Post 3 in the Special Issue on Climate-induced (im)mobilities

Carmen Pérez-GonzálezAssociate Professor of Public International Law, Universidad Carlos III de Madrid

The accelerated deterioration of the earth’s life support system has exacerbated forced displacement. Such displacement places individuals and communities in a situation of vulnerability that multiplies opportunities for recruitment by human trafficking networks. We find examples of this reality in different parts of the world. After the 2010 Haiti earthquake, thousands of children were orphaned or separated from their families, and many fell into the hands of traffickers who took advantage of the chaotic situation. In Bangladesh, where rising sea levels and river erosion displace tens of thousands of people annually, traffickers are known to target displaced families, promising them jobs in urban areas only to sell them into forced labor or sexual exploitation. According to a  report by  IOM, a growing number of studies show the link between climate change and human trafficking, particularly in the Asia-Pacific region. In Africa, the Lake Chad Basin crisis, exacerbated by climate change, has displaced millions, leading to increased instances of human trafficking. Women and girls in refugee camps are particularly vulnerable, with reports indicating that many are trafficked for the purposes of forced marriage or sexual slavery. 

Human trafficking is a serious violation of human rights, characterized by the exploitation of individuals through coercion, force, or deception, for purposes such as forced labor, sexual exploitation, or organ trafficking. Victims of trafficking in human beings (THB) are entitled to protective measures and assistance under both international law and an increasing number of regional and domestic laws worldwide, including the granting of temporary or permanent residence for humanitarian reasons for foreign victims. This means that the victims of THB can remain in the territory of the State where they are identified and assisted — a solution encouraged by international law and included in a growing number of international instruments (see here, here and here). However, there is legal uncertainty regarding the right to remain for migrants who could be exposed to human trafficking if a return decision is made. The specific question is whether protection against human trafficking should include the possibility of remaining in the territory of a State if forced return could endanger their life or safety due to the actions of human trafficking networks — a possibility that has exponentially increased as a result of climate change (see here and here). Any response to that question involves the analysis of the principle of non-refoulement

The principle of non-refoulement, which originates in International Refugee Law and was first codified in Article 33.1 of the 1951 Convention on the Status of Refugees, has undergone a remarkable evolution thanks to the developments in the field of International Human Rights Law (IHRL). To this end, non-refoulement has been expanded beyond traditional interpretations of persecution or harm to include States’ obligation not to return persons from their borders or territories “to inhuman circumstances” (Pirjola:2008, 640) and/or to “serious violations of human rights, including torture or other cruel, inhuman or degrading treatment or punishment” (2023 Rapport of the Special Rapporteur on the promotion and protection of human rights in the context of climate change). This post argues that this expansion should include the risk of torture or inhuman treatment that characterizes human trafficking, in this case, driven by the effects of climate change. This evolutionary interpretation, for which strategic litigation in the field of human rights and climate change plays a key role, is consistent with the nature of IHRL.

The realization of this proposal is certainly not without its challenges. The main one lies in determining when general environmental conditions constitute a threat to an individual’s life or personal security and whether, in particular, there is a risk that he or she may be recruited by trafficking networks if returned. Non-refoulement cases require reasonable evidence to demonstrate that there is a real risk of irreparable harm, and the imminence of such harm, when it involves potential exposure to trafficking, is both a key factor and an obstacle in this assessment. In any case, some useful legal developments for this analysis appear to have already emerged. Thus, as noted in the Agenda for the protection of cross-border displaced persons in the context of disasters and climate change, while international law does not explicitly impose this obligation, some States have developed national schemes to protect against the return of individuals displaced by natural disasters in specific situations. These humanitarian measures are often temporary and provided for in immigration, international protection, or human rights norms. When deciding not to return an individual in such cases, factors such as the severity of the disaster, pre-existing vulnerabilities, and general humanitarian concerns are considered. This post suggests that the possibility of exposure to human trafficking driven by climate change should be included among these considerations. This approach, in sum, is consistent with the provisions of articles 14.1 of the Palermo Protocol and 40.4 of the European anti-trafficking Convention, both of which pertain to the principle of non-refoulement

Finally, it cannot be overlooked that human trafficking networks are typically non-state actors. Consequently, in its decision not to return, the host State assumes that the destination State is either unable or unwilling to protect the victim from the actions of those networks. This, of course, does not seem to be an insurmountable obstacle. On the contrary, it seems sufficiently clear today that the principle of non-refoulement prohibits the transfer of individuals, regardless of whether the threat of fundamental rights violations originates from state or non-state actors (ICRC:2008, 2). This has already led to better protection for refugee women (Querton, 2022). The approach suggested in this post can, in the same vein, improve the protection of women who are potential victims of trafficking, who, according to available data, represent a significant majority (see here and here). 

Although it is already sufficiently clear that climate change exacerbates the risks of human trafficking, there is insufficient legal certainty regarding the right to remain for migrants who may be vulnerable to such criminal networks upon returning to their country of origin. The systematic application of the principle of non-refoulement in risk assessments of potential trafficking victims among climate-displaced individuals would enhance the protection of their rights and could indirectly motivate states to address their climate change obligations. This is a path that strategic litigation could help to navigate.