faculty of law university of ghent

Faculty of Law

University of Ghent

Academic year 2015-2016

CLIMATE CHANGE AND HUMAN RIGHTS: THE STATUS OF CLIMATE

REFUGEES IN INTERNATIONAL LAW

Dissertation for the Education Programme

‘Master of Laws’

Submitted by

Ilja Terwinghe

(01000882)

Supervisor: Prof. dr. Yves Haeck

Commissioner: Dr. Salvatore Nicolosi

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Note accompanying the illustration

The author of this illustration, Zjef Caers, deserves full recognition for the artistic and creative

contribution of his work to this dissertation. The illustration was inspired by the discussions we

had in relation to climate refugees. The lay-out was of this drawing was partly taken from the

works of Pieter Bruegel the Elder, a Netherlandish painter who painted his works during the Little

Ice Age, a minor climate change event.

At the bottom a partly submerged landscape in a tropic setting can be seen, with homes that

remind us of a European architecture. This is a combination of the low-lying island states and a

reminder Europe is not immune from sea level rise either, as witnessed by the North Sea Flood of

1953. To the right we can identify mass-evacuations taking place as a result of a tsunami and a

volcano eruption. To the left we find a landscape destroyed by drought. At the top, the symbol of

the developed world, the fenced city, intercepts people fleeing in order to push them back and

keep them from entering. It serves as an appeal to the viewer, that those who flee from possible

consequences of climate change should not be singled out to the detriment of those who flee from

other environmental catastrophes.

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Acknowledgements

During the final years of my secondary education, I had the opportunity to live on the island of

Tasmania with my family for over two years. The great distance between my Homeland and this

Australian island at the edge of the world has had a profound impact on my worldview. Here, I had

the opportunity to live a life in a different culture, amidst a great diversity of people. Therefore, my

first and foremost gratitude goes out to my mother and father, who gave me the opportunity to

travel, study, and enjoy life. My sister, Marie, deserves a sign of appreciation for putting up with

me during the last three years in Ghent and for a late-notice proofreading. Rein, my girl, can have

me back now, although she has only ever been my only priority. Special praise goes to my

grandmother, Bonny, who, in spite of her years, saw no problems in providing me with her care and

stimulation over the years, during the hardest days of my exams.

Finally, I would like to thank my supervisor, prof. dr. Yves Haeck for accepting me and providing

me with feedback and guidance for this dissertation, along with dr. Salvatore Nicolosi, my

commissioner.

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Table of Contents

Table of Contents............................................................................................................................ 6

Prologue ......................................................................................................................................... 13

Introduction .................................................................................................................................. 14

1. Setting ..................................................................................................................................... 14

2. Research Questions ................................................................................................................ 16

3. Methodology ........................................................................................................................... 17

I. Climate Change ......................................................................................................................... 19

1. Framing the issue .................................................................................................................... 19

2. Adverse effects of climate change .......................................................................................... 21

2. 1. Sea level rise ................................................................................................................... 21

2. 2. Extreme events ................................................................................................................ 22

2. 2. 1. Heat Waves............................................................................................................. 22

2. 2. 2. Precipitation............................................................................................................ 22

2. 2. 3. Floods ..................................................................................................................... 22

2. 2. 4. Storms ..................................................................................................................... 23

2. 2. 5. Droughts ................................................................................................................. 23

2. 3. Ice Melting ...................................................................................................................... 23

2. 4. Crops ............................................................................................................................... 24

2. 5. Fisheries .......................................................................................................................... 24

2. 6. Disease ............................................................................................................................ 24

II. Human Rights under Threat .................................................................................................. 26

1. An environmental context ...................................................................................................... 26

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1. 1. The environment and attention to human rights ............................................................. 26

1. 2. The inapplicability of human rights in “climate change mitigation litigation” .............. 27

2. Civil rights .............................................................................................................................. 29

2. 1. The right to life ............................................................................................................... 29

2. 2. The right to privacy and family life ................................................................................ 34

2. 3. The right to property ....................................................................................................... 35

3. Socio-economic rights ............................................................................................................ 37

3. 1. The right to health ........................................................................................................... 37

3. 2. The right to food ............................................................................................................. 39

3. 3. The right to water ............................................................................................................ 40

3. 4. The right to housing ........................................................................................................ 42

4. Other rights ............................................................................................................................. 43

4. 1. The right to self-determination ....................................................................................... 43

4. 2. The right to a healthy environment ................................................................................. 44

4. 3. Rights of vulnerable groups ............................................................................................ 45

5. Conclusion .............................................................................................................................. 47

III. Establishing a Class ............................................................................................................... 50

1. Conceptualising movement .................................................................................................... 50

1. 1. The cause of movement .................................................................................................. 50

1. 1. 1. Sudden and slow-onset disasters ............................................................................ 50

1. 1. 2. Climate and environmental causes ......................................................................... 51

1. 2. The nature of movement ................................................................................................. 52

1. 2. 1. Forced or voluntary? .............................................................................................. 52

1. 2. 2. Internal or external?................................................................................................ 53

1. 2. 3. Temporary or permanent? ...................................................................................... 53

2. Definitions .............................................................................................................................. 54

2. 1. An overview of proposals ............................................................................................... 54

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2. 1. 1. Descriptive definitions ........................................................................................... 55

A. El-Hinnawi’s first “environmental refugees” ........................................................... 55

B. Bates’ sociological “environmental refugees” .......................................................... 56

C. The International Organisation for Migration’s “environmental migrants” ............. 56

D. Myers’ “environmental refugees” ............................................................................ 57

E. The UNHCR’s “environmentally displaced persons” .............................................. 58

2. 1. 2. Normative definitions ............................................................................................. 59

A. Biermann and Boas’ “climate refugees”................................................................... 59

B. Docherty and Giannini’s “climate refugees” ............................................................ 60

C. Hodgkinson and others’ “climate change displaced persons” ................................. 61

D. CRIDEAU’s “environmentally displaced persons” ................................................. 61

3. Conclusion .............................................................................................................................. 62

IV. Assessing the Status of EDPs ................................................................................................ 65

1. International refugee law ........................................................................................................ 65

1. 1. The Refugee Convention ................................................................................................ 65

1. 1. 1. Persecution as a condition for refugee recognition ................................................ 66

A. What is persecution? .................................................................................................. 66

B. EDPs and “environmental persecution” .................................................................... 67

1. 1. 2. The grounds of persecution .................................................................................... 70

1. 1. 3. Outside the country of his nationality .................................................................... 72

1. 1. 4. Unable to return? .................................................................................................... 73

1. 2. Regional instruments ...................................................................................................... 76

1. 2. 1. Convention Governing the Specific Aspects of Refugee Problems in Africa ........ 76

1. 2. 2. Cartagena Declaration on Refugees ....................................................................... 78

1. 3. Conclusion ...................................................................................................................... 79

2. Frameworks addressing internal displacement ....................................................................... 80

2. 1. The Guiding Principles on internal displacement ........................................................... 80

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2. 2. The Convention for the Protection and Assistance of Internally Displaced Persons in

Africa ...................................................................................................................................... 82

3. International environmental law ............................................................................................. 83

3. 1. The obligation not to cause significant transboundary harm .......................................... 83

3. 2. A role for diagonal environmental rights? ...................................................................... 84

3. 3. Developments under the United Nations Framework Convention on Climate Change . 86

3. 3. 1. The outcome of COP16: The Cancún Adaptation Framework .............................. 87

4. International human rights law ............................................................................................... 88

4. 1. Jurisdiction, control and application of obligations ........................................................ 88

4. 1. 1. Jurisdiction in the International Bill of Human Rights .......................................... 88

4. 1. 2. Jurisdiction in the ECHR ........................................................................................ 90

4. 1. 3. Jurisdiction in the Inter-American System ............................................................. 91

4. 1. 4. The right to control entry........................................................................................ 92

4. 2. The principle of non-refoulement ................................................................................... 94

4. 2. 1. Status of the principle of non-Refoulement ............................................................ 94

4. 2. 2. The content of the prohibition to refoul and the ECHR ......................................... 97

A. the approach of the ECtHR on prohibition to return ................................................. 97

B. Socio-economic dimension of the prohibition to return ............................................ 99

C. The status of individuals protected by the principle of non-refoulement ................ 103

V. Conclusion .............................................................................................................................. 105

Bibliography ............................................................................................................................... 107

A. International Instruments ..................................................................................................... 107

1. Universal Instruments ....................................................................................................... 107

2. Regional Instruments ........................................................................................................ 108

2. 1. African ...................................................................................................................... 108

2. 2 American ................................................................................................................... 108

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2. 3. Arabian ..................................................................................................................... 109

2. 4. European ................................................................................................................... 109

B. Jurisdiction ........................................................................................................................... 109

1. International Court of Justice ............................................................................................ 109

2. African System ................................................................................................................. 110

3. European System .............................................................................................................. 110

4. Inter-American System ..................................................................................................... 111

5. Domestic jurisdiction ........................................................................................................ 112

C. Legal Doctrine ..................................................................................................................... 112

1. Books ................................................................................................................................ 112

2. Legal Journals ................................................................................................................... 113

3. Papers, Reports and Comments ........................................................................................ 118

D. Soft Law .............................................................................................................................. 122

E. Newspaper articles ............................................................................................................... 123

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List of Abbreviations

AfrCHPR African Commission on Human and Peoples’ Rights

AIDS Acquired immunodeficiency syndrome

AOSIS Alliance of Small Island States

CAT Convention Against Torture and Other Cruel, Inhuman or Degrading

Treatment or Punishment

CEDAW Convention on the Elimination of all Forms of Discrimination Against

Women

CESCR Committee on Economic, Social and Cultural Rights

COP Conference of the Parties to the United Framework Convention on Climate

Change

CRC United Nations Convention on the Rights of the Child

CRD Convention on the Rights of Persons with Disabilities

ECHR European Convention for the Protection of Human Rights and Fundamental

Freedoms

ECSR European Committee of Social Rights

ECtHR European Court of Human Rights

EDP Environmentally displaced person

EIA Environmental impact assessment

IACHR Inter-American Commission on Human Rights

IACtHR Inter-American Court on Human Rights

ICCPR International Covenant on Civil and Political Rights

ICESCR International Covenant on Economic, Social and Cultural Rights

ICJ International Court of Justice

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IDP Internally displaced person

ILO International Labour Organization

IOM International Organization for Migration

IPCC Intergovernmental Panel on Climate Change

OAU/AU Organisation of African Unity/African Union

SIDS Small Island Developing States

UDHR Universal Declaration of Human Rights

UNCED United Nations Conference on Environment and Development

UNECE United Nations Economic Commission for Europe

UNEP United Nations Environmental Program

UNFCCC United Nations Framework Convention on Climate Change

UNGA United Nations General Assembly

UNHCR United Nations High Commissioner for Refugees

USA/US United States of America

WMO World Meteorological Organization

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Prologue

Off the coast of Bougainville Island, in the South Pacific, is an atoll that forms the Carteret Islands.

This small paradise is a part of Papua New Guinea. The Carteret Islanders have always lived an

isolated life, in harmony with nature. This is because they are dependent on its fishes, and the few

crops they can grow on their restricted lands available. Life was not too hard on the Carteret Islands.

Unsettling, every day the beach creeps up on the homes of the Islanders. As a result, their water

wells have become less trustworthy and the salinity of the water is increasing. The quality of the

water their crops need suffers from the intrusion of the sea. Therefore, their harvest yields have also

become less certain. Once in a while a storm surge breaches their coastline, but the water always

retreats. At least it always has. However, the last decades, the surges have become more frequent

and heavier. This has damaged the coral reefs they depend on for fishing. The inland penetration of

the storm water has created a brackish swampland, ideal for mosquitos. Now, most of the children

have malaria. Whenever the Carteret Islanders had problems in providing for their own means, the

government sent a ship carrying necessary goods. Only once in a while, this way the Islanders can

continue their life and traditional way of living. More often, this ship sails in. One day, soon, this

ship will come for the last time and it will carry the Islanders out, instead of carrying the goods in.

Then, the Carteret Islanders will be a people with no land. Theirs will be a culture with an uncertain

future. But where will the ship bring them?1

1 This is a representation of the plight of the Carteret Islanders, based on: PASCOE, S., “Sailing the Waves on Our Own: Climate

Change Migration, Self-Determination and the Carteret Islands”, Queensland University of Technology Law Review 2015, vol.

15 issue 2, 72; UNITED NATIONS UNIVERSITY, Sinking Paradise, Carteret Islands, PNG, UNUChannel, 28 May 2009,

https://www.youtube.com/watch?v=Hgw4HTtokgk; UNESCO, “I need a new home, my island has sunk”, 6 June 2012,

http://www.unesco.org/new/en/rio-20/single-view/news/i_need_a_new_home_my_island_has_sunk/#.Vvm7MeZBG3c.

https://www.youtube.com/watch?v=Hgw4HTtokgk

http://www.unesco.org/new/en/rio-20/single-view/news/i_need_a_new_home_my_island_has_sunk/#.Vvm7MeZBG3c

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Introduction

1. Setting

“Climate change is the defining challenge of our times ...”2

- Mr. António Guterres

The world is changing. In a very broad sense these changes occur both in a discernable

physical and in a human way. Climate change has an effect on societies, individuals and ecosystems

as we know them because of widespread impacts already felt today.3

What the future looks like depends on a number of factors, one of these include the amount

of effective measures taken to reduce our emissions of greenhouse gases within the mitigation 10

efforts of limiting our anthropogenic contribution to climate change. Very recently a hopeful step

forward was taken with the adoption of an agreed treaty text in Paris.4 On the 22nd of April 2016,

175 nations signed this agreement,5 the largest amount of signatures a treaty has ever gathered on

one day.6 Due to these mitigating measures, the adverse impacts on our environment will decrease,

however to some extent this will not have a satisfactory outcome. In short this means that some of

the negative effects of climate change will happen, regardless of a complete stop in emittance of

greenhouse gasses today.7 In no way does this mean that the global community should consider

reducing its efforts towards mitigating their contribution to climate change as they have pledged

under the United Nations Framework Convention on Climate Change.8 What it does mean is that

in accepting the anticipated effects of climate change on our environment we have the opportunity 20

2 ANTÓNIO GUTERRES, “Maintenance of International Peace and Security: New Challenges to International Peace and Security

and Conflict Prevention” , Statement by UN High Commissioner for Refugees, United Nations Security Council Briefing, New

York, 23 November 2011, http://www.unhcr.org/4ee21edc9.html, 3. 3 INTERGOVERNMENTAL PANEL ON CLIMATE CHANGE, Climate Change 2014: Synthesis Report. Contribution of Working Groups

I, II and III to the Fifth Assessment Report of the Intergovernmental Panel on Climate Change, IPCC, Geneva, 2014, 40; 4Adoption of the Paris Agreement, Decision of the Conference of Parties to the United Nations Framework Convention on

Climate Change on its 21st Session (30 November 2015), Paris, FCCC/CP/2015/L.9/Rev. 5 For ratification status: see https://treaties.un.org/pages/ViewDetails.aspx?src=TREATY&mtdsg_no=XXVII-7-

d&chapter=27&lang=en. 6 ZELNIENE, L., “Paris Agreement sees largest number of countries to sign on during one single day”, Politifact 26 April 2016,

http://www.politifact.com/global-news/statements/2016/apr/26/ban-ki-moon/paris-agreement-sees-largest-number-countries-

sign/. 7 INTERGOVERNMENTAL PANEL ON CLIMATE CHANGE, Climate Change 2014: Synthesis Report. Contribution of Working Groups

I, II and III to the Fifth Assessment Report of the Intergovernmental Panel on Climate Change, IPCC, Geneva, 2014, 73;

GERMAN ADVISORY COUNCIL ON GLOBAL CHANGE, Climate Change as a Security Risk, Earthscan, London, 2008, 127; OFFICE

OF THE HIGH COMMISSIONER FOR HUMAN RIGHTS, Report of the Office of the United Nations High Commissioner for Human

Rights on the Relationship between Climate Change and Human Rights, A/HRC/10/61, 15 January 2009, paragraph 15;

ATAPATTU, S., “Climate Change: Disappearing States, Migration, and challenges for International Law”, Washington Journal

of Environmental Law & Policy 2014-2015, vol. 4:1, 26; CRAIG, R., K., “ “Stationarity is dead” – Long live transformation:

five principles for climate change adaptation law”, Harvard Environmental Law Review 2010, vol. 34, 24. 8 Article 4 United Nations Framework Convention on Climate Change, New York, 9 May 1992, United Nations Treaty Series

no. 1771, entered into force on 21 March 1994.

http://www.unhcr.org/4ee21edc9.html

https://treaties.un.org/pages/ViewDetails.aspx?src=TREATY&mtdsg_no=XXVII-7-d&chapter=27&lang=en

https://treaties.un.org/pages/ViewDetails.aspx?src=TREATY&mtdsg_no=XXVII-7-d&chapter=27&lang=en

http://www.politifact.com/global-news/statements/2016/apr/26/ban-ki-moon/paris-agreement-sees-largest-number-countries-sign/


15

to adapt ourselves to those changing conditions so as to limit their negative impact.9 While

mitigating our contribution to climate change is one strategy. Equally so is adapting to it. The

manner in which to adapt however, is a discussion of high uncertainty and complexity.10

Gloomier is the consideration of the Intergovernmental Panel on Climate Change (IPCC)

that the effectiveness of adaptation to climate change is limited.11 There is a risk that ecosystems or

human communities will be unable to adapt to the varying and sometimes difficult to predict

consequences of climate change. This faces us with the very real likelihood that as a result of the

stress put on them because of environmental degradation caused by climate change, these

individuals, communities and even entire populations will see no other possibility than to leave their

homes. The most grave for example because of complete submergence of their State below sea 30

level.12

These victims of climate change are commonly referred to as ‘climate change refugees’ and

it appears that, although they have a name, a sufficiently protective legal status in international law

does not necessarily exist.13 It appears that the nature of their movement, the causes of their

movement and many other aspects related to their ordeal are all worthy of a thorough consideration

in relationship to how these population movements are regulated in international law. A restricted

number of legal routes exist for them for whatever phenomenon compels them to seek a better future

and chance of survival elsewhere. Although perhaps with a limited relevance for those affected

today since only a few clear attempts at illustrating examples are ever used,14 towards the future the

clarification of legal options, if they even exist, will prove of great benefit. While a great deal of 40

predictions differ extensively, they all agree on one thing: they talk of tens of millions.15 This sounds

overwhelmingly large, and therefore it is not a surprise that such a large problem, if it goes

9 Some say “protection” is also a strategy, there is no consensus on the issue and we will not provide a further discussion on

this, see for example KÄLIN, W. and SCHREPFER, N., Protecting People Crossing Borders in the Context of Climate Change:

Normative Gaps and Possible Approaches, Legal and Protection Policy Research Series, UNHCR, Geneva, Ferbruary 2012,

17. 10 CRAIG, R. K., “Stationarity is Dead-Long live transformation: Five Principles for Climate Change Adaptation Law”, Harvard

Environmental Law Review 2010, vol. 24, 29 11 INTERGOVERNMENTAL PANEL ON CLIMATE CHANGE, Climate Change 2014: Synthesis Report. Contribution of Working

Groups I, II and III to the Fifth Assessment Report of the Intergovernmental Panel on Climate Change, IPCC, Geneva, 2014,

79. 12 DUONG, T., “When Islands Drown: The Plight of “Climate Change Refugees” and Recourse to International Human Rights

Law”, University of Pennsylvania Journal of International Law 2009-2010, vol. 31:4, 1239. 13 BIERMANN, F. and BOAS, I., “Preparing for a Warmer World: Towards a Global Governance System to Protect Climate

Refugees”, Global Environmental Politics 2010, vol. 10, no. 1, 60-88. 14 UNESCO, “I need a new home, my island has sunk”, 6 June 2012, http://www.unesco.org/new/en/rio-20/single-

view/news/i_need_a_new_home_my_island_has_sunk/#.Vvm7MeZBG3c; DASTGHEIB, S., “Kiribati Climate Change Refugee

told he must leave New Zealand”, The Guardian 22 September 2015,

http://www.theguardian.com/environment/2015/sep/22/kiribati-climate-change-refugee-told-he-must-leave-new-zealand. 15 GEMENNE, F., “Why the numbers don’t add up: A review of estimates and predictions of people displaced by environmental

changes”, Global Environmental Change 2011, 5; INTERNATIONAL ORGANISATION FOR MIGRATION, “Disaster Risk Reduction,

Climate Change Adaptation and Migration: A Policy Perspective”, IOM, 3.



http://www.theguardian.com/environment/2015/sep/22/kiribati-climate-change-refugee-told-he-must-leave-new-zealand

16

unchecked, will be likely to cause security issues.16 GEMENNE has bundled the estimates together

and considers that careful projections range from 150 million people displaced by environmental

changes, including climate change, to more ‘alarmist’ projections of 300 million displaced by

2050.17 The reliability of most of these individual estimates however is at least questionable.

The human rights of the persons experiencing the multitude of adverse effects of climate

change could well be heavily impacted. The number of different ways in which climate change can

cause the environment to transform, reveals the possibilities in which an individual’s collection of

rights safeguarded by the body of international human rights could be interfered with. The further 50

and further decrease in enjoyment of this set of rights, without the outlook of improvement, makes

humans seek improvement of their unenviable situation elsewhere. The guarantees offered by

international law to protect these millions from being forced to stay in a natural environment unable

or unwilling to support them and in some cases even lethal to them are the torches that will need to

guide them on their burdensome journey from a human-caused problem.

2. Research Questions

The general approach taken will be a logical advance throughout the hypothetical phases

of human movement caused by climate change with a constant focus on the changing status of

individuals from a rights-based perspective. We will be partly guided by the title of this thesis when 60

adopting the structural outline of what follows: “Climate Change and Human Rights: What is the

Status of Climate Refugees under International Law”.

At first, we will have a deeper look at some particular consequences of climate change on

our natural environment. This will help illustrate the variety of effects across the world and the

difficulty of predicting how these natural phenomena will manifest themselves. In addition, some

distinctly vulnerable regions will be illustrated throughout these consequences, indicating where we

should be vigilant for profound impacts on populations. Although in Part I the scrutiny of natural

science is not necessary with regards to our later legal assessment, the question we address is how

we will feel the natural effects of climate change.

16 UNITED NATIONS GENERAL ASSEMBLY, Climate Change and its possible Security Implications, report of the Secretary-

General, 11 September 2009, A/64/350, 15; GERMAN ADVISORY COUNCIL ON GLOBAL CHANGE, Climate Change as a Security

Risk, Earthscan, London, 2008, 116-130; MYERS, N., Environmental Refugees: An Emergent Security Issue, 13th Economic

Forum Prague, 22 May 2005, 3; ATAPATTU, S., “Global Climate Change: Can Human Rights (and Human Beings) Survive this

Onslaught?”, Colorado Journal of International Environmental Law & Policy 2008-2009, vol. 20:1, 61. 17 GEMENNE, F., “Why the numbers don’t add up: A review of estimates and predictions of people displaced by environmental

changes”, Global Environmental Change 2011, 5.

17

After establishing an as clear as possible view on how the environment will react when 70

subjected to climate change, we have the possibility in Part II to assess how human rights might,

consequentially, be infringed upon. Established and less established rights will be analysed, taking

into consideration their relevance in relation to the highlighted predictions from Part I. International

and regional human rights law will be used to give meaning to individual rights, along with case-

law and judicial interpretations. This chapter will include specific considerations of the position of

minorities and groups of vulnerable persons. The question central to Part II is how climate change

affects human rights. Other issues we address in this part is whether international human rights law

is adequate at addressing mitigation and if climate change violates human rights.

When we have framed which rights could be threatened by the consequences of climate

change, we will enter into the displacement discussion. This will require a thorough analysis of the 80

existing approaches and misconceptions regarding migration of humans due to problems arising in

the context of climate change. Part III is the part in which the necessity arises of adopting a clear

operational approach towards which class of persons will be tested to check the internationally

safeguarded legal means at their disposal. All relevant types of movement addressed in existing

literature will need to be identified and clarified. The object of Part III is to define the group of

persons to which we will apply international law in search of a status.

Finally, Part IV will be used to address existing available recourses in international law and

lack thereof. Here we will use a comprehensive approach. As the graveness of a displacee’s situation

increases we will take measure of their status as it stands in international law. Interactively this will

lead us on a course through international refugee law, internal displacement, international 90

environmental law and finally international human rights law. Again aside from the international

and regional law we will have to make a use of judicial and municipal decisions, insofar as permitted

by this dissertation, to test how far principles and existing recourses can be stretched as to provide

an adequate overview of status under international law. Thus, our final question is what the status

is of our class under international law, with for every subsection what the practical opportunities

and hurdles are.

3. Methodology

Throughout this dissertation, the emphasis will lie on a research of sources provided by international

academic legal literature. Whenever possible, primary sources will be studied with regard being had 100

to recent advances. By this we consider that, although some contributions and some authors might

have been widely recognised and reused or restated by others in literature, we will pay particular

18

attention to it that we will return as close to the source as possible in order to avoid

misrepresentations or departing from wrong inferences. However, in some cases it might prove

difficult to attain an original source, only if we see no other possibility we will use secondary

references, but these ought to be minimal. The natural science basis is also constantly evolving.

Some updated scientific assessment reports therefore will be used generally to illustrate these

natural scientific findings. They will not be scrutinized since the goal of this thesis is to reach a

conclusion based on legal scholarship.

110

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I. Climate Change

1. Framing the issue

The United Nations Framework Convention on Climate Change18 (UNFCCC) is the core

instrument in international law, which at its foundation has the task of providing the framework

within which climate change is addressed. It was established as a result of the United Nations

Conference on Environment and Development (UNCED),19 or the so-called Rio de Janeiro Earth

Summit which was heavily influenced by the Intergovernmental Panel on Climate Change’s (IPCC)

first assessment report.20 120

“Climate change” is defined by the UNFCCC as “a change of climate which is attributed

directly or indirectly to human activity that alters the composition of the global atmosphere and

which is in addition to natural climate variability observed over comparable time periods”.21

Although this definition was adopted for uses within the UNFCCC it depicts the approach taken on

the international scene, which is that there is a causal link between climate change and human

activity. On the basis of the Convention alone, a human link with climate change is established. Its

approach however is that climate change would have a large number and variety of effects, not all

necessarily negative as is sometimes popularly assumed.22 One should therefore read this as “any

change of climate...”.

In order to avoid misconceptions, the UNFCCC has also defined “adverse effects of climate 130

change” as “changes in the physical environment or biota resulting from climate change which have

significant deleterious effects on the composition, resilience or productivity of natural and managed

ecosystems or on the operation of socio-economic systems or on human health and welfare”.23

Thereby readily suggesting that climate change also has favourable effects.

18 United Nations Framework Convention on Climate Change, New York, 9 May 1992, United Nations Treaty Series no. 1771,

entered into force on 21 March 1994. 19 Declaration of the United Nations Conference on Environment and Development (14 June 1992), Rio de Janeiro, UN Doc.

A/CONF.151/26 (vol. I). 20 INTERGOVERNMENTAL PANEL ON CLIMATE CHANGE, Report prepared for Intergovernmental Panel on Climate Change by

Working Group I, Cambridge University Press, Cambridge, 1990, 410; INTERGOVERNMENTAL PANEL ON CLIMATE CHANGE,

Report prepared for Intergovernmental Panel on Climate Change by Working Group II, Australian Government Publishing

Service, Canberra, 1990, 294; INTERGOVERNMENTAL PANEL ON CLIMATE CHANGE, Report prepared for Intergovernmental

Panel on Climate Change by Working Group III, 1990, 330. 21 Article 1(2) of the United Nations Framework Convention on Climate Change, New York, 9 May 1992, United Nations

Treaty Series no. 1771, entered into force on 21 March 1994. 22 Referring to the generally negative connotation the expression “climate change” has acquired throughout time. 23 Article 1(1) of the United Nations Framework Convention on Climate Change, New York, 9 May 1992, United Nations

Treaty Series no. 1771, entered into force on 21 March 1994.

20

International policymakers and Conferences of Parties24 (COP) have since long relied on

the assessment reports and special reports provided by the IPCC during negotiations whenever their

scientific reports are necessary. One recent example was the adoption of the 2°C maximum warming

mark in the Paris Agreement25 after the IPCC published its Fifth Assessment Report and based

findings on exactly this increase.26 This means that nations bind themselves to reducing emissions

to a level at which the global atmosphere will not warm above 2°C, as compared to pre-industrial 140

levels.

In 1988 the United Nations Environment Programme (UNEP), together with the World

Meteorological Organisation (WMO), established the IPCC with as its objective assessing the

scientific findings relating to climate change. It formulates reports based on available scientific data

and does not direct its own research.27 For reasons of accessibility it is divided in three working

groups which each focus on their parts of the assessment.28 The First Working Group (WGI) relates

to the scientific aspects of climate system and climate change, the Second Working Group (WGII)

relates to the vulnerability of socio-economic and natural systems to climate change and options for

adaptation, and the Third Working Group (WGIII) looks at the options for mitigating climate

change. 150

Wherever positive effects of climate change occur, it is unlikely that they will have an

undesired result on humans. In any case, these effects will be limited and will not outweigh the

adverse effects of climate change.29 Therefore we will concentrate on highlighting adverse effects

of climate change considered most likely to affect human rights.

24 Article 7 of the United Nations Framework Convention on Climate Change, New York, 9 May 1992, United Nations Treaty

Series no. 1771, entered into force on 21 March 1994. 25 Article 2(1)(a) of the Paris Agreement, Decision of the Conference of Parties to the United Nations Framework Convention

on Climate Change on its 21st Session (30 November 2015), Paris, FCCC/CP/2015/L.9/Rev. 26 INTERGOVERNMENTAL PANEL ON CLIMATE CHANGE, Climate Change 2014: Synthesis Report. Contribution of Working


20. 27 INTERGOVERNMENTAL PANEL ON CLIMATE CHANGE, IPCC Factsheet: what is the IPCC?, IPCC, Geneva, 30 August 2013,

http://www.ipcc.ch/news_and_events/docs/factsheets/FS_what_ipcc.pdf, 2. 28 Principles 1 and 6 of the Principles governing IPCC Work, approved at the Fourteenth Session (Vienna, 1-3 October 1998)

on 1 October 1998, amended at the Twenty-First Session (Vienna, 3 and 6-7 November 2003), the Twenty-Fifth Session

(Mauritius, 26-28 April 2006), the Thirty-Fifth Session (Geneva, 6-9 June 2012) and the Thirty-Seventh Session (Batumi, 14-

18 October 2013). 29 INTERGOVERNMENTAL PANEL ON CLIMATE CHANGE, Climate Change 2014: Synthesis Report. Contribution of Working


40 and 51.

http://www.ipcc.ch/news_and_events/docs/factsheets/FS_what_ipcc.pdf

21

2. Adverse effects of climate change

2. 1. Sea level rise

Between 1901 and 2010, the global sea level rose on average by 0.19m.30 By 2100 some

scenarios predict a rise of possibly up to 0.98m.31 Predictions that venture beyond, have extremes

of up to 7m by the year 2500.32 Various factors are thought to have caused this. These are thermal 160

expansion of the oceans due to the increase in water temperature and contributions of melting ice

due to atmospheric increase in temperature.33 The clear link is global warming.

While accepting these numbers we should exercise at least some caution. The predictions

are those maintained in the IPCC’s Fifth Assessment Report and express the global mean rise of

the sea level since the beginning of systemic measurements. The sea level will not, and has not risen

uniformly around the world. In some areas there will be a higher rise than others. The Pacific

Region, which is the location of many island states which sometimes only have a maximal rise

above sea level of a few meters is one with many variations. In the Western Pacific sea level rises

of over three times the average were measured, whereas in the Eastern Pacific no rise above average

was observed.34 These variations will probably translate through to future rises.35 170

Not only low-lying islands will be severely affected by a rise in sea level. In general all low-

lying coastal regions could be affected and specifically river deltas are vulnerable to rising waters.36

The problem of rising sea levels is therefore not regionally confined. It will affect islands from the

Pacific, the Indian and the Caribbean region. Deltas such as the Mekong, the Ganges37 or the

Mississippi and low-lying coastal areas, such as the Netherlands or the eastern United States, must

be added to the list.

