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International Law & Politics of Human Rights

Environmental Refugees in Tuvalu

Final Paper
A Rum Cho and Alexa LaBroad

Table of Contents
1.
2.
3.
4.
5.
6.
7.

Introduction
Background
Legal Framework
Key Actors
Recommendations
Conclusion
Works Cited

1. Introduction
The environmental phenomenon of climate change has become an increasingly pressing issue
within the international community. It has become apparent that the significant impact climate

change has on the environment and its inhabitants is worthy of global concern and multilateral
action. The United Nations Environment Programme (UNEP) suggests that sea-level rise, a
major anticipated consequence of the changing climate, is occurring at a rate 60% faster than
predicted, rising at 3.22 milimeters per year.1
This memorandum explores the issues of environmental refugees, people who are displaced
from their home region due to severe changes in the local environment, focusing particularly on
those concerning the people of the small island state Tuvalu in the pacific region. We will discuss
the implications climate change has on the human rights of our client, the Tuvaluans, while
exploring the current status of environmental refugees within the existing international law. To
conclude, recommendations for potential short-term and long-term solutions will be outlined for
both a domestic and international level.

2. Background
The island of Tuvalu consists of nine small coral atolls in the central Pacific. Tuvalu is one
among many developing countries directly affected by the effects of the changing climate. Sealevel rise in Tuvalu has been measured at 5 millimeters per year since 1993. 2 Tuvalus highest
point of land measures just around 4 meters above sea-level; on average, Tuvalu is just 2 meters
above sea-level.3
1Stefan Rahmstorf, Grant Foster, and Anny Cazenave, Comparing climate projections to observations up to
2011 Environ. Res. Lett. (2013)

2 "Climate Change in the Pacific: Scientific Assessment and New Research "Pacific Climate Change
Science Program (Australian Government), (2011)

3 Tuvalus Views on the Possible Security Implications of Climate Change UN General Assembly 64th
Session

The rising sea-level affects the entire nation, compromising its security, statehood, and ability
to feed the people. Despite these major concerns induced by climate change, there has been no
significant response from the domestic and international communities. The Prime Minister of
Tuvalu has plead to the states of Australia and New Zealand, with whom Tuvalu holds strong
ties, to grant refugee status to the citizens in danger of losing their territory. Tuvaluans have been
denied refugee status.
While the global community is beginning to recognize climate change as an issue of
international security, refugees of the environment do not currently fall under the criteria of
refugees as defined by the United Nations High Commissioner for Refugees (UNHCR). Due to
this lack of recognition within the definition outlined by the UNHCR, environmental refugees
are left without the protection under international law that incites state obligation and
international response in the case of the Tuvaluans impending displacement.

3. Legal Framework
The current situation in Tuvalu has implications for the human rights of its people. The
climate change related impacts can be directly related to the infringement of Tuvaluans' rights
such as: the right to adequate living, including the rights to health, food, water, and adequate
housing, right to self-determination and the right to seek asylum which is guaranteed under both
domestic and international law.
a.

Right to Adequate Living

Article 25 paragraph 1 of the Universal Declaration of Human Rights (UDHR) reads

that "Everyone has the right to a standard of living adequate for the health and wellbeing of himself and his family" 4. Article 11 paragraph 1 of the International Covenant
on Economic, Social, and Cultural Rights (ICESCR) states the "right of everyone to an
adequate standard of living for himself and his family, including adequate food, clothing
and housing, and to the continuous improvement of living conditions". 5 This right to an
adequate standard of living has been compromised by the conditions caused by the
environment as I will expound upon further within the following sections.
i.

