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University of New South Wales Law Journal Student Series |
ADDRESSING CROSS-BORDER CLIMATE-RELATED DISPLACEMENT: PROBLEMS AND SOLUTIONS FOR THE PACIFIC REGION
MADISON WU[1]*
Figure 1: Map of the Pacific Island countries and territories (‘PICTs’).[1]
‘[C]limate change [is] the single greatest threat to the livelihoods, security and wellbeing of the peoples of the Pacific’.[2]
The displacement of people from their homes due to climate-related impact, forcing movement within countries and across international borders, has been the source of major discussion within the international community in recent decades.[3] Among the first to recognise the large-scale effects and disruptions of climate change on human migration flow was the Intergovernmental Panel on Climate Change (‘IPCC’). Shortly after its formation in 1988, the IPCC declared that the ‘gravest effects of climate change may be those on human migration as millions are displaced by shoreline erosion, coastal flooding and severe drought’.[4]Although predictions of the exact magnitude of climate-related displacement are ‘fraught with numerous methodological problems and caveats’,[5] with figures ranging from 25 million to 1 billion of people being displaced by 2050,[6] it is clear that a climate-related displacement crisis is imminent. Yet to date, there is no consensus on the appropriate protection and adaptation mechanisms that should be used to address the plight of climate displaced persons (‘CDPs’).[7]
Developing nations of the Pacific Island countries and territories (‘PICTs’) such as Kiribati and Tuvalu are particularly vulnerable to climate change impacts.[8] Due to their low-lying topography, PICTs are highly susceptible to storm-surges, floods and rising sea levels.[9] These climate-related disasters in turn work to amplify issues within PICTs that already acted as drivers for movement such as poverty, weak governance, and resource scarcity.[10] As a leader within the Pacific region, this essay proposes that Australia is well-positioned to proactively develop or implement solutions to assist threatened PICTs.[11]
As many scholars have contended, there is no single answer to climate-related displacement, and each have proposed their own model for addressing the plight of CDPs.[12]
Part Two of this essay will address existing suggestions to either amend the Convention Relating to the Status of Refugees[13] or create another international treaty to address climate-related displacement and demonstrate that pursuing an internationally concerted program is impractical and unrealistic.
Part Three will then argue that continued development of regional policies and soft law initiatives will more effectively achieve the ultimate purposes of international instruments. Focus should be placed on expanding migration pathways for PICTs and should be developed in concert with PICTs through intergovernmental fora such as the Pacific Islands Forum (‘PIF’). Soft law such as the recent Niue Declaration on Climate Change will provide guidelines to ensure that adaptation and migration schemes promote self-determination and dignity.[14]
Part Four argues that, as these initiatives proliferate and set the groundwork for future international instruments, it is important that greater emphasis be placed on human rights considerations to ensure that, inter alia, the social and cultural identity of CDPs are protected so that they may “[migrate] with dignity”.[15]
Part Five will then provide recommendations for Australia to assist PICTs with preparing for long-term migration and provide temporary or circular migration options in the interim.
The content of this essay is limited in several respects. First, this essay assumes that climate-related displacement is forced and does not set out to prove that this is so, as it does not go to the root of the present problem.[16] Second, although current climate-related displacement largely occurs within countries,[17] this essay will focus on cross-border displacement due to the likelihood that climate conditions will worsen as States fail to meet their obligations under the Paris Agreement.[18] Further, a strong body of State obligations under international human rights law for internally displaced persons (‘IDPs’) already exists, and is reinforced by soft law instruments such as the Guiding Principles on Internal Displacement.[19] Finally, this essay does not fully address another fundamental question concerning the statehood of a nation following permanent migration.[20] In other words, can a State continue to be a State without land? This question in and of itself warrants a lengthy discussion and will not be considered here.[21]
In most cases, the Refugee Convention will not be able to provide protection to CDPs. In efforts to address this protection gap, various international bodies, States and academic scholars have advanced various options relating to the expansion of the ‘refugee’ definition within the Convention or to draft a new international instrument that specifically addresses CDPs.[22]
Art 1A(2) defines the scope of the Refugee Convention by defining a ‘refugee’ as:
A person who, ‘owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country’.[23]
This definition is problematic for CDPs for three reasons. First, the extra-territoriality requirement poses an obvious problem as climate-related impacts are generally experienced while the CDP is within their home country. Second, it is difficult to establish ‘persecution’ resulting from climate-related impacts. Despite the fact that the Refugee Convention is a living instrument that has been subject to expansion through jurisprudence, ‘reading in’ CDPs is challenging as the drafters of the Convention never intended to, nor ever contemplated that, it would purport to protect CDPs.[24] Caselaw within Australia and New Zealand have confirmed this limit to the ‘persecution’ test.[25] Finally, even if climate-related events amounted to ‘persecution’, it would also need to fit within at least one of five of the listed reasons for persecution. At first instance, none of the categories would suit a CDP’s situation. Notably, there is caselaw in Australia and New Zealand where CDPs have claimed persecution for reasons of membership of a particular social group.[26] One such case, Teitiota,[27] will be discussed in Part Three of this essay.
Of course, some CDPs may potentially be protected by the Convention. For example, where a government decides to adopt mitigating measures against climate-related impacts but refuses to protect a select class of persons who were in turn displaced, then Convention-related protections may be enlivened to resolve the discrimination. However, this represents but a small subset of CDPs and will unlikely benefit most CDPs. Therefore, the narrow definition of ‘refugees’ is ill-suited to addressing climate-related displacement.[28]
To remedy this protection gap, some actors have called for an expansion of the ‘refugee’ definition while others have proposed new legal instruments.[29] For example, in 2009 the Bangladeshi Finance Minister stated that “[t]he convention on refugees could be revised to protect people. It’s been through other revisions, so this should be possible”.[30]
With respect to a new instrument, vocal proponents for this solution are Frank Biermann and Ingrid Boas, and David Hodgkinson.[31] Biermann and Boas have suggested expanding the operation of the United Nations Framework Convention on Climate Change (‘UNFCCC’) by introducing a Protocol on Recognition, Protection, and Resettlement of Climate Refugees with an executive committee to identify population groups that classify as a CDP.[32] Similarly, Hodgkinson and Young have proposed creating a multilateral Convention for Climate-Change-Displaced-Persons and the establishment of a Climate Change Displacement Organisation to oversee the operation of said Convention.[33] To apportion responsibility, several models further propose a ‘polluter-pays’ principle, wherein CDP intake is calculated in inverse proportion to a State’s carbon emissions.[34]
While Hodgkinson and Young’s proposal has been criticised for its ‘cumbersome complexity’,[35] McAdam and others have criticised the suggestions for any internationally concerted effort to address the legal gap for being unrealistic and impossible to draft well.[36]
Treaties, as evidenced in history, are products of extensive discussion, negotiation, and compromise;[37] to address a problem universally, the issue is abstracted and generalised to create a set of coherent international standards and norms. However, in the case of climate-related displacement, wherein causes of, and solutions to, displacement are quite particular to specific regions, these norms may lead to certain classes of CDPs being accidentally overlooked or excluded due to compromise.’[38]
To counter this, the treaty would need to be drafted broadly, since implementation is largely deferred to States parties. But then, this again begs the question – why have a treaty that operates on such an abstract level at all?
