Post 2 in the Special Issue on Climate-induced (im)mobilities

Carla Field, PhD Candidate at the University of Leicester School of Law

Migration has been a coping strategy for millennia in times of uncertainty, and migration in the face of climate change is no different. However, early migration took place before the concepts of international borders, state sovereignty, or refugee laws had come to fruition. In the modern age, international protection is likely to remain unachievable for individuals facing displacement due to environmental decline unless the numerous barriers they face are clearly identified and overcome. This post will outline three central barriers to international protection for those displaced across borders due to environmental concerns and will argue that the right to a Clean, Healthy, and Sustainable Environment (CHSE) could be utilised to overcome them as a novel method of engaging existing legal obligations. 

The Causality Problem 

Even the earliest international recognition of man-made climate impacts, through the Stockholm conference, acknowledged the potential impact of environmental decline on ‘the enjoyment of basic human rights’. Yet, since then, debates continue to be raised as to the extent to which the impact of anthropogenic climate decline on human rights can be confirmed. The complexity of climate change, its uniqueness as a driver of risk, and its globalised reach combined create the ‘causality problem’, where climate change, and environmental decline, more broadly, are viewed as incompatible with current normative constructions of international protection. 

In brief, first-level protection through asylum cannot engage with the risk of harm presented by climate change as the definitional gap prevents individuals fleeing climate decline from meeting the prescriptive refugee criteria under the 1951 Refugee Convention. Normative understandings of persecution require an actor on which to ascribe responsibility for risk, and the refugee definition requires the individual seeking refugee status to face discriminatory persecution based on a protected characteristic – both criteria that are difficult to satisfy in circumstances of unique climate risk. While there is some argument that vulnerable groups are at greater risk of exposure to climate-based harms, this is still not an active form of discrimination. There is still no discernible actor on which to ascribe the responsibility for such discrimination; climate risks are in their constitution indiscriminate. 

Secondary sources of international protection through broader non-refoulement obligations also pose obstacles. Recent decisions under the United Nations Human Rights Committee demonstrate the unique characteristics of climate-based risks, and the equally unique challenges this poses. The case of Teitiota, as well as other climate-based decisions which engage in a discussion of the impact of climate decline on rights such as the right to life in non-displacement scenarios, demonstrate the use of future ‘promised’ intervention or mitigation to minimise the impact of tangible, observable and current harms on victims, using mitigations to minimise risk uniquely in such cases. 

Political Barriers 

Aside from the conceptual issues concerning substantive protection, there are practical issues that pose obstacles to future solutions. Ongoing securitised refugee discourse from predominantly European states has eroded support for individuals facing cross-border displacement, increasingly through the evasion of binding international standards. Significantly, there is a lack of political will, particularly in the West, to expand or adjust existing international protection structures for emergent challenges and notable efforts to diminish those that currently exist. This trend towards the degradation of current international standards through securitisation efforts will form a barrier to readjusting existing refugee law or creating new specialised legal routes for climate-based displaced persons to access protection. Therefore, future solutions could focus on climate harms and be interpreted in a non-refoulement context as opposed to being a specific displacement or protection framework, mitigating the lack of political motivation to expand international protection. To circumnavigate this barrier, any novel response to the issue of protection for cross-border environmental displacement should be embedded into existing protection regimes in a non-explicit manner to mitigate the issue of political and social disenfranchisement that developing international protection agendas have regularly faced in modern times.   

Fragmentation of relevant regimes 

The international protection regime has developed in a separate space and time from environmental law, and the fragmentation of these two legal regimes has led to issues such as the development of legal misnomers like ‘climate refugee’ or ‘environmental refugee’. Historically, environmental specialists have adopted refugee-regime terminology as a descriptive mechanism for observable instances of environmental displacement, as opposed to a legal one. However, the issue of fragmentation goes further than simply confusion over terminology. Environmental law contains several principles vital to understanding environmental displacement, but, as the International Law Commission has noted, the functional differentiation of international legal regimes has resulted in each governance area developing ‘with its own principles, its own form of expertise and its own “ethos”, not necessarily identical to the ethos of neighbouring specialization[s].’

While dialogue exists between regimes in relation to environmental displacement, predominantly through guidance and recommendations of various treaty bodies, this creates no binding legal obligations on states to encompass environmental decline into the existing normative protection frameworks. Therefore, a more defragmented approach than simply soft dialogue must occur between the neighbouring regimes of environmental law, human rights, and refugee law to engage enforceable non-refoulement obligations. The concept of legal hybridity, proposed by Cosmin Corendea seeks to derive enforceability from the combined strengths of key defragmented regimes within an international legal context. A ‘hybridised’ approach to environmental displacement would enable a response which could go further than the existing soft dialogue between regimes and instead create foundations on which binding legal obligations for cross-border protection could be recognised under existing protection frameworks whilst engaging with environmental principles. 

Moving forward: A new solution? 

To address the three barriers outlined above, any novel response to environmental-based cross-border displacement should:

1. Minimise focus on the conceptualisation of climate change or even environmental decline and instead focus on the tangible rights impacts of climate-based harms in a demonstrable, measurable manner;
2. Be an embedded response that seeks to engage existing international protection structures and is not a ‘climate-displacement’ specific framework; 
3. Be a hybridised framework, able to bridge existing gaps between relevant legal regimes (namely refugee law, human rights law, and environmental and climate change law).

To achieve this, the right to a CHSE may offer a solution. The right to CHSE was adopted by the United Nations General Assembly in 2022 and at present has no ‘universally agreed definition’ but is accepted to ‘include substantive and procedural elements’, including the right to a ‘safe climate’ and the right to ‘access to justice’ in climate-related matters. It provides a foundational structure which bridges human rights and environmental law, providing a new workspace to naturally develop a hybridised legal framework that can bridge the gaps between the relevant regimes. This would ensure that the individual impact of environmental decline can be transparent, creating a measurable standard upon which the individual harms of climate decline can be demonstrated tangibly, the impacts recognised, and non-refoulment therefore potentially engaged.

In doing so, there is a potential avenue to overcome the above-noted barriers, including the political disenfranchisement and the fragmentation of relevant regimes, by creating a new non-displacement-specific framework which highlights the impact of climate decline on the individual in a manner which may support those seeking sanctuary abroad where the risks faced stem from the impacts of the environment. In conclusion, the above-noted legal-hybrid model may help develop a structure through which the substantive and procedural aspects of the right to CHSE may be interpreted to give rise to States’ existing non-refoulement obligations where individuals face environmental-based harms. This expansive interpretation of the principle of non-refoulement through the right to CHSE would provide protection to those seeking international protection due to climate-related displacement.