30 INTERGOVERNMENTAL PANEL ON CLIMATE CHANGE, Climate Change 2013: The Physical Science Basis. Contribution of

Working Group I to the Fifth Assessment Report on the Intergovernmental Panel on Climate Change, Cambridge University

Press, Cambridge, 2013, 11. 31 Ibid., 21. 32 INTERGOVERNMENTAL PANEL ON CLIMATE CHANGE, Climate Change 2014: Impacts, Adaptation and Vulnerability.

Contribution of Working Group II to the Fifth Assessment Report on the Intergovernmental Panel on Climate Change,

Cambridge University Press, Cambridge, 2014, table 369. 33 GERMAN ADVISORY COUNCIL ON GLOBAL CHANGE, Climate Change as a Security Risk, Earthscan, London, 2008, 63. 34 INTERGOVERNMENTAL PANEL ON CLIMATE CHANGE, Climate Change 2013: The Physical Science Basis. Contribution of

Working Group I to the Fifth Assessment Report on the Intergovernmental Panel on Climate Change, Cambridge University

Press, Cambridge, 2013, 288 and table 281. 35 INTERGOVERNMENTAL PANEL ON CLIMATE CHANGE, Climate Change 2014: Impacts, Adaptation and Vulnerability.

Contribution of Working Group II to the Fifth Assessment Report on the Intergovernmental Panel on Climate Change,

Cambridge University Press, Cambridge, 2014, 369. 36 GERMAN ADVISORY COUNCIL ON GLOBAL CHANGE, Climate Change as a Security Risk, Earthscan, London, 2008, 63; 37 KOLMANNSKOG, V. O., Future Floods of Refugees: a Comment on Climate Change, Conflict and Forced Migration,

Norwegian Refugee Council, Oslo, April 2008, 16.

22

2. 2. Extreme events

2. 2. 1. Heat Waves

Periods during which the temperature significantly increases for a short amount of time, due 180

to human contribution, have increased. The probability of uncomfortable heat waves occurring has

even doubled, compared to the 1950s, in some instances.38 It is projected that in the future, they will

become more frequent and will have a longer duration.39

2. 2. 2. Precipitation

Heavy rainfall events have increased due to anthropogenic climate change in the previous

century, be it with regional variations. In North America and Europe there has been an increase in

extreme rainfall events, whereas the evidence for other regions is not as convincing.40 Also these

events are predicted to increase in intensity and in frequency, again with regional variations.

Specifically, mid latitude land masses, which are between arctic and tropical regions, and tropical 190

regions themselves will endure more extreme rainfall events.41

Apart from these extreme events the average rainfall is expected to increase due to changes

in temperature level as a result of global warming causing a faster rate of evaporation.42

2. 2. 3. Floods

Storms and floods have been estimated to be the cause of about 60 % of natural disasters.43

Sometimes attribution of climate change to flood risk is assumed,44 however the scientific

assessment is far less convincing. For example, the human contribution to alluvial floods is hard to

link to climate change. Since environmental change related to direct human activities and water

38 INTERGOVERNMENTAL PANEL ON CLIMATE CHANGE, Climate Change 2014: Synthesis Report. Contribution of Working


53. 39 Ibid., 58 and 60. 40 Ibid., 53. 41 Ibid., 58 and 60. 42 GERMAN ADVISORY COUNCIL ON GLOBAL CHANGE, Climate Change as a Security Risk, Earthscan, London, 2008, 57. 43 Ibid., 69. 44 JODOIN, S. and LOFTS, K., Economic, Social and Cultural Rights and Climate Change: A Legal Reference Guide, Centre for

International Sustainable Development Law, New Haven, 2013, 5; KOLMANNSKOG, V. O., Future Floods of Refugees: a

Comment on Climate Change, Conflict and Forced Migration, Norwegian Refugee Council, Oslo, April 2008, 16; MCADAM,

J. and LIMON, M., Human Rights, Climate Change and Cross-Border Displacement: the role of the international human rights

community in contributing to effective and just solutions, Policy Report, Universal Rights Group, August 2015, 7.

23

management makes it harder to isolate the exact extent of climate change impacts on flooding.45 200

For the sake of completeness it should be noted that as a result of increased extreme precipitation

and sea level rise floods are likely to increase.46

2. 2. 4. Storms

Storms and especially tropical storms have increased since decades, but again these changes

are hard to attribute and confirm as a definite trend. The IPCC is reluctant to ascribe any particular

cause of, for example climate change, directly to an increase of frequency or intensity of storms.47

Nonetheless, again in combination with increased extreme precipitation and sea level rise, the

likelihood that in the future storms will intensify is real.48

210

2. 2. 5. Droughts

Due to a lack of reliable data and methodology, there is no clear stance on whether droughts

are increasing directly due to human-caused climate change.49 The risk of them increasing should

indirectly not be neglected. Due to changes in evaporation, strong regional variations in

precipitation and snowfall droughts are more likely to occur in the future.50

2. 3. Ice Melting

Global temperature increase has caused glaciers to retreat significantly since the 1960s and

ice caps to melt. For example since 1993 the Greenland ice sheet has experienced increased surface

melting due to anthropogenic climate change.51 The same has happened to snow-covered areas, 220

45 INTERGOVERNMENTAL PANEL ON CLIMATE CHANGE, Climate Change 2014: Synthesis Report. Contribution of Working


53. 46 GERMAN ADVISORY COUNCIL ON GLOBAL CHANGE, Climate Change as a Security Risk, Earthscan, London, 2008, 70. 47 INTERGOVERNMENTAL PANEL ON CLIMATE CHANGE, Climate Change 2014: Synthesis Report. Contribution of Working






48.

24

which suffer from contraction.52 The melting of glaciers and ice-sheets is one of the greatest

contributors to sea level rise but also has an effect on the provision of freshwater to ecosystems.

Since a large part of the available freshwater is stored in ice and snow, this melting process will

have a wide variety of further impacts.

2. 4. Crops

Wheat, maize, rice and soybeans are all crops that have been shown to be negatively

impacted by climate change.53 Although it is possible that crops might benefit from an increase of

carbon dioxide in the atmosphere,54 these benefits will be certainly outdone by adverse effects from

a rise in temperature and availability of water for irrigation purposes.55 As a consequence of 230

significantly reduced crop yields, climate change will have a major impact on food security.56

2. 5. Fisheries

Increasing water temperature and resulting acidification will adversely affect diversity of

marine animal populations and coral reefs.57 This in turn will translate into a decrease in maximum

catch potential around populated areas with a strong dependency on fisheries.58 It appears however

that more studies are needed to create clarity on this point.59

2. 6. Disease

A resulting effect from increase in temperatures, floods, droughts, storms and heat waves is the 240

alteration in disease vectors.60 Although not solely induced as a result of climate change, malaria is

52 BEYANI, C., Climate Change and Internal Displacement, Washington The Brookings Institution, October 2014, 5; OFFICE OF

THE HIGH COMMISSIONER FOR HUMAN RIGHTS, Report of the Office of the United Nations High Commissioner for Human Rights

on the Relationship between Climate Change and Human Rights, A/HRC/10/61, 15 January 2009, 5. 53 INTERGOVERNMENTAL PANEL ON CLIMATE CHANGE, Climate Change 2014: Synthesis Report. Contribution of Working


51. 54 GERMAN ADVISORY COUNCIL ON GLOBAL CHANGE, Climate Change as a Security Risk, Earthscan, London, 2008, 66. 55 Ibid., 67. 56 INTERGOVERNMENTAL PANEL ON CLIMATE CHANGE, Climate Change 2014: Synthesis Report. Contribution of Working


69. 57 Ibid., 67. 58 Ibid., 68; GERMAN ADVISORY COUNCIL ON GLOBAL CHANGE, Climate Change as a Security Risk, Earthscan, London, 2008,

71. 59 Ibid., 70. 60 JODOIN, S. and LOFTS, K., Economic, Social and Cultural Rights and Climate Change: A Legal Reference Guide, Centre for

International Sustainable Development Law, New Haven, 2013, 5; KOLMANNSKOG, V. O., Future Floods of Refugees: a

Comment on Climate Change, Conflict and Forced Migration, Norwegian Refugee Council, Oslo, April 2008, 16; MCADAM,

25

one example of how a disease will spread further because of expansion of its habitat.61 On some

scale, the change already appears to be happening.62 Other examples of diseases that could thrive

on climate change are dengue,63 and more recently the Zika virus.64

J. and LIMON, M., Human Rights, Climate Change and Cross-Border Displacement: the role of the international human rights

community in contributing to effective and just solutions, Policy Report, Universal Rights Group, August 2015, 7. 61 GERMAN ADVISORY COUNCIL ON GLOBAL CHANGE, Climate Change as a Security Risk, Earthscan, London, 2008, 72. 62 INTERGOVERNMENTAL PANEL ON CLIMATE CHANGE, Climate Change 2014: Synthesis Report. Contribution of Working


51. 63 WORLD HEALTH ORGANIZATION, “Better environmental management for control of dengue”, Health and Environment

Linkages Policy Series 2016, http://www.who.int/heli/risks/vectors/denguecontrol/en/. 64 MERCER, G., “The linkage between Zika and climate change”, The Atlantic 24 February 2016,

http://www.theatlantic.com/health/archive/2016/02/zika-and-climate-change/470643/.

http://www.who.int/heli/risks/vectors/denguecontrol/en/

http://www.theatlantic.com/health/archive/2016/02/zika-and-climate-change/470643/

26

II. Human Rights under Threat

1. An environmental context

1. 1. The environment and attention to human rights 250

When the cornerstones of international human rights where conceived, beginning with the

Universal Declaration of Human Rights (UDHR),65 climate change was not at the forefront of

international concern.66 The UDHR was principally adopted with the atrocities and horrific events

of World War II in mind. Even at the time of completing the International Bill of Rights67 with the

acceptance of the International Covenant on Civil and Political Rights (ICCPR)68 and the

International Covenant on Economic, Social and Cultural Rights (ICESCR)69, concerns about the

environment where not present on the international agenda. The Stockholm Declaration adopted at

the United Nations Conference on the Human Environment dates from after these core international

human rights treaties.70 The first time we find a reference linking our human environment to basic

human rights, and even explicitly the right to life is in the Stockholm Declaration.71 The Stockholm 260

Declaration is not considered binding in international law, since it was adopted as a conference

resolution and not as a treaty. Nonetheless, it contains a number of declaratory principles of

international law. It has provided us with a guiding tool in environmental matters on the

international stage because of various conferences and successive treaty adoptions.72 However,

neither the United Nations Conference on Environment and Development (UNCED) in its Rio

Declaration73 nor the UNFCCC74 succeeded in expressly referring to human rights. Although this

65 Universal Declaration of Human Rights, Paris, 10 December 1948, General Assembly Resolution 217 A (III). 66 NASER, M. M., “Climate Change and Forced Displacement: Obligation of States under International Human Rights Law”,

Sri Lanka Journal of International Law 2010, vol. 22 no. 2, 119. 67 This is the core of international human rights protection instruments: WOUTERS, C. W., International Legal Standards for the

Protection from Refoulement, Intersentia Publishers, Mortsel, 2009, 361. 68 International Covenant on Civil and Political Rights, New York, 16 December 1966, United Nations Treaty Series no. 999,

entered into force on 23 March 1976. 69 International Covenant on Economic, Social and Cultural Rights, New York, 16 December 1966, United Nations Treaty

Series no. 998, entered into force on 3 January 1976. 70 Declaration of the United Nations Conference on the Human Environment (16 June 1972), Stockholm, U.N. Doc.

A/Conf.48/14/Rev. 1. 71 Ibid., proclamation 1 and principle I. 72 ADEDE, A. O., “International Environmental Law from Stockholm to Rio”, Environmental Policy and Law 1992, vol. 22/2,

90; PANJABI, R. K. L., “From Stockholm to Rio: A Comparison of the Declaratory Principles of International Environmental

Law”, Denver Journal of International Law and Policy 1992-1993, vol. 21:2, 220; WIRTH, D. A., “The Rio Declaration on

Environment and Development: Two Steps Forward and one back, or vice versa?”, Georgia Law Review 1995, vol. 29, 300. 73 Declaration of the United Nations Conference on Environment and Development (14 June 1992), Rio de Janeiro, UN Doc.

A/CONF.151/26 (vol. I). 74 United Nations Framework Convention on Climate Change, New York, 9 May 1992, United Nations Treaty Series no. 1771,

entered into force on 21 March 1994.

27

does not mean states were not mindful of them, as we could infer from the Rio Declaration’s

preamble.75

Yet the fact remains that the core human rights treaties where not created with full concerns

about possible impacts from the environment on humans in mind, let alone possible impacts from 270

climate change. Furthermore, there is no explicit reference to climate change in any hard law

instrument protecting human rights today.76 In the near future this might change because the

preamble of the adopted text of the Paris Agreement includes a clear reference to human rights.77

The practical effects of this inclusion appear limited, because of its aspirational character. This does

not mean that human rights cannot be applied to climate change from the onset. It amounts to a

need for clarification and application of human rights in the context of climate change.

1. 2. The inapplicability of human rights in “climate change mitigation litigation”

The Inuit Circumpolar Conference filed a petition to the Inter-American Commission on

Human Rights (IACHR) in 2005.78 On behalf of the Canadian and American Inuit it claimed that 280

their human rights were violated by the United States of America because of its greenhouse gas

contributions to climate change and the lack of action undertaken by the USA to mitigate these

contributions. The claims brought forward by the Inuit Circumpolar Conference relied on the

American Declaration of the Rights and Duties of Man,79 applied in the context of other

international norms and principles80 since the United States have not ratified the American

Convention on Human Rights.81 Some of the rights invoked by the Inuit are the right to life, the

right to residence, the right to property, the right to inviolability of the home, the right to health and

the right to culture.82 The IACHR rejected the petition, declaring it inadmissible,83 because the

75 The preamble refers to the Stockholm Declaration. 76 WILLCOX, S., “A Rising Tide: the Implications of Climate Change Inundation for Human Rights and State Sovereignty”,

Essex Human Rights Law Review 2012, vol. 9, no. 1, 12. 77 Adoption of the Paris Agreement, Decision of the Conference of Parties to the United Nations Framework Convention on

Climate Change on its 21st Session (30 November 2015), Paris, FCCC/CP/2015/L.9/Rev. 78 INUIT CIRCUMPOLAR CONFERENCE, Petition to the Inter-American Commission on Human Rights Seeking Relief from

Violations Resulting from Global Warming Caused by Acts and Omissions of the United States,7 December 2005, 175. 79 American Declaration of the Rights and Duties of Man, Bogotá, 9th international conference of American States, April 1948. 80 INUIT CIRCUMPOLAR CONFERENCE, Petition to the Inter-American Commission on Human Rights Seeking Relief from

Violations Resulting from Global Warming Caused by Acts and Omissions of the United States, 7 December 2005, 96. 81 American Convention on Human Rights, San Jose, 22 November 1969, entered into force on 18 July 1978; GONZALEZ, C.,

“Environmental Justice, Human Rights and the Global South”, Santa Clara Journal of International Law 2015, 180; for

ratification status http://www.oas.org/dil/treaties_B-32_American_Convention_on_Human_Rights_sign.htm. 82 Respectively Articles I, VIII, IX, XI, XIV of the American Declaration of the Rights and Duties of Man, Bogotá, 9th

international conference of American States, April 1948; INUIT CIRCUMPOLAR CONFERENCE, Petition to the Inter-American

Commission on Human Rights Seeking Relief from Violations Resulting from Global Warming Caused by Acts and Omissions

of the United States, 7 December 2005, 112. 83 NASER, M. M., “Climate Change and Forced Displacement: Obligation of States under International Human Rights Law”,

Sri Lanka Journal of International Law 2010, vol. 22 no. 2, 151.

http://www.oas.org/dil/treaties_B-32_American_Convention_on_Human_Rights_sign.htm

28

evidence at hand did not enable the Commission to sufficiently establish any violations resulting

from the United States’ actions or omissions.84 290

Although ultimately unsuccessful in achieving its desired goal, the Inuit Petition managed

to draw attention to a few pressing issues in linking climate change, human rights and litigation. It

provided a necessary human face to some of the ongoing discussions,85 the lack of which was

demonstrated by the attention provided to the threat of extinction of polar bears, while it is the same

threat that surrounds the Inuit people.86 Since the petitioners were Canadian and American, there

were some legal questions surrounding the “diagonal rights” of the Canadian petitioners.87 As for

those petitioners, the question was raised regarding the harm they suffered caused by another state

than their own and their possibility to claim remedies from that other state,88 thereby calling into

question the so-called extraterritorial obligations of the United Stated of America. According to

BOYLE, giving human rights an extraterritorial dimension in environmental cases should not 300

generally be problematic. Climate change however, is of a different nature. Due to its truly global

scope, it has too many causes and responsible actors.89

Recently, in a domestic Dutch case a successful attempt was made at judicially sanctioning

a state for not sufficiently mitigating its greenhouse gas emissions.90 The plaintiff, Urgenda, in part

made a claim based on Articles 2 and 8 of the European Convention for the Protection of Human

Rights and Fundamental Freedoms (ECHR).91 However, no violation of these human rights was

established since the court did not consider Urgenda to have the appropriate standing for this

specific part of their claim.92 In the Urgenda case, although be it a potential landmark case in

domestic climate change litigation or beyond,93 no violation of human rights by climate change was

84 GONZALEZ, C., “Environmental Justice, Human Rights and the Global South”, Santa Clara Journal of International Law

2015, 180. 85 Ibid. 193; ATAPATTU, S., “Global Climate Change: Can Human Rights (and Human Beings) Survive this Onslaught?”,

Colorado Journal of International Environmental Law & Policy 2008-2009, vol. 20:1, 67. 86 Ibid., 58. 87 GONZALEZ, C., “Environmental Justice, Human Rights and the Global South”, Santa Clara Journal of International Law

2015, 179; We will elaborate on the notion of diagonal rights later at Part IV, 3. 2. 88 Knox, J., “Diagonal Environmental Rights”, in Gibney, M. and Skogly, S., Universal Human Rights and Extraterritorial

Obligations, Philadelphia, University of Pennsylvania Press, 2010, 148 and 161. 89 BOYLE, A., “Human Rights and the Environment: Where Next?”, The European Journal of International Law 2012, vol. 23,

no. 3, 642. 90 Tribunal of The Hague 24 June 2015, C/09/456689 / HA ZA 13-1396, Urgenda v. Staat der Nederlanden . 91 European Convention for the Protection of Human Rights and Fundamental Freedoms as amended by Protocols Nos. 11 and

14, Rome, 4 November 1950, European Treaty Series no. 005, entered into force on 3 September 1953. 92 Tribunal of The Hague 24 June 2015, C/09/456689 / HA ZA 13-1396, Urgenda v. Staat der Nederlanden, considerations

4.45 and 4.46. 93 In Belgium, a similar case has been instituted coined as “Klimaatzaak”, see: HOWARD, E., “Hague climate change judgement

could inspire a global civil movement”, The Guardian 24 June 2015,

http://www.theguardian.com/environment/2015/jun/24/hague-climate-change-judgement-could-inspire-a-global-civil-

movement; On 26 April 2016, Flemish Minister Schauvliege announced an appeal to the Court of Cassation, based on the

wrong language of the procedures. The Flemish Government would appear to rather want to stall the case, see: BAUWENS, D.,

“Vlaamse regering wil Klimaatzaak begraven of basis van Taalwet”, De Morgen 26 April 2016,

http://www.theguardian.com/environment/2015/jun/24/hague-climate-change-judgement-could-inspire-a-global-civil-movement


29

established. While it is received as a milestone in climate change mitigation litigation, it will likely 310

have far less importance with regards to human rights and climate change. The outcome of this legal

battle is not yet final, since the Dutch government has lodged an appeal.94

So far, the scarcity of success in both domestic and international proceedings95 of forcing

states to take mitigating actions and the absence of success in linking climate change and human

rights violations does not provide us with strong points of reference.96 Today, we see that there is

no such thing as climate change jurisprudence, since in most cases the approach has been that it is

an environmental issue.97 Furthermore, there is not much to work with what concerns international

human rights law and climate change. Recently however, the concern of their interconnectivity has

been given more attention in academic literature98 and by intergovernmental organisations.99

Climate change essentially and primarily affects our environment, as we have previously seen.100 320

The environment’s influence on human rights has been applied extensively globally,101 and hence

will give us a more apt base when examining how climate change implicates the enjoyment of

human rights.

2. Civil rights

2. 1. The right to life

The right to life appears as the most essential and fundamental of all human rights. The right

not to be arbitrarily deprived of life is enshrined in the Universal Declaration on Human Rights,102

http://www.demorgen.be/binnenland/vlaamse-regering-wil-klimaatzaak-begraven-op-basis-van-taalwet-b857d4b9/; For more

information on “De Klimaatzaak”, see: http://klimaatzaak.eu/. 94 VERLAAN, J., “Kabinet vecht vonnis aan in Klimaatzaak Urgenda”, NRC Handelsblad 24 September 2015,

http://www.nrc.nl/nieuws/2015/09/24/het-kabinet-vecht-het-vonnis-aan-in-de-klimaatzaak. 95 Tuvalu has threatened to sue before the ICJ, but so far has not been able to push through, see JACOBS, R., E., “Treading deep

waters: substantive law issues in Tuvalu’s threat to sue the United States in the International Court of Justice”, Pacific Rim

Law & Policy Journal 2005, vol. 14 no. 1, 104. 96 In Nigeria however there is a case which unfortunately had no follow-up, therefore it remained largely unsuccessful, see

Federal High Court of Nigeria (Benin Judicial Division) 14 November 2005, FHC.B.CS/53/05, Gbemre v. Shell Petroleum

Development Company Nigeria; UKALA, E., “Gas Flaring in Nigeria’s Niger Delta: Failed Promises and Reviving Community

Voices”, Washington & Lee Journal of Energy, Climate & Environment 2011, vol. 2, 109. 97 WILENSKY, M., Climate Change in the Courts: An Assessment of Non-US Climate Litigation, paper, Sabin Centre for Climate

Law, Columbia Law School, February 2015, 41. 98 AMINZADEH, S.C., “A Moral Imperative: The Human Rights Implications of Climate Change”, Hasting International &

Comparative Law Review 2006-2007, vol. 30:2, 231; VON DOUSSA, J., CORKERY, A. and CHARTRES, R., “Human Rights and

Climate Change”, Australian International Law Journal 2007, vol. 14, 161. 99OFFICE OF THE HIGH COMMISSIONER FOR HUMAN RIGHTS, Report of the Office of the United Nations High Commissioner for

Human Rights on the Relationship between Climate Change and Human Rights, A/HRC/10/61, 15 January 2009, 32; KNOX,

J., “Linking Human Rights and Climate Change at the United Nations”, Harvard Environmental Law Review 2009, vol. 33,

477. 100 See, Part I 2. 101 KNOX, J., “Diagonal Environmental Rights”, in GIBNEY, M. and SKOGLY, S., Universal Human Rights and Extraterritorial

Obligations, Philadelphia, University of Pennsylvania Press, 2010, 148. 102Article 3 of the Universal Declaration of Human Rights, Paris, 10 December 1948, General Assembly Resolution 217 A (III)

http://www.demorgen.be/binnenland/vlaamse-regering-wil-klimaatzaak-begraven-op-basis-van-taalwet-b857d4b9/

http://klimaatzaak.eu/

http://www.nrc.nl/nieuws/2015/09/24/het-kabinet-vecht-het-vonnis-aan-in-de-klimaatzaak

30

and the International Covenant on Civil and Political Rights.103 At the time of its conception, the

UDHR was a United Nations General Assembly Resolution and by itself not considered to have a 330

legally binding force, although through the years it was quickly raised to the status of customary

international law.104 Furthermore, it is found in many regional human rights instruments such as the

American Declaration on the Rights and Duties of Man,105 which predates the UDHR,106 the

American Convention on Human Rights,107 the African Charter on Human and Peoples’ Rights,108

and the European Convention for the Protection of Human Rights and Fundamental Freedoms.109

With regard to its status in international human rights law it should be noted that neither

under the ICCPR110, the ACHR111 or the ECHR112 any limitations, derogations, or reservations are

permitted to the right to life. There is a strong case for this right to be a peremptory norm of

international law or jus cogens as defined by the Vienna Convention on the Law of Treaties.113 This

would means that it would be a norm of international law to which no state can claim to be a 340

persistent objector, and that every actor is bound by its content even if not part to one of the treaties

that contains this right, and that no norm of customary international law can justify a violation of

this right. By itself however, the impossibility to limit, derogate, or reserve does not make a right a

peremptory norm of international law,114 although it can be a good indicator of it. The Inter-

American Commission on Human Rights has accepted the right to life as a norm of jus cogens,115

although it did so quite summarily without a very thorough analysis it is possible that it found the

right to life part of jus cogens, at least in a strict way. The Human Rights Committee has since long

103 Article 6(1) of the International Covenant on Civil and Political Rights, New York, 16 December 1966, United Nations

Treaty Series no. 999, entered into force on 23 March 1976. 104 This does not appear to be a matter of discussion, see: H. HANNUM, The Status of the Universal Declaration of Human Rights

on National and International law, Georgia Journal of International & Comparative Law 1995-1996, vol. 25, 287-397. 105 Article I of the American Declaration of the Rights and Duties of Man, Bogotá, 9th international conference of American

States, April 1948. 106 Again this is a declaration by states, it seems to have acquired the status of customary international law. 107 Article 4(1) of the American Convention on Human Rights, San Jose, 22 November 1969, entered into force on 18 July

1978. 108 Article 4 of the African (Banjul) Charter on Human and Peoples’ Rights, Nairobi, 27 June 1981, United Nations Treaty

Series no. 1520, entered into force on 21 October 1986. 109 Article 2(1) of the European Convention for the Protection of Human Rights and Fundamental Freedoms as amended by

Protocols Nos. 11 and 14, Rome, 4 November 1950, European Treaty Series no. 005, entered into force on 3 September 1953; 110 Article 4(1) and (2) of the International Covenant on Civil and Political Rights, New York, 16 December 1966, United

Nations Treaty Series no. 999, entered into force on 23 March 1976. 111 Article 27(1) and (2) of the American Convention on Human Rights, San Jose, 22 November 1969, entered into force on 18

July 1978. 112 Article 15(2) of the European Convention for the Protection of Human Rights and Fundamental Freedoms as amended by

Protocols Nos. 11 and 14, Rome, 4 November 1950, European Treaty Series no. 005, entered into force on 3 September 1953; 113 Article 53 of the Vienna Convention on the Law of Treaties, Vienna, 23 May 1969, United Nations Treaty series no. 1155,

entered into force on 27 January 1980. 114 HUMAN RIGHTS COMMITTEE, General Comment no. 24: Issues relating to reservations made upon ratification or accession

to the Covenant or the Optional Protocols thereto, or in relation to declarations under Article 41 of the Covenant, 11 November

1994, paragraph 10; HUMAN RIGHTS COMMITTEE, General Comment no. 29: States of Emergency (Article 4), 24 July 2001,

paragraph 11. 115 Inter-American Commission on Human Rights, Victims of the Tugboat “13 de Marzo” v. Cuba, 16 October 1996, report

no. 47/96, case 11.436, paragraph 79; Also in the U.S. see ROSENCRANZ, A. and CAMPBELL, R., “Foreign Environmental and

Human Rights Suits against U.S. Corporations in U.S. Courts”, Stanford Environmental Law Journal 1999, vol. 18, 151.

31

warned against a too narrow interpretation and that the right requires a state to take positive

measures in order to fulfil its duty to protect, specifically highlighting the measures to increase life

expectancy, malnutrition and epidemics.116 We cannot decisively put forward the exact status of the 350

right to life in international law, but it stands as a very firm and basic norm of international human

rights law.

Across the board, climate change is likely to affect the lives of many in a lethal way.117 The

most obvious candidate to cause a massive loss of life is the risk of increased sudden disasters,118

but to some extent all the predicted consequences of climate change, some more indirect than others,

could cause loss of life for human beings. Hence, the fulfilment of this right is coincidental with

many other, more specifically outlined rights.119 Heat waves cause more heat-related deaths, floods

may cause an increase in drownings and a spread of diseases with mortal consequences. The

reduction of freshwater in ice storage, these are glaciers and ice caps on which many rely, or general

access for food production cause death by dehydration and famine. 360

Not only the Inuit have made an example of their concerns when it to comes climate change

and their fears of their right to life being infringed,120 but also the group of Small Island Developing

States (SIDS). The SIDS drafted the Malé Declaration in order to voice their common stance on the

concerns of climate change.121 Apart from putting their ordeal on the international agenda, these

examples have made little immediate contribution to substantially clarifying the relationship

between the right to life and where obligations lie.

Regional human rights bodies have had the opportunity to elaborate on the right to life in

an environmental context. The construction of a highway through the Brazilian Amazon rainforest

and the discovery and subsequent authorisation granted by the Brazilian Government to exploit the

mineral resources in their traditional lands have had a grave effect on the indigenous peoples of the 370

region. In 1980, the Yanomami Indians filed a petition against the Government of Brazil describing

the impacts of Brazilian policy on their lives and culture. They stated that the ongoing development

116 HUMAN RIGHTS COMMITTEE, General Comment no. 6: Article 6 (Right to Life), 16th session, 1982, paragraphs 1 and 5. 117 MCADAM, J. and LIMON, M., Human Rights, Climate Change and Cross-Border Displacement: the role of the international

human rights community in contributing to effective and just solutions, Policy Report, Universal Rights Group, August 2015,

7. 118 OFFICE OF THE HIGH COMMISSIONER FOR HUMAN RIGHTS, Understanding Human Rights and Climate Change, submission

of the Office of the High Commissioner for Human Rights to the 21st Conference of Parties to the United Nations Framework

Convention on Climate Change, 26 November 2015, 14. 119 OFFICE OF THE HIGH COMMISSIONER FOR HUMAN RIGHTS, Report of the Office of the United Nations High Commissioner for

Human Rights on the Relationship between Climate Change and Human Rights, A/HRC/10/61, 15 January 2009, paragraph

24. 120 INUIT CIRCUMPOLAR CONFERENCE, Petition to the Inter-American Commission on Human Rights Seeking Relief from

Violations Resulting from Global Warming Caused by Acts and Omissions of the United States, December 7 2005, 89. 121 Declaration of the Small Island Developing States (14 November 2007), Malé Declaration on the Human Dimension of

Global Climate Change, Malé, 3.

32

caused the disappearance and deaths of hundreds of Indians.122 This was accepted by the IACHR

which subsequently found that, among violations of other rights, the Yanomami Indians’ right to

life was violated due to the lack of effective measures taken by the Brazilian Government to prevent

environmental degradation,123 and that preventive measure should be taken to protect the lives of

the Indians.124

The exploitation of a metallurgical complex at La Oroya in Peru, first by the Peruvian State

and later by an US firm, and the lack of the Peruvian Government to ensure compliance with their

own environmental and health regulation, has been petitioned before the IACHR too.125 The novelty 380

was that it is the inaugural allegation admitted by the IACHR that links a violation of the right to

life by the activities of a private company.126 In finding the petition admissible, the IACHR

considered that the deaths caused by toxic interference into the environment could prove to be a

violation of the right to life under the ACHR.127

In its case-law with regard to Article 2(1) ECHR, the European Court of Human Rights

(ECtHR) established that it not only entails a negative obligation but also an obligation to

appropriately safeguard the lives of those within its jurisdiction, when the environment might have

caused harm to a person.128 In the L.C.B. v. UK case, environmental radiation, in relation to nuclear

testing and a failure to monitor health of a conceived child during its lifetime did not lead to a

conclusion of violation because of a lack of established causality between a parent’s exposure and 390

the disease,129 but the ECtHR nonetheless took the opportunity to hold that a positive obligation

exists with regards to the ECHR’s right to life.

