Non-refoulement: A Human Rights Perspective on Environmental Migration from Small Island Developing States

Introduction

Environmental degradation and natural disasters are among the most significant contemporary drivers of global movement.^[1] It is estimated that environmental disasters internally displaced 228 million people between 2008 and 2016 and 24.9 million people in 2019 alone. Small Island Developing States (SIDS) are particularly vulnerable to these adverse impacts of climate change.^[2] Environmental disasters in the Pacific region displaced 320,000 people between 2008 and 2017, and rising sea levels have completely submerged some islands, affecting potable water supplies and forcing entire villages to relocate to higher ground.^[3] The International Organization for Migration (IOM) estimates that three million residents of low-lying coastal areas are at further risk of displacement.^[4]

The number of environmental migrants crossing international borders is likely to continue to grow as environmental conditions deteriorate and domestic pressures on population, economy, and ecology hamper internal migration.^[5] Despite these dire and sometimes life-threatening conditions, persons fleeing the adverse effects of climate change are not yet afforded automatic legal protection under international law.

However, recent jurisprudence and academic developments have established that severe environmental conditions can amount to a violation of one’s right to life. In such cases, the principle of non-refoulement may offer a pathway of protection for environmental migrants under the human rights law framework.^[6] Thus, the increasingly severe environmental conditions in SIDS might trigger non-refoulement obligations in future migration cases.

Refugees or Migrants?

The IOM defines environmental migrants as:

Persons or groups of persons who, predominantly for reasons of sudden or progressive changes in the environment that adversely affect their lives or living conditions, are obliged to leave their homes, or choose to do so, either temporarily or permanently, and who move either within their country or abroad.^[7]

While some may erroneously use the phrase “climate refugees” to describe persons fleeing the effects of climate change, these persons on the move are considered “environmental migrants.” Under international law, persons crossing international borders fleeing environmental degradation generally do not qualify as refugees, as they do not meet the persecution criteria in the definition of “refugee” under the 1951 Refugee Convention.^[8]

Importantly, as laid out in legal considerations by the United Nations High Commissioner for Refugees regarding claims for protection in the context of climate change and disasters, the 1951 Convention may come into effect in cases where there exists a well-founded fear of persecution. An example is if a state prioritizes protecting specific populations from the effects of climate change while discriminately denying protection to other particular groups.^[9]

If there is no evidence of persecution and persons are unable to qualify for protection under refugee law, environmental migrants must turn to other legal frameworks to seek protection. Non-refoulement, a principle under both international human rights law and refugee law, is one such potential pathway.^[10]

Non-refoulement as a Pathway for Legal Protection

The principle of non-refoulement is now considered customary international law. Under the 1951 Refugee Convention, states receiving refugees are prohibited from returning them to a territory where their life or freedom may be unlawfully threatened.^[11] Non-refoulement has an expanded scope under international human rights law, providing protection to persons on the move beyond only those who fall under the definition of refugee. Under international human rights law, non-refoulement also covers any persons who, upon return or deportation, may face irreparable harm, such as torture or violations of their right to life.^[12]

Teitiota v. New Zealand, the first climate change-induced environmental migration case brought to the Human Rights Committee, offers valuable insights into the standards that must be met for non-refoulement obligations to be triggered under international human rights law.

The Teitiota v. New Zealand Case

Ioane Teitiota, a Kiribati national, moved to New Zealand in 2007. When Teitiota’s visa expired in 2011, he applied for refugee status in New Zealand, claiming that environmental conditions in Kiribati posed a threat to his right to life. New Zealand’s Immigration and Protection Tribunal denied the refugee claim in 2013, noting that he did not meet the definition of refugee.^[13]

Teitiota appealed the Tribunal’s decision to the Supreme Court, and after exhausting all domestic remedies, he brought his case to the Human Rights Committee, the UN body that adjudicates on alleged violations of the International Covenant on Civil and Political Rights. Teitiota asserted that by returning him to Kiribati, New Zealand violated his right to life, which implies that New Zealand violated the principle of non-refoulement.^[14]

In its deliberations, the Human Rights Committee cited ICCPR General Comment no. 36, noting that non-refoulement cases require substantial grounds to establish that: 1) A real risk of irreparable harm exists; 2) The risk faced is personal and cannot derive merely from the general conditions; Except in 3) the most extreme cases.^[15]