More specifically, difficulties in drafting such a treaty lie in identifying the causes of displacement that would be used to determine a person’s status as a CDP. As mentioned earlier, a monocausal approach to climate change migration is both unrealistic and erroneous.[39] In PICTs such as Tuvalu and Kiribati, socio-economic, political and other environmental difficulties such as poverty and resource scarcity already provide sufficient reason for movement, and impacts including sea-level rise are rarely the decisive factor. [40] The Asian Development Bank’s graphic below demonstrates the interaction between multiple drivers of migration, which are exacerbated by climate change. A person must decide whether to stay and adapt or migrate away from the effects.[41] However, as McAdam has expressed on several occasions – there comes a “tipping point” where people will eventually want or need to move.[42]
Figure 2: A Conceptual Framework for Climate-Induced Migration[43]
‘Multicausality is not, of itself, a sticking point in devising a treaty’.[44] If one looks to the Refugee Convention, jurisprudence on refugee status determination does not preclude the possibility of multiple causes of displacement.[45] Rather, the key factor is an ‘assessment of the intensity, severity and nature of future harm’ on an individual which is linked to one of the five categories within article 1A(2).[46] Put simply, applicants are not required to establish that climate change is the cause for displacement, but simply a dominant cause for migration.
But even this lower threshold in establishing any form of causal link between climate change and movement would be difficult for three reasons. First, while migration following sudden environmental disasters provides a great indicator to establish causation, one would also have to provide proof that the disaster was attributable to climate change, which may could possibly take scientists decades to verify.[47] Secondly, connections between events and movement may not be clear on its face. For example, when rising sea levels decreases the amount of habitable land causing violent land disputes.[48] In those circumstances, the facts presented might lead decision-makers to find a clear danger fundamentally caused by land disputes, but not by climate change.[49] Moreover, even if a link was established between one’s displacement and climate change, decision-makers would then face the difficult task of deciding what constitutes a sufficient connection in a case, and thereafter maintain a consistency in their decision-making.[50] Thirdly, it is predicted that displacement from the threatened PICTs would be pre-emptive and planned.[51] However, the question of when cross-border displacement will occur is, in reality, dependent on the individual and is not easily determined.[52] As McAdam noted, citizens will continue to temporarily migrate away from disaster-stricken areas until they experience a ‘tipping point’, at which point adapting would become unappealing and moving permanently is preferable or required.[53] In those circumstances, such movement may be seen as voluntary and unforced, and a decision-maker may not properly appreciate the cumulative nature of the dangers which has forced a CDP’s movement.[54]
However, even if a well-drafted treaty was possible, it would necessarily require strong political support for its ratification, implementation and enforcement.[55] Presently, States ‘seem to lack the political will to negotiate’ a new or amended international treaty that would expand their current obligations.[56] One simply has to look at the efficacy of the Refugee Convention; ‘[d]espite the 147 states parties to the Convention and/or Protocol to the Convention, together with the plethora of soft law...and an international agency (UNHCR)’, we have the largest amount of refugees and other displaced persons globally to date.[57] If States are unwilling to commit more to addressing the present displacement crisis, why would they be willing to agree to further obligations?
I will acknowledge here that the regional initiatives within Part Three are inevitably also subject to political will. However, regional approaches to development of soft law have the benefit of having ‘less cooks’ so to speak, as well as the appeal of creating tailored solutions for the region. Relevantly, Subramanian and Urpelainen have presented unique insight into the viability of international treaties through adopting a game theory approach.[58] After noting McAdam and other scholars’ issues with an international treaty and the continued absence of collective political will to mitigate climate change,[59] they posit that that regional or bilateral treaties ‘hold considerable potential’.[60] Under their model, treaties that have limited membership would mean that parties would more readily expect joint gains from the treaty and that countries within a region that share similar vulnerabilities could address specific issues. Although the model is merely theoretical, it does present some promise for regional hard law initiatives for the Pacific region.
Therefore, the above issues show that CDPs will not benefit much from the current Refugee Convention, nor from a new or amended multilateral treaty. But, like McAdam, this does not mean that we should completely reject an international treaty-based regime that would establish responsibility-sharing mechanisms for CDPs.[61] It is simply that these aims are better achieved on a regional level.
The purpose of an international instrument is to encourage responsibility-sharing mechanisms and to provide a framework for a concerted effort in local policy and legislative development. As an alternative to creating or expanding an international framework, scholars have argued that regional policies and other soft law initiatives would achieve the ultimate purposes of an international instrument while mitigating or removing the hindrances identified in Part Two.[62] As Australia is one of few developed nations within the Pacific Region, it is well-positioned to proactively lead these changes for PICTs.
However, a blanket approach should be avoided and the varied approaches of PICT governments in addressing climate-related displacement should be respected. For example, while the Kiribati government has prioritised permanent relocation of their people through methods like purchasing land in Fiji,[63] other states have unequivocally rejected the notions of resettlement.[64] In the last decade or so, the Pacific Island Forum (‘PIF’), an intergovernmental organisation compromising of 18 PICTs,[65] has been actively used as a collaboration and consultation platform for addressing climate-related movement.
In 2008, the PIF undertook a momentous step forward through the signing of the Niue Declaration on Climate Change, wherein the Pacific region first collectively acknowledged their concern for ‘the serious current impacts of and growing threat posed by climate change to the economic, social, cultural and environmental well-being and security of Pacific Island countries.’[66] PIF Leaders also agreed to ‘[e]ncourage the Pacific’s Development Partners to increase their technical and financial support for climate change action on adaptation, mitigation and, if necessary, relocation’.[67]
The PIF have since committed further to addressing climate-related displacement through several climate-related soft law initiatives.[68] Most notably, in 2016 the PIF endorsed the Framework for Resilient Development in the Pacific: An Integrated Approach to Address Climate Change and Disaster Risk Management (‘FRDP’), a ‘voluntary and non-political’ framework that provides guidelines to coordinate regional, national and community efforts in developing solutions for climate change and climate-related impacts.[69] The FRDP sets out ‘priority actions’ and divides actions better suited for regional development and those that should be implemented on a national level. Notably, national governments were asked to:
Integrate human mobility aspects, where appropriate, including strengthening the capacity of governments and administrations to protect individuals and communities that are vulnerable to climate change and disaster displacement and migration, through targeted national policies and actions, including relocation and labour migration policies.[70]
In August 2019, the PIF encouraged the further development of the FRDP through the Pacific Resilience Partnership (‘PRP’) through endorsing the Kainaki II Declaration for Urgent Climate Action Now,[71] which, inter alia, extended the operation of the FRDP.[72] The Declaration also catalysed the current process of developing a 2050 Strategy for the Blue Pacific Continent, which will include inter alia the Pacific region’s strategies for addressing climate change.[73] The extent to which the Strategy will address climate-related displacement is yet to be seen.