The continued operation of a rubbish tip which caused 39 people to die during an accident

was subject of another case alleging violation of the right to life under Article 2 ECHR in Öneryildiz

v. Turkey.130 The ECtHR again reaffirmed the state’s responsibility to positively safeguard the right

to life.131 More importantly in this instance, the state was well aware of the threat that constituted

122 Inter-American Human Rights Commission, [on behalf of Yanomami] v. Brazil, resolution no. 12/85, 5 March 1985, case

no. 7615, 2 at no. 3(e). 123 ATAPATTU, S., “The Right to a Healthy Life or the Right to Die Polluted?: The Emergence of a Human Right to a Healthy

Environment Under International Law”, Tulane Environmental Law Journal 2002-2003, vol. 16, 100. 124 Inter-American Human Rights Commission, [on behalf of Yanomami] v. Brazil, resolution no. 12/85, 5 March 1985, case

no. 7615, 8 at no. 1 and 3(a). 125 Inter-American Human Rights Commission, Community of La Oroya v. Peru, admissibility, 5 August 2009, report no.

76/09, petition no. 1473-06. 126 SPIELER, P., “The La Oroya Case: the Relationship between Environmental Degradation and Human Rights Violations”,

Human Rights Brief 2010, no.1, 19. 127 Inter-American Human Rights Commission, Community of La Oroya v. Peru, admissibility, 5 August 2009, report no.

76/09, petition no. 1473-06, paragraph 74. 128 European Court of Human Rights, L. C. B. v. United Kingdom, judgment, 9 June 1998, application no. 23413/94, paragraph

36. 129 Ibid., 39. 130 European Court of Human Rights, Öneryildiz v. Turkey, judgment [GC], 30 November 2005, application no. 48939/99. 131 Ibid., paragraph 89.

33

the dangerous activity which caused the accident.132 Since the steps taken to prevent the accident

from occurring were inappropriate, the Court found that the right to life of the deceased relatives of

the applicant had been violated.

The infringement of the right to life by a lack of addressing dangerous activities, although 400

possible from a pollution perspective, could hypothetically lead to a situation in which

anthropogenic causes of climate change might be addressed. The lack of scientific causality and a

clear connection to an individual loss of life render this outcome quite unlikely. Furthermore, within

the framework of international law there is some implicit legitimacy for these activities, such as the

common but differentiated responsibility, and even beyond in the right to development.133 This

legitimacy cannot exempt states from causing loss of life since the right to life is a norm of

international law not allowing derogations, exceptions or limitations. It remains as we have

discussed earlier,134 that there are many obstacles that prevent us from taking action against causes

of climate change through international human rights law.

When a sudden natural disaster causes deaths or is likely to, a state can be compelled to act 410

as the ECtHR held in Budayeva and Others v. Russia.135 In this case a Caucasian village was hit by

recurring mudslides between 18 and 25 July 2000 causing the death of at least 8 persons. Within

the scope of environmental matters, the positive obligations on a state largely overlap between the

safeguarding of a right to life and the right to private and family life.136 Therefore the ECtHR’s

existing case-law with respect to private and family life becomes applicable in the context of natural

disasters.137 Although states enjoy a wide margin of appreciation in these matters especially since

natural disasters are beyond human control according to the Court,138 the fact that the region was

known to be susceptible to mudslides and that the impact of mudslides can be mitigated through the

132 Ibid., paragraph 98. 133 The right to development is a collective right found for example in the African Charter and the Declaration on the Right to

Development; Article 22 of the African (Banjul) Charter on Human and Peoples’ Rights, Nairobi, 27 June 1981, United Nations

Treaty Series no. 1520, entered into force on 21 October 1986; Resolution 41/128 of the United Nations General Assembly (4

December 1986), Declaration on the Right to Development, UN Doc. A/RES/41/128(1986); see also Principle 3 of the

Declaration of the United Nations Conference on Environment and Development (14 June 1992), Rio de Janeiro, UN Doc.

A/CONF.151/26 (vol. I) (1992); N.B. so far development and mitigation have run counter to each other, as developing has

meant an increase in emissions, see HALL, M. J. and WEISS, D. C., “Avoiding Adaptation Apartheid: Climate Change Adaptation

and Human Rights Law”, Yale Journal of International Law 2012, vol. 37, 323. 134 See, Part II 1. 2. 135 European Court of Human Rights, Budayeva and Others v. Russia, judgment, 20 March 2008, applications nos. 15339/02,

21166/02, 20058/02, 11673/02 and 15343/02. 136 Article 8 of the European Convention for the Protection of Human Rights and Fundamental Freedoms as amended by

Protocols Nos. 11 and 14, Rome, 4 November 1950, European Treaty Series no. 005, entered into force on 3 September 1953 137 European Court of Human Rights, Budayeva and Others v. Russia, judgment, 20 March 2008, applications nos. 15339/02,

21166/02, 20058/02, 11673/02 and 15343/02, paragraph 133. 138 Ibid., paragraph 135.

34

adoption and implementation of adequate measures, which was not done, caused the violation of

the applicants’ right to life.139 420

When appreciating the importance of this case however, we should proceed with caution.

The Budayeva case could have similar bearings on the situations of sudden, recurring or likely

occurring disasters which one could be protected from by government action such as flooding but

for genuine highly exceptional events or slowly creeping environmental changes as a result of

climate change this judgment will likely have less relevance.

2. 2. The right to privacy and family life

The rights to private life or sometimes referred to as the right to privacy and the right to

family life are somewhat intertwined and return implicitly in articles containing the one or the other

right. This is a right that is universally recognised with some variation.140 In the ECHR it is affirmed 430

that “[e]veryone has the right to respect for his private and family life, his home and his

correspondence.”141

Households will as a result of deteriorated living conditions come under more pressure as

they struggle to survive.142 The change in environment and increase of difficult to cope with weather

events will affect the peaceful enjoyment of persons’ lives and families to varying degrees. As

coastal regions erode, some persons will have to leave their homes or be resettled with the resulting

threat to family and private lives.143

In the previous section we made a short reference to the ECtHR’s case-law with regard to

Article 8 ECHR. As we analyse some of the case-law under the right to private and family life, it

should be noted that because of the Court’s vision towards both rights, some theories will be 440

mutually enforcing each other in substance.

139 Ibid., paragraphs 137 and 159. 140 Article 12 of the Universal Declaration of Human Rights, Paris, 10 December 1948, General Assembly Resolution 217 A

(III); Article 17 of the International Covenant on Civil and Political Rights, New York, 16 December 1966, United Nations

Treaty Series no. 999, entered into force on 23 March 1976; Article V of the American Declaration of the Rights and Duties of

Man, Bogotá, 9th international conference of American States, April 1948; Article 11 of the American Convention on Human

Rights, San Jose, 22 November 1969, entered into force on 18 July 1978; Article 18(1) of the African (Banjul) Charter on

Human and Peoples’ Rights, Nairobi, 27 June 1981, United Nations Treaty Series no. 1520, entered into force on 21 October

1986. 141 Article 8(1) of the European Convention for the Protection of Human Rights and Fundamental Freedoms as amended by

Protocols Nos. 11 and 14, Rome, 4 November 1950, European Treaty Series no. 005, entered into force on 3 September 1953; 142 JODOIN, S. and LOFTS, K., Economic, Social and Cultural Rights and Climate Change: A Legal Reference Guide, Centre for

International Sustainable Development Law, New Haven, 2013, 50. 143 NASER, M. M., “Climate Change and Forced Displacement: Obligation of States under International Human Rights Law”,

Sri Lanka Journal of International Law 2010, vol. 22 no. 2, 125-126.

35

A Spanish family that lived in the vicinity of a waste treatment plant and saw itself having

to move after some years of serious discomfort by pollution suffered violation of their private and

family life under Article 8 ECHR.144 In the Lopez Ostra case, the ECtHR clarified that, although

the Spanish Government saw this as a necessary condition, the environmental discomfort suffered

by the family did not necessarily have to pose a clear danger to their health in order to violate their

right to family and private life.145 Conversely in the case of Fadeyeva v. Russia,146 the Court

reaffirmed that since under the ECHR no right to natural preservation as such exists, it is not because

an environmental deterioration occurs, Article 8 ECHR is automatically violated.147 Always

therefore must there be a direct effect on the private or family life, cumulative with a certain degree 450

of severity depending on all circumstances, including the general environmental context.148 The

positive obligation on the state to take measures preventing these infringements from occurring

again comes with a margin of appreciation. Both when interfering under Article 8(2) or when

preventing violations under Article 8(1) ECHR the State must strike a fair balance between the

community and the individual.149

The flexibility allowed for under Article 8 ECHR does not mean that interference with this

right should not be minimised. However, considering the relative lack of judgments concerning

natural disasters or other events more closely related to those caused by climate change, it remains

a difficult question to address when exactly the right to family and private life is compromised due

to environmental deterioration. The theory remains that hypothetically it is possible. 460

2. 3. The right to property

The right to property is declared in the UDHR,150 but not in the ICCPR or the ICESCR. It

appears in differing wordings throughout regional human rights treaties, such as the First Protocol

144 European Court of Human Rights, Lopez Ostra v. Spain, judgment, 9 December 1994, application no. 16798/90. 145 Ibid., paragraph 51. 146 European Court of Human Rights, Fadeyeva v. Russia, 9 June 2005, judgment, application no. 55723/00. 147 Ibid., paragraph 68. 148 Ibid., paragraph 68-69. 149 European Court of Human Rights, Hatton and Others v. United Kingdom, judgment [GC], 8 July 2003, application no.

36022/97, paragraph 98. 150 Article 17 of the Universal Declaration of Human Rights, Paris, 10 December 1948, General Assembly Resolution 217 A

(III).

36

to the ECHR (Protocol 1),151 the ACHR152 and the African Charter.153 Relative to the previously

treated human rights provisions it immediately becomes clear that the right to property, from its

simple statement in the UDHR to its more elaborate version in Protocol 1, allows for many forms

of limitations. The idiosyncratic way in which this right is protected by treaty provisions makes it

difficult to put forward a uniform formulation. 470

The deprivation of properties by flooding and sea level rise or the lack of available water

for arable lands, causing people to leave their possessions behind because they have been rendered

worthless or because it has become physically impossible to enjoy their effective use, would at first

sight appear to be an intrusion into victims’ right to property. However, we should proceed with

caution and establish the content of the right to property before coming to a faulty assumption.

Although Article 1 Protocol 1 is generally perceived as a negative obligation , in Öneryildiz

v. Turkey, the ECtHR firmly held that also here exists a positive obligation to take steps as was the

case for the violation of the right to life.154

However in the Budayeva case, the Court drew a distinction to the scope of the positive

obligation in Article 1 Protocol 1, since natural disasters are beyond human control.155 This means 480

that the positive obligation of the state to protect the absolute right to life, which means it should

do all within its power to handle disaster relief, is not identical to the one that it should protect the

right to peaceful enjoyment property, which only requires that it acts according to what is reasonable

given the circumstances. Consequently the margin of appreciation for a state is much wider.156

Thus, case-law confirms that the right to property could be a distinctly weak right in relation

to other established treaty rights,157 although not in an unreasonable manner. After all priority

should lie with guaranteeing the right to life, and not the right to property. Too broad limitations

between scopes of obligations in theory are slippery slopes. However, in scenarios where people

151 Article 1 of Protocol 1 to the European Convention for the Protection of Human Rights and Fundamental Freedoms, Paris,

20 March 1952, European Treaty Series no. 009, entered into force on 18 May 1954. 152 Article 21 of the American Convention on Human Rights, San Jose, 22 November 1969, entered into force on 18 July 1978;

Article XXIII of the American Declaration of the Rights and Duties of Man, Bogotá, 9th international conference of American

States, April 1948. 153 Article 14 of the African (Banjul) Charter on Human and Peoples’ Rights, Nairobi, 27 June 1981, United Nations Treaty

Series no. 1520, entered into force on 21 October 1986. 154 European Court of Human Rights, Öneryildiz v. Turkey, judgment [GC], 30 November 2005, application no. 48939/99,

paragraph 136. 155 European Court of Human Rights, Budayeva and Others v. Russia, judgment, 20 March 2008, applications nos. 15339/02,

21166/02, 20058/02, 11673/02 and 15343/02, paragraph 174. 156 Ibid., paragraph 175. 157 AMINZADEH, S.C., “A Moral Imperative: The Human Rights Implications of Climate Change”, Hasting International &

Comparative Law Review 2006-2007, vol. 30:2, 249.

37

lose property or homes as a result of natural disasters there could be a way to have this remedied by

the right to housing. 490

3. Socio-economic rights

3. 1. The right to health

The right to health is one of the broadest second-generation human rights. The International

Covenant on Economic, Social and Cultural Rights (ICESCR) formulates the right to health as “the

right of everyone to the enjoyment of the highest attainable standard of physical and mental

health”.158 In this sense it returns in the UDHR,159 the African Charter,160 the American Declaration

of the Rights and Duties of Man,161 the Additional Protocol to the American Convention on Human

Rights,162 and the European Social charter.163

In principle, the UNFCCC recognises the impact of climate change on human health.164 500

Worldwide, environments will become increasingly less able to sustain an adequate standard of

health without adaptive measures as they suffer under the planet’s warming. The result this will

have in identified cases such as increased diseases in relation to a stable climate are an undisputed

depiction of how this will be affecting our health in the future.165 In the case of regions relying on

food production for example, rising malnutrition will not only affect other rights more directly, but

cause increases in health risks ultimately.166

158 Article 12(1) of the International Covenant on Economic, Social and Cultural Rights, New York, 16 December 1966, United

Nations Treaty Series no. 998, entered into force on 3 January 1976. 159 Article 25 of the Universal Declaration of Human Rights, Paris, 10 December 1948, General Assembly Resolution 217 A

(III). 160 Article 16(1) of the African (Banjul) Charter on Human and Peoples’ Rights, Nairobi, 27 June 1981, United Nations Treaty

Series no. 1520, entered into force on 21 October 1986. 161 Article XI of the American Declaration of the Rights and Duties of Man, Bogotá, 9th international conference of American

States, April 1948. 162 Article 10(1) of the Additional Protocol to the American Convention on Human Rights in the Area of Economic, Social and

Cultural Rights, San Salvador, November 17 1988, entered into force on 16 November 1999. 163 Article 11(1) of the European Social Charter, Strasbourg, 3 May 1996, European Treaty Series no. 163, entered into force

on 1 July 1999. 164 Article 1(1) of the United Nations Framework Convention on Climate Change, New York, 9 May 1992, United Nations

Treaty Series no. 1771, entered into force on 21 March 1994. 165 VON DOUSSA, J., CORKERY, A. and CHARTRES, R., “Human Rights and Climate Change”, Australian International Law

Journal 2007, vol. 14, 166; ATAPATTU, S., “Global Climate Change: Can Human Rights (and Human Beings) Survive this

Onslaught?”, Colorado Journal of International Environmental Law & Policy 2008-2009, vol. 20:1, 48; DUONG, T. T. V.,

“When islands drown: the plight of “climate change refugees” and recourse to international human rights law”, University of

Pennsylvania Journal of International Law 2009-2010, vol. 31:4, 1256-1257; INTERGOVERNMENTAL PANEL ON CLIMATE

CHANGE, Climate Change 2014: Impacts, Adaptation, and Vulnerability. Part A: Global and Sectoral Aspects. Contribution of

Working Group II to the Fifth Assessment Report of the Intergovernmental Panel on Climate Change, Cambridge University

Press, Cambridge, 2014, 714. 166 JODOIN, S. and LOFTS, K., Economic, Social and Cultural Rights and Climate Change: A Legal Reference Guide, Centre for

International Sustainable Development Law, New Haven, 2013, 65 and 81.

38

The Committee on Economic, Social and Cultural Rights (CESCR) has described the right

to health as extending to environmental conditions and has related it with response to diseases.167

To address the increased threats to the right to health, states will have to take measures. The general

nature of obligations arising under this right is often specified in subsequent treaty provisions, such 510

as Article 12(2) ICESCR.168 In taking into account the nature of socio-economic rights, there is

consequently a positive obligation resting on the state toward individuals to ensure the progressive

realisation of the right to health. Albeit within the possibilities as we read from “the extent permitted

by public and community resources”169 or infer from the ”best”170 or “highest attainable”171 state of

health. A first concern might be that with very limited resources, duty-bearers might be able to

significantly downgrade the realisation of this right. However, regional application of these rights

has considerably minimised this possibility.

The Ogoni People, a Nigerian indigenous people, suffered heavily due to the activities of

an oil production company that severely impacted on their environment. As the government took

no action responding to the ordeal of the Ogoni, they petitioned to the African Commission on 520

Humans and Peoples' Rights (AfrCHPR).172 In its treatment of the petition, the AfrCHPR held that

apart from the duty to respect the right to health and therefore not interfere with its enjoyment

directly, there exist at least some minimal requirements a state must fulfil.173 The claims of the

Ogoni were recognised by the Commission and the Nigerian government was held in violation of,

amongst others, the right to health. The uniqueness of the Ogoni case is that the minimal

requirement of the socio-economic right to health was applied in an African context, with the

AfrCHPR having special regard to the regional African and Nigerian situation.174

An alleged compromised health resulting from environmental influence has often been

applied in the context of Article 2 and 8 ECHR.175 However, due to its explicit inclusion in the

167 COMMITTEE ON ECONOMIC, SOCIAL AND CULTURAL RIGHTS, General Comment no. 14: The right to the highest attainable

standard of health (article 12 of the International Covenant on Economic, Social and Cultural Rights), 22nd session, 11 August

2000, paragraphs 11 and 16. 168 Also under Article 16(2) of the African (Banjul) Charter on Human and Peoples’ Rights, Nairobi, 27 June 1981, United

Nations Treaty Series no. 1520, entered into force on 21 October 1986; Article 10(2) of the Additional Protocol to the American

Convention on Human Rights in the Area of Economic, Social and Cultural Rights, San Salvador, November 17 1988, entered

into force on 16 November 1999. 169 Article XI of the American Declaration of the Rights and Duties of Man, Bogotá, 9th international conference of American

States, April 1948; Cf. to Article 1 of the Additional Protocol to the American Convention on Human Rights in the Area of

Economic, Social and Cultural Rights, San Salvador, November 17 1988, entered into force on 16 November 1999. 170 Article 16(1) of the African (Banjul) Charter on Human and Peoples’ Rights, Nairobi, 27 June 1981, United Nations Treaty

Series no. 1520, entered into force on 21 October 1986. 171 Article 12(1) of the International Covenant on Economic, Social and Cultural Rights, New York, 16 December 1966, United

Nations Treaty Series no. 998, entered into force on 3 January 1976. 172 African Commission on Humans and Peoples’ Rights, Social and Economic Rights Action Center and Center for Economic

and Social Rights v. Nigeria, 2001, communication no. 155/96. 173 Ibid., paragraphs 52, 53 and 58. 174 Ibid., paragraphs 68 and 69. 175 European Court of Human Rights, Tatar c. Roumanie, judgment, 27 January 2009, application no. 67021/01; European

Court of Human Rights, Dubetska and Others v. Ukraine, judgment, 10 February 2011, application no. 30499/03; European

39

European Social Charter,176 the meaningful application of the European Committee of Social Rights 530

(ECSR) should be considered here. In Marangopoulos Foundation for Human Rights v. Greece, the

handling of a complaint against a state allowing private mining operations which caused

environmental pollution resulted in the ECSR establishing a clear complementarity between Article

2 ECHR and the ECtHR’s case-law and Article 11 of the European Social Charter.177 This means,

under the same circumstances affecting Article 2 ECHR, the environmental threats adversely

affecting health require to be addressed by the state.

3. 2. The right to food

The right to food is treated as a more specific way to address the realisation of the right to

health. This relation to the right to health causes it to be found in the same provisions. Article 25 540

UDHR sees it as inclusive of the right to health,178 but subsequent treatment of the right to food in

a broad sense makes it very clear that it is not simply a means to an end,179 but standalone with more

than one component. In the ICESCR, we find the recognition of the fundamental right of everyone

to be free from hunger.180 Regionally, it is also described as the right to adequate nutrition and the

target to eradicate malnutrition.181 The implicit presence of the right to food in the African Charter

has been recognised by the AfrCHPR in the Ogoni case.182

Climate change is already affecting millions of the world’s hungry, and this number will

drastically increase without adequate measures taken, since hundreds of millions are vulnerable to

suffer increased malnutrition.183 Earlier, we designated that the effects to agricultural productions

and fisheries will threaten food security. Accordingly, a deeper examination of the right to adequate 550

food is necessary.

Court of Human Rights, Fadeyeva v. Russia, 9 June 2005, judgment, application no. 55723/00; European Court of Human

Rights, Hatton and Others v. United Kingdom, judgment [GC], 8 July 2003, application no. 36022/97. 176 Article 11 of the European Social Charter, Strasbourg, 3 May 1996, European Treaty Series no. 163, entered into force on

1 July 1999. 177 European Committee of Social Rights, Marangopoulos Foundation for Human Rights v. Greece, decision on the merits, 6

December 2006, complaint no. 30/2005, paragraph 202. 178 “Everyone has the right to a standard of living adequate for the health and well-being of himself and of his family, including

food, …”. 179 Article 11(1) of the International Covenant on Economic, Social and Cultural Rights, New York, 16 December 1966, United

Nations Treaty Series no. 998, entered into force on 3 January 1976. 180 Ibid., Article 11(2). 181 Article 12(1) and (2) of the Additional Protocol to the American Convention on Human Rights in the Area of Economic,

Social and Cultural Rights, San Salvador, November 17 1988, entered into force on 16 November 1999. 182 Articles 4, 16 and 22 of the African (Banjul) Charter on Human and Peoples’ Rights, Nairobi, 27 June 1981, United Nations

Treaty Series no. 1520, entered into force on 21 October 1986; African Commission on Humans and Peoples’ Rights, Social

and Economic Rights Action Center and Center for Economic and Social Rights v. Nigeria, 2001, communication no. 155/96,

paragraph 64. 183 ELVER, H., Interim Report on the Right to Food and Climate Change, Report of the Special Rapporteur on the right to food,

UNGA Res. A/70/287, 5 August 2015, Paragraphs 2 and 82.

40

Firstly, the distinct standard of the broad right to food must be addressed. Whereas the right

to be free from hunger should be duly approached from the point of severe deprivation, malnutrition

and starvation, its negative formulation sets a clear minimum standard. The right to adequate food,

leaves more margin for flexibility in its realisation. An adequate level of food has a significantly

wider scope since measures taken hereto not only relate to quantity but also to quality and various

other aspects which all influence a standard of living.

Secondly, the normative content of Article 11 ICESCR resolves which aspects more

precisely need to be kept in mind when fulfilling the right to adequate food. In short, the adequacy

of food directs it toward a sustainable use of sources. It should be seen in its specific context 560

including ecological and climatic conditions.184 The availability includes distribution to where

necessity arises or not to deprive producers of their output.185 Accessibility will, under growing

concerns of natural disasters, constitute a large concern.186 Regions hit by large-scale impacts of

climate change will experience a decrease in physical accessibility of food both with an economic

accessibility since they will find it harder to secure livelihoods and sources of income when they

heavily rely on the primary sector of the economy.

The obligations of a state, apart from the duty to refrain from directly interfering with access

to food or the duty to make sure private actors do not interfere with one another’s right to food, do

not amount to the obligations to simply hand out food to populations or to feed people. It boils down

to the obligation that a state has to realize the right for persons to be able to feed themselves. 570

Apparently when, through no fault of their own, people are unable to do so, a state should ensure a

direct realisation of this right by distributing food to, for example, victims of natural disasters.187

3. 3. The right to water

In a number of recent international human rights treaties, we find explicit mentioning of the

right to water. The Convention on Elimination of all forms of discrimination against Women

(CEDAW),188 the Convention on the Rights of the Child (CRC),189 and the Convention on the Rights

184 COMMITTEE ON ECONOMIC, SOCIAL AND CULTURAL RIGHTS, General Comment no. 12: the right to adequate food (art. 11),

20th session, 12 May 1999, paragraph 7. 185 Ibid., paragraph 12. 186 Ibid., paragraph 13. 187 Ibid., paragraph 15. 188 Article 4 (2) of the Convention on the Elimination of All Forms of Discrimination Against Women, New York City, 18

December 1979, United Nations Treaty Series no. 1249, entered into force on 3 September 1981. 189 Article 24(2) of the Convention on the Rights of the Child, New York, 20 November 1989, United Nations Treaty Series

no. 1577, entry into force on 2 September 1990.

41

of persons with Disabilities (CRD),190 all contain provisions on water supply or clean drinking

water. These treaties however are quite recent and are relevant for the target groups: women,

children or disabled persons. We should thus not overlook the absence of an explicit provision on 580

the right to water in the international Bill of Rights. The UNGA has recognised the right to clean

drinking water and sanitation as essential for the full enjoyment of other rights, including the right

to life itself.191 The possibility of the human right to water as a stand-alone right remains a

theoretical possibility under the ICESCR, since Article 11(1) ICESCR is not drafted as exhaustive.

Unfortunately, none of the regional human rights bodies have recognised it as a stand-alone right

so far.192 Seeing its connection with respective rights to health, life and others, it is difficult to claim

that it exists as a separate right. It stands quite uniquely as a dual right, sometimes recognised a

derived and sometimes as independent.193 Our main concern is whether that which is safeguarded,

whatever the nature of the right to water, is under threat by climate change.

The increased evaporation of water because of temperature rise, the risk of salinisation due 590

to sea level rise, the decrease of freshwater storage from melting of glaciers and snow and the

competing use of it as an agricultural necessity affect water as a resource. Moreover, these effects

are compounded by demographic pressure and existing deficiencies in water supply.

The normative content of the right to water has been elaborated by the CESCR as the

necessary availability, quality and accessibility of water and water facilities to all people.194 The

adequacy should be considered in relation with life, dignity and health, thus positioning it as a

derived right. In the regional application of environmental problems affecting water it could be said

that it is indirectly protected by the right to private and family life, health or life.195 The right to

water does not afford a solid base due to its incoherent recognition and enforcement.196

600

190 Article 28(2)(a) of theConvention on the Rights of Persons with Disabilities, New York, 13 December 2006, United Nations

Treaty Series no. 2515, entered into force on 3 May 2008. 191 Resolution 64/292 of the United Nations General Assembly (3 August 2010), The Human Right to Water and Sanitation,

UN Doc. A/RES/64/292 (2010). 192 MURILLO-CHAVARRO, J., The human right to water: A legal comparative perspective at the international, regional and

domestic level, PhD Thesis, University of Ghent, 2013-2014, 207. 193 Ibid., 347. 194 COMMITTEE ON ECONOMIC, SOCIAL AND CULTURAL RIGHTS, General Comment no. 15: The right to water (art. 11 and 12 of

the International Covenant on Economic, Social and Cultural Rights), 29th session, 20 January 2003, paragraphs 11 and 12; 195 For example, see European Court of Human Rights, Dubetska and Others v. Ukraine, judgment, 10 February 2011,

application no. 30499/03. 196 MURILLO-CHAVARRO, J., The human right to water: A legal comparative perspective at the international, regional and

domestic level, PhD Thesis, University of Ghent, 2013-2014, 347.

42

3. 4. The right to housing

The right to housing in order to realise and attainable standard of living is proclaimed in the

UDHR,197 and in the ICESCR.198 In these documents it is formulated together with the right to an

attainable standard of living. In the American Declaration on the Rights and Duties of Man it is

formulated together with the right to the preservation of health.199 However, in the European Social

Charter, it is included in a completely separate provision.200

A range of threats to homes can cause their loss or reduce the adequacy of living conditions

below a level that is acceptable. Increased inundations, storm damage, provisions of shelter and

suitable infrastructure that degrades as a result of combined effects of climate change or some

individually, such as rising sea level might affect enjoyment of a living space. In extreme cases 610

houses will be destroyed, leaving persons without any infrastructure.

As this right appears again in a socio-economic context, the question will be what the state

is required to fulfil and how far it can invoke the limited realisation as a result of circumstances.

For a significant part, the corresponding socio-economic rights require similar levels of realisation.

Although a domestic case, in South Africa the Constitutional Court held that under the Constitution

which contained a right to housing, 201 the government had the obligation to fulfil a minimum core

of the right to adequate housing.202 The Constitutional Court framed the minimum core obligation

on the state relying on the CESCR General Comments,203 and the provisions of the ICESCR. The

Constitutional Court did not go into what exactly these minimal obligations are, thus refraining

from going too deep into matters of appropriate policy.204 In the Grootboom case, the tragedy 620

remains that the right-holder, Ms. Grootboom, eventually passed away homeless.205

197 Article 25 of the Universal Declaration of Human Rights, Paris, 10 December 1948, General Assembly Resolution 217 A

(III). 198 Article 11(1) of the International Covenant on Economic, Social and Cultural Rights, New York, 16 December 1966, United

Nations Treaty Series no. 998, entered into force on 3 January 1976. 199 Article XI of the American Declaration of the Rights and Duties of Man, Bogotá, 9th international conference of American

States, April 1948. 200 Article 31 of the European Social Charter, Strasbourg, 3 May 1996, European Treaty Series no. 163, entered into force on

1 July 1999. 201 Section 26 of the Constitution of the Republic of South Africa, 1996 reads: “… (1) Everyone has the right to have access to

adequate housing. (2) The state must take reasonable and other measures, within its available resources, to achieve the

progressive realisation of this right…”, words differing from the ICESCR are italicized. 202 Constitutional Court of South Africa 4 October 2000, Case CCT 11/00, Government of the Republic of South Africa v.

Grootboom and Others, paragraphs 29-33. 203 COMMITTEE ON ECONOMIC, SOCIAL AND CULTURAL RIGHTS, General Comment no. 4: The right to adequate housing (art. 11

(1) of the Covenant), 6th session, 1991. 204 Constitutional Court of South Africa 4 October 2000, Case CCT 11/00, Government of the Republic of South Africa v.

Grootboom and Others, paragraph 33. 205 HALL, M. J. and WEISS, D. C., “Avoiding Adaptation Apartheid: Climate Change Adaptation and Human Rights Law”, Yale

Journal of International Law 2012, vol. 37, 354.

43

4. Other rights

4. 1. The right to self-determination

The right to self-determination is a collective right of peoples, rather than individuals,206

and has a firm base in international law because it is a rare common provision of both the ICCPR

and the ICESCR. By virtue of the common Article 1(1) and (3), all peoples are free to determine

their political status and all states to the Covenants have the duty to cooperate toward the realisation

of that self-determination.207 We also see it as a principle enshrined in the Charter of the United

Nations,208 which the International Court of Justice has affirmed as a right that exists erga omnes.209 630

The rise of sea level constitutes an unprecedented threat to the existence of some peoples.

If some of the predicted scenarios come into happening, low-lying islands are at the risk of

completely submerging, hence resulting in the impossibility to sustain their culture by their own

economic and social means of subsistence.

