294 minute read

Teitiota (2013, et al

from Courtrooms and Climate Displacement

from Courtrooms and Climate Displacement, page 202

Juliana

spite of the Convention’s inability to construe climate refugees.80 This could in turn see the pursuit of ‘legal arrangements on a bi-lateral or regional basis’81 as a means of addressing the impending climate migrant crisis. It seems that in New Zealand the political will exists to determine a viable solution in the imminent future, particularly for their Pacific Island neighbours. It will be important to follow their developments, as they are on of the few states who are ‘working proactively towards creating a toolkit of mobility responses’.82

TEITIOTA (2013, ET AL)

INITIAL CONSIDERATION - IMMIGRATION AND PROTECTION TRIBUNAL (2013)83

INTRODUCTION

[1] This is an appeal against a decision of a refugee and protection officer, declining to grant refugee status and/or protected person status to the appellant, a citizen of Kiribati.

[2] The appellant claims an entitlement to be recognised as a refugee on the basis of changes to his environment in Kiribati caused by sea-level-rise associated with climate change. The issue for determination is whether the appellant is able to bring himself within the Refugee Convention or New Zealand’s protected person jurisdiction on this basis.

COUNTRY INFORMATION AND EXPERT EVIDENCE ON KIRIBATI

The 2007 National Adaptation Programme of Action (the 2007 NAPA)

[5] The 2007 NAPA, filed by Kiribati under the United Nations Framework Convention on Climate Change sets out the relevant human and physical geography. It states at pp4-5:

Kiribati is situated in the Central Pacific Ocean and consists of 33 atolls with a total land area of about 800 sq km. The atolls exist in three separate groups – the Gilberts, Line and Phoenix. Each group has a separate Exclusive Economic Zone, with the total EEZ for Kiribati being around 3.5 million sq km. The atolls have a maximum height of 3 to 4 m above mean sea level.

Not all of the atolls are inhabited, and some are not capable of being inhabited. The total population of Kiribati during the 2000 census was 84494 and grew during the preceding 5 years at an annual growth rate of 1.7%. For the great majority, the livelihood is at the subsistence level, dependent heavily on natural environment resources. Monetized socioeconomic systems are predominating in urban Tarawa and on Kiritimati Island, but there is strong interdependency between these systems and that of the quality of the state of the environment.

82 Rick Noack, ‘A New Zealand visa could trigger the era of ‘climate refugees’’, The Sydney Morning Herald (online), 1 November 2017 <https://www.smh.com.au/world/a-new-zealand-visa-could-trigger-the-era-of-climate-changerefugees-20171101-gzchd7.html>. Ibid. Jane McAdam, ‘The emerging New Zealand jurisprudence on climate change, disasters and displacement’ (2015) 3(1) Migration Studies 131, 138. AF (Kiribati) [2013] NZIPT 800413.

[6]

[7]

[8] Subsistence and sustainable means of livelihood are based on indigenous tree crops, namely coconut tree, pandanus tree, bwabwai (giant taro), breadfruit and banana. The productivity of these tree crops is dependent on a healthy environment. The coconut tree produces the important export product, copra; the pandanus tree bears fruits which are traditionally preserved for consumption especially during drought years; bwabwai is a prestigious crop; breadfruit and banana are the only fruit trees that provide varied diet from the mainstay of coconut, bwabwai, and fish. Larger atolls contain a fresh groundwater lens which ‘floats’ on seawater. The quality and depth of the groundwater lens varies within an atoll, and affects the agricultural productivity of crops, particularly bwabwai plantations. For most people the groundwater lens is the only source of potable water. Recharge to the groundwater lens is from precipitation of about 2350 mm per year, with the Northern Gilbert and Line Islands being wetter than the Southern Gilbert. Risks to the land resource based livelihood of the people are from droughts, inundation of land from storm surges, salt water intrusion to water lenses, and excessive rainfall creating runoff into drinking groundwater wells. Global temperature increase affects coral growth and sea level. It is known that the heat content of the oceans has increased, and this could mean increase in internal energy (turbidity enhancement) of the oceans and/or increase in sea level. In Kiribati, coastal erosion, sea water from storm surges inundating the land, extensive sea spray, and coral bleaching are being observed - quite consistent with what to expect from climate change. These changes are adversely affecting the people’s livelihood. Tuna resources are seasonal but are abundant within Kiribati EEZ during El Nino. Kiribati could lose out if climate change causes the tuna fisheries to migrate further to the north. Inshore fisheries are also known to be less productive during drought conditions, normally associated with the La Nina.

The 2007 NAPA goes on to detail a range of issues arising from existing and projected effects of climate change related events and processes in the areas of housing, land and property (HLP), fisheries and agriculture, and health. In relation to HLP issues, it notes, at pp10-12, that land is privately owned, often “by multiple owners of clear lineal connection, but registered under the most senior among them”. The most likely climate change affecting HLP is coastal erosion and accretion. Traditional methods of checking erosion were no longer effective as coastal land erosion became “more extensive, intensive, and persistent”. Protection of public assets such as roads from erosion was performed by the Government, while owners of private assets protected those. Protection took the form of sea-defence of various designs and construction but none had been “totally effective”. Existing causeways and seawalls needed upgrading and strengthening. New causeways and seawalls, however, continued to be constructed. For the whole of South Tarawa, the total number of constructed seawalls was 60 in 2005.

Storm surges or extra high spring tides had caused flooding of residential areas. Traditional houses have raised floors, and this design had proved appropriate in times of flooding for the time being. Where flooding leads to erosion, or when persistent, people have to relocate themselves or retreat.

As regards South Tarawa specifically, increasing urbanisation was one of the “key drivers” to changes to the shoreline. Other problems cited included illegal settlement (squatters), and unclear rights between landowners and land leased by the Government.

[16]

[17]

[26]

[27]

[28]

[29] Rapid population growth and urbanisation in South Tarawa has had a damaging effect on the fresh water supply. No island in Kiribati has surface fresh water. The water supply comes from a fresh water lens sitting just beneath the atoll. Increased population pressure has meant water is being extracted from the lens at a greater rate than it can be refilled through percolation of rain water. Furthermore, there is no mainline sewage system on Kiribati and the discharge of human waste by the burgeoning population on Tarawa has contributed to pollution of the fresh water lens. This has rendered some of five underground water reserves unfit for the supply of fresh drinking water. On Tarawa there are three main sources of water: rain water, household dug wells and public utilities board piped water. Of these, rain water catchment systems are only available in permanent material homes and most of these private homes have roof gutters. Household dug wells in high density housing areas are increasingly contaminated and not used for consumption.

Sea-level-rise and other environmental factors have compounded this problem. Rising sea level causes more regular and frequent breaches of sea walls. More intense storms generate stronger storm surges which further inundate the land. Salt water is seeping into the fresh water lens, affecting those reserves which have not already been rendered unfit for human consumption as a result of population pressure. While sea walls are in place, they are typically not high enough to prevent salt water intrusion over the land in the high tides. While people build sea walls, the materials come from beaches and other locations of the island which is an unsatisfactory solution. The vegetation has died back in many places, leaving a barren land.

Life generally became progressively more insecure on Tarawa as a result of sea-levelrise. From the late 1990s onwards, Tarawa suffered significant amounts of coastal erosion during high tides. Also the land surface was regularly flooded and land could be submerged up to knee-deep during king tides. Transportation was affected as the main causeway separating north and south Tarawa was often flooded.

This caused significant hardship for the appellant, his wife and family as well as other inhabitants on Tarawa. The wells upon which they depended for water became salty. Salt water was deposited onto the ground destroying crops. Crops were difficult to grow and the land was stripped of vegetation in many places.

The sea wall in front of the appellant’s parents-in-law’s house was often damaged and required constant repair. The family existed largely by subsistence fishing and agriculture. One of the appellant’s brothers-in-law works at a local government port agency and provides cash income for the whole family as best as he is able. However life is generally becoming more difficult. The Government’s supplies of water are coming under pressure through overpopulation and because people can increasingly no longer rely on well-water for an alternative source.

The appellant and his wife wished to have a family. However they were concerned that the information they were receiving from television, media and from other sources meant that there would be no possibility of living on Tarawa. They therefore decided to emigrate to New Zealand. The appellant’s parents live on his home island but they face similar environmental pressures and population pressures.

[30] The appellant was aware that the Government was taking what steps it could. The Government has bought land in Fiji to grow crops to sustain the livelihoods of the people in Kiribati. In his area the Government has also built sea walls but these are ineffective and are prone to frequent damage. However, it was powerless to stop sea-level-rise.

[31] He also accepted that his experiences were common to people throughout Kiribati. He had been in contact with his family and understood they were facing similar problems in his home island. His relatives whom he had lived with when he initially moved to Tarawa moved to another island and they too were experiencing similar problems. There was simply no land anywhere in Kiribati for the family to relocate and avoid the onset of sea-level-rise.

ASSESSMENT

[36] Under section 198 of the Immigration Act 2009, on an appeal under section 194(1)(c) the Tribunal must determine (in this order) whether to recognise the appellant as:

(a) a refugee under the 1951 Convention Relating to the Status of Refugees (“the Refugee Convention”) (section 129); and

(b) a protected person under the 1984 Convention Against Torture (section 130); and

[37] In determining whether the appellant is a refugee or a protected person, it is necessary first to identify the facts against which the assessment is to be made. That requires consideration of the credibility of the appellant’s account.

Credibility and Findings

[38]

[40]

[41] The Tribunal finds the appellant to be credible. His account was told candidly and openly. It is accepted in its entirety.

As for the appellant, the Tribunal finds the appellant is from Kiribati and has been living with his wife’s family in their village on South Tarawa. For a number of years prior to coming to New Zealand in 2007, he was unemployed, relying on subsistence agriculture and fishing, supplemented by support from his wife’s brother who is in employment there. Concerned about the coastal erosion which he witnessed from 2000 onwards and the increasing intrusion of salt water onto the land during high tides, and aware of the debate around climate change, the appellant and his wife came to New Zealand in 2007. They have three children born here.

The appellant does not wish to return to Kiribati because of the difficulties they faced due to the combined pressures of over-population and sea-level-rise. The house they were living in on South Tarawa is no longer available to them on a long term basis. Although their families have land on other islands, these face similar environmental pressures and the land available is of limited size and has other family members living there.

Assessment of the Claim to Refugee Status

General Principles

[45] Mr Kidd submits that the appellant is an internally displaced person (IDP) and “has the right to claim refugee status in New Zealand as an internally displaced person”. In support, he cites Principle 15 of the Guiding Principles on Internal Displacement (the Guiding Principles) which states:

Internally displaced persons have:

[46] (a) The right to seek safety in another part of the country;

(b) The right to leave their country;

(d) The right to be protected against forcible return to or resettlement in any place where their life, safety, liberty and/or health would be at risk.

While it is accepted, as Mr Kidd submits, that the Tribunal must have regard to relevant international human rights instruments, the Guiding Principles are not relevant in this case. The Guiding Principles is a soft-law instrument designed to deal with a scenario different to the Refugee Convention. Whatever Principle 15 might state, the former relates, as the name implies, to internal movement only; the latter to cross-border movement. As observed by Walter Kaelin ‘The Legal Dimension’ (2003) Forced Migration Review: When Does Internal Displacement End 17, at p15: As soon as an IDP leaves his or her country of origin, the Guiding Principles are no longer applicable. Such a person is no longer in the situation of internal displacement but instead becomes a refugee or a migrant as the case may be. Here, displacement ends when the person concerned crosses the frontier of that country.

[47]

[48] By definition, internally displaced persons cannot meet the requirement of the Refugee Convention. A fundamental element of the Article 1A(2) refugee definition is that the claimant is “outside their country of nationality”. Unless or until cross-border movement takes place, the Refugee Convention simply has no application. While the causes and consequences of any internal displacement that occurs prior to the cross-border movement may well be relevant matters of enquiry in the context of refugee status determination, the status of any refugee claimant as a former IDP does not confer refugee status.

In any event, at no stage was the appellant ever an internally displaced person, which the Guiding Principles define as follows: 2. For the purposes of these Principles, internally displaced persons are persons or groups of persons who have been forced or obliged to flee or to leave their homes or places of habitual residence, in particular as a result of or in order to avoid the effects of armed conflict, situations of generalized violence, violations of human rights or natural or human-made disasters, and who have not crossed an internationally recognized State border.

[49]

[50]

[51]

[52]

[53] Migration is generally regarded as existing somewhere along a voluntary – forced spectrum. While a substantial grey area exists between the ends and no bright-line demarcation can be made, displacement typically occurs towards the ‘forced’ end of this spectrum. In this case, it is clear to the Tribunal that this appellant has undertaken what may be termed a voluntary adaptive migration – that is, to adapt to changes in the environment in South Tarawa detailed in the 2007 NAPA, by migrating to avoid the worst effects of those environmental changes. While there is some degree of compulsion in his decision to migrate, his migration cannot be considered ‘forced’ and was to another country, New Zealand, and not to another place in Kiribati.

Mr Kidd also cites Principle 12 of the Pinhiero Principles on housing and property restitution for refugees and displaced persons. The relevance of this principle, which relates to the need for states to establish appropriate procedures, institutions, mechanisms to assess and enforce housing, land, and property restitution claims, to the refugee inquiry is not immediately apparent and is not developed in any detail by Mr Kidd in his submissions.

Mr Kidd also submits that the concept of ‘being persecuted’ does not require human agency and that the word ‘refugee’ is capable of encompassing persons having to flee irrespective of the cause. In support, counsel cites the Latin etymology of the word ‘persecute’ which, he submits, has a “passive voice of fleeing from something or an active quality of following somebody”. Accordingly, persecution does not require an actor in the passive sense. In the appellant’s case, it is the “act of fleeing climate change because of the serious harm it will do him and his family. The Kiribati Government is unwilling or unable to deal with factors “instituted by climate change”.

This submission must be rejected. It draws on what has been described by Astri Suhkre in “Environmental Degradation and Population Flows” 47(2) Journal of International Affairs at p482 as a distinction between a ‘sociological conception’ of refugee-hood and a legal one. The fundamental difficulty Mr Kidd’s submission faces is that the former is broader than the latter. The legal concept is governed by the refugee definition contained in Article 1A(2) of the Refugee Convention. Section 129 only permits recognition as a refugee if the requirements of the Convention are met. It is the legal conception which applies, not the sociological one relied on by Mr Kidd. This legal conception requires that the applicant establish that he is at risk of ‘being persecuted’, and that status be linked to one of the five Convention grounds.

New Zealand refugee law has for some time adopted and applied the Hathaway concept of “being persecuted” as the sustained or systemic violation of core human rights, demonstrative of a failure of state protection. For a full account of the human rights approach, see Refugee Appeal No 74665 (7 July 2004), at [36]-[90]. The application of this approach in the context of economic social and cultural rights emphasised by counsel in his submissions, is fully explored in BG (Fiji) [2012] NZIPT 800035, at [85]-[133]. The risk of being persecuted must be “well-founded” under Article 1A(2) of the Convention. In determining what is meant by “well-founded”, the Tribunal, like the Refugee Status Appeals Authority (RSAA) before it, has adopted the approach in Chan v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379, where it was held that a fear of being persecuted

is established as well-founded when there is a real, as opposed to a remote or speculative, chance of it occurring. The standard is entirely objective – see Refugee Appeal No 76044 (11 September 2008), at [57].

Environmental degradation and international human rights law

[60]

[61]

[62]

[63] The question of whether there exists a human right to a healthy environment has been a matter of some debate for at least 25 years. Nevertheless, within international human rights law there is now a growing recognition that states can have responsibilities in respect of environmental matters under existing human rights treaties in both the civil/ political and socio- economic spheres.

The International Covenant on Civil and Political Rights contains a number of important participatory rights such as the right to freedom of belief (Article 18); the right to freedom of expression, including the right to receive and impart information (Article 19); and the right to freedom of assembly (Article 21). This framework of participatory rights, along with substantive rights regarding freedom from arbitrary arrest and detention and the right not to be subjected to torture or cruel, inhuman or degrading treatment (Article 7) provides a framework by which the predicament of individuals who raise concerns about development or despoliation of the environmental can fall within the bounds of the existing protection mechanisms.

As is reflected in the 2005 Hyogo Declaration and the 2005-1015 Hyogo Framework for Disaster Reduction, in respect of which over 160 states were present for its adoption, it is now generally accepted that states have a primary responsibility to protect persons and property on their territory from the impact of disasters and to undertake disaster risk reduction measures. Consistent with this understanding, the European Court of Human Rights (ECtHR) has examined the duty to protect the right to life in the context of natural disasters. In Oneryaldiz v Turkey, [2004] ECHR 657 at para 89 and Budayeva & Ors v Russia Application No 15339/02 (20 March 2008), the ECtHR found a violation of the right to life of those killed because the authorities in each case had not discharged positive obligations to protect life against risks from known and imminent environmental hazards. For a fuller discussion see, W Kaelin and J Kunzli The Law of International Human Rights Protection (Oxford, University Press, Oxford, 2010) at pp104-105; J Ginnetti and N Schrepfer ”Predicting Disasters and Protecting Rights” 41 Forced Migration Review, at pp13-14.

In the socio-economic sphere, although there is no right to a healthy environment contained in the International Convention on Economic, Social and Cultural Rights (ICESCR), Article 11 does provide a right to an adequate standard of living. Plainly, where natural disasters and environmental degradation occur with frequency and intensity, this can have an adverse effect on the standard of living of persons living in affected areas. Also relevant in this context is Article 12(1) which provides for a right “to the highest attainable standard of physical and mental health”. In General Comment No 14 The Right to the Highest Attainable Standard of Health E/C12/2000 (11 August 2000) at [14], the Committee on Economic Social and Cultural Rights stated that Article 12(2)(b) obliges states to take steps aimed at the prevention and reduction of the population’s exposure to “detrimental environmental conditions that directly or indirectly impact on human health”.

[64] In the context of the right to adequate food, the Committee has stated that “States have a core obligation to take the necessary action to mitigate and alleviate hunger… even in times of natural or other disasters” General Comment No 12 The Right to Adequate Food (Art11) E/C12/1999/5 (12 May 1999) at [6].

What these observations illustrate is that generalised assumptions about environmental change and natural disasters and the applicability of the Refugee Convention can be overstated. While in many cases the effects of environmental change and natural disasters will not bring affected persons within the scope of the Refugee Convention, no hard and fast rules or presumptions of non-applicability exist. Care must be taken to examine the particular features of the case.

[65] A word of caution is warranted, however. While there is no presumption of non-applicability, no special rules exist either. It is indubitably correct that natural disasters and environmental degradation can involve significant human rights issues. Nevertheless, like any other case, in cases where such issues form the backdrop to the claim, the claimant must still establish that they meet the legal criteria set out in Article 1A(2) of the Refugee Convention (or, for that matter, the relevant legal standards in the protected person jurisdiction). This involves an assessment not simply of whether there has been breach of a human right in the past, but the assessment of a future risk of being persecuted. In the New Zealand context, the claimant’s predicament must establish a real chance of a sustained or systemic violation of a core human right demonstrative of a failure of state protection which has sufficient nexus to a Convention ground.

Environmental Degradation and New Zealand’s Refugee and Protection Jurisprudence

[66] This reality of a complex interrelationship between environmental degradation, vulnerability to natural hazards and international protection is reflected in New Zealand’s refugee jurisprudence.

[67]

[68] A number of cases in 2000, relating to claimants from Tuvalu, argued that environmental factors such as inundation, coastal erosion, salination of the water table, combined with factors at the individual and household levels, meant that the appellants should be recognised as refugees. The claims were dismissed because the indiscriminate nature of these events and processes gave rise to no nexus to a Convention ground; see Refugee Appeal No 72185 (10 August 2000); Refugee Appeal No 72186 (10 August 2000); Refugee Appeal Nos 72189-72195 (17 August 2000); Refugee Appeal Nos 72179-72181 (31 August 2000); Refugee Appeal No 72313 (19 October 2000); Refugee Appeal No 72314 (19 October 2000); Refugee Appeal No 72315 (19 October 2000); Refugee Appeal No 72316 (19 October 2000).

In Refugee Appeal No 74665 (7 July 2004) at [89], the RSAA remarked, in the context of discussing its human rights approach to being persecuted, that “the right to life (Article 6 ICCPR) in conjunction with the right to adequate food (Article 11 ICESCR) should permit a finding of ’being persecuted’ where an individual faces a real risk of starvation”. This would encompass the discriminatory denial of food in the wake of a drought, which could support a finding of being persecuted.

[69] [70] [71] [72] [73] [74] It has also been recognised that post-disaster humanitarian relief work can become highly politicised. Such circumstances occurred in the wake of Cyclone Nargis in Burma in May 2008 and, in Refugee Appeal No 76374 (28 October 2009), refugee status was granted to a person who assisted in such relief work on the basis such activity would be perceived

as the expression of an anti-regime political opinion. In BG (Fiji) [2012] NZIPT 800091, at [90]-[93], the Tribunal confirmed the relevance of the ICESCR to the refugee inquiry. It was also recognised that persons displaced by environmental degradation may also, over time, face problems with the host community which can give rise to protection needs. This case failed, not as a matter of principle, but on the facts. The appellant could not establish that he faced a real chance of serious harm arising from a sustained or systemic denial of his core human rights.

With these observations in mind, it is now possible to turn to the facts of this case.

Objectively, on the facts as found, is there a real chance of the appellant being persecuted if

returned to Kiribati?

The general observations earlier regarding the potential for environmental degradation and natural disasters to result in conflict is demonstrated in the case of Kiribati. Credible evidence has been given that this can cause tension over land which has given rise to physical assaults and even deaths. However, the appellant himself had not been subjected to any such dispute in the past and is not involved in any land dispute. There is no evidence he faces a real chance of suffering serious physical harm from violence linked to

HLP disputes in the future.

Although the house in which he lived is no longer available to him in the long-term, the wife’s father is negotiating with the new owner of the land and an arrangement has been made whereby he is given time to relocate his family back to their home island in the south. The appellant told the Tribunal that it would be difficult to move to his wife’s family’s island or his own, as both face the same environmental pressures. Even assuming he cannot find a place to live in Tarawa and has to return to one or other of the home islands, land will be available to him there. While he would need to share the available land with other members of the kin group, it will be available for him and he can utilise this to provide accommodation for himself and his family. This land can provide them with access to sufficient resources to sustain themselves to an adequate level. There is no evidence to support Mr Kidd’s contention that the appellant is unable to grow food or obtain potable water. His evidence was that food has become difficult to grow with salt water intrusion onto the land, not impossible. Nor was it his evidence that he had no access to potable

water. There is no evidence establishing that the environmental conditions that he faced or is likely to face on return are so parlous that his life will be placed in jeopardy, or that he and his family will not be able to resume their prior subsistence life with dignity. The appellant’s brother-in-law, who remains in employment, will be able to provide continued support to the family, as he has done in the past, so as to allow them to continue to enjoy an adequate standard of living. While the appellant’s standard of living will be less than that which he would enjoy in New Zealand that, in itself, does not amount to serious harm for the purposes of the Refugee Convention.

Image: Everyone, everywhere who is displaced by climate change should have an effective remedy to their displacement - including this woman in the Solomon Islands. Ben Knight.

Is there a Convention reason for the persecution?

[75] In any event, the appellant’s claim under the Refugee Convention must necessarily fail because the effects of environmental degradation on his standard of living were, by his own admission, faced by the population generally. The sad reality is that the environmental degradation caused by both slow and sudden- onset natural disasters is one which is faced by the Kiribati population generally. The photographic evidence produced by Mr Corcoran in the hearing graphically demonstrated that the underlying environmental events and processes favour no civil or political status. Nor has it been suggested that the Government of Kiribati has in some way failed to take adequate steps to protect him from such harm as it is able to for any applicable Convention ground.

Conclusion on Claim to Refugee Status

[76] For these reasons the appellant’s refugee claim must fail. The appellant is not entitled to be recognised as a refugee under section 129 of the Act.

Assessment of the Claim under the ICCPR

As to the arbitrary deprivation of life

[80] Mr Kidd refers to the statement by the Office of the High Commissioner for Human Rights that one of the rights “most directly affected” by global warming will be the right to life. This statement may be broadly agreed with, insofar as the effects of global warming can be expected to negatively impact on some people’s ability to hunt, fish, or undertake subsistence farming or agriculture to such an extent that their ability to sustain life may be imperilled.

[81] Article 6 of the ICCPR provides:

1. Every human being has the inherent right to life. This right shall be protected by law. No one shall be arbitrarily deprived of his life.

[82] The Human Rights Committee has stated that the right to life under Article 6, in keeping with its ‘inherent’ nature and importance to the enjoyment of other rights, must be interpreted broadly; General Comment No 06: The Right to Life (Art 6) (30 April 1982) at [5]. In this regard, the Committee considered that “it would be desirable for States parties to take all possible measures to reduce infant mortality and to increase life expectancy, especially in adopting measures to eliminate malnutrition and epidemics”. Consistent with this understanding, J Schultz and M Castan The International Covenant on Civil and Political Rights: Cases, Material and Commentary (Oxford University Press, Oxford, 2004) point to comments made by the Committee in Concluding Observations on States’ reports on issues such as homelessness, infant mortality, and increased life expectancy for women in the context of Article 6. They also cite the decision of the Committee in E H P v Canada (1980) in which it was held, at [8], that a complaint regarding the threats of cancer and genetic defects arising from the proximity of a nuclear waste dump-site to a residential area “raised serious issues, with regard to the obligation of states to protect human life”.

[83]

[84] Section 131 provides for protection from “arbitrary deprivation of life”. In other words, it is not all risks to life which fall within the ambit of section 131, just those risks to life which arise by means of an “arbitrary deprivation”. In contrast to ‘torture’ and ‘cruel treatment’, the other statutory components of the Tribunal’s protected person jurisdiction, what constitutes arbitrary deprivation of life has not been statutorily defined.

As to this, there have been few individual communications to the Human Rights Committee relating to arbitrary deprivation of life. Nevertheless, academic commentary on the international jurisprudence, including relevant regional analogues to Article 6, shows that to constitute an ‘arbitrary’ deprivation of life, the interference must be one which is:

(a)

not prescribed by law;

(b) not proportional to the ends sought; and

[85] [86] [87] [88] [89] As noted by W Kaelin and J Kunzli (op cit) at p273:

Despite its name (right to life) it does not guarantee human existence as such. Rather, it

protects against deprivation of life by state action or as a consequence of its omissions.

At p298, they include as a component of the right to life an “obligation to take measures to enhance the protection of life”. This is described as operating at a “programmatic level” and requires concrete steps to be taken to protect life in areas such as infant mortality, life expectancy or other areas where life is “particularly endangered”.

In light of the above, it is accepted that the prohibition on arbitrary deprivation of life must take into account the positive obligation on the state to fulfil the right to life by taking programmatic steps to provide for the basic necessities for life. Having regard to the decisions of the ECtHR in Budeyeva and Oneryiliz, it is accepted that states will have positive duties to protect life from risks arising from known natural hazards and that failure to do so may, in principle, constitute an omission in the sense articulated by Kaelin and Kunzli.

However, the appellant cannot point to any act or omission by the Kiribati Government which might indicate a risk that he will be ‘arbitrarily deprived’ of his life within the scope of Article 6 of the ICCPR. The Kiribati Government is active on the international stage concerning the threats posed to both the state as a sovereign entity and its population by climate changerelated events and processes. The 2007 NAPA shows that the Kiribati Government is acutely aware of the problems posed and is taking many steps at the regulatory and programme level in relation to these risks. The appellant himself acknowledged that the Government had been taking steps to protect inhabitants and property from sea- level-rise where it is able. It was building sea walls and provide potable water.

A further reason why the appellant’s claim under this aspect of section 131 must fail is that he cannot establish that there is a sufficient degree of risk to his life, or that of his family, at the present time. The case law of the Committee requires that, to be a victim for the purposes of bringing a complaint under the First Optional Protocol, the risk of violation of an ICCPR right must be “imminent”. In Aaldersberg and ors v Netherlands CCPR/ C/87/D/1440/2005 (14 August 2006), a complaint was made by over 2,000 Dutch citizens that Dutch law, which recognised the lawfulness of the potential use of nuclear weapons, put their and many others lives at risk. The complaint was declared inadmissible. The Committee stated:

[6.3] For a person to claim to be a victim of a violation of a right protected by the Covenant, he or she must show either that an act or an omission of a State party has already adversely affected his or her enjoyment of such right, or that such an effect is imminent, for example on the basis of existing law and/or judicial or administrative decision or practice. The issue in this case is whether the State’s stance on the use of nuclear weapons presented the authors with an existing or imminent violation of their right to life, specific to each of them. The Committee finds that the arguments presented by the authors do not demonstrate that they are victims whose right to life is violated or under any imminent prospect of being violated. Accordingly, the Committee concludes that the authors cannot claim to be “victims” within the meaning of article 1 of the Optional Protocol.

[90] Imminence should not be understood as imposing a test which requires the risk to life be something which is, at least, likely to occur. Rather, the concept of an ‘imminent’ risk to life is to be interpreted in light of the express wording of section 131. This requires no more than sufficient evidence to establish substantial grounds for believing the appellant would be in danger. In other words, these standards should be seen as largely synonymous requiring something akin to the refugee ‘real chance’ standard. That is to say, something which is more than above mere speculation and conjecture, but sitting below the civil balance of probability standard. See here AI (South Africa) [2011] NZIPT 80050 at [80]-[85].

[91] The Tribunal accepts that, given the greater predictability of the climate system, the risk to the appellant and his family from sea-level-rise and other natural disasters may, in a broad sense, be regarded as more ‘imminent’ than the risk posed to the life of complainants in Aaldersberg. Nevertheless, the risk to the appellant and his family still falls well short of the threshold required to establish substantial grounds for believing that they would be in danger of arbitrary deprivation of life within the scope of Article 6. It remains firmly in the realm of conjecture or surmise. As noted in relation to his refugee claim, there is no evidence establishing that his situation in Kiribati would be so precarious that his or his family’s life is “in danger”. The Tribunal notes the fear of the wife in particular that the young children could be drowned in a tidal event or storm surge. No evidence has been provided to establish that deaths from these events are occurring with such regularity as to raise the prospect of death occurring to the appellant or his family member to a level which rises beyond conjecture and surmise at all, let alone a risk which can be characterised as an arbitrary deprivation of life in the sense outlined above.

[92] For these reasons, there are no substantial grounds for believing that the appellant (or any of his family members for that matter) will be in danger of being subjected to arbitrary deprivation of life.

Cruel treatment

[93] As to whether it amounts to cruel treatment to return the appellant to Kiribati, in BG (Fiji) [2012] NZIPT 80035 at [180]-[184], the Tribunal considered developments by the ECtHR in which the regional analogue to Article 7 ICCPR was held to extend “in very exceptional cases” to situations where there was no qualifying treatment in the receiving country. The rationale behind such a development appears to be that it is inhuman to remove someone to a known situation of serious harm. The Tribunal noted, however, that the scope of application of this principle was a matter of some doctrinal controversy within the ECtHR given the absolute nature of the prohibition, and had not been followed more broadly in the international jurisprudence in relation to the scope of its interpretation of Article 7. Accordingly, the Tribunal has declined to follow this lead.

[94] New Zealand’s protected person jurisdiction is a creature of statute. It is derived from the ICCPR and the Tribunal is bound by the wording of section 131. In BG (Fiji) it was held that the gaze of section 131 is firmly on qualifying treatment in the receiving state and that cases of the kind envisaged under the expanded ECtHR approach were, in the context of New Zealand’s legislative framework, to be dealt with under the separate humanitarian appeal provisions of the Act.

[95] The appellant has not established that there are substantial grounds for believing that he is in danger of being subjected to cruel treatment, as that is defined in the Act, by reason of some act or omission that will occur in Kiribati.

Conclusion on Claim under ICCPR

[96] The appellant is not entitled to be recognised as a protected person under section 131 of the Act.

CONCLUSION

[97] For the foregoing reasons, the Tribunal finds that the appellant:

(a) is not a refugee within the meaning of the Refugee Convention;

(b) is not a protected person within the meaning of the Convention Against

Torture;

[98] The appeal is dismissed.

“B L Burson” B L Burson Member

(Footnotes omitted)

HIGH COURT APPEAL (2013)84

REFUGEES

[1]

[2] The immediate aftermath of the Second World War presented the then international community with a number of challenges. One such challenge was to provide some mechanism for the protection of human beings who were the victims of persecution.

The League of Nations, which some hoped would prevent or curtail warfare by collective security arrangements, had clearly failed. The Axis powers in Europe, spearheaded by Hitler’s Third Reich, had systematically persecuted and killed millions of people, singling them out for concentration camps upon the grounds of their ethnicity, race, or religion.

[3]

[4]

[5]

[6] The defeat of Fascism in 1945 did not end persecution. Riding into central European countries behind the tanks of the Red Armies came communist regimes. These governments, nurtured by the Soviet Union (which had already tipped its hand with the execution of Polish middle class leaders and army officers in the forests at Katyn) set about imposing Marxist-Leninist regimes which were to blight the lives of millions of people for two generations. Class enemies were persecuted by imprisonment or execution. Additionally, the post-war adjustment of European borders resulted in populations being uprooted and minorities displaced.

This judgment will not detail (fascinating though the story is) the negotiation and approval, under the auspices of the United Nations, of the 1951 Convention relating to the Status of Refugees (the Refugee Convention) which was subsequently supplemented by the 1967 Protocol. The Refugee Convention is declaratory of international law. Nations have acceded to it. It has been incorporated into New Zealand domestic law by virtue of the Immigration Act 2009 (the Act).

Although, as initially negotiated by the international community between 1945 and 1950 and adopted by the United Nations (which set up the office of the High Commissioner for Refugees to cope with pressing refugee problems), the Refugee Convention extended only to pre-1951 refugees, the effect of the 1967 Protocol was to remove geographic and temporal limitations.

A refugee to whom the Refugee Convention and its Protocol applies (called for the purposes of this judgment a convention refugee) is a person who in terms of Article 1A(2):

… 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….

84 Teitiota v Chief Executive of the Ministry of Business Innovation and Employment [2013] NZHC 3125 (26 November 2013) (Source: www.nzlii.org/nz/cases/NZHC/2013/3125.html). Last Updated: 26 November 2013. IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY, CIV-2013-404-3528 [2013] NZHC 3125, BETWEEN IOANE TEITIOTA Applicant AND THE CHIEF EXECUTIVE OF THE MINISTRY OF BUSINESS INNOVATION AND EMPLOYMENT Respondent, Hearing: 16 October 2013, Appearances: M J Kidd for the Applicant, R E Savage for the Respondent, Judgment: 26 November 2013. This judgment was delivered by me on Tuesday 26 November 2013 at 2.30 pm pursuant to Rule 11.5 of the High Court Rules.