Through using the FRDP and PIF as a guide for regional collaboration and consultation, Australia will be able to develop culturally-sensitive outcomes within national policies and legislation that will consider the attitudes of particular states[74] and ensure that adaptation and migration schemes promote self-determination and dignity.[75] Although these options also depend on ‘the political climate of the day’, the adaptability of policy development may prove to be advantageous compared to ‘hard law’.[76] Similarly, although the above PIF initiatives are voluntary, this may prove beneficial to garnering political will for larger initiatives. A prime example of the PIF’s past success is evidenced through the Majuro Declaration,[77] which achieved its intention of rallying support within the Pacific for the Paris Agreement.[78] Ultimately, the PIF’s soft law initiatives provide at least a starting point for development, and may be used as the foundation for an incremental approach and facilitate the production of hard law in the future.
As the ADB has noted, ‘migration has often been presented as a solution of last resort’ and as a result ‘migrants have often been portrayed as lacking resources, as helpless victims of environmental forces beyond their control’.[79] To combat this negative image, the ADB and McAdam both recommend that the solution to climate-related displacement is through reframing migration as a form of adaptation.[80] In this regard and aligning with the FRDP, Australia has established temporary and circular migration schemes specifically for people within PICTs. Although McAdam admits that building national migration initiatives and enforcing them are ‘not as sexy as treaties’, they will serve to ensure that people are not forced out of their country without any avenues for support.[81] Among the benefits discussed below, temporary adaptive migration importantly addresses the fact that many people from PICTs do not want to, nor have sufficient resources to, migrate permanently.[82]
Following the success of the Seasonal Worker Programme (‘SWP’),[83] Australia announced a complimentary ‘step-up’ programme to ‘engage with the Pacific with greater intensity and ambition, deliver more integrated and innovative policy and make further, substantial long-term investments in the region’s development’.[84] Part of this programme was introducing a new Pacific Labour Scheme (‘PLS’) in July 2018 to expand labour market access for PICTs to all sectors in rural and regional Australia such as agriculture, health care and food services requiring low and semi-skilled workers.[85] Although eligibility for the PLS was initially limited to 2000 people and from three PICTs (Nauru, Kiribati and Tuvalu),[86] the limit was quickly uncapped in November 2018[87] and participating PICTs has since increased to ten.[88]
The benefits of these migration schemes flow three ways; Australia, sending PICTs and the individual themselves.
From Australia’s perspective, enhancing migration pathways addresses labour shortfalls within the workforce, particularly in rural labour sectors where Australia has historically relied on backpackers and students, who are not a secure source of labour.[89] The prospective sending state would also receive reciprocal economic gains. From the perspective of the sender, PICTs will have ‘an outlet for the increasing pressures on livelihoods because of climate change’.[90] Economic pressure is particularly severe in the Pacific region, where economic growth has been slow for the past two decades as compared to other developing countries.[91] Moreover, employment rates are low in the PICTs; it is estimated that less than 50% of the working age population are employed.[92] Through migrations schemes like the PLS, individuals are able to find stable employment, upskill themselves and support their families and communities through sending remittances.[93] Positive labour migration policies also encourage investment in the PICT and entrepreneurial activities.[94]
Labour migration schemes also prepare both sending and receiving states for potential sudden migration scenarios, wherein PICTs are struck by natural disasters and are forced to migrate. From an administrative view, facilitation of movement would be significantly smoother since a mobility system had already been established. Gradual adaptive migration is then incidentally also less costly in the long term as last-minute abandonment would require sudden expenditure of emergency assistance funds on the part of the sending and receiving states, as well as any supporting states.[95]
Perhaps the most important benefit of adaptive migration policies is that it secures an individual’s self-determination and allow them to ‘migrate with dignity’[96] easily at a time of their choosing without feeling overwhelmed by the prospect of moving to an entirely foreign place. Relevantly, gradual migration will be conducive to an incremental development of PICT diasporas within Australia, meaning that future migrants will be able to easily integrate into Australian society.[97] In this way, PICTs are importantly able to preserve their social and cultural identities.[98]
Any solution is never without issues. While labour mobility schemes are economically beneficial, they also detriment the labour force of the PICTs, since receiving states like Australia would more readily receive skilled workers and create a “brain drain” in the sending state.[99] History indicates that this is a very real risk; in the 1970s New Zealand received an influx of migrants from Niue and as of 2012, 80 per cent of people with Niuean heritage lived in New Zealand.[100] This has in turn ‘accentuated market distortions, increased labour demands, increased disputes over land’ in Niue.[101] Niue’s loss also caused broader socio-cultural problems and Niue now struggles to maintain its cultural traditions and identity.[102] As will be discussed in Part Five, it will be important to ensure that adaptation programmes are more beneficial than detrimental to PICTs.
Not only this, Australia’s PLS also faces practical challenges. Although on its face the program demonstrates Australia’s willingness to assist its neighbouring PICTs, the reality is that the program has not been very successful, with some reports the PLS a ‘flop’ and ‘letting relations down’.[103] Notwithstanding Australia’s uncapping of the PLS scheme, there were only 203 workers in the first year of its operation. Furthermore, figures 4 and 5 (below) indicate that workers are disproportionately dispersed in industries and geographical location. Currently, a graphic on the current PLS website (figure 6 below) indicate that current numbers are only slightly better:
Figure 3: PLS workers by country in 2018–9.[104]
Figure 4: PLS Workers by industry in 2018–9[105]
Figure 5: PLS Workers by State – 2018–9[106]
Figure 6: PLS numbers, current as of 20 August 2020[107]
Nevertheless, the lack of the PLS’ success does not solely fall on Australia’s shoulders. The success of labour mobility is also contingent on strong marketing, promotion and incentivisation of the programs by sending states. Though current figures may be disheartening, it should also be noted that the SWP initially struggled with only 56, 67 and 423 workers in its first three years respectively.[108] Therefore, it may be still too early to determine the effectiveness of the PLS.
As the Pacific region continues to develop policies to counteract climate-related displacement, it should also ensure that the human rights of CDPs are protected to ensure, inter alia, the preservation of social and cultural identities. At its core, climate-related displacement is a human rights issue, and the civil, political, economic, social and cultural rights of all CDPs should be at the forefront of all solution development.[109] In recent years, support for mainstreaming human rights in climate-related issues has been growing, particularly through an increased willingness in invoking human rights obligations as grounds for action in litigated matters.