The crisis that faces the constellation of public international law and the constitutive

elements of statehood will have severe consequences on how cultures survive this ordeal. Because

of its unprecedented nature, there are no practical examples of application in this context but simply

hoping that it will not come to a loss of self-determination clearly is not a satisfying approach. All

creative solutions aside, which we will in short return to further on in this dissertation, the positive

obligation clearly rests on all states party to the covenants to ensure a realisation of self-640

determination. What the exact meaning is of “peoples” remains uncertain, but at least it should also

be considered to apply to groups of people, rather than only states.210 When we assign to the concept

a broad meaning it includes both peoples who already have achieved the desired status in one form

or another such as degrees of autonomy or statehood and those peoples who are still moving toward

206 WILLCOX, S., “A Rising Tide: the Implications of Climate Change Inundation for Human Rights and State Sovereignty”,

Essex Human Rights Law Review 2012, vol. 9, no. 1, 7; PRZETACZNIK, F., “The Basic Collective Human Right to Self-

Determination of Peoples and Nations As a Prerequisite for Peace”, New York Law School Journal of Human Rights 1990-

1991, vol. 8, 104. 207 Article 1(1) and (3) of the International Covenant on Civil and Political Rights, New York, 16 December 1966, United

Nations Treaty Series no. 999, entered into force on 23 March 1976; Article 1(1) and (3) of the International Covenant on

Economic, Social and Cultural Rights, New York, 16 December 1966, United Nations Treaty Series no. 998, entered into force

on 3 January 1976; see also Article 20 of the African (Banjul) Charter on Human and Peoples’ Rights, Nairobi, 27 June 1981,

United Nations Treaty Series no. 1520, entered into force on 21 October 1986. 208 Article 1(2) and 55 of the Charter of the United Nations, San Francisco, 26 June 1945, entered into force 24 October 1945; 209 International Court of Justice, Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory,

Advisory Opinion, ICJ Reports 2004, 171, paragraph 88. 210 PASCOE, S., “Sailing the Waves on Our Own: Climate Change Migration, Self-Determination and the Carteret Islands”,

Queensland University of Technology Law Review 2015, vol. 15 issue 2, 75.

44

it. In principle, it is of no matter whose self-determination is at stake, the duty to promote it extends

also in relation to peoples outside a state’s own territory.211

4. 2. The right to a healthy environment

Regional human rights instruments offer us explicit provisions on the right to a healthy

environment, a provision is included in the African Charter on Human and Peoples’ Rights,212 and 650

the Additional Protocol to the American convention on Human Rights.213 In the International Bill

of Rights, unfortunately no provision is directed at the right to a healthy environment.214 Therefore

the universal recognition of the right to a healthy environment is at greater discussion than the

practical application of it.215 Its potential use in relation with climate change should and will be

explored in the future, since a few aspects will need to be addressed, such as the distinction and

relation with sustainable development.216 As far as environmental protection through international

environmental law is concerned, the approach is generally ecocentric.217 The merits of establishing

a human right to environment has the potential of bringing into this discussion a firm point of

departure for protection from an anthropocentric base, however we should remain attentive that

these bases will be mutually reinforcing and not counterproductive to each other.218 660

Although it was feared to remain a mere formulation for some time,219 the AfrCHPR came

to establishing a clear violation of the right to a healthy environment in the Ogoni case.220 By finding

that Article 24 of the African Charter imposes an obligation on states to take measures to prevent

ecological degradation.221 Therefore, at least in its regional application regard must be had to this

211 COMMITTEE ON CIVIL AND POLITICAL RIGHTS, General Comment no. 12: Article 1 (Right to Self-determination), 21st session,

1984, paragraph 6. 212 Article 24 of the African (Banjul) Charter on Human and Peoples’ Rights, Nairobi, 27 June 1981, United Nations Treaty

Series no. 1520, entered into force on 21 October 1986; note that here it is formulated as the right to a “general satisfactory

environment”. 213 Article 11 of the Additional Protocol to the American Convention on Human Rights in the Area of Economic, Social and

Cultural Rights, San Salvador, November 17 1988, entered into force on 16 November 1999. 214; ATAPATTU, S., “Global Climate Change: Can Human Rights (and Human Beings) Survive this Onslaught?”, Colorado

Journal of International Environmental Law & Policy 2008-2009, vol. 20:1, 54; ATAPATTU, S., “The Right to a Healthy Life

or the Right to Die Polluted?: The Emergence of a Human Right to a Healthy Environment Under International Law”, Tulane

Environmental Law Journal 2002-2003, vol. 16, 87. 215 VON DOUSSA, J., CORKERY, A. and CHARTRES, R., “Human Rights and Climate Change”, Australian International Law

Journal 2007, vol. 14, 163. 216 BOYLE, A., “Human Rights and the Environment: Where Next?”, The European Journal of International Law 2012, vol. 23,

no. 3, 641. 217 ATAPATTU, S., “The Right to a Healthy Life or the Right to Die Polluted?: The Emergence of a Human Right to a Healthy

Environment Under International Law”, Tulane Environmental Law Journal 2002-2003, vol. 16, 112. 218 Ibid., 126. 219 Ibid., 88. 220 For the facts, see, Part II 3. 1. 221 African Commission on Humans and Peoples’ Rights, Social and Economic Rights Action Center and Center for Economic

and Social Rights v. Nigeria, 2001, communication no. 155/96, paragraph 52.

45

right. The ECSR has in the previously treated Marangopoulos case222 innovatively stated that it

recognises Article 11 of the European Social Charter as including the right to a healthy

environment.223

Thus, although efforts have been made at regionally expanding the right to a healthy

environment, there is not a lot that can be concluded from it. We cannot however assume that it is

a universally recognised right and weather its enjoyment will be affected as a result of climate 670

change. If progress was to be made on a clear determination of the right and its application, in all

likelihood the response would be affirmative.

4. 3. Rights of vulnerable groups

Particularly vulnerable to the effects of climate change are those who already find

themselves in a marginalised position in society.224 We consider them to be people who share one

common characteristic or more, not necessarily cultural, which places them at a particular risk of

suffering from adverse socio-economic conditions or being deprived of enjoyment of their rights as

opposed to those who do not share this characteristic. Ever since the conception of the International

Bill of Rights, attention has been given to the issue of equality and elimination of discrimination.225 680

The necessity to take additional steps in order to safeguard particularly such groups from harmful

treatment was not forsaken, and many more specific treaties were drafted.226 Because the IPCC has

clearly identified them as potential victims of the future we will summarily provide an outline of

some groups and where the previously treated human rights are more specifically addressed to them.

For the sake of clarity, in this section they are referred to as “vulnerable groups” but the human

rights discussed are individual rights unless stated otherwise.

222 For the facts: see, Part II 3. 1. 223European Committee of Social Rights, Marangopoulos Foundation for Human Rights v. Greece, decision on the merits, 6

December 2006, complaint no. 30/2005, paragraphs 195-196. 224 INTERGOVERNMENTAL PANEL ON CLIMATE CHANGE, Climate Change 2014: Synthesis Report. Contribution of Working


54. 225 Article 2 of the Universal Declaration of Human Rights, Paris, 10 December 1948, General Assembly Resolution 217 A

(III); Article 2(1) of the International Covenant on Civil and Political Rights, New York, 16 December 1966, United Nations

Treaty Series no. 999, entered into force on 23 March 1976; Article 2(2) of the International Covenant on Economic, Social

and Cultural Rights, New York, 16 December 1966, United Nations Treaty Series no. 998, entered into force on 3 January

1976. 226 Convention on the Elimination of All Forms of Discrimination Against Women, New York City, 18 December 1979, United

Nations Treaty Series no. 1249, entered into force on 3 September 1981; Convention on the Rights of the Child, New York, 20

November 1989, United Nations Treaty Series no. 1577, entry into force on 2 September 1990; International Convention on

the Elimination of All Forms of Racial Discrimination, New York, 21 December 1965, United Nations Treaty Series no. 660,

entered into force on 4 January 1969; International Convention on the Protection of the Rights of All Migrant Workers and

Members of their Families, New York, 18 December 1990, United Nations Treaty Series no. 2220, entered into force on 1 July

2003; This is only an illustrative list.

46

The Convention on the Elimination of all forms of Discrimination against Women

(CEDAW)227 is aimed at assuring full equality between women and men and in result is written

with particularly problematic issues in mind that require the progressive furtherance of gender

equality. The environment is not one of the addressed problems but the state parties are aware that 690

for example in situations of poverty women suffer from a lack in access to food, health, and other

services they should expect.228 In a rural context, women will suffer harder from climate change

affecting many rights. Only here, we find a more or less direct reference to some of the earlier

treated rights such as the adequate standard of living through housing, sanitation, water supply and

others.229 A consequence of fewer access to water will be that women, who are often responsible

for this task, have to adapt to climate change by simply walking further.230 This is just taken as one

example of how unequal the burden can be distributed, doubtless many more will occur.

In a less specific context of eliminating discrimination but nonetheless approaching an

identified vulnerable group comprehensively is the Convention on the Rights of the Child (CRC).231

The CRC reaffirms many of our relevant rights such as the right to life,232 private and family life,233 700

health234 and those necessary for an adequate standard of living.235 Peculiarly, the CRC is the only

core human rights treaty that comes close to suggesting a right to a healthy environment as it

addresses the risks of environmental pollution.236

Indigenous peoples as a collective are also vulnerable. They exist in close connection and

harmony with traditional lands, and their lives and cultures will be even more directly affected by

environmental change, since they rely heavily on the primary sector of the economy. The previously

addressed right to self-determination is for them of special importance as well,237 as they might be

forced from traditional lands and thus resulting in a loss of culture. In the Ogoni case and the

Yanomami case, indigenous rights were also found to be violated as a result of environmental

disruption.238 The International Labour Organisation (ILO) has adopted the Convention concerning 710

227 Peamble of the Convention on the Elimination of All Forms of Discrimination Against Women, New York City, 18

December 1979, United Nations Treaty Series no. 1249, entered into force on 3 September 1981. 228 Ibid., Preamble. 229 Ibid., Article 14(2)(h). 230 HALL, M. J. and WEISS, D. C., “Avoiding Adaptation Apartheid: Climate Change Adaptation and Human Rights Law”, Yale

Journal of International Law 2012, vol. 37, 310. 231 Convention on the Rights of the Child, New York, 20 November 1989, United Nations Treaty Series no. 1577, entry into

force on 2 September 1990. 232 Ibid., Article 6. 233 Ibid., Article 16. 234 Ibid., Article 24(1). 235 Ibid. Article 27; Thus implicitly the rights to housing, food and water. 236 Ibid., Article 24(2)(c). 237 See, Part II 4. 1. 238 A violation of the right to property under Article XXIII of the American Declaration on the Rights and Duties of Man, as a

result of environmental degradation in indigenous lands was also found in: Inter-American Commission on Human Rights,

Maya indigenous community of the Toledo District v. Belize, 12 October 2004, report no. 40/04, case 12.053, paragraph 152;

The IACHR took note of the findings of the Ogoni case, see paragraph 149.

47

Indigenous and Tribal Peoples in Independent Countries (ILO no. 169) which has played an

important role for indigenous communities,239 and foresees in safeguards for them to protect their

environment.240 Under ILO no. 169, governments have the specific obligation to protect and

preserve the territories that indigenous peoples inhabit.241 Therefore, states will have to adopt

special measures.242 Furthermore the United Nations Declaration on the Rights of Indigenous

Peoples provides an important reference for indigenous rights in relation to their environment.243

As recognised by the Declaration, the environment and rights of indigenous peoples have a special

relationship,244 and the established environmental rights should only be interfered with based on

free, prior and informed consent.

720

5. Conclusion

The interim conclusion we are able to draw so far from in this investigation is that on the

face of it, the multitude of anticipated changes in our environment caused by climate change is

likely to have a grave impact on many lives. That impact will translate to the violation of human

rights on a widespread scale if no adequate response is provided both in mitigating and adapting to

a changing world. The assessment in this part corroborates with the colourful observation of Ms.

ATAPATTU that “virtually the whole gamut of human rights protected under international law …

may be affected as a result of climate change”.245

This requires further commentary. The considered rights are not isolated in their relevance

nor is their application. The same goes for the manners which could be the causes of harm. To be 730

as blunt as to claim at this time that climate change therefore violates human rights would be a

bridge too far. Not only would this be an oversimplification, from a strictly legal perspective it is

misguided. The chain of events leading up to an established violation of human rights leaves a high

degree of uncertainty as to the exact cause. We would need to be able to identify the causation

between emissions, a natural phenomenon caused by it and a subsequent violation by that

239 CESPEDES, R., “Indigenous Peoples’ Human Right to a Clean Environment, Environmental Impact Assessment and ILO-

Convention 169”, Warwich Student Law Review 2013, vol. 3 issue 1, 73. 240 Article 4(1) of the Convention concerning Indigenous and Tribal Peoples in Independent Countries, 27 June 1989,

International Labour Organisation no. 169, entered into force on 5 September 1991. 241 Article 7(4), Ibid. 242 YUPSANIS, A., “ILO Convention no. 169 Concerning Indigenous and Tribal Peoples in Independent Countries 1989-2009:

an Overview”, Nordic Journal of International Law 2010, 437. 243 Resolution 61/295 of the United Nations General Assembly (2 October 2007), United Nations Declaration on the Rights of

Indigenous Peoples, UN Doc. A/RES/61/295 (2007). 244 Ibid., Articles 29 and 32. 245 ATAPATTU, S., “Global Climate Change: Can Human Rights (and Human Beings) Survive this Onslaught?”, Colorado

Journal of International Environmental Law & Policy 2008-2009, vol. 20:1, 45.

48

phenomenon without external interference before we would be able to comfortably arise to that

conclusion. As science stands, this would be virtually impossible.246

If we move toward the issue of causation specifically by emissions, we do not necessarily

have to establish each causation between an emission of an individual country and an effect of

climate change since all countries have contributed to global emissions. Theoretically the allocation 740

of joint liability is an option worth exploring. However, many uncertainties remain, such as the role

of historic emissions,247 the common but differentiated responsibility in international environmental

law and the determination of a relevant threshold of contribution to those emissions, otherwise every

member of the global community is to blame to some extent.248

While treating the natural impacts of climate change, a recurring hurdle is that, uncertainty

about observations and predictions aside, we are faced with increases in frequency and magnitude.

This is not a sufficiently satisfying ground, since again, few events can be singularly and purely

considered to be occurring as a result of climate change. Not in the least will it be simple to say that

these events will be the only source of a likely violation since they advance compound effects on

other causes of harm such as pollution, conflict or even policy responses following adaptation or 750

mitigation projects. Adding to the burden is that the majority of adverse impacts are anticipated

changes which are predicted departing from a status quo or other assumptions and do not amount

to an imminent threat in the sense of a grave danger that should immediately be avoided, which is

necessary to establish concrete implications.249

Finally, be it somewhat formalistic, climate change does not violate human rights because

it is not an actor under international law. It does not have a personality and, as a result, is not a duty-

bearer toward individuals. The relevant duty-bearers are those states which hold obligations under

international law towards individuals, whether they are party to treaties or bound by customary and

peremptory norms of international law. Although states have a large degree of flexibility, under

their positive obligations they at least have to realise a minimum core of enshrined rights. 250 760

246 OFFICE OF THE HIGH COMMISSIONER FOR HUMAN RIGHTS, Report of the Office of the United Nations High Commissioner for


70. 247 KNOX, J., “Linking Human Rights and Climate Change at the United Nations”, Harvard Environmental Law Review 2009,

vol. 33, 489. 248 WYMAN, K. M., “Responses to Climate Migration”, Harvard Environmental Law Review 2013, vol. 37, 192-193; this is

commented in relation to corrective justice but also applies here; MCADAM, J., Climate Change, Forced Migration, and

International Law, Oxford University Press, Oxford, 2012, 97. 249 OFFICE OF THE HIGH COMMISSIONER FOR HUMAN RIGHTS, Report of the Office of the United Nations High Commissioner for

Human Rights on the Relationship between Climate Change and Human Rights, A/HRC/10/61, 15 January 2009, paragraphs

69-71. 250 Ibid., paragraph 76; COMMITTEE ON ECONOMIC, SOCIAL AND CULTURAL RIGHTS, General Comment no. 3: The Nature of

States parties’ obligations (art. 2, para. 1, of the Covenant), 5th session, 1990, paragraph 10; also for positive obligations and

civil rights see HUMAN RIGHTS COMMITTEE, General Comment no. 31: The Nature of the General Legal Obligation Imposed

49

From all this, we can affirm that climate change threatens the enjoyment of human rights

and states must respond to this threat.251 The considerable influence the environment has on the

effective enjoyment of human rights makes its protection a condition sine qua non for ensuring this

enjoyment.252 The exact scope and dimension of obligations under public international law between

states and on individuals will be explored at a later time.253

At some stage, when an individual’s situation becomes increasingly desperate and his

outlook more and more bleak because of a perceived lack of protection from violations of some

fundamental rights, an individual will look elsewhere to avail himself of that protection in order to

assure survival in dignified conditions. In the next parts it is that situation and the arising results it

will have on the status of those individuals we will scrutinize. 770

on States Parties to the Covenant, 80th session, 26 May 2004, paragraph 8, Note: the latter only discusses these measures

directed to private entities. 251 OFFICE OF THE HIGH COMMISSIONER FOR HUMAN RIGHTS, Report of the Office of the United Nations High Commissioner for


92. 252 International Court of Justice, Gabcikovo-Nagymaros Project (Hungary v. Slovakia), Separate opinion of Vice-President

Weeramantry (25 September 1997), ICJ Reports 1997, 91. 253 See, Part IV, in particular 3. 1. And 4. 1.

50

III. Establishing a Class

1. Conceptualising movement

Before we can depict an accurate image of the status of those persons whose ordeal we are

studying it is necessary that we conceptualise the relevant phenomenon since this conceptualisation

will be the focal point of our approach.254 From the onset we provide an overview of how we will

apply terminology in order to retain clarity when we return to a full discussion on the topic at a later

stage. 780

1. 1. The cause of movement

The decision to leave one’s place of residence depends on a variety of factors. As we have

seen before there are plenty of ways in which climate change can affect people’s lives, but the origin

of human movement should be, to the extent possible, separated in order to identify stress points.

This will enable us to emphasise and make distinctions based on them.

1. 1. 1. Sudden and slow-onset disasters

Sudden disasters in this context are acute events occurring in our natural environment,

causing a severe disruption to it.255 Examples such as floods, storms, hurricanes, but also

earthquakes have always had a significant role in being drivers of migration throughout history and 790

today.256 Not only the frequency, but also the magnitude of some of these disasters is predicted to

increase as a result of climate change.257

For some this is not the case. Earthquakes and volcano eruptions have always been

occurring and climate change is not expected to have a direct influence on them, yet they still remain

qualified as sudden natural disasters.258 While there is uncertainty that flooding can increase, again

these are not necessarily only climate change-related. Where inadequate water and land

254 MCADAM, J., Climate Change, Forced Migration, and International Law, Oxford University Press, Oxford, 2012, 17. 255 BATES, D.C., “Environmental Refugees? Classifying Human Migrations Caused by Environmental Change”, Population

and Environment 2002, vol. 23, no. 5, 469. 256 HAVARD, B., “Seeking Protection: Recognition of Environmentally Displaced Persons under International Human Rights

Law”, Villanova Environmental Law Journal 2007, vol. 18 issue 1, 67. 257 COHEN, R. and BRADLEY, M., “Disasters and Displacement: Gaps in Protection”, Journal of International Humanitarian

Legal Studies 2010, vol. 1, 1-2. 258 CHIRALA, S. V., “Acclimating to Climate Change: Filling the International Policy Void for Environmentally Displaced

People”, Houston Journal of International Law 2013, vol. 35:2, 365.

51

management policy has failed to take account of possible precipitation extremes, people will be

even more affected by floods, thus making it both a technological and climate change-caused

disaster. The same is conceivable for a flood occurring from dam failure, if people move as a result

of such a technological disaster, they are not doing so as a result of climate change but as a result 800

of human failure.259 A final example is an earthquake or a flood or any other natural disaster that

can cause a major industrial catastrophe such as the one we saw as a result of the events at

Fukushima in Japan.

Opposed to the previous we distinguish more slowly occurring events. These are the more

gradual changes in a natural environment causing degradation and thereby decreasing the

environment’s ability to sustain habitation on the long term such as droughts, loss of land to sea

level rise or famine. Just as sudden disasters, slow-onset disasters will cause people to move, but

again it will be difficult to directly attribute these to climate change.260 It is expected that as a result

of gradual degradation more people will migrate than is the case for extreme weather events.261

810

1. 1. 2. Climate and environmental causes

Climate will have a heavy effect on displacement of people, so much has been

established.262 However usually it will not be possible to directly ascertain if climate change caused

movement right away. Only sea level rise is generally seen as a cause that can distinctly be

considered as causing migration.263 This means that for the most of the other effects assessed,

although we could assume that to some degree climate change has contributed to the occurring

event, it will be hard to label one as caused by climate change and the other as a traditional

environmental event, as we will be at risk of arbitrary labelling.264

The influence of technological or industrial aggravating circumstances on traditional

environmental events or the other way around makes us question whether the same would go for 820

259 BATES, D.C., “Environmental Refugees? Classifying Human Migrations Caused by Environmental Change”, Population

and Environment 2002, vol. 23, no. 5, 471. 260 MCADAM, J. and LIMON, M., Human Rights, Climate Change and Cross-Border Displacement: the role of the international

human rights community in contributing to effective and just solutions, Policy Report, Universal Rights Group, August 2015,

2-3; GERMAN ADVISORY COUNCIL ON GLOBAL CHANGE, Climate Change as a Security Risk, Earthscan, London, 2008, 118. 261 Ibid. 262 INTERGOVERNMENTAL PANEL ON CLIMATE CHANGE, Climate Change 2014: Synthesis Report. Contribution of Working


73. 263 BIERMANN, F. and BOAS, I., “Preparing for a Warmer World: Towards a Global Governance System to Protect Climate

Refugees”, Global Environmental Politics 2010, vol. 10, no. 1, 69. 264 BUSH, B. J., “Redefining Environmental Refugees”, Georgetown Immigration Law Journal 2012-2013, vol. 27, 567.

52

general environmental causes of displacement.265 We observe however that all the consequences of

climate change are to some degree environmental causes, but conclusively not all environmental

causes of displacement are related to climate change. Keeping this in mind will reduce the margin

of error when we attempt to ascribe displacement to a certain event.

1. 2. The nature of movement

The different causes of movement will have a determining effect on how that movement

will manifest itself. Clarifying these various movements can therefore enable us to classify various

types of human mobility and, for the use of this investigation, adopt a suitable terminology in order

to avoid misconceptions. 830

1. 2. 1. Forced or voluntary?

As today we try to predict the changes in our global environment for the future, some people

are identified as being very likely victims of those changes. However, if they act upon that today,

and try to leave their places of residence out of fear for what might happen, the question can rightly

be put forward if that makes them forced or not. Since this criterion of voluntariness is what

separates sociological groups of voluntary migrants from those who, in a non-legal context are

called refugees.266 This implies that those who have the option to anticipate and decide on their own

terms, without an externally coercing force, to relocate are not refugees, sociologically speaking.

Theoretically this is an interesting consideration but in practice it will be very difficult to determine 840

when people are forced to relocate or not. Especially in the case of slow-onset disasters.

In relation to sudden-onset disasters it is clear that their acute character does not leave an

individual with much opportunity for reflection as to what an appropriate coping strategy would

be.267 Individuals in this case either feel forced to leave or not. With regards to slow-onset disasters

such as sea level rise or drought, a binary concept of voluntariness is not easily applied.268 BATES

very appropriately places people on a continuum,269 thus making voluntariness a gradual concept.

265 LOPEZ, A., “The Protection of Environmentally-Displaced Persons in International Law”, Environmental Law 2007, vol. 37,

370; an improper exploitation can affect traditional environmental problems which are related to climate change such as

droughts and desertification. 266 BATES, D.C., “Environmental Refugees? Classifying Human Migrations Caused by Environmental Change”, Population

and Environment 2002, vol. 23, no. 5, 467. 267 GERMAN ADVISORY COUNCIL ON GLOBAL CHANGE, Climate Change as a Security Risk, Earthscan, London, 2008, 118. 268 GOVERNMENT OFFICE FOR SCIENCE, Foresight: Migration and Global Environmental Change, London, 2011, 34-35. 269 BATES, D.C., “Environmental Refugees? Classifying Human Migrations Caused by Environmental Change”, Population

and Environment 2002, vol. 23, no. 5, 468; Mayer does not share this view, one cannot be “semi-forced”: MAYER, B., “The

53

The further one moves along the continuum, the direr one’s situation is, therefore falling within

different categories of migrants, with at the very end those who are bluntly forced. At least for those

hit by slow-onset disasters this is a useful approach.

Since the majority of people offset by the environment will be expected to move due to 850

gradual degradation it could be seen as a danger to security if they have no clear idea of what means

are available for them because of uncertainty surrounding which category they belong to. This of

course right up to the moment at which they are unequivocally forced to leave their place of

residency and so an en masse relocation is possible to occur. This illustrates why a policy approach

could be to avoid the discussion about forced movement altogether and adopt an approach of

adaptive migration with regards to slow-onset disasters.

1. 2. 2. Internal or external?

When a person relocates as a result of adverse environmental degradation he does so either

within the same country or across a border into another country. Although the distinction might

seem somewhat artificial it is of high importance since this is likely to profoundly affect the status 860

of individuals. Due to the design of international law and the concept of jurisdiction, a state’s

obligation toward an individual might not be the same everywhere if he moves across borders.

It is thought that the majority of those who migrate as a result of environmental factors will

do so within one country,270 they are part of a group of internal migrants. Those who cross borders,

therefore external migrants, could do so for a variety of reasons ranging from an existing network

or a porous border to the disappearance of the country of origin. Although they will likely be less

in numbers, they are nonetheless significant. 271

1. 2. 3. Temporary or permanent?

What distinguishes these two types of movement from each other is the possibility of 870

returning in the near future to the original place of residence a person left. We are unsure exactly

how to quantify the near future into a temporal measure, this however does not make the distinction

International Legal Challenges of Climate-Induced Migration: Proposal for an International Legal Framework”, Colorado

Journal of International Environmental Law & Policy 2011, vol. 22:3, 369. 270 GEMENNE, F., “Why the numbers don’t add up: A review of estimates and predictions of people displaced by environmental

changes”, Global Environmental Change 2011, 6; BIERMANN, F. and BOAS, I., “Preparing for a Warmer World: Towards a

Global Governance System to Protect Climate Refugees”, Global Environmental Politics 2010, vol. 10, no. 1, 66; GOVERNMENT

OFFICE FOR SCIENCE, Foresight: Migration and Global Environmental Change, London, 2011, 37; GERMAN ADVISORY

COUNCIL ON GLOBAL CHANGE, Climate Change as a Security Risk, Earthscan, London, 2008, 118. 271 DOCHERTY, B. and GIANNINI, T., “Confronting a rising tide: a proposal for a convention on climate change refugees”,

Harvard Environmental Law Review 2009, vol. 33, 355.

54

between these two types as being less appropriate. Sometimes the possibility of return could be on

a very short term such as weeks or a season for example what concerns hurricanes or floods, on

other occasions it could come to years in the case of a sustained droughts. To go as far as possibly

including the anticipation of a return within decades as temporary would be unjust.

Linking a temporal type of movement to a specific class of disasters will most likely not

prove to be useful.272 Some sudden events can cause people to move both permanently and

temporary, and the same could be said for slow onset disasters. The core issue of relevance in this

investigation will however be what the status of displaced persons is as their displacement occurs. 880

2. Definitions

2. 1. An overview of proposals

Many attempts have been made at defining who exactly is or will be a person displaced by

climate change.273 Usually, the adoption of a definition is done for differing purposes. Some have

approached the problem from a normative perspective, hence they have sought to define the

problem in a way allowing for it to be included into a normative or binding framework and thereby

start largely from the premise that a more appropriate response to the problem is needed or even

that there might not be a response at all. Others then have sought to take a more descriptive approach

and adopt an analytical logic, allowing the problem to be assessed as it currently stands. 890

Predicting the credible figures about the number of people displaced as a result of climate

change or environmental factors is not a simple task. The divergence in conceptual approaches and

lack of definitional clarity is one of the things that stand in the way of reliable numbers.274 Thus,

for the sake of this dissertation we will need to provide an overview of the relevant definitions put

forward in academic literature before we can adopt some of our own. This will provide us the

possibility to justify and motivate our choices in adopting a set terminology.

272 BIERMANN, F. and BOAS, I., “Preparing for a Warmer World: Towards a Global Governance System to Protect Climate

Refugees”, Global Environmental Politics 2010, vol. 10, no. 1, 55-56. 273 WYMAN, K. M., “Responses to Climate Migration”, Harvard Environmental Law Review 2013, vol. 37, 168. 274 GEMENNE, F., “Why the numbers don’t add up: A review of estimates and predictions of people displaced by environmental

changes”, Global Environmental Change 2011, 6.

55

2. 1. 1. Descriptive definitions

These definitions have been adopted to describe the phenomenon of people displaced by

their environments. This does not contain an overview of all definitions in literature. However, it 900

does aim at providing a cross-section with sufficiently varying approaches, from different fields of

science and policy.

A. El-Hinnawi’s first “environmental refugees”

The person credited most often with first putting forward a definition is the sociologist

Essam El-Hinnawi who defined “environmental refugees” as:

“people who have been forced to leave their traditional habitat, temporarily or

permanently, because of a marked environmental disruption (natural and/or

triggered by people) that jeopardized their existence and/or seriously affected

the quality of their life.”275 910

In this context environmental disruptions are “any physical, chemical, and/or biological changes in

the ecosystem (or resource base) that render it, temporarily or permanently, unsuitable to support

human life”.276 Immediately, the very broad description jumps out. EL-HINNAWI clearly implies

that voluntary movement is not applicable but applies a very lenient approach to environmental

disruptions. Also no mention is made of the spatial nature of movement, it appears that both internal

and external movements are covered. This description however has started to live its own life after

initially it was accepted without being thoroughly scrutinized,277 then came under attention of legal

scholars with the increased foresight of environmental drivers causing migration when at that time

it had already been widely used.

Although the use of the term refugee in this context has been continued consistently at later 920

stages, from a legal point of view it is not considered very appropriate at first sight. The leading

instrument of international refugee law does not include the environment explicitly as such nor can

it readily be considered a form of prosecution.278 It appears therefore confusing to refer to persons

who are not able to claim refugee status as refugees, even contradictory. The use of the word refugee

275 E. EL-HINNAWI, Environmental Refugees¸United Nations Environment Programme, Nairobi, 1985, 4. 276 GEMENNE, F., “Why the numbers don’t add up: A review of estimates and predictions of people displaced by environmental

changes”, Global Environmental Change 2011, 6; COHEN, R. and BRADLEY, M., “Disasters and Displacement: Gaps in

Protection”, Journal of International Humanitarian Legal Studies 2010, vol. 1, 24. 277 BATES, D.C., “Environmental Refugees? Classifying Human Migrations Caused by Environmental Change”, Population

and Environment 2002, vol. 23, no. 5, 466. 278 Article 1(A)(2) of the Convention Relating to the Status of Refugees, Geneva, 28 July 1951, United Nations Treaty Series

no. 189, entered into force on 22 April 1954; in the case of climate change: MCADAM, J., Climate Change, Forced Migration,

and International Law, Oxford University Press, Oxford, 2012, 43.

56

is, consequentially, in this sense often considered a “legal misnomer”.279 We will come to a deeper

analysis on the applicability of the Refugee Convention at a later point.

B. Bates’ sociological “environmental refugees”

Moving away from some criticisms on the previous definition, and with the clear ambition

to avoid legalistic issues surrounding the definition of refugees,280 BATES purposely vaguely 930

defines “environmental refugees” as:

“People who migrate from their usual residence due to changes in their ambient

non-human environment.”281

Since she classifies persons either as migrants, environmental migrants or environmental refugees

as they become more forced to move, this definition allows her to then distinguish further again

between disaster refugees, expropriation refugees and deterioration refugees,282 who can each again

be divided into groups according to the more specific cause of refuge such as ecocide or

technology.283

Although the intent was to stay clear of legal issues, the purposeful vagueness and then

creation of very concrete classes has unfortunately rendered this approach virtually useless in a 940

legal discourse here. The upside however is that this provides the possibility to adopt a clear

methodology on numbers of persons affected and will improve to make estimates more realistic.