Right to Health

Article 12 of the ICESCR outlines the right to health, stating that all
human beings are entitled to the highest attainable standard of physical and
mental health all aspects of environmental and industrial hygiene the
prevention of epidemic, endemic, occupational and other diseases.6 As the sealevel in Tuvalu continues to rise, the seawater contaminates the septic systems and
increases the risk of water-borne illnesses. These risks induced by the changing
climate threaten the healthy environmental conditions and access to safe and
potable water outlined in the ICESCR as well as in the UDHR.
ii.Right to Food

4 Universal Declaration of Human Rights, Art 25, para.1

5 International Covenant on Economic, Social, and Cultural Rights, Art 11, para. 1
6 International Covenant on Economic, Social, and Cultural Rights, Art 12

The International Covenant on Civil and Political Rights (ICCPR) protects

Tuvaluans right to food, stating that "All peoples may [...] freely dispose of their
natural wealth and resources [...] In no case may a people be deprived of its own
means of subsistence.7The conditions in Tuvalu threaten food security for its
inhabitants. The local diet consists primarily of marine foodstuffs and a limited
number of crops which are damaged by flooding. A rise in average water
temperature and acidic seawater caused by CO2 in the atmosphere threatens the
survival or coral reefs and, consequently, its fish and shellfish stocks. This strongly
inhibits Tuvalu's ability to feed its nation.
iii.

Right to Water

The right to water is included in the ICESCR Article 11 and is expounded upon
in General Comment No. 15, para. 2, 3 stating that "The human right to water
entitles everyone to sufficient, safe, acceptable, physically accessible and affordable
water [...] to reduce the risk of water-related disease and to provide for
consumption, cooking, personal and domestic hygienic requirements. The right to
water clearly falls within the category of guarantees essential for securing an
adequate standard of living [...] the right to water is also inextricably related to the
right to the highest standard of health and the rights to adequate housing and
adequate food.8 Aforementioned above, sea level rise has rendered the supply of
freshwater unsuitable for human consumption, leaving Tuvaluans to rely on
collections of rainwater. Water security is severely threatened in Tuvalu as the
7 International Covenant on Civil and Political Rights, Art 1, para. 2
8 CESCR General Comment No. 15, para. 2,3

climate changes, not only contaminating the septic treatment systems and water
supply, but severe droughts also threaten the island. Droughts will limit the amount
of water supply Tuvaluans can collect from rainwater and also local agriculture and
the production of livestock.
iv.

Right to Adequate Housing

General Comment No. 4 reads that every person holds the "right to live
somewhere in security, peace and dignity. Adequate housing must be habitable, in
terms of providing the inhabitants with adequate space and protecting them from
cold, damp, heat, rain, wind or other threats to health, structural hazards, and
disease vectors.9 The ICCPR also states that no one shall be subjected to [...]
interference with his home.10 Severe weather conditions, such as frequent storms
and flooding, have caused stress on housing in Tuvalu, the damages being too
expensive to repair or maintain and creating dangerous living conditions.
b.

Right to Self-determination

The right to self-determination is a fundamental principle of international law.11

Enshrined in Articles 1 and 55 of the Charter of the United Nations and also contained
in the Declaration on the Right to Development, art.1, para.2, and the United Nations
Declaration on the Rights of Indigenous Peoples, arts. 3 and 4, right to selfdetermination is the right to freely determine their political status and freely pursue
their economic, social and cultural development.
9 CESCR General Comment No. 4, para. 7, 8(d)
10 International Covenant on Civil and Political Rights, Art 4
11 A/HRC/10/61 Para. 41

The important aspects of right to self-determination include the right of people not to be
deprived of its own means of subsistence and the obligation of a State part to promote
the realization of the right to self-determination 12. Simply put, it is a right to continue to
exist as such and to continue to live on, without the interference the situations like
losing their homeland.
This especially has especial implications for Tuvaluan people, since the
environmental change they are experiencing is threatening the habitability and in a long
term, the territorial existence of the country and sources of livelihood. 13 In Tuvalus
Views on the Possible Security Implications of Climate Change has also recognized this
adversary effect of climate change, stating that they are subject to loss of territory,
sovereignty, and culture.14

4.

