View Adopted: 2019.10.24
The author is a national of the Republic of Kiribati who claimed that New Zealand violated his rights under article 6 (1) of the Covenant by removing him to Kiribati in 2015. The author claimed that fresh-water had become scarce on Tawara due to increased salinization and overcrowding. The author further claimed that attempts to combat sea level rise have largely been ineffective, inhabitable land on Tawara has been eroded, resulting in a housing crisis and land disputes that have caused numerous fatalities.
The author claims that such circumstances driven by climate change and oceanic sea-level rise had forced him to migrate from the island of Tarawa in Kiribati to New Zealand.
The author applied for asylum in New Zealand however in June 2013 the application was declined. The domestic authorities considered numerous instruments (including the 2007 National Adaptation Programme of Action filed by Kiribati under the United Nations Framework Convention on Climate Change) and the expert opinion of a doctoral candidate researching climate change in Kiribati, John Corcoran, who informed the Tribunal that the territory was an island state in crisis owing to climate change and population pressure. Unemployment was high and as the highest point in the country rose 3m above sea level, land was increasingly scarce, leading to tensions amount the population.
The Tribunal accepted that the right to life must be interpreted broadly, however could not point to any act or omission by the Government of Kiribati that might indicate a risk that the author would be arbitrarily deprived of his life within the scope of article 6 of the Covenant.
The author appealed the decision of the Tribunal all the way to the Supreme Court, however the Supreme Court was not persuaded that a miscarriage of justice had occurred, finding that environmental degradation due to climate change could not “create a pathway into the Refugee Convention or other protected person jurisdiction”.
The author claimed that by removing him to Kiribati, New Zealand had violated his right to life under the Covenant on the basis that sea-level rise in Kiribati have resulted in firstly the scarcity of habitable space, which in turn created violent land disputes that endanger life, and secondly environmental degradation which has damaged freshwater supplies.
The Committee recalled its general comment 31 on the nature of the legal obligations imposed on state parties, namely the obligation not to extradite, deport, expel or remove a person where there are substantial grounds for believing that there is a real risk of irreparable harm, such as that contemplated in articles 6 and 7 of the Covenant. Further, the Committee recalled that such a risk must be personal, and cannot derive merely from the general conditions in the receiving state, except in the most extreme cases, and that there is a high threshold for providing substantial grounds to establish such a risk exists.
The Committee further recalled that it is for the state party organs to make the determination of whether such a risk exists, unless it can be established that the assessment was clearly arbitrary or amounted to a manifest error or denial of justice.
On the merits of the case, the Committee recalled their General Comment 36, in which they stated that the obligation of a state to protect life extends to reasonably foreseeable threats which can result in the loss of life. Further, that environmental degradation, climate change and unsustainable developments constitute some of the most serious and pressing threats (Para 62, General Comment 36). However, the Committee in this case could not find a procedural deficiency at the Tribunal level in New Zealand which amounted to ‘clearly arbitrary or amounted to a manifest error or denial of justice’.
The Committee accepted the authors assertion that sea level rise is likely to render the island inhabitable in 10-15 years, however concluded that this timeline did not satisfy the need for the risk to be real, personal and imminent in order for removal to violate the Covenant. On this basis, the Committee found that removing the author did not constitute a violation of article 6.
Individual opinion of Committee member Duncan Laki Muhumuza (dissenting)
Individual opinion of Committee member Vasilka Sancin (dissenting)