C. The International Organisation for Migration’s “environmental migrants”

Interestingly, the International Organisation for Migration (IOM) has also put forward a

relevant definition. Since the IOM has no supervisory capacity over a specific treaty and is more

project-based as organisation it is a functional intergovernmental organisation rather than a

normative intergovernmental organisation, as opposed to for example the United Nations High

Commissioner for the Refugees (UNHCR) which supervises implementation of the Refugee

279 LOPEZ, A., “The Protection of Environmentally-Displaced Persons in International Law”, Environmental Law 2007, vol. 37,

388; DUONG, T. T. V., “When islands drown: the plight of “climate change refugees” and recourse to international human rights

law”, University of Pennsylvania Journal of International Law 2009-2010, vol. 31:4, 1251; KEANE, D., “The Environmental

Causes and Consequences of Migration: A Search for the Meaning of “Environmental Refugees” “, The Georgetown

International Environmental Law Review 2003-2004, vol. 16, 223. 280 BATES, D.C., “Environmental Refugees? Classifying Human Migrations Caused by Environmental Change”, Population

and Environment 2002, vol. 23, no. 5, 468. 281 Ibid. 282 These are further defined by BATES, however analyzing these would lead us too far from our overview. 283 BATES, D.C., “Environmental Refugees? Classifying Human Migrations Caused by Environmental Change”, Population

and Environment 2002, vol. 23, no. 5, 469-470.

57

Convention.284 What is of peculiar note is that due to its pragmatic legitimacy, the IOM has a 950

specific behavioural logic.285 This might cause it to adopt an approach suitable for funding

incentives. The 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.”286

This definition is very clear in its description but retains a broad approach to the problem we are

faced with. It encompasses both internal and external, temporary and permanent, voluntary and

involuntary movement. The inclusion of “predominantly” even further widens the scope, it leaves 960

open the possibility for people who have moved in large part due to environmental events but not

necessarily only environmental reasons. This approach would strike us however as too broad, partly

due to the voluntary migrants whose situation differs from compelling cases and their connection

with other motives which would render them more a class of amenity migrants.

D. Myers’ “environmental refugees”

The environmentalist MYERS, who is accredited with having had a determining influence

on the estimates of the number of people displaced by environmental and climate change-related

causes,287 determines “environmental refugees” as follows:

“people who can no longer gain a secure livelihood in their homelands because 970

of drought, soil erosion, desertification, deforestation and other environmental

problems, together with associated problems of population pressures and

profound poverty.”288

Although nowhere does he point out that these people have left their usual residence, we should

feel it is implicitly included. It is very likely unintended from the definition but this does lead us to

remark that possessing the capacity to move is a necessary condition before we can speak of

284 HALL, N., “Moving Beyond its Mandate? UNHCR and Climate Change Displacement”, Journal of International

Organisation Studies 2015, 93. 285 HALL, N., “Moving Beyond its Mandate? UNHCR and Climate Change Displacement”, Journal of International

Organisation Studies 2015, 92. 286 INTERNATIONAL ORGANISATION FOR MIGRATION, Discussion Note: Migration and the Environment, 94th Session of the IOM

Council, 1 November 2007, MC/INF/288, paragraph 6. 287 GEMENNE, F., “Why the numbers don’t add up: A review of estimates and predictions of people displaced by environmental

changes”, Global Environmental Change 2011, 1-3. 288 MYERS, N., Environmental Refugees: An Emergent Security Issue, 13th Economic Forum Prague, 22 May 2005, 1.

58

migration. Many people will be trapped and unable to move,289 this is a very vulnerable class which

lingers as a humanitarian issue, however they are not the focus of this dissertation.

Apart from not addressing the issue of spatial and temporal dimensions in this definition,290

it does however list a number of specific causes, all slow-onset but not-exhaustive, and identifies a 980

number of correlated or aggravating elements such a demographic pressure and poverty. This

approach envisages the problems associated with adopting an all too monocausalistic idea of

displacement.

E. The UNHCR’s “environmentally displaced persons”

Initially a reluctant player in the field of natural disasters and displacement the UNHCR

was brought in connection with the dialogue surrounding it from early on, due to the incorrect use

of refugee as an all-round applicable term.291 Eventually, carefully avoiding an incorrect use of

refugee,292 it adopted a concept based on the term “environmentally displaced persons” as persons:

“who are displaced from or who feel obliged to leave their usual place of 990

residence, because their lives, livelihoods and welfare have been placed at

serious risk as a result of adverse environmental, ecological or climatic

processes and events.”293

Again, no mention is made of space or time, but what we do find is reference to different causes.

Apart from questions surrounding on what the difference between environmental and ecological

events would constitute, it also makes notice of climatic events. However, this seems to be a simple

mentioning since this does not necessarily extend the scope of the definition.

289 GOVERNMENT OFFICE FOR SCIENCE, Foresight: Migration and Global Environmental Change, London, 2011, 104. 290 He does refer to a semi-permanent basis, with no hope of foreseeable return, see MYERS, N., Environmental Refugees: An

Emergent Security Issue, 13th Economic Forum Prague, 22 May 2005, 1. 291 MCADAM, J., “Creating New Norms on Climate Change, Natural Disasters and Displacement: International Developments

2010-2013”, Refuge 2013, vol. 29 no. 2, 13-14. 292 BOANO, C., ZETTER, R. and MORRIS, T., Environmentally displaced people, Understanding the linkages between

environmental change, livelihoods and forced migration, Forced Migration policy briefing 1, Refugees Study Centre,

University of Oxford, November 2008, 8. 293 GORLICK, B., “Environmentally Displaced Persons: A UNHCR Perspective”, Presentation, United Nations University, Panel

Discussion ‘Environmental Refugees: The Forgotten Migrants’, New York, 16 May 2007; partially reused in DUN, O.,

GEMENNE, F. and STOJANOV, R., Environmentally Displaced Persons: Working Definitions for the EACH-FOR Project,

European Commission, 2007, www.each-for.eu/documents/environmentally_displaced_persons_-_working_definitions.pdf, 2.

http://www.each-for.eu/documents/environmentally_displaced_persons_-_working_definitions.pdf

59

2. 1. 2. Normative definitions

A. Biermann and Boas’ “climate refugees” 1000

So far we have come across few attempts to explicitly include a mentioning of climate

change in definitions of human displacement, however many proposals have been put forward

addressing this issue in a specific binding instrument and have taken a more hands-on approach. In

their design of a global governance system, BIERMANN and BOAS make it very clear they see

the point at issue very much as a problem of development issue.294 This is translated in the setup of

their system that is more directed towards funding and capacity building mechanisms than closing

a rights gap.295 They propose a definition of “climate refugees” as:

“people who have to leave their habitats, immediately or in the near future,

because of sudden or gradual alterations in their natural environment related to

at least one of the three impacts of climate change: sea level rise, extreme 1010

weather events, and drought and water scarcity.”296

The omission of a distinction between degrees of voluntariness is a very conscious choice in this

definition.297 They see no reason in denying those who are informed and have timely resettled or

have voluntarily moved the status of a climate refugee, further even considering it “morally

dubious”. It appears that the governance system as it was conceived make for an attractive status of

refugee, which strikes us as odd in the least. As we feel it a protective status should be available to

those in need of it because of the exigency of their situation, hence blurring for the sake of

development policy or legal opportunity would fall short of our objective.

Curious is the isolation of three identified effects of climate change: sea level rise, extreme

weather events, and drought and water scarcity. Whether they are sudden or gradual makes no 1020

difference, both are included. As we saw earlier climate change is usually expected to have effects

on frequencies and magnitudes of events, with the exception that sea level rise is most likely only

caused by climate change. This is an attempt at separating climate refugees from environmental

refugees, which they see as a sub-category.298 While we agree with the latter, it is not clear if this is

the right way to do so, as it might make the governance system too rigid, just as what happened to

the five grounds under the Refugee Convention.299 In the pursuit of including people irrespective


Refugees”, Global Environmental Politics 2010, vol. 10, no. 1, 74. 295 WYMAN, K. M., “Responses to Climate Migration”, Harvard Environmental Law Review 2013, vol. 37, 188. 296 BIERMANN, F. and BOAS, I., “Preparing for a Warmer World: Towards a Global Governance System to Protect Climate

Refugees”, Global Environmental Politics 2010, vol. 10, no. 1, 67. 297 Ibid., 65. 298 Ibid., 63. 299 Article 1(A)(2) of the Convention Relating to the Status of Refugees, Geneva, 28 July 1951, United Nations Treaty Series

no. 189, entered into force on 22 April 1954.

60

of internal or external, voluntary or forced but excluding non-climate environmental refugees, this

definition is too restrictive and might have arbitrary, unintended consequences.300 The authors of

this definition are not blind to the problems of a mono-causal approach and suggest that only one

of the three natural events have to be of relevance, minimally. There is no relevant threshold linking 1030

other factors of any kind, therefore the potential remains that the adoption of this definition could

be complementary with other types of displacement.

B. Docherty and Giannini’s “climate refugees”

In their convention proposal DOCHERTY and GIANNINI orientate the creation of their

definition around the idea of a legal and moral responsibility for causing climate change.301

According to them a “climate refugee” should be:

“an individual who is forced to flee his or her home and to relocate temporarily

or permanently across a national boundary as the result of sudden or gradual

environmental disruption that is consistent with climate change and to which 1040

humans more likely than not contributed.”302

This delimitation seems to be guided largely by the definition in the Refugee Convention, combined

with those affected by climate change.303 Persons who move internally are not included in the

definition, thereby excluding the majority of anticipated displaced persons. The inclusion of a “more

likely than not” benchmark is how the proponents of this definition try to reconcile the scientific

uncertainties surrounding exact effects of climate change,304 the need to take action and yet see to

it that no possible victims are excluded. In it we also see elements of the precautionary principle of

international environmental law which prescribes that scientific uncertainty should not be used for

purposes of not taking measures. The slippery slope of this definition is that contested scientific

advancements will have a determining effect on eligibility for refugee status and could be 1050

misapplied for policy reasons, as has happened with for example climate change sceptics.

300 DOCHERTY, B. and GIANNINI, T., “Confronting a rising tide: a proposal for a convention on climate change refugees”,

Harvard Environmental Law Review 2009, vol. 33, 368. 301 This does not mean however that a strict legal causation is implied necessarily. 302DOCHERTY, B. and GIANNINI, T., “Confronting a rising tide: a proposal for a convention on climate change refugees”,

Harvard Environmental Law Review 2009, vol. 33, 361. 303 Ibid., 369-371. 304 The inspiration for this standard is derived from the IPCC’s treatment of uncertainty: INTERGOVERNMENTAL PANEL ON

CLIMATE CHANGE, Climate Change 2014: Synthesis Report. Contribution of Working Groups I, II and III to the Fifth

Assessment Report of the Intergovernmental Panel on Climate Change, IPCC, Geneva, 2014, 37; More likely than not means

between 100% and more than 50%.

61

C. Hodgkinson and others’ “climate change displaced persons”

The proposition of HODGKINSON is quite similar to the previous, although somewhat

modified, first off, he does not make use of the term “climate refugee” but instead calls them

“Climate Change Displaced Persons” (CCDPs):

“CCDPs are groups of people whose habitual homes have become - or will, on

the balance of probabilities, become - temporarily or permanently uninhabitable

as a consequence of a climate change event.”305

Climate change events, according to HODGKINSON, would be sudden or gradual environmental 1060

disruption that are consistent with climate change.306 Making use of the word refugee is

conveniently avoided and internal displacement is included, thereby hypothetically broadening the

scope towards a large group of persons, and even going as far as anticipating movement. In the

sense of maintaining security this is very befitting. Since a too narrow focus on external movement

will not advance the cause of developing countries but only address the burden on developed

countries.307

Although not found in the definition, HODGKINSON, indicates that instead of the “more

likely than not” standard, he will raise the required threshold to “very likely”.308 Therefore the

necessary minimum degree of scientific certainty, as applied by the IPCC, is raised to 90%.309

Where some others leave room for either groups or individuals to fall under suggested protection 1070

instruments the conception of CCDPs is thus far the only one to treat persons uprooted as a result

of climate change as groups exclusively.

D. CRIDEAU’s “environmentally displaced persons”

The project at the University of Limoges is the final proposal we will review.310 It offers us

a view primarily taken from the French language draft and shows us that finding appropriate terms

and wording is difficult from others angles. Hence it adds a dimension to our appraisal of

international literature. Together with the proposal is a translated annex which we will quote from

305 HODGKINSON, D., BURTON, T., ANDERSON, H. and YOUNG, L., “‘The Hour when the Ship Comes In’: A Convention for

persons displaced by Climate Change”, Monash University Law Review 2010, vol. 36 no. 1, 90. 306 Ibid. 307 GERMAN ADVISORY COUNCIL ON GLOBAL CHANGE, Climate Change as a Security Risk, Earthscan, London, 2008, 204. 308 HODGKINSON, D., BURTON, T., ANDERSON, H. and YOUNG, L., “‘The Hour when the Ship Comes In’: A Convention for

persons displaced by Climate Change”, Monash University Law Review 2010, vol. 36 no. 1, 85-86. 309 The inspiration for this standard is derived from the IPCC’s treatment of uncertainty: INTERGOVERNMENTAL PANEL ON

CLIMATE CHANGE, Climate Change 2014: Synthesis Report. Contribution of Working Groups I, II and III to the Fifth

Assessment Report of the Intergovernmental Panel on Climate Change, IPCC, Geneva, 2014, 37. 310 CRIDEAU stands for “Centre de Recherches Interdisciplinaires en Droit de l’Environnement, de l’Aménagement et de

l’Urbanisme” at the Université de Limoges; for the sake of completeness it should be mentioned that this was a project between

CRIDEAU and the Université de Sherbrooke.

62

here to maintain textual coherence. For reasons of disconnecting ongoing debates, the use of

“refugee” is also specifically discarded.311 Instead displacee is used because of linguistic reasons 1080

but also to express a better use of diversity in causes going beyond persecution often ascribed to a

refugee. “Environmentally displaced persons” thus are:

“individuals, families and populations confronted with a sudden or gradual

environmental disaster that inexorably impacts their living conditions and

results in their forced displacement, at the outset or throughout, from their

habitual residence and requires their relocation and resettlement.”312

Since the convention proposal put forward stands out in coherence and clarity, defining all concepts

across the board and is the first one providing two language versions we will not be able to

adequately provide a summary analysis. We will point out that the underlying view seems to be to

include all possible environmental causes, thereby deliberately not making use of “ecological” or 1090

“climate” refugees.313

3. Conclusion

We cannot provide a thorough overview of all definitions that have been proposed in

academic literature. This would lead us too far beyond the scope of this dissertation. Therefore, we

only made a selection of those we considered to have been of key importance in academic literature.

First, we can observe a clear distinction between two approaches, a more pragmatic one and a more

decisive. Where our descriptive definitions focus on differing aspects of migration and are generally

reluctant to isolate climate change migration, our normative definitions are more daring towards

this problem. This can be partly explained by the difference in attitudes. The former has generally 1100

sought to investigate the existing framework and identify gaps where the latter have primarily

sought to address the gaps. This does not make the latter useless, since although we might not agree

with decisions made, the considerations do remain of importance to us.

Whenever proposals pushed through to the issues of separating climate change caused

migration from other causes we note that authors are not insensitive to the fact that they all belong

to a class of people who move because of environmental reasons. It seems though that the distinction

311 BÉTAILLE, J., “Des “réfugiés écologiques” à la protection des “déplacés environmentaux” éléments du débat juridique en

France”, Hommes et Migrations 2010, no. 1284, 146. 312 PRIEUR, M., MARGUENAUD, J-P., MONÉDIAIRE, G., BETAILLE, J., DROBENKO, B., GOUGUET, J-J., LAVIEILLE, J-M., NADAUD,

S. and ROETS, D., “Projet de convention relative au statut international de déplacés environnementaux”, Revue européenne de

droit de l’environnement 2008, vol. 4, Article 2(2). 313 LAVIEILLE, J-M, BETAILLE, J. and MARGUENAUD, J-P., “Rapport Explicatif: Projet de convention relative au statut

international de déplacés environmentaux”, Revue de l’Université de droit de Sherbrooke 2008-2009, no. 39, 462-463.

63

drawn is to some degree arbitrary and that the motivation, that of anthropogenic influence, is equally

so. This idea of corrective justice, albeit praiseworthy, faces us with problems of morality.314 The

human influence on the environment causes people to move not only due to climate change. We

have seen that other human-made natural disasters cause movement too and even further down the 1110

line also do non-human-made natural disasters. Moreover, it is such a complex phenomenon that

tipping points of migration will be influenced by environmental change, thereby complicating

solutions.315 We move to follow McADAM’s claim that it would be not only empirically flawed

but also conceptually problematic to say that climate change causes movement.316 To separate

climate refugees from environmental refugees is, as BUSH describes it “an incorrect bifurcation”.317

Creating a divide between affected persons along the lines of different causes forgoes our concerns,

protecting people should be based on necessity.318 Wherever this is possible however, we will keep

in mind the particular problems arising as a result of climate change.

After charting this “definitional quagmire”,319 in which we have seen a myriad of terms

sometimes interchangeably be applied, not all with due regard to many sensitivities such as 1120

environmental, climate change and even ecological refugee,320 migrant or displaced person, we

adopt or own description. On both sides of the approaches we have seen a move towards the

approval of the concept “environmentally displaced person”, abbreviated as EDP. Together with

most recent academic literature and for the purposes of our own investigation we will also make

use of this exact term. Largely we borrow the description used by EL-HINNAWI: “environmentally

displaced persons” (EDPs) are

“Persons who have been forced to leave their traditional habitat and have moved

either internally or across boundaries, temporarily or permanently, primarily

314 WYMAN, K. M., “Responses to Climate Migration”, Harvard Environmental Law Review 2013, vol. 37, 190-192; MCADAM,

J., Climate Change Displacement and International Law: Complementary Protection Standards, Legal and Protection Policy

Research Series, UNHCR, Geneva, May 2011, 54; For example, see McADAM’s comparison of paying for climate

displacement with carbon pricing, MCADAM, J., Climate Change, Forced Migration, and International Law, Oxford University

Press, Oxford, 2012, 97. 315 DOCHERTY, B. and GIANNINI, T., “Confronting a rising tide: a proposal for a convention on climate change refugees”,

Harvard Environmental Law Review 2009, vol. 33, 359; SCOTT, M., “Natural Disasters, Climate Change and Non-Refoulement:

What Scope for Resisting Expulsion under Articles 3 and 8 of the European Convention on Human Rights?” International

Journal of Refugee Law 2014, vol. 26(3), 409. 316 MCADAM, J., Climate Change, Forced Migration, and International Law, Oxford University Press, Oxford, 2012, 24; see

also KÄLIN, W. and SCHREPFER, N., Protecting People Crossing Borders in the Context of Climate Change: Normative Gaps

and Possible Approaches, Legal and Protection Policy Research Series, UNHCR, Geneva, February 2012, 74. 317 BUSH, B. J., “Redefining Environmental Refugees”, Georgetown Immigration Law Journal 2012-2013, vol. 27, 569-571. 318 HALL, N., “Moving Beyond its Mandate? UNHCR and Climate Change Displacement”, Journal of International

Organisation Studies 2015, 106; KOLMANNSKOG, V. and TREBBI, L., “Climate Change, natural disasters and displacement: a

multi-track approach to filling the protection gaps”, International Review of the Red Cross 2010, vol. 92 no. 879, 726-727. 319 COHEN, R. and BRADLEY, M., “Disasters and Displacement: Gaps in Protection”, Journal of International Humanitarian

Legal Studies 2010, vol. 1, 9. 320 Westra makes use of this term in: WESTRA, L., Environmental Justice & the Rights of Ecological Refugees, Earthscan,

London, 2009, 302.

64

because of a marked environmental disruption, whether natural or manmade

that renders them incapable of securing basic human needs.” 1130

We take the approach that EDPs have to be forced, because this is where the immediate necessity

of providing protection arises. They can be both internally as externally displaced, because the

feeling emerges that there is a difference in status between them, in order to investigate their status,

we would be hasty by excluding one or the other because the disruptions are for both types of

displacement environmental. What concerns permanent or temporary displacement is again a

question of the gravity of the disruption and the necessity of protection.

65

IV. Assessing the Status of EDPs 1140

1. International refugee law

1. 1. The Refugee Convention

The first and foremost source of international law that warrants our attention in its

applicability to the problem of environmentally displaced persons (EDPs) is the cornerstone of

international refugee law: the 1951 Geneva Convention Relating to the Status of Refugees (Refugee

Convention).321 It serves as the main point of departure for application of domestic refugee

provisions and is virtually universally accepted through its 145 State Parties.322 According to the

original text of the Refugee Convention the term “refugee” applies to a person who:

“As a result of events occurring before 1 January 1951 and owing to well-1150

founded fear of being persecuted for reasons of race, religion, nationality,

membership of a particular social group or political opinion, is outside the

country of his nationality and is unable or, owing to such fear, is unwilling to

avail himself of the protection of that country; or who, not having a nationality

and being outside the country of his former habitual residence as a result of such

events, is unable or, owing to such fear, is unwilling to return to it.”323

The “events” occurring before 1 January 1951 could either mean events occurring in Europe or

events occurring in Europe and elsewhere, depending on the declaration made by states upon

ratification.324 The incentive for this condition, and also for the greater part for this Convention was

the momentous upheaval caused by the Second World War. The massive deprivation of 1160

fundamental rights during this global conflict and the international community’s inability to respond

to it had resulted in tragic human catastrophes affecting civilian populations, who effectively were

trapped and lacked the legal means of seeking protection. Usually, the denial of fundamental rights

was expressed in persecution for reasons as stated above in the Refugee Convention’s definition.

Not only directly during the ongoing conflict, but also immediately afterwards large numbers of

321 Convention Relating to the Status of Refugees, Geneva, 28 July 1951, United Nations Treaty Series no. 189, entered into

force on 22 April 1954. 322 For ratification status see: https://treaties.un.org/pages/ViewDetailsII.aspx?src=TREATY&mtdsg_no=V-

2&chapter=5&Temp=mtdsg2&lang=en . 323 Article 1(A)(2) of the Convention Relating to the Status of Refugees, Geneva, 28 July 1951, United Nations Treaty Series

no. 189, entered into force on 22 April 1954. 324 Article 1(B)(1), Ibid.

https://treaties.un.org/pages/ViewDetailsII.aspx?src=TREATY&mtdsg_no=V-2&chapter=5&Temp=mtdsg2&lang=en

https://treaties.un.org/pages/ViewDetailsII.aspx?src=TREATY&mtdsg_no=V-2&chapter=5&Temp=mtdsg2&lang=en

66

persons were forced from their homes or expelled from their countries. Hence, it could be said that

the goal of the Refugee Convention is to protect people’s fundamental rights.

Unfortunately, the persecution of persons, or the inability of some states to protect persons from

persecution did not come to a halt on 1 January 1951.325 The perhaps overly Eurocentric condition

was removed from the definition, since it was anticipated that also in the future, situations would 1170

arise causing people to be in need of protection from persecution. The adequate response of the

1967 Protocol Relating to the Status of Refugees (Refugee Protocol) was to discard “As a result of

events occurring before 1 January 1951…” and “a result of such events” from the Convention’s

definition.326 For investigating the applicability of the Refugee Convention’s definition to EDPs,

we will take off from what substantially remains of the first part of the definition:

“A person who, owing to well-founded fear of being persecuted for reasons of

race, religion, nationality, membership of a particular social group or political

opinion, is outside the country of his nationality and is unable or, owing to such

fear, is unwilling to avail himself of the protection of that country.”

1180

1. 1. 1. Persecution as a condition for refugee recognition

A. What is persecution?

There is no further explanation in the Refugee Convention as to what persecution effectively

means. It could be assumed that this was intently done in the drafting stage, to leave room for

flexibility due to the unpredictable nature of how persecution might actually manifest itself.327

Article 33(1) of the Refugee Convention leads us to believe that at the least a threat to life or

freedom on account of race, religion, nationality, membership of a particular social group or

political opinion is always persecution. Evidently this serves as a minimum. Persecution necessarily

is more than what we infer from Article 33(1). The attempts undertaken so far at defining 1190

persecution have not been very successful,328 although this does not mean we necessarily need to

define it. We will have to adopt a clear approach for the purposes of this investigation.

325 Preamble of the Protocol Relating to the Status of Refugees, Geneva, 31 January 1967, United Nations Treaty Series no.

606, entered into force on 4 October 1967. 326 Article 1(2), Ibid. 327 CHIMNI, B. S., International Refugee Law: A Reader, Sage India, New Delhi, 2000, 5. 328 UNITED NATIONS HIGH COMMISSIONER FOR REFUGEES, Handbook and Guidelines on Procedures and Criteria for

Determining Refugee Status under the 1951 Convention and the 1967 Protocol Relating to the Status of Refugees, December

2011, HCR/1P/4/ENG/REV.3, paragraph 51; REMPELL, S., “Defining Persecution”, Utah Law Review 2013, no. 1, 284.

67

The Refugee Convention’s raison d’être is to serve as an instrument in international law

which provides for mechanisms to protect individuals’ fundamental rights.329 As such it is

sufficiently specific that we undertake to approach it as a lex specialis of international human rights

law. However, a lex specialis of its own kind. We do not use the Refugee Convention as a tool for

derogation from international human rights law, contrary to the principle of lex specialis derogat

legi generali. Due to the interactions between the two, we will use them as mutually reinforcing or

supplementary to each other.330 This also fits within the intentions of this study. GOODWIN-GILL

and McADAM have determined that acts constitute persecution when they are “sufficiently serious 1200

by their nature or repetition as to constitute a severe violation of basic human rights, or they must

amount to an accumulation of measures of equivalent severity”.331 We recognise herein that

persecution is centered around the basic human rights, and moreover acts are not necessarily to be

seen isolated from each other but can cumulatively amount to persecution.332 The opinion of

HATHAWAY that persecution is “the sustained or systemic violation of basic human rights

demonstrative of a failure of States’ protection” compresses this formulation and underlines the role

of states in protecting fundamental rights.333 The latter approach is one adopted in many domestic

applications of the Refugee Convention.334 There are as a consequence two necessary aspects of

persecution, one that prescribes serious harm and one that prescribes the failure of state

protection.335 1210

B. EDPs and “environmental persecution”

For EDPs, in order to fulfil this condition, the manifestation of this persecution would have

to be through environmental means. To summarize, for means of fulfilling the persecution

condition, a person’s basic human rights must be sufficiently threatened. The state under whose

jurisdiction that person is, is either at the origin of this threat or does not respond to that threat and

this threat is caused by disruptions of the environment. However unwieldy and unusual this appears,

329 ; ALEXANDER, H. and SIMON, J., “ “Unable to return” in the 1951 Refugee Convention: Stateless Refugees and Climate

Change”, Florida Journal of International Law 2014, 547. 330 RUBIO-MARÍN, R., Human Rights and Immigration, Oxford University Press, Oxford, 2014, 68. 331 GOODWIN-GILL, G. S. and MCADAM, J., The Refugee in International Law, Oxford University Press, Oxford, 2007, 91; It

should be mentioned that authors have accepted persecution is not limited to human rights abuses, see REMPELL, S., “Defining

Persecution”, Utah Law Review 2013, no. 1, 307. 332 UNITED NATIONS HIGH COMMISSIONER FOR REFUGEES, Handbook and Guidelines on Procedures and Criteria for


2011, HCR/1P/4/ENG/REV.3, paragraph 53. 333 HATHAWAY, J. C., The Law of Refugee Status, Butterworths, Ontario, 1991, 105. 334 HATHAWAY, J. C. and FOSTER, M., The Law of Refugee Status, Cambridge University Press, Cambridge, 2014, 196-197; For

example, United Kingdom and Canada, see: House of Lords 6 July 2000, Horvath v. Secretary of State for the Home

Department; Supreme Court of Canada 30 June 1993, 2 S.C.R. 689, Ward v. The Attorney General of Canada. 335 HATHAWAY, J. C. and FOSTER, M., The Law of Refugee Status, Cambridge University Press, Cambridge, 2014, 185.

68

such a state behavior is not inconceivable. Tactics in for example guerilla warfare, or tactics which

put coercive pressure on populations have been used in some conflicts which specifically were

targeted at destructing the environment in order to gain strategic benefits. These tactics have been 1220

dubbed “ecocide”.336 During the Second Indochina War,337 the Salvadoran Civil War and the

Guatemalan Civil War, defoliation by means of napalm and herbicides was used to target people,

thereby causing massive displacement.338 Although these conducts resulted in the mass violations

of human rights and the condition of environmental persecution might have been met, it is not

necessarily so for the remaining requirements of the definition of the Refugee Convention.

The use of ecocide in warfare tactics appears somewhat obsolete today and very likely even

contrary to customary international law,339 but apart from such a specific tactic there are other

examples of a policy of environmental degradation which might constitute persecution. The

Ma’Dan, or Marsh Arabs who predominantly live in the Iraqi Mesopotamian marshlands saw their

living environment change as a result of actions taken by their government. Over a long period of 1230

time, through the construction of dams, land reclamation and other projects, the marshes that

constituted the Marsh Arabs’ traditional habitat were drained. This resulted in the loss of their

means of sustenance, culture and effectively threatened their lives.340 A rare example of

environmental persecution, it illustrates that this is not merely a hypothetical possibility.

These cases in which we saw some form of environmental persecution are clear examples

of direct action taken by a state and how it caused people to flee their homes.341 But when a person

claims to be the victim of persecution by less obvious actions of a state or lack thereof, the

uncertainties increase, thus having a potential effect on meeting the necessary standard.342 Ioane

Teitiota, an i-Kiribati, or national of Kiribati, a nation comprising of several islands in the Central

Pacific Ocean, applied for refugee status in New Zealand on the grounds that he felt persecuted as 1240

a result of climate change. Popularly, his case has been referred to as that of the first would-be

336 BATES, D.C., “Environmental Refugees? Classifying Human Migrations Caused by Environmental Change”, Population

and Environment 2002, vol. 23, no. 5, 472; GLASSMAN, J., “Counter-insurgency, ecocide and the production of refugees:

Warfare As A Tool of Modernization”, Refuge 1992, vol. 12 no. 1, 28. 337 Also commonly referred to as the Vietnam War. 338 GLASSMAN, J., “Counter-insurgency, ecocide and the production of refugees: Warfare As A Tool of Modernization”, Refuge

1992, vol. 12 no. 1, 27-30; SOUZA, M. C. S. A. and PRADO, L. M., “The (in)applicability of the statute of refugees to

environmentally displaced persons”, Revista de Direito Internacional 2013, vol. 10, no. 2, 206-207. 339 Convention on the prohibition of military or any other hostile use of environmental modification techniques, New York, 10

December 1976, United Nations Treaty Series no. 1108, entered into force on 5 October 1978; paragraph 16 of Resolution 687

of the United Nations Security Council (3 April 1991), UN Doc. S/RES/687 (1991); Principle 24 of the Declaration of the

United Nations Conference on Environment and Development (14 June 1992), Rio de Janeiro, UN Doc. A/CONF.151/26 (vol.

I) (1992). 340 FURR, K. A., “Environmental Degradation in the Mesopotamian Marshlands: A Case Study in Legal Deficiencies”,

Southeastern Environmental Law Journal 2010-2011, vol. 19:2, 278-284. 341 COHEN, R. and BRADLEY, M., “Disasters and Displacement: Gaps in Protection”, Journal of International Humanitarian

Legal Studies 2010, vol. 1, 8. 342 “…well-founded fear…” see Article 1(A)(2) of the the Convention Relating to the Status of Refugees, Geneva, 28 July

1951, United Nations Treaty Series no. 189, entered into force on 22 April 1954.

