In November 2013, the High Court of New Zealand rejected Ioane Teitiota’s appeal of the decision by an immigration tribunal to deport him to his home country of Kiribati. Mr. Teitiota had been living in New Zealand with his wife since 2007; his three children were all born in New Zealand. His asylum claim was based on the argument that he was effectively a refugee as a result of climate change. His legal counsel argued that his situation was covered by the Refugee Convention because he was the victim of indirect or “passive persecution.” While Judge Priestley accepted that Kiribati was at serious risk due to climate change, he rejected the grounds of appeal, aptly noting that they were “novel and optimistic” (evidently too optimistic!). He observed that were the grounds of appeal “to succeed and be adopted in other jurisdictions, at a stroke, millions of people who are facing medium-term economic deprivation, or the immediate consequences of natural disasters or warfare, or indeed presumptive hardships caused by climate change, would be entitled to protection under the Refugee Convention.” In other words, the proverbial “floodgates” of litigation would open.
Commenting on this decision, the Executive Director of the Environmental Justice Foundation, Steve Trent, observed that “[t]he use of the word ‘refugee’ in the context of climate change not only points to these human rights impacts but also to the reality that a form of refugeehoodthe experience, that is, of involuntarily leaving one’s home as a result of persecutionis an inherent feature of the historical distribution of responsibility for climate change. In the two decades 19902010, Kiribati emitted the equivalent of 0.0007 percent of the United States’ emissions during that same period. The use of the term ‘refugee’ allows us to make reference to the mixture of dispossession, responsibility and compensation which should be at the heart of this debate. In short, it reminds us that this is a question of climate justice just as much as it is a question of responding to the legal, operational and geopolitical challenges resulting from the movement of people.” (See commentary by Steve Trent.)
And Special Rapporteur on the Human Rights of Migrants, Franois Crpeau, told the UN News Centre stated that “We don’t have, in international law, or any kind of mechanisms to allow people to enter a State against the will of the State, unless they’re refugees. And even then, they don’t technically have the right to enter, but they cannot be punished for entering, Therefore, people like Mr. Teitiota do not find any solutions in international law as it presently stands.” (See UN News Feature: Should international refugee law accommodate climate change?)
Based on your reading of the materials this week (especially the two chapters in the textbook), you must submit a post on the following three questions:
Is there a way of construing any legal merit to the argument that people displaced by climate change are victims of passive persecution and therefore qualify for refugee status? (While the obvious answer is no, this question asks you to think creatively about what passive persecution might mean.)
Are you convinced by Steve Trent’s ethical rationale for using the term refugee in the context of climate change?
Conclude with your thoughts on how international law should address climate change refugees
Please answer three questions and have min 4 scholarly sourceS