The Committee decided that, while grim, the environmental conditions in Kiribati did not pose a personal risk to Teitiota’s life and agreed with the Tribunal in that “the risk remained firmly in the realm of conjecture or surmise.”^[16] The Committee determined that: 1) Kiribati upheld its positive obligations under the right to life, as it implemented adequate programmatic interventions; 2) Teitiota and his family were not at imminent risk of violence caused by land disputes; 3) Kiribati still had 10 to 15 years before the country would be rendered uninhabitable; 4) Teitiota could sufficiently find potable water and grow crops; and 5) Teitiota did not face a personal risk of harm, as his situation, including limited access to water, was not materially different from those of other residents of Kiribati.^[17]

The factors considered by the Committee are stepping stones for future cases of a similar nature, especially as climate-induced environmental degradation continues. To justify non-refoulement, the evidence must sufficiently prove a severe violation of human rights.^[18]

Non-Refoulement: The Standards of Proof

1. A State’s Positive Obligation to Protect

The Human Rights Committee’s decision in Teitiota v. New Zealand gained worldwide attention because it marked the first time an international human rights body recognized, in the context of non-refoulement and migration, the link between severe climate change-induced environmental conditions and the potential violation of the right to life.^[19]

To protect the right to life, states have a duty to take appropriate measures to address the general conditions in society that may give rise to direct threats to life.^[20] Human rights jurisprudence has reinforced states’ positive obligation to protect citizens from environmental harms, determining that a positive obligation can entail enacting appropriate legislation to reduce potential harms from environmental disasters or degradation and implementing early warning mechanisms, adaptation frameworks, or risk mitigation efforts.^[21]

In Teitiota v. New Zealand, the Committee concluded that the Government of Kiribati’s National Adaptation Programme of Action, which aimed to improve water supply management, implement coastal management protections, and introduce population settlement planning, was evidence enough that the State had not failed its obligations and did not violate Teitiota’s right to life.^[22]

The Committee acknowledged, however, that without “robust national and international efforts,” the environmental conditions in Kiribati could foreseeably violate one day the right to life and trigger non-refoulement obligations. The Committee concluded that given Kiribati’s existing interventions, and the 10 to 15-year window to introduce further interventions, current conditions in Kiribati did not yet trigger such obligations.^[23]

2. Existence of Exceptional Circumstances

In non-refoulement cases involving climate change-induced environmental degradation, it is far more difficult to establish that the potential harm faced is “personal” compared to other non-refoulement contexts, as the effects of climate change are often widespread and indiscriminate.^[24]

However, the New Zealand Supreme Court and the Human Rights Committee have both established that the “personal risk” requirement is not necessary to trigger non-refoulement in extreme or exceptional circumstances.^[25] Jane McAdam, a legal scholar and expert in climate change and refugees, contextualizes this decision:

Just as in cases of generalized violence it is wrong in principle to limit the concept of ‘persecution’ to measures immediately identifiable as direct and individual… the relevant question [in the cases of the indiscriminate impacts of climate change] is whether the applicant faces a real risk of serious harm if removed, not whether the applicant is at greater risk than others.^[26]

In the 2014 deportation case involving migrants from Tuvalu, AD (Tuvalu), New Zealand’s Immigration Tribunal considered conditions— both environmental and personal—and found that the conditions met the qualification of “exceptional circumstances” when weighed cumulatively.^[27] While the Tribunal found it unnecessary to assess whether environmental conditions alone met the “exceptional circumstances” test, it noted that the primary issue for determination was whether the factors, alone or in combination, pass this test.^[28]

In many environmental migration cases, a single condition may not be sufficient to demonstrate a real risk of irreparable harm. However, when considered in combination, additional life-threatening environmental conditions present an extreme situation that is more likely to result in loss of life.^[29] In fact, as McAdam articulates, considering factors cumulatively is a common assessment used in refugee law, where “a person may have a wellfounded fear of being persecuted on account of one very serious risk, or on the basis of multiple, less severe risks that, when assessed cumulatively, amount to persecution.”^[30]

In Kiribati, a lack of clean water sources, rising sea levels, increased flooding, and the inability to practice subsistence farming are reasons why Committee member Duncan Laki Muhumuza wrote in his dissenting opinion: “New Zealand’s action is more like forcing a drowning person back into a sinking vessel, with the ‘justification’ that after all there are other voyagers on board.”^[31]

Considering the dire situation that SIDS face, these conditions, cumulatively or in combination, could qualify as “extreme” or “exceptional” circumstances, which could provide a basis for non-refoulement protection without needing to meet an unreasonably high personal risk test.

