege the able bodied and in some cases countries have been affected by ‘brain drain’ when sending their most qualified people abroad.

[37] In AD (Tuvalu), letters of support were made to Immigration New Zealand for a visa to allow the husband to remain in New Zealand.  The letters confirmed the husband’s wider integration into the local community as a “dedicated member” of the church choir and youth fellowships.  It was also made clear that the eldest child has been integrated into the New Zealand school system.

[38] See UNHCR Convention and Protocol Relating to the Status of Refugees. p. 2-3. Retrieved from: http://www.unhcr.org/3b66c2aa10.html

[39] Dateline Pacific & Figueres, C. & Moon, B & Tong, A.  (September 5, 2014)  Talk less, act more on climate change – SIDS [Interview transcript].  Retrieved from: http://www.radionz.co.nz/international/programmes/datelinepacific/audio/20148421/talk-less,-act-more-on-climate-change-sids

[40] “…but I think if we come as refugees, in fifty to sixty years time (sic), I think they would become a football to be kicked around”. Wilson, D. (2008) Interview Anote Tong President of Kiribati Climate change…nobody is immune. Retrieved from: http://www.pacificdisaster.net/pdnadmin/data/original/KIR_Interview_Climate_Change_nobody_immune.pdf

[41] In line with the ‘migration with dignity’ discourse, to prevent unplanned relocation Kiribati has already purchased land in Fiji for eventual relocation. Caramel, L. (July 1, 2014) Besieged by the rising tides of climate change, Kiribati buys land in Fiji. Retrieved from: http://www.theguardian.com/environment/2014/jul/01/kiribati-climate-change-fiji-vanua-levu

[42]Moana Declaration (2013). Outcome Statement of Pacific Parliamentarians, Retrieved from: http://countryoffice.unfpa.org/pacific/drive/PACIFICCONFERENCEOFPARLIAMENTARIANSFORADVOCACYONICPDBEYOND2014OutcomeStatement.pdf .

Another precedent Also the Cotonou Agreement (EU and ACP States) considers in its scope of financing “humanitarian and emergency assistance including assistance to refugees and displaced persons.” article 60 Cotonou Agreement (2010) Retrieved from: http://www.epg.acp.int/fileadmin/user_upload/Cotonou_2010.pdf

[43] ‘Common but differentiated responsibilities’ (CBRD) is a principle which refers to the notion that was included in section 2.1 of the Rio Declaration. United Nations (1992). Rio Declaration on Environment and Development. Retrieved from: http://www.un.org/documents/ga/conf151/aconf15126-1annex1.htm/  In the UNFCCC, this framework was expanded to include respective capabilities and this was later embedded into many UN conventions such as the Convention on Biodiversity and Convention to Combat Desertification.

[44] Article 3 of the United Nations (1992). United Nations Framework Convention on Climate Change. Retrieved from: http://unfccc.int/files/essential_background/background_publications_htmlpdf/application/pdf/conveng.pdf

[45] Stehr & von Storch (2005). Introduction to papers on mitigation and adaptation strategies for climate change: protecting nature from society or protecting society from nature? Editorial. Environmental Science & Policy 8., page 537.

[46] Barnett, J. & Campbell, J. (2010) Climate Change and Small Island States: Power, Knowledge and the South Pacific. Earthscan Publications, Limited

[47] Niue Declaration on Climate Change, Report on New Zealand’s views on the possible security implications of climate change. Annex A. Retrieved from: http://www.un.org/esa/dsd/resources/res_pdfs/ga-64/cc-inputs/New_Zealand_CCIS.pdf

[48] Nansen Initiative. (2008). Conclusions: Nansen Initiative Pacific Regional Consultations.  Retrieved from http://www2.nanseninitiative.org/.

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