From the U.N. Human Rights Committee to European Courts: Which protection for climate-induced displaced persons under European Law?
In a recent landmark ruling, the United Nations Human Rights Committee found that climate-induced displaced persons can’t be sent back to their home countries where their right to life is threatened because of the effects of climate change. Climate conditions can thus trigger the non-refoulement obligations of sending states. The decision has been applauded by human rights and refugee rights advocates as a “ground-breaking” ruling that opens the doorway to future protection claims for individuals whose life is threatened due to the climate change.
The petitioner, Ioane Teitiota, is a citizen of the Republic of Kiribati, located in the Central Pacific Ocean and considered as one of the countries most threatened by rising sea levels. In 2012, he applied in New-Zealand for protection as a refugee and/or protected person, arguing that the sea level rise and other effects of climate change have rendered the living conditions in Kiribati unstable and precarious. The author claimed that life in Kiribati has become so untenable that returning him would violate his right to life under New Zealand’s Immigration Act. Teitiota’s asylum application was denied subsequently by New Zealand’s Immigration and Protection Tribunal, High Court, Court of Appeal and Supreme Court and he was removed to Kiribati, with his family, in 2015 (For a review of New Zealand climate change cases, see here). Ioane Teitiota finally filed an individual communication with the UN Human Rights Committee (“Committee”) under the Optional Protocol to the International Covenant on Civil and Political Rights (“ICCPR”), asserting that, by sending him back to Kiribati, New Zealand has violated his right to life under Article 6 of the ICCPR.
On January 7th 2020, the Committee upheld New Zealand’s decision and ruled that Teitiota’s return had not taken place in violation of his right to life. The Committee nevertheless recalls that States must refrain from deporting an individual when there are substantial grounds for believing there is a real risk of irreparable harm such as that contemplated by Article 6 (right to life) and Article 7 (prohibition of torture or cruel, inhuman or degrading treatment or punishment) of the ICCPR (§ 9.3). The question that was raised before the Committee was whether Teitiota was exposed to a “real risk of irreparable harm” to his right to life in Kiribati. The Committee specifies that “there is a high threshold for providing substantial grounds to establish that a real risk of irreparable harm exists” (§ 9.3) (on the relevance of applying the test of a “real risk of irreparable harm” to the present case, see here). It concluded that the applicant had not provided sufficient evidence demonstrating that he faces any real chance of being the victim of a situation that would result in life-threatening conditions.
While Ioane Teitiota lost his case as his claim was ruled not to be strong enough based on the specific circumstances and evidence of the case, the Committee did issue strong statements on States’ responsibility when it comes to climate-induced displaced persons. It recognises that if climate change impacts worsen in the future, governments may not return people to their home countries where their life is threatened or where they would face inhuman or degrading treatment due to these impacts. The non-refoulement obligations imposed on States, would, thereby, be triggered.
The terminological debate
People displaced by climate change have quickly been identified as a group in need of protection and debates around the terminology – and thus, around the protection – to cover these people can be traced back to 1970. Back then, the term “environmental migrants” was first used to describe a large category of people choosing or being forced to migrate due to environmental factors. However, this terminology was rejected by some experts (for instance, see here), arguing that international law does not use the term “migrant” in the context of forced movements but rather the terms “displaced persons” and “refugees” to ensure satisfactory legal protections. The terms “environmental refugees” at first, and then “climate refugees” were thus substituted to the terms “environmental migrants”. This last movement – called the “maximalist school”– argues that the refugee definition of the 1951 Convention Relating to the Status of Refugees should be extended to include people displaced due to the climate crisis (for a historical overview of this debate, see here, here or here). Significantly, although seen as an important achievement for disaster-displaced persons, the 2018 U.N. Global Compact for Safe, Orderly and Regular Migration recognizes the nexus between natural disasters and human migration, but avoids to explicitly name the affected group of people – whether migrants or refugees.
The UNHCR considers that while some climate-induced displaced persons might fall within the 1951 Refugee Convention (for instance, people forced to move because of armed conflicts rooted in environmental factors), most will not. Beyond social and political considerations, the discussions regarding the – lack of an agreed – terminology concern primarily the question of the legal protection that needs to be granted to climate-induced persons, and thus the avenues toward a legally binding framework for climate-induced displaced persons crossing borders. The refugee definition has not been expanded to climate-induced displaced persons who then fall in principle outside the scope of international refugee law, and there is not yet any international framework on climate migration to fill this gap. The prevailing position today is that the Refugee Convention should not be understood as encompassing “climate refugees” (for instance, see here, here or here), both in a broader protection perspective for climate-induced displaced persons, as well as in a necessity to keep the specific legal regime of refugees.
