Key points (continued)
- Admissibility. New Zealand contended that the claim should be deemed inadmissible, as the applicant failed to establish a prima facie case through a lack of evidence. Whilst the committee made many remarks as to the lack of evidence that would support a prima facie argument, the committee nonetheless proceeded to arguments on the merits (commencing at para 6.1, discussion at para 8.6) on the basis that the Committee was not precluded from examining the communication under Art. 5(2)(b) of the Optional Protocol.
- Extension to the principle of non-refoulement. The Committee referred to para. 12 of General Comment No. 31 in its reasoning to confirm the State’s obligation to not “extradite, deport, expel or otherwise remove a person from their territory when there are substantial grounds for believing that there is a real risk of irreparable harm…” (para. 9.3)
- In citing this, the court confirmed that such obligation under Art. 6 may be broader than the scope of the principle of non-refoulement given that it extends to those not entitled to refugee status.
- Foreseeable threats to the right to life. The Committee relied on General Comment No. 36 in determining whether the was the existence of reasonably foreseeable and life-threatening threats to the right to life. In its determination, the Commission specifically cited that “environmental degradation, climate change and unsustainable development constitute some of the most pressing and serious…”
- Still, whilst the Committee noted the existence of these threats, they regarded that the evidence failed to demonstrate the requisite level for the applicant’s arbitrary deprivation of life argument to be supported.
Potential takeaways for future climate migration litigation
The decision by the UN Human Rights committee, whilst not accepting that the applicant faced an immediate danger to his life by returning to his home country, nonetheless confirmed that climate change can affect one’s right to life. This decision paves the way for future cases whereby the right to life is arbitrarily deprived due to severe, environmental factors. One point in obiter made by the Commission which was significant was the acceptance of the evidence from the IPCC that the Republic of Kiribati will be uninhabitable within the next 10 years, and should Kiribati fail to take intervening acts in the prevention of further environmental degradation, it may be necessary when relocating its population, that the international community assist (para. 9.12).
The remarks by the Committee in relation to the extension beyond the principle of non-refoulement show promise in imposing a stricter obligation upon states not to extradite, deport, expel, or otherwise remove individuals found to be within these circumstances. As a result, states are required to ensure that these processes, in determining whether an individual is afforded refugee status, are still made available to those who are unlikely to qualify as refugees under the Convention.