[7] Thus, a person who finds him or herself in a country which has acceded to the Refugee Convention (New Zealand being one) and who has a well founded fear (being a fear which is objective and factually based) of being persecuted on one of the five stipulated convention grounds, is entitled to claim successfully refugee status and look to the protection, not of the country of the claimant’s nationality, but instead of the country in which refugee status is being claimed.

[8] “Persecution” is not defined in the Refugee Convention but clearly encompasses well founded fears to life or freedom on a convention ground, some form of serious harm, or serious violations of civil or human rights. New Zealand has adopted James Hathaway’s “human rights” approach to the definition of persecution, which defines persecution as the sustained or systemic violation of basic human rights demonstrative of a failure of state protection. This definition of persecution is also applied in Canada and the United Kingdom.

[9]

[10] The word “refugee”, of course, is not limited to the definition of a convention refugee. The New Shorter Oxford English Dictionary defines “refuge” from the Latin refugium, as shelter from danger or trouble; protection; aid. “Refugee” has a related and primary meaning as “a person driven from his or her home to seek refuge, esp. in a foreign country, from war, religious persecution, political troubles, natural disaster etc.; a displaced person”.

A person may properly be described as a refugee for reasons other than a well-founded fear of persecution on one of the five convention grounds. Natural disasters such as earthquakes, volcanic eruptions, severe weather events, and tsunamis can turn people into refugees. So too can warfare. And arguably, so too might climate change. Increased aridity of agricultural land on the fringe of deserts; the reduction or contamination of water tables; and the effect of rising sea levels and violent weather over decades on coastal lands and islands; all have the capacity to drive people from their traditional or historic homes.

[11] Such refugees of this non-convention variety at times are worthy objects of assistance and relief by the international community, the United Nations High Commissioner for Refugees, and non-government organisations. But it is abundantly clear that the displacement of such refugees has not been caused by persecution. Nor, importantly, have they become refugees because of persecution on one of the five stipulated Refugee Convention grounds. A person who becomes a refugee because of an earthquake or growing aridity of agricultural land cannot possibly argue, for that reason alone, that he or she is being persecuted for reasons of religion, nationality, political opinion, or membership of a particular social group.

Why does the applicant think he is a refugee?

[12] In the peculiar circumstances which surround his refugee claim the applicant does not seek name suppression. Normally a refugee claimant’s name is not published. There are a number of reasons for this. The most important include the risk that a successful claimant who makes out a well founded fear of persecution might expose his or her family, still living in the country where persecution is taking place, to some form of retaliation or reprisal. Secondly, even in situations where a refugee claim is unsuccessful, publication of a claimant’s name might trigger adverse consequences on his or her return to the country

of origin. The applicant is not a convention refugee in the normal sense. There is no risk to him or his relatives of adverse consequences of the type described. His counsel did not seek suppression of his name.

[13] The applicant is a citizen of Kiribati. He is in his mid 30s. Kiribati is an island group situated in the south-west Pacific Ocean. The islands straddle the Equator and spread over approximately 3.5 million square kilometres of ocean. There are some 32 atolls and one raised coral island (Banaba). The island group, named the Gilbert Islands after the British naval captain who was the first European to sight them, became a British protectorate along with the adjacent Ellice Islands in 1892 and were administered from Fiji. The Gilbert and Ellice Islands became a Crown colony in 1916. Most of the islands were occupied by the Japanese during the Second World War and Tarawa was the scene of an extremely bloody battle in November 1943, when the United States Marine Corps invaded the island to oust the Japanese. During the 1950s and early 1960s some of the islands were used by the United States and the United Kingdom to test hydrogen bombs. On independence in 1978 and 1979, the Gilbert group became known as Kiribati whilst the Ellice Islands became Tuvalu.

[14] Overcrowding is a problem which the Kiribati government has had to confront. A long term problem for the Kiribati government is steadily rising ocean levels attributable to climate change.

[15] There is the perception that the inhabitants of Kiribati will be obliged to leave their islands because of rising ocean levels and environmental degradation. This has led to the applicant’s claim for refugee status.

[16] A refugee and protection officer declined to grant the applicant refugee status and/ or protected person status. The applicant exercised his statutory right of appeal to the Immigration and Protection Tribunal (the Tribunal). In a lengthy and carefully considered decision released on 25 June 2013 the Tribunal held that the applicant was neither a refugee nor a protected person.

Before the IPT

[17]

[18]

[19] The applicant gave evidence before the Tribunal. His account was accepted in its entirety. He was found to be credible.

The Tribunal accepted in evidence the 2007 National Adaptation Programme of Action which had been filed by the Kiribati government under the United Nations Framework Convention on Climate Change (UNFCCC). It is not necessary to detail that evidence. Pertinent issues included storm surges, extreme high spring tides, flooding of residential areas, raised floors of residences, depletion of fishing stocks, diminution of arable land, contamination of drinking water by salt water, sewage contamination of water tables, and deterioration of the population’s health.

The applicant himself gave evidence about his personal history. Once the applicant completed his secondary schooling he went to live with relatives on Tarawa. In the mid-1990s he became unemployed. He married in 2002. He and his wife considered life on Tarawa was becoming progressively insecure as a result of ocean inundation. Because he and his wife wished to have children and saw little future in living on Tarawa

they decided to emigrate to New Zealand. They came to New Zealand in 2007. On the expiration of their permits they continued to live here illegally. The couple have produced three children all of whom are New Zealand born but who in terms of the relevant legislation are not entitled to New Zealand citizenship.

Relevant portions of the IPT decision

[20]

[21] As already stated, the Tribunal accepted the evidence of the applicant and the detailed country information produced in support. The applicant and his wife gave evidence, as did a New Zealand resident, Mr Corcoran, who was a former clerk of the Chief Justice of Kiribati. The Tribunal regarded Mr Corcoran as an appropriately qualified expert on matters of urbanisation, climate change, and their impacts upon the population of Kiribati.

The relevant evidence of the applicant was accurately summarised by the Tribunal thus:

[39]

[40] The Tribunal finds that the limited capacity of South Tarawa to carry its population is being significantly compromised by the effects of population growth, urbanisation, and limited infrastructure development, particularly in relation to sanitation. The negative impacts of these factors on the carrying capacity of the land on Tarawa atoll are being exacerbated by the effects of both sudden onset environmental events (storms) and slow-onset processes (sea-level-rise).

[41] The appellant does not wish to return to Kiribati because of the difficulties they faced due to the combined pressures of over-population and sea-level-rise. The house they were living in on South Tarawa is no longer available to them on a long term basis. Although their families have land on other islands, these face similar environmental pressures and the land available is of limited size and has other family members living there.

[22]

[23] The Tribunal then referred to s 129(1) of the Act which obliges New Zealand to recognise as a refugee a person who is a refugee within the meaning of the Refugee Convention, Article 1A(2) of which is set out above.

The Tribunal went on to assess the applicant’s submission that he was an internally displaced person who, as such, had the right to claim refugee status in New Zealand. Counsel had cited Principle 15 of the Guiding Principles on Internal Displacement (the Guiding Principles). The Tribunal accepted the Guiding Principles were a relevant international human rights instrument but saw them as a “soft law instrument” dealing with situations very different from the Refugee Convention. An internally displaced person, as the name suggests, is a person displaced inside his or her country. As soon as such a person leaves his or her country of origin, the Guiding Principles are no longer applicable. Such a person then becomes either a refugee or a migrant.

[24]

[25]

[26] I am satisfied the Tribunal was correct in its decision that an internally displaced person cannot meet the requirements of the Refugee Convention, quite simply because such a person, in terms of Article 1A(2), is not “outside their country of nationality”.

The Tribunal then summarised, correctly in my judgment, the general principles of New Zealand’s refugee law as they were originally developed by the former Refugee Status Appeals Authority, many of the decisions of which have been scrutinised and upheld by the High Court and the Court of Appeal.

[53]

[54] New Zealand refugee law has for some time adopted and applied the Hathaway concept of “being persecuted” as the sustained or systemic violation of core human rights, demonstrative of a failure of state protection. For a full account of the human rights approach, see Refugee Appeal No 74665 (7 July 2004), at [36]-[90]. The application of this approach in the context of economic social and cultural rights emphasised by counsel in his submissions, is fully explored in BG (Fiji) [2012] NZIPT 800035, at [85]- [133]. The risk of being persecuted must be “well-founded” under Article 1A(2) of the Convention. In determining what is meant by “well-founded”, the Tribunal, like the Refugee Status Appeals Authority (RSAA) before it, has adopted the approach in Chan v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379, where it was held that a fear of being persecuted is established as wellfounded when there is a real, as opposed to a remote or speculative, chance of it occurring. The standard is entirely objective – see Refugee Appeal No 76044 (11 September 2008), at [57].

The legal concept of ‘being persecuted’ rests on human agency. Although, historically, there has been variation in state practice on the issue, international refugee law has, in recent years, coalesced around the notion that it can emanate from the conduct of either state or non-state actors. In the former case, the failure of state protection derives from the inability of the state or lack of will to control its own international human rights law. In the latter case, it derives from the failure of the state, via its human agents tasked with the requisite legal or regulatory authority, to take steps within their power to reduce the risk of harm being perpetrated by non-state actors.

[55] But this requirement of some form of human agency does not mean that environmental degradation, whether associated with climate change or not, can never create pathways into the Refugee Convention or protected person jurisdiction.

The Tribunal next considered overseas authorities which set out the obvious proposition that people fleeing natural disaster cannot, for that reason alone, obtain protection outside their country under the Refugee Convention.

[56] Courts of high judicial authority have made general statements that “persons fleeing natural disaster” cannot obtain Convention-based protection: see Applicant A v Minister of Immigration and Multiethnic Affairs [1998] INLR 1 at p19 and AH (Sudan) v Secretary of State [2007] 3 WLR 832, 844. Insofar as these statements point out that the effects of natural disasters are often felt indiscriminately and do not distinguish on grounds of race, religion, nationality, membership of a particular social group or political opinion they are uncontroversial. This statement of principle

[27]

[28]

[29]

[30]

[31] will hold true in many cases, if not most cases, involving natural disasters. See here, W Kaelin and N Scherepfer Protecting People Crossing Borders In The Context Of Climate Change: Normative Gaps and Possible Approaches, UNHCR Legal and Protection Policy Research Series (February 2012), at p31; J McAdam Climate Change Displacement and Complementary Protection Standards UNHCR Legal and Protection Policy Research Series (May 2011).

But, as the Tribunal correctly recognised, there is a complex inter-relationship between natural disasters, environmental degradation and human vulnerability. Sometimes a tenable pathway to international protection under the Refugee Convention can result. Environmental issues sometimes lead to armed conflict. There may be ensuing violence towards or direct repression of an entire section of a population. Humanitarian relief can become politicised, particularly in situations where some group inside a disadvantaged country is the target of direct discrimination.

The Tribunal went on to review a number of refugee appeals relating to claimants from Tuvalu, who had similarly argued that environmental factors such as inundation, coastal erosion, or water contamination might lead to refugee status. These claims had all been dismissed because the indiscriminate nature of these environmental events did not point to any nexus with a convention ground.

The Tribunal then turned to examine the central issue of whether the applicant faced a real chance of being persecuted if he returned to Kiribati. The Tribunal saw no such evidence.

[74] There is no evidence establishing that the environmental conditions that he faced or is likely to face on return are so parlous that his life will be placed in jeopardy, or that he and his family will not be able to resume their prior subsistence life with dignity. The appellant’s brother-in-law, who remains in employment, will be able to provide continued support to the family, as he has done in the past, so as to allow them to continue to enjoy an adequate standard of living. While the appellant’s standard of living will be less than that which he would enjoy in New Zealand that, in itself, does not amount to serious harm for the purposes of the Refugee Convention.

The Tribunal additionally considered that the refugee claim must fail because the effects of environmental degradation on Kiribati and on the applicant’s standard of living were faced by the population generally. The photographic evidence and the evidence of Mr Corcoran:

… graphically demonstrate that the underlying environmental events and processes favour no civil or political status. Nor has it been suggested that the government of Kiribati has in some way failed to take adequate steps to protect [the applicant] from such harm as it is able to for any applicable Convention ground.

The Tribunal also examined s 131 of the Act which provides that a person must be recognised as a protected person in New Zealand (a different status from refugee status) under the International Covenant on Civil and Political Rights (ICCPR) if there were substantial grounds for believing that person would be in danger of being subjected to arbitrary deprivation of life or cruel treatment if deported from New Zealand.

[32] Article 6 of the ICCPR states every human being has an inherent right to life which must be protected and that no one should be arbitrarily deprived of life. There is no evidence that any act or omission of the Kiribati government pointed to any risk that the applicant would be arbitrarily deprived of his life under Article 6. There were thus no “substantial grounds” for believing the applicant or his family would be in danger of being subjected to arbitrary deprivation of life.

[33] Other arguments were briefly raised before the Tribunal based on other international covenants. It is not necessary to detail these since they were not pursued in this Court.

Grounds for relief of the High Court

[34] There is no automatic right of appeal to this Court from the Tribunal. Like many other countries, in the interests of finality and avoiding protraction (tactical or otherwise), New Zealand’s Parliament has placed limits on appeal rights. Points of law must be involved.

[35] Section 245 of the Act provides:

245 Appeal to High Court on point of law by leave

(1) Where any party to an appeal to, or matter before, the Tribunal (being either the person who appealed or applied to the Tribunal, an affected person, or the Minister, chief executive, or other person) is dissatisfied with any determination of the Tribunal in the proceedings as being erroneous in point of law, that party may, with the leave of the High Court (or, if the High Court refuses leave, with the leave of the Court of Appeal), appeal to the High Court on that question of law.

(2) Every appeal under this section must be brought—

(a) not later than 28 days after the date on which the decision of the Tribunal to which the appeal relates was notified to the party appealing; or

(3) (b) within such further time as the High Court may allow on application made before the expiry of that 28-day period.

In determining whether to grant leave to appeal under this section, the court to which the application for leave is made must have regard to whether the question of law involved in the appeal is one that by reason of its general or public importance or for any other reason ought to be submitted to the High Court for its decision.

(4) On the appeal, the High Court must determine the question or questions of law arising in the proceedings, and may then—

(a) confirm the decision in respect of which the appeal has been brought; or

(b) remit the matter to the Tribunal with the opinion of the High Court, together with any directions as to how the matter should be dealt with; or

[36] (5) Subject to subsection (2), every appeal under this section must be dealt with in accordance with the rules of the court, with any modifications necessary to reflect the provisions of this Act, including any ancillary general practices and procedures developed under section 260.

An applicant must point to an error of law. As was observed by Kos J in Taafi v Minister of Immigration,19 there are prerequisites to engaging s 245. A simple factual error alone will not suffice. The first is that an applicant must show a seriously arguable case that the Tribunal’s factual findings are incorrect. Given that there was no challenge to the appellant’s evidence before the Tribunal, it would be difficult to engage that requirement.

[37] Secondly an applicant must show that the factual errors, in combination with the Tribunal’s decision, are sufficiently grave to constitute an error of law. Thirdly, and relevantly here, there must be a question of law which is one of general public importance (a reference to s 245(3)).

[38] In short there must be an error of law discernible from the Tribunal’s decision which is of sufficient general or public importance for this Court to consider on appeal.

[39] The central thrust of the Tribunal’s decision was clearly its rejection of the applicant’s claim that climate change driven problems faced by the inhabitants of Kiribati fell inside Article 1A(2) of the Refugee Convention.

What are the applicant’s questions of law?

[40] Mr Kidd advanced six questions of law which were, with respect, somewhat imprecise. They were:

(a) The word “refugee” extends to people who are refugees from climate change and its effects and that by referring to such people as “sociological refugees” the Tribunal had erred.

(b) The Tribunal erred in finding that because all people in Kiribati suffer from the same results of “global warming” this disqualifies the applicant from claiming refugee status.

(c) Green house gases are responsible for rising sea levels and changes of weather patterns (inherent in climate change) and, as such, constitute an indirect but worldwide “human agency”.

(d) The Tribunal had failed to consider Articles 2, 3(a) and 24(1) of the

ICCPR as they might relate to the three children of the applicant and had further failed to consider Articles 24(1) and 2(a)-(c) of the United Nations

Convention on the Rights of the Child (UNCROC).

(e) The Tribunal erred in law in not considering the situation of the applicant’s children separately, particularly as regards the effect on them of water and food deprivation as New Zealand born children who, if returned to Kiribati where they had never lived,would suffer serious harm.

(f)

The factual finding of the Tribunal that the applicant’s food and water supply were adequate was a “misdirection” because of the evidence of the effects severe overcrowding and future climate change would have on the applicant and his children.

ANALYSIS

[41]

[42]

[43]

[44]

[45] I am of the clear view that this application for leave to appeal is misguided.

The plight of the inhabitants of Kiribati, of which the Kiribati government is itself aware, raises, assuming environmental degradation continues, medium-term humanitarian concerns. The predicament of the applicant himself and more importantly his three New Zealand-born children also raises humanitarian considerations.

Unfortunately for the applicant, because he has chosen to remain illegally in New Zealand, he is, under current law, precluded from applying for an immigration permit on humanitarian grounds. Changes to New Zealand citizenship law in 2005 prevent his three children from claiming New Zealand citizenship.

Humanitarian concerns and the issues of economic and environmental migrants or refugees are topics which individual states in the international community generally have to consider. But the Refugee Convention is not an available avenue for such migrants and refugees. Certainly it is not available to this applicant and his family.

Mr Kidd made a number of submissions to the contrary. He candidly submitted, however, that he had been unable to find any New Zealand, Australian, Canadian, United Kingdom, United States, or European authority which had extended the protection of the Refugee Convention to a person adversely affected by climate change. To the contrary, there are many decisions rejecting claims by people from Kiribati, Tuvalu, Tonga, Bangladesh, and Fiji on the grounds that the harm feared (environmental problems in low-lying countries attributable to climate change) does not amount to persecution and there were no differential impacts on the applicants.

[46]

[47]

[48] Counsel’s primary submission was that a person who established his way of life is seriously impaired by warfare or climate change should be entitled to the protection of the Refugee Convention. Such a person has been harmed indirectly by human agency (climate change being caused by two centuries of carbon emissions). An additional indirect human agency was overpopulation.

The Tribunal, submitted Mr Kidd, had erred when it held there was no evidence the applicant or his family would die if they were to return to Kiribati. The central Refugee Convention requirement of “persecution” equated to serious harm, not to death alone.

Turning to the applicant’s children, the Tribunal had failed to consider the obligations of the Care of Children Act 2004 and the various international law obligations which New Zealand had accepted by ratifying the United Nations Convention on the Rights of the Child (UNCROC).

[49]

[50]

[51]

[52]

[53]

[54] With reference to the Supreme Court authority of Ye v Minister of Immigration, although accepting that the circumstances were different, Mr Kidd referred to the dictum that a child’s interests were always important and were to be assessed against all other relevant circumstances. Counsel referred to the Kiribati Adaptation Programme and repeated the various environmental and resource threats faced by Kiribati which had been placed before the Tribunal.

Lying at the core of the Refugee Convention, submitted Mr Kidd, was the need to establish a well-founded fear of persecution coupled with the absence of state protection. Such a fear of persecution was present here. Persecution of inhabitants of Kiribati was actually occurring. It was not remote or speculative.

Novel and optimistic though these submissions are, they are unconvincing and must fail. On a broad level, were they to succeed and be adopted in other jurisdictions, at a stroke, millions of people who are facing medium-term economic deprivation, or the immediate consequences of natural disasters or warfare, or indeed presumptive hardships caused by climate change, would be entitled to protection under the Refugee Convention or under the ICCPR. It is not for the High Court of New Zealand to alter the scope of the Refugee Convention in that regard. Rather that is the task, if they so choose, of the legislatures of sovereign states. States, particularly those in the Pacific region, have not been oblivious to the adverse effects of climate change. The 1992 UNFCCC; the Kyoto Protocol (inspired by the UNFCCC); the 2010 Ambo Declaration involving 12 countries (including New Zealand, Australia, China, Japan, and Brazil), which was a precursor to the 2010 Cancun Adaptation Framework; and indeed the Niue Declaration flowing from the 2008 Pacific Islands Forum, are but a few examples of international and First World focus on the plight of such states as Kiribati.

The history of the last 3,000 years of human kind records huge movements of people, driven in some cases by overpopulation or scarce resources. But the globe is currently divided between independent sovereign states which would certainly resist unimpeded migration across state boundaries.

But it is unnecessary to decide this application on some “thin end of the wedge” basis. The six propositions of law advanced by the applicant are untenable.

For the reasons apparent in previous sections of this judgment, a “sociological” refugee or person seeking to better his or her life by escaping the perceived results of climate change is not a person to whom Article 1A(2) of the Refugee Convention applies. The economic environment of Kiribati might certainly not be as attractive to the applicant and his fellow nationals as the economic environment and prospects of Australia and New Zealand. But he would not, if he returns, be subjected to individual persecution. By returning to Kiribati, he would not suffer a sustained and systemic violation of his basic human rights such as the right to life under Article 6 of the ICCPR or the right to adequate food, clothing and housing under Article 11 of ICESCR. His position does not appear to be different from that of any other Kiribati national. And certainly there is no persecution or serious harm which will be visited on him for any of the five stipulated convention grounds.

[55] [56] [57] [58] [59] The appellant raised an argument that the international community itself was tantamount to the “persecutor” for the purposes of the Refugee Convention. This completely reverses the traditional refugee paradigm. Traditionally a refugee is fleeing his own government or a non-state actor from whom the government is unwilling or unable to protect him. Thus the claimant is seeking refuge within the very countries that are allegedly “persecuting” him. The Australia Refugee Review. Tribunal has stated:

In this case the Tribunal does not believe that the element of an attitude or motivation can be identified, such that the conduct feared can be properly considered persecution for reasons of a Convention characteristic as required… There is simply no basis for concluding that countries which can be said to have been historically high emitters of carbon dioxide or other greenhouse gases, have any element of motivation to have any impact on residents of low lying countries such as Kiribati, either for their race, religion, nationality, membership of a particular social group or political opinion.

Furthermore, even if there was persecution (which I do not accept), that persecution is

indiscriminate rather than based on one of the five Convention grounds.

On the second question of law, that the Tribunal erred in finding that because all people on Kiribati suffer the same results of global warming this disqualifies the applicant from claiming refugee status, the Tribunal did not reach its decision on that ground alone, nor did it make a precise finding to that effect. It instead concluded that whilst the applicant’s standard of living, if he returned to Kiribati, would be less than what he enjoyed in New

Zealand, this did not constitute serious harm for Refugee Convention purposes. Nor was the serious harm which the applicant alleged attributable to a Refugee Convention reason. The second question of law is no more than a reformulation of the first.

The third question of law is the Tribunal failed to consider an indirect human agency given that “general worldwide human agency” produced green house gases which promoted

rising sea levels and changing weather patterns inherent in climate change. Again this alleged question of law is repetitive. Quite simply the Tribunal did consider the position and the phenomenon of climate change and its causes generally.

The fourth and fifth questions of law relate to the applicant’s three children and the Tribunal’s alleged failure to consider the relevant domestic law and the effects of UNCROC and the ICCPR. These matters are not questions of law. The Tribunal had before it an appeal solely from the applicant. It is apparent from the notes of evidence before the Tribunal that it was not considering an appeal in respect of the applicant’s children or his wife. The Tribunal specifically raised with the applicant and his counsel why refugee claims were not filed for the applicant’s children. Counsel confirmed that no such claims had been filed and gave reasons for this. Similarly, at the outset of the hearing, the Tribunal clarified that the applicant’s wife was not a claimant but was merely appearing as a witness. Section 133 requires each person and every family member who seeks recognition as a refugee or protected person to make an individual claim. This was not done. Rather the position of the applicant’s wife and his children is covered by the provision of humanitarian appeals under ss 206 and 207. The considerations are different, as is the Tribunal’s jurisdiction.

[60]

[61]

[62] Sympathetic though one might be to the position of the applicant’s family, there is no identifiable error of law. Certainly the fourth and fifth questions of law do not raise matters of general public importance.

The sixth question challenges the Tribunal’s factual finding33 that supplies of food and water for the applicant and his family would be adequate were he to return to Kiribati. In submissions this was expanded to include the difficulties which would be caused to the applicant’s New Zealand born children because of their susceptibility to disease, overcrowding on Kiribati, and the future effects of climate change.

This question is essentially a question of fact not of law, and even if it were a question of law would be no more than a supplement to the applicant’s first two questions. In any event the factual finding of the Tribunal in that regard was clearly open to it on the evidence before it.

RESULT

[63] For the reasons which are apparent in the previous sections of this judgment and particularly the “Analysis” section, leave to appeal under s 245 from the 25 June 2013 decision of the Immigration and Protection Tribunal on the grounds that the decision was erroneous on points of law is refused. The attempt to expand dramatically the scope of the Refugee Convention and particularly Article 1A(2) is impermissible. The optimism and novelty of the applicant’s claim does not, in the context of well settled law and the current concerns of the international community, convert the unhappy position of the applicant and other inhabitants of Kiribati into points of law.

[64] The decision of the Tribunal is confirmed.

Costs

[65] Since the respondent has been successful it is entitled to costs on the 2B scale. I did not understand Mr Kidd to argue to the contrary.

Priestley J

(Footnotes omitted)

SUPREME COURT DECISION (2015)85

[11] As we have said, Mr Teitiota’s application for leave identifies the same six questions of law that were before the High Court and the Court of Appeal. In his written submissions in support of the application for leave, Dr Kidd identifies the key issue as being:

85 Teitiota v Ministry of Business Innovation and Employment [2015] NZSC 107 (20 July 2015).

[W]hether New Zealand’s refugee law extends protection to a person who faces environmental displacement and the operation of a number of International Conventions, most importantly relating to the care of his three children under the age of six born in NZ.

He then submits that the proposed appeal raises four points:

[12]

[13] (a) Whether as a matter of public international law an “environmental refugee” qualifies for protection under art 1A(2) of the Refugee Convention.

(b) Whether, in the alternative, the manner in which art 1A(2) is incorporated into New Zealand law provides a basis for a broader interpretation of “refugee” in s 129(1) of the Immigration Act.

(c) Whether the United Nations Convention on the Rights of the Child[14] is relevant to the assessment of “harm” for the purposes of the Refugee Convention.

(d) Whether the right to life under the ICCPR includes a right of a people not to be deprived of its means of subsistence.

We agree with the Courts below that, in the particular factual context of this case (even with the addition of the new evidence), the questions identified raise no arguable question of law of general or public importance. In relation to the Refugee Convention, while Kiribati undoubtedly faces challenges, Mr Teitiota does not, if returned, face “serious harm” and there is no evidence that the Government of Kiribati is failing to take steps to protect its citizens from the effects of environmental degradation to the extent that it can. Nor do we consider that the provisions of the ICCPR relied on have any application on these facts. Finally, we are not persuaded that there is any risk of a substantial miscarriage of justice.

That said, we note that both the Tribunal[15] and the High Court,[16] emphasised their decisions did not mean 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.

DECISION

[14] The application for leave to appeal is dismissed. Given the circumstances of the application, there is no order for costs.86

UN HUMAN RIGHTS COMMITTEE VIEWS (2020)87

CONSIDERATION OF THE MERITS

9.1

9.2

9.3 The Committee has considered the communication in the light of all the information made available to it by the parties, as provided for under article 5 (1) of the Optional Protocol.

The Committee notes the author’s claim that by removing him to the Republic of Kiribati, the State party subjected him to a risk to his life in violation of article 6 of the Covenant, and that the State party’s authorities did not properly assess the risk inherent in his removal.

The Committee recalls paragraph 12 of its general comment No. 31 (2004) on the nature of the general legal obligation imposed on States parties to the Covenant, in which it refers to the obligation of States parties not to extradite, deport, expel or otherwise remove a person from their territory when there are substantial grounds for believing that there is a real risk of irreparable harm such as that contemplated by articles 6 and 7 of the Covenant. The Committee has also indicated that the risk must be personal, that it cannot derive merely from the general conditions in the receiving State, except in the most extreme cases,88 and that there is a high threshold for providing substantial grounds to establish that a real risk of irreparable harm exists.89 The obligation not to extradite, deport or otherwise transfer pursuant to article 6 of the Covenant may be broader than the scope of the principle of non-refoulement under international refugee law, since it may also require the protection of aliens not entitled to refugee status.90 Thus, States parties must allow all asylum seekers claiming a real risk of a violation of their right to life in the State of origin access to refugee or other individualized or group status determination procedures that could offer them protection against refoulement. 91 Thus, all relevant facts and circumstances must be considered, including the general human rights situation in the author’s country of origin.92 The Committee recalls that it is generally for the organs of States parties to examine the facts and evidence of the case in order to determine whether such a risk exists, unless it can be established that this assessment was clearly arbitrary or amounted to a manifest error or a denial of justice.93

9.4 The Committee recalls that the right to life cannot be properly understood if it is

93 See: https://www.theguardian.com/world/2020/jan/20/climate-refugees-cant-be-returned-home-says-landmark-unhuman-rights-ruling. General comment No. 36 (2018) on article 6 of the Covenant on the right to life (CCPR/C/GC/36), para. 30. See, inter alia, B.D.K. v. Canada (CCPR/C/125/D/3041/2017), para. 7.3; and K v. Denmark (CCPR/C/114/D/2393/2014), para. 7.3. General comment No. 36 (CCPR/C/GC/36), para. 31. General comment No. 36 (CCPR/C/GC/36), para. 31. See, inter alia, X v. Sweden (CCPR/C/103/D/1833/2008), para. 5.18. See, inter alia, M.M. v. Denmark (CCPR/C/125/D/2345/2014), para. 8.4; B.D.K. v. Canada (CCPR/C/125/D/3041/2017), para. 7.3; see also Human Rights Committee, General Comment No. 32, Article 14: Right to equality before courts and tribunals and to a fair trial (CCPR/C/GC/32) (2007).

9.5

9.6 interpreted in a restrictive manner, and that the protection of that right requires States parties to adopt positive measures. The Committee also recalls its general comment No. 36, in which it established that the right to life also includes the right of individuals to enjoy a life with dignity and to be free from acts or omissions that would cause their unnatural or premature death.94 The Committee further recalls that the obligation of States parties to respect and ensure the right to life extends to reasonably foreseeable threats and life-threatening situations that can result in loss of life.95 States parties may be in violation of article 6 of the Covenant even if such threats and situations do not result in the loss of life.96 Furthermore, the Committee recalls that environmental degradation, climate change and unsustainable development constitute some of the most pressing and serious threats to the ability of present and future generations to enjoy the right to life.97

The Committee also observes that it, in addition to regional human rights tribunals, have established that environmental degradation can compromise effective enjoyment of the right to life,98 and that severe environmental degradation can adversely affect an individual’s well-being and lead to a violation of the right to life.99

In the present case, the Committee recalls that it must assess whether there was clear arbitrariness, error or injustice in the evaluation by the State party’s authorities of the author’s claim that when he was removed to the Republic of Kiribati he faced a real risk of a threat to his right to life under article 6 of the Covenant. The Committee observes that the State party thoroughly considered and accepted the author’s statements and evidence as credible, and that it examined his claim for protection separately under both the Refugee Convention and the Covenant. The Committee notes that in their decisions, the Immigration and Protection Tribunal and the Supreme Court both allowed for the possibility that the effects of climate change or other natural disasters could provide a basis for protection. Although the Immigration and Protection Tribunal found the author to be entirely credible, and accepted the evidence he presented, the Tribunal considered that the evidence the author provided did not establish that he faced a risk of an imminent, or likely, risk of arbitrary deprivation of life upon return to Kiribati. In particular, the Tribunal

99 General comment No. 36 (CCPR/C/GC/36), para. 3; see Portillo Cáceres et al. v. Paraguay (CCPR/C/126/D/2751/2016), para. 7.3. See Toussaint v. Canada (CCPR/C/123/D/2348/2014), para. 11.3; Portillo Cáceres et al. v. Paraguay (CCPR/ C/126/D/2751/2016), para. 7.5. See, inter alia, Portillo Cáceres et al. v. Paraguay (CCPR/C/126/D/2751/2016), para. 7.3. General comment No. 36 (CCPR/C/GC/36), para. 62. Portillo Cáceres et al. v. Paraguay (CCPR/C/126/D/2751/2016), para. 7.4 ; Inter-American Court of Human Rights, Advisory opinion OC-23/17 of 15 November 2017 on the environment and human rights, series A, No. 23, para. 47; Kawas Fernández v. Honduras, judgment of 3 April 2009, series C, No. 196, para. 148. See also African Commission on Human and People’s Rights, general comment No. 3 on the African Charter on Human and Peoples’ Rights: The Right to Life (article 4), para. 3 (States’ responsibilities to protect life “extend to preventive steps to preserve and protect the natural environment, and humanitarian responses to natural disasters, famines, outbreaks of infectious diseases, or other emergencies.”) See also European Court of Human Rights, application Nos. 54414/13 and 54264/15, Cordella and Others v. Italy, judgment of 24 January 2019, para. 157 (serious environmental harm may affect individuals’ well-being and deprive them of the enjoyment of their domicile, so as to compromise their right to private life). See European Court of Human Rights, M. Özel and others v. Turkey, judgment of 17 November 2015, paras. 170, 171 and 200; Budayeva and others v. Russia, judgment of 20 March 2008, paras. 128–130, 133 and 159; Öneryildiz v. Turkey, judgment of 30 November 2004, paras. 71, 89, 90 and 118.

9.7

9.8 found that there was no evidence that: (a) the author had been in any land dispute in the past, or faced a real chance of being physically harmed in such a dispute in the future; (b) he would be unable to find land to provide accommodation for himself and his family; (c) he would be unable to grow food or access potable water; (d) he would face life-threatening environmental conditions; (e) his situation was materially different from that of every other resident of Kiribati; or (f) the Government of Kiribati had failed to take programmatic steps to provide for the basic necessities of life, in order to meet its positive obligation to fulfill the author’s right to life. The Tribunal observed that the Government of Kiribati had taken steps to address the effects of climate change, according to the 2007 National Adaptation Programme of Action submitted by Kiribati under the United Nations Framework Convention on Climate Change.

In assessing whether the State party’s authorities provided the author with an adequate and individualized assessment of the risk of a threat to his right to life, the Committee first notes the author’s claim that the increasing scarcity of habitable land on Tarawa has led to violent land disputes that have produced fatalities. In this connection, the Committee considers that a general situation of violence is only of sufficient intensity to create a real risk of irreparable harm under articles 6 or 7 of the Covenant in the most extreme cases, where there is a real risk of harm simply by virtue of an individual being exposed to such violence on return,100 or where the individual in question is in a particularly vulnerable situation.101 In assessing the author’s circumstances, the Committee notes the absence of a situation of general conflict in the Republic of Kiribati. It observes that the author refers to sporadic incidents of violence between land claimants that have led to an unspecified number of casualties, and notes the author’s statement before the domestic authorities that he had never been involved in such a land dispute. The Committee also notes the Tribunal’s statement that the author appeared to accept that he was alleging not a risk of harm specific to him, but rather a general risk faced by all individuals in Kiribati. The Committee further notes the absence of information from the author about whether protection from the State would suffice to address the risk of harm from non-state actors who engage in acts of violence during land disputes. While the Committee does not dispute the evidence proffered by the author, it considers that the author has not demonstrated clear arbitrariness or error in the domestic authorities’ assessment as to whether he faced a real, personal and reasonably foreseeable risk of a threat to his right to life as a result of violent acts resulting from overcrowding or private land disputes in Kiribati.