3. Evaluating Risk of Potential Harm

Climate change poses another unique challenge to states and decisionmakers with regard to non-refoulement: determining the point at which prevailing environmental conditions in the country of origin constitute a threat to a person’s right to life. Small Island Developing States specifically face the threat of rising sea levels, increasingly destructive storms, and other sudden and slow-onset environmental risks, such as salinization and conflict over scarce resources. But at what point do these conditions pose a risk to the right to life?

As seen in Teitiota v. New Zealand, non-refoulement cases rest on the question of whether the petitioner “has substantiated the claim that he faced upon deportation a real risk of irreparable harm to his right to life.”^[32] In this case, the Committee concluded that Teitiota did not face a real, personal, and reasonably foreseeable risk of a threat to his right to life.^[33] At the same time, the Committee also determined that environmental degradation on Kiribati might make the island nation uninhabitable within 10 to 15 years of the decision, at which point the conditions would in fact constitute a threat to the right to life.

Determining the point at which environmental degradation due to climate change poses a threat to the right to life requires robust inquiry into current and planned mitigation efforts, as well as the projected future threats of climate change. These two interacting factors make it difficult to establish what McAdam terms a distinct “tipping point” that marks where general environmental conditions constitute such a threat.^[34]

In its decision, the Committee found that the timeframe of 10-15 years left room for interventions, such as mitigation and adaptation frameworks that might enhance Kiribati’s climate resiliency and address the effects of climate change.^[35] Yet, in her dissenting opinion, committee member Vasilka Sancin raised the point that Kiribati’s planned mitigation measures were years behind schedule.^[36] This challenges the Committee’s assessment that Kiribati’s adaptation plan prevented Teitiota from claiming the dangers of climate change as guaranteed.

When seeking to understand how to incorporate slow-onset effects of climate change into their non-refoulement considerations, judicial bodies should not simply examine when harm may arise. Determining the likelihood of harm is a more appropriate test. McAdam notes that “neither refugee nor human rights law requires individuals to show they face an imminent risk of harm if removed,” as imminence is relevant for procedural questions such as determining a complainant’s admissibility, not substantive questions such as whether or not removal is permissible.^[38]

Anderson et al. further note that “the substantive question turns on the likelihood of harm resulting from such removal, and arguably not on precisely how soon after removal it may manifest.”^[38] They suggest that a test analogous to the “well-founded fear” standard in refugee law, which requires “substantial grounds for believing that there is a real risk of irreparable harm,”^[39] “may have a greater capacity and openness to accommodate longer range harm” than other tests, including those with a temporal element.^[40]

In his dissent to Teitiota v. New Zealand, Muhumuza suggests that the deteriorating conditions already posed a significantly grave and foreseeable risk to the life of the people of Kiribati.^[41] Listing the environmental conditions together, Muhumuza demonstrates that their combined severity indeed creates conditions so perilous that life would be jeopardized and recalls that such an unreasonably high burden of proof is unnecessary, as threats to the right to life need not result in death.^[42] Establishing a high threshold to determine whether a threat to the right to life exists implies allowing an “acceptable” level of death or irreparable harm. That any person should suffer or die to prove the threat Kiribati’s environmental conditions pose is antithetical to the right to life and non-refoulement.

The Best Interests of the Child

The Convention on the Rights of the Child (CRC)—the most widely-ratified international human rights treaty—enshrines the principle of the “best interests of the child.”^[43] Simply put, this principle obligates states to set the well-being of the child as a primary consideration in decisions or actions that concern children.^[44]

Teitiota v. New Zealand reveals a missed opportunity to reference and protect the rights of the child in an environmental context. AD (Tuvalu), however, demonstrates how using the principle of “the best interests of the child” can meet, and may even lower the threshold for meeting, the necessary standards of proof to trigger non-refoulement.

For future environmental cases involving migrant children and non-refoulement, McAdam points to the decision of the Scottish Inner House, where the court stated: “Best interests [of the child] are not merely relevant. They are given a hierarchical importance… they are not just something to be taken into account but something to be afforded a grander status….”^[45]

a) A State’s Positive Obligation to Protect the Child

The CRC sets out positive obligations for state parties to fulfill the rights set out in the convention. Article 6 establishes that states have an obligation to ensure the survival, growth, and development of the child.^[46] Article 24 articulates the right of the child to enjoy the highest attainable standard of health and that states have the obligation to implement appropriate measures in this regard.^[47]

The CRC Committee has elaborated that under the CRC, states are required to adopt appropriate legislative measures, including services, programs, infrastructure, and informed interventions to realize children’s right to health.^[48] The Committee further draws the connection between children and the environment, clarifying that in addition to addressing pollution, environmental interventions should have children’s health concerns at the center of climate change adaptation and mitigation strategies.^[49]

As Sancin noted in her dissent to Teitiota v. New Zealand, the mere existence of mitigation plans does not guarantee their timely completion.^[50] To adequately judge whether such efforts diminish risk of harm, decisionmaking bodies of the deporting state are required to assess the progress and implementation of such plans in the country of origin. General Comment no 6. articulates that the best interests of the child must be applied concerning non-refoulement, where a child’s return would result in the violation of their fundamental human rights, including if there is a risk of insufficient provision of food or health services.