Figure 7: Summary of some impacts of climate change on human rights[110]
This is particularly evidenced in the 2019 landmark decision The State of the Netherlands v Urgenda, wherein the Supreme Court of the Netherlands upheld a decision confirming that the Dutch government was obligated to meet their 2020 carbon reduction targets under the Paris Agreement.[111] The Urgenda Foundation successfully argued, among other grounds, that the Dutch government was in breach of articles 2 and 8 of the European Convention on the Protection of Human Rights and Fundamental Freedoms (‘ECHR’), being the right to life and the right to respect private and family life respectively.[112] The decision marked an important milestone in developing a human-rights-centric approach to climate change and its impacts.
Within the Pacific region, developments have also been on foot to test the boundaries of international human rights law in providing CDPs protection against worsening climate conditions. Australian and New Zealand courts have had a long history of denying refugee status to applicants from threatened PICTs such as Kiribati, Tuvalu, Tonga and Fiji who claim a fear of harm from environmental degradation.[113] However, two recent complaints to the United Nations Human Rights Committee (the ‘Committee’), one against the New Zealand government and another against the Australian government, have begun advancing a novel human rights based approach to climate-related displacement.
In 2013, Kiribati citizen Ioane Teitiota applied for refugee status in New Zealand under the Immigration Act 2009 (NZ), being New Zealand’s implementation of the Refugee Convention.[114] He sought asylum on the basis that the sudden onset climate-related events (storm surges etc.) and slow onset processes (rising sea levels etc.) had exacerbated Kiribati’s already existent problems associated with population growth, urbanisation, and limited infrastructure development to the point where living in Kiribati dangerous and untenable.[115]
For reasons similar to those outlined in Part Two regarding the inadequacy of the international refugee framework, Teitiota’s application was rejected.[116] Teitiota subsequently appealed the decision several times,[117] ultimately leading to the dismissal of his case by the Supreme Court of New Zealand in 2015.[118] Curiously, in all three appeals, the Courts noted that,
environmental degradation resulting from climate change or other natural disasters could never create a pathway into the Refugee Convention or protected person jurisdiction. Our decision in this case should not be taken as ruling out that possibility in an appropriate case.[119]
Having exhausted all domestic recourse options, Teitiota approached the Committee as a last resort. As the Committee exclusively deals with compliance of the ICCPR, Teitiota reformulated his situation as a breach of human rights, alleging that New Zealand had violated his right to life.[120] Ultimately, the Committee dismissed Teitiota’s communication, stating that it would not infringe on a State party’s decision unless the ‘assessment was clearly arbitrary or amounted to a manifest error or a denial of justice’,[121] which was not the case here.[122]
Notwithstanding the outcome, the Committee’s decision was significant in four respects. First, the Committee noted that refouling a person where the risk of harm due to climate change and its related impacts was imminent could amount to a breach of the ICCPR, even where the applicant was not able to establish they were uniquely affected.[123] Second, this case confirmed that a breach of the principle of non-refoulement is beyond an international refugee law issue and is now firmly recognised as a human rights issue as the Committee indicates CDPs not entitled to refugee status may be protected under the ICCPR’s obligation not to extradite, deport or otherwise transfer.[124] However, further clarification of the interaction between the ICCPR and the traditional principle of non-refoulement by future jurisprudence or otherwise will be required. Third, the Committee acknowledged the extreme risk of Kiribati being submerged under water within the next ten to fifteen years, and should the government of Kiribati fail to implement intervening acts to protect its citizens, may amount to a breach of the right to life.[125] At what point in time will Kiribati be in breach for failing to deploy intervening acts is not yet decided and requires future clarification. Finally, and most importantly, the Committee urged robust national and collective international efforts to avoid exposing individuals to a violation of their human rights. Therefore, this case marked an important first step not only in mainstreaming human rights, but also in gathering international support for countries vulnerable to climate change in prevention, risk mitigation, and developing adaptability measures.
Closely following the Committee’s decision in Teitiota, eight Torres Strait Islanders issued a ‘world-first human rights complaint’ to the Committee against Australia in May 2020.[126] The complaint represents not only the first human rights-based climate change litigation that Australia has faced, but also the ‘first legal action worldwide brought by inhabitants of low-lying islands against a nation state’.[127] Represented by an non-profit organisation, ClientEarth, the complainants allege that Australia has violated the following rights:
1. Right to life;
2. Right to be free from arbitrary interference with privacy, family and home; and
3. Right to culture.[128]
The complainants allege that Australia’s has failed to adopt appropriate measures to reduce carbon emissions and to facilitate adaptation strategies for the Torres Strait Islands. Consequently, as one complainant, Kabay Tamu stated, “[w]hen erosion happens, and the lands get taken away by the seas, it’s like a piece of us that gets taken with it – a piece of our heart, a piece of our body”.[129]
In response to the complaint, the Australian government promised to assist the region with climate adaptation through supplying a $25 million infrastructure fund for building emergency coastal defences like sea walls to provide temporary protections against storm surges and rising sea levels.[130]
However, the complainants do not believe this is sufficient and have continued with their complaint. In August 2020, the Australian government denied the allegations set out within the complaint and requested for the Committee to dismiss the complaint.[131] Although the Committee’s decision may yet not be finalised for a few years, and regardless of the case’s ultimate outcome, this willingness to apply human rights law in a climate-related context indicates a positive trajectory towards greater human rights considerations, both in the Pacific region and globally, moving forward. Furthermore, although the Committee’s decision would not be legally binding, ‘it would help put pressure on the Australian government, in the same way as the case of Mr. Teitiota reminds the international community that the time to act, and to act together... it was already yesterday’.[132]
Although there are myriad solutions that may be proposed, this essay recommends the below aims that should be prioritised in the Pacific region.
First, Australia should continue to strengthen its bonds with other PICTs through its ‘step-up’ programme and continue its consultation with PICTs through the PIF to ensure that Australia’s solutions are tailored to the needs of the Pacific region as well as prevent adaptation programmes from creating more detriment than good.[133] Moreover, these deep relationships that are built the PIF’s through soft law initiatives will mean that future hard law initiatives will be significantly easier to arrange.
With regard to the PLS, SWP and Australia’s other migratory options,[134] greater awareness needs to be created in sending states to increase numbers taking advantage of the pathways. On the other hand Australia should also lower or waive fees associated with visa applications for PICTs citizens to ensure that schemes are accessible to particularly vulnerable people. The PLS scheme may also be improved by evening the distribution of workers in gender and between industries and Australian states and territories. This may be achieved through providing additional incentives for workers, employers and businesses.
Finally, at the 2019 PIF meeting, Leaders:
‘[n]oted the proposal for a UN General Assembly Resolution seeking an advisory opinion from the International Court of Justice on the obligations of States under international law to protect the rights of present and future generations against the adverse effects of climate change’.[135]
The aforementioned proposal refers to Vanuatu’s open advocacy for international climate change litigation[136] and the high-profile campaign of the Pacific Islands Students Fighting Climate Change (‘PISFCC’) which began just prior to the 2019 PIF meeting.[137] This statement represents a positive step in clarifying the obligations of governments and should be pursued further. Similarly, human rights considerations should continue to be mainstreamed in climate-related displacement issues through further communications to the Committee.
