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UN Human Rights Committee Views Adopted on Teitiota Communication - opinion

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A citizen of Kiribati filed a communication with the UN Human Rights Committee claiming that New Zealand had violated his right to life by denying him asylum despite his assertions that climate change made Kiribati uninhabitable. The Committee concluded that the communication was admissible, but that New Zealand's decision was not clearly arbitrary, a manifest error, or a denial of justice. 

In 2013, Ioene Teitiota, a Kiribati citizen, sought asylum in New Zeleand, asserting that the effects of climate change and sea level rise forced him to migrate. When the Immigration and Protection Tribunal denied his claim, he appealed to the New Zealand High Court. The High Court found that the impacts of climate change on Kirabati did not qualify Teitiota for refugee status because he was not subjected to persecution required for the 1951 United Nations Convention relating to the Status of Refugees. Teitioa appealed the decision to the Court of Appeals. In dismissing the application, the Court of Appeals noted the gravity of climate change but stated that the Refugee Convention did not appropriately address the issue. Teitiota again appealed, this time before the Supreme Court of New Zealand. In 2015, the Supreme Court affirmed the lower courts’ conclusions, but did not rule out the possibility “that environmental degradation resulting from climate change or other natural disasters could [] create a pathway into the Refugee Convention or protected person jurisdiction.”

On September 15, 2015, Teitiota filed a communication with the UN Human Rights Committee, alleging that New Zealand had violated his right to life under the International Covenant on Social and Political Rights. He argued that sea level rise in Kiribati caused by climate change has created a scarcity of habitable space, resulting in violent land disputes, and environmental degradation including saltwater contamination of the freshwater supply.  On January 7, 2020, the Committee ruled that the communication was admissible because Teitiota had sufficiently substantiated his claim that when he was removed to Kiribati he faced an imminent risk of being arbitrarily deprived of his life due to the effects of sea level rise. The Committee reasoned that the requirement of imminence attaches to the decision to remove the individual, and not to the anticipated harm in the receiving state, although the latter is relevant in assessing the real risk faced by the individual. 

The Committee dismissed the communication on the merits, however, explaining that it could only reverse a States party's determination that was clearly arbitrary or amounted to a manifest error or a denial of justice. The Committee reasoned that the risk of an arbitrary deprivation of life must be personal, rather than rooted in the general conditions of the receiving state, except in the most extreme cases. The Committee recognized that environmental degradation and climate change constitute serious threats to the ability of present and future generations to enjoy the right to life, but upheld New Zealand's determination that Teitiota had not provided evidence that he faced any real chance of being harmed in a land dispute, would be unable to grow food or access potable water, or otherwise faced life-threatening conditions.

The Committee did find, however, that "given that the risk of an entire country becoming submerged under water is such an extreme risk, the conditions of life in such a country may become incompatible with the right to life with dignity before the risk is realized." Accepting Teitiota's claim that sea level rise is likely to render Kiribati uninhabitable, the Committee explained that given the 10-15 year timeframe, there was sufficient time for intervening acts by the government of Kiribati to protect its citizens. 

Two Committee members dissented. One attacked the majority's reliance on the lack of evidence that Teitiota's family lacked potable water, explaining that "potable" does not equate to "safe drinking water." The second argued that the Committee placed an unreasonable burden of proof on Teitiota to establish a real risk of danger of arbitrary deprivation of life. 