Critically, General Comment no 6. declares that this applies irrespective of whether serious violations originate from state action or inaction or are the indirect consequence of action or inaction.^[51] Thus, conducting thorough and informed assessments of the context to which persons may be returned is even more pertinent when it pertains to children and is part of the duties of states vis-à-vis their non-refoulement obligations.

b) The Rights of the Child and Exceptional Circumstances

In non-refoulement cases, determinations on the best interests of the child are not based on single, overriding factors but rather involve taking into account multiple elements. This can include the child’s own views, the child’s health, exposure to vulnerability, and the issue of maintaining family unity. Then, relevance and weight are accorded to each element.^[52]

The UNHCR’s best interests procedure guidelines set evaluation criteria for determining whether a child’s risk requires best interests considerations. It notes that both vulnerabilities and risks must be evaluated. Vulnerability is defined as factors that increase the susceptibility to difficulties and hazards that put children at risk of suffering and death, and risk is defined as the likelihood that a hazard will happen.^[53] When applied to refugee children in a persecutory context, these criteria are measurements of outcomes that could be reproduced by environmental degradation and displacement thereof.

In AD (Tuvalu), the New Zealand Immigration and Protection Tribunal considered the impact of removing the family, including the children, from their relatives in New Zealand, a right articulated in Article 9 of the CRC. The Tribunal stated, “the best interests of the children clearly are to remain living with their parents in New Zealand as part of an extended family group”^[54] and further noted that their young age made them especially vulnerable and at-risk to the environmental conditions in Tuvalu.^[55]

The Tribunal assessed its decision around the harm that removal would create for the petitioner’s children, noting that deporting the petitioners from New Zealand and separating them from their family would meet the “exceptional circumstances” test, rendering deportation unduly harsh.^[56] In future non-refoulement cases involving environmental migrant children, the best interests of the child will likely be weighed based on the risks and vulnerabilities that environmental conditions create for the children.

c) Risk of Potential Harm and the Child

The CRC Committee has articulated that “states shall not reject a child at a border or return him or her to a country where there are substantial grounds for believing that he or she is at real risk of irreparable harm.”^[57] The threshold for determining irreparable harm and risk of harm is lower for children than it is for adults. For example, children require more food and water per unit of body weight than adults, which means that the lack of access to nutritious food and fresh water—an increasing reality in SIDS as agricultural and freshwater conditions deteriorate—pose more of a risk of irreparable harm to children, especially for their growth and development.^[58] Children are also more vulnerable to disease and health conditions, especially those exacerbated by environmental conditions. The aftermath of climate-related floods has also been seen to increase cholera and incidents of diarrhea, which can be deadly to children.^[59]

In Teitiota v. New Zealand, Ioane Teitiota brought evidence that his child suffered a serious case of blood poisoning. Teitiota also cited stories of children in Kiribati dying from diarrhea caused by poor quality drinking water.^[60] However, the Human Rights Committee focused on the question of whether New Zealand violated Teitiota’s rights alone. Limited by this question, the Committee did not include “best interests of the child” considerations in its decision.

Nevertheless, dissenting Committee members recorded in their opinions the potential effects of environmental conditions on Teitiota’s children. Muhumuza argues that the fact that one of Teitiota’s children had already suffered severe health problems due to the environmental conditions in Kiribati should have been sufficient evidence to meet the threshold of harms faced.^[61] Sancin mentions Teitiota’s children in reference to the family’s access to safe drinking water.^[62]

Those dissenting opinions point to the children’s rights as a significant reason to allow Teitiota and his family to remain in New Zealand, suggesting that if Teitiota’s petition had included the rights of his children, the courts may have ruled more favorably for the entire Teitiota family. There is also evidence to support protecting children from prospective harms in the more distant future. The UNHCR has published guidelines on the importance of assessing consequences for children both “now and in the future.”^[63] An Australian Tribunal also accepted that the “reasonably foreseeable future” included up to 10 years in the future for children in a case regarding corporal punishment.^[64] These developments are critical for future cases of a similar nature: future non-refoulement petitions that include children in the environmental context may not need to meet such a high burden of proof to trigger a state’s non-refoulement obligations.