The Committee also notes the author’s claims before the domestic authorities that he would be seriously harmed by the lack of access to potable water on Tarawa, as fresh water lenses had been depleted due to saltwater contamination produced by sea level rise. In this regard, the Committee notes that according to the report and testimony of the climate change researcher John Corcoran, 60 per cent of the residents of South Tarawa obtained fresh water from rationed supplies provided by the public utilities

100

101 Cf., European Court of Human Rights, Sufi and Elmi v. United Kingdom, application Nos. 8319/07 and 11449/07, judgment of 28 June 2011, paras. 218, 241. See Jasin v. Denmark (CCPR/C/114/D/2360/2014), paras. 8.8, 8.9; Warsame v. Canada (CCPR/C/102/D/1959/2010), para. 8.3.

9.9 9.11 board. The Committee notes the findings of the domestic authorities that there was no evidence that the author would lack access to potable water in the Republic of Kiribati. While recognizing the hardship that may be caused by water rationing, the Committee notes that the author has not provided sufficient information indicating that the supply of fresh water is inaccessible, insufficient or unsafe so as to produce a reasonably foreseeable threat of a health risk that would impair his right to enjoy a life with dignity

or cause his unnatural or premature death. The Committee further notes the author’s claim before the domestic authorities that his right to life had been violated because he had been deprived of his means of subsistence, as his crops had been destroyed due to salt deposits on the ground. The Committee observes the finding of the domestic authorities that, while the author stated that it was difficult to grow crops, it was not impossible. The Committee recognizes that in certain places, the lack of alternatives to subsistence livelihoods may place individuals at a heightened risk of vulnerability to the adverse effects of climate change. However, the Committee notes the lack of information provided by the author on alternative sources of employment and on the availability of financial assistance to meet basic humanitarian needs in the Republic of Kiribati. The Committee further notes the Tribunal’s observation that most nutritious crops remained available in the Republic of Kiribati. The information made available to the Committee does not indicate that when the author’s removal occurred, there was a real and reasonably foreseeable risk that he would be exposed to a situation of indigence, deprivation of food, and extreme precarity that could threaten his right to life, including his right to a life with dignity. The Committee therefore considers that the author has not established that the assessment of the domestic authorities was clearly arbitrary or erroneous in this regard, or amounted to a denial of justice.

9.10 Finally, the Committee notes the author’s assertion that he faces a risk to his right to life because of overpopulation and frequent and increasingly intense flooding and breaches of sea walls. The Committee also notes the author’s argument that the State party’s courts erred in determining the timeframe within which serious harm to the author would occur in the Republic of Kiribati, and did not give sufficient weight to the expert testimony of the climate change researcher. The Committee notes that in his comments submitted in 2016, the author asserted that the Republic of Kiribati would

become uninhabitable within 10 to 15 years. The Committee takes note of the observation of the Immigration and Protection Tribunal that climate change-induced harm can occur through sudden-onset events and slow-onset processes. Reports indicate that sudden-onset events are discrete occurrences that have an immediate and obvious impact over a period of hours or days, while slow-onset effects may have a gradual, adverse impact on livelihoods and resources over a period of months to years. Both sudden-onset events (such as intense storms and flooding) and slow-onset processes (such as sea level rise, salinization, and land degradation) can propel cross-border movement of individuals seeking protection from climate change-related harm.102 The Committee is of the view that without robust

102 See Global Compact for Safe, Orderly and Regular Migration (A/RES/73/195), para. 18 (h), (i), (l).

10. 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 of the Covenant, thereby triggering the non-refoulement obligations of sending states. Furthermore, given that the risk of an entire country becoming submerged under water is such an extreme risk, the conditions of life in such a country may become incompatible with the right to life with dignity before the risk is realized.

9.12 In the present case, the Committee accepts the author’s claim that sea level rise is likely to render the Republic of Kiribati uninhabitable. However, it notes that the timeframe of 10 to 15 years, as suggested by the author, could allow for intervening acts by the Republic of Kiribati, with the assistance of the international community, to take affirmative measures to protect and, where necessary, relocate its population. The Committee notes that the State party’s authorities thoroughly examined this issue and found that the Republic of Kiribati was taking adaptive measures to reduce existing vulnerabilities and build resilience to climate change-related harms. Based on the information made available to it, the Committee is not in a position to conclude that the assessment of the domestic authorities that the measures by taken by the Republic of Kiribati would suffice to protect the author’s right to life under article 6 of the Covenant was clearly arbitrary or erroneous in this regard, or amounted to a denial of justice.

9.13 In the light of these findings, the Committee considers that the State party’s courts provided the author with an individualized assessment of his need for protection and took note of all of the elements provided by the author when evaluating the risk he faced when the State party removed him to the Republic of Kiribati in 2015, including the prevailing conditions in Kiribati, the foreseen risks to the author and the other inhabitants of the islands, the time left for the Kiribati authorities and the international community to intervene and the efforts already underway to address the very serious situation of the islands. The Committee considers that while the author disagrees with the factual conclusions of the State party, the information made available to it does not demonstrate that the conduct of the judicial proceedings in the author’s case was clearly arbitrary or amounted to a manifest error or denial of justice, or that the courts otherwise violated their obligation of independence and impartiality.

9.14 Without prejudice to the continuing responsibility of the State party to take into account in future deportation cases the situation at the time in the Republic of Kiribati and new and updated data on the effects of climate change and rising sea-levels thereupon, the Committee is not in a position to hold that the author’s rights under article 6 of the

Covenant were violated upon his deportation to the Republic of Kiribati in 2015. The Human Rights Committee, acting under article 5 (4) of the Optional Protocol, is of the view that the facts before it do not permit it to conclude that the author’s removal to the Republic of Kiribati violated his rights under article 6 (1) of the Covenant.

FACTS

The author of the communication is Ioane Teitiota, a national of the Republic of Kiribati born in the 1970s. His application for refugee status in New Zealand was rejected. He claims that the State party violated his right to life under the Covenant, by removing him to Kiribati in September 2015. The Optional Protocol entered into force for the State party on 26 August 1989. The author is represented by counsel.

1.2 On 16 February 2016, pursuant to rule 92 of its rules of procedure, the Committee, acting through its Special Rapporteur on new communications and interim measures, decided not to request the State party to refrain from removing the author to the Republic of Kiribati while the communication was under consideration by the Committee.

Factual background

2.1

2.2 The author claims that the effects of climate change and sea level rise forced him to migrate from the island of Tarawa in the Republic of Kiribati to New Zealand. The situation in Tarawa has become increasingly unstable and precarious due to sea level rise caused by global warming. Fresh water has become scarce because of saltwater contamination and overcrowding on Tarawa. Attempts to combat sea level rise have largely been ineffective. Inhabitable land on Tarawa has eroded, resulting in a housing crisis and land disputes that have caused numerous fatalities. Kiribati has thus become an untenable and violent environment for the author and his family.

The author has sought asylum in New Zealand, but the Immigration and Protection Tribunal issued a negative decision concerning his claim for asylum. Still, the Tribunal did not exclude the possibility that environmental degradation could “create pathways into the Refugee Convention or protected person jurisdiction.” The Court of Appeal and the Supreme Court each denied the author’s subsequent appeals concerning the same matter.

2.3 In its decision of 25 June 2013, the Immigration and Protection Tribunal first examined in detail the 2007 National Adaptation Programme of Action filed by the Republic of Kiribati under the United Nations Framework Convention on Climate Change. As described by the Tribunal, the National Adaptation Programme of Action stated that the great majority of the population had subsistence livelihoods that were heavily dependent on environmental resources. The Programme of Action described a range of issues that had arisen from the existing and projected effects of climate changerelated events and processes. Among the effects of climate change, coastal erosion and accretion were most likely to affect housing, land and property. In South Tarawa, 60 sea walls were in place by 2005. However, storm surges and high spring tides had caused flooding of residential areas, forcing some to relocate. Attempts were being made to diversify crop production, for example, through the production of cash crops. Most nutritious crops were available and could be prepared into long-term preserved food. However, the health of the population had generally deteriorated, as indicated by vitamin A deficiencies, malnutrition, fish poisoning, and other ailments reflecting the situation of food insecurity.

2.4

2.5 The Tribunal next considered the expert testimony of John Corcoran, a doctoral candidate researching climate change in Kiribati at the University of Waikato in New Zealand. Mr. Corcoran, a national of the Republic of Kiribati, characterized the country as a society in crisis owing to climate change and population pressure. The islands constituting the country rose no more than three meters above sea level. Soils were generally poor and infertile. Unemployment was high. The population of South Tarawa had increased from 1,641 in 1947 to 50,000 in 2010. In Tarawa and certain other islands of Kiribati, the scarcity of land engendered social tensions. Violent fights often broke out and sometimes led to injuries and deaths. Rapid population growth and urbanization in South Tarawa had compromised the supply of fresh water. No island in Kiribati had surface fresh water. As a result of the increase in population, the rate of water extraction from the freshwater lens exceeded the rate of its replenishment through the percolation of rainwater. Waste contamination from Tarawa had contributed to pollution of the freshwater lens, rendering some of the five underground water reserves unfit for the supply of fresh drinking water. Increasingly intense storms occurred, submerging the land in certain places on South Tarawa and rendering it uninhabitable. This often occurred three or four times a month. Rising sea levels caused more regular and frequent breaches of sea walls, which were in any case not high enough to prevent saltwater intrusion over the land during high tides. Household wells in high-density housing areas could not be used as a water supply due to increasing contamination, and rainwater catchment systems were only available in homes constructed of permanent materials. Thus, approximately 60 per cent of the population of South Tarawa obtained fresh water exclusively from rationed supplies provided by the public utilities board. Trash washed onto the beach posed health hazards for local landowners. According to Mr. Corcoran, the Government of the Republic of Kiribati was taking some steps to address this. It had a Programme of Action in place to help communities adapt to climate change.103

Next, the Tribunal examined the testimony given by the author during the appeal hearing. According to the Tribunal’s description of the testimony, the author was born on an islet situated north of Tarawa, a journey of several days away by boat. He completed secondary school and obtained employment for a trading company, which ended in the mid-1990s when the company folded. He had not been able to find work since then. In 2002, the author and his wife moved in with his wife’s family in a traditionally-constructed dwelling in a village in Tarawa. The dwelling was situated on ground level and had electricity and water but no sewage services. Beginning in the late 1990s, life progressively became more insecure on Tarawa because of sea level rise. Tarawa became overcrowded due to the influx of residents from outlying islands, because most government services, including those of the main hospital, were provided on Tarawa. As villages became overcrowded, tensions arose. Also beginning in the late 1990s, Tarawa suffered significant amounts of coastal erosion during high tides. The land surface regularly flooded, and land could be submerged up to knee-deep during king tides. Transportation was affected, since the main causeway separating north

103 Mr. Corcoran’s written report was provided with the author’s comments. Entitled “Evidence of climate change impacts in Kiribati,” it includes photographs depicting, inter alia, flooding of homes after high tides, land with limited vegetation, a breached sea wall, and trash washed onto a beach.

2.6

2.7 and south Tarawa was often flooded. The situation caused significant hardship for the author and other inhabitants of Tarawa. The wells on which they depended became salinized. Salt water was deposited on the ground, resulting in the destruction of crops. The land was stripped of vegetation in many places, and crops were difficult to grow. The author’s family relied largely on subsistence fishing and agriculture. The sea wall in front of the author’s in-laws’ home was often damaged and required constant repair. The author and his wife left the Republic of Kiribati for New Zealand because they wished to have children, and had received information from news sources that there would be no future for life in their country. The author accepted that his experiences were common to people throughout the Republic of Kiribati. He believed that the country’s Government was powerless to stop the sea level rise. Internal relocation was not possible. The author’s parents lived on Tarawa but faced similar environmental and population pressures.

The Tribunal also considered the oral testimony of the author’s wife. According to the Tribunal, she testified that she was born in the late 1970s on Arorae Island, in the south of the Republic of Kiribati. In 2000, her family moved to Tarawa. She married the author in 2002. Her parents’ house there was situated on the edge of a sea wall. The house and land were not owned by her parents but belonged to a neighbor. Since her arrival in New Zealand, the neighbor had passed away, and his children had been demanding that her family vacate the house. Her family was supported financially by one of her brothers, who had obtained employment in South Tarawa. If the family were obligated to vacate the house, they would have to travel back to Arorae Island and settle on a small plot of land. She was concerned for the family’s health and wellbeing. The land was eroding due to the effects of sea level rise. The drinking water was contaminated with salt. Crops were dying, as were the coconut trees. She had heard stories of children getting diarrhea and even dying because of the poor quality of the drinking water. Land was becoming very overcrowded, and houses were close together, which led to the spread of disease.

The Tribunal also considered many supporting documents submitted by the author, including several scholarly articles written by United Nations entities and experts. The Tribunal analyzed whether the author could qualify as a refugee or a protected person under the Refugee Convention, the Convention against Torture, or the Covenant. It found the author entirely credible. It noted that the carrying capacity of the land on the Tarawa atoll had been negatively impacted by the effects of population growth, urbanization, and limited infrastructure development, particularly in relation to sanitation. These impacts had been exacerbated by both sudden-onset environmental events, such as storms, and slow-onset processes, such as sea level rise. The Tribunal noted that the author had been unemployed for several years before arriving in New Zealand, and had relied on subsistence agriculture and fishing, while receiving financial support from his wife’s brother. The Tribunal noted the author’s statement that he did not wish to return to the Republic of Kiribati because of the difficulties he and his family faced there, due to the combined pressures of overpopulation and sea level rise. The house they were living in on South Tarawa was no longer available to them on a longterm basis. Although the couple’s families had land on other islands, they would face similar environmental pressures there, and the land available was of limited size and was occupied by other family members.

2.8

2.9 After a lengthy analysis of international human rights standards, the Tribunal considered that “while in many cases the effects of environmental change and natural disasters will not bring affected persons within the scope of the Refugee Convention, no hard and fast rules or presumptions of non-applicability exist. Care must be taken to examine the particular features of the case.” After further examination, the Tribunal concluded that the author did not objectively face a real risk of being persecuted if returned to Kiribati. He had not been subjected to any land dispute in the past and there was no evidence that he faced a real chance of suffering serious physical harm from violence linked to housing/land/property disputes in the future. He would be able to find land to provide accommodation for himself and his family.104 Moreover, there was no evidence to support his contention that he was unable to grow food or obtain potable water. There was no evidence that he had no access to potable water, or that the environmental conditions that he faced or would face on return were so perilous that his life would be jeopardized. For these reasons, he was not a “refugee” as defined by the Refugee Convention.

Regarding the Covenant, the Tribunal noted that the right to life must be interpreted broadly, in keeping with the Committee’s general comment No. 6 (1982) on article 6. The Tribunal cited academic commentary stating that under article 6, an arbitrary deprivation of life involves an interference that is: (a) not prescribed by law; (b) not proportional to the ends sought; and (c) not necessary in the particular circumstances of the case.105 On this basis, the Tribunal accepted that the right to life involves a positive obligation of the state to fulfil this right by taking programmatic steps to provide for the basic necessities for life. However, the author could not point to any act or omission by the Government of Kiribati that might indicate a risk that he would be arbitrarily deprived of his life within the scope of article 6 of the Covenant. The Tribunal considered that the Government of Kiribati was active on the international stage concerning the threats of climate change, as demonstrated by the 2007 Programme of Action. Moreover, the author could not establish that there was a sufficient degree of risk to his life, or that of his family, at the relevant time. Quoting the Committee’s jurisprudence in Aalbersberg et al. v. the Netherlands (CCPR/C/87/D/1440/2005), the Tribunal stated that under the Optional Protocol, the risk of a violation of the Covenant must be “imminent.” This means that the risk to life must be, at least, likely to occur. No evidence was provided to establish such imminence. The Tribunal accepted that, given the greater predictability of the climate system, the risk to the author and his family from sea level rise and other natural disasters could, in a broad sense, be regarded as more imminent than the risk posed to the life of the complainants in Aalbersberg et al v. the Netherlands. However, the risk to the author and his family still fell well short of the threshold required to establish substantial grounds for believing that they would be in danger of arbitrary deprivation of life within the scope of article 6 of the Covenant.

104

105 The Tribunal noted that the father of the author’s wife was negotiating with the new owner of the land where the author had been living, and that an arrangement had been made to give the father time to relocate his family to their home island in the south. The Tribunal considered that while the author would need to share the available land with other members of his kin group, it would provide him and his family with access to sufficient resources to sustain themselves to an adequate level. The Tribunal cited, inter alia, Manfred Nowak, The U.N. Covenant on Civil and Political Rights: CCPR Commentary (Kiehl, NP Engel, 2005), p. 128-29.

This risk remained firmly in the realm of conjecture or surmise. There was no evidence establishing that his situation in the Republic of Kiribati would be so precarious that his or his family’s life would be in danger. The Tribunal noted the testimony of the author’s wife that she feared her young children could drown in a tidal event or storm surge. However, no evidence had been provided to establish that deaths from such events were occurring with such regularity as to raise the prospect of death occurring to the author or his family members to a level rising beyond conjecture and surmise, let alone a risk that could be characterized as an arbitrary deprivation of life. Accordingly, there were not substantial grounds for believing that the author or any of his family members would be in danger of a violation of their rights under article 6 of the Covenant. The Tribunal also found that there was not a substantial risk that the author’s rights under article 7 of the Covenant would be violated by his removal.

2.10 The author also provided a copy of the decision of the Supreme Court, which denied the author’s appeal of the decision of the Tribunal on 20 July 2015. The Court considered, inter alia, that while the Republic of Kiribati undoubtedly faced challenges, the author would not, if returned there, face serious harm. Moreover, there was no evidence that the Government of the Republic of Kiribati was failing to take steps to protect its citizens from the effects of environmental degradation to the extent that it could. The Supreme Court was also not persuaded that there was any risk that a substantial miscarriage of justice had occurred. Nevertheless, the Court did not rule out the possibility that environmental degradation resulting from climate change or other natural disasters could “create a pathway into the Refugee Convention or other protected person jurisdiction.”

AC TUVALU (2014) 106

INTRODUCTION

[1]

[2]

[3] These are appeals against decisions of a refugee and protection officer, declining to grant refugee status and/or protected person status to the appellants, citizens of Tuvalu.

The appellant in NZIPT [2014] 800517 is the husband of the appellant in NZIPT [2014] 800518. They will be referred to as “the husband” and “the wife” respectively. They are the parents of the appellants in NZIPT [2014] 800519 and 800520 who will be referred to as “the children”. The wife is the responsible adult for the children in terms of section 375(1) and (2) of the Immigration Act 2009 (“the Act”).

The appellants claim that there are substantial grounds for believing that they will be in danger of being arbitrarily deprived of their lives or in danger of being subjected to cruel treatment if returned to Tuvalu because of the effects of climate change in Tuvalu. The central issue to be determined by the Tribunal is whether the Government of Tuvalu can be said to be failing to take steps within its power to protect the appellants’ lives from the effects of climate change such that their lives can be said to be “in danger” and whether or not the harm they fear amounts to cruel treatment as that term is defined under the Act.

IMMIGRATION AND PROTECTION TRIBUNAL [2014] NZIPT 800517-520 NEW ZEALAND AT AUCKLAND, 4 June 2014.

[4] Given that the appellants’ claims derive to a significant extent from the general conditions in Tuvalu, it is appropriate to first set out some salient features, before turning to detail the experiences and concerns of the appellants.

LAND TENURE IN TUVALU

[9]

[10]

[11] As much of the appellants’ case revolved from their having a lack of access to land on which to build a house in Tuvalu, it is also necessary to say something about land tenure in Tuvalu.

Rates of customary land tenure are highly variable across the Pacific. As regards Tuvalu specifically, between 95 per cent of the land is held in customary tenure, with only 5 per cent publicly owned. Less than 0.1 per cent is held in freehold title. All customary land has, however, been registered; see Australian Agency for International Development, Making Land Work Volume One: Reconciling customary land and development in the Pacific (Canberra, 2008), Table 2.1, at p4.

As noted in the 2007 NAPA at p16, access to land, particularly in Funafuti for those from outlying islands is an important issue. To understand this importance, it is necessary to see the role of land and the place and significance of customary land tenure within the wider Pacific setting. The role of land in Pacific society generally is described in the report of South Pacific Forum Secretariat’s Land Management and Conflict Minimisation Project Guiding Principles and Implementation Framework for Improving Access to Customary Land and Maintaining Social Harmony in the Pacific (Suva, 2008). As the title of the project suggests, in the Pacific region, land ownership and usage can be highly contested. The report, at pp20-24, details the importance of land in the Pacific and some of the issues arising. The report states:

“Land is integral to the people of the Pacific, being a traditional source of sustenance, social and political relationships and identity. Traditional access to and use and management of land is closely tied to the social fabric of communities, and customary tenure defines not only the nature and scale of economic development but also social harmony. Land is a sensitive issue because it has a much broader meaning for indigenous Pacific people than just its value as an economic commodity. For the people of the Pacific, ties to land are central to identity and provide a sense of belonging. The importance to the people of the Pacific of acknowledging customary land tenure as the foundation of land management cannot be overemphasised. Sensitivities over land partly also arise because of tensions and conflicts that come to the surface during elections, when people’s emotions are manipulated for political ends.”

[12] As to customary land tenure the report notes:

“Customary land is “owned” by groups with different rights held by individuals, defined by inheritance and social relationships. In traditional societies “ownership” of land relates to the notion of custodianship, where individuals and society jointly have a responsibility and duty of care towards current and future generations. Customary land is also a source of social insurance. For indigenous Pacific people, ties to land bring together ecological, geophysical, social, spiritual and economic dimensions, … Decisions about

the transfer of land (through gift or purchase) were usually made communally or, in chiefly societies, by chiefs or “big men”. At the community level, individuals made decisions about land over which they had individual use rights. Conflicts were mediated by senior members of the community with expert knowledge of group genealogy and history and using sanctioned mediation processes.”

[13] Land-related conflict is not uncommon. The report notes, at p22, that internal ruralto-urban migration and emigration has created additional problems: “Urbanisation and migration have raised the lack of clarity of the rights of members of landowning groups who are away from their land for extended periods of time, as well as the issue of access to customary land for settlement, while ensuring that landowners do not lose their superior rights. Not only do these challenges cause local-level anxiety and disagreement, they can lead to conflicts that are taken to courts. Such conflict resolution processes can be time consuming and affect economic growth.”

CURRENT AND PROJECTED IMPACTS IN TUVALU OF ENVIRONMENTAL DEGRADATION LINKED TO CLIMATE CHANGE

[14]

[15] The 2007 NAPA, at p13, notes both that, as a low-lying tropical island state, Tuvalu is no stranger to natural disasters and that “it is anticipated that Tuvalu will suffer the greatest from adverse impacts of climate change”.

Drawn from stakeholder consultations in all island communities, the 2007 NAPA, at p12, identified the most common vulnerabilities currently faced by Tuvaluans in the context of climate change. These were: (a) Coastal Erosion - Loss of land due to coastal erosion was evident on all islands of Tuvalu. Sea-level rise, flooding, storm surges, tropical cyclones and major hurricanes were identified as the main contributing factors, although building aggregates excavation and coastal development activities had also contributed. Coastal erosion contributed to the destruction of coastal coconut tree plantations. Also, erosion due to heavy rainfall resulted in sedimentation in central and coastal areas, affecting coastal and lagoon fisheries. (b) Flooding and inundation - February 2006 saw the worst ever flooding and inundation on Funafuti, resulting in the evacuation of some families. Other islands also experienced flooding and inundation into new areas. Climate- related hazards such as tropical cyclones and storm surges were expected to exacerbate these problems. (c) Water stress - Population growth had increased public demand for potable water, the main source of which came from rainwater. Vulnerability to water stress was caused by the lack of household water storage facilities and changes to rainfall patterns due to climate change and variability. Water shortages contributed to skin diseases and other health problems. (d) Destruction to primary sources for subsistence - An increase in the occurrence of new crop diseases and pests, including fruit-fly infestation, was attributed by stake-holders to climate change and variability. Tropical cyclones, storm surges and coastal flooding had destroyed coastal coconut plantations. Coastal fisheries were also affected by sea-surface temperature changes and the increasing frequency of extreme events. (e) Damage to individual and community assets - Coastal infrastructures such as harbours, church buildings, cooperative shopping centres, clinics and dispensaries, the tar sealed road in Funafuti and household properties were all exposed to the destructive forces of extreme events such as tropical cyclones, storm surges, droughts, and fires.

[16]

[17]

[18]

[26]

[27] As regards potential future vulnerabilities due to the impacts of climate change, the 2007 NAPA notes that these will depend on the frequency and intensity of climate-related hazards. Population growth is already placing pressure on sensitive environments and major sources of food security and livelihoods, and these effects can be exacerbated by the adverse effects of climate change. Drought is anticipated to increase in severity in the future. The low elevation and limited land area of Tuvalu meant that the most direct and severe anticipated effects of climate change will be an increasing risk of coastal erosion, flooding and inundation. Other anticipated direct effects were stated to include an increase in dengue fever risks and water borne diseases, an increase in human stress, and decreasing agricultural yields.

Particular emphasis has been placed by counsel on the issue of access to safe water. In this regard, the 2007 NAPA recognises at p26 that: “One of the most critical national challenges with respect to impacts of climate change and sea level rise is the quality and availability of potable water for the people due to unpredictability of changes and variability in climate and weather patterns.”

It notes that low monthly rainfall frequently results in water shortages on Funafuti. While this usually occurs during the dry season (June-Sept), if it coincides with El Nino in the adjacent wet season (October-April), the resulting water shortage crisis will be prolonged. Increasing frequency of drought and longer periods of low rainfall causes increases in groundwater salinity, which adversely affects subsistence agriculture and increases skin diseases and eye infections. Groundwater was an alternative source of water in the past, which supplemented public water supply and is also the main source of water for agriculture, plants and crops. More than 60 per cent of pulaka pit plantations had been devastated by saltwater intrusion and, over time, saltwater intrusion is expected to impact other agricultural fruit trees such as coconut, breadfruit and pandanus.

The husband told the Tribunal that, over time, he noticed significant changes in X and indeed the other islands due to climate change. While there had always been inundation of the land from the seaward side during the hurricane season, he noticed that over time land would be partially submerged from both the lagoon and the seaward side during monthly king-tides. Trees close to the shoreline began to die and it became more difficult to grow food compared to what he remembered as a small boy and from what he understood previous generations had grown from the oral stories that were told to him. The husband also noticed a problem of coastal erosion on X and the other islands where he lived.

The only source of fresh water on the island was rain water, but the collection systems were somewhat haphazard and the water was often contaminated. It required boiling to be rendered safe and, even then, was of a marginal quality. While, as a boy, he had been used to that water, he nevertheless still suffered from sores and skin complaints which he attributed to the lack of decent water. Problems were exacerbated during times of drought. While teaching on another island, there was a severe drought and the government, at the island’s request, shipped a tanker full of desalinated water. While the water tasted quite “rusty”, nevertheless people drank it.

[28]

[32]

[33] The husband told the Tribunal that he fears for his own and particularly his wife and children’s safety if returned. Although he is a teacher, he has heard that it is difficult to obtain teaching jobs in Tuvalu and that there are many teachers who are unemployed. He does not think he would be able to find work. While his sisters and their families are here in New Zealand they will not be in a financial position to provide him with ongoing support. Nor does he think he could get help from community or church-based organisations. He is particularly anxious about the effect on his children of having to drink contaminated and substandard water.

These experiences have made the wife anxious for her children’s future in Tuvalu. The government does not have the medical facilities and the medicines are generally not available to keep children healthy. There is no immunisation programme such as there is in New Zealand. She is also anxious about their general livelihoods if returned to Tuvalu. They have nowhere to go. The husband has told her that the house where they lived in X is no longer available to them and that the land had been taken away from them. He has no family living in Tuvalu anymore and although family members are working in New Zealand they would not be able to provide them with money to help. Although the wife has some family members in Tuvalu they are not working and are not in a position to help her. She has lost contact with one of her brothers and another brother is here in New Zealand.

The wife is also worried about the effects of sea-level rise. The land on Y is frequently inundated by the sea, making it difficult for plants to grow. During king tides the houses are often surrounded by water. She has no recourse to the land which belonged to her father.

ASSESSMENT

[38] Under section 198 of the Immigration Act 2009, on an appeal under section 194(1)(c) the Tribunal must determine (in this order) whether to recognise the appellants as:

(a) refugees under the 1951 Convention Relating to the Status of Refugees (“the Refugee Convention”) (section 129); and

(b) protected persons under the 1984 Convention Against Torture (section 130); and

[39] In determining whether the appellants are refugees or protected persons, it is necessary first to identify the facts against which the assessment is to be made. That requires consideration of the credibility of the appellants’ account.

CREDIBILITY

[40]

[41] The Tribunal accepts the appellants as credible witnesses as to their background and experiences in Tuvalu.

It is therefore accepted that the husband and wife come from different islands in Tuvalu. The husband is a qualified teacher who for a number of years prior to his departure for New Zealand worked as a teacher on various islands. The couple stayed in rented

accommodation which was of a higher standard than that which they occupied when living on their respective home islands. They suffered the deaths of two children during the late stages of pregnancy. In 2007 they came to New Zealand. The Tribunal accepts that they are concerned about the effects of climate change and general conditions in Tuvalu for both themselves but particularly for their children. The Tribunal accepts the husband has no land available to him in X and that if they were to have to return to Tuvalu it would be to Z. Their claims will be assessed against this background.

THE REFUGEE CONVENTION

[42]

[43]

[44] Section 129(1) of the Act provides that: “A person must be recognised as a refugee in accordance with this Act if he or she is a refugee within the meaning of the Refugee Convention.”

Article 1A(2) of the Refugee Convention provides that a refugee is 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; or who, not having a nationality and being outside the country of his former habitual residence as a result of such events, is unable or, owing to such fear, is unwilling to return to it.”

In terms of Refugee Appeal No 70074 (17 September 1996), the principal issues are:

(a)

(b) Objectively, on the facts as found, is there a real chance of the appellant being persecuted if returned to the country of nationality?

If the answer is yes, is there a Convention reason for that persecution?

[45] In the submissions of 30 May 2013, counsel submitted that the appellants are entitled to be recognised as refugees. However, in both a pre-hearing conference and on the morning of the hearing it was accepted that, in light of the Tribunal’s reasoning in AF (Kiribati), there was no basis upon which any of the appellants could be recognised as refugees. Whatever harm they faced in Tuvalu due to the anticipated adverse effects of climate change, it did not arise by reason of their race, religion, nationality, membership of any particular social group or political opinion. Their refugee claims were abandoned.

[46] The position taken by the Tribunal in AF (Kiribati) as regards the Refugee Convention in the context of natural disasters has been endorsed on appeal by both the High Court and, most recently, by the Court of Appeal; see, respectively: Teitiota v Chief Executive of the Ministry of Business, Innovation and Employment [2013] NZHC 3125 and Teitiota v Chief Executive of the Ministry of Business, Innovation and Employment [2014] NZCA 173.

THE CONVENTION AGAINST TORTURE

[47] Section 130(1) of the Act provides that: “A person must be recognised as a protected person in New Zealand under the Convention Against Torture if there are substantial grounds for believing that he or she would be in danger of being subjected to torture if deported from New Zealand.”

[48] Section 130(5) of the Act provides that torture has the same meaning as in the Convention Against Torture, Article 1(1) of which states that torture is: “… any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for such purposes as obtaining from him or a third person information or a confession, punishing him for an act he or a third person has committed or is suspected of having committed, or intimidating or coercing him or a third person, or for any reason based on discrimination of any kind, when such pain or suffering is inflicted by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity. It does not include pain or suffering arising only from, inherent in or incidental to lawful sanctions.”

[49] On the morning of the hearing, Ms Curtis indicated that the appellants were not making any allegation that they were at risk of being tortured as that phrase is defined under the Act. That claim was also abandoned.

[50] What remains in issue, however, is the claim to be recognised as protected persons on the basis of section 131 of the Act. It is to that issue the Tribunal turns.

The claims under Articles 6 and 7 of the ICCPR

[51] Section 131 of the Act provides that: “(1) A person must be recognised as a protected person in New Zealand under the Covenant on Civil and Political Rights if there are substantial grounds for believing that he or she would be in danger of being subjected to arbitrary deprivation of life or cruel treatment if deported from New Zealand…. (6) In this section, cruel treatment means cruel, inhuman, or degrading treatment or punishment.”

[52] By virtue of section 131(5): “(a) treatment inherent in or incidental to lawful sanctions is not to be treated as arbitrary deprivation of life or cruel treatment, unless the sanctions are imposed in disregard of accepted international standards: (b) the impact on the person of the inability of a country to provide health or medical care, or health or medical care of a particular type or quality, is not to be treated as arbitrary deprivation of life or cruel treatment.”

SUBMISSIONS OF COUNSEL

[53]

[54] Counsel submits that each of the appellants – but the appellant children in particular – are in danger of suffering the arbitrary deprivation of life or of being subjected to cruel, inhuman or degrading treatment in Tuvalu. Citing McAdam (op cit, 2011), in the memorandum dated 30 May 2013 at paragraphs 2.1.and 2.2 and 2.18, counsel submits that the proper focus of the inquiry under section 131 should be on the ability and willingness of the Government of Tuvalu to mitigate against the harm, and not the underlying cause of the harm – in this case climate change. Nor is the fact that the harm stems, in part, from slow-onset processes relevant. The relevant issue is on the severity of harm arising and not on the timing. The anticipated harm need not be “imminent or subject to any time test”; see memorandum at paragraph 2.11.

Further, citing various decisions of the European Court of Human Rights (“ECtHR”) in relation to the broadly analogous Article 3 of the European Convention on Human Rights, it is submitted that the harm the appellants face reaches “a minimum level of severity” to fall within the prohibition of cruel, inhuman or degrading treatment; Soering v United Kingdom (1989) 11 EHRR 439. Further, inhuman treatment did not have to be deliberate;

Image: Courts are vital in grappling with climate change, but law, policy and practice will be particularly key in securing human rights for everyone affected by global warming. Ben Knight.

[55]

[56]

[57]

[58]

[59] see Labita v Italy (2008) 46 EHRR 1224 at [120]. Nor is it necessary that the Government of Tuvalu intends to cause degrading treatment to the appellants; Peers v Greece (2001) 33 EHRR 51 at [74].

