Thread by @JohnHKnox

This decision by the Human Rights Committee is important, but the attention-grabbing headline may seem to overstate, and thus obscure, its real significance. So here’s a (lengthy) thread that explains the decision in more detail. 1/20

cnn.com/2020/01/20/wor…

For what it’s worth, the BBC article on the same case describes it more accurately. 2/
bbc.com/news/world-asi…

Some background: the Human Rights Committee is a body of independent experts mandated to oversee compliance with the Int’l Covenant on Civil and Political Rights (ICCPR), which has 170+ parties, including the US. 3/20

One of its tasks is to consider complaints from individuals alleging violations of the Covenant. The complaints can only be brought against countries that accept the Committee’s jurisdiction over them; 116 countries (but not the US) have done so. 4/20

The CNN article misunderstands the decision in a couple of ways. First, the Committee didn’t talk about “climate refugees.” There’s a good reason for that: the narrow definition of "refugee” in international law would almost never include those fleeing climate effects. 5/20

The 1951 Refugee Convention defines “refugee” as someone who is unable or unwilling to return to their country because of a “well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion.” 6/20

However, even those who aren’t “refugees” have the right under the ICCPR not to be returned to a country if doing so would cause a risk of irreparable harm to their rights to life (art. 6) or to be free from torture or cruel, inhuman, and degrading treatment (art. 7) 7/20

A second mistake: the Committee didn’t say that those “fleeing the effects of the climate crisis cannot be forced to return home by their adoptive countries.” In fact, it held that New Zealand could send someone back to Kiribati, a country already feeling those effects. 8/20

So what did the Committee actually say, and why is it important? Start with the complaint: in 2015, Ioane Teitiota, a national of Kiribati, filed a submission with the Committee arguing that NZ violated his right to life (ICCPR art. 6) by removing him from NZ to Kiribati. 9/20

The Committee accepted Teitiota’s claims that there are violent conflicts between claimants to land in Kiribati, freshwater has to be rationed, it’s difficult to grow crops, and most disturbing of all: sea level rise is likely to render Kiribati uninhabitable in 10-15 years. 10/

The Committee also recalled that it has already held that states’ obligation to respect and ensure the right to life extends to reasonably foreseeable threats, which may include environmental harm.

https://twitter.com/JohnHKnox/status/1162478492036063232

11/20

So why didn’t it decide for Teitiota? Because it has a very high standard: he had to show a risk of irreparable harm under arts. 6 or 7 that’s real, personal (not based on general conditions in the country unless those conditions are extreme), and reasonably foreseeable. 12/20

Moreover, it’s generally up to the state (here, NZ) to decide whether such a risk exists, unless it can be shown that its assessment was clearly arbitrary, a manifest error, or a denial of justice. Here, the Committee didn’t find enough evidence to overturn NZ’s decision. 13/20

So it seems likely that at the moment, as long as countries are careful to consider the consequences of returning people to countries suffering from climate change, the Committee is unlikely to find them in violation of the ICCPR. 14/20

However, it said this deference will change: “without robust national and international efforts, the effects of climate change in receiving states may expose individuals to a violation of their rights under articles 6 or 7,” such that other countries could not send them back. 15/

Moreover, although the Committee doesn’t say so explicitly, the threat of an entire country losing its land to rising sea levels would seem to be the kind of extreme event that would justify relaxing the requirement that the harm be felt individually, rather than by everyone. 16/

So the importance of the decision is not its immediate effect, which is likely to be minimal (as the CNN article notes in its last paragraph), but its longer-term consequences. If the crisis continues to worsen, a similar case in a few years may reach a very different result.17/

More generally, this decision is another sign that courts are increasingly willing to bring constitutional and human rights to bear on the climate crisis. 18/20

nytimes.com/2019/12/20/cli…

Unfortunately, this is a lesson that U.S. courts have yet to learn, as the dismissal of the Juliana case by the Ninth Circuit showed last week. 19/20

time.com/5767438/climat…

But the fight continues elsewhere: the HR Committee has another climate case involving residents of small islands in Oceania, who are seeking quite different relief from Australia. Their case is just one of many pending HR cases around the world. 20/20 nytimes.com/2019/05/12/wor…