Moving Forward

The precedents in the above cases involving SIDS offer a path forward. Environmental conditions, alone or in combination, can meet the requisite standards to trigger a state’s non-refoulement obligations vis-à-vis providing protection for environmental migrants.

To meet these standards, a variety of criteria must be assessed, including the state’s mitigation measures, the real risk of potential harm, and the best interests of the child. Of particular importance is weighing the effectiveness of a state’s intervening measures in mitigating foreseeable risks and impacts of climate change-induced environmental degradation.

While it is difficult to determine how the effects of climate change meet the personal risk test, conditions can instead be considered cumulatively, or in combination, to meet the “extreme or exceptional circumstances” test. The Human Rights Committee has reaffirmed states’ continuing responsibility to take into account the effects of climate change and rising sea levels when deliberating on future removal cases involving SIDS.^[65] Thus, with a forward-looking and science-based approach, human rights law and the principle of non-refoulement can be used in the short-term to fill the current protection gap that exists for environmental migrants and their rights and exists to an even greater extent for migrant children.

However, non-refoulement is a short-term solution that can only be applied on a case-by-case basis. While non-refoulement has been the focus of this analysis, it is neither the only nor the preferred solution for environmental migrants seeking protection.^[66] Indeed, states must pursue adaptation and mitigation as a primary policy consideration, as sufficiently resilient states are likely to decrease environmental migration. Long-term, sustainable protection frameworks such as the 1998 UN Guiding Principles on Internal Displacement; the 2018 Global Compact for Safe, Orderly and Regular Migration; and the recent 2021 Glasgow Climate Pact must be immediately adopted and implemented to prevent risk of displacement in the first place and protect environmental migrants when migration is necessary.^[67] This is not an effort that can be achieved solely by Small Island Developing States: it hinges on commitments by states through regional and international multilateralism.

^[1] Internal Displacement Monitoring Centre, Global Report on Internal Displacement, 2017, https://www. internal-displacement.org/global-report/grid2017/.

^[2] UNICEF, Climate Mobility and Children: A Virtual Symposium, June 25, 2021, https://www.unicef. org/globalinsight/media/1926/file/Summary%20Report:%20Climate%20Mobility%20and%20Children.pdf; UNFCCC, “Climate Change, Small Island Developing States” (Bonn, Germany: Climate Change Secretariat, 2005), https://unfccc.int/resource/docs/publications/cc_sids.pdf.

^[3] International Organization for Migration (IOM), “Climate Change and Migration in Vulnerable Countries” (Geneva, Switzerland: International Organization for Migration, 2019), 25, https://publications.iom.int/system/files/pdf/climate_change_and_migration_in_vulnerable_countries.pdf.

^[4] “Five Pacific Islands Lost to Rising Seas as Climate Change Hits,” The Guardian, May 10, 2016, https://www.theguardian.com/environment/2016/may/10/five-pacific-islands-lost-rising-seas-climatechange; International Organization for Migration (IOM), “Climate Change and Migration in Vulnerable Countries” (Geneva, Switzerland: International Organization for Migration, 2019), 25, https://publications.iom.int/system/files/pdf/climate_change_and_migration_in_vulnerable_countries.pdf.

^[5] United Nations High Commissioner for Refugees (UNHCR), “Legal considerations regarding claims for international protection made in the context of the adverse effects of climate change and disasters,” October 1, 2020, https://www.refworld.org/docid/5f75f2734.html.

^[6] Ioane Teitiota v. The Chief Executive of the Ministry of Business, Innovation and Employment, [2015] NZSC 107, New Zealand: Supreme Court, July 20, 2015, https://www.refworld.org/cases,NZL_SC,55c8675d4.html; Ioane Teitiota v. New Zealand (advance unedited version), CCPR/C/127/D/2728/2016, United Nations Human Rights Committee, January 7, 2020, https://www.refworld.org/cases,HRC,5e26f7134.html.

^[7] International Organization for Migration (IOM), “Migration, Environment and Climate Change: Evidence for Policy (MECLEP)” (Geneva, Switzerland: International Organization for Migration, 2014), 13, https://publications.iom.int/system/files/pdf/meclep_glossary_en.pdf?language=en.

