Rising Tides, Rising Numbers: Seeking Protection for ‘Climate Migrants’ within the Realm of Human Rights
Finding the Right Language for ‘Climate Migrants”
Throughout history, people have migrated in response to climatic and environmental changes. However, the unprecedented speed and nature of migration resulting from climate change have disrupted traditional relocation patterns.[1] Consequently, in 1990, the Intergovernmental Panel on Climate Change (IPCC) designated ‘human movement’ as the most significant and immediate consequence of global warming.[2] Projections suggest that by 2050, the number of internally displaced individuals could reach 200 million.[3] The persistent lack of clarity surrounding suitable legal frameworks and state responsibilities has contributed to the slow response to climate-induced forced displacement. Notably, even today, the concept of ‘climate refugees’ is still not explicitly recognised in international refugee law (IRL).[4] Due to this growing uncertainty, Sumudu Atapattu's description of "forced climate migrants" serves as the foundation for this blog.
Accordingly, Atapattu defined ‘forced climate migrants’ as individuals who were compelled to leave their nation of origin because their territory had become untenable or was imminently going to become so due to environmental degradation brought on by climate change.[5] In light of this, this blog also adopts the position that Giovanni Sciaccaluga further developed based on such a concept. Consequently, it looks at specific instances of forced cross-border migrations that are characterised by first, the effects of climate change and second, the very low probability of the migrants going back to their home countries.[6] The ‘cross-border’ aspect of this group of people subjects forced climate migrants to particular international protection, allowing the blog to explore states' international law obligations. Furthermore, by focusing on ‘forced’ migration, this blog can examine scenarios that may allow for a human rights approach.
Unpacking States' Obligations under International Human Rights Law
Although international human rights law (IHRL) isn't particularly intended to address either climate change or the issues related to forced climate migrants, Vliet argued that it has the flexibility to be used in a variety of scenarios that address their demands and rights.[7] This is because ‘most’ forced climate migrants suffered from violations of widely recognised human rights due to environmental degradation brought on by climate change. These rights are the right to life, the right to freedom from torture, and the right to adequate standards of living, the right to health which are enshrined in the 1948 Universal Declaration of Human Rights (UDHR) and the two 1966 International Covenant on Civil and Political Rights (ICCPR) and International Covenant on Economic, Social and Cultural Rights (ICESCR).
In particular, the Human Rights Committee (HRC) has interpreted the 1966 ICCPR that the prohibition of arbitrary deprivation of life (Article 6), and the prohibition of torture, cruel, and inhuman treatment (Article 7) require states to refrain from returning a person to a country where they would face a real risk of suffering irreparable harm or being subjected to torture, cruel treatment, or inhumane treatment (non-refoulement principles). [8] Applying this principle to the case of forced climate migrants, the HRC has asserted General Comment No. 36 that such ‘irreparable harms’ can come from environmental degradation and climate change [9]. This view was highlighted by the HRC in the Ioane Teitiota v. New Zealand case through a ground-breaking decision that when asylum seekers risk their lives in their country of origin because of climate-induced environmental degradation, non-refoulement obligations should be applied. [10] This is what is referred to as a ‘complementary protection’ for forced climate migrants in accordance with the non-refoulment obligations of states.[11]
McAdam also highlighted that IHRL can serve as a ‘yardstick’ for forced climate migrants to claim a basic level of treatment under the 1966 ICESCR.[12] Naser further added that states are obligated to respect, protect and fulfil the rights of all individuals and communities forced to migrate due to climate change without discrimination both during displacement and resettlement.[13] In such a case, the right to an adequate standard of living which pertains to food and water (Article 11), as well as the right to health, particularly in the context of sanitary conditions and cross-border health hazards (Article 12) are relevant. These responsibilities necessitate that states acknowledge the inherent rights of these impacted individuals and abstain from any actions that might impede the exercise of these rights.[14] Therefore, states have obligations to provide forced climate migrants with a minimum standard of treatment. However, it would not stop there as McInerney-Lankford further asserted that these human rights obligations also reinforce the state’s climate obligations to be more ambitious in mitigating and adapting to climate change as the root cause of forced climate migrants.[15]
Holding States Accountable for Non-Compliance
IHRL’s enforcement system can further aid FCM. In particular, treaty monitoring bodies play a central role in expanding human rights obligations to address existing legal gaps, aligned with their respective treaty conditions.[16] Thus, the issue of FCM has drawn the attention of significant bodies such as the HRC (monitor the ICCPR) and the CESCR (monitor the ICESCR) as evidenced in their recent approval of relevant general comments. Accordingly, the effectiveness of states in upholding their human rights responsibilities is evaluated by reports submitted to the treaty bodies on the actions they have done to put the treaty into effect, with cross-examination of data from civil societies. The outcome of such a procedure is discussed in a dialogue between the state and the treaty body and published in a concluding observation with additional follow-up reports.[17]
In addition, a subset of treaty monitoring authorities may, in some situations, also conduct country inquiries and consider complaints from individuals who claim their rights under the treaty have been infringed. Wewerinke and Antoniadis held the opinion that this individual complaint procedure can bridge the gap in arriving at a consensus strategy for the forced climate migrants issue, which has proven “difficult or impossible to resolve through policy-making or negotiations”.[18] In particular, the First Protocol to the ICCPR outlines the procedure for filing complaints about alleged infringement of individual rights with the HRC. The HRC's opinions on Ioane Teitiota v. New Zealand firmly support the use of IHRL in climate displacement situations.[19] Additional attempts to hold states accountable for human rights breaches associated with forced climate migrants are made in other ground-breaking climate cases, notably, Sacchi et al v. Argentina et al.[20] If successful, it could lead to a thorough argument that urges the start and expansion of cooperative worldwide action as a must to address this global issue.[21]
Crisis Averted? How far can IHRL help?