Key Actors
There are several key actors to this issue, including local governments, as well as
International Organizations around the world. What are they doing in regards to
environmental refugee problem and why they are liable or relevant to the issue?
a.Governments
i. Tuvaluan Government.
As the government faced with imminent danger, it has requested the world to
accept their citizens refugee status from New Zealand and Australia. However,

12 A/HRC/10/61 Para. 41
13 A/64/350 Box III
14 Tuvalus Views on the Possible Security Implications of Climate Change to be included in the report of the UN
Secretary General to theUN General Assembly 64th Session

they have not found a satisfactory solution. Tuvalus plan of action, which is the
migration of the entire nation of Tuvalu depends on other nations receiving
status. This is largely because of the lack of governments capacity to adequately
support and protecting its citizens for the nation is largely reliant on
international aids.
ii. Australian Government
The Australian Government identifies itself as the largest aid provider of Tuvalu.
It states that it feels the responsibility to protect other economically undeveloped
or other states in danger, as a more economically developed one in the region.
Domestically, Australia has migration act that clearly states who is to given a
refugee status and how they will be treated. In the Migration Act 1958, it is
stated that [] a non-citizen in Australia in respect of whom the Minister is
satisfied Australia has protections obligations because [] there is a real risk
that the non-citizen will suffer significant harm []. Despite the statement of
domestic plan of action, Australia has refused to accept any environmental
refugees from Tuvalu.15 Its action is much more focused on providing climate
change assistance16 rather than granting refugee status or assistance of such.
iii. New Zealand Government
Under the Pacific Access Category immigration program, New Zealand has
agreed to accept seventy-five Tuvaluans a year who meet criteria set by New
Zealand government. It is not explicitly stated that New Zealand is accepting
environmental refugee and it has stated that this is a policy for the concern of
15 Friends of the Earth, supra note 34, at 6.
16 Migration (Climate Refugees) Amendment Bill 2008, http://www.comlaw.gov.au/details/C2007B00149

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economic ability of Tuvaluans. As with Australian government, it has domestic

Migration Act that guides the policy setting for migrants and does not explicitly
recognize environmental refugee status, as they define refugee as persons who
are outside the country of their nationality, membership of a particular social
group or political opinion [] being outside the country of former habitual
residence as a result of such events []. This definition is only confined to
those of political migrants, not in regards to the novel problem.
iv. Other States
In the issue of environmental refugees, human rights issue and environmental
issues are intertwined. Also, as is the case for environmental issues, the
responsible government is not really clear. It has joint liability of nations and
such cooperation is detrimental to finding the solution to environmental refugee
problem. Shared international norm is therefore very important. There are
several international norms that could be relevant to this issue. The broader and
more widely accepted norm is Responsibility to Protect.17 ICISS has reinforced
the Commissions view that human security issues arising in 21st century is no
longer such a thing as a humanitarian catastrophe occurring in a faraway
country18 Also, Human Rights Councils report on the relationship between
climate change and human rights also recognize that the principle of common
but differentiated responsibilities contained in the United Nations Framework
Convention on Climate Change are in line with human rights standards and

17 ICISS, The responsibility to protect (2001)

18 1. 21 ICISS, The responsibility to protect (2001)

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principles.19 This principle condemns developed country Parties to commit to

assisting developing country Parties in meeting the costs of adaptation to the
adverse effects of climate change and to take full account of the specific needs
of least developed countries in funding and transfer of technology.20
b.

International Organizations and NGOs

i.

United Nations

United Nations as the largest International Organization concerned with various

international matters only began to recognize the issue and in the 64 th General
Assembly meetings have passed a resolution to further study upon the security
implications for climate change. As a result, the report of Secretary General was
produced and Human Rights Councils report was produced. However, from
then on, there has been no significant effort made within UN itself in General
Assembly or in Security Council.
ii.

UNHCR

United Nations High Commissioner for Refugee is the main organ of UN to

look over and regulate assistance given to refugees and asylum seekers. In the
refugee convention, they define who refugees are and how they should be
protected. This has become a global norm, as a lot of states are referring to this
document when setting domestic norms. However, UNHCR advised that such
terms like climate refugees or environmental refugees ado not have any
legal basis in international refugee law, meaning that Tuvaluans do not fall
under the criteria of
19 A/HRC/10/61 Para. 87
20 UNFCCC, art. 4, paras. 4 and 9

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iii.