^[8] United Nations High Commissioner for Refugees (UNHCR), “Session 3 Manual Annex 2,” UNHCR Protection Training Manual for European Border and Entry Officials (Brussels: UNHCR Bureau for Europe, 2011), https://www.unhcr.org/4d944d089.pdf, which defines refugee as persons who have crossed an international border and who, owing to a well-founded fear of persecution for reasons of race, religion, nationality, political opinion or membership of a particular social group, are unable or unwilling to return to their habitual residence; United Nations High Commissioner for Refugees (UNHCR), “Legal considerations regarding claims for international protection made in the context of the adverse effects of climate change and disasters,” October 1, 2020, https://www.refworld.org/docid/5f75f2734.html.

^[9] United Nations High Commissioner for Refugees (UNHCR), “Legal considerations regarding claims for international protection made in the context of the adverse effects of climate change and disasters,” October 1, 2020, https://www.refworld.org/docid/5f75f2734.html.

^[10] Other pathways include through special humanitarian visas, temporary stay arrangements, free movement arrangements, or through domestic or regional frameworks, such as the Kampala Convention, the Cartagena Declaration, etc.

^[11] United Nations High Commissioner for Refugees (UNHCR), “Advisory Opinion on the Extraterritorial Application of Non-Refoulement Obligations under the 1951 Convention relating to the Status of Refugees and its 1967 Protocol” (Geneva, Switzerland: UNHCR, January 26, 2007), 2, https://www.unhcr.org/4d9486929.pdf.

^[12] Office of the United Nations High Commissioner for Human Rights, “The Principle of Non-Refoulement under International Human Rights Law” (Geneva, Switzerland: OHCHR), accessed February 2, 2022, https://www.ohchr.org/Documents/Issues/Migration/GlobalCompactMigration/ThePrincipleNon-RefoulementUnderInternationalHumanRightsLaw.pdf; UN General Assembly, Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, December 10, 1984, United Nations, Treaty Series, vol. 1465, p. 85, article 3, https://www.refworld.org/docid/3ae6b3a94.html.

^[13] Kenneth Weiss, “The Making of a Climate Refugee,” Foreign Policy, January 28, 2015, https://foreignpolicy.com/2015/01/28/the-making-of-a-climate-refugee-kiribati-tarawa-teitiota/https://foreignpolicy. com/2015/01/28/the-making-of-a-climate-refugee-kiribati-tarawa-teitiota/.

^[14] Ioane Teitiota v. New Zealand (advance unedited version), CCPR/C/127/D/2728/2016, UN Human Rights Committee (HRC), January 7, 2020, https://www.refworld.org/cases,HRC,5e26f7134.html.

^[15] UN Human Rights Committee (HRC), General comment no. 36, Article 6 (Right to Life), September 3, 2019, CCPR/C/GC/35, para. 30, https://www.refworld.org/docid/5e5e75e04.html; Ioane Teitiota v. New Zealand, para. 9.6.

^[16] Ioane Teitiota v. New Zealand, para. 4.6.

^[17] Ioane Teitiota v. New Zealand, para. 9.6.

^[18] UN Human Rights Committee (HRC), General comment no. 36, Article 6 (Right to Life), September 3, 2019, CCPR/C/GC/35, para. 31, https://www.refworld.org/docid/5e5e75e04.html.

^[19] “UN landmark case for people displaced by climate change,” Amnesty International, January 20, 2020. https://www.amnesty.org/en/latest/news/2020/01/un-landmark-case-for-people-displaced-byclimate-change/.

^[20] UN Human Rights Committee (HRC), General comment no. 36, Article 6 (Right to Life), September 3, 2019, CCPR/C/GC/35, para. 26, https://www.refworld.org/docid/5e5e75e04.html.

^[21] CASE OF B.U. AND OTHERS v. RUSSIA, (nos. 59609/17, 74677/17 and 76379/17), ECLI:CE: ECHR:2019:0122JUD005960917, Council of Europe: European Court of Human Rights, January 22, 2019, https://www.refworld.org/cases,ECHR,5c615b5a4.html; Oneryildiz v. Turkey, 48939/99, Council of Europe: European Court of Human Rights, June 18, 2002, https://www.refworld.org/cases,ECHR,3f2650b54. html.

^[22] Environment and Conservation Division of the Republic of Kiribati, National Adaptation Program of Action § (2007), https://unfccc.int/resource/docs/napa/kir01.pdf; Ioane Teitiota v. New Zealand, para. 9.12.

^[23] Ioane Teitiota v. New Zealand, paras. 9.11, 9.10.