In its decision, the Committee does not enter into the debate on the potential extension of the refugee definition. It starts by recalling that States parties to the ICCPR may not extradite, deport, expel or otherwise remove a person from their territory when there are substantial grounds for believing that there is a real risk of irreparable harm such as that contemplated by Articles 6 and 7 of the Covenant. The Committee continues by emphasizing that such obligation not to send back pursuant to Article 6 “may be broader than the scope of the principle of non-refoulement under international refugee law, since it may also require the protection of aliens not entitled to refugee status. Thus, States parties must allow all asylum seekers claiming a real risk of a violation of their right to life in the State of origin access to refugee or other individualised or group status determination procedures that could offer them protection against refoulement.” (§ 9.3). Through this paragraph, the Committee rightly points out that what really matters when it comes to climate-induced displaced persons is not so much the determination of their status – if any – and the question of whether they enter in the refugee definition, but more the protection which they are entitled to, either be under international refugee law or under international human rights law.
The Committee acknowledges that this was also shared by New Zealand Supreme Court (“allowed for the possibility that the effects of climate change or other natural disasters could provide a basis for protection”, see § 9.6) which indeed noted, in the last paragraph of its decision, “that said, we note that both the Tribunal and the High Court, emphasised their decisions did not mean that environmental degradation resulting from climate change or other natural disasters could never create a pathway into the Refugee Convention or protected person jurisdiction. Our decision in this case should not be taken as ruling out that possibility in an appropriate case.”
Protection under international human rights law
The recourse to the principle of non-refoulement under international human rights law offers a basis for protection as a minimum standard to climate-induced displaced persons whichever status they may have. In any case, they are protected against a removal to their home country if there is a real risk that they face human rights violations, such as inhuman or degrading treatment or risks for their right to life. It would be unlawful for governments to send people back to life threatening conditions caused by climate change, in the same way that it is prohibited to send back refugees to persecution based on specific grounds.
When applying the principle of non-refoulement to the right to life under Article 6 of the ICCPR, the Committee recognises that “environmental degradation and climate change and unsustainable development constitute some of the most pressing and serious threats to the ability of present and future generations to enjoy the right to life” (§ 9.4) and that it “may compromise effective enjoyment of the right to life and affect an individual’s well-being” (§ 9.5). Essentially, the Committee found that “without robust national and international efforts, the effects of climate change in receiving states may expose individuals to a violation of their rights under Articles 6 or 7 of the Covenant, thereby triggering the non-refoulement obligations of sending states. Furthermore, given that the risk of an entire country becoming submerged under water is such an extreme risk, the conditions of life in such a country may become incompatible with the right to life with dignity before the risk is realized” (§9.11). If the Committee continues by accepting the petitioner’s assertion that sea level rise is likely to render Kiribati uninhabitable within ten to fifteen years, it considers, however, that such period leaves sufficient time for intervening acts by the government of Kiribati, with the assistance of the international community, to protect its population (§ 9.12). Furthermore, the Committee notes that the government of Kiribati has already started to adopt measures in this regard.
Even though no violation was found in the specific case, the U.N. decision represents a clear legal authoritative statement. Indeed, the ruling appears like a warning and a strong notice made to States and to the international community as a whole that they must assist, through “affirmative measures” countries adversely affected by climate change. If those responsibilities are not taken seriously, individuals might be exposed to human rights violations and thus be forced to leave in order to avoid irremediable harms, which would in turn impose an obligation on States, under international human rights law, not to return these people. The Committee thereby warns States that if they do not want to be liable under the non-refoulement principle, they must adopt immediate positive measures to protect population against side effects of climate change. Interestingly, this statement made to the international community is reaffirmed in the Global Compact for Safe, Orderly and Regular Migration which asks States to cooperate in order to better address effects of climate change and environmental degradation, while including a commitment not to return individuals where there is a real risk of irreparable harm (para. 18 (h), (i), (l); para 37).
Despite not being binding itself, the decision is based on international human rights law – the ICCPR – which is binding. The reasoning of the Committee could thus well be adopted by other international and, in particular, European courts.
Which protection under European Law?
The ECtHR has had the occasion to rule on environmental cases at several times, in which claimants invoked an interference with their right to private life under Article 8 of the ECHR (for instance here or here), and more rarely, with their right to life, under Article 2. In such situations, the Court determined whether the State had discharged its positive obligations or failed to provide the necessary protection, given the available scientific knowledge. However, those cases concerned particular situations in specific locations that would put individuals at specific risks, and where the States decided not to take any action at all, despite being informed by scientific reports (for instance a methane explosion on a rubbish tip, see öneryildiz v. Turkey). Thus, it was sufficient for the Court to hold that states had not met their positive obligations at all, without having to expand on what these exactly entail and how the State should have complied with them (for an analysis of the ECtHR jurisprudence related to environmental cases, see here and here).
