The Guardian had quite the headline:
Climate refugees can’t be returned home, says landmark UN human rights ruling
That would be quite the ruling. So wildly improbable was the headline that I figured it was the pronouncement of one of the insane little working groups rather than one of the serious organs (like how Assange skipping bail was inexplicably arbitrary detention according to the Working Group on Arbitrary Detention–a conclusion that one of the Working Group members rejected, stating ‘In fact, Mr. Assange fled the bail in June 2012 and since then stays at the premises of the Embassy using them as a safe haven to evade arrest. Indeed, fugitives are often self-confined within the places where they evade arrest and detention’).
But it wasn’t! It was instead the Human Rights Committee which tends not to deliver completely wild rulings that are obviously legally wrong.
So what did the Human Rights Committee really find?
First, let’s be really, really clear: the asylum seeker lost their case. If it was really a fact that the Human Rights Committee found that you can’t return ‘climate refugees’, then New Zealand would not be permitted to return these asylum seekers and the asylum seekers would have won their case. Something is fishy here.
The whole article is about 800 words long. You have to read more than a quarter of the way through before you’re told the asylum seekers lost their case, and some of those words include the legally incorrect: ‘It is unlawful for governments to return people to countries where their lives might be threatened by the climate crisis’.
This is an openly deceptive article. The average reader would form a view of the law that is diametrically opposed to the reality.
Here’s what the Committee actually said:
After a lengthy analysis of international human rights standards, the Tribunal considered that “while in many cases the effects of environmental change and natural disasters will not bring affected persons within the scope of the Refugee Convention, no hard and fast rules or presumptions of non-applicability exist. Care must be taken to examine the particular features of the case.”
In many cases, the effects of environmental change and natural disasters will not bring affected persons within the scope of the Refugee Convention.
This text, by the way, didn’t make it into the 800 words published by the Guardian. Given that this is the actual state of the law, it is unclear why the text didn’t make the cut.
To get to the biscuits, the question here is Article 6 of the International Covenant on Civil and Political Rights and the concept of refoulement under international law.
Article 6 reads:
Every human being has the inherent right to life. This right shall be protected by law. No one shall be arbitrarily deprived of his life.
The asylum seeker in this case was arguing that returning him to a country that was at risk of flooding due to climate change would be to arbitrarily deprive him of life. The Committee disagreed with him, noting that there was no evidence that ‘there was a real and reasonably foreseeable risk that he would be exposed to a situation of indigence, deprivation of food, and extreme precarity that could threaten his right to life, including his right to a life with dignity’ at the time he was deported.
The important part is that the Committee said that this conclusion did not necessarily flow just because the root cause of the issue was climate change. Climate change does not create a presumption against the idea that a person needs protection. But this is already well-known and established. If you’re an ethnic minority in a country and you’re internally displaced because your territory flooded, it doesn’t matter that your territory flooded if you’re subsequently exposed to persecution for being an ethnic minority. Further, because Article 6 of the ICCPR is interpreted broadly, if the application of immigration law is applied such that a person could be sent to a country that is ravaged by ‘natural’ disasters, this could constitute an arbitrary deprivation of life. Again, well-known and established.
But at no point was the applicant a refugee. He was not, for reasons of race, religion, nationality, membership of a particular social group or political opinion, outside the country of his nationality and was unable or, owing to such fear, was unwilling to avail himself of the protection of that country. ‘Climate refugee’ is not a thing except to the extent that the five convention grounds intersect with climate change.
And then there’s the final note. If the UN really did say that you cannot return a person to their home because the home is affected by climate change, then you could absolutely expect countries to ignore the UN more often. It would be such an incredible departure from existing law that it would undermine confidence in the international legal system. Democratic governments would be at liberty to ask voters if they really think that the whims of the undemocratic UN should override national laws, or that ‘compliance with international law’ remained a moral standard that we should care about.