69

climate refugee.343 Alleging that climate change in the case of an inhabitant of a low-lying island

state amounts to persecution, from the necessity that core human rights should be under a clear

threat, human agency will need to be established. Earlier, we have discussed some difficulties in

substantiating causation of climate change. Although sea level rise is one of the most promising

candidates to be a consequence solely caused by climate change, qualifying emissions of

greenhouse gasses as persecution would be tantamount to claiming that the entire emitting

community might be behaving as a persecuting agent.344 According to that view, refugee status

claimants fleeing climate change would be fleeing to nations which are causing persecution or

contributing to it in the first place.345 To prove that persecution happens through indirect agency is 1250

therefore a very difficult undertaking, since climate change is not easily fitted the glove of

persecution.346 As of yet this does not permanently close the door for these persons, since

“requirement of some form of human agency does not mean that environmental degradation,

whether associated with climate change or not, can never create pathways into the Refugee

Convention…”.347

The inability or unwillingness of a state to protect core human rights from being violated,

is another side of that human agency requirement. As we previously discussed the interaction

between human rights and the environment, there are not a great deal of examples showing us that

because of a state’s inaction basic human rights were violated. In the Budayeva case we saw that a

lack of response to a dangerous natural environment violated the right to life but even in that case 1260

it would be a far reach to label it systemic or sustained. Only when governments are unable or

unwilling to respond will we be able to say that there is persecution according to the Refugee

Convention. Unwillingness does not seem to be the issue, as can be demonstrated by particularly

affected countries’ leadership roles at environmental forums and organizing in groups such as the

Alliance of Small Island States (AOSIS) or the Small Island Developing States (SIDS). Various

343 WEISS, K. R., “The Making of a Climate Refugee”, Foreign Policy 28 January 2015,

http://foreignpolicy.com/2015/01/28/the-making-of-a-climate-refugee-kiribati-tarawa-teitiota/; NI, X. Y., “A Nation Going

Under: Legal Protection for “Climate Change Refugees””, Boston College International & Comparative Law Review 2015,

vol. 38, 336; MCDONALD, T., “The man who would be the first climate change refugee”, BBC News 5 November 2015,

http://www.bbc.com/news/world-asia-34674374 ; Others have also been called the “first climate refugees”, see PASCOE, S.,

“Sailing the Waves on Our Own: Climate Change Migration, Self-Determination and the Carteret Islands”, Queensland

University of Technology Law Review 2015, vol. 15 issue 2, 177. 344 MCADAM, J., Forced Migration, Human Rights and Security, Hart Publishing, Oxford, 2008, 35; ALEXANDER, H. and SIMON,

J., “ “Unable to return” in the 1951 Refugee Convention: Stateless Refugees and Climate Change”, Florida Journal of

International Law 2014, 534; DOCHERTY, B. and GIANNINI, T., “Confronting a rising tide: a proposal for a convention on climate

change refugees”, Harvard Environmental Law Review 2009, vol. 33, 358. 345 High Court of New Zealand (Auckland Registry) 26 November 2013, CIV-2013-404-3528, Ioane Teitiota v. Chief

Executive of the Ministry of Business Innovation and Employment, paragraphs 54-55. 346 MCADAM, J., Forced Migration, Human Rights and Security, Hart Publishing, Oxford, 2008, 302, 45. 347 High Court of New Zealand (Auckland Registry) 26 November 2013, CIV-2013-404-3528, Ioane Teitiota v. Chief

Executive of the Ministry of Business Innovation and Employment, paragraph 24; See also Supreme Court of New Zealand 20

July 2015, SC 7/2015, Ioane Teitiota v. Chief Executive of the Ministry of Business Innovation and Employment, paragraph

13; also see Immigration and Protection Tribunal of New Zealand (at Auckland) 25 June 2013, [2013] NZIPT 800413, AF

(Kiribati), paragraph 55.

http://foreignpolicy.com/2015/01/28/the-making-of-a-climate-refugee-kiribati-tarawa-teitiota/

http://www.bbc.com/news/world-asia-34674374

70

declarations have demonstrated that these countries feel the need to maintain the enjoyment of

human rights in their jurisdictions.348 The possibility remains that when a state is unable to secure

the enjoyment of basic human rights, this could amount to persecution. In the Teitiota case, the

High Court of New Zealand took this into consideration and found that although the standard of

living in Kiribati might be lower compared to that of New Zealand or Australia, this is not 1270

necessarily below adequate and that no systemic violation of the right to life could be established.349

An a contrario application, this consideration would mean that if Mr Teitiota had been able to

demonstrate a systemic threat or violation of amongst others, the right to life, under the Refugee

Convention the requirement of persecution would have been fulfilled.

1. 1. 2. The grounds of persecution

Not only should a person have a well-founded fear of being persecuted, that persecution

must be happening because of one of the five exhaustively documented reasons in the Refugee

Convention.350 Those five reasons are: race, religion, nationality, membership of a particular social

group or political opinion.351 The reasons that cause a person to be persecuted can be manifold, 1280

however not necessarily will there always be one as under the Refugee Convention. In the case of

an EDP suffering persecution it might well be possible that a state chooses not to protect individuals

because of scarce resources or simply a complete material or physical incapability of doing so.

While eventually, those who are the most reliant on their environment will be the most vulnerable

to its disruption, that by itself would not automatically qualify EDPs for status under the Refugee

Convention.

Because of insurgency or rebelling actions, the activities of Vietnamese or Salvadoran

people or the association with these actions by persecuting governments made the targeted approach

they suffered through ecocide, as previously discussed, one of persecution on the grounds of

political opinion or belonging to a particular social group. This makes that, whether or not some of 1290

the victims in fact actually were part of a particular social group, or had a political opinion which

348 Declaration of the Pacific Islands Forum Smaller Island States Leaders’ Summit (19 August 2008), The Niue Declaration

on Climate Change, Niue, 3; Declaration of the Small Island Developing States (14 November 2007), Malé Declaration on the

Human Dimension of Global Climate Change, Malé, 3. 349 High Court of New Zealand (Auckland Registry) 26 November 2013, CIV-2013-404-3528, Ioane Teitiota v. Chief

Executive of the Ministry of Business Innovation and Employment, paragraph 54. 350 This especially in the situation of natural disasters, see UNITED NATIONS HIGH COMMISSIONER FOR REFUGEES, Handbook

and Guidelines on Procedures and Criteria for Determining Refugee Status under the 1951 Convention and the 1967 Protocol

Relating to the Status of Refugees, December 2011, HCR/1P/4/ENG/REV.3, paragraph 39. 351 Article 1(A)(2) of the Convention Relating to the Status of Refugees, Geneva, 28 July 1951, United Nations Treaty Series

no. 189, entered into force on 22 April 1954.

71

was the initial reason of persecution, the focal point in such cases is the perception of a state which

imposes measures of a persecutory nature.

Possibly more than one reason of persecution can be invoked, so it appeared that the Marsh

Arabs saw themselves targeted for multiple reasons. Predominantly, the Marsh Arabs are seen as

Shi’ite Muslims and as generally favorable toward the 1991 uprising in Iraq just after the First Gulf

War.352 The hostility towards them and their distinct but vulnerable culture hence was driven not

only by their political activities, but was also ethnically and religiously motivated.353

We see that in some cases environmental persecution can be guided by reasons enumerated

under the Refugee Convention. Depending on what exactly constitutes “membership of a particular 1300

social group”, EDPs will have a better chance at claiming refugee status when they have passed the

test of persecution. Of all the grounds found in the Refugee Convention this is the least self-

explanatory and leaves room for flexible approaches.354 It was very likely the intention that it was

introduced into the treaty to catch future reasons of persecution which could not adequately be

described at the time, however that does not make it a “catch-all”. On the contrary, this ground

should not be described too limited.355 In its guidelines on criteria for determining Refugee Status,

the UNHCR adopted a single standard: “a particular social group is a group of persons who share a

common characteristic other than their risk of being persecuted, or who are perceived as a group by

society”.356

COOPER, in particular, has argued that in general persons who lack the political power to 1310

protect their environment form a social group.357 Although it could be said that a lack of political

power existed before the environmental persecution took on such a magnitude that forced the EDPs

to leave their traditional habitat, this does not mean the incentive for persecution was that lack of

political power. Such an approach would be tantamount to a reversal of the Refugee Convention’s

method. If EDPs’ lack of political power to protect their environment make them a social group,

then they have become such a group as a result of the environmental persecution they suffered. As

we see it, this logical fallacy does not agree with the UNHCR’s standard at all, furthermore it would

render the existence of any ground of persecution other than belonging to a particular social group

352 FURR, K. A., “Environmental Degradation in the Mesopotamian Marshlands: A Case Study in Legal Deficiencies”,

Southeastern Environmental Law Journal 2010-2011, vol. 19:2, 290. 353 Some even argue the persecution of the Marsh Arabs to be genocidal; see ibid., 274. 354 HATHAWAY, J. C. and FOSTER, M., The Law of Refugee Status, Cambridge University Press, Cambridge, 2014, 424. 355 Ibid., 425. 356 UNITED NATIONS HIGH COMMISSIONER FOR REFUGEES, Handbook and Guidelines on Procedures and Criteria for


2011, HCR/1P/4/ENG/REV.3, “Guidelines on International Protection no. 2”, paragraph 11. 357 COOPER, J. B., “Environmental Refugees: Meeting the Requirements of the Refugee Definition”, New York University

Environmental Law Journal 1997-1998, vol. 6, 521-526.

72

meaningless. Accordingly, as much as it would serve the cause of some EDPs, we cannot endorse

COOPER’s view. 1320

The High Court of New Zealand in the Teitiota case found, that due to the indiscriminate

nature of the consequences felt by climate change the refugee status claimant could not establish

being part of a particular social group.358 It remains to be seen however if it is as simple as stating

that climate change or by expansion marked environmental disruptions have a truly indiscriminate

nature. This because many of the impacts felt will depend on adaptive capacity, which in its own

turn is related to whether or not individuals are in a particularly vulnerable situation. Much will

depend on the circumstances of the case. For now, and in the case of the i-Kiribati, the problems

with the indiscriminate nature of their environmental suffering and them being a particular social

group or not, there seems to be agreement that these persons are not being targeted.359

It could be said that of all the traditional five grounds of persecution, the membership of a 1330

particular social group is the most promising ground to rely on for EDPs to claim refugee status,

but so far, these grounds have been shown not to be suitable. Therefore, the way in which they have

been applied remain almost foreign to the hardship of EDPs, and the traditional nature of these

grounds is at odds with the novelty of the type of harm suffered by EDPs.

1. 1. 3. Outside the country of his nationality

The requirement that will objectively exclude the largest amount of EDPs from being able

to be granted asylum under the Refugee Convention is the condition that prescribes a person must

be outside the country of his nationality. This means that, since we saw the majority of EDPS will

move internally, they immediately can be ruled out of the Refugee Convention’s applicability. The 1340

necessity of having crossed an internationally recognised border is the embodiment of the traditional

conceptions of being persecuted and being in need of protection, because of the traditional idea that

states generally act as direct persecuting agents. Although this has also come to apply to situations

where a non-state actor perpetrates against persons and the state does not respond to it,360 it is of

little relevance to EDPs. We can foresee the situation in which a state will be better equipped to

358 High Court of New Zealand (Auckland Registry) 26 November 2013, CIV-2013-404-3528, Ioane Teitiota v. Chief

Executive of the Ministry of Business Innovation and Employment, paragraph 28. 359 MCADAM, J., Climate Change Displacement and International Law: Complementary Protection Standards, Legal and

Protection Policy Research Series, UNHCR, Geneva, May 2011, 14; KÄLIN, W. and SCHREPFER, N., Protecting People Crossing

Borders in the Context of Climate Change: Normative Gaps and Possible Approaches, Legal and Protection Policy Research

Series, UNHCR, Geneva, February 2012, 31. 360 UNITED NATIONS HIGH COMMISSIONER FOR REFUGEES, Handbook and Guidelines on Procedures and Criteria for


2011, HCR/1P/4/ENG/REV.3, paragraph 65.

73

respond to environmental disruptions in parts of its territory which are less vulnerable to the impacts

thereof, hence forcing people to resettle to another part of that country. So a state is better able to

protect them from severe environmental disruptions. In more specific terms, this would be what

under the practices of the Refugee Convention is called an “internal flight or relocation

alternative”.361 1350

Exemplary in the incompatibility of the Refugee Convention and the predicament of EDPs

is this requirement of crossing a state border. The idea of a state persecutor and the resulting

unwillingness of a person to remain there is central under the Refugee Convention, it is not so in

the case of EDPs. The internal flight alternative, meaning that if a person is able to seek protection

in another part of his country rather than fleeing it altogether, is not eligible for refugee status,

serves us in pointing at where under existing mechanisms we should look for remedies. The idea of

subsidiarity for EDPs is worthwhile expanding on. Because, in general, states will not be behaving

in a direct persecutory manner EDPs will not see the need of leaving their country of nationality

altogether. This would not only create a large distance between their families, cultures and others

aspects of their lives but also create a higher uncertainty as to what their rights are, since in general 1360

they will be unable to claim refugee status as under the convention. Therefore, we see it appropriate

that in the unfortunate events people see themselves environmentally displaced, they make the

smallest necessary movement, internally when possible and externally where absolutely necessary.

1. 1. 4. Unable to return?

For those people who no longer are a national of any state, the situation is somewhat

different. Some instruments are in place addressing their status and aiming at reducing their

numbers.362 In cases of environmental disruptions the question at issue is when a person becomes

stateless as a result of environmental change. As a result of sea level rise, some low-lying island

states might become submerged and lose their territory. This would present a problem for the 1370

existence of those states, since as a result of complete loss of territory, a state could lose its statehood

as under the accepted idea of public international law that a state needs effective control over a

defined territory, in combination with a permanent population and a government.363 When faced

361 UNITED NATIONS HIGH COMMISSIONER FOR REFUGEES, Handbook and Guidelines on Procedures and Criteria for

Determining Refugee Status under the 1951 Convention and the 1967 Protocol Relating to the Status of Refugees, “Guidelines

on international protection no. 4”, December 2011, HCR/1P/4/ENG/REV.3, 105-113. 362 Convention Relating to the Status of Stateless Persons, New York City, 28 September 1954, United Nations Treaty Series

no. 360, entered into force on 6 June 1960; Convention Relating to the Reduction of Statelessness, New York City, 30 August

1961, United Nations Treaty Series no. 989, entered into force on 13 December 1975. 363 Article 1 of the Montevideo Convention on the Rights and Duties of States, Montevideo, 26 December 1933, entered into

force on 26 December 1934; This convention was only concluded among American states but is accepted as customary

international law.

74

with the disappearance of a state, up until now there has always been a successor state. But in this

situation the disappearing state will not subside into a new one, it will perish without an heir. Not

only does this create problems for the global system of public international law,364 it could also

create difficulties for citizens who find themselves without a country to protect their rights. Leaving

all creative ideas aside of how these states could continue to exist outside of the rigid Westphalian

notion of nation-states,365 as it stands today, we accept the possibility that these states will cease to

exist and their citizens as a result will become stateless.366 1380

In the first place these persons could fulfil conditions for claiming Stateless Status under

the Convention Relating to the Status of Stateless Persons,367 and might enjoy benefits of the

Convention Relating to the Reduction of Statelessness.368 The problem with their anticipated type

of statelessness is whether a de facto statelessness would apply to the treaty-specific definition of

statelessness in the Convention Relating to the Status of Stateless Persons.369 If this would be the

case or not, the use and relevance of these conventions is quite limited, because of their relatively

low amount of ratifications and its weak provisions. For persons who become de facto stateless and

have no ability to return to their former residence, there might be a more adequate recourse to the

provisions of the Refugee Convention.

Up until now, we have discussed the applicability of the definition of a refugee to that of 1390

EDPs as under the first part of Article 1(A)(2) of the Refugee Convention. The part of Article

1(A)(2) followed by the semicolon shows us a different view if it is separated from the first part:

“any person who: (2) …; or who, not having a nationality and being outside the country of his

former habitual residence as a result of such events, is unable or, owing to such fear, is unwilling

to return to it”.370 The reference of “ a result of such events”, it should be noted, was later scrapped

by the Refugee Protocol.371 To make sense of this provision, we could simplify it by expanding two

situations. On one side it would include persons without nationality who are outside their country

of former residence and are unable to return to it, and on another it would include persons also

364 Many uncertainties rise, see AMMER, M., NOWAK, M., STADLMAYR, L. and HAFNER, G., Legal Status and Legal Treatment

of Environmental Refugees, Federal Environment Agency (Umweltbundesamt), Dessau-Rosslau, November 2010, 9. 365 ATAPATTU, S., “Climate Change: Disappearing States, Migration, and challenges for International Law”, Washington

Journal of Environmental Law & Policy 2014-2015, vol. 4:1, 18-21. 366 BUSH, B. J., “Redefining Environmental Refugees”, Georgetown Immigration Law Journal 2012-2013, vol. 27, 562. 367 Convention Relating to the Status of Stateless Persons, New York City, 28 September 1954, United Nations Treaty Series

no. 360, entered into force on 6 June 1960. 368 Convention Relating to the Reduction of Statelessness, New York City, 30 August 1961, United Nations Treaty Series no.

989, entered into force on 13 December 1975. 369 WILLCOX, S., “A Rising Tide: the Implications of Climate Change Inundation for Human Rights and State Sovereignty”,

Essex Human Rights Law Review 2012, vol. 9, no. 1, 11. 370 Article 1(A)(2) of the Convention Relating to the Status of Refugees, Geneva, 28 July 1951, United Nations Treaty Series

no. 189, entered into force on 22 April 1954. 371 Article 1(2) of the Protocol Relating to the Status of Refugees, Geneva, 31 January 1967, United Nations Treaty Series no.

606, entered into force on 4 October 1967.

75

without a nationality who are outside their country of former residence and who are, owing to such

fear, unwilling to return to it. Pivotal is the reference to “owing to such fear”, from a textual analysis 1400

this is the well-founded fear of being persecuted for the five grounds we discussed above. For those

who have no nationality and are outside their country of former residence and are unable to return,

there is no reference to the part of Article 1(A)(2) of the Refugee Convention preceding the

semicolon.

A number of grammatical and textual elements support this separation of Article 1(A)(2) of

the Refugee Convention. Not only do we observe the use of a semicolon in the text, but also

suddenly there is a shift in verb tense, there is the use of the words “or who” after the semicolon

and there is no repeated use of the words “owing to a well-founded fear”.372 Instead, “owing to such

fears” was only placed in connection to “unwilling”. After thorough investigation of the object and

purpose of the Refugee Convention,373 SIMON and ALEXANDER come to the conclusion that this 1410

interpretation of the provisions in Article 1(A)(2) of the Refugee Convention would be suitable.374

Although it could be that subsequent state practice has altered the original meaning the article,375

this is not the case here, since this interpretation has not been tested domestically. There has not

been a modification by state practice in one way or another, since it has simply remained silent on

the point.376

If this were to hold up in the future, it could provide for a means of circumventing the single

test standard that all persons who wish to claim refugee status under the Refugee Convention need

to be at risk of persecution,377 and that for any of the five reasons. The practical meaning of “unable

to return” however will be decisive, because of its ambiguity it could range from a technical or legal

inability to return to the strictest physical inability to return, such as a country that is no longer 1420

above sea level.378 Ironically as it seems, for EDPs who will be hit the heaviest by environmental

disruption and will lose their country, there might be the easiest theoretically accessible possibility

to acquire refugee status. In a legal sense, they are the luckiest in relation to other EDPs who fall

outside the demanding conditions of persecution and enumerated grounds for refugee protection.

372 ALEXANDER, H. and SIMON, J., ““Unable to return” in the 1951 Refugee Convention: Stateless Refugees and Climate

Change”, Florida Journal of International Law 2014, 540-542. 373 Ibid., 544-562. 374 Ibid., 573. 375 Article 31 of the Vienna Convention on the Law of Treaties, Vienna, 23 May 1969, United Nations Treaty series no. 1155,

entered into force on 27 January 1980. 376 ALEXANDER, H. and SIMON, J., ““Unable to return” in the 1951 Refugee Convention: Stateless Refugees and Climate

Change”, Florida Journal of International Law 2014, 564-565. 377 Contrary to Lord Justice Pill’s reasoning in: High Court of Justice (Queen’s Bench Division) 31 July 2000, [2000] EWCA

Civ 500, Revenko v. Secretary of State for the Home Department, paragraph 67 and further. 378 ALEXANDER, H. and SIMON, J., ““Unable to return” in the 1951 Refugee Convention: Stateless Refugees and Climate

Change”, Florida Journal of International Law 2014, 570.

76

1. 2. Regional instruments

1. 2. 1. Convention Governing the Specific Aspects of Refugee Problems in Africa

The original text of the 1951 Refugee Convention served as a solution tailored to a, then

contemporary, European problem. Although in this regard the Refugee Convention was slightly 1430

altered by removing some of the hindrances such as its temporal and geographical scope through

the 1967 Refugee Protocol, the definition remained unchanged. The Second World War also raged

through the African continent but the events that created the incentive for the Refugee Convention

did not take place there. From the final events of this global conflict to the conclusion of the Refugee

Protocol, the situation in Africa had somewhat changed. The quest for self-determination and the

rapid process of decolonisation, subsequently resulting in civil strife or the ongoing wars for

independence left the region unstable and uprooted a great many people.379 This did not make the

Refugee Convention an instrument properly applicable to the African refugee problem that existed

at the time in its entirety.380 Shortly after, the Organisation of African Unity (OAU)381 created the

Convention Governing the Specific Aspects of Refugee Problems in Africa (OAU Refugee 1440

Convention).382

Although it recognises the Refugee Convention as “basic and universal” what concerns the

status of refugees, this does not keep the OAU Convention from adopting (in part) its own

approach.383 In Article 1(1), the original definition is reiterated and for that part we can refer to the

analysis above, but Article 1(2) provides for an addition.384 Besides those who fall under the

Refugee Convention’s definition, the OAU Convention extends refugee status to

“… every person who, owing to external aggression, occupation, foreign

domination or events seriously disturbing public order in either part or the whole

of his country of origin or nationality, is compelled to leave his place of habitual

379 EDWARDS, A., “Refugee Status Determination in Africa”, African Journal of International & Comparative Law 2006, vol.

14, 208; COOPER, J. B., “Environmental Refugees: Meeting the Requirements of the Refugee Definition”, New York University

Environmental Law Journal 1997-1998, vol. 6, 496. 380 For considerations see EDWARDS, A., “Refugee Status Determination in Africa”, African Journal of International &

Comparative Law 2006, vol. 14, 209. 381 The Organisation of African Unity was replaced by the African Union (AU) on 9 July 2002. 382 Organization of African Unity Convention Governing the Specific Aspects of Refugee Problems in Africa, Addis-Ababa,

10 September 1969, United Nations Treaty Series no. 1001, entered into force on 20 June 1974. 383 Preamble ibid. 384 CUDIAMAT, N., A., “Displacement Disparity: Filling the Gap of Protection for the Environmentally Displaced Person”,

Valparaíso University Law Review 2012, vol. 46 no. 3, 911.

77

residence in order to seek refuge in another place outside his country of origin 1450

or nationality.”385

Hereby, it abandons the requirement of persecution and the corresponding grounds-approach that

was necessary for the other part which considerably narrowed the possibilities for EDPs to find

protection under international law.386 At first sight however, this extension does not provide a great

deal of solace to EDPs. It retains the approach that refuge is sought in another country and that

persons are forced to leave. As was the case for the five grounds of persecution, it appears that the

greatest chance of success will be with the most malleable of the foreseen conditions since there is

no explicit reference to the environment. Hence, the central question to this definition will be what

the complete meaning is of “events seriously disturbing public order”.

In our opinion it is very clear that environmental disruptions can seriously disturb public 1460

order, but we will need to establish whether this also applies for the OAU Refugee Convention. The

treaty makes no reference to the natural environment. Although, this does not necessarily mean that

it is outside the object or purpose of the text. Thus, it has been claimed that the OAU refugee

definition implicitly includes EDPs,387 or for the same reason excludes them.388 However given the

uncertainty about whether the OAU Refugee Convention, just as was the case with the Refugee

Convention, was intended to advance beyond man-made disasters or not,389 it is hard to argue

whether the OAU Refugee Convention includes or excludes persons fleeing natural disasters. If the

solution were so straightforward, then a number of discussions arising from the Refugee Convention

would have been equally unnecessary.

The state practice in the African region is not reluctant to accepting people displaced by 1470

natural disasters, as illustrated by the acceptance of people fleeing the eruption of the Nyiragongo

volcano in 2002. States have not given the impression that they accept people seeking refuge on the

basis of the OAU Refugee Convention and therefore there is no opinio juris that allows us to

conclude decisively that the convention is applicable to natural disasters.390 On a secondary level

environmental disruptions can create situations which seriously disturb public order, however such

environmentally-induced conflicts alter the grounds for which a person is compelled to flee and

385 Article 1(2) of the Organization of African Unity Convention Governing the Specific Aspects of Refugee Problems in

Africa, Addis-Ababa, 10 September 1969, United Nations Treaty Series no. 1001, entered into force on 20 June 1974. 386 EDWARDS, A., “Refugee Status Determination in Africa”, African Journal of International & Comparative Law 2006, vol.

14, 211. 387 COOPER, J. B., “Environmental Refugees: Meeting the Requirements of the Refugee Definition”, New York University

Environmental Law Journal 1997-1998, vol. 6, 497; or even “unequivocally”, see LOPEZ, A., “The Protection of

Environmentally-Displaced Persons in International Law”, Environmental Law 2007, vol. 37, 389. 388 KEANE, D., “The Environmental Causes and Consequences of Migration: A Search for the Meaning of “Environmental

Refugees” “, The Georgetown International Environmental Law Review 2003-2004, vol. 16, 216. 389 EDWARDS, A., “Refugee Status Determination in Africa”, African Journal of International & Comparative Law 2006, vol.

14, 226. 390 Ibid., 227.

78

therefore they will have to seek recourse on a different basis. They will not be EDPs generally.

Under the OAU Refugee Convention we proceed cautiously and conclude, that it could be so that

persons fleeing as a result of environmental disruptions claim refugee status successfully,391

however a hypothetical possibility is not very promising. 1480

1. 2. 2. Cartagena Declaration on Refugees

Conflict and violence during the 1980s in Central America caused a persisting problem of

displacement.392 Similar to the situation of the OAU years earlier, some Central and Latin American

countries saw the necessity in granting special attention to their regional refugee problem in the

Cartagena Declaration.393 Although this collection of nations saw the OAU Refugee Convention as

an example, the Cartagena Declaration differs in a few essential ways. First and foremost, the

Cartagena Declaration is not a binding instrument,394 although this is sometimes overlooked.395 The

aspirational wording does serve as intention to develop state practice and create a coherent solution

to a common problem, nonetheless the declaration’s practical use should not be overestimated.396 1490

Furthermore, we find two differences with regard to its regional refugee definition:

“…includes among refugees persons who have fled their country because their

lives, safety or freedom have been threatened by generalized violence, foreign

aggression, internal conflicts, massive violation of human rights or other

circumstances which have seriously disturbed public order.”397


Refugees”, Global Environmental Politics 2010, vol. 10, no. 1, 73; KÄLIN, W. and SCHREPFER, N., Protecting People Crossing

Borders in the Context of Climate Change: Normative Gaps and Possible Approaches, Legal and Protection Policy Research

Series, UNHCR, Geneva, February 2012, 31. 392 KEANE, D., “The Environmental Causes and Consequences of Migration: A Search for the Meaning of “Environmental

Refugees” “, The Georgetown International Environmental Law Review 2003-2004, vol. 16, 216. 393 Number I of the Cartagena Declaration on Refugees, Cartagena de Indias, 22 November 1984, Adopted by the Colloquium

on the International Protection of Refugees in Central America, Mexico and Panama. 394 EDWARDS, A., “Refugee Status Determination in Africa”, African Journal of International & Comparative Law 2006, vol.

14, 210; WYMAN, K. M., “Responses to Climate Migration”, Harvard Environmental Law Review 2013, vol. 37, 180; COOPER,

J. B., “Environmental Refugees: Meeting the Requirements of the Refugee Definition”, New York University Environmental

Law Journal 1997-1998, vol. 6, 499; LOPEZ, A., “The Protection of Environmentally-Displaced Persons in International Law”,

Environmental Law 2007, vol. 37, 391; REED-HURTADO, M., The Cartagena Declaration on Refugees and the Protection of

People Fleeing Armed Conflict and Other Situations of Violence in Latin America, Legal and Protection Policy Research Series,

UNHCR, Geneva, June 2013, 9. 395 BIERMANN, F. and BOAS, I., “Preparing for a Warmer World: Towards a Global Governance System to Protect Climate

Refugees”, Global Environmental Politics 2010, vol. 10, no. 1, 73; CUDIAMAT, N., A., “Displacement Disparity: Filling the

Gap of Protection for the Environmentally Displaced Person”, Valparaíso University Law Review 2012, vol. 46 no. 3, 912;

these authors mistakenly refer to it as a “convention”. 396 REED-HURTADO, M., The Cartagena Declaration on Refugees and the Protection of People Fleeing Armed Conflict and

Other Situations of Violence in Latin America, Legal and Protection Policy Research Series, UNHCR, Geneva, June 2013, 32; 397 Number III(3) of the the Cartagena Declaration on Refugees, Cartagena de Indias, 22 November 1984, Adopted by the

Colloquium on the International Protection of Refugees in Central America, Mexico and Panama.

79

Although the definition is clearly modelled after the OAU refugee definition, in this case

there has been created clarity with regards to the meaning of seriously disturbed public order. It has

not been accepted to cover natural disasters.398

Where one door closes however, another opens. A new element in the Cartagena definition

is that of “massive violation of human rights”. This puts the respect for human rights and the duties 1500

of states in safeguarding humans from violations central. As we have seen earlier, human rights can

most definitely be affected by environmental impacts. On the other side, “lives, safety or freedom”

must be threatened by these massive violations, so the threshold again will be quite high. The hope

that existed around the impetus the Cartagena Declaration would provide unfortunately remains

purely rhetorical. According to REED-HURTADO the application of refugee law in Latin America

remains “out of sight and out of mind”.399 Thus unfortunately not only for EDPs but for anyone

outside the Refugee Convention definition we ought to minimise contemporary usefulness of the

Cartagena Declaration

1. 3. Conclusion 1510

Supported by a lengthy discussion on the applicability of international refugee law, we have

stretched the concepts and definitions available to their theoretical limits within a reasonable frame.

But this far and wide expedition cannot deceive us from the fact that international refugee law is

ill-suited for addressing the plight of environmentally displaced persons.400 At its extremities some

persons or groups of persons might find themselves haphazardly protected by refugee status,401 but

it remains that obviously the Refugee Convention is inadequate at addressing environmental

displacement. Our assessment corroborates the idea that the use of “environmental refugee” is a

legal misnomer and only applies to a very select group of EDPs.