Climate change affects all of us, but some more so than others. In a cruel twist of fate, the most vulnerable are PICTs who are among those who have contributed the least to carbon emissions.[138] But who will protect them? Although displacement is a matter of international concern, the sad reality is that the present refugee framework is ill-suited to handling the plight of CDPs. Rather, it should be incumbent on developed nations such as Australia to assume the role of leading the Pacific region and expanding migratory pathways so that one’s right to life is protected at all costs and ensure that no nation is left behind.
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* I thank Melissa Chye for her incredible assistance, without which this paper would not have come to fruition.
[1] World Bank, Pacific Possible: Long-Term Economic Opportunities and Challenges for Pacific Island Countries (Working Paper No 1, 2017) 2.
[2] Pacific Islands Forum, Forum Communiqué, PIF(19)14, 50th Pacific Islands Forum, 13–16 August 2019, [14].
[3] Essam El-Hinnawi, Environmental Refugees (United Nations Environment Programme, 1985); Jenny Grote Stoutenburg, ‘Book Reviews: Climate Change and Displacement. Multidisciplinary Perspectives’ (2011) 22(4) European Journal of International Law 1996, 1996.
[4] Intergovernmental Panel on Climate Change, Policymakers’ Summary of the Potential Impacts of Climate Change: Report from Working Group II to IPCC (Australian Government Publishing Service, 1990) 103.
[5] Frank Biermann and Ingrid Boas, ‘Preparing for a Warmer World: Towards a Global Governance System to Protect Climate Refugees’ (2010) 10 Global Environment Politics 60, 67.
[6] United Nations High Commissioner for Refugees, The State of the World’s Refugees: In Search of Solidarity: A Synthesis (Oxford University Press, 2012) 26; Angela Williams, ‘Turning the Tide: Recognizing Climate Change Refugees in International Law’ (2008) Law & Policy 30(4) 502, 506; Chaloka Beyani, Report of the Special Rapporteur on the human rights of internally displaced persons, A/66/285 (9 Aug 2011) 6 [18]–[19]; United Nations Human Rights Committee, Global and national activities under the twentieth anniversary of the Guiding Principles on Internal Displacement, A/HRC/41/40/Add.1 (24 June–12 July 2019) 6 [13]; François Crépeau, Report of the Special Rapporteur on the Human Rights of Migrants, UN GAOR, 67th sess, Agenda Item 70(b), UN Doc A/67/299 (13 August 2012) 7–8 [31]; See Norman Myers, Environmental Refugees: An Emergent Security Issue, Economic Forum, 13th sess, EF.NGO/4/05 (22 May 2005).
[7] Jane McAdam, ‘Swimming against the Tide: Why a Climate Change Displacement Treaty is Not the Answer’ (2011) 23(1) International Journal of Refugee Law 2, 3 (‘Swimming against the Tide’); Lauren Nishimura, “Climate Change Migrants’: Impediments to a Protection Framework and the Need to Incorporate Migration into Climate Change Adaptation Strategies’ (2015) 27(1) International Journal of Refugee Law 107, 108.
[8] Amy Louise Constable, ‘Climate change and migration in the Pacific: options for Tuvalu and the Marshall Islands’ (2017) 17 Regional Environmental Change 1029, 1029; See Jon Barnett and William Neil Adger, ‘Climate Dangers and Atoll Countries’ (2003) 61 Climatic Change 321; See also Vicente R Barros et al (eds), ‘Climate Change 2014: Impacts, Adaptation, and Vulnerability — Part B: Regional Aspects’ (Report, Intergovernmental Panel on Climate Change, 2014).
[9] Amy Louise Constable (n 8) 1029–30; See Mary-Elena Carr et al, “Sea Level Rise in a Changing Climate: What Do We Know?” in Michael Gerrard and Gregory Wannier (eds), Threatened Island Nations: Legal Implications of Rising Seas and a Changing Climate (Cambridge University Press, 2013) 15.
[10] Jane McAdam, Swimming against the Tide (n 7) 12–5; Lauren Nishimura (n 7) 111–114; Jane McAdam and Marc Limon, ‘Human Rights, Climate Change and Cross-Border Displacement: the role of the international human rights community in contributing to effective and just solutions’ (Policy Report, Universal Rights Group, August 2015) 15 (‘Human Rights, Climate Change and Cross-Border Displacement’); Thea Philip, ‘Climate Change Displacement and Migration: An Analysis of the Current International Legal Regime’s Deficiency, Proposed Solutions and a Way Forward for Australia’ (2018) 19 Climate Change, Displacement and Migration 639, 639–42.
[11] See generally Thea Philip (n 10) and Harriet Farquhar, “Migration with Dignity”: Towards a New Zealand Response to Climate Change Displacement in the Pacific’ (2015) 46 Victoria University of Wellington Legal Research 29.
[12] Thea Philip (n 10) 660; Jane McAdam, Swimming against the Tide (n 7) 25; Amy Louise Constable (n 8) 1029; Harriet Farquhar (n 11) 31 and 38.
[13] Convention Relating to the Status of Refugees, opened for signature 28 July 1951, 189 UNTS 137 (entered into force 22 April 1954) art 1A(2) (‘Refugee Convention’).
[14] Thea Philip (n 10) 665.
[15] Ibid 663; Jane McAdam and Marc Limon (n 10) 20–1.
[16] See Lauren Nishimura (n 5) 111; See Jane McAdam, Swimming against the Tide (n 5) 4; See also Walter Kälin and Nina Schrepfer, ‘Protecting People Crossing International Borders in the Context of Climate Change: Normative Gaps and Possible Approaches’ (UNHCR, Division of International Protection, February 2012) 40, 43.
[17] The Government Office for Science, ‘Foresight: Migration and Global Environmental Change: Future Challenges and Opportunities’ (Report, The Government Office for Science, London, 2011) 37; Asian Development Bank, ‘Addressing Climate Change and Migration in Asia and the Pacific Final Report’ (Final Report, Asian Development Bank, 2012) vii.
[18] See e.g. Stephen Leahy, ‘Most countries aren't hitting 2030 climate goals, and everyone will pay the price’, National Geographic (online, 5 November 2019) < https://www.nationalgeographic.com/science/2019/11/nations-miss-paris-targets-climate-driven-weather-events-cost-billions/>
[19] Jane McAdam and Marc Limon (n 10) 14–5; Thea Philip (n 10) 640; See United Nations High Commissioner for Refugees , Guiding Principles on Internal Displacement, 54th sess, Agenda Item 9(d), UN Doc E/CN.4/1998/53/Add.2 (11 February 1998); See also Inter-Agency Standing Committee, IASC Operational Guidelines on the Protection of Persons in Situations of Natural Disasters (The Brookings – Bern Project on Internal Displacement, January 2011); See also Cecilia Jimenez-Damary, Report of the Special Rapporteur on the rights of internally displaced persons, UN GAOR, 41st sess, Agenda Item 3, UN Doc A/HRC/41/40 (17 April 2019).