Particular emphasis is placed by counsel on access to safe drinking water. It is submitted that the prohibition of inhuman treatment does not require that the Government of Tuvalu intends to deprive it citizens of drinking water. Having been provided with a copy of the Tribunal’s decision in AF (Kiribati), at paragraphs 1.3– 1.7 of the memorandum of 1 April 2014, counsel submits that, while recognising the issue, the Government of Tuvalu is not taking concrete steps to address the problem. In particular, it “is not taking active steps to materialise their recognition of the lack of water on Tuvalu and its impact on the health of children and women”. It is, counsel submits, failing to take any steps at the regulatory level and relies on donor countries’ “generosity and ability to provide assistance”. This failure to take steps to secure access to safe drinking water in sufficient quantity could lead to death and amounted to a risk of arbitrary deprivation of life.

It is further submitted that particular regard must be had to the specific vulnerabilities of the appellant children. Regard must be had to the best interests of the child principle; EM (Lebanon) v Secretary of State for the Home Department [2008] UKHL 64 at [28]; HS v Secretary of State for the Home Department [2010] CSIH 97 at [15].

In broad terms, the Tribunal accepts that the submission that the nature of the underlying environmental factor is not determinative of the issues to be decided. However, the Tribunal rejects the submission that timing is irrelevant to the inquiry under Section 131. Section 131 mandates a forward looking assessment of risk and protects against qualifying harm which is “in danger” of occurring. This equates to something akin to the “real chance” test under the Refugee Convention; that is to say, the evidence must establish that a future risk amounting to more than mere conjecture or surmise, but need not be established as being ‘more probable than not’ or ‘likely to occur’; see AF (Kiribati) at [98]–[90] and AI (South Africa) [2011] NZIPT 800050 at [80]–[85].

This forward looking assessment of risk means that the slow-onset nature of some of the impacts of climate change such as sea-level-rise will need to be factored into the inquiry as to whether such ‘danger’ exists at the time the determination has to be made. As to whether anticipated harm arising in the context of slow-onset process may reach the threshold of the claimant being ‘in danger’, much will depend on the nature of the process in question, the extent to which the negative impacts of that process are already manifesting, and the anticipated consequences for the individual claimant. This assessment is necessarily context-dependent.

The Tribunal does accept that, within this context, the focus of the inquiry under section 131 is on state protection from any qualifying harm – arbitrary deprivation of life or cruel, inhuman or degrading treatment or punishment – and whether the protection that is available reduces the risk of that harm to below the “in danger” threshold. In the context of natural disasters, Walter Kaelin and Nina Schrepfer Protecting People Crossing Borders In The Context Of Climate Change: Normative Gaps and Possible Approaches, UNHCR Legal and Protection Policy Research Series (February 2012), at p64, note:

[60]

[61]

[62] “In the case of disasters, the assumption should be that these authorities continue to be willing to provide protection and necessary assistance, but in many cases it will be clear that the ability to do so is at least temporarily limited or even non- existent. From a protection perspective, the needs of affected people combined with the inability to obtain necessary protection and assistance from the country of origin must be the primary consideration.”

However, just as the fact that the harm arises in the context of a natural disaster or exposure to the negative effects of climate change does not exclude it from the scope of section 131, nevertheless, as will be seen, the context in which it arises is not wholly irrelevant to the inquiry. This context will shape the specific content of the state’s duty to protect and thus inform the answer to the question of whether any risk to life can be said to be an ‘arbitrary deprivation’ or any action or failure to act by the state amounts a ‘treatment’ or ‘punishment’.

It is also important to recall that the references to a protection perspective in the literature must, in the context of New Zealand’s domestic arrangements, be tempered by the fact that the inquiry under section 131 involves a relatively narrow band of qualifying harm. The Tribunal rejects the submission that section 131 should be interpreted so as to offer protection from all anticipated harm of sufficient severity that is in danger of occurring. Section 131 is clear. It is self- evidently intended to protect only against arbitrary deprivation of life or against cruel, inhuman or degrading treatment or punishment. While these harms are undoubtedly of a serious and severe kind, this is not to say that all severe harm which may result from removal will necessarily amount to the arbitrary deprivation of life or cruel, inhuman or degrading treatment or punishment. As will be discussed below, the 2009 Act expressly preserves a humanitarian jurisdiction in which harm falling outside the scope of the protected person jurisdiction can be considered.

Counsel’s submissions refer to the reliance by the Government of Tuvalu on assistance from overseas partner governments, United Nations agencies and international non-governmental organisations. As will also be discussed below, the Tribunal does not accept the submission that this provides any basis for finding that the appellants are in danger of suffering ‘arbitrary’ deprivation of life as the result of the state failing to take steps to protect their lives from known environmental hazards, nor that such measures constitute cruel treatment under the Act.

[63] In order to understand why this is so, it is necessary to say something about the role that human rights play in the context of natural disasters.

NATURAL DISASTERS AND THE PROTECTION OF HUMAN RIGHTS

Some general observations

[64] In a recent article, ‘The Human Rights Dimension of Natural or Human-Made Disasters’ (2012) 55 German Yearbook of International Law 119–147. Professor Walter Kälin, the former United Nations Special Rapporteur for Internally Displaced Persons, charts the growing recognition of the relationship between international human rights law and natural disasters. At pp125-127, he contrasts the lack of explicit mention of disasters in

[65]

[66]

[67]

[68] multi-lateral human rights treaties such as the ICCPR and the International Covenant on Economic Social and Cultural Rights which entered into force in the mid-1960s, and the more recent 2006 Convention on the Rights of Persons with Disabilities. The latter, at Article 11, obliges States Parties to take “all necessary measures to ensure the protection and safety of persons with disabilities in situations of risk, including… the occurrence of natural disasters”.

Kälin, at p121, describes the relationship as “multi-dimensional”, comprising: (a) a factual dimension, in that disasters may seriously affect the enjoyment of rights; (b) a legal dimension, in that human rights may entitle an individual to be protected against certain hazards and their effect on the enjoyment of rights; and (c) an operational dimension, in that human rights may help shape disaster management and suggest a rights-based approach to disaster relief.

Elements of all three dimensions identified by Kälin, are relevant to the inquiry mandated by the protected person protection jurisdiction under the Act. As noted in AF (Kiribati) at [62]:

“As is reflected in the 2005 Hyogo Declaration and the 2005-1015 Hyogo Framework for Disaster Reduction, in respect of which over 160 states were present for its adoption, it is now generally accepted that states have a primary responsibility to protect persons and property on their territory from the impact of disasters and to undertake disaster risk reduction measures. Consistent with this understanding, the European Court of Human Rights (ECtHR) has examined the duty to protect the right to life in the context of natural disasters. In Oneryaldiz v Turkey, [2004] ECHR 657 at para 89 and Budayeva & Ors v Russia Application No 15339/02 (20 March 2008), the ECtHR found a violation of the right to life of those killed because the authorities in each case had not discharged positive obligations to protect life against risks from known and imminent environmental hazards”.

The existence of an obligation on states to protect rights in the context of natural disasters is increasingly recognised in the work of treaty monitoring bodies, particularly the Committee on Economic Social and Cultural Rights and the Committee on the Rights of the Child. Kälin notes, at p127, that the latter, in particular, has mentioned disaster-related issues in over 20 of its concluding observations on States Parties’ reports. He continues: “Human rights provisions in general not only entail negative duties to respect relevant guarantees and refrain from violating them, but also to impose positive obligations to become active and take measures to protect rights holders against infringement of their rights by third parties, or as a result of particularly dangerous situations, or to provide them with the means necessary for the enjoyment of rights. The duties to protect and fulfil are obviously relevant to disaster responders, for instance when evacuating people form danger zones or providing humanitarian assistance.”

While the protected person jurisdiction under section 131 is a narrow one, embracing only Articles 6 and 7 of the ICCPR, the growing recognition of the existence of positive duties on states under international human rights law in the context of natural disasters is significant. It provides a protection-oriented contour law around which claims for recognition as a protected person under section 131 of the Act may in principle wrap, both

in the context of claims based on a danger of being subjected to arbitrary deprivation of life, and of suffering cruel, inhuman or degrading treatment. But complicated issues arise for consideration. In particular, whether the risk of such future harm transcends mere conjecture or surmise and, whether the harm feared is of sufficient seriousness or severity to fall within the scope of Article 7 of the ICCPR will need to be carefully considered.

[69] Just as in the refugee context past persecution can be a powerful indicator of the risk of future persecution, so too can the existence of a historical failure to discharge positive duties to protect against known environmental hazards be a similar indicator in the protected person jurisdiction. Nevertheless, given the forward looking nature of the inquiry, the nature of the hazard, including its intensity and frequency, as well as any positive changes in disaster risk reduction and operational responses in the country of origin, or improvements in its adaptive capacity, will need to be accounted for.

[70] While these issues may give rise to significant evidential and legal challenges, it cannot be maintained that natural disasters (or man-made disasters for that matter) – and whether not caused or exacerbated by climate change – may not, at least in general terms, provide a context in which a claim for recognition as a protected person under the Act may be properly grounded.

[71] Having set out these general observations, it is now possible to chart more fully the analysis in each type of protected person claim.

NATURAL DISASTERS, CLIMATE CHANGE AND PROTECTION FROM THE ARBITRARY DEPRIVATION OF LIFE

[72] Article 4(2) of the ICCPR provides that the right to life under Article 6 ICCPR is non-derogable, even in the event of a “public emergency threatening the life of a nation” – which has been recognised to include a “natural catastrophe”; see Human Rights Committee General Comment No 29 States of Emergency (Article 4) CCPR/C/21/Rev.1/ Add.11 (31 August 2001) at paragraph [5]. In other words, the prohibition on arbitrary deprivation of life which is domesticated under section 131 is not suspended simply because the state concerned is threatened by, or is experiencing, a natural disaster.

[73] In AF (Kiribati), the Tribunal examined the scope of the right not to be arbitrarily deprived of life within the context of natural disasters as a component of the protected person jurisdiction under section 131 of the Act. It noted, at [83], that not all risks to life fall within the ambit of section 131, just those risks to life which arise by means of “arbitrary deprivation”. Citing the decisions of the ECtHR in Budayeva and others v Russia Application No 15339/02 (20 March 2008) and Oneryiliz v Turkey [2004] ECHR 657, and international instruments such as the Hyogo Framework for Action 2005–2015, the Tribunal held that that prohibition on arbitrary deprivation of life must take into account the positive obligation on the state to protect the right to life from risks arising from known environmental hazards, an obligation which applied to both man-made and natural disasters. Therefore, failure to do so may, in principle, constitute an omission for the purposes of the prohibition on the arbitrary deprivation of life; see discussion at paragraphs [84]-[87].

[74]

[75] There is one further aspect of the Budayeva decision relating to the scope of state obligations in such cases which needs emphasising. After noting its decision in Oneryiliz, the ECtHR drew a distinction between the circumstances of the two cases. Whereas in Oneryiliz the underlying hazard was man-made (the presence and explosive potential of methane gas in a dump site) and in the nature of a “dangerous activity”, the circumstances in Budayeva involved an underlying hazard of natural origin (mudslides), but where human vulnerability to that hazard had arisen because of the construction of the town where the applicants lived in the hazard-prone area as part of a large-scale industrial project in the 1950s. The Court stated (citations omitted): “135. In this respect an impossible or disproportionate burden must not be imposed on the authorities without consideration being given, in particular, to the operational choices which they must make in terms of priorities and resources…; this results from the wide margin of appreciation States enjoy, as the Court has previously held, in difficult social and technical spheres… This consideration must be afforded even greater weight in the sphere of emergency relief in relation to a meteorological event, which is as such beyond human control, than in the sphere of dangerous activities of a man-made nature. 136. In assessing whether the respondent State had complied with the positive obligation, the Court must consider the particular circumstances of the case, regard being had, among other elements, to the domestic legality of the authorities’ acts or omissions…, the domestic decision-making process, including the appropriate investigations and studies, and the complexity of the issue, especially where conflicting Convention interests are involved… 137. In the sphere of emergency relief, where the State is directly involved in the protection of human lives through the mitigation of natural hazards, these considerations should apply in so far as the circumstances of a particular case point to the imminence of a natural hazard that had been clearly identifiable, and especially where it concerned a recurring calamity affecting a distinct area developed for human habitation or use… The scope of the positive obligations imputable to the State in the particular circumstances would depend on the origin of the threat and the extent to which one or the other risk is susceptible to mitigation.”

The Tribunal agrees. Translating these statements into the context of the present appeals, this is not a case of a dangerous activity amenable to domestic regulation causing an environmental hazard due to poor regulation. The disasters that occur in Tuvalu derive from vulnerability to natural hazards such as droughts and hurricanes, and inundation due to sea-level rise and storm surges. The content of Tuvalu’s positive obligations to take steps to protect the life of persons within its jurisdiction from such hazards must necessarily be shaped by this reality. While the Government of Tuvalu certainly has both obligations and capacity to take steps to reduce the risks from known environmental hazards, for example by undertaking ex-ante disaster risk reduction measures or though ex-post operational responses, it is simply not within the power of the Government of Tuvalu to mitigate the underlying environmental drivers of these hazards. To equate such inability with a failure of state protection goes too far. It places an impossible burden on a state.

NATURAL DISASTERS, CLIMATE CHANGE AND THE PROHIBITION ON CRUEL, INHUMAN OR DEGRADING TREATMENT

The scope of the prohibition under the Immigration Act 2009

[76]

[77] The nature and scope of this aspect of the protected person jurisdiction was examined in detail in BG (Fiji) [2012] NZIPT 800091. The Tribunal considered the scope of the prohibition on cruel, inhuman or degrading treatment or punishment under Article 7 of the ICCPR, which had been domesticated under this limb of section 131 of the Act. It noted that it was never intended by the drafters of the ICCPR that general socio-economic conditions should constitute ‘treatment’ for the purposes of Article 7 of the ICCPR but that, in certain circumstances, state acts or omissions which resulted in socio-economic harm could constitute a treatment. Examples included: (a) the deliberate infliction of socioeconomic harm by state agents or a failure to intervene while non-state agents did the same; (b) the adoption of a particular legislative, regulatory or policy regime in relation of a section of the population to whom the individual belongs (such as asylum seekers); and (c) the failure to discharge positive obligations towards persons wholly dependent on the state for their socio-economic well-being (such as detainees).

As for the focus of section 131, at [172]–[185], the Tribunal examined the development of the implied non-refoulement obligation under Article 7 of ICCPR. It noted what it described as the orthodox approach, in which it must be established that there is some qualifying harm – the arbitrary deprivation of life or cruel treatment as defined under the Act – in the receiving state. It further noted the development of what it described as a ‘modified approach’ by the ECtHR in relation to Article 3 of the European Convention on Human Rights, the regional analogue to Article 7 of the ICCPR, which the Court held extended to situations where proscribed harm arose not because of any “treatment” in the receiving state – the orthodox position – but where a sufficient level of suffering was a readily foreseeable consequence of the treatment of the host state in expelling or otherwise removing the person from its territory.

[82] It must be remembered that an identical humanitarian jurisdiction existed in respect of removal from New Zealand under section 47(3) of Immigration Act 1987, which had no protected person jurisdiction. The deliberate retention by Parliament of this free-standing humanitarian jurisdiction when domesticating the implied non-refoulement obligations under Article 7 of the ICCPR under section 131 of the Immigration Act 2009, signals a clear parliamentary intention that the ECtHR’s modified approach is not to apply. This intention is further signalled by the express terms of section 131(5)(b) which provides that the inability of the receiving country to provide health or medical care of a particular kind or quality - the issues which drove the development of the modified approach by the ECtHR - is not to be regarded as cruel treatment.

‘Treatment’ in the context of natural disasters

[83] But this rejection for the modified approach should not be understood as meaning that cruel treatment for the purposes of section 131 of the Act could never arise in the context of natural disasters. As recognised in AF (Kiribati) at [57], the relationship between natural disasters, environmental degradation, and human vulnerability to those

[84] disasters is complex and, within this complexity, pathways into the protection regimes in the 2009 Act can, in some circumstances, exist. The Tribunal, at [58], acknowledged that “the reality is that natural disasters do not always occur in democratic states which respect the human rights of the affected population”. Examples include where: (a) due to political weighting, state response to natural disasters fails to meet the recovery needs of marginalised groups; (b) the provision of post-disaster humanitarian relief may become politicised; and (c) the increased vulnerability of persons displaced in the wake of natural disasters increases the risk of them being subjected to cruel treatment (for example, being trafficked) by non-state actors against whom the state is unwilling or unable to provide effective protection.

Just as it was not intended that consequences of general socio-economic policy should constitute a treatment under Article 7 of the ICCPR, nor does the mere fact that a state lacks the capacity to adequately respond to a naturally occurring event mean that such inability should, of itself, constitute a ‘treatment’ of the affected population. However, the existence of positive state duties in disaster settings means that, in some circumstances, it may be possible for a failure to discharge such duties to constitute a treatment. Specific examples will be the discriminatory denial of available humanitarian relief and the arbitrary withholding of consent for necessary foreign humanitarian assistance. These two forms of ‘treatment’ form aspects of what Kälin and Schrepfer (op cit) at p65, describe as the “criterion of permissibility” in relation to the ‘returnability’ of persons to countries affected by natural disasters. They argue: “There are certain cases where human rights law, by analogy to the refugee law principle of non-refoulement, prohibits return of certain persons. Such prohibition exists where there are substantial grounds to believe that an individual would face a real risk of torture or cruel, inhuman or degrading treatment or punishment, or arbitrary deprivation of life if sent back to a particular country. Arguably, this prohibition could apply in cases where a rejection at the border or return would expose an individual to an imminent danger for life and limb related to the disaster causing their displacement, or to the absence of adequate provision of protection and assistance by their home country.”

[85] It is necessary to say something further about each.

Discriminatory distribution of available relief

[86] As remarked in AF (Kiribati), the denial of available domestically situated humanitarian assistance such as essential food aid or shelter may create a risk of the arbitrary deprivation of life. Under the interpretive approach adopted by the Tribunal in BG (Fiji) in relation to the concept of ‘treatment’, which includes policy measures directed at a particular segment of the population (see [76(b)] above), it can also be seen that a policy which omits a particular section of a disaster- affected population from the provision of available post-disaster relief may constitute a ‘treatment’ of individuals within that population for the purposes of section 131 of the Act.

Arbitrary denial of foreign humanitarian assistance

[87]

[88]

[89] In certain circumstances, the denial of foreign humanitarian assistance may also constitute a ‘treatment’. This aspect derives from the duty to co-operate as a core norm of international law. Article 1(3) of the United Nations Charter proclaims one of the purposes of the United Nations to be: “To achieve international co-operation in solving international problems of an economic, social, cultural, or humanitarian character, and in promoting and encouraging respect for human rights and for fundamental freedoms for all without distinction as to race, sex, language, or religion;”

The duty to co-operate to promote the enjoyment of rights is given further emphasis in Articles 55 and 56 of the Charter. Article 56 obliges states to act “jointly and separately” for the realisation of human rights as well as economic and social progress and development. The duty on states to co-operate to promote and protect human rights is given emphasis in Article 2(1) of the International Covenant on Economic Social and Cultural Rights and in the work of its treaty monitoring body, the Committee on Economic Social and Cultural Rights; see General Comment No 3: the Nature of States Parties Obligations under the Covenant, HRI/GEN/1/Rev 7 (2004) at paragraph [14]; General Comment No 12: The Right to Adequate Food, E/C 12/1999/5 (1999) at paragraph [36]; General Comment No 4: The Right to Adequate Housing at paragraph [19] and General Comment No 14: The Right to the Highest Attainable Standard of Health E/C.12/2000/4 (2000) at paragraph [45]. The committee has explicitly addressed natural disasters, asserting its understanding that states have a joint and individual responsibility “to cooperate in providing disaster relief and humanitarian assistance in the times of emergency, including assistance to refugees and internally displaced persons”; see General Comment No 12 (op cit) at paragraph [38].

The 1989 United Nations Convention on the Rights of the Child, at Article 4, similarly provides that States Parties have an obligation to secure economic, social and cultural rights of children “within the framework of international cooperation”. The Committee on the Rights of the Child has also emphasised the duty on states to seek international assistance; see General Comment No 5: General Measures of Implementation CRC/ GC/2003/5 (2003) at paragraph [60].

[90]

[91] The existence of a duty to accept assistance as an aspect of the wider international law norm of co-operation between states is further supported by General Assembly Resolutions 45/100 (1990) A/RES/45/100 and 46/182 (1991) A/RES/46/182. The latter, in particular, deals with the content of this duty. While it affirms the right of the sovereign state to decide whether or not to accept offers of assistance, this is qualified by the statement that those states with populations in need of humanitarian assistance “are called upon” to facilitate the work of humanitarian organisations from outside its borders to deliver essential aid including food, shelter and medical and health care”; see paragraphs [5] and [6].

In 2006, the United Nations International Law Commission identified the topic “Protection of persons in the event of disasters” for inclusion in its long-term programme of work. A number of reports based on relevant aspects of existing public international law such as the duty to co-operate, and on existing international legal instruments and texts relating

[92]

[93]

[94]

[95] to various aspects of disaster prevention and relief assistance, have been prepared by the Special Rapporteur on the Protection of Persons in the Event of Disasters, Mr Eduardo Valencia- Ospina. Draft articles setting out the relevant principles that have been prepared and adopted by the Commission. A summary of those accepted together with commentary thereon can be found in: International Law Commission Report of the 63rd Session (2011) A/66/10 at Chapter IX, Draft Articles on the Protection of Persons in the Event of Disasters. Draft Articles 5, 9, 10 and 11(2), are particularly relevant. Draft Article 5 deals with the duty to co-operate. Draft Article9 deals with the role of the affected State which, “by virtue of its sovereignty, has the duty to ensure the protection of persons and provision of disaster relief and assistance on its territory” and “has the primary role in the direction, control, coordination and supervision of such relief and assistance”.

Draft Article 10 deals with the duty of the affected State to seek assistance and provides:

“The affected State has the duty to seek assistance, as appropriate, from among third States, the United Nations, other competent intergovernmental organizations and relevant nongovernmental organizations if the disaster exceeds its national response capacity.”

By way of commentary, the Commission’s report notes that concerns were expressed by some states as regards couching the article in language which implies a legal ‘duty’ to seek assistance. In response, the Commission observed, at p264:

“The Commission considers that the duty to seek assistance in draft article 10 derives from an affected State’s obligations under international human rights instruments and customary international law. Recourse to international support may be a necessary element in the fulfilment of a State’s international obligations towards individuals where an affected State considers its own resources are inadequate to meet protection needs.”

Draft Article 11 deals with the duty of the affected State not to arbitrarily withhold its consent and provides:

“1. Consent to external assistance shall not be withheld arbitrarily if the affected State is unable or unwilling to provide the assistance required.

2. When an offer of assistance is extended pursuant to draft article 12 of the present draft articles, the affected State shall, without delay, notify all concerned of its decision regarding such an offer.”

As regards the international law foundations for draft Article 11 relating to the prohibition on the arbitrary withholding of consent, the Commission’s report, at p270, states:

“The term “arbitrary” directs attention to the basis of an affected State’s decision to withhold consent. The determination of whether the withholding of consent is arbitrary must be determined on a case-by-case basis, although as a general rule several principles can be adduced. First, the Commission considers that withholding consent to external assistance is not arbitrary where a State is capable of providing, and willing to provide, an adequate and effective response to a disaster on the basis of its own resources. Second, withholding consent to assistance from one external source is not

[96]

[97] arbitrary if an affected State has accepted appropriate and sufficient assistance from elsewhere. Third, the withholding of consent is not arbitrary if the relevant offer is not extended in accordance with the present draft articles. In particular, draft article 6 establishes that humanitarian assistance must take place in accordance with principles of humanity, neutrality and impartiality, and on the basis of non-discrimination. Conversely, where an offer of assistance is made in accordance with the draft articles and no alternate sources of assistance are available, there would be a strong inference that a decision to withhold consent is arbitrary.”

It is, however, important not to overstate matters. These are draft Articles and not part of a binding international law treaty on the protection of persons in situation of natural disasters. Further, while Article 56 of the United Nations Charter has proven particularly influential in the development of norms relating to the protection of human rights, the scope of the duty to co-operate under international law is uncertain; T Stoll “Article 56” in B Simma, D-E Khan, G Nolte and A Paulus (eds) The Charter of the United Nations: A Commentary (3rd ed) (Oxford University Press, Oxford, 2012). While these points are acknowledged, the existence of some form of positive duty to seek foreign assistance where necessary and not to arbitrarily withhold consent for such assistance is, as observed by the International Law Commission, grounded firmly in general principles of international human rights law. Such a duty also coheres with the widespread state consensus around the existence of state obligations of protection generally in disaster settings as reflected in the Hyogo Framework for Action.

In light of the above matters, and taking the interpretive approach to ‘treatment’ set out in BG (Fiji), the Tribunal finds where a state is not in a position to provide humanitarian assistance to persons within its jurisdiction affected by natural disasters, the arbitrary withholding of consent for foreign humanitarian assistance to be deployed is a measure which can be properly regarded as ‘treatment’ for the purposes of section 131 of the Act.

[98] Two final points need emphasising, however. First, as noted by the International Law Commission, not all refusals of consent will be arbitrary and thus provide a factual foundation for finding a treatment exists. As Kaelin (op cit) at p146 notes, whether or not refusal to allow humanitarian assistance is ‘arbitrary’ requires case-by-case determination. Second, as already noted in the context of section 131 generally, it must be shown that there is a prospective risk of such treatment occurring to such a degree that extends beyond mere speculation or surmise. It must be borne in mind that, as in any other case, the appellant must produce sufficient and compelling information and evidence to establish that a danger of such treatment exists at the time of determination.

APPLICATION TO THE FACTS

As to the danger of the appellants being subjected to arbitrary deprivation of life

[99] It is accepted that the husband has experienced some low-level tension and conflict over land in the past. However, it has not been suggested by him or counsel that this gives rise to a risk that his life is in danger.

[100] It is accepted that life for the appellants in Tuvalu will, in many ways, be more challenging [101] [102] than here in New Zealand. While the appellants’ lives can be expected to be more challenging from an economic perspective, there is no evidence before the Tribunal to establish that, if returned to Tuvalu, the appellants’ lives would be so precarious as a result of any act or omission by the state that they are in danger of being arbitrarily deprived of their lives. Although much was made of the fact that the husband could not find employment this, at the end of the day, is mere speculation. He is not shut out of the labour market in Tuvalu, nor has he encountered any discrimination in finding employment in the past. He has managed to find employment in the past and, while he may not necessarily be able to find employment as a teacher, he has a range of skills and experience gained in both New Zealand and Tuvalu which he can utilise to seek

employment outside this sector as needs be. As regards the socio-economic aspect of the right to life, country information does not establish that the husband would be seeking to find employment in a labour market where failure to do so for a period of time would result in a level of socio-economic deprivation to an extent which results in the appellants’ lives being ‘in danger’ of being arbitrarily deprived. In closing arguments, counsel drew attention to the statement in the Millennium Development Goal Progress Report prepared by Tuvalu which states that it was unlikely to meet Millennium Development Goal 1A which relates to halving, between 1990 and 2015, the proportion of people whose income is less than $1 per day. Insofar as it is suggested that this is evidence of an omission for which the state can be held accountable, the Tribunal notes the reason given by Tuvalu for it being unlikely to meet this target was due to surges in the prices of food and fuel in 2008 and the economic crisis in 2009 “that negated some of the achievements made in previous years”. To the extent that this goal was under threat, it does not appear to be the result of any act or omission on the part of the state. Furthermore, the report notes that Millennium Development Goal 1C, which relates to halving the number of people who suffered from hunger, had been achieved. This further evidences that, while poverty-related challenges remain, there is no basis for finding that the state is failing to take steps to address issues such that the lives of any of

the appellants are “in danger” on this basis. Nor is there any evidence before the Tribunal that the state is failing to take steps within its power to protect the lives of its citizens from known environmental hazards – including those associated with the effects of climate change – such that any of the appellants’ lives can be said to be “in danger”. The report submitted by Tuvalu in January 2013 in respect of its Universal Periodic Review before the Human Rights Council, (“the UPR national report”) details the various steps taken by Tuvalu to address the impacts of climate change on its territory and population. It notes that, with assistance from the Global Environment Fund, the Government established a National Adaptation Programme of Action Project (“the NAPA project”) which has targeted three areas of implementation, namely: coastal areas including food security and home-gardening on all islands, agriculture and water. The report states, at paragraph 75:

“The three focal areas address the deficiency issues of food security, accessibility to fresh and safe water, to better the agricultural standards on some of the islands and managing fishing grounds to provide the community with adequate food source.”

[103] [104] [105] [107] The UPR National Report notes, at paragraph 77 that the NAPA project has provided households on Nanumea with 60 water storage tanks for agricultural purposes and that the European Development Fund and Save the Children have assisted Tuvaluan households by providing plastic water tanks for safe water catchment and storage. The NAPA project also assisted in building water systems on Nanumea to address water

shortage issues. On the issue of water stress and resilience, counsel drew heavily on the Asian Development Bank report Asian Water Development Outlook 2013. It was argued that the lack of data which precluded Tuvalu being included in a graph which indexed resilience to water-related disaster was symptomatic of a failure of Tuvalu to take steps. However, even assuming that the lack of data explained Tuvalu’s exclusion from this list, the evidence as a whole does not support such a conclusion. Indeed, Appendix 1 to this report includes an entry for Tuvalu which, while giving it an overall index rating of 2 (presumably with 1 the

lowest and 5 the highest), the household water security is given a rating of 3 out of 5. That steps are being taken in relation to access to safe water to ensure that the lives of citizens are not “in danger” is reflected in the press release which accompanied the Report of the United Nations Special Rapporteur (“UNSR”) on the Human Right to Safe Drinking Water and Sanitation (19 July 2012) produced on appeal. The UNSR notes that, as of 2010, 98 per cent of the population had access to improved sources of water and some 85 per cent of the population had improved sanitation facilities. Nevertheless, challenges remained. The UNSR noted that water could not be drunk directly from storage tanks but had to be boiled. Gutters and collection mechanisms were not maintained and septic tanks were leaking into the ground water supply. Also, there was a lack of clear legal and institutional frameworks to deal with some of these challenges. Nevertheless, the UNSR understood that it rains enough in Tuvalu to accommodate people’s needs generally, though the water harvesting system was not utilised to its maximum potential.

[106] In relation to climate change more broadly, the UPR National Report, at paragraphs [78]–[80], details the various awareness-raising programmes that have been conducted on each island including the training of teachers on Funafuti and outer islands in order to streamline climate change into the educational curriculum. In 2010, the Government’s NAPA project hosted an outer island consultation to identify priorities and plan the implementation of these priorities. Targeted participants included community leaders and members, women

and youth. That challenges remain in this area is also acknowledged in the UPR National Report which, at paragraph [81], notes the NAPA project and other climate change adaptation measures face challenges and constraints. These include the accessibility and availability of funds to procure materials for project development, complex United Nations funding processes, the unavailability of materials to progress projects, poor internal management systems and slow staff recruitment processes.

[108] While it is accepted that challenges do exist, particularly in relation to food and water security in Tuvalu, in light of the information as a whole, the Tribunal finds that it has not been established that Tuvalu, as a state, has failed or is failing to take steps to protect the lives of its citizens from known environmental hazards such that any of the appellants would be in danger of being arbitrarily deprived of their lives.

As to the danger of being subjected to cruel treatment

[109] There is no evidence before the Tribunal to establish that the husband and wide belong to a section of the Tuvaluan population in respect of which the Government of Tuvalu has implemented policy measures or failed to discharge positive obligations in response to past natural disasters amounting to cruel treatment. There is no evidential basis upon which to find such a risk would arise in the future. On the contrary, the country information cited above establishes that the Government of Tuvalu is taking steps but relies heavily on donor governments and agencies to provide assistance to meet the challenges faced by its citizens from natural disasters and the adverse impacts of climate change. However, far from amounting to cruel treatment under the Act, this activity is entirely in keeping with the duty to co-operate under international law and the duty to seek assistance where domestic capacity is lacking as outlined above.

[110]

[111] A recent example occurred in 2011, when Tuvalu experienced an extreme shortage of water forcing the government to declare a state of emergency. In conjunction with international partners such as Australia and New Zealand and the International Federation of the Red Cross and Red Crescent (“IFRC”), Tuvalu acted quickly. Red Cross volunteers delivered tarpaulin packs, water containers and 10,000 litres of water to the communal water tank on Nukulaelae Island during its first assessment trip. The New Zealand Red Cross assisted with two emergency desalination units which were operating with full capacity within three hours of arrival and were producing 4,000 litres of clean water per day; see Reeni Amin Chua “Red Cross Response to Water Crisis in Drought-stricken Tuvalu” (16 October 2011).

In addition to these temporary measures, more long-term solutions were secured with the assistance of international aid from Australia and New Zealand. The report “Tuvalu: Securing Tuvalu’s Water Supply” (6 December 2012) <www.reliefweb.int> notes that the Australian Government provided AUS$1.4 million to support Tuvalu’s long-term water security. Working with New Zealand, the Australian Government delivered one million litres of clean drinking water. The Australian Agency for International Development (“AusAID”) also funded 607 water tanks for residents on Funafuti with a further 150 water tanks for schools on outer islands. AusAID also financed three further solar powered desalination units which were hoped to “significantly improve supply of fresh water across the country and lessen the risk of another disaster”.

[112]

[113] More broadly, the UPR national report notes that the Government of Tuvalu has been active in the international arena in lobbying support for a second commitment period to the Kyoto protocol and ongoing negotiations for an international convention on loss and damage.

It is clear, then, that the Government of Tuvalu is actively engaged in seeking to reduce the impacts of climate change on its territory and population. However, it faces significant financial and other capacity constraints. To this end, it is clear that Tuvalu needs support from the international community and that some level of support has been requested and provided. This conduct is consistent with an emerging recognition of the existence of a duty on states to not arbitrarily refuse permission for foreign humanitarian assistance to be utilised in the wake of natural disasters where domestic capacity to secure the continued enjoyment of rights is lacking.

[114] On the evidence before the Tribunal, there is no basis for finding that there is a danger of the appellants being subjected to cruel treatment by the state failing to discharge its obligations to protect its population and territory from the adverse impacts of natural disasters and climate change.

CONCLUSION

[120] For the foregoing reasons, the Tribunal finds that the appellants:

(a) are not refugees within the meaning of the Refugee Convention;

(b) are not protected persons within the meaning of the Convention Against Torture;

[121] (c) are not protected persons within the meaning of the Covenant on Civil and Political Rights.

The appeals are dismissed.