The ECtHR has not had yet the opportunity to position itself on return cases linked to climate change, such as the case of Ioane Teitiota. However, its case law based on Article 3 ECHR prohibiting the removal of sick persons to a country where they would face inhuman or degrading treatment is well known (see in particular the case Paposhvili). It could well be that the ECtHR adopts a reasoning similar to the one of the UN Human rights Committee in the present decision in a future case, and engage European states non-refoulement obligations, under Articles 2 (right to life), or 3 (prohibition of inhuman and degrading treatment) of the European Convention on Human Rights, when individuals face removal to their home countries where they risk life-threatening conditions due to climate change.
Regarding the Court of Justice of the European union, Its jurisprudence on Article 15 of the Qualification Directive is particularly interesting. This provision obliges Member States to grant subsidiary protection to individuals if they risk suffering from torture, inhuman or degrading treatment or punishment in their country of origin. It is said to “correspond, in essence, to Article 3 of the ECHR”. However, the question that arose and to which the CJEU answered in the negative, is whether every person falling within the scope of Article 3 ECHR needs to be automatically granted subsidiary protection. As the CJEU stated in its Elgafaji case, “Article 15(c) of the Directive is a provision, the content of which is different from that of Article 3 of the ECHR, and the interpretation of which must, therefore, be carried out independently, although with due regard for fundamental rights, as they are guaranteed under the ECHR” (§ 28).
In the case M’Bodj, the CJEU noted precisely that “Article 15(b) (…) must be interpreted as meaning that serious harm (…) does not cover a situation in which inhuman or degrading treatment (…) to which an applicant suffering from a serious illness may be subjected if returned to his country of origin, is the result of the fact that appropriate treatment is not available in that country, unless such an applicant is intentionally deprived of health care.” (§ 41). From this reasoning, it can be concluded that the serious harm must come from a third party (in other words an actor of serious harm is required) and cannot be based on the result of “a general shortcoming in the health system of the country of origin” (§ 35). Applied to climate-change effects, this seems to mean that under 15 b) of the qualification directive the serious harm cannot come from a situation in a country inflicted by climate change effects.
Although neither the ECtHR, nor the CJEU, has ever dealt with cases concerning the protection against refoulement to be granted to climate-induced migrants, the ECtHR seems likely to adopt a similar reasoning than the UN Human Rights Committee, based on its extensive interpretation of Article 3 of the ECHR prohibiting removal contrary to this provision. On the contrary, the CJEU might exclude climate-induced migrations from subsidiary protection. However, the CJEU could take such situation into consideration under Article 4 of the EU Charter of fundamental rights, the equivalent of Article 3 ECHR, hence adopting a reasoning similar to the ECtHR and the UN Human Rights Committee.
Protection might kick in… but when?
In the commented case, ten to fifteen years were considered to be a sufficient time frame for the Kiribati government and the international community to take actions to protect the inhabitants of the island, in particular, as efforts were already underway by the government. Although the Committee points out that future removal cases would have to be assessed based on the prevailing situation at the time, taking into account updated data on the effects of climate change (§ 9.14), the decision leaves us with some unanswered questions as to when exactly would a government be bound by non-refoulement obligations.
Regarding Kiribati, it is almost certain that the country will be completely under water within 15 years maximum. Hence, wide-planned relocation appears critical – and the only available solution – to protect the population. Against this background, would it be enough not to trigger non-refoulement obligations to find that the national government adopted some measures different from relocation within, for instance, ten years? As the Committee repeatedly recalls, the principle of non-refoulement is an inherent element of the prohibition of torture and other forms of ill-treatment and thus is characterized by its absolute nature without any exception. Therefore, would governments unsuccessfully attempt to redress climate change situations, this could not bar claims based on non-refoulement.
This was pointed out by the second Committee dissenter who said that while it is laudable that Kiribati is attempting to address the conditions, “for as long as they remain dire, the life and dignity of persons remain at risk”. It is hard to see how the time frame of ten to fifteen years sets forth by the Committee would be enough to deal with an entire country that is going to be completely drowned, and, no matter which action is adopted, “it is clear that the situation of life continues to be inconsistent with the standards of dignity” (§ 6 dissenting opinion). However, and significantly, the Committee underlines that the risk of a country being entirely submerged by water is so extreme, that living conditions may become incompatible with the right to life with dignity before the risk is realised, and, that protection obligations would be triggered before life is imminently threatened (§ 9.11). As endorsed by the second dissenter, it would “be counterintuitive to the protection of life to wait for deaths to be very frequent and considerable, in order to consider the threshold of risk as met.”
Despite these unanswered questions, the Committee’s decision is important not only for its novelty, but also for its strong notice. Indeed, it is the first time that the Committee ruled on a communication filed by an individual seeking protection from climate change effects and the first time it acknowledges that international human rights law may require States to refrain from returning climate-induced displaced persons if they face a real risk of threat to their life because of the adverse effects of climate change. Thereby, the Committee made a strong statement on the responsibility and role of States regarding the climate crisis that might serve as a potential opening for future protection claims.