[20] See Michael Gerrard and Gregory Wannier (eds), Threatened Island Nations: Legal Implications of Rising Seas and a Changing Climate (Cambridge University Press, 2013) Part II; See also Jane McAdam, ‘“Disappearing States’, Statelessness and the Boundaries of International Law” in Jane McAdam (ed), Climate Change and Displacement: Multidisciplinary Perspectives (Bloomsbury, 2010).
[21] Ibid.
[22] Jane McAdam, Swimming against the Tide (n 7) 6–7.
[23] Convention Relating to the Status of Refugees, opened for signature 28 July 1951, 189 UNTS 137 (entered into force 22 April 1954) art 1A(2) (‘Refugee Convention’) (Emphasis added).
[24] Thea Philip (n 10) 644.
[25] For Australian cases see e.g, 1004726 [2010] RRTA 845 (30 September 2010); 0907346 [2009] RRTA 1168 (10 December 2009); N00/34089 [2000] RRTA 1052 (17 November 2000); N95/09386 [1996] RRTA 3191 (7 November 1996); N99/30231 [2000] RRTA 17 (10 January 2000). For New Zealand cases, see, eg, AF (Tuvalu) [2015] NZIPT 800859 (20 October 2015); AC (Tuvalu) [2014] NZIPT 800517-520 (4 June 2017); Teitiota v Chief Executive of the Ministry of Business, Innovation and Employment [2014] NZCA 173; [2014] NZAR 688; Refugee Appeal No 72185/2000 [2000] RSAA (10 August 2000).
[26] 0907346 [2009] RRTA 1168 (10 December 2009); Teitiota v Chief Executive of the Ministry of Business, Innovation and Employment [2014] NZCA 173; [2014] NZAR 688.
[27] Teitiota v Chief Executive of the Ministry of Business, Innovation and Employment [2014] NZCA 173; [2014] NZAR 688; Ioane Teitiota v New Zealand (UNHRC, CCPR/C/127/D/2728/2016, 7 January 2020).
[28] Jane McAdam, Swimming against the Tide (n 7) 3; Jane McAdam and Marc Limon (n 10) 15–18; Thea Philip (n 10) 644–52; Harriet Farquhar (n 11) 33–36; Lauren Nishimura (n 7) 114–8.
[29] Jane McAdam, Swimming against the Tide (n 7) 6.
[30] Harriet Grant, James Randerson and John Vidal, ‘UK Should Open Borders to Climate Refugees, Says Bangladeshi Minister’, The Guardian (online, 5 December 2009) <https://www.theguardian.com/environment/2009/nov/30/rich-west-climate-change>.
[31] See Bonnie Docherty and Tyler Giannini, ‘Confronting a Rising Tide: A Proposal for a Convention on Climate Change Refugees’ (2009) 33 Harvard Environmental Law Review 349.
[32] Frank Biermann and Ingrid Boas (n 5).
[33] David Hodgkinson and Lucy Young, ‘“In the Face of Looming Catastrophe”: A Convention for Climate-Change-Displaced Persons’ in Michael Gerrard and Gregory Wannier (eds), Threatened Island Nations: Legal Implications of Rising Seas and a Changing Climate (Cambridge University Press, 2013) 299, 300, 311, 317–8.
[34] Thea Philip (n 10) 653; Margit Ammer et al, ‘Legal Status and Legal Treatment of Environmental Refugees’ (Report, Federal Ministry of the Environment, Nature Conservation and Nuclear Safety, November 2010) 10.
[35] Susannah Willcox, ‘Book Reviews: Threatened Island Nations. Legal Implications of Rising Seas and a Changing Climate’ (2014) 25(1) European Journal of International Law 343, 346.
[36] Lauren Nishimura (n 7) 118–9.
[37] Jane McAdam, Swimming against the Tide (n 7) 25; Thomas Alexander Aleinikoff, “International Legal Norms on Migration: Substance without Architecture” in Ryszard Cholewinski, Richard Perrechoud and Euan MacDonald (eds), International Migration Law: Developing Paradigms and Key Challenges (TMC Asser Press, 2007) 467.
[38] Jane McAdam, Swimming against the Tide (n 7) 25; Thea Philip (n 10) 654.
[39] See Thomas Alexander Aleinikoff (n 37) 476.
[40] Jane McAdam, Swimming against the Tide (n 7) 12–5; Lauren Nishimura (n 7) 111–114; Jane McAdam and Marc Limon 15; Thea Philip (n 10) 639–42.
[41] Asian Development Bank (n 17) 27.
[42] Jane McAdam, Swimming against the Tide (n 7) 13; Jane McAdam and Marc Limon (n 10) 15; ‘Climate Change is Happening Now’, Displaced (Vox Media Podcast Network, 19 March 2019) < https://open.spotify.com/episode/6fF3syRs2u8VWsdtkRkTXE?si=5A9C-EgPRSGJOeNgVDY7Jg>.
[43] Asian Development Bank (n 17) 27.
[44] Jane McAdam, Swimming against the Tide (n 7) 14.
[45] United Nations High Commissioner for Refugees, Handbook on Procedures and Criteria for Determining Refugee Status under the 1951 Convention and the 1967 Protocol Relating to the Status of Refugees (1992), [42]; See e.g Migration Act 1958 (Cth), s 91R.
[46] Jane McAdam, Swimming against the Tide (n 7) 14.
[47] Astri Suhrke, ‘Environmental Degradation and Population Flows’ (1994) 47 Journal of International Affairs 473.
[48] See Ioane Teitiota v New Zealand (UNHRC, CCPR/C/127/D/2728/2016, 7 January 2020).
[49] Ibid.
[50] Jane McAdam, Swimming against the Tide (n 7) 15.
[51] Jane McAdam, Climate Change and Displacement: Multidisciplinary Perspectives (Bloomsbury, 2010) 1–2.
[52] Bruce Burson and Richard Bedford, Clusters and Hubs: Toward a Regional Architecture for Voluntary Adaptive Migration in the Pacific (The Nansen Initiative, 9 December 2013) 6.
[53] ‘Climate Change is Happening Now’, Displaced (Vox Media Podcast Network, 19 March 2019) < https://open.spotify.com/episode/6fF3syRs2u8VWsdtkRkTXE?si=5A9C-EgPRSGJOeNgVDY7Jg>.
[54] Ibid; Thea Philip (n 10) 657.
[55] Jane McAdam, Swimming against the Tide (n 7) 25; Thea Philip (n 10) 657.
[56] Jane McAdam, Swimming against the Tide (n 7) 15–6.
[57] Jane McAdam, Swimming against the Tide (n 7) 16–7.