B L Burson Member

(Footnotes omitted)

AD (TUVALU)(2014)107

INTRODUCTION

[1]

[2] These are humanitarian appeals by the appellants, citizens of Tuvalu, under section 194(5) and (6) and 195(6) and (7) of the Immigration Act 2009 (“the Act”) against liability for deportation on the ground of being unlawfully in New Zealand. The decision needs to be read in conjunction with the contemporaneously issued decision of the Tribunal in respect of the refugee and protected person claims lodged by the appellants; see AC (Tuvalu) [2014] NZIPT 800517-520.

The appellants claim that if deported to Tuvalu they will be separated from the husband’s family, all of whom are living in New Zealand as either citizens or residents, and with whom they have particularly close bonds. The appellants also claim that they will be at risk of suffering the adverse impacts of climate change and socio-economic deprivation. The primary issue for determination is whether these factors, either alone or in combination, amount to exceptional circumstances of a humanitarian nature. For the reasons which follow, the Tribunal is satisfied that this is the case and that it would not be contrary to the public interest to allow the appellants to remain in New Zealand. They, and their two children, are each to be granted residence visas.

107 IMMIGRATION AND PROTECTION TRIBUNAL NEW ZEALAND [2014] NZIPT 501370-371 AT AUCKLAND.

BACKGROUND

[3]

[4]

[5]

[6] The appellant in NZIPT [2014] 501370 is the husband of the appellant in NZIPT [2014] 501371. They will be referred to as “the husband” and “the wife” respectively. They have two children who were born in New Zealand in mid-2008 and late 2011 and are five and three years old respectively. The two children are included in the father’s humanitarian appeal.

The husband and wife are both aged in their early 30s. They are nationals of Tuvalu. The appellants arrived in New Zealand in late 2007 together with the husband’s mother as the holders of visitor visas. In 2008, the husband was offered employment working as a maintenance manager at a fast-food restaurant and made an application for a work permit. This application was unsuccessful. Despite the existence of another potentially viable pathway to residence under then immigration instructions, acting under the advice of an immigration agent, the husband instead lodged an application under the Pacific Access Category even though he was not eligible to do so as he had become unlawful in New Zealand in February 2009. Therefore, although his application was selected in a ballot which took place in mid-June 2009, it could not be pursued.

The husband then attempted to regularise his immigration status by way of the issue of a work permit but this was unsuccessful. Instead, in October 2010, he was granted a threemonth visitor permit to allow him to pursue registration as a teacher. This did not happen and, in February 2011 he became unlawful in New Zealand for a second time. A further application by him to be issued with an interim visa to allow him to remain in New Zealand to apply for a residence class visa on the basis he was the last remaining sibling in Tuvalu was rejected by Immigration New Zealand in June 2011. The immigration officer noted that while the husband may well have a pathway towards a New Zealand residence class visa, given that the process might be a lengthy one, it was not appropriate to grant a visa to allow him to remain in New Zealand while that application was assessed.

The appellants and their two children lodged claims for refugee and protected person status in November 2012. By decision dated 27 March 2013, their claims were dismissed by the Refugee Status Branch and by decision dated 4 June 2014 the Tribunal has dismissed their appeals from that decision.

THE APPELLANTS’ CASE

[7] The husband’s humanitarian appeal is based, in part, on the same grounds as his claim to be recognised as a protected person. Additionally, he claims that he will be separated from his five sisters and their families, all of whom reside in New Zealand, and from his mother who is also a New Zealand resident and to whom he is particularly close.

EVIDENCE OF THE APPELLANTS

[8] The husband and wife lived in Tuvalu until 2007. The husband obtained a teaching qualification and taught at various primary schools on different islands in Tuvalu between 1999 and 2007. The wife competed her schooling and, in approximately 2000, obtained work as a pre-school teacher-aid in her home island. However, this finished after two years when the pre-school closed due to a lack of funding.

[9] Life became increasingly more difficult in Tuvalu due to the effects of climate change and overpopulation. The husband’s home island of X became increasingly more vulnerable to inundation by sea-water as a result of sea-level rise. Whereas, he recalled that, as a small child, the land was only inundated by storm surges during the hurricane season, now land on both the lagoon and seaward sides of the island was inundated with sea-water regularly during monthly king-tides. This resulted in coastal erosion. Trees died and it became progressively more difficult to grow crops. Similar problems affected the wife’s home island.

[10]

[11]

[12] The husband and wife met when he came to teach on her home island. She had returned there after a period of time in Z, where she had stayed with her mother to attend highschool. The wife and her mother had to leave Z when the house they were staying in became overcrowded.

While teaching in islands other than his home island, the husband and wife stayed in accommodation rented from the government. This was generally of a more solid construction and had better facilities than the husband and wife’s family dwellings on their home islands. Following the death of the husband’s father in 2001, the owner of the land on which their family dwelling stood, told the husband that his family could no longer live there.

The couple wished to start a family. However, two babies died at advanced stages of pregnancy. The appellants attribute this to the lack of the full range of medical services that were available in Tuvalu. Concerned about the future and the life any children they had would have in Tuvalu, in 2007 the husband and wife travelled to New Zealand accompanied by the husband’s mother.

[13] Over time, all but one of the husband’s six sisters have migrated to New Zealand and have obtained New Zealand residence or citizenship. These sisters have their own families here and the siblings and their families share a close relationship. Culturally, as the only son, the husband is the one who is required to look after his mother. She has health issues and the husband is responsible for taking her to the doctor and hospital as required. The wife is now integrated into the husband’s family.

MATERIAL AND SUBMISSIONS RECEIVED

[14] On 31 May 2013, the Tribunal received submissions from the appellants’ former representative in support of the humanitarian appeal. It was submitted that the appellants would be deprived of their ability to have “a safe and fulfilling life” if forced back to Tuvalu because of the effects of climate change. Attached to those submissions were: (a) Selected excerpts from Concluding Observations of the Committee on the Elimination of Discrimination Against Women: Tuvalu (7 August 2009); (b) Two selected excerpts from national report submitted by the Government of Tuvalu to Human Rights Council for the Universal Periodic Review (12 September 2008); (c) Press statement by United Nations Special Rapporteur on the human right to safe drinking water and sanitation (19 July 2012); (d) United States Department of Labour Bureau of International Labour 2011 Findings on the Worst Forms of Child Labour – Tuvalu (26 September 2012); (e) Various other excerpts from reports as set out in appeal submissions; and (f) Bundle of photographs showing effects of water inundation on Z, people sleeping on the runway due to overcrowding and other aspects of life in Z.

[15]

[16] On 1 October 2013, the Tribunal received from counsel now representing the appellants, documents relating to the eldest child who now attends primary school. The early reports confirm he has “become fully integrated” and made some “great relationships” with his peers in class.

On 1 April 2014, the Tribunal received a further bundle of information relating to the situation in Tuvalu and also further certificates, worksheets and other certificates issued by the eldest child’s school, together with a championship certificate issued by his local athletics club of which he is a member.

STATUTORY GROUND OF APPEAL

[17]

[18] The grounds for determining a humanitarian appeal are set out in section 207 of the Act: (1) The Tribunal must allow an appeal against liability for deportation on humanitarian grounds only where it is satisfied that- (a) There are exceptional circumstances of a humanitarian nature that would make it unjust or unduly harsh for the appellant to be deported from New Zealand; and (b) It would not in all the circumstances be contrary to the public interest to allow the appellant to remain in New Zealand.

The Supreme Court stated that three ingredients had to be established in the first limb of section 47(3) of the former Act, the almost identical predecessor to section 207(1): (i) exceptional circumstances; (ii) of a humanitarian nature; (iii) that would make it unjust or unduly harsh for the person to be removed from New Zealand. The circumstances “must be well outside the normal run of circumstances” and while they do not need to be unique or very rare, they do have to be “truly an exception rather than the rule”, Ye v Minister of Immigration [2009] NZSC 76, [2010] 1 NZLR 104 at [34].

ASSESSMENT

THE PRESENCE OF THE HUSBAND’S FAMILY IN NEW ZEALAND

[19]

[20] Letters in support have been filed by the husband’s mother and four of his sisters. In her letter, the husband’s mother states that of her seven children all but one live in New Zealand. The remaining child, a daughter, lives in Fiji. She herself has been living in New Zealand for over six years. The husband’s mother confirms that she has been living with the appellants ever since their arrival from Tuvalu. She relies entirely on the husband as the only son in the family for her needs. Whenever a situation affects her he is the one who has to assist. She has hip and knee pain which impacts upon her mobility. The husband assists her to the car, takes her to the doctor and to church. She regards the wife as her own daughter and is very close to her. She interacts daily with the appellant children and is “deeply saddened” by the thought of the appellants having to leave New Zealand.

The letters that have been filed from the husband’s sisters confirm that they all enjoy a close relationship with the appellants. One of the sisters resides in the same city and they are enjoying family life together. The other sisters live in different parts of the country. One of these sisters confirms that the removal of the husband would affect her own children because he is their only maternal uncle and that her children are close to the appellant children. The appellants’ deportation would affect her and her sisters because, as the only

brother, they rely on him culturally, physically, emotionally and spiritually. She speaks to the appellants daily and visits every summer, when they enjoy doing things together as a family.

WIDER INTEGRATION INTO THEIR COMMUNITY

[21] In support of an application made to Immigration New Zealand for a visa to allow him to remain in New Zealand, a letter dated 16 February 2012 was filed from the reverend of the Tuvalu Christian church, a copy of which is on the Immigration New Zealand file. The reverend speaks highly of the husband’s personal attributes, and confirms that he is an active member of the congregation and is a “dedicated member” of the church choir and in youth fellowships.

[22] It is also clear from the letters that have been filed that the eldest child has to some extent become integrated into the New Zealand school system. Although he is only young it appears he is settling well into school life in New Zealand.

THE BEST INTEREST OF THE CHILDREN APPELLANTS

[23]

[24] As already noted the two children are aged five and three years. As an action affecting them, the Tribunal is required under Article 3 of the 1989 United Nations Convention on the Rights of the Child to have regard to their best interests when considering the question of their removal from New Zealand and to make this a primary consideration in its assessment.

Although not New Zealand citizens, both children were born in New Zealand and have never been to Tuvalu. Life in New Zealand as part of an extended family network is the only life they have known. The eldest of the children has commenced schooling in New Zealand, albeit at new-entrant level.

[25] Also, their young age makes them inherently more vulnerable to natural disasters and the adverse impact of climate change as noted above.

[26] In light of these matters, the best interests of the children clearly are to remain living with their parents in New Zealand as part of an extended family group.

CLIMATE CHANGE AND ENVIRONMENTAL DEGRADATION AS A HUMANITARIAN

Circumstance

[27] Much has been made in the submissions of the vulnerability of the appellants, as citizens of Tuvalu, to the adverse impacts of climate change as a humanitarian factor in this case. That exposure to the impacts of natural disasters can, in general terms, constitute a circumstance of a humanitarian nature is something which is reflected in state practice. Although expressed in different ways and conferring different forms of relief, a number of states have policies in place to provide for temporary protection in this regard. For a comprehensive summary see Jane McAdam Climate Change, Forced Migration, and International law (Oxford University Press, Oxford, 2012) at pp100-115. See also Walter Kälin and Nina Schrepfer Protecting People Crossing Borders in the Context of Climate Change: Normative Gaps and Possible Approaches, UNHCR Legal and Protection Policy Research Series (February 2012), at pp45-46.

[28] The current and future impacts of climate change on human systems and well-being has been expressly acknowledged in the recent report of the Intergovernmental Panel on Climate Change Working Group Two Climate Change 2014: Impacts, Adaptation, And Vulnerability – Summary for Policymakers (IPCC, Bonn, 2014) at p7. It is also widely accepted that the impacts of climate change can adversely affect the enjoyment of basic human rights. That such impacts may affect enjoyment of human rights was expressly acknowledged in AF (Kiribati) [2013] NZIPT 800413 at [63].

[29] In the refugee and protection decision in relation to these appeals, the Tribunal considered in detail the exposure of the Tuvaluan population to natural hazards generally, and in the context of climate change. It noted that Tuvalu, as a country comprising low-lying topical islands was “no stranger to natural disasters” and is particularly vulnerable to the adverse impacts of climate change. Environmental degradation caused or exacerbated by climate change was already a feature of life in Tuvalu; see [14]-[18]. These impacts included coastal erosion, flooding and inundation, increasing salinity of fresh ground-water supplies, destruction of primary sources of subsistence, and destruction of personal and community property. As for future vulnerabilities, the Tribunal noted, at [16]: “As regards potential future vulnerabilities due to the impacts climate change, the 2007 [Tuvalu National Adaptation Programme of Action] notes that these will depend on the frequency and intensity of climate-related hazards. Population growth was already placing pressure on sensitive environments and major sources of food security and livelihoods, and these effects can be exacerbated by adverse effects of climate change. Drought was anticipated to increase in severity in the future. The low elevation and limited land area of Tuvalu meant that the most direct and severe anticipated effects of climate change will be an increasing risk of coastal erosion, flooding and inundation. Other anticipated direct effects were stated to include an increase in dengue fever risks and water borne diseases, an increase in human stress, and decreasing agricultural yields.”

Conclusion on Exceptional Circumstances of a Humanitarian Nature

[30]

[31]

[32] The Tribunal is satisfied that, when the above matters are taken into account on a cumulative basis, there are exceptional circumstances of a humanitarian nature, which would make it unjust or unduly harsh for the appellants to be removed from New Zealand.

The appellants are well-loved and integral members of a family which has, effectively, migrated to New Zealand in its entirety. The husband’s mother, the matriarch of the family, particularly relies on the husband as the only son for her mobility and health-care needs. Of the 22 grandchildren in the family, all but three are in New Zealand. Significantly, the Sibling and Adult Child category under which the husband may well have qualified for residence was closed in May 2012, and no longer provides the husband with an alternative pathway to maintain his relationship with his family. The deportation of the appellants to Tuvalu would amount to an unusually significant disruption to a dense network of family relationships spanning three generations in New Zealand. It would also impact upon the quality of life for the husband’s mother, a New Zealand resident, who relies on him for her mobility-related needs.

As for the climate change issue relied on so heavily, while the Tribunal accepts that exposure to the impacts of natural disasters can, in general terms, be a humanitarian

circumstance, nevertheless, the evidence in appeals such as this must establish not simply the existence of a matter of broad humanitarian concern, but that there are exceptional circumstances of a humanitarian nature such that it would be unjust or unduly harsh to deport the particular appellant from New Zealand.

[33] It is not, however, necessary on the facts of this appeal to reach any conclusion on this issue in relation to any of the appellants as the Tribunal is satisfied that by reason of the other factors identified in this case, there are exceptional circumstances of a humanitarian in the sense contemplated by Glazebrook J in Ye v Minister of Immigration, and that it would be unjust or unduly harsh for the appellants to be deported from New Zealand.

Public Interest

[34]

[35]

[36] There is no adverse public interest in this case. The husband has professional qualifications as a teacher and has been in employment in a semiskilled role for a fast-food chain. The husband is a qualified teacher and has the potential to qualify as a teacher in this country and act as a role model for other resident or citizen children of Tuvaluan origin.

The Tribunal does not overlook that the husband and wife became unlawful in New Zealand in 2009 and remained here without status for some short periods of time. However, the Tribunal notes that this arose, in part, due to the erroneous advice of his then immigration agent on whom he relied on and that during this period of unlawful presence in New Zealand, the husband was seeking to regularise his status and was partially successful in doing so. This is not a case of someone unlawful in New Zealand seeking to hide from New Zealand immigration authorities. The breach of the Immigration Act in this case does not outweigh the other positive factors in this case and create a public interest in deporting him.

Both the husband and wife have clear New Zealand Police clearance certificates dated 1 May 2014. A clear Tuvalu Police certificate was filed with the work permit application. They have not been back to Tuvalu since 2007 and it is not necessary to obtain a further police clearance certificate from there.

DETERMINATION AND ORDERS

[37] Pursuant to section 210(1)(a) of the Act, the appellants are granted resident visas.

[38] The appeals are allowed.

B L Burson Member

PAKISTAN

22. Thus far we have reviewed the key climate change cases from two of the leading countries 23. 24. that have judicially addressed these issues, namely the Netherlands and New Zealand.

Now we turn to a country that should have also received extensive global attention for their uniquely positive role in adjudicating climate change issues, and this country is Pakistan. Two increasingly well-known cases are outlined here: Leghari which was decided in 2018, and the

LEGHARI (2015)

currently pending case of Ali which is addressed in Section III at the end of this report. In 2015, Ashgar Leghari, a farmer from Pakistan, sued the Pakistani Government and Ministry of Climate Change for its inaction to meet the vulnerabilities associated with climate change, and its failure to carry out the 2012 National Climate Policy and Framework108 . Leghari submitted that climate change is a serious threat to water, food and energy security of Pakistan which offended the fundamental right to life protected by Article 9 of the Constitution, along with the right to dignity of person and privacy of home in Article 14, and right to property in Article 23109. More broadly, Leghari also claimed that the failure on the part of the government also violated international environmental principles including the doctrine of public trust, sustainable development, the precautionary principle, and intergenerational equity110. The claimant also provided extensive evidence of the threat of climate change to his livelihood by relying upon IPPC reports111. The newly established Ministry of Climate Change admitted in proceedings that despite responsibilities to report on the government’s progress in implementing adaption measures, a number of ministries

could not satisfactorily show that they were afoot112 . The court found overwhelmingly in favour of Leghari, noting the devastating effects of climate change in Pakistan that has notably led the country from being a water-rich to a water-scarce nation113. In Leghari v Federation of Pakistan the Court described climate change as:

“ ... a defining challenge of our time and has led to dramatic alterations in our planet’s climate system. For Pakistan, these climatic variations have primarily resulted in heavy floods and droughts, raising serious concerns regarding water and food security. On a legal and constitutional plane this is clarion call for the protection of fundamental rights of the citizens of Pakistan, in particular, the vulnerable and weak segments of the society who are unable to approach this Court”114

108

109

110

111

112

113

114 Ashgar Leghari v. Federation of Pakistan (W.P. No. 25501/2015), Lahore High Court Green Bench, Order of 4 September 2018. Ibid. Ibid, para 7. Eleanor Stein and Alex Geert Castermans, above n 7, 319. Leghari, above n 21, para 5. Ibid, para 6. Ibid.

25. 26. 27. The court identified each of the constitutional rights put forth by Leghari – the right to life that included a right to a healthy and clean environment, to human dignity, to property, along with the right to information under 19A of the Constitution115. It noted that the environment and its protection take a “center stage in the scheme of our constitutional rights”116 and such rights were to be read along with various other constitutional principles of democracy, equality, and socio, economic and political justice117. The court also acknowledged well established international environmental principles of sustainable development, the precautionary principle, environmental impact assessment, inter-generational equity and the public trust doctrine; and that together with the Constitution, was sufficient to provide the court with a “judicial toolkit” to address the Government’s inadequate response to climate change118. In addition, the Court noted although Pakistan’s contribution to global greenhouse gas emissions is small, the country has a responsibility to the global community to combat climate change through mitigation in areas such as energy, industry, and agriculture. Ultimately, the court concluded that the “delay and lethargy of the State in implementing the

Framework offend[ed] the fundamental rights of the citizens”119 . As remedy, the court directed several government ministries to each nominate a climate change focal person to ensure the implementation of the Framework to present a plan for the government moving forward120. It also ordered the creation of a Climate Change Commission composed of representatives of government ministries, NGOs and technical experts, who would be authorised to “expedite the matter and to effectively implement the fundamental rights of the people”121. In a later supplemental decision, the Court also named 21 individuals to the Commission, vesting it with various powers to ensure the

implementation of the Framework122 . In its decision the Court recognised that the right to life included a right to a healthy and clean environment.123 It is a solid example of litigations grounding claims in a statutory and policy framework that articulates governmental responsibilities with respect to climate change124 By contrast to Urgenda that involved technical discussions of emissions

115

116

117

118

119

120

121

122

123

124 Ibid, para 7. Ibid. Ibid. Ibid. Ibid, para 8. Ibid, para 8(i). Ibid, para 8(iii). Ashgar Leghari v. Federation of Pakistan (W.P. No. 25501/2015), Lahore High Court Green Bench, Order of 14 September 2015, para 11. One overview of this case found that: “The ruling of the Lahore High Court, however, is no less innovative and is potentially more transformative than the decision in Urgenda. Unlike the Urgenda judgment, the Leghari case represents a successful use of rights arguments as the legal foundation of a climate change suit. Moreover, its focus on government inaction to address adaptation challenges ties in far more closely with the human consequences of climate change than the technical discussion of carbon budgets and emissions targets that dominated the Urgenda hearing. Building adaptive capacity and reducing vulnerability to climate change is also generally regarded as a national and local government responsibility, with failures to take adaptation measures more clearly linked to harm to the nation’s populace.”. Source: https://www. cambridge.org/core/journals/transnational-environmental-law/article/rights-turn-in-climate-change-litigation/0E354 56D7793968F37335429C1163EA1/core-reader#. UN Environment, ‘The Status of Climate Change Litigation – A Global Review’, 2017, 16.

targets, Leghari represents a case that more closely focused on the impact and human consequences of climate change125 Leghari points to its potential as a model for future rights-based litigation, though it has been noted that Pakistan has a traditionally activist judiciary126

JUDGMENT LAHORE HIGH COURT

10. Syed Mansoor Ali Shah, CJ: - The petitioner, who is an agriculturist, has approached this Court as a citizen for the enforcement of his fundamental rights. He submits that overwhelming majority of scientists, experts, and professional scientific organizations related to earth sciences agree that there is sufficient evidence that climate change is for real. He submits that no one can deny the devastating impact of increase in frequency and intensity of climate extremes. Further, most of the experts agree that the major cause is human activities, which include a complex interaction with the natural environment coupled with social and economic changes that are increasing the greenhouse gases (GHG) in the atmosphere, which are increasing global temperature and in turn causing climate change.

The climate system is a highly complex system consisting of the atmosphere, the hydrosphere, the cryosphere, the land surface and the biosphere, and the interactions between them. He submits that for Pakistan, climate change is no longer a distant threat. We are already feeling and experiencing its impacts across the country and the region. The country experienced devastating floods during the last three years. These changes come with far reaching consequences and real economic costs.

Learned counsel for the petitioner submits that in order to address the threat of climate change, the National Climate Change Policy, 2012 (“Policy”) and the Framework for Implementation of Climate Change Policy (2014-2030) (“Framework”) has been announced by the Ministry of Climate Change, Government of Pakistan, however, no implementation on the ground has taken place. He fears that in the absence of any strategy by the Government to conserve water or move to heat resilient crops, he will not be able to sustain his livelihood. He submits that inaction on the part of Ministry of Climate Change and other Ministries and Departments in not implementing the Framework, offends his fundamental rights, in particular, Articles 9 and 14 of the Constitution besides the constitutional principles of social and economic justice. He submits that international environmental principles like the doctrine of public trust, sustainable development, precautionary principle and intergenerational equity form part of the abovementioned fundamental rights also stand offended. Reliance is placed on Ms. Imrana Tiwana and others v. Province of Punjab and others (PLD 2015 Lahore 522) and Ms. Shehla Zia and others v. WAPDA (PLD 1994 SC 693).

Petitioner submits that the most immediate and serious threat to Pakistan is that of water, food and energy security. It is submitted that priority items under the Framework have not been complied with and no action has been taken by the respective Governments or authorities to develop adaptative capacity and resilience to address climate change.

125

126 Jacqueline Peel and Hari Osofsky, ‘A Rights Turn in Climate Litigation’, Transnational Environmental Law, 2018 7(3). Ibid.

11.

12. Climate Change is a defining challenge of our time and has led to dramatic alterations in our planet’s climate system. For Pakistan, these climatic variations have primarily resulted in heavy floods and droughts, raising serious concerns regarding water and food security. On a legal and constitutional plane this is clarion call for the protection of fundamental rights of the citizens of Pakistan, in particular, the vulnerable and weak segments of the society who are unable to approach this Court.

Fundamental rights, like the right to life (Article 9) which includes the right to a healthy and clean environment and right to human dignity (Article 14) read with constitutional principles of democracy, equality, social, economic and political justice include within their ambit and commitment, the international environmental principles of sustainable development, precautionary principle, environmental impact assessment, inter and intra- generational equity and public trust doctrine. Environment and its protection has taken a centre stage in the scheme of our constitutional rights. It appears that we have to move on. The existing environmental jurisprudence has to be fashioned to meet the needs of something more urgent and overpowering i.e., Climate Change.

ENVIRONMENTAL JUSTICE

20. On a jurisprudential plane, a judge today must be conscious and alive to the beauty and magnificence of nature, the interconnectedness of life systems on this planet and the interdependence of ecosystems. From Environmental Justice, which was largely localized and limited to our own ecosystems and biodiversity, we have moved on to Climate Justice.

Our environmental jurisprudence from Shehla Zia case to Imrana Tiwana case (referred to above) has weaved our constitutional values and fundamental rights with the international environmental principles. The environmental issues brought to our courts were local geographical issues, be it air pollution, urban planning, water scarcity, deforestation or noise pollution. Being a local issue, evolution of environmental justice over these years revolved around the national and provincial environmental laws, fundamental rights and principles of international environmental laws. The solutions entailed penalties and shifting or stoppage of polluting industries based on a precautionary approach leading to the recognition of the

Environmental Impact Assessment (EIA).

CLIMATE JUSTICE

21. Enter Climate Change. With this the construct of Environmental Justice requires reconsideration. Climate Justice links human rights and development to achieve a humancentered approach, safeguarding the rights of the most vulnerable people and sharing the burdens and benefits of climate change and its impacts equitably and fairly. Climate justice is informed by science, responds to science and acknowledges the need for equitable stewardship of the world’s resources. The instant case adds a new dimension to the rich jurisprudence on environmental justice in our country. Climate Change has moved the debate from a linear local environmental issue to a more complex global problem. In this context of climate change, the identity of the polluter is not clearly ascertainable and by and large falls outside the national jurisdiction. Who is to be penalized and who is to be restrained? On the global platform the remedies are adaptation or mitigation. In case of Pakistan, adaptation is largely the way forward. Adaptation is a response to global warming

and climate change, that seeks to reduce the vulnerability of social and biological systems to relatively sudden change and thus offset the effects of global warming. Adaptation is especially important in developing countries since these countries are predicted to bear the brunt of the effects of global warming. Adaptation is the capacity and potential for humans to adapt (called adaptive capacity) and is unevenly distributed across different regions and populations, and developing countries generally have less capacity to adapt. Mitigation consists of actions to limit the magnitude or rate of long-term climate change. Climate change mitigation generally involves reductions in human (anthropogenic) emissions of greenhouse gases (GHGs). Mitigation may also be achieved by increasing the capacity of carbon sinks, e.g., through reforestation. Mitigation policies can substantially reduce the risks associated with human-induced global warming.

22. Adaptation, as a strategy engages many stakeholders, which hitherto were not part of the environmental dialogue. Climate Justice, therefore, moves beyond the construct of environmental justice. It has to embrace multiple new dimensions like Health Security,

Food Security, Energy Security, Water Security, Human Displacement, Human Trafficking and Disasters Management within its fold. Climate Justice covers agriculture, health, food, building approvals, industrial licenses, technology, infrastructural work, human resource, human and climate trafficking, disaster preparedness, health, etc. While mitigation can still be addressed with environmental justice, adaptation can only be addressed through Climate

Justice, where the courts help build adaptative capacity and climate resilience by engaging with multiple stakeholders.

WATER JUSTICE

23. In the context of Pakistan, the impending water crisis are accelerated by the impact of climate change on the hydrological cycle. The availability of water resources to satisfy the demands of society and those of the environment is a crisis of governance and justice. Water is life. Water is a human right and all people should have access to clean and affordable water. Water has interconnectedness with people and resources and is a commons that should be held in public trust. This brings us to Water Justice, a sub-concept of Climate

Justice. Water justice refers to the access of individuals to clean water. More specifically, the access of individuals to clean water for survival (drinking, fishing, etc.) and recreational purposes as a human right. Water justice demands that all communities be able to access and manage water for beneficial uses, including drinking, waste removal, cultural and spiritual practices, reliance on the wildlife it sustains, and enjoyment for recreational purposes. Right to life and Right to human dignity under articles 9 and 14 of the Constitution protect and realise human rights in general, and the human right to water and sanitation in particular. In adjudicating water and water- related cases, we have to be mindful of the essential and inseparable connection of water with the environment, land and other ecosystems. Climate Justice and Water Justice go hand in hand and are rooted in articles 9 and 14 of our Constitution and stand firmly on our preambluar constitutional values of social and economic justice.

DISSOLUTION OF THE CLIMATE CHANGE COMMISSION

24. The submissions made by the Chairman of CCC regarding passing future responsibility of implementing the Framework to the Government is accepted. The Climate Change Commission after rendering a remarkable public and pro bono service, is hereby dissolved. The constitution and working of the Commission has resulted in developing a valuable resource on climate change which can be useful for the Government in the years to come. The respective Governments have to still implement the Framework, formulate the National Water Policy and ensure that the new Act is actualized and given effect to in letter and spirit. These objectives are critical for sustainable development and for the safeguard and protection of the fundamental rights of the people of Pakistan.

STANDING COMMITTEE ON CLIMATE CHANGE

25. In order to facilitate the working of the Federal Government, Ministry of Climate Change,

Provincial Government, Planning & Development Department, as well as, CCI, the Court hereby constitutes a Standing Committee on Climate Change, which will act as a link between the Court and the Executive and will render assistance to the above mentioned

Governments and Agencies in order to ensure that the Policy and the Framework continue to be implemented. The Federal and Provincial Governments and the CCI shall engage, entertain and consider the suggestions and proposals made by the Standing Committee.

26. The Members of the Standing Committee shall be as follows:-

3. Dr. Parvez Hassan, Advocate, Climate Expert

Advocate General, Punjab

Secretary Climate Change, Ministry of Climate Change, Islamabad

4. Chairman, Planning & Development Department, Government of the Punjab

5. Mr. Ali Tauqeer Sh., CEO & National Program Director, LEAD, Pakistan

6. Ms. Saima Amin Khawaja, Advocate/ Environmentalist 78-B, Mozang Road, Lahore

M.Tahir* Chairperson

Member

Image: Gunayala, Panama. Kadir van Lohuizen.

27. In the light of above, these proceedings stand concluded. I, do not wish to dispose of the petition, but instead, consign it to the record, so that the Standing Committee can approach this Court for appropriate order for the enforcement of the fundamental rights of the people in the context of climate change, if and when required. If any such application is filed, the case shall be revived and fixed before any Green Bench as per the Case Management Plan.

(Syed Mansoor Ali Shah) Chief Justice

(footnotes omitted)

COLOMBIA

28. In Future Generations v. Ministry of the Environment and Others (“Demanda Generaciones

Futuras v. Minambiente”) 25 young persons brought a suit against the Colombian government, various local municipalities and several companies to enforce their rights to a healthy environment, to life, to health, to food and to water. They alleged that climate change and the government’s failure to enforce laws against deforestation collectively violated their lawful fundamental rights. They filed a special constitutional claim called a tutela used in their efforts to enforce their rights. The initial case did not succeed at the lower court level, and as a result an appeal was filed in February 2018. In April 2018, the

Colombian Supreme Court significantly reversed the earlier decision of the lower court by recognising that the “fundamental rights of life, health, the minimum subsistence, freedom, and human dignity are substantially linked and determined by the environment and the ecosystem.” The decision further recognized the Colombian Amazon as a legal person and

“subject of rights” and that the Colombian Amazon accordingly was entitled to protection, conservation, maintenance, and restoration. The Court ordered the government to formulate and implement action plans to address deforestation in the Amazon. Key excerpts of the decision follow:

FUTURE GENERATIONS (2018)127

1. BACKGROUND

2. The plaintiffs plead for the protection of “supralegal” rights, highlighting those of “enjoying a healthy environment,” life, and health, allegedly violated by the accused.

They argue as a basis for their claim, in summary, the following:

2.1 As a first measure, they are identified as “(…) a group of 25 children, adolescents, and young adults…between 7 and 25 years of age, living in cities that are part of the list of cities most at risk due to climate change… [With] a hope to live for 78 years on average (75 years for men and 80 for women) which is why they expect to develop their adult life between 2041-2017 and in their old age from 2071 onwards. In those periods of time, according to the climate change scenarios presented by IDEAM, the average temperature in Colombia is expected to increase by 1.6 ° C and 2.14 °C, respectively (…)”

127 Luis Armando Tolosa Villabona, Reporting Judge STC4360-2018, Number: 11001-22-03-000-2018-00319-01 (Approved in session on April 4th, 2018), Bogotá, D.C., fifth of April of twenty eighteen (2018). Deciding the appeal filed against the sentence on February 12th, 2018, issued by the Civil Chamber Specialized in Land Restitution of the Superior Court of the Judicial District of Bogotá on the tutela established by Andrea Lozano Barragan, Victoria Alexandra Arenas Sanchez, Jose Daniel and Felix Jeffry Rodriguez Pena, among others, against the Presidency of the Republic, the Ministries of Environment and Sustainable Development and Agriculture and Rural Development, the Special Administrative Unit of Natural National Parks, and the Governorships of the Amazon, Caqueta, Guainia, Guaviare, Putumayo and Vaupes, for the “increased deforestation in the Amazon.” Key excerpts from the Supreme Court’s decision, selected and translated by Dejusticia.

2.2

2.3

2.4

2.5 They explain that in the Paris Agreement and in Law 1753 of 2015, the government acquired national and international commitments to achieve “...reduction of deforestation and the emission of greenhouse gases in a context of climate change...” among which, the obligation to “reduce the net rate of deforestation to zero in the Colombian Amazon by 2020” stands out.

Despite the foregoing, they report that in the “early Warning Deforestation Bulletin (AT-D) of the first semester of 2017,” jointly prepared by the Ministry of Environment and Sustainable Development and IDEAM, it was concluded that “…the Amazon is the region with the highest AT-D of the country, with 66.2% of the total…” Additionally, the “ Comprehensive Strategy for Controlling Deforestation and Management of Forests in Colombia, ” reported that the country lost 178,697 hectares in 2016, that is, that deforestation increased by 44% from the figure reported in 2015…” and, of that number, 70,074 hectares were in the Amazon. They expose the causes of the phenomenon as “ land grabbing (60-65%), illicit crops (20-22%), illegal extraction of mineral deposits (7-8%), infrastructure, agro-industrial crops, and the illegal extraction of wood( …)”

They affirm that “deforestation in the Amazon has consequences not only in that region, but also in the ecosystems of the rest ” of the national territory, among which they list: (...) 1) The negative alteration of the water cycle; 2) the alteration of the soils to capture and absorb water when it rains (and the consequent floods that this generates); 3) changes in the water supplies that reach the paramos and that in turn provide water for the cities where the plaintiffs live; and 4) global warming due to carbon dioxide emissions that in non-deforestation conditions are stored in forests (...)”

According to what is argued, the above is relevant because those convened have not adopted the appropriate measures to deal with this eventuality and, in addition, this has dire consequences for the places of their residence, alternating their living conditions, and cutting off the possibility of “enjoying a healthy environment.”