^[24] Jane McAdam, Climate Change, Forced Migration, and International Law (Oxford: Oxford University Press, 2012, 44). Although, environmental conditions or related discriminatory government policies that target or disproportionately affect marginalized groups or individuals could feasibly meet the “personal risk” threshold in very specific circumstances.

^[25] Ioane Teitiota v. New Zealand, paras. 2.10, 9.11.

^[26] Jane McAdam, “Climate Change Displacement and International Law: Complementary Protection Standards,” Legal and Protection Policy Research Series, UNHCR (May 2011): 53, https://www.unhcr.org/ protection/globalconsult/4dff16e99/19-climate-change-displacement-international-law-complementaryprotection.html.

^[27] AD (Tuvalu), [2014] NZIPT 501370-371, New Zealand: Immigration and Protection Tribunal, June 4, 2014, para. 30, https://www.refworld.org/cases,NZ_IPT,585152d14.html.

^[28] AD (Tuvalu), para. 2.

^[29] Jane McAdam, “Protecting People Displaced by the Impacts of Climate Change: The UN Human Rights Committee and the Principle of Non-Refoulement,” American Journal of International Law 114, no. 4 (October 2020): 714, https://doi.org/10.1017/ajil.2020.31.

^[30] McAdam, 714.

^[31] Ioane Teitiota v. New Zealand, Annex 2, para. 6.

^[32] Ioane Teitiota v. New Zealand, 8, para. 8.5.

^[33] Ioane Teitiota v. New Zealand, 11, para. 9.9.

^[34] Jane McAdam, “Protecting People Displaced by the Impacts of Climate Change: The UN Human Rights Committee and the Principle of Non-Refoulement,” American Journal of International Law 114, no. 4 (October 2020): 714, https://doi.org/10.1017/ajil.2020.31.

^[35] Ioane Teitiota v. New Zealand, 11-12, para. 9.12.

^[36] Ioane Teitiota v. New Zealand, Annex 1, para. 5.

^[37] Jane McAdam, “Protecting People Displaced by the Impacts of Climate Change: The UN Human Rights Committee and the Principle of Non-Refoulement,” American Journal of International Law 114, no. 4 (October 2020): 720, https://doi.org/10.1017/ajil.2020.31.

^[38] Adrienne Anderson et al., “Imminence in Refugee and Human Rights Law: A Misplaced Notion for International Protection,” ICLQ 68 (January 2019): 127, https://doi.org/10.1017/S0020589318000398.

^[39] Adrienne Anderson et al., “Imminence in Refugee and Human Rights Law: A Misplaced Notion for International Protection,” ICLQ 68 (January 2019): 138-9, https://doi.org/10.1017/ S0020589318000398.

^[40] Anderson et al, 138-9.

^[41] Ioane Teitiota v. New Zealand, Annex 2, para. 1.

^[42] Ioane Teitiota v. New Zealand, Annex 2, para. 5.

^[43] United Nations Convention on the Rights of the Child, article 3.

^[44] UN Committee on the Rights of the Child (CRC), General comment No. 14 (2013) on the right of the child to have his or her best interests taken as a primary consideration (art. 3, para. 1), CRC /C/GC/14, May 29, 2013, 10 (para. 36), https://www.refworld.org/docid/51a84b5e4.html.

^[45] Jane McAdam, “Climate Change Displacement and International Law: Complementary Protection Standards,” Legal and Protection Policy Research Series, UNHCR (May 2011): 53, https://www.unhcr.org/protection/globalconsult/4dff16e99/19-climate-change-displacement-international-law-complementaryprotection.html.

^[46] United Nations Convention on the Rights of the Child, article 6.

^[47] United Nations Convention on the Rights of the Child, article 24.

^[48] UN Committee on the Rights of the Child (CRC), General comment No. 15 (2013) on the right of the child to the enjoyment of the highest attainable standard of health (art. 24), CRC/C/GC/15, April 17, 2013, paras. 13 and 32, https://www.refworld.org/docid/51ef9e134.html.

^[49] UN Committee on the Rights of the Child (CRC), General comment No. 15 (2013) on the right of the child to the enjoyment of the highest attainable standard of health (art. 24), CRC/C/GC/15, April 17 2013, para, 50: 12, https://www.refworld.org/docid/51ef9e134.html.

^[50] Ioane Teitiota v. New Zealand, Annex 1, para. 5.

