Three weeks ago, in a brief judgment issued by the Supreme Court of New Zealand, the world’s first application for climate change refugee status finally failed. ‘We agree with the Courts below’, declared a full bench of New Zealand’s highest court, ‘that in the particular factual context of this case the questions identified raise no arguable question of law of general or public importance’.
In other words, the decisions of the lower courts stand and Ioane Teitiota, the shy farmhand from Kiribati in the central Pacific, cannot claim refugee status as a victim of climate change. Ioane, his wife and his New Zealand-born children will be deported to Tarawa, a tiny sand strip perched at the western end of the enormous ocean state. All avenues for appeal have been exhausted.
The result mocks the liberal optimism of the climate change movement, many of whom hoped that – in the absence of a political solution for climate change refugees – there may be a legal solution. While the courts accept that Tarawa’s carrying capacity is ‘significantly compromised’ by climate change – a finding of fact – as a matter of law they cannot accept that this amounts to ‘persecution’ for the purposes of the Refugee Convention.
It’s a timely reminder that the legal system privileges the status quo. The court could have found a ‘pathway’ into the convention for Mr Teitiota, but it made a choice to apply the orthodox law (as I explained in the Guardian last year). Rather than assess where the balance of justice lies, the courts retreated to the security of formalism and merely asked a series of threshold questions (‘Was there a failure of state protection?’ etc.).
The unspoken fear, from common law courtrooms to international summits, is that a successful climate change refugee case could open the floodgates (so to speak). The precedent would compel the New Zealand government to develop a policy framework for accepting climate change refugees. The effect would be to partially redistribute the burden of immediate climate change action from developing states to developed states.
That’s an untenable political outcome, even for other common law countries like Australia. The developed world prefers to shift the costs of climate change adaptation to the developing world. Brian Fisher, the government’s former chief economic adviser on climate change, admitted as much when he ventured the view that it would be ‘more efficient’ to let the Pacific Ocean swallow its low-lying islands rather than require Australian industries to reduce their emissions.
Rather than being about applied science and international values, the developed world’s response to climate change has always been about applied ideology. In the lead up to the Kyoto Protocol the Australian government pressured Pacific countries to abandon their advocacy and proposals for strict emission reduction targets. The primary motive was to protect Australian capitalism against reform. States tend to prefer self-interest to social justice.
Except, of course, where there are profitable market mechanisms like emissions trading schemes which create opportunities for accumulation in carbon offsets (while generally failing to reduce overall emissions). Yet no one appears to have imagined a profitable framework for shifting and settling climate change refugees, which means there is little political will to solve the existing emergency or, indeed, to prepare for the oncoming human migration disaster.
In part, this is a failure of the left because – despite all the hot air emitted at party conferences, activist meet-ups and online – we have ceded the terms of the debate. (This actually has serious consequences for the expansion of neoliberalism through, for example, emissions trading markets). The Teitiota case should have been framed as a fight for justice, not a mere test case for the movement.
This is not an argument for better language – often ‘aspirational’ language in the climate change debate is designed to cover up disagreement – it is an argument for better strategy. The climate change movement should have done more than swing behind the legal case, it should have agitated for a political solution as well. We appeared to be hoping against experience that the courts would rule against the interests of power.
Now, all that’s left is political struggle.
Image: Luigi Guarino / Flickr