2. CONSIDERATIONS

By virtue of what has been said, it can be preached, that the fundamental rights of life, health, the minimum subsistence, freedom, and human dignity are substantially linked and determined by the environment and the ecosystem. Without a healthy environment, subjects of law and sentient beings in general will not be able to survive, much less protect those rights, for our children or for future generations. Neither can the existence of the family, society or the state itself be guaranteed. The increasing deterioration of the environment is a serious attack on current and future life and on other fundamental rights; it gradually depletes life and all its related rights. The inability to exercise the fundamental rights to water, to breathe pure air, and to enjoy a healthy environment is making Colombians sick. It also increases the lack of fresh water and decreases the ability to enjoy a dignified life. Therefore, in this case, the exceptional proceeding of the tutela is sufficiently demonstrated to resolve in depth the problems raised, because the jurisprudential assumptions for this purpose are met, given the connectedness of the environment with fundamental rights. (p. 13)

4. Due to multiple simultaneous causes, derived, connected, or isolated, that negatively impact the ecosystem, environmental issues occupy a prominent place on the international agenda, not only of scientists and researchers, but also of politicians, the common people and, naturally, judges and lawyers. Day to day the news, articles and reports of different tiers presenting the gravity of the planetary conditions are abundant. There is a growing threat to the possibility of existence of human beings. These imminent dangers are evident in phenomena such as the excessive increase of temperatures, the thawing of the poles, the massive extinction of animal and plant species, the increasingly frequent occurrence of meteorological events and disasters outside margins previously considered normal. There are unusual and unforeseen rainy seasons, permanent droughts, hurricanes or destructive tornadoes, strong and unpredictable tidal waves, draining rivers, increasing disappearance of species, etc. (p. 15)

Humanity is the main actor responsible for this scenario, as its global hegemonic position led to the adoption of an anthropocentric and selfish model, whose characteristic features are harmful to environmental stability, namely: i) the excessive demographic growth; ii) the adoption of a rapid development system guided by consumerism and the current politicaleconomic systems; and iii) the excessive exploitation of natural resources. (p. 16)

We are all obligated to stop exclusively thinking about our self-interest. We must consider the way in which our daily actions and behaviors affect society and nature. In the words of Peces-Barba, we must shift from “private ethics,” focused on private goods, to “public ethics,” understood as the implementation of moral values that aim to achieve a particular notion of social justice. (p. 18)

5.2 The protection of fundamental rights not only involves the individual, but implicates the “other.” The neighbor is otherness; its essence, the other people that inhabit the planet, also include other animal and plant species. But in addition, this includes the unborn, who also deserve to enjoy the same environmental conditions that we have.

5.3 The environmental rights of future generations are based on the (i) ethical duty of the solidarity of the species and (ii) on the intrinsic value of nature.

The first is explained by the fact that natural resources are shared by all inhabitants of Planet Earth, and by their descendants or future generations who do not yet have a physical hold of them, but who are tributaries, recipients, and owners of them, even if they, in a contradictory way, are increasingly insufficient and limited. Thus, without an equitable and prudent approach to consumption, the future of humankind may be compromised due to the scarcity of essential life resources. In this way, solidarity and environmentalism are “related until they become the same.

The second transcends the anthropocentric perspective, and focuses on “ecocentric- anthropic” criteria, which places the human being on par with the environmental ecosystem, whose purpose is to avoid arrogant, dismissive, and irresponsible treatment of the environmental resources, and its entire context, to satisfy materialistic ends, without any protectionist or conservationist respect. (p. 20)

10. What has been stated then, develops a binding legal relationship regarding the environmental rights of future generations, such as an “omission,” whose impact translates into a limitation to the freedom of action of present generations, while simultaneously implicitly demanding new burdens of environmental commitments, to the extent that they take on the care and stewardship of natural resources and the future world. (p. 21)

In view of the foregoing, numerous regulations have emerged in the international field, hard and soft law, which constitute a global ecological public order and serves as guiding criteria for national legislation, as to resolve citizen complaints on the destruction of our habitat, in favor of the protection of the subjective rights of people, of present and future generations.

The most relevant legal instruments are the following: (6.1 discusses the International Covenant on Economic, Social and Cultural Rights, 6.2 discusses the Convention on the Prohibition of Military or Any Other Hostile Use of Environmental Modification Techniques as well as the additional protocol to the Geneva Convention and 6.3 discusses the Stockholm Declaration.)

6.4 The Conference of the United Nations on the Environment and Development held in Rio de Janeiro in 1992: concerted with the objective of “…elaborating strategies and measures to stop and reverse the effects of environmental degradation in the context of the efforts directed to promote a sustainable and environmentally balanced environment, carried out both at the international and national levels...”

6.5 The Framework Convention on Climate Change in Paris 2015: after several unsuccessful attempts to adopt a binding document for the states that consigned the current needs in environmental matters, in Paris this purpose was achieved, as the countries agreed upon:

“... maintain and promote regional and international cooperation in order to mobilize more vigorous and ambitious action to address the climate, by all parties and by non-parties, including civil society, the private sector, financial institutions, cities and other sub-national authorities, local communities and indigenous peoples...”

Never before has a tool of this type established binding measures to mitigate climate change, requiring countries to make concrete commitments to reduce pollution and the increase of global temperatures.

The Constitutional Court has played an important role with its pronouncements, and has designed a jurisprudential line welcoming the concepts and advances arising on the subject in the international and academic scene. In this sense, it has analyzed the Constitution’s postulates from a “green” perspective, cataloging the Political Charter as an “Ecological Constitution” and elevating the environment to the category of fundamental rights. (p. 22)

The conservation of the Amazon is a national and global obligation, as it is the main environmental axis of the planet, and as such has been called the “lung of the world …”

…The international community has generated various commitments to achieve its conservation; the Amazonian Cooperation Treaty (TCA) should be highlighted, as its main objective is the “… promotion of the harmonious development of the Amazon, and the incorporation of its territories to the respective national economies, which is fundamental for maintaining the balance between economic growth and environmental preservation...” Likewise, in the aforementioned Framework Convention on Climate Change in Paris of 2015, where Colombia, among other responsibilities, agreed to reducing “deforestation in the Colombian Amazon”; and with this purpose promoted the “Sustainable Colombia Initiative” and the “Vision Amazon” Fund, for which the following pillars were agreed upon (….)(p. 30).

The factors reviewed directly generate deforestation in the Amazon, causing short, medium, and long term imminent and serious damage to the children, adolescents and adults who filed this lawsuit, and in general, all inhabitants of the national territory, including both present and future generations, as it leads to rampant emissions of carbon dioxide (CO2) into the atmosphere, producing the greenhouse gas effect, which in turn transforms and fragments ecosystems, altering water sources and the water supply for population centers and land degradation.

To this we must add the threat that deforestation brings to the species of flora and fauna native to that region, as highlighted by various reports from expert organizations, where it is specified that about 57% of tree species are in danger, including animals such as the jaguar or the Andean bear, for example. This previous reality, in contrast with the legal environmental principles of i) precaution; intergenerational equity; and (iii) solidarity, leads the Court to conclude the following:

11.1 Relative to the first of the aforementioned principles, there is no doubt that there is a risk of damage, given that according to the IDEAM, the increase in GHG emissions resulting from deforestation in the Amazon forest would generate an increase in Colombia’s temperature between “0.7 and 1.1 degrees Celsius between 2011 and 2040,” while for the period “between 2041 and 2070”, the estimates indicate an increase between “1.4 and 1.7” degrees Celsius, to reach 2.7 degrees Celsius “in the period between 2071 and 2100 .” Likewise, the mass reduction of the Amazon forest would break the ecosystem connection with the Andes, causing the probable extinction or threat of the subsistence of species inhabiting that corridor, generating “damage in its ecological integrity .” Additionally, according to the IDEAM, GHG emissions due to deforestation would result in two main types of consequences related to rainfall. First, an increase in several regions of the country, a situation that would trigger an increase in water levels and thus, in runoff, spreading polluting agents coming from water. Second, a deficit in other departments, causing a reduction in the water supply, as well as prolonged droughts.

The irreversibility of the damage and the scientific certainty, both additional components of the precautionary principle, are also evident since the GHG emitted from deforestation, constitutes 36% of the forestry sector, rapidly becoming an uncontrollable component of CO2 emissions; information supported, in detail, by the studies conducted by the IDEAM, the Ministry of Foreign Affairs, the Ministry of Environment and Sustainable Development, the UNDP, and many others.

12.

13. 11.2 In terms of intergenerational equity, the transgression is obvious, as the forecast of temperature increase is 1.6 degrees in 2041 and 2.14 in 2071; future generations, including children who brought this action, will be directly affected, unless we presently reduce the deforestation rate to zero.

11.3 The principle of solidarity, for the specific case, is determined by the duty and co-responsibility of the Colombian state to stop the causes of the GHG emissions from the abrupt forest reduction in the Amazon; thus, it is imperative to adopt immediate mitigation measures, and to protect the right to environmental welfare, both of the plaintiffs, and to the other people who inhabit and share the Amazonian territory, not only nationals, but foreigners, together with all inhabitants of the globe, including ecosystems and living beings.

11.4 The previous reality, in addition to transgressing the regulations pertaining to the Environmental Charter of the country, and the international instruments that make up the global ecological public order, constitutes a serious ignorance of the obligations acquired by the State in the Framework Convention on Climate Change of Paris 2015, where Colombia, among other commitments, undertook an agreement to reduce the “deforestation in the Colombian Amazon,” with the objective of reducing deforestation to zero in that region by 2020, as achieving it, according to the Ministry of Environment and Sustainable Development, would ensure that “…44 megatons of greenhouse gases would not enter the atmosphere and 100,000 hectares of agriculture in areas of high deforestation would be more friendly to the environment…” It is up to the authorities to respond effectively to the specific questions of the problem, among which, it is important to highlight the urgent need to adopt mitigation and corrective measures for i) the excessive expansion of illicit crops and illegal mining that unreasonably destroy the Amazonian forest; ii) fill the void left by the FARC and paramilitaries to make an active state presence in favor of the conservation of Amazonian territories that in the context of armed conflict were conquered by insurgent groups, merciless predators, irrational colonizers, and generally, people and organizations outside the law; iii) prevent and mitigate the growing fires, deforestation, and unreasonable expansion of the agricultural frontier; iv) the lack of prevention of the consequences inherent to constructing roads, granting titles to property and mining concessions; v) the expansion of large-scale agro-industrial and livestock farming; vi) the preservation of this ecosystem due to its importance in regulating the global climate; vii) the lack of scientific calculations of the release of tons of carbon through burning and the loss of biomass, which constitutes the vegetation cover; and viii) to confront climate change due to the destruction of the Amazon rainforest in the national territory.

Therefore, the excessive intensification of this problem is evident, showing the ineffectiveness of governmental measures adopted to confront this, and, from that perspective, granting the protection for the breach of fundamental guarantees to water, air, a dignified life, health, among others in connection with the environment.

It is clear that despite several international commitments, legislation, and jurisprudence on the subject, the Colombian State has not efficiently tackled the problem of deforestation in the Amazon. (p. 34, et al)

14. In this way, the aforementioned environmental authorities are not fulfilling their duty to evaluate, control, and monitor natural resources, nor to impose and implement sanctions in the case that there is a violation of environmental protection norms in their jurisdiction, despite being able to request help from other national and local agencies in order to protect natural resources in the case they lack sufficient resources

13.2 …The deforestation in natural national parks is proof of the negligence in fulfilling the legal functions assigned to the Natural National Parks of Colombia…(p. 42)

Therefore, in order to protect this ecosystem vital for our global future, just as the Constitutional Court declared the Atrato river, the Colombian Amazon is recognized as a “subject of rights,” entitled to protection, conservation, maintenance and restoration led by the State and the territorial agencies.

Consequently, we grant the relief, and order the Presidency of the Republic, the Ministry of Environment and Sustainable Development, and the Ministry of Agriculture and Rural Development, in coordination with the actors of the National Environmental System and the participation of the plaintiffs, the affected communities, and the interested population in general, to formulate a short, medium, and long term action plan within the next four (4) months from today’s notice, to counteract the rate of deforestation in the Amazon, tackling climate change impacts.

This plan will aim to mitigate the early deforestation warnings issued by the IDEAM.

Likewise, the Presidency of the Republic, the Ministry of Environment and Sustainable Development, and the Ministry of Agriculture and Rural Development, will be ordered to formulate within the next five months following today’s notice, with the active participation of the plaintiffs, the affected communities, scientific organizations or environmental research groups, and the interested population in general, the construction of an “intergenerational pact for the life of the Colombian Amazon - PIVAC” to adopt measures aimed at reducing deforestation to zero and greenhouse gas emissions, and has national, regional, and local implementation strategies of a preventative, mandatory, corrective, and pedagogical nature, directed towards climate change adaptation.

Also, all the municipalities of the Colombian Amazon, within the next five months following today’s notice, are compelled to update and implement the Land Management Plans, and when relevant, include an action plan to reduce deforestation to zero in its territory, which should encompass preventative, mandatory, corrective, and pedagogical measurable strategies, oriented towards climate change adaptation.

The Corporation for the Sustainable Development of the South of the Amazon - Corpoamazonia, the Corporation for the Sustainable Development of the North and the East of the Amazon -CDA, and the Corporation for the Sustainable Development of the Special Management Area La Macarena - Cormacarena will be ordered, within the next five months following today’s notice and regarding its jurisdiction, an action plan that counteracts through police, judicial, or administrative measures, the deforestation problems reported by the IDEAM.

In addition, within their duties, the defendants will have to, in the forty-eight hours following the completion of this ruling, increase actions tending to mitigate deforestation while carrying out the modifications contained in the aforementioned mandate. Within the responsibilities assigned, they must urgently present the complaints before the corresponding administrative and judicial entities. (p. 45)

3. DECISION

In merit of the above, the Supreme Court of Justice, in a Civil Appeals Court, administering justice in the name of the Republic and by authority of the Constitution and the Law,

RESOLVES:

FIRST, REVOKE the sentence filed on the date and place mentioned before, and instead, grant the protection requested.

Consequently, it ORDERS that the Presidency of the Republic, the Ministry of Environment and Sustainable Development, and the Ministry of Agriculture and Rural Development, in coordination with the actors of the National Environmental System and the participation of the plaintiffs, the affected communities and interested population in general, to formulate a short, medium, and long term action plan within the next four (4) months from today’s notice, to counteract the deforestation rate in the Amazon, tackling climate change impacts.

This plan will aim to mitigate the early deforestation warnings issued by the IDEAM.

Similarly, it ORDERS the Presidency of the Republic, the Ministry of Environment and Sustainable Development, and the Ministry of Agriculture and Rural Development, to formulate in the five (5) following months from today’s notice, with the active participation of the plaintiffs, affected communities, scientific organizations or environmental research groups, and interested population in general, the construction of an “ intergenerational pact for the life of the Colombian Amazon - PIVAC ,” to adopt measures aimed at reducing deforestation to zero and greenhouse gas emissions, and has national, regional and local implementation strategies of a preventative, mandatory, corrective, and pedagogical nature, directed towards climate change adaptation.

In the same manner, it ORDERS all municipalities in the Colombian Amazon, within the next five months (5) following today’s notice, to update and implement Land Management Plans, and when relevant, include an action plan to reduce deforestation to zero in its territory, which should encompass preventative, mandatory, corrective, and pedagogical measurable strategies, oriented towards climate change adaptation.

Last, it ORDERS the Corporation for the Sustainable Development of the South Amazon - Corpoamazonia, the Corporation for the Sustainable Development of the North and East Amazon - CDA. and the Corporation for the Sustainable Development for the Special Management Area in the Amazon - Cormacarena, within the next five (5) months following today’s notice and regarding its jurisdiction, to create an action plan that counteracts through police, judicial or administrative measures, the deforestation problems reported by the IDEAM.

SECOND, Communicate in writing what was decided to those interested and send a file to the Constitutional Court for its eventual review.

(footnotes omitted)

NORWAY

GREENPEACE NORDIC ASSOCIATION AND NATURE AND YOUTH (2018)

29. Greenpeace Nordic and Nature and Youth are two environmental NGOs that sought a declaratory judgment from the Oslo District Court that Norway’s Ministry of Petroleum and Energy had violated the Norwegian Constitution in its decision to issue a black of oil and gas licenses for deep-sea extraction from sites in the Barents Sea128. Among other points, the claimants argued that such developments would be inconsistent with climate change mitigation required to avert global warming129 and would breach Article 112 of the Constitution which establishes a “right to an environment that is conductive to health and to a natural environment whose productivity and diversity are maintained”130. By contrast the Government argued that the legal issue was not whether the State had contravened an unclear provision in Article 12, but whether the Government has taken measures in this area to the extent that is required by Article 12131. The State argued that Article 112 does not establish a duty for authorities to take measures with respect to global emissions abroad; rather compliance with Article 12 is measured through domestic legislation attending to environmental considerations132 .

30. In January 2018, the Oslo District Court ruled in favour of the Norwegian Government. It recognised that though Article 112 of the Constitution is a rights provision, the government did not violate any relevant rights as it had fulfilled the necessary duties before issuing the licenses133. The Court discussed what the right pursuant under Article 112 entailed, noting that it cannot be invoked for every encroachment that has a negative impact on the environment134. It discussed that the matter did not give rise for the reasons to specify a precise threshold, but that a breach will not have occurred if the duty to take measures

128

129

130

131

132

133

134 Greenpeace Association and Nature and Youth v Ministry of Petroleum and Energy, 16-166674TVI-OTIR/06, Oslo District Court. Ibid, 3.1. Constitution of the Kingdom of Norway, Article 112. Greenpeace, above n 39, 4.1. Ibid. Ibid. Ibid, 5.2.2.

included in Article 112, that are considered appropriate and necessary, have been fulfilled135 . The court also declared that emissions of CO2 abroad from oil and gas exported from Norway were “irrelevant’ when assessing a breach of Article 112136. In April 2018, the claimants filed an appeal to the Norwegian Supreme Court asserting that the District Court had erred in its restrictive interpretation of Article 112 in a manner that limited the duty of the State to guarantee the right to a healthy environment137. Further, it has been asserted that the District Court did not give due consideration Norway’s obligations arising under the UNCCC and Paris Agreement138. The appeal subsequently failed in 2020, and we include this case as an example of the challenges facing those litigating on climate change matters. Key excerpts follow:

1. THE CASE IN BRIEF

The first question in the case is whether the Royal Decree of 10 June 2016 (hereinafter also called the Decision) is invalid because it is contrary to Article 112 of the Constitution. Secondly, the case raises questions as to whether the Decision is invalid because it relies on an inadequate assessment, there are errors in the factual basis for the Decision or it is inadequately justified.

2. PRESENTATION OF THE CASE

2.1 Joint agreed presentation of parts of the facts in the case

The parties have prepared a joint agreed presentation of parts of the facts in the case. The presentation is dated 30 October 2017 and is based on the Court’s decision of May 2017.

1.1 Introduction

On 10 June 2016, the Norwegian Government reached a decision by Royal Decree on awarding production licences in the 23rd licensing round pursuant to Section 3-3 of the Petroleum Act. This case involves the validity of this decision. Ten production licences were awarded for a total of 40 blocks or sub-blocks. The production licences are called “Production Licences”, abbreviated as “PLs”…The production licences indicate precisely where petroleum production may occur. Seven of the production licences (14 blocks) are located in Barents Sea South and three of the production licences (26 blocks) are located in Barents Sea South-east. All the blocks are located north of Norway between 71° 30’ and 74° 30’ North latitude, and from 20° 40’ East longitude to the delimitation line facing the Russian Federation.

1.2 Opening of maritime areas for petroleum activities

Prior to a decision on awarding production licences, an “opening” of maritime areas for petroleum activities occurs, see Section 3-1 of the Petroleum Act. The provision imposes a requirement

135

136

137

138 Ibid. Ibid, para 112. Greenpeace, briefing note, <http://blogs2.law.columbia.edu/climate-change-litigation/wp-content/uploads/sites/16/ non-us-case-documents/2018/20180205_16-166674TVI-OTIR06_press-release.pdf> Ibid.

to weigh the various interests that apply in the area in question. For use in this weighing, “an assessment shall be made of the impact of the petroleum activities on trade, industry and the environment and of possible risks of pollution, as well as the economic and social effects that may be a result of the petroleum activities”.

The opening process means in practice that the Ministry of Petroleum and Energy conducts an impact assessment for the area on the Norwegian continental shelf that is planned to be opened, see Norwegian Regulations of 27 June 1997 No. 653 relating to petroleum activities (the Petroleum Regulations), Chapter 2. Effects on the environment and nature are among the impacts that are to be assessed.

1.3 Production licence and actual production of petroleum

As mentioned, the case involves the validity of decisions to award production licences in Barents Sea South and Barents Sea South-east. A production licence grants the licensee exclusive rights to conduct surveys and search for and produce petroleum within the geographic area covered by the licence. The licensee becomes the owner of the petroleum that is produced. The licence also governs the rights and obligations of the holders of a production licence in dealings with the national government. The production licence supplements the provisions in the legislation and imposes detailed conditions for the activities.

If commercially exploitable finds are made under a production licence, the process is started towards actual production of the find in question. This process is governed by Chapter 4 of the Petroleum Act and Chapter 4 of the Petroleum Regulations. Among other things, a licensee must have a plan approved for development and operation, based on an impact assessment, before development and operation can be commenced, see Section 4-2 of the Petroleum Act.

Norwegian petroleum activities must occur in line with what is laid down in the Management Plan for the maritime area where the activities will take place. The purpose of the Management Plan is to provide a framework for creation of wealth through sustainable use of resources and ecosystem services, while maintaining the ecosystems’ structure, mode of operation, productivity and natural diversity. The applicable plan for the Barents Sea is contained in Report to the Storting 10 (2010–2011).

2. International Climate Cooperation

Norway has participated in the international climate cooperation since this was first put on the agenda. The overarching international legal framework is the UN Framework Convention on Climate Change (UNFCCC), which was adopted in Rio de Janeiro in 1992. Norway ratified this agreement on 11 June 1993, see Proposition to the Storting No. 36 (1992– 93). The Kyoto Protocol is an agreement under the Convention on Climate Change, adopted in 1997 and ratified by Norway in 2002 during the Storting’s consideration of Proposal to the Storting No. 49 (2001–2002). The agreement entails quantified emission commitments for Norway and other industrialised countries. The Kyoto Protocol’s system allows the emission commitments to be met through flexible implementation mechanisms and cooperation between countries as a supplement to national measures.

The Kyoto Protocol entered into force in 2005. The first commitment period was from 2008 to 2012 and was settled in 2015. The Kyoto Protocol’s second commitment period, adopted at the

meeting of the parties to the Convention on Climate Change in Doha in 2012, applies for the period 2013 to 2020. The Doha amendments have not yet entered into force, see Articles 20 and 21 in the Kyoto Protocol, but Norway is following the agreement nevertheless in line with the Vienna Convention. Norway has committed itself to reducing emissions by thirty per cent compared with emissions levels in 1990 in the period leading up to 2020. The target was part of the climate settlement in the Storting in 2012, see Recommendation to the Storting No. 390 (2011–2012), which in turn builds on the climate settlement from 2008.

The Paris Agreement was negotiated in Paris in December 2015 and is the most recently adopted protocol to the UN Framework Convention on Climate Change. It is intended that the Paris Agreement’s regulations take over when the Kyoto Protocol’s second commitment period expires in 2020. A goal of the Agreement and its mechanisms is to hold the increase in the global average temperature to well below 2°C compared with the pre-industrial level and to strive to limit the temperature increase to 1.5°C above the pre-industrial level, see Article 2. The states which have signed and ratified the Paris Agreement are obligated to determine and communicate “nationally determined contributions”, see Article 4, no. 2, first sentence. The national contributions shall be reported or updated every five years, see Article 4, no. 9. Each update shall build on the preceding, successive contribution, see Article 4, No. 2, and involve more ambitious targets, see Article 4, no. 3. Furthermore, states are obligated to obtain necessary information concerning the national contributions, see Article 4, no. 8, account for the national contributions, see Article 4, no. 13, and report under a special mechanism for transparency, see Article 13.

Norway ratified the Paris Agreement on 20 June 2016 based on Proposal to the Storting No. 115 (2015–2016) and Recommendation to the Storting No. 407 (2015–2016). The Paris Agreement entered into force on 4 November 2016. Norway has communicated to the UN a conditional commitment to reduce emissions by at least 40 per cent in 2030 compared with 1990, see Report to the Storting 13 (2014–2015) New emission commitment for Norway for 2030 – towards joint fulfilment with the EU and Recommendation 211 (2014–2015).

The UN’s Intergovernmental Panel on Climate Change (IPCC) was appointed by the World Meteorological Organization (WMO) and the United Nations Environment Programme (UNEP) in 1988. The purpose is to provide the nations of the world the best possible scientific basis for understanding climate changes and potential effects on humans, the environment and society. In 1989, the General Assembly of the United Nations decided to assign the IPCC the task of preparing a report which described climate status. This was later followed up by the first conference of the parties under the Convention on Climate Change (the Conference of the Parties, COP). Today it is regular practice for the Conference of the Parties to receive the IPCC’s reports. The IPCC submitted its Fifth Assessment Report in 2013–2014.

The Assessment Report consists of three sub-reports from three working groups (“The Physical Science Basis”, “Impacts, Adaptation, and Vulnerability” and “Mitigation of Climate Change”) and a summary of the findings in these (the “Synthesis Report”).

Under Section 1.2 in the presentation of the case, it is stated: “The impact assessment was presented to the Storting in Report to the Storting Report No. 36 (2012–2013) and the supplementary report to this, Report to the Storting 41 (2012–2013), and the Storting concurred during the consideration of Recommendation to the Storting No. 433 (2010– 2011)”. This is not correct. What is correct is that the Storting concurred with Recommendation to the Storting no. 495 (2012-2013).

3. PLAINTIFFS’ AND INTERVENER’S PRAYER FOR RELIEF AND GROUNDS

The Plaintiffs and the Intervener (also called the Environmental Organisations) have essentially argued:

3.1 The Decision is contrary to Article 112 of the Constitution

It is primarily argued that the Decision is wholly or partially invalid because it is contrary to Article 112 of the Constitution. Article 112 of the Constitution establishes that “every person has the right to an environment that is conducive to health” and that natural resources shall be managed based on long-term considerations which “will safeguard this right for future generations as well”. The Decision is not consistent with this right. It is primarily argued that the Decision is contrary to an absolute limit in Article 112. The wording of Article 112, the prior history and the preparatory works indicate that individuals have rights under the provision. It is clear that the Storting has intended this. The limit for what is permitted must be based on the best possible scientific basis of knowledge.

Emissions abroad which occur based on oil and gas exports from Norway are relevant when assessing whether the limit in Article 112 has been exceeded. Norwegian law is based on a solidarity principle. When interpreting Article 112, Norway’s international obligations are relevant, including those under the European Convention on Human Rights.

The Government’s alternative interpretation of the first paragraph of Article 112 and the Environmental Organisations’ primary interpretation are nearly identical. The parties agree under these circumstances that the provision entails in part a prohibition against certain official measures that may lead to negative effects for the environment and nature above a certain threshold. The parties also agree that the first paragraph must be interpreted in the context of the third paragraph, which means that the first paragraph is not contravened if appropriate measures are taken. The Environmental Organisations are of the opinion – in contrast to the Government – that a high threshold does not apply for overruling a decision. Furthermore, it is not enough that the measures taken pursuant to Article 112, third paragraph, are appropriate. They must be sufficient.

The fact that the Government has pointed to a number of measures is not sufficient to determine that there is no breach of the first paragraph of Article 112. There are two principal reasons why the Decision is not consistent with Article 112. The first (the climate argument) is because the world is experiencing serious anthropogenic global warming that requires drastic and immediate measures. The Decision means the opposite. It will lead to enormous emissions.

Secondly, the Decision involves areas close to and partially in the movable ice edge and the polar front, i.e. in an area with a very special ecological system (the vulnerability argument). Oil spills will result in a catastrophe for this ecological system. Soot emissions (”Black Carbon“, abbreviated as BC) will have major negative impacts. Production has never previously been permitted so close to the ice edge and so far from land. The Norwegian Environment Agency and the Norwegian Polar Institute advised against 20 of 40 blocks.

The climate argument and the vulnerability argument jointly and severally entail a breach of Article 112.

The Decision must also be assessed in a broader context. These are the first licences granted after there is reliable knowledge that the world’s proven fossil fuel resources exceed what can be burned in order to reach the goals in the Paris Agreement. The way is being opened for petroleum activities further east and north than ever before. The objective is to maintain petroleum production at the current level despite the fact that emissions must be reduced at a dramatic tempo. The Decision will stimulate extensive investments and technology development that will contribute to increased fossil fuel production (the path argument). It will be difficult to reverse the trend with respect to climate deterioration. We are now at a crossroads (the crossroads argument). There is not even room for emissions from discovered oil and gas reserves in the carbon budget.

Everyone must take responsibility, and Norway occupies a special position. The Government must point out which countries will let their resources lie unused so that the Government can produce more. The demand for oil and gas will be reduced in such a way that it is far from certain that the production from the blocks the Decision covers will be profitable.

If Article 112, first paragraph, see the third paragraph, must be understood with the limitation that a proportionality assessment must be carried out, it is argued that the Decision is disproportionate and for that reason is contrary to Article 112. This is because it has limited economic benefit.

In order for a decision to be contrary to Article 112, there must be a relationship between the decision and climatic and/or environmental harm. However, it is the potential for harm that must be assessed. The Government cannot wait until the problems materialise before initiating measures. Those who have been awarded licences for exploration and production will make major investments. In reality, it will not be possible to reverse the licences through permission to develop and operate under Section 4-2 of the Petroleum Act. From a legal perspective, there is only a limited opportunity to reverse the Decision.

The courts have the authority and obligation to review whether the licences are contrary to Article 112, see Article 89 of the Constitution. The case shows that constitutionally- established environmental protection is important and illustrates that Article 112 must be interpreted in such a way that the courts set limits for environmental encroachments.

3.2 The Decision is contrary to Section 3-3 of the Petroleum Act, see Section 3-1, see Article 112 of the Constitution Alternatively, it is argued that the Decision is wholly or partially invalid because it is contrary to Section 3-3 of the Petroleum Act, see Section 3- 1, as these provisions must be understood in light of Article 112 of the Constitution.

3.3 Breaches of case-handling rules etc. result in invalidity Alternatively, it is asserted that the assessment prior to the Decision being reached was deficient and that the Decision is based on factual error. It is also asserted that the Decision does not meet the requirements that apply for justification.

Requirements for an assessment appear in both Chapter 3 of the Petroleum Act and Section 17 of the Public Administration Act. Article 112 of the Constitution supplements and reinforces the requirements out of concern for the environment and what is to be balanced against the environment.

The climatic effect of the Decision has been inadequately assessed. The Decision opens a new field and continues exploration activity in Barents Sea South for the purpose of maintaining Norwegian petroleum production at the same level as today beyond 2020. The climatic consequences of this must be thoroughly assessed.

An assessment has not been carried out of whether it will actually be possible to meet Norway’s need for emissions cuts while maintaining the production level on the Norwegian continental shelf beyond 2030. An assessment has not been carried out related to stimulating investments and technology development. Nor has it been assessed what significance this has for increased fossil fuel production. Nor has an assessment been carried out related to whether the emissions trading system will be effective.

The assessments that have been carried out are not thorough enough.

The Decision moves petroleum activities further north than ever before and partially into the variable ice edge at the polar front. The assessment leaves major questions with respect to challenges related to the variable ice edge and polar front. This is expressed with particular clarity in advice against proceeding from the Norwegian Polar Institute and the Norwegian Environment Agency. It will not be possible to bring this up with the companies afterwards. An assessment must be carried out for each licence.

There are several errors attached to the assessment of the economic consequences of opening Barents Sea South-east. It is an error that revenues and expenditures were not discounted. The employment effects have been estimated imprecisely and costs of CO emissions have not been calculated. The errors that were committed in the opening of Barents Sea South-east have affected the Decision. The obligation to provide sufficient grounds for the Decision stems from both general administrative principles and Article 112 of the Constitution. Deficiencies in the justification reflect the deficiencies in the assessment.

If the Decision is to be valid despite the procedural errors, there must be grounds to assume that the error cannot have been a deciding factor for the substance of the Decision. In this instance, the errors have individually and as a whole evidently – in any case, probably – affect the substance of the Decision. This is particularly the case for the awards that have been granted in Barents Sea South-east.

3.4 Prayer for relief

The Plaintiffs and the Intervener have submitted the following prayer for relief:

The Royal Decree of 10 June 2016 on awarding production licences on the Norwegian continental shelf “the 23rd licensing round” is wholly or partially invalid.

Foreningen Greenpeace Norden, Natur og Ungdom and Besteforeldrenes klimaaksjon are awarded legal costs.

4. DEFENDANT’S PRAYER FOR RELIEF AND GROUNDS

The Government has essentially argued the following:

4.1 The Decision is not contrary to Article 112 of the Constitution

The Decision is valid. It is not contrary to Article 112 of the Constitution. It is primarily argued that there is no substantive limit in the provision as the Plaintiffs have asserted. In any case, the Decision does not breach any such possible limit. The first paragraph of Article 112 cannot be understood to be a rights provision in itself. The provision protects common (collective) interests. Even though the provision does not constitute an independent basis for substantive environmental rights, the provision does have legal significance, including in statutory interpretation.

The wording of Article 112 and the context argue against the provision being understood as an individual rights provision. The preparatory works and the prior history for Article 112 do as well. So do the purpose of the provision and policy considerations of fairness, justice and feasibility. There is no legal basis for saying that (former) Article 110 b was fundamentally changed by adopting Article 112.

The provision has intentionally been worded differently than other rights provisions in the Constitution, and must be interpreted autonomously, on the basis of its own special nature and its own sources of law. Norway’s international obligations, including to the European Convention on Human Rights, are irrelevant in the interpretation.

Under Article 112, third paragraph of the Constitution, state authorities have a duty to “take measures” in order to implement the “principles” stated in the first and second paragraphs. The concept that this duty to take measures is the essential legal substance of Article 112 stems from the wording, context, purpose, preparatory works and policy considerations – as well as the prior history of the paragraph during the adoption in 1992 and the amendment in 2014, in which the third paragraph was revised to make the duty to take measures clearer and more operative.

The legal issue to be considered in the case is not whether the Decision contravenes an (unclear) substantive bar in the first paragraph of Article 112, but whether the authorities (the Storting and the Government) have taken measures in this area to the extent Article 112 requires. This raises in turn questions regarding how far the duty to take measures extends, what is required to say that it has been met and how far the courts can and should go in reviewing this.