On a regional scale there is some room for differing approaches, which seems justified,

because just as traditionally recognised and internationally protected refugees, also environmental 1520

displacement is a multifaceted problem. But these regional approaches only depart slightly from the

398 CONFERENCIA INTERNACIONAL SOBRE REFUGIADOS, DESPLAZADOS Y REPATRIADOS DE CENTRO AMÉRICA (CIREFCA),

Principles and Criteria for the Protection of and Assistance to Central American Refugees, Returnees and Displaced Persons

in Latin America, January 1990, paragraph 34; COHEN, R. and BRADLEY, M., “Disasters and Displacement: Gaps in Protection”,

Journal of International Humanitarian Legal Studies 2010, vol. 1, 9; REED-HURTADO, M., The Cartagena Declaration on

Refugees and the Protection of People Fleeing Armed Conflict and Other Situations of Violence in Latin America, Legal and

Protection Policy Research Series, UNHCR, Geneva, June 2013, 14. 399 Ibid., 33. 400 The principle of Non-refoulement is also found in the Refugee Convention but discussed under the chapter “international

human rights law” Part IV. 4. 2. 401 KÄLIN, W. and SCHREPFER, N., Protecting People Crossing Borders in the Context of Climate Change: Normative Gaps and

Possible Approaches, Legal and Protection Policy Research Series, UNHCR, Geneva, February 2012, 34.

80

traditional refugee approach, moreover they endorse it. Although this should not be reversed, since

departing from existing and traditional concepts might weaken current recourse for people who are

under its scope, the limited divergence at hand does not come to the aid of environmental displacees

either.402

2. Frameworks addressing internal displacement

The stringent application of international refugee law as being only in the first place

available for those who have crossed an international border excludes the majority of persons

predicted to be displaced by environmental disruptions. It makes this body of law difficult to be of 1530

use by itself. Therefore, a logical next step is to examine whether the law applicable to persons not

crossing an international border provides us with a complementary set of rules.

2. 1. The Guiding Principles on internal displacement

Cross-border displacement has been under international attention for a longer time than

internal displacement, therefore the need to address them as a distinct group in need of protection

has been less apparent in international law-making. This made it harder to identify specific

obligations resting on states when faced with forced internal movement, which they subsequently

had to draw from universally applicable rights, resulting in a hesitating response. As a result of this

need to address the specific protection and response internally displaced persons sometimes 1540

lacked,403 the Representative of the Secretary General on Internally Displaced Persons (IDPs)

drafted the Guiding Principles on Internal Displacement.404

The Guiding Principles serve as a form of restatement of customary international law,

human rights law and humanitarian law, the existing norms which were available have been

represented to as to readily be applied to internal displacement.405 However as their names suggest,

they primarily exist to serve as guidance and as such are not binding international law,406 this would

402 We have deliberately left out the analysis of another regional instrument since it does not seem to be entering into force

anytime soon, although it is the only one to incorporate “natural disasters” as legitimate cause of refuge, see Arab Convention

on Regulating Status of Refugees in the Arab Countries, 1994, League of Arab States, not yet entered into force. 403 KÄLIN, W., “The Guiding Principles on internal displacement as international minimum standard and protection tool”,

Refugee Survey Quarterly 2005, vol.24 issue 3, 28. 404 Report of the Representative of the Secretary-General on Internally Displaced Persons, DENG, F. M., to the Economic and

Social Council (11 February 1998), Guiding Principles on Internal Displacement, E/CN.4/1998/53/Add.2 (1998). 405 KÄLIN, W., “The Guiding Principles on internal displacement as international minimum standard and protection tool”,

Refugee Survey Quarterly 2005, vol.24 issue 3, 28. 406 ZETTER, R, GEMENNE, F., VAN DER GEEST, K. and ALBERT, M., Protecting Environmentally Displaced People: Developing

the Capacity of Legal and Normative Frameworks, Research report, Refugees Studies Centre, University of Oxford, February

2011, 21.

81

only be the case where they reflect provisions found in other treaty or customary international law.

At the time it could be said that the Guiding Principles did not even constitute normal soft law.407

The subsequent affirmation and incorporation over the years have moved this beyond doubt.408

According to the Guiding Principles, IDPs are: 1550

“…persons or groups of persons who have been forced or obliged to flee or to

leave their homes or places of habitual residence, in particular as a result of or

in order to avoid the effects of armed conflict, situations of generalized violence,

violations of human rights or natural or human-made disasters, and who have

not crossed an internationally recognised State border.”409

The first set of described situations have a more humanitarian origin and are less relevant to us. For

EDPs it is in particular the last set that offers opportunities. As we have already accepted and firmly

established how human rights and the environment are inextricably linked, this description leaves

no doubt as to the inclusion of both natural and human-made disasters. Therefore, whether

environmental displacement is a result of government action or not, in each case a proper response 1560

will be necessary. Since the Guiding Principles are not necessarily binding, much depends on how

they are implemented domestically and which approach a state takes.410

So far, in its implementation more emphasis has been given to conflict-induced

displacement than to the natural-related aspects of displacement.411 The non-binding nature of the

Guiding Principles has had the perverse effect of states reacting reluctant to its application because

they are not binding as such and because of existing conceptions of on what basis assistance should

be given to IDPs. Therefore, the Guiding Principles cannot have been said to have been all that

successful in practice. Prime examples are the inadequate response after the Hurricane Katrina in

the USA or after the Pakistan Earthquake, both in 2005.412 Whenever natural disasters are accepted

however, there is some discussion on what is a cause of displacement that merits special protection. 1570

Here, a distinction has been made between slow and sudden-onset disasters, the latter potentially

being excluded from application of IDP frameworks since they are not considered as disasters

407 KÄLIN, W., “The Guiding Principles on internal displacement as international minimum standard and protection tool”,

Refugee Survey Quarterly 2005, vol.24 issue 3, 29. 408 For example, see Resolution 60/1 of the United Nations General Assembly (24 October 2005), 2005 World Summit Outcome,

UN Doc. A/RES/60/1 (2005), paragraph 132. 409 Report of the Representative of the Secretary-General on Internally Displaced Persons, DENG, F. M., to the Economic and

Social Council (11 February 1998), Guiding Principles on Internal Displacement, E/CN.4/1998/53/Add.2 (1998), Introduction

(1.). 410 BEYANI, C., Climate Change and Internal Displacement, Washington The Brookings Institution, October 2014, 9. 411 COHEN, R. and BRADLEY, M., “Disasters and Displacement: Gaps in Protection”, Journal of International Humanitarian

Legal Studies 2010, vol. 1, 10; FERRIS, E., Planned Relocations, Disasters and Climate Change: Consolidating Good Practices

and Preparing for the Future, background paper to the Sanremo consultation, Brookings Institution, Washington D. C., March

2014, 16. 412 COHEN, R. and BRADLEY, M., “Disasters and Displacement: Gaps in Protection”, Journal of International Humanitarian

Legal Studies 2010, vol. 1, 10-11; for a thorough analysis see KROMM, C. and STURGIS, S., Hurricane Katrina and the Guiding

Principles on Internal Displacement, Special Report, Institute for Southern Studies, Durham, January 2008, 40.

82

across the board.413 The cause of this exclusion seems to be the uncertainty that arises when

assessing the voluntariness of a person’s flight. In the light of our earlier conceptualisation of

voluntariness it seems unfounded to exclude all slow-onset disasters in advance from causing forced

displacement.

The Guiding Principles, although they have been applauded for their potential applicability

and potential standard-setting in providing assistance to IDPs, have in practice not been

overwhelmingly convincing. Even identifying it as a document that is rising to become by itself an

instrument of customary international law through a bottom-up approach would perhaps be a 1580

premature conclusion. The reflected contemporary norms of international law within the Guiding

Principles remain applicable through their original sources, such as international human rights

norms and other provisions.414 It is as such that we will address them under the relevant chapters.

2. 2. The Convention for the Protection and Assistance of Internally Displaced Persons in

Africa

Analogous to the OAU Refugee Convention, the African Union (the successor organisation

of the OAU) has adopted a Convention for the Protection and Assistance of IDPs in Africa

(Kampala Convention).415 It is a unique instrument in the sense that it is the first, and so far the only

binding convention addressing internal displacement directly across a whole continent.416 But the 1590

novelty of the Kampala Convention does not wear off there, it proves an incentive for state parties

to afford adequate protection. Otherwise they might have to provide for reparations,417 a clear right

of the individual that could be enforced against a state on the basis of the Kampala Convention.

The material scope of the Kampala Convention is largely identical to that of the Guiding

Principles,418 with the exciting exception that it elaborates more on the role of the environment in

413 ZETTER, R, GEMENNE, F., VAN DER GEEST, K. and ALBERT, M., Protecting Environmentally Displaced People: Developing

the Capacity of Legal and Normative Frameworks, Research report, Refugees Studies Centre, University of Oxford, February

2011, 21; COHEN, R. and BRADLEY, M., “Disasters and Displacement: Gaps in Protection”, Journal of International

Humanitarian Legal Studies 2010, vol. 1, 10. 414 Furthermore, virtually no “new law” is created by the Guiding Principles, see KÄLIN, W., “The Guiding Principles on internal

displacement as international minimum standard and protection tool”, Refugee Survey Quarterly 2005, vol.24 issue 3, 29; 415 African Union Convention for the Protection and Assistance of Internally Displaced Persons in Africa, Kampala, 23 October

2009, entered into force on 6 December 2012. 416 BEYANI, C., Climate Change and Internal Displacement, Washington The Brookings Institution, October 2014, 8; ABEBE,

A., M., The Kampala Convention and Environmentally-induced Displacement in Africa, paper to the IOM intersessional

Workshop on Climate Change, Environmental Degradation and Migration, IOM, Geneva, 20 March 2011, 2. 417 Article 12 of the African Union Convention for the Protection and Assistance of Internally Displaced Persons in Africa,

Kampala, 23 October 2009, entered into force on 6 December 2012. 418 Article 1(k) ibid., the definition of IDP is identical to that of the Guiding Principles.

83

displacement.419 The Convention is the first to refer to climate change and displacement in the same

binding text.420 It has only recently entered into force, which hinders us from assessing its practical

implementation and the resulting benefits enjoyed by EDPs who have not moved across borders.

So far, the Kampala Convention is a promising framework. However, it only applies to those EDPs

internally displaced. 1600

3. International environmental law

The ecocentric approach that guides international environmental law421 might be able to

provide another perspective on the status of EDPs in international law, instead of the very specific,

but generally unsatisfactory fields we have discussed up until now. At its base however, the primary

actors of international law are sovereign states who operate independent from each other. Hence,

the relations between states have been expanded upon the most through the processes of

international law-making. International environmental law seeks to engage states and create

obligations vis-à-vis each other,422 with at their core the concern of protecting the environment. This

includes all aspects of protection, be it preventive or reactive. Not just inside the jurisdiction of 1610

states, but also beyond, tentatively provisions have been adopted.423

3. 1. The obligation not to cause significant transboundary harm

The necessity of diligent state behaviour is not limited to a state’s own jurisdiction but

extends, as part of customary international law to other states and to areas beyond any state’s

jurisdiction.424 The International Court of Justice has explained this as the obligation to use all

means at a state’s disposal “in order to avoid activities which take place in its territory, or in any

419 ABEBE, A., M., The Kampala Convention and Environmentally-induced Displacement in Africa, paper to the IOM

intersessional Workshop on Climate Change, Environmental Degradation and Migration, IOM, Geneva, 20 March 2011, 4. 420 Article 5(4) of the African Union Convention for the Protection and Assistance of Internally Displaced Persons in Africa,

Kampala, 23 October 2009, entered into force on 6 December 2012. 421 See Part II, 4. 2. 422 KNOX, J., “Diagonal Environmental Rights”, in GIBNEY, M. and SKOGLY, S., Universal Human Rights and Extraterritorial

Obligations, Philadelphia, University of Pennsylvania Press, 2010, 164. 423 An example is the common concern or heritage of man kind, see Preamble of The Antarctic Treaty, Washington D.C., 1

December 1959, United Nations Treaty Series no. 402, entered into force on 23 June 1961; Preamble and Article IX of the

Treaty on principles governing the activities of States in the exploration and use of outer space, including the moon and other

celestial bodies, Washington D.C., 27 January 1967, United Nations Treaty Series no. 610, entered into force on 10 October

1967; Article 11 of the Agreement governing the Activities of States on the Moon and Other Celestial Bodies, New York, 5

December 1979, United Nations Treaty Series no. 1363, entered into force on 11 July 1984; Article 136 of the United Nations

Convention on the Law of the Sea, Montego Bay, 10 December 1982, United Nations Treaty Series no. 1833, entered into force

on 16 November 1994. 424 International Court of Justice, The Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion, ICJ Reports 1996,

241, paragraph 29; see also Principle 21 of the Declaration of the United Nations Conference on the Human Environment (16

June 1972), Stockholm, U.N. Doc. A/Conf.48/14/Rev. 1 (1972).

84

area under its jurisdiction, causing significant damage to the environment of another State.”425

Although this is an obligation to prevent harm, if sufficiently significant damage has been caused,426

a state will be in breach of this obligation of customary international law and will have to make 1620

proper reparations. However, although environmental damage will not always cause displacement

of people, and the environmental displacement of persons will not at always be a result of another

state’s transboundary-caused harm, this subsequent duty to make reparations can be disputed to be

applicable to the dislocation of persons.427

If we take a migratory perspective on this obligation to cause no significant transboundary

harm, we infer that a state has the obligation not to cause displacement for environmental reasons

in another state.428 Unfortunately this has no consequences for the status of the individual. It is only

the state which will be held internationally accountable: if a person is displaced internally, his status

will remain identical to that of any IDP, if a person is displaced externally, the duty to make

reparations has, from an international legal point of view no consequence on the status of the 1630

displaced. We cannot see a duty to receive EDPs as a result of a breach of obligation,429 not by third

states necessarily or the state which has caused the harm. Furthermore, this would run

counterintuitively. One could ask why an EDP would seek protection from a state that had a decisive

role in causing his displacement. Although it is of a different nature, this reasoning we see implicitly

in the Teitiota case with regards to identifying a persecutory agent.

3. 2. A role for diagonal environmental rights?

In the case of international environmental law, we can see that we have to situate rights and

duties primarily on a horizontal level,430 that is to say between states as primary actors in

international law. As we have described them, EDPs are not situated on the same level as states, 1640

this already places them at a disadvantage.431 To assess the status of individual persons in

international environmental law will require therefore that we pay particular attention to provisions

which have extended rights to individuals against states which have them under their jurisdiction,

425 International Court of Justice, Pulp Mills on the River Uruguay (Argentina v. Uruguay), Judgment, ICJ Reports 2010, 56,

paragraph 101. 426 For the problems with attributing causation and climate change, see Part II 5. 427 These rules lack comprehensiveness, see AMMER, M., NOWAK, M., STADLMAYR, L. and HAFNER, G., Legal Status and Legal

Treatment of Environmental Refugees, Federal Environment Agency (Umweltbundesamt), Dessau-Rosslau, November 2010,

7. 428 EPINEY, A., “‘Environmental refugees’: aspects of international state responsibility” in PIGUET, E., PÉCOUD, A. and DE

GUCHTENEIRE, P., Migration and Climate Change, Cambridge University Press, Cambridge, 2011, 405. 429 Ibid. 430 KNOX, J., “Diagonal Environmental Rights”, in GIBNEY, M. and SKOGLY, S., Universal Human Rights and Extraterritorial

Obligations, Philadelphia, University of Pennsylvania Press, 2010, 164-165. 431 MCADAM, J., Climate Change, Forced Migration, and International Law, Oxford University Press, Oxford, 2012, 96.

85

thus on a vertical plane. The greatest difficulty will be, as we have seen so far in the distinction

between internal and international movement, to bestow rights onto individuals against states which

do not have them under their jurisdiction. These last rights are what KNOX formulates as “diagonal

environmental rights”.432

As a result of states’ general reluctance to incorporate rights of individuals directly into

international environmental law, there are few treaties that provide us with examples. The

Convention on Access to Information, Public Participation in Decision-making and Access to 1650

Justice in Environmental Matters, also known as the Aarhus Convention,433 of the United Nations

Economic Commission for Europe (UNECE) has as its objective “to contribute to the protection of

the right of every person of present and future generations to live in an environment adequate to his

or her health and well-being”.434 Its aim is to do so through enhancing access in procedures as

indicated by its full title. In Article 3(9), the Aarhus Convention ensures persons, for matters within

the scope of the Aarhus Convention, with access to justice in environmental matters “without

discrimination as to citizenship, nationality or domicile”. This is linked with provisions securing

any person access to an independent or impartial body for matters of access to information, justice

or participation of the public in environmental matters.435 Ergo, the Aarhus Convention provides in

rights for individuals, and within the same treaty extends them to all. 1660

The Convention on Environmental Impact Assessment in a Transboundary Context, known

as the Espoo Convention,436 also is a UNECE convention. It is primarily concerned with

environmental impact assessments (EIA) which have effects likely not limited to one state. It is

relevant for large projects and the results these might have on the environment. The Espoo

Convention prescribes that, a state which engages in environmental assessment has to provide the

opportunity to persons of areas likely to be affected by the projects, and which are outside of that

originating state, have to be treated equivalently to persons of that originating state.437 The

consequence is that the Espoo Convention grants rights diagonally, whenever states have enacted

vertically. Where a person therefore has standing in an EIA domestically, this is extended to likely

impacted persons across borders. 1670

432 KNOX, J., “Diagonal Environmental Rights”, in GIBNEY, M. and SKOGLY, S., Universal Human Rights and Extraterritorial

Obligations, Philadelphia, University of Pennsylvania Press, 2010, 148. 433 Convention on Access to Information, Public Participation in Decision-Making and Access to Justice in Environmental

Matters, Aarhus, 25 June 1998, United Nations Treaty Series no. 2161, entered into force on 30 October 2001. 434 Article 1, Ibid. 435 Article 9(1), Ibid. 436 Convention on Environmental Impact Assessment in a Transboundary Context, Espoo, 25 February 1991, United Nations

Treaty Series no. 1989, entered into force on 10 September 1997. 437 Article 2(6) of the Convention on Environmental Impact Assessment in a Transboundary Context, Espoo, 25 February 1991,

United Nations Treaty Series no. 1989, entered into force on 10 September 1997.

86

The relevance of these conventions for EDPs are limited. The corpus of international

environmental law seems unsuited to address displacement because of fundamental issues in its

approaches to solving problems. The raison d’être of international environmental law is not only

primarily to address the natural environment instead of the humans living in it, it is also lacking

rights for individuals. The mechanisms we were able to identify are intriguing when it comes to

extending rights in an international context, although they are designed for preventing

environmental degradation. The Aarhus Convention appears the strongest because it sets a

minimum through granting rights and then extending them, whereas the Espoo Convention does

not set out this minimum. If states have not established frameworks for EIAs, these cannot be

extended outward. We find the material scope of these discussed treaties not relevant to EDPs and 1680

therefore so far only the techniques could serve as guidance in law-making.

3. 3. Developments under the United Nations Framework Convention on Climate Change

Within the general body of international environmental law, it is possible to distinguish a

separate set of rules which specifically address climate change. In line with the original objective

of this dissertation, that is to investigate the status of “climate refugees”, we here have the

opportunity to return to the role of the climate change framework. In many respects, the UNFCCC

has the same unsuitability for addressing displacement because of its characteristics. Its focus is on

state to state relations and does not discuss duties toward individuals.438 Furthermore its objective

is not to be misunderstood. The UNFCCC has as ultimate objective the “stabilization of greenhouse 1690

gas concentrations in the atmosphere at a level that would prevent dangerous anthropogenic

interference with the climate system.”439 Prevention is the key factor.440

The difficult to identify a subgroup of EDPs displaced by climate change in theory would

only exist if prevention is inadequate. Dismissing the relevance of the UNFCCC at this stage would

be tantamount to throwing out the baby with the bathwater, because the UNFCCC also provides a

framework to develop adaptation to climate change.441 Although attention has been generally

directed at reducing harmful emissions, as evidenced by the Kyoto Protocol,442 and very recently

438 DOCHERTY, B. and GIANNINI, T., “Confronting a rising tide: a proposal for a convention on climate change refugees”,

Harvard Environmental Law Review 2009, vol. 33, 358. 439 Article 2 of the United Nations Framework Convention on Climate Change, New York, 9 May 1992, United Nations Treaty

Series no. 1771, entered into force on 21 March 1994; own emphasis added. 440 Article 3(3) and 4(1)(c) of the United Nations Framework Convention on Climate Change, New York, 9 May 1992, United

Nations Treaty Series no. 1771, entered into force on 21 March 1994. 441 Article 4(b)(d)(f) of the United Nations Framework Convention on Climate Change, New York, 9 May 1992, United Nations

Treaty Series no. 1771, entered into force on 21 March 1994. 442 Kyoto Protocol to the United Nations Framework Convention on Climate Change, Kyoto, 11 November 1997, United

Nations Treaty Series no. 2303, entered into force on 16 February 2005.

87

the Paris Agreement,443 adaptation is more and more coming under the attention of the climate

change regime. Up until recently, even within the adaptation framework no attention was given to

displacement.444 1700

3. 3. 1. The outcome of COP16: The Cancún Adaptation Framework

In preparation of the fourteenth Conference of the Parties (COP14) to the UNFCCC in

Poznan in 2008, an assembly text was drafted which included a reference to “climate refugees” by

the Ad Hoc Working Group on Long-Term Cooperative Action for the first time.445 Through a

lengthy process of intentional text alteration and renegotiation at COP15 in Copenhagen in 2009,446

the reference was finally adopted as part of the Cancún Agreements at COP16 in 2010. The

“mobility reference” as DE MOOR calls it,447 was agreed on as such:

“14. Invites all Parties to enhance action on adaptation … by undertaking, inter

alia, the following: … (f) measures to enhance understanding, coordination and 1710

cooperation with regard to climate change induced displacement, migration and

planned relocation, where appropriate, at the national, regional and

international levels…”448

The carefully chosen formulation of the text and its inviting language,449 in combination with the

soft law nature of COP decisions, or from another perspective their lack of legally-binding

character,450 make the mobility reference very weak from a legal perspective.451

The mobility reference does succeed in displaying the variety of actions that proactively or

reactively can be taken when responding to human mobility as a result of climate change. Such as

planned relocation, which is more anticipatory as opposed to forced displacement. Furthermore, the

443 Adoption of the Paris Agreement, Decision of the Conference of Parties to the United Nations Framework Convention on

Climate Change on its 21st Session (30 November 2015), Paris, FCCC/CP/2015/L.9/Rev., not yet entered into force. 444 DOCHERTY, B. and GIANNINI, T., “Confronting a rising tide: a proposal for a convention on climate change refugees”,

Harvard Environmental Law Review 2009, vol. 33, 395. 445 DE MOOR, N., International Environmental Law and migration; fitting the bill?, paper prepared for the 10th annual

colloquium of the IUCN Academy of Environmental law on “Global Environmental Law at a Crossroads”, 2012, 7. 446 WARNER, K., Climate Change Induced Displacement: Adaptation policy in the context of UNFCCC Climate Negotiations,

Legal and Protection Policy Research series, UNHCR, Geneva, May 2011, 9. 447 DE MOOR, N., International Environmental Law and migration; fitting the bill?, paper prepared for the 10th annual

colloquium of the IUCN Academy of Environmental law on “Global Environmental Law at a Crossroads”, 2012, 8. 448 14(f) of the Decision 1/CP16 of the Conference of Parties to the United Nations Framework Convention on Climate Change

on its 16th Session (15 March 2011), Cancún, FCCC/CP/2010/7/Add.1 (2011). 449 For example, the deliberate exclusion of “human rights” from the paragraph, see WARNER, K., Climate Change Induced

Displacement: Adaptation policy in the context of UNFCCC Climate Negotiations, Legal and Protection Policy Research series,

UNHCR, Geneva, May 2011, 10. 450 DE MOOR, N., International Environmental Law and migration; fitting the bill?, paper prepared for the 10th annual

colloquium of the IUCN Academy of Environmental law on “Global Environmental Law at a Crossroads”, 2012, 19. 451 MCADAM, J., “Creating New Norms on Climate Change, Natural Disasters and Displacement: International Developments

2010-2013”, Refuge 2013, vol. 29 no. 2, 13.

88

reference clearly indicates a layered approach of where action is appropriate, at international, 1720

regional or national level. Nonetheless, the impact of the Cancún mobility reference is limited what

concerns EDPs, although it is directed at least partially at their calvary. The hope exists that this

provision will provide impetus for developing a future set of guiding principles,452 analogous to the

Guiding Principles on Internal Displacement.

4. International human rights law

The ultimate legal framework, and the one that deserves our clearest attention is that of

international human rights. We have previously analysed the effects of climate change on the

enjoyment of human rights in an environmental context.453 In order to avoid unnecessarily repeating

the substantial analysis of these human rights we emphasise that the inferences from our previous 1730

analysis in Part II remain unaltered applicable in this chapter. The expanding of the class of “climate

refugees” to “environmentally displaced persons” does not have a large impact on the practical

application of these rights, since we have outlined the effects of climate change on human rights in

a specific environmental context. This chapter will primarily focus on territorial applications and

reach of the obligations of the previously discussed human rights, and the situation where specific

mechanisms are triggered which potentially could protect EDPs.

4. 1. Jurisdiction, control and application of obligations

4. 1. 1. Jurisdiction in the International Bill of Human Rights

So far, we have seen that there is a difference in applicable mechanisms depending on 1740

whether an EDP has crossed a boarder or not.454 This manifested itself in a dichotomy between

people externally displaced and people internally displaced. Although the international human

rights system affords for rights which are universal, the question is if this dichotomy persists in

international human rights too. The answer will depend on which obligations duty-bearers, the

states, are owed to whom, the right-holders, and under what circumstances. Earlier, we identified

452 WARNER, K., Climate Change Induced Displacement: Adaptation policy in the context of UNFCCC Climate Negotiations,

Legal and Protection Policy Research series, UNHCR, Geneva, May 2011, 14-18; MCADAM, J., “Creating New Norms on

Climate Change, Natural Disasters and Displacement: International Developments 2010-2013”, Refuge 2013, vol. 29 no. 2, 13. 453 See, Part II. 454 See, Part IV 1. And 2.

89

the minimum rights states have to realize generally what concerns socio-economic rights and the

positive obligations they are required to uphold in the case of civil rights. 455

The UDHR contains no provision on limitation of territorial jurisdiction of the rights

enshrined therein, although the preamble mentions “peoples of territories under the jurisdiction of

Member States”.456 Under the ICCPR however, we do find a limitation. In Article 2(1), the ICCPR 1750

prescribes that state parties must respect and ensure to “all individuals within its territory and

subject to its jurisdiction the rights recognised in the present Covenant”.457 This territorial scope is

a matter of particular interest for two reasons. Firstly, this means that states must fully respect rights

in the ICCPR not only for nationals within their territory, but also for non-nationals or aliens who

reside within their territory.458 If an alien is on a state’s territory legally or illegally should have no

consequence on the applicability of the right under the ICCPR, save for the situation foreseen in

Article 13 ICCPR.459 Secondly, the Human Rights Committee has seen this provision to mean that

it applies also to all persons within the power or effective control of a state, even if not on its

territory.460 This view has been endorsed in by the International Court of Justice in the Palestine

Wall Opinion.461 1760

In the ICESCR, we do not find this provision. The obligation on states is formulated as to

“take steps, individually and through international assistance and co-operation … to the maximum

of its available resources, with a view to achieving progressively the full realisation of the rights

recognised in the present Covenant.”462 It could be read as including some form of extraterritorial

obligation, but this would only constitute a form of co-operation among states,463 and unlikely a

duty of a state to realize socio-economic rights in other states. The reason for the absence of a

provision on territoriality is, according to the ICJ, because the rights secured in the ICESCR are

essentially territorial,464 making an explicit provision unnecessary. So far, the best-placed instances

455 See, respectively Part II 3. and Part II 2. 456 Universal Declaration of Human Rights, Paris, 10 December 1948, General Assembly Resolution 217 A (III), note: these

are Member States to the United Nations. 457 Article 2(1) of the International Covenant on Civil and Political Rights, New York, 16 December 1966, United Nations

Treaty Series no. 999, entered into force on 23 March 1976 (own emphasis added). 458 HUMAN RIGHTS COMMITTEE, General Comment no. 31: The Nature of the General Legal Obligation Imposed on States

Parties to the Covenant, 80th session, 26 May 2004, paragraph 10. 459 HUMAN RIGHTS COMMITTEE, General Comment no. 15: The position of aliens under the Covenant, 27th session, 1986,

paragraph 9. 460 HUMAN RIGHTS COMMITTEE, General Comment no. 31: The Nature of the General Legal Obligation Imposed on States

Parties to the Covenant, 80th session, 26 May 2004, paragraph 10. 461 International Court of Justice, Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory,

Advisory Opinion, ICJ Reports 2004, 178, paragraphs 108 and 111. 462 Article 2(1) of the International Covenant on Economic, Social and Cultural Rights, New York, 16 December 1966, United

Nations Treaty Series no. 998, entered into force on 3 January 1976. 463 In concurrence with the UN Charter, see Articles 55 and 56 of the Charter of the United Nations, San Francisco, 26 June

1945, entered into force 24 October 1945. 464 International Court of Justice, Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory,

Advisory Opinion, ICJ Reports 2004, 180, paragraph 112; This view would support why there are no territorial limitations in

90

to provide a practical application of human rights guaranteed in international law have been the

judicial systems established under regional human rights treaties. 1770

4. 1. 2. Jurisdiction in the ECHR

The African Charter does not have a jurisdictional territorial limitation amongst its

provisions.465 Further, all state parties undertake to “recognise the rights, duties and freedoms” and

“to adopt legislative or other measures to give effect to them.”466 Just as for the UDHR and the

African Charter, the American Declaration on the Rights and Duties of Man contains no territorial

limit to jurisdiction. In the ECHR, and subsequently under scrutiny of the ECtHR, which is one of

the strongest compliance mechanisms in international human rights law,467 Article 1 accords states

the duty to “secure to everyone within their jurisdiction” the rights and freedoms in the

Convention.468 The ECtHR has had the opportunity to provide a practical clarification as to what 1780

constitutes jurisdiction in the sense of the ECHR. In the case of Loizidou v. Turkey, the court

clarified that under its case-law the concept jurisdiction is not limited to national territory and a

state’s responsibility for human rights violations can be invoked if a state’s acts or omissions

produce effects outside its own territory,469 of particular significance in this case was the state’s

effective control of an area as a result of military action. This was later confirmed by the ECtHR in

the case of Ilascu and Others v. Moldova and Russia, where it clarified that “in exceptional

circumstances the acts of Contracting States performed outside their territory, or which produce

effects there, may amount to exercise by them of their jurisdiction…”470. There is no case at hand

providing us with a specific extension of jurisdiction in environmental cases resulting in

displacement, nor can we project when the “exceptional circumstance” condition will be met. We 1790

do see that the relevant condition for EDPs is not necessarily acts or omissions performed outside

of a state’s territory but on the produced effects, even if the relevant acts took place on a state’s own

territory.

either the European Social Charter or the Additional Protocol to the American Convention on Human Rights in the Areas of

Economic, Social and Cultural Rights. 465 SKOGLY, S. I., “Extraterritoriality - Universal Human Rights without Universal Obligations?”, in GIBNEY, M. and SKOGLY,

S., Universal Human Rights and Extraterritorial Obligations, Philadelphia, University of Pennsylvania Press, 2010, 89. 466 Article 1 of the African (Banjul) Charter on Human and Peoples’ Rights, Nairobi, 27 June 1981, United Nations Treaty

Series no. 1520, entered into force on 21 October 1986. 467 JODOIN, S. and LOFTS, K., Economic, Social and Cultural Rights and Climate Change: A Legal Reference Guide, Centre for

International Sustainable Development Law, New Haven, 2013, table at 11. 468 Article 1 of the European Convention for the Protection of Human Rights and Fundamental Freedoms as amended by

Protocols Nos. 11 and 14, Rome, 4 November 1950, European Treaty Series no. 005, entered into force on 3 September 1953; 469 European Court of Human Rights, Loizidou v. Turkey, 18 December 1996, judgment, application no. 15318/89, paragraph

52. 470 European Court of Human Rights, Ilascu and Others v. Moldova and Russia, judgment, 8 July 2004, application no.

