It is trite to say that there is no legal category of ‘climate refugees’. Nevertheless, climate events and disasters can significantly impact forced displacement scenarios. They may be one cause of displacement. They may affect refugees, asylum seekers or other persons in need of international protection in countries of asylum. And they may inhibit safe return as a durable and sustainable solution.
Increasingly, courts and other decision-makers –international, regional and national – need to deal with climate events and disasters when making decisions about offering international protection to forcibly displaced persons.
In light thereof, academics at the Kaldor Centre for International Refugee Law, the Center for Gender & Refugee Studies (CGRS), and Essex Law School & Human Rights Centre, in collaboration with UNHCR, co-produced the International Protection for People Displaced across Borders in the context of Climate Change and Disasters: A Practical Toolkit. This Practical Toolkit is intended to provide a clear, systematic guide for judges and other decision-makers when dealing with this growing issue in contemporary asylum claims.
The primary international document for determining refugee status is the 1951 Convention relating to the Status of Refugees and its 1967 Protocol. Article 1A(2) 1951 Convention provides that a refugee is a person outside their country of nationality with a well-founded fear of persecution on grounds of race, religion, nationality, membership of a particular social group, or political opinion and who, owing to such fear, is unwilling or unable to avail themselves of the protection of their country of nationality.
Granting international protection brings a range of rights and protection in the country of asylum. Under Article 33(1) 1951 Convention, a refugee cannot be removed to the frontiers of a territory where their life or freedom would be threatened. Additionally, if those recognised as refugees or asylum seekers need to move again to the country of asylum because of climate change or disasters, they should also benefit from the rights and protections offered in the 1998 UN Guiding Principles on Internal Displacement – the Guiding Principles explicitly protect those forced to leave their home or habitual residence as a result of natural or human-made disasters.
In some cases, forcibly displaced persons affected by climate change or disasters can obtain international protection through international refugee law or international human rights law. People affected by climate events or disasters may be eligible for refugee status under the 1951 Convention if they face persecution for one of the five grounds. Additionally, refugees at risk of persecution for other reasons may be unable to seek safety elsewhere within their own country (the so-called ‘internal flight or protection alternative’) for reasons relating to climate change or disaster impacts.
While climate change and disasters are not explicit grounds for Convention refugee status, UNHCR’s 2020 Legal Considerations regarding Claims for International Protection made in the context of the Adverse Effects of Climate Change and Disasters explains how the need for international protection might arise in this context. For example, the immediate or gradual effects of climate change or disaster events may impair people’s access to health care or basic sustenance to enjoy the right to life or the highest attainable standard of health. Where this occurs on a discriminatory basis – for example, where people are denied assistance due to their ethnicity or political beliefs – a refugee claim may arise.
Sending someone back to a disaster zone may amount to inhuman or degrading treatment under human rights law, where ‘dire humanitarian conditions’ generate a real risk of rights being violated – for example, as a result of food or water shortages, insecure shelter or inadequate health care. Where climate change or disasters intersect with conflict – for instance, conflict between herders and farmers over limited water resources – the risks to those affected may find an international protection claim.
International protection claims involving climate change and disaster impacts raise various issues, depending on the displacement scenario and the applicable international law framework – whether refugee or human rights law. However, there are some cross-cutting considerations that should guide decision-makers in all such claims.
The new Practical Toolkit sets out five key considerations that should be applied in every case where someone is seeking international protection, and there might be a climate or disaster component to the claim.
First, there are no special rules for international protection claims in the context of climate change and disasters. They should simply be assessed based on the criteria set out in the usual international legal frameworks.
Second, the hazard-scape should be considered as a whole, without isolating climate change or disaster impacts from other risks and hazards. Indeed, disasters usually generate a range of impacts or hazards, which may cause loss of life, injury, health impacts and social or economic disruption.
Third, it should be noted that climate change and disasters affect different people in different ways.
Fourth, human agency affects the impact of climate change and disasters. It is not only that the country of origin cannot cope, but that inadequate disaster risk management will exacerbate the impacts of disasters when they hit.
Fifth, the risk of harm may manifest over time, which is particularly important because the assessment of the risk of harm is always forward-looking.
The Practical Toolkit explores international and regional frameworks, as well as examples of national jurisprudence. In particular, the regional mechanisms – the 1969 OAU Convention Governing the Specific Aspects of Refugee Problems in Africa, and in Latin America, the 1984 Cartagena Declaration on Refugees – with their expanded criteria for refugee status, lend themselves to offering international protection in climate change and disaster contexts. Both regional instruments extend refugee status to persons crossing an international border as a consequence of “events seriously disturbing public order”.
In Africa, the African Commission on Human and Peoples’ Rights has even endorsed the expansion of the regional refugee definition to those displaced as a consequence of climate events or disasters, irrespective of whether they seriously disturb public order. In both Africa and the Americas, it should be the case that where climate change or disaster events trigger, or exacerbate, serious public disorder and the country of nationality cannot as a consequence provide effective protection, those affected will be eligible for refugee status, even in the absence of any of the five grounds set out in the 1951 Convention.
Following a line of national case law, the United Nations Human Rights Committee recognised in Teitiota v New Zealand that, under international human rights law climate change or disasters might interfere with the right to life or present a real risk of inhuman or degrading treatment. Clearly, other rights might also be impinged as well.
Regional human rights mechanisms have also recognised international protection could extend to those facing the effects of climate events or disasters under the European Convention for the Protection of Human Rights and Fundamental Freedoms as well as through subsidiary protection under Articles 2f and 15b of the 2011 EU Qualification Directive (recast). In 2008, the European Court of Human Rights held in Budayeva, that Russia had violated the right to life by failing to ‘establish a legislative and administrative framework designed to provide effective deterrence against threats to the right to life’, with the consequence that in these circumstances one could not be sent back to a disaster zone.
The European Court of Human Rights has not yet dealt with a case where persons were seeking international protection after a climate event or a disaster because of the risks of inhuman or degrading treatment. However, it has said in Verein KlimaSeniorinnen Schweiz and Ors v Switzerland that ‘human rights courts should address the impacts of environmental harms on the enjoyment of human rights’. It has also considered similar issues and applied related principles in its established jurisprudence in the so-called ‘health cases’. For example, in Sufi v Elmi, the Court held it was necessary to assess ‘an applicant’s ability to cater for his most basic needs, such as food, hygiene and shelter, his vulnerability to ill-treatment and the prospect of his situation improving within a reasonable time-frame’ in the context of drought and dire humanitarian conditions in Somalia.
Thus, in appropriate circumstances, regional human rights bodies in Europe have indicated a willingness to take climate change and disaster impacts into account in cases involving the removal of persons back to their country of nationality. Nationally, and applying the EUQD and ECHR, courts in Austria, Sweden and Italy are already taking into account climate change and disasters when determining the need for international protection.
Given the burgeoning body of case law and other material and the willingness of practitioners and even some decision-makers to address how climate events and disasters might affect a claim for international protection, the Practical Toolkit provides timely guidance and detailed analysis that can help shape future applications of international and regional frameworks.
As the European Court of Human Rights has said, avoiding considering such matters is no longer an option.