[58] Narayan Subramanian and Johannes Urpelainen, ‘Addressing cross-border environmental displacement: when can international treaties help?’ (2014) 14 International Environmental Agreements 25.
[59] Ibid 26.
[60] Ibid 27.
[61] Jane McAdam, Swimming against the Tide (n 7) 26.
[62] Thea Philip (n 10) 656; Asian Development Bank (n 17) viii; Frank Biermann and Ingrid Boas (n 5) 74.
[63] Laurence Caramel, ‘Besieged by the rising tides of climate change, Kiribati buys land in Fiji’ (online, 30 June 2014) <https://www.theguardian.com/environment/2014/jul/01/kiribati-climate-change-fiji-vanua-levu>; Jane McAdam, Swimming against the Tide (n 7) 18.
[64] ‘Prime Minister Apisai Ielemia Says Climate Change Threatens Tuvalu’s Survival’, European Parliament Press Release, 10 Dec. 2009, <http://www.europarl.europa.eu/news/expert/infopress_page/028-66101-341-12-50-903-20091207IPR66100-07-12-2009-2009-false/default_en.htm> (accessed 13 Dec. 2009).
[65] At the time of writing, the PIF includes: Australia, Cook Islands, Federated States of Micronesia, Fiji, French Polynesia, Kiribati, Nauru, New Caledonia, New Zealand, Niue, Palau, Papua New Guinea, Republic of Marshall Islands, Samoa, Solomon Islands, Tonga, Tuvalu, and Vanuatu.
[66] Pacific Islands Forum, The Niue Declaration on Climate Change (adopted 26 August 2008) (‘Niue Declaration’).
[67] Ibid (Emphasis added).
[68] See e.g. Pacific Islands Forum, Majuro Declaration for Climate Leadership (adopted 5 September 2013) (‘Majuro Declaration’); Pacific Islands Forum, Boe Declaration on Regional Security (adopted 5 September 2018).
[69] Pacific Islands Forum, Framework for Resilient Development in the Pacific: An Integrated Approach to Address Climate Change and Disaster Risk Management (Pacific Community, Secretariat of the Pacific Regional Environment Programme, Pacific Islands Forum Secretariat, United Nations Development Programme, United Nations Office for Disaster Risk Reduction and University of the South Pacific, 2016) 1–2.
[70] Ibid 15.
[71] Pacific Islands Forum, Kainaki II Declaration for Urgent Climate Action Now (adopted 16 August 2019) (‘Kainaki II Declaration’).
[72] While the Kainaki II Declaration is ‘the strongest collective statement the forum has issued on climate change’, some Leaders were disappointed. See <https://www.lowyinstitute.org/the-interpreter/kainaki-ii-declaration-signal-pacific-strength> and <https://www.abc.net.au/news/2019-08-15/no-endorsements-come-out-of-tuvalu-declaration/11419342>.
[73] Pacific Islands Forum Secretariat, ‘The 2050 Strategy for the Blue Pacific Continent’ (Webpage, last accessed 22 August 2020) <https://www.forumsec.org/pacific-regionalism/>.
[74] Jane McAdam, Swimming against the Tide (n 7) 17.
[75] Thea Philip (n 10) 665.
[76] Ibid 658.
[77] Pacific Islands Forum, Majuro Declaration for Climate Leadership (adopted 5 September 2013) (‘Majuro Declaration’)
[78] Ed King, ‘Pacific Leaders adopt ‘Majura Declaration on climate change’ (online, 5 September 2013) <https://www.theguardian.com/environment/2013/sep/05/pacific-leaders-majuro-declaration-climate-change>.
[79] Asian Development Bank (n 17) 46.
[80] Asian Development Bank (n 17) 46; ‘Climate Change is Happening Now’, Displaced (Vox Media Podcast Network, 19 March 2019) <https://open.spotify.com/episode/6fF3syRs2u8VWsdtkRkTXE?si=5A9C-EgPRSGJOeNgVDY7Jg>.
[81] ‘Climate Change is Happening Now’, Displaced (Vox Media Podcast Network, 19 March 2019) <https://open.spotify.com/episode/6fF3syRs2u8VWsdtkRkTXE?si=5A9C-EgPRSGJOeNgVDY7Jg>.
[82] Jane McAdam, Swimming against the Tide (n 7) 21.
[83] Holly Lawton, ‘Australia’s seasonal worker program now bigger than NZ’s’ (online, 25 July 2019) <https://devpolicy.org/australias-seasonal-worker-program-now-bigger-than-nzs-20190725/>.
[84] Department of Foreign Affairs and Trade, 2017 Foreign Policy White Paper: Opportunity Security Strength (Australian Government, 2017) 101.
[85] Department of Foreign Affairs and Trade, ‘Pacific Labour Mobility’ (Webpage, last accessed 22 August 2020) <https://www.dfat.gov.au/geo/pacific/engagement/pacific-labour-mobility/Pages/default>.
[86] Grant Wyeth, ‘Australia to Welcome More Pacific Islanders With New Visa Program’ (online, 14 September 2017) <https://thediplomat.com/2017/09/australia-to-welcome-more-pacific-islanders-with-new-visa-program>.
[87] The Hon Marise Payne, ‘Expanding the Pacific Labour Scheme and establishing an Office of the Pacific’ (Joint media release, 15 November 201) <https://www.foreignminister.gov.au/minister/marise-payne/media-release/expanding-pacific-labour-scheme-and-establishing-office-pacific>.
[88] Ibid.
[89] Richard Curtain et al, ‘Pacific Possible: Labour Mobility: The Ten Billion Dollar Prize’ (World Bank, 2016) iv and 8.
[90] World Bank (n 1) 89.
[91] World Bank (n 1) xiv, 11–6.
[92] See International Labour Organisation, ‘World Employment and Social Outlook – Trends 2017’ (2017).
[93] World Bank (n 1) 89; Thea Philip (n 10) 657; Harriet Farquhar (n 11) 43.
[94] Pacific Islands Forum Secretariat, ‘Regional Mobility’ (Webpage, last accessed 22 August 2020) <https://www.forumsec.org/regional-mobility/#1510106891457-0a6facec-f2fa>.
[95] World Bank (n 1) 89.
[96] Jane McAdam and Marc Limon (n 10) 20–1; Thea Philip (n 10) 663.
[97] World Bank (n 1) 89.
[98] See Kelly Wyett, ‘Escaping a Rising Tide: Sea Level Rise and Migration in Kiribati’ (2013) 1(1) Asia & The Pacific Policy Studies 171.
[99] Harriet Farquhar (n 11) 45; John Campbell, “Climate Change and Population – Movement in Pacific Island Countries’ in Bruce Burson (ed) Climate Change and Migration: South Pacific Perspectives (Institute of Policy Studies, Wellington, 2010) 29, 44; Asian Development Bank (n 17) 48.