UNEP

United Nations Environment Program also has strong connection to the issue of
environmental refugees and it is where the inherent discussion on who should be
responsible for what is happening as a result of global warming. Also, the plan
of action in preventing further harm to environment is created here.
Aforementioned before, Australia has used means to call for international action
on environmental issues and UNEP has shown its interest in environmental
refugees.
iv.

International Organization for Migration

This organization is concerned with issues regarding migration. The scope is

smaller than UNHCR since it only deals with migratory issues. With regard to
slow-onset disasters and environmental degradation, it is challenging for the
world to distinguish between voluntary migration and forced population
movements.21 International Organization for Migration can be a guiding
organization and it actually has expressed its viewpoint and objectives in
managing environmental migration.22

v.

Nansen Initiative

The Nansen Initiative was officially launched by the governments of

Switzerland and Norway. Taking what was discussed in The Climate
Negotiations (UNFCCC) and the Cancun Agreement as well as the Bellagio
21 A/HRC/10/61 Para. 57
22 Migration and Climate Change, http://www.iom.int/cms/envmig

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Expert Roundtable on Climate Change and Displacement and the Ministerial

Meeting of UN Member States facilitated by UNHCR, it aims to provide
assessment of legal, operational and institutional Challenges. 23 So far, it has
shown most progress in regards to the issue of environmentally displaced person
but it needs more international support in order to be fully implemented or
considered.

5.

Analysis
In the process of assessing relevant actors, two prominent problems occurred in
dealing with environmental refugee issue. First one is the characteristic of joint liability
of the issue and the second one is the inherent definitional, recognition problem.
a.Joint Liability
As it was mentioned before, human rights and the environment are intertwined.
Especially in dealing with environmental issues, there has been long debate about
who should be responsible for the harm done to the environment. Also, the murkiness
of responsibility hindered from states taking action in response to the issue of climate
change and the problem derived from the change, as it was in the case of Green
House emission that resulted in avoiding consequence. In Tuvalus case in particular,
the UN Human Rights Committee has stated that Tuvalu on its own is incapable of
fully protecting the wide range of rights and freedoms directly implicated by climate
change; even though those rights are guaranteed under national and international law.
This is because the ultimate cause of climate change originates far beyond the

23 The Nansen Initiative Information Note, 25 April 2013

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borders of the country and far beyond its effective control. Thus, the international
community, in particular the major emitting countries of the developed world, must
themselves also take responsibility for promoting and protecting the human rights of
Tuvaluans by arresting their dangerous interference with the global climate
system.24
b.

Definitional Problem

In order to solve the case for Tuvalu, international assistance is detrimental.

However, the term climate refugees or environmental refugees are not legally
recognized and therefore suggested to be avoided in order not to undermine the
international legal regime for the protection of refugees. 25 Also, traditional refugee
definition does not include environmental displacement of people. The definition of a
refugee set out requires a fear that is well-founded of persecution based on reasons of
race, religion, nationality, membership in a particular social group, or political
opinion.26 The strict definition has no consideration about newly emerging problem
of climate change.

6.

Suggestions
The Tuvalu case analyzed throughout this essay sheds importance on recognition,
cooperation and implementation. This applies not only to New Zealand and Australia but
applies to the whole world.

24 Marc Limon, Human Rights and Climate Change: Constructing a Case for Political Action, quoting the Human
Rights Committee

25 Representative of the Secretary-General on human rights of internally displaced persons, Displacement Caused
by the Effects of Climate Change background paper, 2008

26 Convention Relating to the Status of Refugees, July 28, 1951, art. 1

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a.

Recognition

This involves increasing awareness of the issue and coming to a common

understanding of the issue. Also, developing global norm will further encourage
other states to act upon this newly arising problem. Using the already existing
concept of Responsibility to Protect will also be an important stepping stone for
creating solutions for those human rights violations mentioned above and ensure
right to seek asylum mentioned in UDHR.
b. Cooperation
The next step will be cooperation. This involves coming to a consensus on
solutions, developing agreements and application of newly developed concept of
common but differentiated principle. This way, the world will be able to respond
to this inter border matter.
c.

Implementation

Next will be the Implementation process where it involves various end results of
granting refugee status, relocation and migration.

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