The most important measures the authorities take to comply with Article 112 is through generally applicable rules provided by the Storting and the Government, at the statutory and regulatory levels. This occurs in part through individual acts in the environmental and climate area (the Pollution Control Act, the Nature Diversity Act, the Climate Change Act, etc.) and in part through rules in other legislation attending to environmental considerations. The measures attend to both the duty related to possible national emissions and the risk of environmental harm. Article 112 establishes no duty for Norwegian authorities to take measures with respect to emissions abroad, nor emissions stemming from the export of oil and gas from Norway. Norway also participates in a number of measures as a part of the international work on climate change.

The Storting’s choice of measures is not subject to judicial review. Furthermore, it is unclear how far the duty to take measures is otherwise intended to be subject to such review. The Government’s primary view is that it is not.

Which specific measures are taken will vary over time and depends on many factors of a technical and political nature. Often there is technical or political disagreement about which measures are best suited to meet an environmental challenge. Other times it may depend on financial aspects. And not rarely, consideration for the environment and the climate must be balanced against other legitimate considerations and societal interests. In the view of the Government, based on the sources of law this must be regarded most naturally as a circumstance which Article 112 is not intended to juridify, and where the discretionary assessments should not be subject to judicial review.

Alternatively, it is argued that if the courts should consider themselves to have jurisdiction to carry out a review, then there must be a high threshold which respects the authorities’ legitimate need for room in which to act, as well as the many technical and political assessments and the balancing constantly carried out by the responsible technical authorities, by the Government and not least by the popularly elected majority of the Storting.

Legal minimum requirements for a causal relationship between the risk of environmental harm and the Decision must be met by being able to set aside the Decision under Article 112. There is also a requirement of foreseeability. There was broad agreement at the Storting on the opening of Barents Sea South in 1989, on the subsequent development of this area, on the opening of Barents Sea South-east in 2013 and on the activities that have subsequently been conducted there. Even though the Decision was formally taken by the Government (the King in Council), the awarding of licences has also been up for a vote in the Storting three times, in 2014, 2015 and 2016. In the last year a number of proposals have also been voted on regarding more general changes in the relationship between petroleum policy and environmental and climate policy, and there is currently pending a proposal to halt the ongoing 24th licensing round. All of the factual circumstances which the Plaintiffs have so far brought forward in the case have been or are currently before the Storting, as a part of the current democratic debate. This is a strong argument against the courts reviewing the Decision.

Questions regarding socio-economic benefits are not relevant in the interpretation of Article 112. In addition, efforts have been made to formulate petroleum policy so that development only occurs to the extent it is profitable. It was not possible when the Decision was taken, nor is it now, to say whether the blocks will be profitable. This depends on what is found. In that event, new thorough calculations will be made in accordance with Section 4-2 of the Petroleum Act.

4.2

4.3 The Decision is not contrary to Section 3-3 of the Petroleum Act, see Section 3-1, see Article 112 of the Constitution The Decision is not contrary to Section 3-3 of the Petroleum Act, see Section 3-1, even when these provisions are understood in light of Article 112 of the Constitution.

There are no procedural errors etc. resulting in the Decision being invalid Article 112 of the Constitution is operationalised in the petroleum legislation through requirements for an impact assessment in sections 3 1 and 4 2 of the Petroleum Act and by supplementary rules in regulations and long-standing administrative practice.

The requirements resulting from Article 112 for the proceedings must be considered to be met through these rules. New, separate (unwritten) procedural requirements cannot be inferred from Article 112 beyond those the lawmakers have laid down in the petroleum legislation. The Public Administration Act applies in principle, but it does not lead to more rigorous obligations compared to the requirements of the Petroleum Act.

No procedural errors have been committed, much less errors that are relevant for the validity of the Decision. The Decision does not rest on an erroneous factual basis, and it meets the requirements for justification.

The Plaintiffs are mixing together the proceedings during the opening of Barents Sea South-east in 2013 and the proceedings prior to the Decision. Any procedural error during the opening of Barents Sea South-east in 2013 is only relevant in the assessment of the Decision if the error has meant that the decision on opening is invalid.

Impact assessments prior to the opening of Barents Sea South in 1989 and Barents Sea Southeast in 2013 satisfied all requirements for assessment and justification. The Decision met all requirements under the Petroleum Act for procedure at this stage. Questions related to matters such as the ice edge, Black Carbon, vulnerable waters, emergency response, finance and emissions have been covered by all appropriate assessments and procedures n connection with the opening proceedings. In the event of any development and operation, a new assessment will be carried out. In addition, questions related to emissions of greenhouse gases are assessed and evaluated as a step in climate policy.

There are no serious defects in the assessments of possible future revenues from Barents Sea South-east. The information in the report – where the revenues were estimated – is sufficient for the purpose. It is a matter of estimates; it is unknown what will be found. The assessments state that only an overall assessment with uncertain calculations is involved. The report contains a calculation error, but this was corrected. The net figures are nevertheless correctly presented. There was no need for discounting. The reason the figures were not discounted is that they were intended to provide the right basis for the other calculations, such as the assessments of national and regional value-added and employment effects that were made by Statistics Norway and Poyri, respectively.

New assessments will be carried out with respect to the environment, climate change issues and finance pursuant to Section 4-2 of the Petroleum Act development and operation of one or more of the blocks are proposed in the 23rd round.

4.4 Prayer for relief

The Defendant has submitted the following prayer for relief:

The Government of Norway through the Ministry of Petroleum and Energy is found not liable.

The Government of Norway through the Ministry of Petroleum and Energy is awarded legal costs in the case.

5.

COMMENTS BY THE COURT

5.1 Introduction

The parties disagree whether Article 112 of the Constitution means that the Decision is invalid. The disagreement involves how the provision is to be understood, but also how the provision might be applied.

The Environmental Organisations have primarily maintained that the first paragraph of Article 112 is a rights provision, so that it imposes a prohibition on certain official decisions that involve a risk of negative effects for the environment. However, they agree that if sufficient measures have been taken, see the third paragraph of Article 112, then a decision is nevertheless not prohibited. The Environmental Organisations have argued in the alternative that if a proportionality assessment is to be carried out under Article 112, where on the one hand weight shall be attached to environmental impacts and on the other hand to socio-economic effects, then the Decision must be regarded as disproportionate. The Government has primarily argued that the first paragraph of Article 112 is not a rights provision in itself, but that the legal issue is whether the duty to take measures under the third paragraph of Article 112 has been met. The Government’s primary understanding is that the courts cannot review this question. The Government has argued in the alternative – if the first paragraph of Article 112 is to be understood as a rights provision – that a high threshold applies for the courts to be able to review the Decision. Nevertheless, this cannot occur if appropriate measures have been taken, see Article 112, third paragraph. The Government is of the opinion that there is no legal basis to conduct a proportionality assessment such as the Environmental Organisations have argued for. The Court takes a position under Section 5.2 on the Environmental Organisations’ argument that the Decision is invalid because it is contrary to Article 112 of the Constitution. The Environmental Organisations and the Government also disagree whether procedural errors etc. have been committed that can lead to the Decision being invalid. The Court takes a position on this under Section 5.3. The Court’s conclusion appears at Section 5.4. Finally, in Section 5.5, the Court takes a position on the legal cost claims.

5.2 Is the Decision wholly or partially contrary to Article 112 of the Constitution?

5.2.1 Is Article 112 a rights provision?

As mentioned, the parties disagree whether the first paragraph of Article 112 should be understood as a rights provision in itself, which means that the Decision – if it violates the right – is invalid.

Article 112 of the Constitution was adopted in 2014. Its predecessor was (former) Article 110 b from 1992. The starting point in the interpretation is the wording in Article 112 as it is understood in ordinary usage.

Article 112 of the Constitution reads as follows:

Every person has the right to an environment that is conducive to health and to a natural environment whose productivity and diversity are maintained. Natural resources shall be managed on the basis of comprehensive long-term considerations which will safeguard this right for future generations as well.

In order to safeguard their right in accordance with the foregoing paragraph, citizens are entitled to information on the state of the natural environment and on the effects of any encroachment on nature that is planned or carried out.

The authorities of the state shall take measures for the implementation of these principles.

The word “rett” is used in the first sentence of the first paragraph. This indicates that the provision is a rights provision. Such an understanding of the wording would appear, for example, to be consistent with what is pointed out by Smith in “Konstitusjonelt demokrati” (“Constitutional democracy”) at page 320. He states that the provision cannot be understood other than according to the wording, which must imply that the wording in isolation must be understood so that “rett” means right.

The wording in the second sentence of the first paragraph of Article 112, which deals with “denne rett” (“this right”) also argues for seeing the first sentence in the first paragraph as a rights provision.

The third paragraph in Article 112 calls the rights under the first paragraph “principles”, which – based on a linguistic understanding – argues that the expression “rett” in the first paragraph should not be understood as a right, but as a common fundamental value. When the first and third paragraphs are read in context, it is thus unclear whether “rett” in the first paragraph means right. However, the wording in the third paragraph does not rule out “rett” meaning right and only indicates that there is another alternative interpretation.

The preparatory works for Article 112 are relevant when the provision is to be interpreted.

As mentioned, Article 112 was adopted in 2014 as a step in a constitutional revision in which a number of provisions were added to Chapter E, “Human Rights”. However, the substance of Article 112 was not new in 2014. As mentioned, the provision has a predecessor in (former) Article 110 b from 1992.

Article 112 of the Constitution was proposed in Document 16 (2011–2012) “Report to the Presidium of the Storting by the Human Rights Commission concerning Human Rights in the Constitution” (hereinafter called the Human Rights Commission report). The Court considers it appropriate to quote some parts of the report. At page 243 in the report, it is stated regarding (former) Article 110 b:

The Storting also assumed that private citizens or organisations in a given case can proceed with their environmental rights under Article 110b before the courts. This was presumed in the original constitutional proposal and seems to have been assumed by the Standing Committee on Foreign and Constitutional Affairs and by the Storting. However, it is not clear under what circumstances such direct requirements can be asserted, which may have weakened the importance of the provision.

From page 244:

It cannot be ruled out that the wording of the third paragraph of Article 110b of the Constitution may be a contributing reason for the provision’s limited importance in practice.

Article 110b of the Constitution is worded to a much greater degree than Articles 110 and 110a as a rights provision. Paragraphs 110 and 110a open with “It is the responsibility of the authorities of the State to create conditions enabling” various rights, while Article 110b specifies that there is a “right to an environment that is conducive to health”. This linguistic difference and the clear statements in the preparatory works indicate that the provision must be regarded as a rights provision.

From page 245:

For the Commission, the question is whether the right to an environment that is conducive to health should be strengthened in the Constitution, and if so, how this can be done. From pages 245 and 246:

However, the Commission has considered whether the third paragraph in the provision should have a more appropriate wording, primarily to clarify the duty for the authorities to comply with the principles in the first paragraph regarding taking appropriate and necessary measures to protect the environment. It is presumed that this is the main justification for the provision, as it is currently worded. However, the provision could have been more precise with a view to it being a duty for the authorities of the state to pursue the right to an environment conducive to health. The Commission wishes to recommend that the third paragraph be replaced with a wording that the authorities of the state have a duty to take measures to implement the first and second paragraphs of Article 110b of the Constitution. This will clarify that the authorities have an active duty to take care of the environment through various forms of measures. There will still be plenty of room for political discretion with respect to which measures are put in place and at which times.

It is difficult to see this other than that the Human Rights Commission regarded (former)

Article 110 b as a rights provision and that the Commission wanted to strengthen this right, by clarifying the provision in the third paragraph.

The proposal of the Human Rights commission for Article 112 has been considered in the Storting’s Standing Committee on Scrutiny and Constitutional Affairs. The following is quoted from Recommendation to the Storting No. 187 (2013-2014), pages 25 and 26:

A majority of the Committee, all except the Members from the Norwegian Progress Party, believe that the relationship between the environment and human rights should be linked more closely. The Human Rights Commission has proposed, referring to the fact that development of rights related to the environment is evolving internationally, a new Article 112 in the Constitution regarding the right to an environment conducive to health as an extension of Article 110 b of the Constitution. The majority agrees with the proposal.

The provision in Article 110 b was added to the Constitution in 1992. It can be regarded as a result of recommendations from the United Nations through the World Commission on Environment and Development and shall be read as a legally binding provision. The majority cites Recommendation to the Storting no. 163 (1991–1992) where it is stated: “legally a constitutional establishment will mean that a constitutional provision will take precedence over ordinary legislation if they conflict with each other”. The provision should be read as an attempt to protect the quality of life and health for future generations and the individual.

The majority believes that there is a need to clarify the duty for the authorities to comply with the principles in the first paragraph regarding taking appropriate and necessary measures to safeguard the environment. The proposal that is made below must be read as an active duty for the authorities to take measures to look after the environment. Which measures will be up to each Storting to adopt.

The Committee’s Members from the Norwegian Conservative Party point out that the provision regarding a right to an environment conducive to health already exists in the Constitution and that the expansion is so marginal that these members can assent to the proposal for a new Article 112. The constitutional provision in question is intended to be a rights provision, and after the amendment in the third paragraph this will appear more clearly, in the view of these Members.

The majority thus agreed to the proposal of the Human Rights Commission, and it was confirmed in the special comment from the Norwegian Conservative Party that Article 110 b is intended to be a “rights provision”. It is also stated that the third paragraph of Article 112 will clarify the nature of the right. The representative of the Norwegian Conservative Party, Tetzschner, stated during the Storting debate that the “real” legal norms were being blended with the “quasi”, for example, in the proposal for the Article 110 series, where one has “Articles 110 and 110 a, which do not grant rights, in contrast to Article 110 b, which can be invoked as a specific rights provision for the individual”.

The Government’s opinion is that the first paragraph of Article 112 bears the mark of being declarative in nature, i.e. the provision expresses a political manifesto. As support for its view, the Government has cited individual provisions in the Constitution, i.e. Article 93, fourth paragraph, Article 95, second paragraph, Article 98, second paragraph, Article 100, sixth paragraph, Article 102, second paragraph, Article 104, third paragraph, Article 108, Article 109, second paragraph and Article 110. It is difficult to see that the referenced provisions can be cited in support of Article 112 not being a rights provision. Some of the provisions the Government has cited indicate instead – as the Court sees it – that Article 112 is such a provision. Note in this connection that the Human Rights Commission stated that (former) Article 110 b, in part because of a different wording than (former and currently applicable) Article 110 and (former) Article 110 a (now Article 108), indicated that Article 110 b was a rights provision. See also Tetzschner’s statement in the Storting debate, referred to above.

The Government has cited the fact that the Climate Change Act of June 2017 does not grant private rights and that a broad majority at the Storting on a general basis wanted to “advise against juridifying Norwegian climate policy”. The statement has – as the Court sees it – limited weight in the understanding of Article 112. It is not related to Article 112, and in any event it does not apply to the entire area Article 112 covers, only the climate area.

The Government has also cited the prior history of Article 112 as support for its view. In this connection, the Government has maintained that (former) Article 110 b could not be understood to be a rights provision. There are grounds, however – as the Court sees it – to characterise (former) § 110 b as a rights provision, but with extremely limited content. The Court cites Backer in connection with this: “The courts and the environment” in Lov og Rett 1993 and “Innføring i naturressurs- og miljørett 2012” (“Introduction to natural resource and environmental law 2012”), where it is stated that the courts in given situations could interpret (former) Article 110 b as a bar.

Fauchald in Tidsskrift for Rettsvitenskap (hereinafter TfR) 1-2/2007: “Forfatning og miljøvern – en analyse av Grunnloven § 110 B (“Constitution and environmental protection – an analysis of Article 110 B of the Constitution”) thinks that (former) § 110 b could be an independent rights basis. See also what has been quoted above from the Human Rights Commission’s report.

The Government has maintained that the need for technical and political room to act argues against Article 112 being regarded as a rights provision. The Government has also argued that political processes are generally far better than legal ones for clarifying environmental and climate questions and that there is a need to embed policy choices democratically. In the opinion of the Court, the considerations the Government points to here argue for, not against, Article 112 being regarded as a rights provision. However, these considerations are relevant when a position is to be taken on whether the duty to take measures has been complied with and thus in the assessment of whether the right has been infringed. The Court will return to this. In the article “En standardtilnærming til Grunnloven § 112” (“A standard approach to Article 112 of the Constitution”) in TfR 1/2017, Thengs concludes the following – after a review of wording and preparatory works – at page 44: The conclusion must accordingly be that the first paragraph of Article 112, see the third paragraph, is a rights provision that grants each individual a right to an environment conducive to health and a natural environment whose productivity and diversity are maintained.

The Court concurs in this conclusion. Article 112 is a new provision and the preparatory works must be accorded substantial weight. These clearly indicate that Article 112 is a rights provision. Such an understanding lies within the wording of the provision, and no determinative sources of law indicate the contrary.

5.2.2 What does the right in Article 112 entail?

The Court has concluded under Section 5.2.1 that Article 112 is a rights provision. Before deciding whether the right has been infringed in this case, it is deemed appropriate to explain the Court’s view on what the right generally entails. An effort will be made to limit the explanation to what is relevant for the case.

The sources of law provide little guidance, but something can be inferred from the wording, the preparatory works and the prior history. In addition, the substance of the right – as the Court sees it – must depend on the policy considerations that come into play.

The parties agree that both (traditional) environmental harm and climate deterioration are covered by the provision. There are no grounds for the Court to have a different view on this. The word “environment” is used sometimes in the following in such a way that it encompasses both environment (in a narrow sense) and climate. Traditional environmental harm in the case involves possible harm to what are called particularly vulnerable areas, whereas climate deterioration is related to emissions of greenhouse gases, where CO is the most important.

At the outset, the Court will point out that it considers it obvious that Article 112 of the Constitution cannot be invoked for every encroachment that has a negative impact for the environment, which can be expressed as the right only arises with encroachments of a certain scope, or in other words: it must exceed a certain threshold. The Court understands that the parties agree on this. However, what they disagree on is how much is required before the

threshold is exceeded. The Government has argued that the threshold must be high, while the Environmental Organisations have stated that the encroachment must be above a certain threshold. This case does not give rise to a reason for the Court to specify a more precise limit.

The right under Article 112 must be seen in context with the third paragraph. Such an understanding is in accordance with the argument of the Environmental Organisations and also in accordance with what the Government has argued in the alternative. Such an interpretation can be rooted in the proposal of the Human Rights Commission. It can be inferred from the proposal – as the Court sees it – that a right exists under Article 112 if the duty under the third paragraph has not been fulfilled. This means, consequently, that a decision such as the one here is not prohibited if the duty to take measures under the third paragraph of Article 112 is fulfilled. There is no disagreement between the parties whether the Decision triggers a duty to take measures.

In order for a measure to fulfil the duty under the third paragraph of Article 112, it must be appropriate and necessary. See the report from the Human Rights Commission. As mentioned, the Commission considered whether the third paragraph in (former) Article 110 b should be given a more appropriate wording, primarily to clarify the duty for the authorities to take “appropriate and necessary measures”. In addition, the Court points out that the majority emphasised during the consideration by the Storting that it was necessary to clarify the duty for the authorities to comply with the principles regarding taking “appropriate and necessary measures”. As indicated above, Article 112 cannot be invoked for every encroachment. It is only encroachments over a certain threshold that make the provision relevant. The relationship between the first and third paragraphs of Article 112 thus indicates that the measures under the third paragraph must bring the encroachment “down to” the permitted threshold. This can be expressed as the measure must be sufficient. A measures that is sufficient will satisfy the requirement that it must be “appropriate and necessary”.

The term “measures” is broad linguistically and covers legislation, regulations and appropriations. There is no reason to understand the term more narrowly.

The parties disagree whether CO emissions that occur after combustion of Norwegian oil and gas abroad are covered by Article 112. As mentioned, fulfilment of the duty to take measures under the third paragraph of Article 112 will mean that a decision which is otherwise prohibited becomes lawful. How Norwegian authorities would be able to fulfil their duty to take measures for exported oil and gas has not been clarified for the Court. Important means for reducing national emissions of CO include a CO tax and a scheme with emissions allowances. According to what the Court understands, such measures will not be available to Norwegian authorities for emissions from activities abroad. The relationship between the first and third paragraphs of Article 112 therefore argues against – as the Court sees it – considering emissions abroad as covered by Article 112.

The second paragraph of Article 112 of the Constitution imposes requirements for the proceedings in a matter before a measure that may harm the environment is initiated. An assessment must be carried out to ensure that citizens are provided knowledge about planned “encroachment(s) on nature, so that they can look after “the right” they have under the first paragraph of Article 112. As the court will come back to in Section 5.3.2, the duty to carry out an assessment under the second paragraph of Article 112 of the Constitution is considered to

be met by the requirements stated in Sections 3-1 and 4-2 of the Petroleum Act. In the opinion of the Court, the duty to carry out an assessment under these provisions does not cover the possible effect of CO emissions from exported oil and gas, see more specifically Section 5.3.5. The relationship between the first and second paragraphs of Article 112 therefore also argues against – as the Court sees it – considering emissions abroad from Norwegian oil and gas as covered by Article 112.

Under international law, each country is responsible for greenhouse gas emissions on its territory. The Court thus understands this to mean that the international obligations of Norway and other countries under both the Kyoto Protocol and the Paris Agreement relate to national emissions targets. Neither Norway nor countries in the same situation have any duty to take measures to compensate for the effect from oil and gas exported to other countries. However, obligations under international law do not limit protection rules in domestic law, for example, under Article 112 of the Constitution. Nevertheless, it appears unclear what consequences it would have for international cooperation if Norway should be responsible for emissions from exported oil and gas in addition to the emitting country.

The Environmental Organisations have argued that Norwegian law rests on a solidarity principle and that emissions from exported oil and gas from Norway are also covered by Article 112. In connection with that, they have cited : Innføring i naturressurs- og miljørett (“Introduction to natural resources and environmental law”), pages 64 and 65, where it is pointed out:

This is a central element in the Brundtland Commission’s way of thinking that the planet must be seen as a whole and that the natural resources on the planet must not be consumed by contemporary generations without thought for those who will come after us. This is now encapsulated in Norwegian law in Article § 110 b of the Constitution. It is also found in legislation, as in section 1, third paragraph, first sentence of the Land Act and Sections 1 and 57 of the Nature Diversity Act.

Nevertheless, at several places in Norwegian legislation it is evident that the authorities must pay the same attention to the environmental impacts of a measure whether they arise in Norway or abroad (or affect areas that fall outside national jurisdiction). This has been laid down as a fundamental guideline for the application of the Pollution Control Act (Section 2, no. 6). A principle of non-discrimination with respect to foreign citizens and environmental impacts abroad has also been adopted in the Nordic Environmental Protection Convention of 1974, which has been implemented in Norwegian law by the Act of 9 April 1976 No. 21. It is also evident in Section 14-4 of the Planning and Building Act regarding impact assessments in connection with transboundary effects (see also Section 4- 2, third paragraph, of the Planning and Building Act). Section 16, second paragraph of the Environmental Information Act of 9 May 2003, No. 31, also expresses solidarity across national boundaries by granting a right to environmental information on effects on the environment outside Norway when they are caused by products handled by Norwegian enterprises and produced or distributed outside Norway’s boundaries. Based on this, it can be said that there is a legal principle in Norwegian law of solidarity across boundaries and generations when the disposition of natural resources is involved.

As for the citation to (former) Article 110 b in the first paragraph of the quotation, it involves the relationship between generations, not the relationship between countries.

As the Court sees it, the legal provisions cited in the second paragraph in the quotation from Backer have in common that they regulate negative impacts to the environment abroad from activity in Norway. Viewed this way, the provisions are in accordance with a principle that it is the country where the environmentally harmful activity occurs that is responsible for limiting the harm. Substantial transboundary environmental effects of petroleum development are also regulated in Section 22c of the Petroleum Regulations. The Court cannot see how the provisions hold Norway responsible for environmental harm after exports of Norwegian raw materials.

The provisions cited by Backer thus cannot be cited in support of Norway having a duty to take measures under Article 112 for emissions after combustion of Norwegian oil and gas abroad. Nor can the Court see that other sources of law have been cited which do so. Accordingly, the Court concurs with the Government’s view on this point. Emissions of CO abroad from oil and gas exported from Norway are irrelevant when assessing whether the Decision entails a violation of Article 112.

In order for the Decision to entail a violation of Article 112, there must be a relationship between it and undesirable environmental impacts. This raises in turn a question of whether there must be a degree of certainty – in such case, how large – in order for undesirable impacts to occur. The Court finds that the parties agree that the “precautionary principle” indicates that there is no requirement that it be shown that the effects most likely will occur. Both parties have stated that risk is a more comprehensive criterion. This must be determined on the basis of impact and probability. Thus, there may be an acceptable risk even though the undesirable impact is great, when the probability that it will occur is sufficiently small.

The Human Rights Commission stated at page 246 that – after an intensification in the third paragraph - there “would still be plenty of room for political discretion with respect to which measures are put in place at which time”. This indicates that the courts should be restrained in reviewing whether a given measure is sufficient.

If the Storting has taken measures, in the Court’s opinion there are particular grounds to attach importance to this. This is because of the prior history of Article 112, i.e. (former) Article 110 b. Backer has stated the following in Lov og Rett 1993 and “Innføring i naturressurs- og miljørett 2012” (“Introduction to natural resource and environmental law 2012”) regarding the meaning of this provision:

It is not intended for the courts to review the Storting’s legislative decisions on which solution should be chosen to attend to environmental considerations. It can be said that the constitutional provision leaves it to the Storting to chose the way forwards for protecting the environment.

As mentioned, Backer has also stated that (former) Article 110 b under certain circumstances could be interpreted as a bar. After the right was strengthened through the adoption of Article 112, there are grounds in any event to assert that it [is] not without substance in areas that are regulated by statute, see Thengs “En standardtilnærming til Grunnloven § 112” (“A standard approach to Article 112 of the Constitution”) in TfR 1/2017 at page 44:

Based on this, it can be asserted that it is no longer correct to understand the environmental provision in such a way that it loses its independent legal significance in areas regulated by statute, in other words, where the Storting has “taken a position”. The presumption that the

constitutional provision has been implemented where rules have been provided cannot be tenable any longer in light of the wording and the statements in the preparatory works quoted above.

Such an interpretation has also been pointed out by Fauchald in the article: “Hva er konsekvensene av Grunnlovens miljøparagraf?” (“What are the consequences of the Constitution’s environmental paragraph?”), where he states that it is no longer tenable to assert that the Constitution’s environmental provision loses its importance in areas that are regulated by statute. Application of Article 112 as well to areas regulated by statute does not mean that measures adopted by the Storting may be disregarded. As the Court sees it, there are grounds – based on both the prior history and the statement from the Human Rights Commission – to attach importance to the Storting having taken measures when deciding whether the duty to take measures has been fulfilled.

The Storting’s opinion can also be important if the Storting has taken a position on the constitutionality. This is not at issue in this case because the Storting has not considered the question. However, the Storting has taken a position on a predicate for the Decision, i.e. the decision on opening Barents Sea South-east. Then the Storting has more directly taken a position on the Decision, which the Court will return to in section 5.2.4. As the Court sees it, the concern that legal decisions in the area have a democratic basis warrants attaching great importance to the Storting’s position.

5.2.4 Has the duty to take measures under the third paragraph of Article 112 been met?

Under Section 5.2.2, the Court has held that the right in Article 112 of the Constitution is not violated if the duty to take measures under the third paragraph of the provision is met.

The Court has concluded under Section 5.2.2 that Article 112 does not cover CO emissions abroad from exported oil and gas. It is therefore not required that the Court assess whether sufficient measures have been taken to remedy the risk related to such emissions.

Under Section 5.2.3, the Court has concluded that the risk for environmental harm related to the Decision can be characterised as limited. Whether the duty to take measures under the third paragraph of Article 112 has been met will be assessed according to this.

It is stated under Section 5.2.2 that the courts should be restrained in reviewing whether a given measure is sufficient. It is stated at the same place that importance must be placed on the Storting having taken measures. Several of the measures at issue and which the Government has cited are legislation, i.e. measures laid down by the Storting.

It is also stated in Section 5.2.2 that it is the Court’s opinion that importance must be placed on the Storting having taken a position on a predicate for the Decision, i.e. the decision on opening Barents Sea South-east, and that the Storting has more directly taken a position on the Decision. Questions related to the 23rd licensing round have thus been up for a vote in the Storting three times, i.e. in 2014, 2015 and 2016.

As regards measures for remedying the risk for (traditional) environmental harm, the Government has pointed out that there are a number of safety measures that will attend to

environmental concerns on the Norwegian continental shelf in general and for the blocks the Decision covers in particular. According to what the Court understands, measures for remedying the risk for national CO emissions will also be important for the risk related to black carbon.

The Government has also pointed out that there are both geographic and temporal limitations for exploration drilling, in that exploration drilling shall not occur closer than 50 kilometres from the actual observed ice edge from 15 December to 15 June. It has also been pointed out that further assessment will be carried out under Section 4-2 of the Petroleum Act in connection with any development and operation of one or more of the blocks and that in connection with that, additional environmental requirements can be imposed on the operators at that time. Reference has been made to the discussion in Proposition No. 43 (1995-96) to the Odelsting at page 34 of the relationship between the process related to opening of a new area and in connection with any development:

The Ministry of the Environment has stated in its consultation statement that the Act should be clarified, so that the balancing that will take place before opening new areas will also cover the operating phase.

Under the legal definition of petroleum activities in Section 1-6 c), both production and use of petroleum are covered, in other words, the operating phase is included in the term “petroleum activities”. By replacing the term “activities” with “petroleum activities” in the text of the Act, it becomes clearer that the assessment that must be done before opening new areas includes all stages in the activities. However, the Ministry will point out that it is primarily the effects from the activities in the exploration phase that must be assessed pursuant to Section 3-1. At the time for consideration of opening, it is impossible to have a clear opinion of whether discoveries will be made or these will be the object of development. Because of this, it can be difficult in practice to have particularly extensive assessments regarding the development and operating phase. In addition, there are special provisions in the Act regarding impact assessments before development can be commenced, see Section 4-2, second paragraph which is also given corresponding application for Section 4-3.

The Environmental Organisations have pointed out that emissions from petroleum production are Norway’s largest impetus for emissions and that Norway so far has not been close to achieving its emissions targets. They have stated that Norway is not doing enough.

Whether enough is being done in climate policy generally lies outside what the Court must review. As indicated above, the measures meet the requirements that can be inferred from Article 112 of the Constitution. In relation to this requirement, enough is therefore being done. The Environmental Organisations have emphasised that the Decision must be assessed in a broader context. They have pointed out that these are the first licenses granted after there is reliable knowledge that the world’s proven fossil fuel resources exceed what can be burned in order to reach the goals in the Paris Agreement. They have also emphasised that the Decision opens the way for petroleum activities further east and north than ever and have alleged that the purpose is to maintain petroleum production at the current level despite the fact that emissions must be reduced at a dramatic pace. They have also argued that the Decision contributes to extensive investments and technology development that contribute to increased fossil fuel production (the path argument) and that we are confronting a crossroads (the crossroads argument). They have pointed out that there is not even room for emissions from discovered oil and gas reserves in

the carbon budget. They have stated that everyone must take responsibility and that Norway occupies a special position and that The Government must point out which countries will let their resources lie unused so that the Government can produce more. They have also emphasised that the demand for oil and gas will be reduced in such a way that it is far from certain that production from the blocks the Decision covers will be profitable.

As the Court sees it, none of these arguments are relevant in the assessment of whether the Decision violated Article 112 of the Constitution. In part it is talk of possible impacts from the Decision that are too remote in relation to the risk that is relevant to assess, and in part the issues involve overall assessments that are better assessed through political processes that the courts are not suited to reviewing.

Accordingly, it is the Court’s opinion that the Decision as such or parts of it are not contrary to Article 112 of the Constitution. This is because the duty to take measures has been fulfilled.

5.2.7 Summary and conclusion on the question of whether the Decision is contrary to Article 112 of the Constitution

Article 112 of the Constitution is a rights provision, which can mean that decisions like the one at issue here are invalid.

However, the decision in this case does not violate Article 112. The risk of both (traditional) environmental harm and climate deterioration as a result of the Decision is limited, and remedial measures are sufficient.

Some issues that the Environmental Organisations have raised fall outside what is supposed to be reviewed by the Court. The case involves the validity of the decision on awarding licences in the 23rd Licensing Round, not the decision on opening Barents Sea South-east, Barents Sea South or Norwegian environmental and climate policy in general. Whether Norway is doing enough in the environmental and climate area and whether it was prudent to open fields so far north and east are questions that involve overall assessments which are better evaluated through political processes that the courts are not suited to reviewing.

5.4 Conclusion

The Environmental Organisations’ argument that the Decision violates Article 112 of the Constitution has not prevailed. Nor have the arguments regarding procedural error etc. Judgment will therefore be granted in favour of the Government of Norway through the Ministry of Petroleum and Energy.

The judgment has not been issued within the deadline of two weeks in Section 19-4, fifth paragraph, second sentence of the Dispute Act. The reason must therefore be stated in the judgment, Section 19-4 fifth paragraph, fourth sentence. The reason that the two- week deadline has been exceeded is primarily that preparation of the judgment has been labour-intensive, but also because of other ongoing work assignments

DECISION

The Government of Norway through the Ministry of Petroleum and Energy is found not liable.

Foreningen Greenpeace Norden, Natur og Ungdom and Besteforeldrenes klimaaksjon are jointly ordered to pay within 2 – two – weeks legal costs of 580,000 – five hundred eighty thousand – Norwegian kroner to the Government of Norway through the Ministry of Petroleum and Energy.

COURT OF APPEAL JUDGMENT (2020)

The case involves the question of whether the decision taken by the Royal Decree of 10 June 2016 on awarding production licences for petroleum on the Norwegian continental shelf in Barents Sea South and in Barents Sea South-East, the “23rd Licensing Round” is invalid. The decision was taken pursuant to the Norwegian Act of 29 November 1996 No. 72 relating to Petroleum Activities, Section 3-3. More specifically, the issues in the case are whether the decision is contrary to Article 112 of the Norwegian Constitution, whether the decision is contrary to Article 2 or Article 8 of the European Human Rights Convention, as well as Article 93 or Article 102 of the Norwegian Constitution, and whether the decision is invalid because of procedural errors. The case raises in particular questions regarding the interpretation of Article 112 of the Norwegian Constitution related to whether, and the extent to which, the provision grants rights, and how the provision may be applied to emissions of greenhouse gases.

3. Is the decision on awarding production licences contrary to Article 112 of the Norwegian Constitution?

3.1 Global warming as an environmental problem

There is broad agreement that global warming is one of the greatest challenges humanity is facing. The warming of the planet is caused by emissions of greenhouse gases, primarily carbon dioxide (CO2), to the atmosphere. CO2 is released into a natural cycle and absorbed by plants and the ocean. In the case of anthropogenic emissions, such as from combustion of fossil energy sources, more CO2 is released than the natural cycle can absorb and remains in the atmosphere. The knowledge about the climate changes is based to a large degree on reports from the UN’s climate panel – the IPCC.