[100] Jon Barnett, “On the risks of engineering mobility to reduce vulnerability to climate change: insights from a small state” in Kirsten Hastrup and Karen Fog Olwig (eds) Climate Change and Human Mobility: Global Challenges to the Social Sciences (Cambridge Press, Cambridge, 2012) 169 at 171.
[101] Ibid.
[102] Ibid 184.
[103] Stephen Howes, ‘The Pacific Labour Scheme: is it a flop?’ (online, 29 July 2019) <https://devpolicy.org/the-pacific-labour-scheme-is-it-a-flop-20190729/>; Melissa Clarke, ‘Australia's Pacific Labour Scheme off to a disappointing start: Opposition’ (online, 9 July 2019) <https://www.abc.net.au/radio-australia/programs/pacificbeat/pacific-labour-scheme-off-to-a-slow-start/11290822>.
[104] Stephen Howes, ‘The Pacific Labour Scheme: is it a flop?’ (online, 29 July 2019) <https://devpolicy.org/the-pacific-labour-scheme-is-it-a-flop-20190729/>.
[105] Ibid.
[106] Ibid.
[107] Australian government, ‘A brief introduction to Pacific labour mobility’ (online, last accessed 23 August 2020) <https://pacificlabourmobility.com.au/media/>.
[108] Ibid.
[109] Thea Philip (n 10) 661; Jane McAdam and Marc Limon (n 10) 13.
[110] Marc Limon, ‘Human Rights and Climate Change: Constructing a Case for Political Action’ (2009) 33 Harvard Environmental Law Review 439, 476.
[111] The State of the Netherlands (Ministry of Economic Affairs and Climate Policy) v Urgenda [2019] ECLI:NL:HR:2019:2007 (‘Urgenda’).
[112] Ibid [5.2.1]–[5.5.3].
[113] For Australian cases, see e.g 1004726 [2010] RRTA 845 (30 September 2010); 0907346 [2009] RRTA 1168 (10 December 2009); N00/34089 [2000] RRTA 1052 (17 November 2000); N95/09386 [1996] RRTA 3191 (7 November 1996); N99/30231 [2000] RRTA 17 (10 January 2000). For New Zealand cases, see e.g AF (Tuvalu) [2015] NZIPT 800859 (20 October 2015); AC (Tuvalu) [2014] NZIPT 800517-520 (4 June 2017); Teitiota v Chief Executive of the Ministry of Business, Innovation and Employment [2014] NZCA 173; [2014] NZAR 688; Refugee Appeal No 72185/2000 [2000] RSAA (10 August 2000).
[114] AF (Kiribati) [2013] NZIPT 800413 (25 June 2013).
[115] AF (Kiribati) [2013] NZIPT 800413 (25 June 2013) [2], [39].
[116] AF (Kiribati) [2013] NZIPT 800413 (25 June 2013) [75]–[97].
[117] Teitiota v Chief Executive of the Ministry of Business, Innovation and Employment [2013] NZHC 3125 (26 November 2013) [51]; Teitiota v Chief Executive of the Ministry of Business, Innovation and Employment [2014] NZCA 173 (8 May 2014).
[118] Teitiota v Chief Executive of the Ministry of Business, Innovation and Employment [2015] NZSC 107 (20 July 2015.
[119] Teitiota v Chief Executive of the Ministry of Business, Innovation and Employment [2015] NZSC 107 (20 July 2015 [13]; AF (Kiribati) [2013] NZIPT 800413 (25 June 2013) [55]–[59] and [64]–[65]; Teitiota v Chief Executive of the Ministry of Business, Innovation and Employment [2013] NZHC 3125 (26 November 2013) [27].
[120] Ioane Teitiota v New Zealand (UNHRC, CCPR/C/127/D/2728/2016, 7 January 2020) [1.1] and [3].
[121] Ibid [9.3].
[122] Ibid [9.9].
[123] Ibid [9.3], [9.7], [9.9].
[124] Ibid [9.3].
[125] Ibid [9.11]–[9.12].
[126] ClientEarth, ‘Torres Strait Islanders win key ask after climate complaint’ (online, 19 February 2020) <https://www.clientearth.org/torres-strait-islanders-win-key-ask-after-climate-complaint/>.
[127] Katharine Murphy, ‘Torres Strait Islanders take climate change complaint to the United Nations’ (online, 13 May 2019) <https://www.theguardian.com/australia-news/2019/may/13/torres-strait-islanders-take-climate-change-complaint-to-the-united-nations>.
[128] International Covenant on Civil and Political Rights, opened for signature 19 December 1966), 999 UNTS 171 (entered into force 23 March 1976) (‘ICCPR’) arts 6, 17 and 27.
[129] Ibid.
[130] ClientEarth, ‘Torres Strait Islanders win key ask after climate complaint’ (online, 19 February 2020) <https://www.clientearth.org/torres-strait-islanders-win-key-ask-after-climate-complaint/>.
[131] Katharine Murphy, ‘Australia asks UN to dismiss Torres Strait Islanders' claim climate change affects their human rights’ (online, 14 August 2020) < https://www.theguardian.com/australia-news/2020/aug/14/australia-asks-un-to-dismiss-torres-strait-islanders-claim-climate-change-affects-their-human-rights#:~:text=The%20Morrison%20government%20has%20asked,to%20lawyers%20for%20the%20complainants>; ClientEarth, ‘Australian Government denies responsibility for climate-threatened Torres Strait’ (online, 14 August 2020) < https://www.clientearth.org/australian-government-denies-responsibility-for-torres-strait-damage/>.
[132] Camille Malafosse and Domenico Zipoli, ‘“Climate refugees”: an historic decision of the UN Human Rights Committee?’ (online, 12 February 2020) <https://www.kaldorcentre.unsw.edu.au/news/%E2%80%9Cclimate-refugees%E2%80%9D-historic-decision-un-human-rights-committee>.
[133] Jon Barnett and Michael Webber, “Migration as Adaptation: Opportunities and Limits” in Jane McAdam (ed) Climate Change and Displacement: Multidisciplinary Perspectives (Hart Publishing, Oxford, 2012) 37.
[134] For example, Australia’s Temporary Work (Skilled) vasa (subclass 457).
[135] Pacific Islands Forum, Forum Communiqué, PIF(19)14, 50th Pacific Islands Forum, 13–16 August 2019 [16].
[136] Prianka Srinivasan, ‘Vanuatu meeting with lawyers in New York to help mount climate change case’ (online, 23 September 2019) <https://www.abc.net.au/radio-australia/programs/pacificbeat/vanuatu-government-assembling-climate-change-litigation-team/11537266>.
[137] Tim Stephens, ‘See you in court? A rising tide of international climate litigation’ (online, 30 October 2019) <https://www.lowyinstitute.org/the-interpreter/see-you-court-rising-tide-international-climate-litigation; Pacific Islands Students Fighting Climate Change, ‘What is this campaign about?’ (online) <https://www.pacificclimateresistance.org/home-top>.
[138] Amy Louise Constable (n 8) 1029.
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