International Law

An Analysis of Ioane Teitiota v New Zealand: Paving the way for Climate Refugees and Non Refoulement Obligations of States under Article 6 of the ICCPR

By Urshila Pandit


Slow and sudden environmental changes brought about by climate change are forcibly displacing individuals  to different countries due to the uninhabitable nature of such regions. The current scenario can be analysed utilising two legal instruments- the Convention Relating to the Status of Refugees, 1951 and Article 6 of the International Covenant on Civil and Political Rights (ICCPR) or more broadly human rights law. However, there is a lacunae in both legal regimes that fail to address the phenomena of climate refugees. While human rights law offers a plausible solution to climate refugees, the threshold of ‘real risk of irreparable harm’ that must be proved in order to invoke non refoulement obligations of the host State is high but not impossible to prove. The recent decision of the Human Rights Committee in Ioane Teitiota v New Zealand lends support to this stance.

The decision is undoubtedly of importance to India for two reasons, firstly since India has ratified the ICCPR, any decision taken by national courts regarding the repatriation of refugees will have to be in compliance with its obligations under the Covenant. Secondly, India’s neighbouring States are vulnerable to climate change induced disasters that would lead to the displacement of a large number of persons. 

Climate refugee a “refugee” under the Refugee Convention, 1951?

One of the fundamental issues that arise in this context is the lack of consensus on the definition and the terminology to be assigned to individuals who are displaced due to climate change. Regarding terminology, the crux of the debate is whether such individuals can be termed as climate refugees or climate migrants.  The author is of the opinion that such individuals should not be termed as migrants as there are numerous problems that arise by using such terminology. Firstly it implies the pull of the economic or social benefits of the receiving country as the primary reason for such displacement as opposed to the detrimental effects of climate change in the sending State. Secondly, it undermines the international responsibility of the receiving state as it signifies voluntary movement by the individual as opposed to being forced to do so.

As to the lack of a definition of climate refugees in international legal instruments, it is closely linked to the lacunae that exist in the Refugee Convention. Article 1(A)(2) of the Convention defines a refugee as a person who has crossed an international border “owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion.” Climate refugees, however, do not fall within its ambit as the provided definition of a refugee is too narrow.

One of the prerequisites to be defined as a refugee is the element of persecution. In the case of climate refugees, it is a herculean task to prove that climate change meets the threshold of persecution as understood in legal terms. Arguendo, even if it were possible to meet the threshold of persecution it must be proved that this was done on one of the five grounds mentioned in Article1(A)(2) of the Convention. The effects of climate change are likely to affect the entire population. Thus making it almost impossible to prove the existence of any of the above five grounds.

Though it has been argued by the UNHRC that climate refugees can be granted protection under the Convention in the presence of nexus dynamics. This paradigm however would not offer protection to those who flee their States solely due to the effects of climate change in the absence of a link to violence or an armed conflict.

Article 6 of the ICCPR and the obligation of non- Refoulement

The decision of the HRC, the chief interpretative body of the ICCPR in the case of Ioane Teitiota v New Zealand is a landmark decision regarding climate refugees and international human rights law. The applicant in this case was a citizen of Kiribati who moved to New Zealand and subsequently applied for asylum because the rising sea level in Kiribati has led to (a) a scarcity of habitable space, thereby causing violent land disputes that endanger his life; (b) environmental degradation, including saltwater contamination of the freshwater supply resulting in reduced access to potable water and (c) he was deprived of his livelihood due to contamination of the soil. The domestic Courts in New Zealand rejected his application for asylum because he did not fulfill the criteria of a refugee and he could not prove that on being deported to Kiribati, there was an imminent foreseeable risk that he would be arbitrarily deprived of his life in violation of the Covenant.

As the applicant exhausted all national remedies, he approached the HRC. The principal issue before the Committee was whether the deportation of the applicant to Kiribati amounted to a real risk of irreparable harm to his life in violation of Article 6 of the ICCPR. The Committee concluded that there was no violation of Article 6 by the State party’s actions as the applicant could not establish: (a) that he would specifically be the victim of land dispute violence in Kiribati, rather there was a general situation of violence that existed posing a risk to all individuals on the island (b) it was not impossible to obtain potable water and (c) it was not impossible to grow crops or earn his livelihood by other means.

There are important takeaways from the observation of the Committee in casu, it acknowledged that climate change may lead to the displacement of individuals triggering the obligation of non-refoulement by the receiving State if it is found that returning an individual would pose an imminent risk to his life in violation of Article 6. Furthermore the Court reiterated what had previously been encapsulated in its General Comment 36 (para 62), that the right to life must be interpreted broadly and climate change poses a serious threat to the enjoyment of this right.


Despite the commendable aspects of the Committee’s observation there are certain limitations to it. Mr. Duncan Laki Muhumuza in his separate opinion, expressed concern that the HRC set an unreasonably high threshold to prove that there would be a real and imminent foreseeable risk to his life in case of deportation. The Committee and the State Party did not dispute expert evidence on the effects of environmental degradation on availability of potable water, the reduction in suitable land leading to violence and potential health hazards faced by the applicant. However, to one’s disappointment, it undermines such hardships faced by the applicant, implying that if it is not impossible to obtain drinking water or to grow other crops in Kiribati it would not meet the threshold of Article 6. 

It is undisputed that general conditions in the sending state are insufficient to establish that Article 6 would be violated, rather the applicant must prove that there is a foreseeable risk of personal harm. However general human rights conditions in the sending State must be assessed along with other relevant factors. It is argued that the general living conditions in Kiribati were sufficiently grave so as to affect the applicants’ right to life with dignity which must not be interpreted narrowly.

The author is a student currently enrolled in the School of Law, Christ University, Bangalore.

2 replies on “An Analysis of Ioane Teitiota v New Zealand: Paving the way for Climate Refugees and Non Refoulement Obligations of States under Article 6 of the ICCPR”

Nicely written article. Could the author please clarify whether this judgement would really have an impact on India; keeping in mind that India has not ratified the Refugee Convention and has historically followed a standard operating procedure (has no law) while dealing with refugees?

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