To this point in time, the emissions have resulted in an average temperature increase of around one degree Celsius compared with the pre-industrial era. If the emissions continue in line with the climate policy that is currently being conducted in the world, the warming will continue to 3–4 degrees towards the end of the century, see the Norwegian Climate Risk Commission’s report NOU 2018: 17 “Klimarisiko og norsk økonomi” (“Climate risk and the Norwegian economy”), page 39. The emissions occurring today will remain in the atmosphere for a long period, and the matter therefore involves changes that can have an effect several hundred years into the future.

The risk picture for global warming includes heat waves, drought, extreme precipitation, extreme wind, sea level rise and ocean acidification. This will in turn have consequences for food production and biodiversity. Extreme climatic conditions, such as heat waves, might also result in loss of human lives. The risk of such consequences will depend to a large degree on the extent of the warming.

The climate changes and the effects of these are distributed unevenly around the world. The risk picture for Norway’s part was assessed by the Norwegian Climate Risk Commission. The consequences for Norway have been assessed on the basis of a high- emission scenario that results in a global temperature increase of 4.3C towards the end of the century compared with the pre-industrial era. The estimated consequences for Norway are uncertain. It is estimated that the temperature increase in Norway will be somewhat greater than globally – as much as 5.5C compared with the pre-industrial era, i.e. approximately 4.5C warmer than today. It is estimated that the temperature increase for the Arctic, including Svalbard and parts of Finnmark, will be even greater. Seen in isolation, a warmer Norway will mean a longer growing season, but also more drought, a higher tree line and increased risk of forest fires. Norway will become wetter with more frequent heavy precipitation, and the heavy precipitation will become even heavier. The flood pattern will change, the snow pattern will change and the glaciers will contract. The ocean off Norway will become warmer and more acidic. There are large gaps in knowledge regarding the actual effect of a warmer and more acidic ocean, but this can result in major consequences for marine species and ecosystems and displace marine species northwards. The sea level around Norway will rise from 15 to 55 cm, i.e. less than other places in the world. The sea level rise will result in increased consequences from storm surges. For Norway’s part, there will thus be a particular risk of flooding and slides, as well as various types of property damage caused by extreme precipitation. In ecological terms, life in the sea will be affected the hardest.

Under Article 2 of the Paris Agreement, the parties agree to “holding the increase in the global average temperature to well below 2°C above pre-industrial levels and pursuing efforts to limit the temperature increase to 1.5°C above pre-industrial levels”. The same article states that the Agreement is based on “the principle of common but differentiated responsibilities and respective capabilities, in the light of different national circumstances”. The Agreement is based on each state reporting nationally determined contributions (NDC), see Article 3. The contributions are to be reported every five years, and they are to represent a progression and express the state’s highest possible ambition, see Article 4, No. 3. Norway’s current NDC is a 40 per cent reduction before 2030 compared with 1990. This is a common solution with the EU. However, the combined emissions targets that have been reported are clearly too low to achieve the goal in the Agreement of limiting the warming to 1.5°C, see NOU 2018: 17, page 46. Actual global emissions still show an increasing trend.

The IPCC has prepared a so-called carbon budget. Various models for this yield somewhat different answers. It is estimated that from 1870 to 2018, approximately 2,200 gigatonnes of CO2 (GtCO2) have been emitted. In order to reach the 1.5 degree goal with 50 per cent probability, only another 580–770 GtCO2 can be emitted, see NOU 2018: 17, page 47. With annual emissions of approximately 42 GtCO2, this means that there is only room for approximately 15 years of today’s emissions before the world must switch to zero net emissions, i.e. not emitting more than the natural environment can absorb. With a gradual reduction, it will be approximately 30 years before the switch is required. Total discoveries of coal, oil and gas represent approximately 3,500 GtCO2, of which coal clearly represents the largest share, followed by oil. Of today’s global emissions of approximately 42 GtCO2, coal is responsible for the largest share, then oil and then gas.

An alternative to a reduction in use of fossil energy sources is carbon capture and carbon storage, as well as removal of CO2 from the atmosphere. However, there are currently no largescale technical solutions available for this, apart from using nature’s own methods, such as forestation.

Norwegian emissions in recent years have remained relatively stable between 50 and 60 megatonnes of CO2 equivalents (MtCO2e) per year. Per inhabitant, this represents something under 10 tonnes per year, i.e. clearly more than the average in the world of approximately 5 tonnes per year, and also somewhat more than the average in the EU. The largest source of emissions in Norway is production of oil and gas. According to Statistics Norway, production of oil and gas in 2015 was responsible for approximately 15 MtCO2e – in comparision, land-based industry was responsible for 12 and road traffic for 10 MtCO2e. The emissions from combustion of oil and gas produced in Norway are far greater and are between 400 and 500 MtCO2. The emissions from combustion of Norwegian oil and gas thus represent approximately 1 per cent of global emissions. Emissions of CO2 are closely tied to the global economy, and in the same way that global demand for Norwegian petroleum is important, Norwegian demand for goods whose production and transport result in emissions is important in the big picture. The climate settlements from 2008 and 2012, see Recommendation to the Storting No. 145 (2007– 2008) and Recommendation to the Storting No. 390 (2011–2012), meant that Norway set an internal target of cutting national emissions by 30 per cent by 2020 in relation to the 1990 level, compared with the expected emissions path, and that approximately 2/3 should be cut internally. It does not appear that the targets will be achieved.

It must be emphasised that the scope of the climate changes and the consequences of these are uncertain and may be more extensive than the scenarios currently considered most likely. There is particular uncertainty related to the risk of greater self-reinforcing effects at so-called tipping points, which are presumed to apply to ice melt in Greenland and the Antarctic.

3.2 The consequences of the decision for emissions of greenhouse gases from the production in Norway

A production licence grants exclusive rights to conduct surveys and to search for and produce petroleum within the geographic area covered by the licence, and the licensee becomes the owner of the petroleum that is produced, see Section 3-3, third paragraph of the Norwegian Petroleum Act. The production licences awarded in the 23rd Licensing Round involved 10 licences related to 40 blocks, of which 7 licences and 14 blocks were in Barents Sea South and 3 licences and 26 blocks in Barents Sea South-East. The emissions of climate gases can be divided roughly into two: emissions related to the production and emissions related to the combustion at the end user, where the latter for all essential purposes takes place abroad after export. The Court of Appeal will look first at emissions related to the production.

At present, commercially exploitable discoveries have not been made in the blocks in question, and it is highly uncertain whether oil or gas will be found in such quantities that production will be profitable. The production licences thus involve only potential later emissions. Any production will not take place for 10–15 years. The exploration activity involves some emissions of greenhouse gases, but so marginally that it has no significance for the assessment under Article 112 of the Norwegian Constitution.

It is also the case that even if commercially exploitable discoveries were to be made, a production licence does not grant an unlimited right to production. Any commercially exploitable discoveries cannot be produced unless the licensee has an approved plan for development and operation (PDO) pursuant to Section 4-2 of the Norwegian Petroleum Act. An impact assessment will normally be carried out which will also cover air emissions, see Section 22 a of the Norwegian Petroleum Regulations. The Ministry can deny approval or set conditions for approval.

The parties disagree on whether denial, or approval of conditions which in practice mean a denial, is a real alternative. At this stage, a licensee will normally have incurred costs in connection with exploration, on the basis of an assumption of being able to cover these if commercially exploitable discoveries are made.

The Court of Appeal points out that the Act requires approval, without setting criteria for the decision. A licensee is granted an exclusive right to production through the production licence, but this is predominantly negative in nature, in that no others may be granted such a right, and it does not grant an unconditional right to produce, see Hammer et al., Petroleumsloven (“The Norwegian Petroleum Act”) (2009), pages 41–42. A licensee is therefore not entitled to approval of a PDO. At the same time, a denial cannot really be seen to entail a reversal of the production licence, see Hammer et al., page 98. On the other hand, Section 4-2 of the Norwegian Petroleum Act must be read in connection with Article 112 of the Norwegian Constitution. The authorities must therefore be able to decide not to approve a plan for development and operation if environmental considerations at the time of the decision cannot adequately be taken care of through the plan. Nevertheless, a licensee must comply with the general frameworks for

petroleum activities at the time of production. Emissions allowance trading price, the level of CO2 tax and any other requirements imposed based on climate considerations may have developed so that the threshold for producing oil and gas discoveries is too high.

Before commercially exploitable discoveries are made, only rough estimates can be made of possible emissions from the production itself. In the impact assessment that forms the basis for the opening of Barents Sea South-East, two estimates have been made of discoveries in this area, respectively 45 million standard cubic metres (Sm3) of oil and 120 billion Sm3 of gas in a high scenario, and 15 million Sm3 of oil and 30 billion Sm3 of gas in a low scenario. It is noted that this applies to all of Barents Sea South-East, i.e. a larger area than the blocks awarded in this area in the 23rd Licensing Round, while the blocks in Barents Sea South fall outside. Economics professors Mads Greaker and Knut Einar Rosendahl have calculated the CO2 emissions from such production at respectively 22 million tonnes and 4.5 million tonnes, which will be distributed over the production period. In the impact assessment, the CO2 emissions are calculated at 568,000 tonnes in a high scenario and 286,000 tonnes in a low scenario, in the year with the highest emissions, see the Impact Assessment, page 60. Compared with total annual emissions from the Norwegian Continental Shelf of approximately 15 million tonnes (2015), or total Norwegian emissions of 50–60 million tonnes, this represents a minor contribution. Compared with the global emissions, the emissions are of even less importance.

This must then be measured against the actions taken.

A key measure is Norway’s accession to the EU’s emissions allowance trading system, see the Norwegian Greenhouse Gas Emission Trading Act, which in brief is based on buying and selling allowances for CO2 emissions within a total allowance quantity that is reduced annually. The emissions allowance trading system is intended to contribute to emissions reductions occurring where it is most beneficial from a socio-economic perspective.

Assuming a well-functioning emissions allowance trading system, this means that increased emissions from the Norwegian Continental Shelf will not affect the total emissions within sectors required to surrender allowances in the EU. The Court of Appeal also points out that the Paris Agreement accepts regional emissions allowance trading systems and other flexible mechanisms, see Article 4, No. 16, and Article 6. Such mechanisms mean that a country can go a long way towards “buying itself out of” national cuts. It can be asserted that the schemes are to a certain extent at odds with the Paris Agreement’s burden-sharing principles and the requirement for a highest possible level of ambition. As the Court of Appeal sees it, at this point we are talking about choices of measures that lie outside a review under Article 112. The Court of Appeal assumes that the emissions allowance trading system is significant for the net effect of the emissions and therefore represents a relevant measure under the third paragraph of Article 112.

There are also measures for reducing the national emissions from the Norwegian Continental Shelf. A CO2 tax has been introduced, see the Norwegian CO2 Tax Act on Petroleum Activities, which has worked as an incentive to reduce the emissions, see in particular Recommendation to the Storting 382 (2014–2015), p. 12. Various restrictions have been issued on emissions, such a prohibition on burning off excess gas, and work is being carried out to electrify the continental shelf.

Emissions that can be related to the decision in the 23rd Licensing Round must also be viewed in connection with other emissions, see Section 2.4 above regarding the interpretation of Article 112.

The Environmental Organisations have claimed that Norway on an overall basis already emits too much CO2 – Norway is not in a position to meet its own emission targets, and the emission targets have been set too low in any event. Therefore, in their view, neither can permission be granted to search for new discoveries. These views will apply similarly to later licensing rounds and therefore mean in reality a controlled phasing out of Norwegian petroleum activities.

The Court of Appeal finds that fulfilment of the targets in the Paris Agreement requires drastic cuts in emissions. Total reported national contributions are too low to fulfil the Paris Agreement’s targets, and therefore a progression must occur in the contributions. The burden-sharing principles in the Agreement are suited to strengthening Norway’s responsibility. This is directly in opposition to searching for new discoveries.

However, it is not the case that other Norwegian emissions are fixed. An ongoing technical and political assessment is being carried out of where cuts will be made and how these can be achieved. A gradual reduction of emissions in line with the 1.5 degree target will also provide room for some emissions that may be prioritised, including in a low-emissions society. In addition, it is possible as mentioned to use flexible mechanisms, such as emissions allowance trading schemes. Which national emissions are appropriate to prioritise is beyond the power of the courts to review under Article 112.

As mentioned under the review of Article 112 in Section 2.4 above, the view that there is room for the emissions presumes that measures will be taken to reduce total national emissions that can provide such room. A number of measures have been taken for various sectors to reduce national emissions, see for example, the summary in the Norwegian national budget, Report to the Storting 1 (2018–2019), pages 86 et seq. It is presumed there that the measures will have reduced the emissions by 20-23 million tonnes for 2020. Despite these measures, national emissions have been at approximately the same level in recent years, and the measures therefore have essentially prevented an increase in the emissions. However, Norway will be able to use flexible mechanisms. In addition to emissions from petroleum activities, emissions from land-based industry, major energy installations and aviation within the EEA – in all, about half of Norwegian emissions – are subject to the EU’s emissions allowance trading system. Under the plan, the annual reduction in the quantity of allowances will lead to an emissions reduction of 43 per cent by 2030 in the sector required to surrender allowances compared with 2005, see Report to the Storting 41 (2016–2017), page 27. With respect to the sector not required to surrender allowances, the states that are part of the EU scheme share efforts among themselves with flexible mechanisms, such as the opportunity to convert emissions allowances from the emissions allowance trading system and trading in emissions units. As mentioned, the Court of Appeal assumes that flexible mechanisms represent a measure under the third paragraph of Article 112, as these are significant for net emissions. There is also an overall strategy for reduction of national emissions, which is specifically regulated through the Norwegian Climate Change Act, see particulars under Section 5.3 below.

The Environmental Organisations have cited comparative law, and the Urgenda case in the Netherlands in particular. However, the case involved a declaratory judgment action for the total extent of emissions reduction, in which the appellate court upheld the judgement of the court of

first instance that ordered a 25 per cent reduction from the state by the end of 2020, compared with 1990. The appellate court states that it is up to the state how the emissions are reduced, see paragraph 74, and therefore no position is taken on the prioritising of emissions. The judgement was appealed to the Supreme Court of the Netherlands, and a judgment was rendered after this case was taken up for decision. As the Court of Appeal understands it, the result at the Supreme Court of the Netherlands was the same as in the previous instances.

The Environmental Organisations have also pointed out that stopping the awarding of production licences will have a substantial signal effect, and especially because it will be important for the transition to an emissions-free economy. For the Court of Appeal, this is too vague to be relevant for the review.

The Court of Appeal points out that the consequences for national emissions of a continuation of the petroleum activities is the subject of ongoing political debate and voting in the Storting, see citations included in Sections 3.3 and 5.3 below. The prioritisations in climate policy involve socio-economic and political balancing in the core area for what the courts should be constrained in reviewing.

As the Court of Appeal sees it, possible future emissions related to the production licences awarded in the 23rd Licensing Round do not bear such importance for the national emissions, when the measures taken are also considered, that the threshold under Article 112 has been exceeded.

3.3 The consequences of the decision for emissions of greenhouse gases from combustion abroad

As mentioned, it is uncertain whether the production licences will at all be followed up with production of petroleum and thereby lead to emissions, and in that event how much. If commercially exploitable discoveries are made, the largest emissions will occur through combustion after export. It is estimated that up to 5 per cent of the emissions occur in connection with the production and at least 95 per cent in connection with the combustion. The high and low scenarios for Barents Sea South-East as a whole, see above, have thus been calculated by Greaker and Rosendahl to be respectively 370 and 100 million tonnes CO2 over the period the combustion of these resources will occur. This represents a minor part of the total emissions that can be tied to the combustion of Norwegian oil and gas, which annually are 400–500 million tonnes of CO2. This represents in turn a small share, approximately 1 per cent, of total annual global emissions. When the emissions from the combustion are also included, the significance will therefore be marginal in comparison with total global emissions.

Measures to combat global emissions are – from a legal perspective – more difficult. However, in the opinion of the Court of Appeal it is natural to view Norway’s role as a driving force internationally for binding agreements on emissions reductions as a measure under the third paragraph of Article 112. The same applies to measures based on reducing clearing of the rainforest, see Norway’s International Climate and Forest Initiative, as well as support for adaptation for developing countries. Compared with such measures, shutting down or reducing Norwegian petroleum activities may prove less cost-effective.

The emissions from the combustion must also be assessed in a wider context, against the total emissions. The targets in the Paris Agreement mean that the total global emissions must be reduced dramatically and in the course of a brief time. The Environmental Organisations have stressed in connection with this that more fossil resources have already been discovered than can be burned within the remaining carbon budget if the targets in the Paris Agreement are to be achieved, and therefore awarding licences for exploration for additional fossil resources cannot be defended.

In the view of the Court of Appeal, this perspective is too narrow. The largest share of today’s CO2 emissions comes from coal, then oil and then gas. The largest reserves are also coal, then oil and then gas. Emissions from fossil energy sources will have to occur during a transition period, and then preferably from the most CO2-efficient sources. A low- emissions society will also have to make room for certain emissions. In the same way as for the internal emissions, there will also have to be room for the emissions from the combustion. This view assumes that the total global emissions will be reduced in line with the Paris Agreement. Unlike the internal emissions, Norway has no control over the prioritisation of emissions internationally. Norway’s accession to the Paris Agreement, which is based on each country reducing its own emissions, can nevertheless be seen as a strategy directed at global reduction of emissions. However, the measure is only effective to the extent the Paris Agreement functions according to its purpose.

The alternative will be a gradual phasing-out of Norwegian exports of oil and gas. However, this does not necessarily mean that the world’s energy requirements as a whole will be covered in a more climate-friendly manner. If gas is replaced by coal, cuts in gas exports will have a negative CO2 effect. If gas is replaced by alternative energy sources, the effect will be positive. If the gas competes with gas from other suppliers, the effect might be nil. With respect to oil, cuts in Norwegian production might quickly be replaced by oil supplied from other countries. If Norwegian oil or gas is used within the sector required to surrender emissions allowances, total emissions will not necessarily be affected. The actual significance of Norwegian exports of oil and gas for global emissions is therefore complicated and controversial, and there are few investigations into the question. In the article “Parisavtalen og oljeeksporten” (“The Paris Agreement and Oil Exports”) by Taran Fæhn et al. in Samfunnsøkonomen no. 3 2018, it is estimated that the net effect of cutting exports of Norwegian gas will be nil and that the net effect of cutting Norwegian oil will be around a third of the gross emissions. The conclusions are controversial, in both directions. Geological surveys have shown Barents Sea South-East to be the place where gas is most likely to be found, see Section 5.2 below. At the same time, there is a greater likelihood that cuts in production will actually be significant the further into the future these arise, as it must be assumed that alternative energy sources will constitute a steadily larger competitor. If, despite these uncertainties, the estimated emissions related to Barents Sea South-East are adjusted according to the conclusions in the referenced article, the high and low scenarios result in 40 and 13 million tonnes of CO2, respectively.

The Court of Appeal also points out that even if the significance of the global emissions is dramatic, it will be the environmental effects in Norway that are the key issue for the assessment under Article 112 of the Norwegian Constitution, see Section 2.4 above. The effects in Norway may be serious enough, but they appear to be more limited and of a different nature than the global effects. A number of measures have been put in place to limit the effects in Norway.

The Storting on several occasions has taken a position on proposals for entire or partial phasing out of Norwegian petroleum activities based on the significance for global greenhouse gas emissions. All the proposals have been rejected with a broad majority. Proposals have been advanced to stop awards in the 23rd Licensing Round on the basis of such a justification, see Recommendation to the Storting No. 206 (2013–14), see Document 8:39, and Recommendation to the Storting No. 274 (2015–2016), see Document 8:49 – the first-mentioned proposal was also defeated a short time after Article 112 of the Norwegian Constitution was adopted. Several proposals have also been presented independently of the 23rd Licensing Round, see for example, Recommendation to the Storting No. 258 (2016– 2017), Recommendation to the Storting No. 130 (2017–2018), Recommendation to the Storting No. 253 (2017–2018), Recommendation to the Storting No. 368 (2017–2018) and Recommendation to the Storting No. 321 (2018–19). The rejection of the proposals relies in part on the importance of the petroleum activities for the Norwegian economy and the fact that in a low-emissions society there will also be room for oil and gas, see for example, Recommendation to the Storting No. 258 (2016–2017), page 3.

The Court of Appeals wishes to emphasise that it is particularly when emissions are also included from the combustion that the climate-related consequences come to the fore. However, the threshold for finding a violation of Article 112 of the Norwegian Constitution is high, and the matter involves socio-economic and political balancing on which positions are continuously being taken in the Storting and which is in the core area for what the courts should be constrained in reviewing. It is also an element in the assessment of such emissions under Article 112 that the Paris Agreement is based on each country taking measures against its own national emissions. On the basis of an overall assessment of the elements that have been reviewed, the Court of Appeal cannot see that the threshold under Article 112 has been exceeded.

3.4 The consequences of the decision for local environmental harm

The Barents Sea is a particularly rich maritime area. Natural conditions have resulted in an area that is rich in plankton and an important reproduction area for large populations of fish, which in turn provide a basis for animal life upwards in the food chain. A unique ecosystem occurs at the ice edge, with extensive production of plankton in the spring. The polar front, i.e. the area where cold water from the Arctic Ocean meets warm water from the Atlantic Ocean, also results in a unique ecosystem. Both the ice edge and the polar front are particularly vulnerable to oil spills and have therefore been identified as particularly valuable and vulnerable areas from an environmental perspective. The ice edge is in motion throughout the year, and the extent varies from year to year. The climate changes mean that the ice edge and the polar front are generally retreating.

In addition to oil spills, the area is particularly vulnerable to emissions of “black carbon”, which increases the ice melt. It is particularly in the event of mishaps or accidents that result in burning of oil that major emissions of black carbon will occur. Burning off excess gas also results in emissions.

The designation of areas as particularly valuable and vulnerable areas is determined in management plans. Report to the Storting No. 8 (2005-2006) Om helhetlig forvaltning av det marine miljø i Barentshavet og havområdene utenfor Lofoten (“Integrated Management of the Marine Environment of the Barents Sea and the Sea Areas off the Lofoten Islands (Management plan”), states on page 123 that petroleum activities will not be started at the ice edge and the

polar front. In the update to the management plan in Report to the Storting No. 10 (2010–2011), the same is said on page 132, but limited so that such activities will not be started during the Storting period in question. In the next update in Report to the Storting No. 20 (2014–2015), a redefinition of the ice edge was proposed to take account of the fact that the ice edge has retreated because of climate changes. The report was returned to the Government, and the Government was asked to start work on a regular comprehensive revision of the management plan, see Recommendation to the Storting No. 383 (2014-2015). A new management plan is expected in 2020.

The production licences in the 23rd Licensing Round include some blocks inside the polar front and the ice edge as these are defined in Report to the Storting No. 10 (2010–2011). The licences also include blocks that are closer to the polar front and the ice edge than previous licences. During the consultation round, both the Norwegian Environment Agency and the Norwegian Polar Institute advised against announcing blocks inside or close to particularly valuable and vulnerable areas. Of the blocks that were awarded, fourteen blocks were advised against by both bodies and another six by the Norwegian Environment Agency. The advice from the Norwegian Environment Agency to refrain related in particular to the need for a thorough technical process to define a boundary for the ice edge that also covers more extreme years. Emergency response problems were also cited. The Norwegian Polar Institute cited in particular the need for more knowledge, the risk with oil activities in this area and the question of whether the emergency response is adequate.

Local environmental harm has not occurred to this point. However, the risk relates particularly to the production of oil and gas that will take place if commercially exploitable discoveries are made. A number of measures have been taken to protect against local environmental harm. There is a strict safety regime on the Norwegian Continental Shelf, with comprehensive regulations for protecting against local discharges. In addition, several individual licences are required, such as a licence for the individual exploration, where special conditions can be imposed. If commercially exploitable discoveries are made, a new impact assessment will be made in connection with an application for approval of a PDO, where once again conditions can be imposed, see Section 4-2 of the Norwegian Petroleum Act. An example of a specific measure is a prohibition on burning off excess gas with a possibility for a waiver. A supplement to Report to the Storting 36 (2012–2013), Report to the Storting No. 41 (2012–2013), states that drilling period limitations will be imposed, including a prohibition on drilling in areas closer than 50 kilometres from the actual and/or observed ice edge during the period from 15 December to 15 June.

Calculations have been made in the Impact Assessment of the risk for blow-outs that result in environmental harm, which are summarised on page 8 of the European Convention on Human Rights, see page 97. It is indicated that during the development and operating phase, the probability of a blow-out resulting in moderate environmental harm to sea birds is one occurrence per 4,000 years, and for moderate environmental harm to the ice edge it is one occurrence per 20,000 years. The probability of serious environmental harm is even lower. With respect to the exploration phase, it is concluded that if three exploratory wells are drilled per year, one occurrence of serious and moderate environmental harm to sea birds can be expected every 15,000 and 6,000 years, respectively, and one occurrence of serious and moderate environmental harm to the ice edge every 11,000 and 7,500 years, respectively. Accordingly, the Court of Appeal concludes that even if the consequences of oil spills can be dramatic, the risk is low.

The Court of Appeal also points out that a broad majority of the Storting has concurred in the 23rd Licensing Round, with knowledge of the mentioned environmental risks, see Recommendation to the Storting No. 495 (2012–2013) on the opening of Barents Sea SouthEast, based on the Impact Assessment. We will also point out that a number of initiatives to stop the 23rd Licensing Round for the blocks most exposed to the risk of local environmental harm have been rejected with a broad majority, see Recommendation to the Storting No. 383 (2014–15), Recommendation to the Storting No. 274 (2015–2016) and Recommendation to the Storting No. 326 (2017–2018).

As the Court of Appeal sees it, the risk of local environmental harm is so low that the decision is not contrary to Article 112 of the Norwegian Constitution.

3.5 Overall assessment of the decision’s significance for the environment. Socioeconomics

The parties agree that an overall assessment is to be made of the environmental impacts.

The Environmental Organisations have pointed out that the purpose that justifies the decision – a net socio-economic benefit – is based on incorrect premises and cannot be assumed. The Court of Appeal is satisfied here with referring to the review below related to the proceedings. There is no basis to review the assessment that development and operation are highly likely to result in a net socio-economic benefit. Nor can the Court of Appeal see under an overall assessment that the decision exceeds the threshold under Article 112 of the Norwegian Constitution. The total greenhouse gas emissions, i.e. from both the production and the combustion, must be assessed against the serious climate changes. However, the matter involves uncertain and unique future emissions, and the measures under the third paragraph of Article 112 that could provide room for the emissions can best be assessed at the time the emissions are imminent, i.e. in connection with any approval of a plan for development and operation. There is also an element, which is not in itself determinative, that all consequences for the environment that have been reviewed above, as well as the objections to the socio-economic assessments, have been considered by the Storting several times but the decision nevertheless has been upheld with a broad majority.

4. Is the decision contrary to ECHR Articles 2 or 8 or Articles 93 or 102 of the Norwegian Constitution?

4.1 The issue of dismissal

The Government has questioned whether the Environmental Organisations can act as plaintiffs in claiming that the decision is invalid because of ECHR Articles 2 and 8, as they cannot be a “victim”. If they are unable to do so, it must lead to this part of the lawsuit being dismissed.

Under ECHR Article 34, any person, organisation or group of individuals claiming to be subject to violations (a “victim”) of a violation of the rights set forth in the Convention may bring the matter before the European Court of Human Rights. Under Section 1-3 of the Norwegian Dispute Act, there is a requirement for a party’s connection to the claim in order to bring a legal action. Section 1-4 of the Norwegian Dispute Act expressly provides that organisations may bring legal actions but requires that the conditions in Section 1-3 are met.

The Court of Appeal finds no reason to go further into whether there is a basis for dismissing this part of the lawsuit, as it finds it clear in any event that the Government must also be held not liable as regards this basis, see Section 9-6, third paragraph of the Norwegian Dispute Act, see Section 29-12, third paragraph.

4.2 The issue of invalidity

ECHR Article 2 protects the right to life. The provision also provides for positive duties for the authorities, including for hazardous industrial activities, see for example, the judgement of the European Court of Human Rights in Oneryildiz v. Turkey, 30 November 2004, which involved a waste dump. It is required that the risk of loss of life is “real and immediate”, see the mentioned judgement at paragraphs 100–101, and Kjølbro, Den europæiske Menneskerettighedskonvention – for praktikere (“The European Human Rights Convention – for Practitioners”) (fourth edition, 2017), page 212, which uses the expression “aktuell og nærliggende risiko” (“real and immediate risk”).

The Court of Appeal cannot see that the decision on awarding production licences involves the right to life in a manner that is protected by ECHR Article 2. The consequences of climate changes globally are beyond the State of Norway’s obligations under the ECHR, see ECHR Article 1 regarding the requirement that a state shall secure the rights of “everyone within [its] jurisdiction”. With respect to the consequences of climate changes in Norway, it cannot be ruled out that these will result in loss of human life, for example through floods or slides in areas that are particularly exposed to this. However, the relationship between the production licences in the 23rd Licensing Round and loss of human life does not clearly fulfil the requirement for a “real and immediate” risk. The Court of Appeal refers to the review in Section 3.1-3.3 above, where it is indicated that it is uncertain whether emissions will occur based on the decision, and that these will in any event be marginal when compared with total global emissions. If emissions based on the decision are also viewed in connection with other greenhouse gas emissions, the decision does not result in a “real and immediate” risk of loss of life for inhabitants of Norway in general.

ECHR Article 8 protects the individual’s private life, family life and home. Case law from the European Court of Human Rights shows that the provision implies positive duties for the state which in certain cases may result in a duty to protect the environment. The provision has primarily been applied to local environmental contamination, and the European Court of Human Rights has not decided any climate cases. In the judgment Atanasov v. Bulgaria of 2 December 2010, the European Court of Human Rights states the following, see paragraph 66:

In today’s society the protection of the environment is an increasingly important consideration […] However, Article 8 is not engaged every time environmental deterioration occurs: no right to nature preservation is included as such among the rights and freedoms guaranteed by the Convention or its Protocols […] Indeed, that has been noted twice by the Council of Europe’s Parliamentary Assembly, which urged the Committee of Ministers to consider the possibility of supplementing the Convention in that respect (see paragraphs 56 and 57 above). The State’s obligations under Article 8 come into play in that context only if there is a direct and immediate link between the impugned situation and the applicant’s home or private or family life […] Therefore, the first point for decision is whether the environmental pollution of which the applicant complains can be regarded as affecting adversely, to a sufficient extent, the enjoyment of the amenities of his home and the quality of his private and family life.

The latter means that the effects must exceed a certain threshold, see the statements in the European Court of Human Rights’ decisions in the cases Hatton et al. v. United Kingdom (expanded panel), 8 July 2003, paragraph 96, Kyrtatos v. Greece, 22 May 2003, paragraph 54, and Fadeyeva v. Russia, 9 June 2005, paragraph 69. The requirements mean that a great deal is required before future contamination is affected, see the dismissal decision in Asselbourg et al. v. Luxembourg, 29 June 1999. As the Environmental Organisations have brought the case, serious consequences are required for private life, family life and home for the inhabitants of Norway at a general level, in contrast to if the lawsuit had been individualised, such as to inhabitants in specific areas who are particularly exposed. As the Court of Appeal sees it, there is clearly no “direct and immediate link” between the emissions that might result from the decision and serious consequences for the rights under Article 8 for the inhabitants of Norway at a general level. The Court of Appeal also refers here to the review in Sections 3.1-3.3 above. Neither can such a direct and immediate connection be shown regarding emissions that might result from the decision when seen in connection with other greenhouse gas emissions. The decision, therefore, is not affected as such by Article 8 of the European Convention on Human Rights. The Environmental Organisations have cited in particular the Urgenda case from the Netherlands, which is based on ECHR Articles 2 and 8. There is no doubt that the decision breaks new ground for the application of the ECHR. However, in the opinion of the Court of Appeal, the decision has little transfer value as it involved issues regarding general emissions targets and not, as in this case, specific future emissions from individual fields that might eventually be put into production in the future. There is no conflict between the result the Court of Appeal has arrived at in this case and the result in the Urgenda case.

The Environmental Organisations have also pointed out that the European Court of Human Rights, when determining the substance of the rights, can rely on international agreements that constitute “common ground” between the Member States, see Demir and Baykara v. Turkey, 12 November 2008, paragraphs 85–86, and the fact that the Paris Agreement and the reports from the UN’s Intergovernmental Panel on Climate Change can be brought in, in connection with this. However, the doctrine can hardly be used in the same manner in the environment area when the ECHR has no separate environmental provision. Irrespective of this, it has not been shown that the production licences will be contrary to the Paris Agreement, see Section 3.2 above.

The Court of Appeal will note that if the decision nevertheless were to be considered a “real and immediate” risk of loss of life, or be in a “direct and immediate” relationship with serious encroachments on the right to a private life, family life or home, a closer review would have to be made of whether the Government has met its positive obligation to protect the rights. This will entail an assessment of the measures from the Government in a manner similar to Sections 3.2 and 3.3 above. The Government will have a discretionary margin in that regard. There is nothing to indicate that the result of such an assessment will be different under ECHR Articles 2 and 8 than under Article 112 of the Norwegian Constitution.

Accordingly, the decision is not contrary to either ECHR Article 2 or Article 8.

The Environmental Organisations have also claimed that the decision is contrary to the corresponding provisions in Articles 93 and 102 of the Norwegian Constitution. The Court of Appeal cannot see that these extend any further than the ECHR in this area. This is particularly the case since the Norwegian Constitution, unlike the ECHR, has its own environmental provision. It is also noted that the UN’s Human Rights Committee adopted on 3 September 2019 a

Image: Courts can help secure legal remedies for everyone threatened by climate change, including these vulnerable families in Gunayala, Panama. Kadir van Lohuizen / NOOR.

General Comment on Article 6 of the International Covenant on Civil and Political Rights on the right to life. In paragraph 62, it is pointed out that climate changes represent one of the most serious threats to “the ability of present and future generations to enjoy the right to life”. It is also pointed out that a state’s international obligations in the environmental area should influence the substance of Article 6 of the International Covenant on Civil and Political Rights, and that a state should ensure sustainable use of natural resources. The comment is formulated on this point as encouragement instead of obligations, and the text is too general in any event to have any significance in this case.

Neither can the Court of Appeal see that the pleadings in support that have been submitted pursuant to Section 15-8, and which essentially deal with international obligations, in part under the ECHR and in part under general international law principles, contain anything suited to providing a different conclusion.

The judgment is unanimous.

DECISION

2. The appeal is to be dismissed.

Legal costs are not awarded, neither for the District Court nor the Court of Appeal.

This article is from:

Courtrooms and Climate Displacement

by Displacement Solutions