Not all forced climate migrants suffer from human rights violations. Despite those mechanisms discussed above, no right-based claims are admissible where an IHRL-protected right is not specifically in danger. Shelton added that the condition that a claim for a breach of human rights can only be brought by a person or organisation who is ‘directly’ harmed by threats related to climate change demonstrates that the current IHRL system is procedurally ‘ill-suited’ to fully address the issue.[22] Additionally, it is highly unlikely to expand this protection to cover individuals who use migration as an adaptation strategy due to the prevailing struggle of jurisprudence on complementary protection to meet the court’s requirements for the nature and source of harm.[23] Even when such a claim is admissible, the inconsistent practices of various tribunals and courts add to the ambiguity surrounding the matter.[24] However, what is most significant is that IHRL may only act as a temporary fix for forced climate migrants due to the anthropocentric nature of human rights that focuses on reacting to violations of the human body rather than the environment itself. As such, it prevents IHRL from addressing the long-term effects of climate change as the root cause of forced climate migrants.[25] Without additional efforts from the climate legal system, IHRL continues to be a response to the current problem rather than the solution.[26] In that regard, even while IHRL is a fundamentally useful tool for defending the rights of forced climate migrants, it cannot be the only strategy to avert the crisis of climate-related displacement.
[1] Jane McAdam, ‘Swimming against the Tide: Why a Climate Change Displacement Treaty Is Not the Answer’ (2011) 23 International Journal of Refugee Law 2, 2–3.
[2] Giovanni Sciaccaluga, International Law and the Protection of “Climate Refugees” (Springer International Publishing 2020) 1.
[3] Norman Myers, ‘Environmental Refugees: A Growing Phenomenon of the 21st Century’ (2002) 357 Philosophical Transactions of the Royal Society of London 609, 611.
[4] Sumudu Atapattu, ‘Migrating with Dignity - Protecting the Right of 'Climate Refugees' with the Non-refoulement Principle’, Climate Refugees: Global, Local and Critical Approaches (Cambridge University Press 2022) 129.
[5] Sumudu Atapattu, Human Rights Approaches to Climate Change: Challenges and Opportunities (Routledge 2016) 165.
[6] Sciaccaluga (n 2) 2.
[7] Jolanda van der Vliet, ‘“Climate Refugees”: A Legal Mapping Exercise’ in Simon Behrman and Avidant Kent (eds), Climate Refugees: Beyond the Legal Impasse? (Routledge 2018) 21-22.
[8] Thekli Anastasiou, ‘Public International Law’s Applicability To Migration As Adaptation: Fit for Purpose?’, in Simon Behrman and Avidant Kent (eds), Climate Refugees: Beyond the Legal Impasse? (Routledge 2018) 182.
[9] HRC, ‘General Comment No. 36: Article 6: Right to Life’ (2019) CCPR/C/GC/36, para 26.
[10] HRC, ‘Ioane Teitiota v. New Zealand’ (2020) CCPR/C/127/D/2728/2016, para 9.11.
[11] Atapattu (n 4) 142 – 143.
[12] Jane McAdam, ‘Environmental Migration’ in Alexander Betts (ed) Global Migration Governance (Oxford University Press 2011) 14.
[13] Mostafa Mahmud Naser, ‘Climate Change and Forced Displacement: Obligation of States under International Human Rights Law’ (2010) 22 Sri Lanka Journal of International Law 117, 144.
[14] Fons Coomans, ‘The Ogoni Case Before The African Commission on Human and Peoples' Rights’ (2003) 52 International & Comparative Law Quarterly 749.
[15] Siobhán McInerney-Lankford, ‘Human Rights and Climate Change: Reflections on International Legal Issues and Potential Policy Relevance’ in Gregory Wannier and Michael Gerrard (eds), Threatened Island Nations: Legal Implications of Rising Seas and a Changing Climate (Cambridge University Press 2013) 236.
[16] Smita Narula, ‘Human Rights and Climate Change’ in Karl Coplan and others, Climate Change Law (Edward Elgar Publishing 2021) 137.
[17] Margaretha Wewerinke and Melina Antoniadis, ‘Vessel for Drowning Persons?: The Standard-Setting Potential of International Human Rights Litigation in Addressing Climate Displacement’ (2022) 3 Yearbook of International Disaster Law Online 238, 242-243.
[18] ibid, 272-273.
[19] HRC, ‘Ioane Teitiota v. New Zealand’ (2020) CCPR/C/127/D/2728/2016.
[20] Yusra Suedi, ‘Litigating Climate Change before the Committee on the Rights of the Child in Sacchi v Argentina et al.: Breaking New Ground?’ (2022) 14 LSE Law, Society and Economy Working Papers 1.
[21] Wewerinke and Antoniadis (n 17) 261.
[22] Dinah Shelton, ‘Human Rights and the Environment: Jurisprudence of Human Rights Bodies’ (2002) Joint UNEP-OHCHR Expert Seminar on Human Rights and the Environment 1, 11.
[23] Simon Behrman and Avidan Kent ‘Overcoming the Legal Impasse? Setting the Scene’, Climate Refugees: Beyond the Legal Impasse? (Routledge 2018) 7-10.
[24] Anastasiou (n 8) 182.
[25] Bridget Lewis, Environmental Human Rights and Climate Change: Current Status and Future Prospects (Springer Singapore 2018) 35–36.
[26] Anastasiou (n 8) 188-190.