Environmental changes caused by exacerbating climate conditions are amidst one of the most severe reasons leading to the choice to migrate. Persons fleeing their homes following a natural disaster or other catastrophic event caused by climate change are labeled “climate migrants”. However, under the current international legislation, the figure of “climate migrant” does not exist yet (1). As a matter of facts, these people do not automatically have the right to be protected under international law. Such condition is illogic as the number of environmental migrants crossing international borders is continuing to grow and this growth will increase more and more in the near future as climate conditions will continue to deteriorate, more severely and more rapidly.
A specification regarding the category of “climate migrants” is necessary. It is perspicuous to affirm that a climate-related catastrophic event threatens the life of affected people, just think of the earthquake in Turkey and Syria occurred on February 6 (2023): such event destroyed the lives of many and is jeopardizing the possibilities of survival of those who have survived this catastrophic event. Hence why, often, people affected by environmental calamities choose to flee their homes becoming internally displaced (IDPs – internally displaced people) if they remain inside their country or internationally displaced if they choose to cross borders. As mentioned, such category of migrants is not protected under international law and, more specifically, a person migrating for climatic-related reasons cannot be considered as “refugee” in that does not meet the “persecution criteria” as codified in the 1951 Refugee Convention (2). In point of fact, the International Organization for Migration (IOM) defines environmental migrants as
Persons or groups of persons who, predominantly for reasons of sudden or progressive changes in the environment that adversely affect their lives or living conditions, are obliged to leave their homes, or choose to do so, either temporarily or permanently, and who move either within their country or abroad (3).
This notwithstanding, there is a principle in international law that has become fundamental in customary law and that is the principle of “non-refoulement”, codified by the mentioned Refugee Convention (2). Such concept could be applied to the category of “climate migrants”: as a matter of facts, it could fill the legal protection gap for environmental migrants, but only if threshold requirements are met in a case-by-case basis (1). According to the Office of the United Nations High Commissioner for Human Rights (OHCHR), under international human rights law, the principle of “non-refoulement” guarantees that no person should be returned to a country where they would face torture, cruel, inhuman, or degrading treatment or punishment and other irreparable harm. This principle applies to all migrants at all times, irrespective of their migration status (4). Given that it is now considered customary international law, the “non-refoulment” principle has been extended to all persons who cannot return to their country of origin in that they would face death, persecution or other inhuman or degrading life conditions; therefore, also to those people who do not fall under the category of “refugee” as codified in the 1951 Convention (2).
Since the consequences of an environmental disaster may cause death and inhuman or degrading life conditions, it may be possible to frame climate migrants under the protection provided by the principle of “non-refoulement” at least until the international community codifies a specific Convention that defines the rights due to persons definable as “climate migrants”. However, as mentioned, in order to evaluate if a “climate migrant” can be protected under the principle of “non refoulment”, certain conditions must be met, hence why it is necessary to verify this possibility on a case-by-case basis. A fundamental understanding into the standards that must be met in order for the mentioned principle to operate is offered by the Tetiota v. New Zealand case (5), the first climate-change-induced environmental case brought to the Human Rights Committee. Such case is important in that, even if Mr. Tetiota did not see his petition granted, it was the first time in which an international human rights body recognized the link between severe climate change-induced environmental conditions and the potential violation of the right to life, in the context of “non-refoulment” and migration (1).
This notwithstanding, as mentioned, the case’s jurisprudence offers insights into the standards that must be met in order to trigger the principle of “non-refoulement” and, therefore, provide international protection to people at risk of losing fundamental rights due to climate change. A case-by-case approach is significant in the context of climate change-related threats to life in that in such cases are subjected to the evaluation concerning if the situation falls under the “non-refoulement” principle. Such ascertainment is exceedingly arduous to establish given that disasters caused by the environment’s changing conditions are widespread and indiscriminate and make it difficult to determine if general environmental aggravating conditions constitute a threat to a person’s right to life.
As a matter of facts, to understand if certain standards necessary to guarantee the principle of “non-refoulment” to a “climate migrant” are met, a multiplicity of criteria must be assessed. It is important to evaluate if the country of origin of the climate migrant has adopted measures and is implementing concrete actions in order to mitigate the effects of environmental changes. First and foremost, if there are monitoring mechanism able to evaluate the imminence of potential climate-related calamities, and if such country has a mitigation plan ready to execute when a natural disaster jeopardizes the lives of its citizens. Every country should have a strategy ready to be implemented when a natural disaster strikes the lives of its citizens endangering them. Certainly, if such conditions are not met, then climate migrants, when faced with imminent risk of loss of life or proof of inability to provide for their basic needs if they were to return to their country of origin, then the principle of “non-refoulement” must be applied. This notwithstanding, the international community must hasten to adopt a Convention establishing the rights of climate migrants, as well as the cases in which people who choose to leave their country for climate-related reasons can receive protection under international law.
References:
- https://jia.sipa.columbia.edu/online-articles/non-refoulement-human-rights-perspective-environmental-migration-small-island
- https://www.unhcr.org/4ca34be29.pdf
- https://publications.iom.int/system/files/pdf/meclep_glossary_en.pdf?language=en
- https://www.ohchr.org/sites/default/files/Documents/Issues/Migration/GlobalCompactMigration/ThePrincipleNon-RefoulementUnderInternationalHumanRightsLaw.pdf
- http://climatecasechart.com/wp-content/uploads/sites/16/non-us-case-documents/2015/20150720_2015-NZSC-107_judgment.pdf
By The European Institute for International Law and International Relations.
