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The 21st Century Refugee

Children in a flooded yard in Funafuti, Tuvalu. Source: Kyodo/AP.

In a recent World Bank report entitled ‘Turn Down the Heat,’ scientists warned that without substantive action against climate change, by 2050 the world will see an average global temperature increase of 4 degrees Celsius, likely leading to increases in water levels of up to 50 centimeters. With the effects of climate change and fossil fuel pollutants reaching global proportions, the debate rages over whether or not countries that have contributed the most heavy pollution — including China, the United States, and India — ought to be held more accountable for climate change’s effects on the environment.

However, as negotiations for climate treaties have continually stalled or led to ineffectual compromise, global warming has already devastated small island nations such as Tuvalu and Kiribati, whose land masses are shrinking. Global temperature rises cause much stronger tropical storms and hurricanes and have also been linked to floods, tidal surges, and coral reef destruction. Combined with rising water levels, large portions of land in the Pacific are in danger, and local residents may have to evacuate. However, the legal framework for climate refugees from the Pacific in even the most hospitable Oceanic states, i.e. New Zealand and Australia, is either exceedingly murky or excessively harsh.

According to the International Organization for Migration, more than 200 million will become climate refugees by 2050, and evidence suggests that not only have the number of droughts, storms, and floods increased threefold over the last three decades, but gradual climatic changes have made populations much more vulnerable to these events: 1.6 billion people are affected by current droughts, compared to 718 million just thirty years ago.

Those living in low-lying Pacific island countries such as the Maldives are especially vulnerable. Eighty percent of the Maldivian land mass is less than one meter above sea level, and 14 islands have already been lost to sea erosion. Similarly, Tuvalu, a small atoll nation of only 100 square miles, has a highest point of only 5 meters above sea level. According to Intergovernmental Panel on Climate Change (IPCC) estimates, the entire country will be submerged within 50 years. As a result, more and more people from these small island nations have sought to migrate elsewhere, but are running into legal battles associated with their refugee status.

In February 2014, 37 year-old Ioane Teitiotawa, from the small atoll nation of Kiribati, was deported from New Zealand after his appeal for refugee status was denied by the New Zealand High Court of Appeals. Though Teitiotawa cited “passive persecution” if he were to return to Kiribati, as the government would not be able to protect him from the effects of climate change, the court ruled against him, citing that while clever, Teitiotawa’s appeal was “fundamentally misconceived.” The New Zealand High Court acknowledged the plight of thousands like Mr. Teitiotawa, stating in their justification that his situation “does not appear to be different from that of any other Kiribati national…at a stroke, millions of people who are facing medium-term economic deprivation, or the immediate consequences of natural disasters or warfare … would be entitled to protection under the Refugee Convention.”

Six months later, in August 2014, a Tuvaluan family facing deportation were allowed to legally stay in New Zealand, a decision that was heralded as the first legal recognition of climate refugee status. However, the decision by the New Zealand Immigration and Protection Tribunal did not grant refugee status and instead granted the family complementary protection. Countries provide complementary protection when they believe people are at risk in their country of origin, but do not officially qualify as refugees, meaning that because the Tribunal did not consider the family to be refugees, they were under no obligation to protect them. The Tribunal also cited that danger from storms and floods was completely unrelated to the factors of refugee classification. Instead, New Zealand granted protection not because of their potential as climate refugees but because of the family’s close ties to New Zealand, including three generations of relatives and the two children, who were born there.

These rulings could adversely affect legal classification of climate refugees both domestically and internationally. The New Zealand Tribunal’s decision, through its denial of climate refugee status and decision for complementary protection, provides legal precedent to bypass constructive dialogue on changing the classification of refugee status. This allows individual countries to avoid the topic and instead handle the problem on a case by case basis rather than provide actual comprehensive reform to their refugee litigation process.

This means that for the millions of people currently affected and vulnerable to the adverse effects of climate change, the path to proper legal protection and true climate refugee status may become longer and more arduous. However, this begs the question, what then is to be done to ensure the safety and survival of those affected? Additionally, if the high courts of New Zealand acknowledge the plight of millions of others similar to Mr. Teitiotawa and the Tuvaluan family, then what domestic structures are in place to receive these displaced peoples?

New Zealand’s refugee policy follows the 1951 UN Convention Related to the Status of Refugees, which states that refugees must generally face a real harm or systemic breach of human rights and or have been targeted for their race, ethnicity or social class. Additionally, the New Zealand government only grants 750 cases of refugee status a year and only 350 to cases originating from Asia and the Pacific. New Zealand’s refugee policy does not include any provision for refugees facing devastating climate change, but there are protocols and guidelines in place to accept refugees of natural disasters and war.

Australia — another primary destination for groups seeking to migrate to avoid climate change — has stricter refugee policies in place. Following the International Covenant on Civil and Political Rights (ICCPR) and the International Covenant on Economic, Social and Cultural Rights, Australia has no legal obligation to grant asylum status to climate change refugees and any clause referencing natural disasters or climate change is noticeably absent. Additionally, while Australia grants more cases for refugee status than its smaller neighbors,  giving 13,750 people refugee status per year, its policy of automatically detaining those who arrive without a visa to claim refugee status and even moving them to remote third world island countries such as Papua New Guinea and Nauru for processing seems cruel and almost draconian.

Given current estimates, both the New Zealand and Australian governments expect to see a flood of millions of displaced individuals from pacific islands such as Tuvalu, Kiribati, and the Maldives in the coming years. It would be reprehensible for the two largest and richest Oceanic countries to deny refugee status to migrants without homes to return to. With refugee protocols and bureaucratic organizations already in place, New Zealand and Australia simply have to adjust their quotas and classifications of refugees and asylum seekers. This is a temporary solution to an impending crisis while the international community and the smaller Oceanic community can establish a more permanent solution to the reality of not only the growing number of climate refugees, but also climate change as a whole.

The international community should do their part alongside the Oceanic countries in accommodating the new wave of climate refugees. Currently, the UN Refugee Convention of 1951 does not recognize climate change as a valid factor for refugee status and when Mr. Teitotawa’s case in New Zealand was denied, the New Zealand High Court cited that the Teitotawa fits the sociological definition but not the legal definition of a refugee and that his appeal was an attempt to “stand the [UN refugee] convention on its head.” However, this means that millions of those living in small island nations such as Tuvalu and Kiribati are given no legal avenues to migrate and gain protection from the effects of climate change. If the UN updated the 1951 Convention, which most countries use as a guide for refugee classification, to include climate change as a factor for refugee status consideration, this would provide a legal road to asylum for climate refugees around the world.

As the international community continues to debate who is most responsible for climate change and what obligations exist, the plight currently facing millions of pacific islanders is consistently ignored, while they watch their homes get swept away. Bureaucratic red tape and vague legal classifications block the path for climate refugees from safety in asylum, but simple steps in amending UN conventions and establishing temporary protocols of climate refugees can be taken. Hopefully, when the world faces the ever-growing threat of global climate change, the question of climate refugees will have already been answered.