^[51] UN Committee on the Rights of the Child (CRC), General comment No. 6 (2005): Treatment of Unaccompanied and Separated Children Outside their Country of Origin, CRC/GC/2005/6, September 1, 2005, para. 27, https://www.refworld.org/docid/42dd174b4.html.

^[52] Frances Nicholson, “The “Essential Right” to Family Unity of Refugees and Others in Need of International Protection in the Context of Family Reunification,” Legal and Protection Policy Research Series, UNHCR (January 2018): 187, https://www.unhcr.org/5a8c413a7.pdf.

^[53] United Nations High Commissioner for Refugees (UNHCR), “2021 UNHCR Best Interests Procedure Guidelines: Assessing and Determining the Best Interests of the Child” (Geneva, Switzerland: UNHCR, 2021), 71, https://www.refworld.org/pdfid/5c18d7254.pdf.

^[54] AD (Tuvalu), para. 26.

^[55] AD (Tuvalu), para. 25.

^[56] AD (Tuvalu), para. 30.

^[57] UN Committee on the Protection of the Rights of All Migrant Workers and Members of Their Families (CMW), Joint general comment No. 3 (2017) of the Committee on the Protection of the Rights of All Migrant Workers and Members of Their Families and No. 22 (2017) of the Committee on the Rights of the Child on the general principles regarding the human rights of children in the context of international migration, CMW/C/ GC/3-CRC/C/GC/22, November 16, 2017, para. 46, https://www.refworld.org/docid/5a1293a24.html.

^[58] UNICEF Office of Global Insight and Policy, “A Guide for Action: Are Climate Change Policies ChildSensitive?”, UNICEF, May 2020, 9, https://www.unicef.org/globalinsight/media/976/file/%20GlobalInsight-Are-climate-policies-child-sensitive-2020.pdf.

^[59] United Nations Human Rights Council (UNHRC), Annual report of the United Nations High Commissioner for Human Rights and reports of the Office of the High Commissioner and the Secretary-General: “Analytical study on the relationship between climate change and the full and effective enjoyment of the rights of the child,” May 4, 2017, 5 (para. 16), https://undocs.org/en/A/HRC/35/13.

^[60] Ioane Teitiota v. New Zealand, 7, para. 5 and 3, para. 2.6.

^[61] Ioane Teitiota v. New Zealand, Annex 2, para. 5.

^[62] Ioane Teitiota v. New Zealand, Annex 1, para. 3.

^[63] Adrienne Anderson et al., “A Well-Founded Fear of Being Persecuted ... But When?” Sydney Law Review 42, no. 2 (2020): 155+, https://link.gale.com/apps/doc/A636312519/AONE?u=nysl_oweb&sid=google Scholar&xid=77608cb4; United Nations High Commissioner for Refugees (UNHCR), “Guidelines on International Protection: Child Asylum Claims under Article 1(A)2 and 1(F) of the 1951 Convention and/or 1967 Protocol relating to the Status of Refugees,” UN Doc HCR/GIP/09/08, December 22, 2009, 15, https://www.unhcr.org/en-us/publications/legal/50ae46309/guidelines-international-protection-8-child-asylum-claims-under-articles.html.

^[64] Adrienne Anderson et al., “A Well-Founded Fear of Being Persecuted ... But When?” Sydney Law Review 42, no. 2 (2020): 155+, https://link.gale.com/apps/doc/A636312519/AONE?u=nysl_oweb&sid=googl eScholar&xid=77608cb4.

^[65] Ioane Teitiota v. New Zealand, 12, para. 9.14.

^[66] Carol Farbotko, “Voluntary Immobility: indigenous voices in the Pacific,” Forced Migration Review 57 (February 2018): 81, https://www.fmreview.org/sites/fmr/files/FMRdownloads/en/syria2018/farbotko.pdf.

^[67] United Nations High Commissioner for Refugees (UNHCR), “Guiding Principles on Internal Displacement,” ADM 1.1,PRL 12.1, PR00/98/109, July 22, 1998, https://www.refworld.org/ docid/3c3da07f7.html; Global Compact for Safe, Orderly and Regular Migration, https://refugeesmigrants.un.org/sites/default/files/180713_agreed_outcome_global_compact_for_migration.pdf; UNFCCC, “Report of the Conference of the Parties serving as the meeting of the Parties to the Paris Agreement on its third session, held in Glasgow from 31 October to 13 November 2021,” December 22, 2009, https://www.unhcr.org/en-us/publications/legal/50ae46309/guidelines-https://unfccc.int/sites/default/ files/resource/cma2021_10_add1_adv.pdf-protection-8-child-asylum-claims-under-articles.html.