Locals in Tebikenikora, a village in low-lying Kiribati. (Photo: Eskinder Debebe / UN Photo)

Ioane Teitiota could have been the world’s first official climate change refugee. The subsistence fisherman relocated from the low-lying Pacific island of Kiribati to New Zealand in 2007, purportedly to escape the effects of climate change, which will soon make his home uninhabitable. Seeing no legal basis to grant Teitiota refugee status in New Zealand, the judiciary rejected his petition for residency, and the country’s high court sent him back to Kiribati on September 23 of this year.

Australia and New Zealand are among the first countries to face petitions from so-called climate refugees because of their location in the Pacific. Small island nations like Kiribati and Tuvalu, where saltwater has infiltrated once-fertile soils and may soon submerge much of their landmass, are close neighbors to the Aussies and Kiwis. But climate change migrants won’t be landing only there. Soon they will drift across the globe, reaching American shores and courts – but no legal system is prepared to handle the inevitable wave.

The Migrants

Kiribati has no future. Saying so seems cruel and unfair, but the truth often is. The island’s highest point is less than 10 feet above the current sea level. It’s so low that the world’s tallest man could put his feet in the ocean and raise his hand higher than the island’s rocky apex. Many I-Kiribati live close to the breaking waves, at elevations that the sea will likely submerge by the end of this century.

Although the Atlantis scenario is the headline concern, the island will become uninhabitable long before that. Saltwater already infiltrates drinking water supplies, and drought is quickly becoming the norm. The lack of potable water leads to frequent and deadly outbreaks of diarrhea. Anyone who can raise their children elsewhere will. This sad reality, more than eventual submersion, makes the island’s slow evacuation a certainty.

The Law

But where will the I-Kiribati go? There is no such thing as a climate change refugee. The requirements for those seeking refugee status or asylum are fairly consistent from country to country, and the law is clear: Climate change migrants need not apply.

The 1951 Refugee Convention provides the basic international definition for that protected status. A refugee is a person who, “owing to a 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 to, or owing to such fear, is unwilling to avail himself of the protection of that country.” (Refugees are different from asylum seekers in that the former apply for entry to a country, while the latter have already entered and are asking for permission to stay. The legal standards are the same.)

Many humanitarians and legal scholars object to the definition of the 1951 convention. They say its categories of persecution are incomplete and have the effect of locking some of the world’s most indigent and at-risk people in their circumstances. Those who lose their homes in earthquakes, for example, and whose countries cannot help them rebuild are not refugees. People starving to death in abject poverty are usually not eligible to be refugees either, because so many of their countrymen tend to suffer the same way. Indeed, one of the tragic ironies of refugee law is that, as the number of people in trouble grows, the less likely any of them are to qualify for protection. The law is concerned only with persecuted minorities.

Which brings us back to climate change. Rising oceans are blind to the rigid categories of refugee law. When sea levels go up, people of all races and creeds are threatened.

The Decision

Ioane Teitiota, the fisherman from Kiribati, could not overcome this legal obstacle. His lawyers argued to the New Zealand High Court of Appeal that the people of Kiribati suffered a sort of global persecution. In short, the world’s major carbon emitters had singled out the low-lying people of Kiribati and Tuvalu for suffering through their complete lack of concern.

The court’s rejection was complete, bordering on nasty. “Traditionally a refugee is fleeing his own government or a non-state actor from whom the government is unwilling or unable to protect him,” the judges wrote. “Thus the claimant is seeking refuge within the very countries that are allegedly ‘persecuting’ him.”

But the judges’ real concern – more than the legal gymnastics that would have been required to fit Teitiota’s case into the historical refugee boundaries – was that the I-Kiribati fisherman would become the leading edge of a wave of migrants.

“At a stroke,” the judges worried, “millions of people who are facing medium-term economic deprivation, or the immediate consequences of natural disasters or warfare … would be entitled to protection under the Refugee Convention.”

The Hypocrisy

New Zealand’s argument has a name: “Too much justice.” U.S. Supreme Court Justice William Brennan penned the now famous phrase in 1987. In McCleskey v. Kemp, an African-American on death row presented extremely convincing evidence of racial disparities in capital punishment. The five-justice majority rejected the appeal, in part because accepting McCleskey’s argument would likely have meant reconsidering how bias potentially infected all criminal sentencing. In his dissent, Justice Breenan, wrote, “The prospect that there may be more widespread abuse than McCleskey documents may be dismaying, but it does not justify complete abdication of our judicial role.” Brennan mocked his colleagues’ fear of “too much justice.”

Brennan’s retort struck a chord, and many people today view the McCleskey majority as having chosen expediency over fairness. But judges around the world are now making the same choice with climate change refugees. Look at the New Zealand opinion closely, and you see jurists wriggling off the hook of justice. The arguments are nothing but Huxleian doublespeak.

The judges worry that accepting climate change refugees would open the door to “millions of people who are facing medium-term economic deprivation.” The word choice alone is peculiar. “Medium-term economic deprivation” is a rather understated way to describe having one’s home drown in the sea. And as for the needy millions, isn’t the entire point of humanitarian law to help people facing dire circumstances? The New Zealand High Court of Appeals seems to suggest that refugee law, by its very definition, is nothing but a token gesture.

The judges’ argument about the I-Kiribati fleeing to economically developed countries, directly into the arms of the supposed perpetrators, is ironic in the extreme. On a basic level, it’s true – political refugees don’t seek asylum in the countries that created their hardship. But climate change is a different kind of persecution. Allowing the world’s most prolific carbon emitters to escape their responsibility to the people they’ve harmed on this ground would be bizarre, if not shameful. If anything, developed countries have a greater responsibility than their developing neighbors to accept climate change migrants.

This is not an attack on New Zealand. Unlike most other countries, New Zealand has at least accepted a small number of climate change migrants, albeit on purely humanitarian grounds to avoid setting a precedent. The reality is that the international definition of “refugee” applies in almost every nation, including the United States, with little variation. Judges around the world will hide behind these legal niceties to avoid taking responsibility for climate change victims.

Solutions are available. We could tinker with the definition of “refugee” or establish a new category of legal status for people who lose their homes to climate change. Each country could develop a quota of displaced people it will accept, with global totals negotiated to meet the need.

The challenges of climate change are not merely technical and economic. They are legal as well. We’ve already victimized the people of Kiribati and other South Pacific islands through our carelessness. Let’s not do it again through our courts.