48787/99, paragraph 314 (own emphasis added).

91

However, already before the considering of Ilascu and Others v. Moldova and Russia, the

ECtHR had deemed inadmissible a claim which alleged violations of ECHR provisions as a result

of military bombing operations on the basis of Article 1 ECHR.471 In the case of Bankovic and

Others v. Belgium and 16 Other Countries, the applicants argued that the bombings placed them

under effective control. As this would imply the claimants to be under effective control because

they were subject to any effect, would render Article 1 ECHR superfluous.472 Therefore we should

point out that the production of effects outside a territory is not easily applicable to EDPs, even 1800

though the ECtHR repeated its stance on that possibility at a later stage.473 It seems that if a military

operation causing a loss of life is not always sufficient to establish effective control under

exceptional circumstances in the contemporary constellation of international law, which has made

the building of peace of constitutive importance, then it will be much harder to establish jurisdiction

in the case of environmental pollution of effects resulting in widespread displacement.

4. 1. 3. Jurisdiction in the Inter-American System

The American Convention on Human Rights includes a territorial provision stating that “…

Parties undertake to respect the rights and freedoms recognised herein and to ensure to all persons

subject to their jurisdiction the free and full exercise of those rights and freedoms…”474. The textual 1810

meaning of this provision could be that state parties must respect the rights and freedoms of the

American Convention universally on one side and on the other hand they must ensure all persons

the free and full exercise of those rights and freedoms under their jurisdiction. The IACHR has not

taken this approach, since it found in the case of Saldaño v. Argentina, that Article 1(1) of the

American Convention on Human Rights was patterned on Article 1 of the ECHR. 475 As the IACHR

looked across the Atlantic Ocean to build its case-law on jurisdiction it found that a state could be

held responsible under certain circumstances for the acts and omissions of its agents which produce

effects or are undertaken outside that state’s own territory.

As a result of two Cuban jet-fighters that shot down two civilian aircraft over international

waters, the IACHR decided, contrarily to what the ECtHR found in Bankovic, that the civilian 1820

aircraft were under Cuban authority and the American Convention on Human Rights was

471 European Court of Human Rights, Bankovic and Others v. Belgium and 16 Other Countries, decision [GC], 12 December

2001, application no. 52207/99. 472 Ibid., paragraph 75. 473 The Bankovic judgment of 2001 predates the Ilascu judgment of 2004. 474 Article 1(1) of the American Convention on Human Rights, San Jose, 22 November 1969, entered into force on 18 July

1978 (own emphasis added). 475 Inter-American Commission on Human Rights, Victore Saldaño v. Argentina, 11 March 1999, report no. 38/99, paragraph

17.

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applicable.476 Although by this consideration, the IACHR takes an approach less stringent than the

ECtHR, we should not be too presumptuous in appreciating its potential. This does not include or

exclude anything particular about human rights in situations of transboundary environmental

disruptions, as the IACHR was possibly guided by the unique circumstances of the case.

One might wonder, not only about the practical relevance of this expansion on jurisdiction

and the territorial scope of state’s duties towards individuals, but also about which intermediate

conclusion we might draw from it. We have found little support for extending states’ international

human rights obligations to individuals beyond its territories. Apart from the duty not to cause

transboundary harm to the environment, which has a strong relationship to life and health of 1830

individuals,477 we do not find that a state has to actively ensure the realisation for individuals outside

its jurisdiction of those civil and socio-economic rights we have previously identified.478 Resulting,

individuals can only turn to the states under whose jurisdiction they find themselves, in general this

will be only relevant for internally displaced EDPs.

4. 1. 4. The right to control entry

The different resources available to states who are party to international human rights

instruments and the different domestic approaches to international law of those states479 make that

these rights are not applied in an identical way. Then, the question will be why an EDP does not

seek, or cannot seek, the jurisdiction of another state in order to avail himself of that state’s 1840

application and higher standard of realisation of the desired rights. Likely, this is a concern which

is central to migrants in the majority of scenarios, whether they are motivated by social, economic,

civil, political, conflict, environmental or other reasons.

476 Inter-American Commission on Human Rights, Armando Alejandre Jr. and Others v. Cuba, 29 September 1999, report no.

86/99, case 11.589, paragraph 25. 477 International Court of Justice, The Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion, ICJ Reports 1996,

241, paragraph 29. 478 See, Part II 2. And 3. 479 COMMITTEE ON ECONOMIC, SOCIAL AND CULTURAL RIGHTS, General Comment no. 9: The domestic application of the

Covenant, 19th session, 3 December 1998, paragraph 6; The origin behind this variance is due to whether a state adheres more

to a monistic idea, which directly applies international law in the domestic order if provisions are sufficiently self-executing,

or whether a state adheres more to dualism, which necessitates international norms to be incorporated somehow in the domestic

order.

93

An individual’s right to leave any country, including his own is a universally recognised

right. It is found in the UDHR,480 in the ICCPR,481 in Protocol 4 to the ECHR,482 in the American

Declaration on the Rights and Duties of Man,483 in the American Convention on Human Rights,484

and in the African Charter on Humans and Peoples’ Rights.485 This right to leave however, is only

just what it describes, and not more, since it stops at the border. Because an individual has a right

to leave one country, does not mean he automatically has the right to enter another country.486 This

right to control admissions, or establish immigration policy remains essentially a part of a state’s 1850

sovereignty.487

However, the prerogative of a state to control entry of non-nationals is not isolated from

other obligations.488 The right to control entry is qualified by other obligations, such as those a state

has under international human rights.489 Hence, we have to offset the right of an individual to leave

one’s country against the right of a state to control entry, given its obligations under international

law. Therefore, when a state has jurisdiction over aliens, it has the right to remove them from its

territory according to its laws of residence, at least as long as the state of removal does not violate

its obligations under international human rights law by doing so.

480 Article 13(2) of the Universal Declaration of Human Rights, Paris, 10 December 1948, General Assembly Resolution 217

A (III). 481 Article 12(2) of the International Covenant on Civil and Political Rights, New York, 16 December 1966, United Nations

Treaty Series no. 999, entered into force on 23 March 1976. 482 Article 2(2) of Protocol 4 to the European Convention for the Protection of Human Rights and Fundamental Freedoms,

securing certain Rights and Freedoms other than those already included in the Convention and in the First Protocol thereto,

Strasbourg, 16 September 1963, European Treaty Series no. 46, entered into force on 2 May 1968. 483 Article VIII of the American Declaration of the Rights and Duties of Man, Bogotá, 9th international conference of American

States, April 1948; here it is more negatively formulated as the right “not to leave except by his own will”. 484 Article 22(2) of the American Convention on Human Rights, San Jose, 22 November 1969, entered into force on 18 July

1978. 485 Article 12(2) of the African (Banjul) Charter on Human and Peoples’ Rights, Nairobi, 27 June 1981, United Nations Treaty

Series no. 1520, entered into force on 21 October 1986. 486 HUMAN RIGHTS COMMITTEE, General Comment no. 15: The position of aliens under the Covenant, 27th session, 1986,

paragraph 5; BOED, R., “The State of the Right of Asylum in International Law”, Duke Journal of comparative & International

Law 1994, vol. 5:1, 25. 487 European Court of Human Rights, Abdulaziz, Cabales and Balkandali v. The United Kingdom, judgment [Plenary], 28 May

1985, applications nos. 9214/80, 9473/81, 9474/81, paragraph 67; European Court of Human Rights, Hirsi Jamaa and Others

v. Italy, judgment [GC], 23 February 2012, application no. 27765/09, paragraph 179; European Court of Human Rights, Bonger

v. the Netherlands, decision, 15 September 2005, application no.10154/04, 13; also see BOED, R., “The State of the Right of

Asylum in International Law”, Duke Journal of comparative & International Law 1994, vol. 5:1, 3 and considerations at 24;

WOUTERS, C. W., International Legal Standards for the Protection from Refoulement, Intersentia Publishers, Mortsel, 2009,

569. 488 House of Lords 17 June 2004, [2004] UKHL 26, R v. Special Adjudicator ex parte Ullah, considerations at paragraph 6. 489 European Court of Human Rights, Chahal v. The United Kingdom, judgment [GC], 15 November 1996, application no.

22414/93, paragraph 73; European Court of Human Rights, Vilvarajah and Others v. The United Kingdom, judgment, 30

October 1991, applications nos. 13163/87, 13165/87, 13447/87, 13448/87, paragraph 102.

94

4. 2. The principle of non-refoulement 1860

4. 2. 1. Status of the principle of non-Refoulement

The tangent point, where a state’s sovereignty with regards to the control over aliens within

its jurisdiction, is checked by its obligations under international law to respect certain rights of

individuals, is where a state is forbidden to remove a non-national from its territory when as a result

of such removal a prescribed harm may be inflicted upon that removed person. The original

formulation and one of the most fundamental forms of this prohibition is found in the Refugee

Convention. This provision prescribes that a state shall not

“…expel or return a refugee in any manner whatsoever to the frontiers of

territories where his life or freedom would be threatened on account of his race,

religion, nationality, membership of a particular social group or political 1870

opinion.”490

In the French language version of the Refugee Convention Article 33 is formulated as “defense …

de refoulement”, as such it is well-known as the prohibition of refoulement. Under Article 42(1) of

the Refugee Convention, reservations to the prohibition of refoulement under the Refugee

Convention are not allowed. In Article 33(1) of the Refugee Convention, according to

LAUTERPACHT and BETHLEHEM, we capture the humanitarian essence of the Refugee

Convention.491 As this prohibition of refoulement returns nearly identical in the OAU

Convention,492 the American Convention on Human Rights,493 and the Cartagena Declaration,494 it

is considered by WOUTERS to be the cornerstone of international refugee law.495

In line with what we assessed earlier under the eligibility of EDPs for refugee status under 1880

the Refugee Convention,496 we can observe that as concerns its scope of application, the provision

in international refugee law is materially limited to the five enumerated grounds of race, religion,

nationality, membership of a particular social group or political opinion. From the outset this creates

490 Article 33(1) of the Convention Relating to the Status of Refugees, Geneva, 28 July 1951, United Nations Treaty Series no.

189, entered into force on 22 April 1954. 491 LAUTERPACHT, E., and BETHLEHEM, D., “The scope and content of the principle of non-refoulement: Opinion”, in FELLER,

E., TÜRK, V. and NICHOLSON, F., Refugee protection in international law: UNHCR’s global consultations on international

protection, Cambridge University Press, 2003, 107, paragraph 51. 492 Article 2(3) of the Organization of African Unity Convention Governing the Specific Aspects of Refugee Problems in

Africa, Addis-Ababa, 10 September 1969, United Nations Treaty Series no. 1001, entered into force on 20 June 1974. 493 Article 22(8) of the American Convention on Human Rights, San Jose, 22 November 1969, entered into force on 18 July

1978. 494 Number III(5) of the Cartagena Declaration on Refugees, Cartagena de Indias, 22 November 1984, Adopted by the

Colloquium on the International Protection of Refugees in Central America, Mexico and Panama. 495 WOUTERS, C. W., International Legal Standards for the Protection from Refoulement, Intersentia Publishers, Mortsel, 2009,

23. 496 See, Part IV 1. 1.

95

heavy limitations for EDPs, furthermore it is combined with the threat of life or freedom, which is

a significantly heightened threshold.

The prohibition of refoulement is not only found in international refugee law. The

Convention Against Torture and Other Cruel, Inhuman or Degrading Punishment497 (CAT) also

contains an explicit provision prohibiting the return of persons to another State, “where there are

substantial grounds for believing that he would be in danger of being subjected to torture.”498 As

such, the CAT departs from the rather limited application of non-refoulement to the five refugee 1890

grounds and even provides a further description of how to apply these substantial grounds. All

consideration have to be taken into account, and where applicable, the existence of “a consistent

pattern of gross, flagrant or mass violations of human rights.”499 This is driving us toward an

approach which explicitly prohibits removal of an individual, with as its relevant indicator the

violations of human rights. However, this human rights record will serve just as an indicator and

the application of the CAT remains limited to what is defined as torture under its first Article.500

Although no specific provisions prohibiting removal to another country in prescribed

situations are included, the ICCPR has been found to implicitly include a prohibition on refoulement

under some of its provisions.501 The right to life under Article 6 ICCPR, and the right not to be

subjected to torture or to cruel, inhuman or degrading treatment or punishment under Article 7 1900

ICCPR, are considered to include the prohibition on states to return individuals to another country

when they are faced with the risk to have the rights under Article 6 and 7 ICCPR violated there.502

According to the Human Rights Committee, this has its ground in Article 2 ICCPR.503 However,

under the ICESCR, because of a lack of territorial provisions amongst others, we do not find a

prohibition to refoul either. Not only do environmental disruptions threaten the right to life, but

many more rights, including socio-economic rights as protected by the ICESCR. This exclusion

therefore would constitute a setback for EDPs. Although, apart from independent violations of

497 Convention Against Torture and Other Cruel, Inhuman or Degrading Punishment, New York, 10 December 1984, United

Nations Treaty Series no. 1465, entered into force on 26 June 1987; The CAT has 159 parties, for ratification status see

https://treaties.un.org/Pages/ViewDetails.aspx?src=IND&mtdsg_no=IV-9&chapter=4&lang=en. 498 Article 3(1) of the Convention Against Torture and Other Cruel, Inhuman or Degrading Punishment, New York, 10

December 1984, United Nations Treaty Series no. 1465, entered into force on 26 June 1987. 499 Article 3(2), Ibid. 500 WOUTERS, C. W., International Legal Standards for the Protection from Refoulement, Intersentia Publishers, Mortsel, 2009,

439. 501 WOUTERS, C. W., International Legal Standards for the Protection from Refoulement, Intersentia Publishers, Mortsel, 2009,

381; FOSTER, M., “Non-Refoulement on the basis of Socio-Economic Deprivation: The Scope of Complementary Protection in

International Human Rights Law”, New Zealand Law Review 2009, 266. 502 HUMAN RIGHTS COMMITTEE, General Comment no. 20: Article 7 (Prohibition of Torture, or Other Cruel, Inhuman or

Degrading Treatment or Punishment), 44th session, 10 March 1992, paragraph 9; HUMAN RIGHTS COMMITTEE, General

Comment no. 31: The Nature of the General Legal Obligation Imposed on States Parties to the Covenant, 80th session, 26 May

2004, paragraph 12. 503 HUMAN RIGHTS COMMITTEE, General Comment no. 31: The Nature of the General Legal Obligation Imposed on States

Parties to the Covenant, 80th session, 26 May 2004, paragraph 12.

https://treaties.un.org/Pages/ViewDetails.aspx?src=IND&mtdsg_no=IV-9&chapter=4&lang=en

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socio-economic rights it has been argued that Article 6(1) ICCPR has to be regarded to include

socio-economic aspects which threaten the right to life.504

The explicit provision under Article 22(8) of the American Convention on Human Rights 1910

has enabled the IACtHR to develop a stance on the prohibition of refoulement. Although Article

22(8) is modelled similarly to Article 33(1) of the Refugee Convention, the IACtHR has recognised

the complementarity between international refugee and international human rights law. As such the

IACtHR recognises the principle of non-refoulement as a principle of customary international law,

which under the Inter-American system is broader in meaning and scope than its appearance in the

Refugee Convention.505 The ECHR however, contains no explicit refoulement provision. In line

with the reasoning applied to Article 6 and 7 of the ICCPR, the principle could be found to be

included in both Articles 2 and 3 of the ECHR.506 The ECtHR has also found this inclusion to be

the case.507

The presence of the principle of non-refoulement, explicitly and implicitly, across many 1920

treaties and in widespread consistent state practice and opinio juris, which has been scrutinized by

regional and domestic jurisprudential bodies and international scholars has led authors to conclude

that the principle of non-refoulement is part of customary international law.508 ALLAIN has even

ventured beyond this observation and considers it to be a part of jus cogens.509 However, he appears

to subscribe to the idea that states should recognise the peremptory nature non-refoulement from a

policy perspective.510 The discussion with regards to what status the principle of non-refoulement

has under international law will depend largely on what the provided content of the principle

constitutes. We are limited in engaging in this discussion at length by the objective of this

dissertation. Our primary concern is the practical application and potential of the principle of non-

refoulement for EDPs in removal cases. By accepting the ECtHR, which has developed considerable 1930

504 WOUTERS, C. W., International Legal Standards for the Protection from Refoulement, Intersentia Publishers, Mortsel, 2009,

380. 505 Inter-American Court of Human Rights, The Pacheco Tineo Family v. Plurinational State of Bolivia, judgment, 25

November 2013, paragraph 151. 506 LAUTERPACHT, E., and BETHLEHEM, D., “The scope and content of the principle of non-refoulement: Opinion” in FELLER,


protection, Cambridge University Press, 2003, 145, paragraph 207. 507 For Article 3 ECHR, European Court of Human Rights, Soering v. The United Kingdom, judgment [Plenary], 7 July 1989,

application no. 14038/88, paragraph 88; for Article 2 ECHR, European Court of Human Rights, Z. and T. v. The United

Kingdom, decision, 28 February 2006, application no. 27034/05, 6. 508 508 LAUTERPACHT, E., and BETHLEHEM, D., “The scope and content of the principle of non-refoulement: Opinion” in FELLER,


protection, Cambridge University Press, 2003, 163, paragraph 253; GOODWIN-GILL, G. S. and MCADAM, J., The Refugee in

International Law, Oxford University Press, Oxford, 2007, 348. 509 ALLAIN, J., “The jus cogens Nature of non-refoulement”, International Journal of Refugee Law 2001, 540; He is not the

only one to argue so, see Ibid. 510 Ibid., 557-558.

97

jurisprudence in removal cases, as primary guidance, we proceed to outline how the principle of

non-refoulement could be of use to EDPs who have moved across borders.

4. 2. 2. The content of the prohibition to refoul and the ECHR

A. the approach of the ECtHR on prohibition to return

The landmark case in which the removal of a person was tested in its compatibility with the

provisions of the ECHR was that of a German citizen, Jens Soering, who faced extradition from the

United Kingdom to the USA in order to face trial under suspicion of having committed homicide.

In the US this crime was potentially punishable with the death penalty. In Soering v. the United

Kingdom, the ECtHR considered that although the UK has no power over foreign jurisdictions, it 1940

cannot be expected to extradite a person under its jurisdiction, to where he faces a risk of being

subjected to conditions in the country of destination which are not in full accord with the safeguards

provided by the ECHR.511 It was not the possibility that the applicant could be convicted to the

death penalty that caused the ECtHR to conclude what could be a violation of Article 2 ECHR.

Rather, the conditions one is subjected to under the subsequent death row phenomenon time are

what caused a violation of Article 3 ECHR, the prohibition to be subjected to torture or to inhuman

or degrading treatment or punishment.512

Subsequently, in the case of Cruz Varas and Others v. Sweden, the ECtHR made

unequivocally clear that the same possibility of adjudicating on a state’s responsibility with regards

to Article 3 ECHR is not limited to cases of extradition, but also applies to expulsions.513 This was 1950

confirmed shortly after in Vilvarajah and Others v. the United Kingdom.514 In order to be in reach

of the scope of Article 3 ECHR however, there must be some minimal level of severity that involves

actual bodily injury or intense physical or mental suffering.515 We have found earlier that the ECtHR

has adopted case-law relating to ECHR obligations and the environment other than Article 3

ECHR,516 but the bulk of the cases relating to removal seem to focus on Article 3 ECHR. Therefore,

we will explore under which ECHR provisions an individual can resist removal.

511 European Court of Human Rights, Soering v. The United Kingdom, judgment [Plenary], 7 July 1989, application no.

14038/88, paragraph 87. 512 Ibid., paragraph 111. 513 European Court of Human Rights, Cruz Varas and Others v. Sweden, judgment [Plenary], 20 March 1991, application no.

15576/89, paragraph 70. 514 European Court of Human Rights, Vilvarajah and Others v. The United Kingdom, judgment, 30 October 1991, applications

nos. 13163/87, 13165/87, 13447/87, 13448/87, paragraph 103. 515 European Court of Human Rights, Pretty v. The United Kingdom, judgment, 29 April 2002, application no. 2346/02,

paragraph 52. 516 See, Part II 2.

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From the outset, the ECtHR has not excluded the possibility of other rights being raised

exceptionally, such as in theory for Article 6 ECHR, the right to a fair trial.517 This has been

confirmed and expanded to Article 5 ECHR, the right to liberty and security.518 The right to respect

for private and family life under Article 8 ECHR has not been found to be violated so far in a 1960

refoulement context, although the ECtHR has not discarded this possibility.519 However, the ECtHR

found that the integrity of the applicant would have to be substantially affected to a degree that

brings his predicament within the scope of Article 8 ECHR. In Z. and T. v. the United Kingdom, the

ECtHR declared a case inadmissible in which the applicants aimed at establishing that amongst

others, their freedom of religion as under Article 9 ECHR would be violated by removing them to

Pakistan. The ECtHR found that, although in very exceptional circumstances Article 9 ECHR might

be engaged, it would be difficult to see where a sufficiently flagrant violation of Article 9 ECHR

could occur, which at the same time is not a violation of Article 3 ECHR.520

This latter approach casts light on the ECtHR’s way of treating removal cases. It appears it

would rather establish violation of one provision so others do not have to be assessed at length. 1970

Furthermore, this efficiency would explain why relatively few judgments are found calling into

question rights other than Article 3 ECHR. The ECtHR has clearly displayed a different treatment

of rights of an absolute nature under the ECHR as opposed to other rights, of a non-absolute nature,

which are not automatically subject to such “compelling considerations” as the former.521 The

reasoning behind this requirement of the different threshold of violations needing to be sufficiently

flagrant or very exceptional seems clear from this perspective. However, not only Article 3 ECHR

is of an absolute nature under the ECHR,522 yet we find virtually no cases in which a state is found

in violation of Article 2 ECHR in removal cases.523 This does not mean the right to life under the

ECHR is never called into question in removal cases, but whenever this happens, the ECtHR finds

it unnecessary to separate a claim under Article 2 and 3 ECHR,524 and rather handles it under Article 1980

517 European Court of Human Rights, Soering v. The United Kingdom, judgment [Plenary], 7 July 1989, application no.

14038/88, paragraph 113. 518 European Court of Human Rights, Othman (Abu Qatada) v. The United Kingdom, judgment, 17 January 2012, application

no. 8139/09, paragraphs 233 and 258. 519 European Court of Human Rights, Bensaïd v. The United Kingdom, judgment, 6 February 2001, application no. 44599/98,

paragraph 47-49. 520 European Court of Human Rights, Z. and T. v. The United Kingdom, decision, 28 February 2006, application no. 27034/05,

7. 521 European Court of Human Rights, Z. and T. v. The United Kingdom, decision, 28 February 2006, application no. 27034/05,

6. 522 WOUTERS identifies a few more under the European human rights treaties, see WOUTERS, C. W., International Legal

Standards for the Protection from Refoulement, Intersentia Publishers, Mortsel, 2009, 345. 523 The Bader case is an exception, here both Article 2 and 3 ECHR were assessed simultaneously and subsequently found to

be violated, see European Court of Human Rights, Bader and Others v. Sweden, judgment, 8 November 2005, application no.

13284/04, respectively paragraph 33 and paragraphs 45-48. 524 For example, see European Court of Human Rights, D. v. The United Kingdom, judgment, 2 May 1997, application no.

30240/96, paragraph 59.

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3 ECHR.525 Moreover, the ECtHR has declared its case-law of removal under Article 3 ECHR to

apply equally to Article 2 ECHR.526

B. Socio-economic dimension of the prohibition to return

In theory, it could be said that all human rights potentially give rise to a prohibition to refoul

an individual to where he faces being denied of those rights.527 The practical application however

amounts to a high threshold for absolute rights and even a higher threshold for other rights where a

balancing test can be applied. The partially outdated claim that maintains a neat division between

civil and political rights on one side and socio-economic rights on the other side528 has led some to

consider that giving socio-economic rights a non-refoulement component altogether is not viable 1990

because of the nature of their progressive realisation.529 However, this is a simplistic conclusion,

since we have clearly found that socio-economic rights entail minimum core obligations, which are

seen to be justiciable.530 The practical difficulty however, exists in determining from a removing

state’s perspective whether a receiving state would be wrongly applying its resources in order to

come to a substandard realisation of a socio-economic right. This would cause a state, or its organs,

to venture far into matters of policy and likely beyond its expertise. In theory, we should keep in

mind that determining whether an expulsion is likely to result in a violation of socio-economic

rights should not be as complicated as assumed sometimes.531 Unfortunately, there has been

insufficient authority to put this in practice.532

We find little practical value in theoretically discussing how a prohibition to expel can be 2000

invoked on the basis of socio-economic rights because of its low acceptance. This is why, as a result

of the ECtHR’s considerations in Airey v. Ireland, we will aim at integrating our approach in order

to designate the socio-economic deprivations which may be suffered by EDPs in removal cases

which violate civil rights, as “implications of a social or economic nature”.533

525 WOUTERS identifies a few more under the European human rights treaties, see WOUTERS, C. W., International Legal

Standards for the Protection from Refoulement, Intersentia Publishers, Mortsel, 2009, 346. 526 European Court of Human Rights, Z. and T. v. The United Kingdom, decision, 28 February 2006, application no. 27034/05,

6. 527 House of Lords 17 June 2004, [2004] UKHL 26, R v. Special Adjudicator ex parte Ullah, paragraphs 24-25 Lord

Bingham, paragraph 67 Lord Carswell. 528 FOSTER, M., “Non-Refoulement on the basis of Socio-Economic Deprivation: The Scope of Complementary Protection in

International Human Rights Law”, New Zealand Law Review 2009, 285. 529 MCADAM, J., Complementary Protection in International Refugee Law, Oxford University Press, Oxford, 2007, 164. 530 See, Part II 3. 531 FOSTER, M., “Non-Refoulement on the basis of Socio-Economic Deprivation: The Scope of Complementary Protection in

International Human Rights Law”, New Zealand Law Review 2009, 281. 532 Ibid., 284. 533 European Court of Human Rights, Airey v. Ireland, judgment, 9 October 1979, application no. 6289/73, paragraph 26.

100

The inaugural case in which the ECtHR found a violation of Article 3 ECHR on the basis

of socio-economic deprivation was where a person who was in an advanced stage of the AIDS

disease would be returned to Saint Kitts. There he would suffer a lack of medical treatment due to

a lack in facilities and as a result this would “reduce his already limited life expectancy and subject

him to acute mental and physical suffering”.534 In D. v. the United Kingdom, the ECtHR reserved

sufficient flexibility to address situations and other contexts in which a violation of Article 3 ECHR 2010

might arise.535 Here, a new type of harm subject to non-refoulement arises under the ECtHR’s

application:

“…where the source of the risk of proscribed treatment in the receiving country

stems from factors which cannot engage either directly or indirectly the

responsibility of the public authorities of that country, or which, taken alone, do

not in themselves infringe the standards of that Article (art. 3). To limit the

application of Article 3 (art. 3) in this manner would be to undermine the

absolute character of its protection. In any such contexts, however, the Court

must subject all the circumstances surrounding the case to a rigorous scrutiny,

especially the applicant's personal situation in the expelling State.”536 2020

This emerges distinct from the case in which the receiving state is directly or intentionally, or

predominantly responsible for caused harm.537 Not only did the ECtHR have attention to the

medical circumstances of the case when it came to the conclusion that D.’s withdrawal of medical

treatment would be of the “most dramatic consequences” to him but it also took account of the

“conditions of adversity” in Saint Kitts.538 This would mean the poverty, the lack of shelter and the

lack of a proper diet affecting the applicant on return was part of the rigorous scrutiny of the

ECtHR.539

When seized with a similar question on whether a woman suffering from AIDS could be

returned to Uganda, the ECtHR did not alter its position from D. v. the United Kingom, rather it is

clarified. The Grand Chamber stressed that in order to resist removal, an issue under Article 3 ECHR 2030

could be raised “only in a very exceptional case, where the humanitarian grounds against removal

534 European Court of Human Rights, D. v. The United Kingdom, judgment, 2 May 1997, application no. 30240/96, paragraph

52. 535 Ibid., paragraph 49. 536 Ibid. 537 SCOTT, M., “Natural Disasters, Climate Change and Non-Refoulement: What Scope for Resisting Expulsion under Articles

3 and 8 of the European Convention on Human Rights?” International Journal of Refugee Law 2014, vol. 26(3), 412. 538 European Court of Human Rights, D. v. The United Kingdom, judgment, 2 May 1997, application no. 30240/96, paragraph

52. 539 FOSTER, M., “Non-Refoulement on the basis of Socio-Economic Deprivation: The Scope of Complementary Protection in

International Human Rights Law”, New Zealand Law Review 2009, 290.

101

are compelling.”540 The fact that life expectancy would be significantly reduced upon removal, was

not found to be sufficient by itself. The circumstances were found to differ, since N.’s disease was

not in a stage as advanced as D.’s and she had access to family support amongst others. By its

judgment in N. v. the United Kingdom, the ECtHR has solidified the high threshold and

consequentially placed it out of reach for a great number of EDPs.

What is more worrying however, is the policy considerations we find in the judgment. In

paragraph 44 of its judgment, the ECtHR refers to the “fair balance between the demands of the

general interest of the community and the requirements of the protection of the individual’s rights”,

which is inherent in the whole ECHR. Then, it claims that Article 3 ECHR cannot be expected to 2040

alleviate disparities of social and economic differences which exist between countries, since it

would “place too great a burden on Contracting Parties”.541 We consider this balancing to be quite

sudden, since on previous occasions the ECtHR had emphasized the absolute nature of Article 3

ECHR. It should be noted however, that there was a strong joint dissenting opinion of judges

TULKENS, BONELLO and SPIELMANN which unequivocally stated their strong disagreement

with the “highly controversial statement of the majority”.542 The policy statement of the ECtHR is

not very sudden, since it was bluntly put forward in Z. and T. v. the United Kingdom that

“On a purely pragmatic basis, it cannot be required that an expelling

Contracting State only return an alien to a country where the conditions are in

full and effective accord with each of the safeguards of the right and freedoms 2050

set out in the Convention.”543

But in the case of Z. and T. v. the United Kingdom this policy consideration, which raises even more

questions with regards to the universality of human rights,544 was done with respect to rights other

than Article 3 ECHR.

Apart from medical cases, the ECtHR has also found a violation of Article 3 ECHR in the

landmark case of M.S.S. v. Belgium and Greece. This concerned an Afghan asylum seeker who had

travelled to Belgium through Greece, but was returned to Greece and later found himself living

540 European Court of Human Rights, N. v. The United Kingdom, judgment [GC], 27 May 2008, application no. 26565/05,

paragraph 42. 541 Ibid., paragraph 44. 542 European Court of Human Rights, N. v. The United Kingdom, judgment [GC], 27 May 2008, application no. 26565/05, joint

dissenting opinion of Judges Tulkens, Bonello and Spielmann, paragraph 7; The balancing exercise for Article 3 ECHR was

later rejected however in European Court of Human Rights, Saadi v. Italy, judgment [GC], 28 February 2008, application no.

37201/06, paragraph 138. 543 European Court of Human Rights, Z. and T. v. The United Kingdom, decision, 28 February 2006, application no.

27034/05, 6. 544 FOSTER, M., “Non-Refoulement on the basis of Socio-Economic Deprivation: The Scope of Complementary Protection in

International Human Rights Law”, New Zealand Law Review 2009, 276; Cf. with SKOGLY and his thoughts on the Bankovic

case, see SKOGLY, S. I., “Extraterritoriality - Universal Human Rights without Universal Obligations?” in GIBNEY, M. and

SKOGLY, S., Universal Human Rights and Extraterritorial Obligations, Philadelphia, University of Pennsylvania Press, 2010,

22.

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under poor conditions in a park after being released from his place of detention.545 With regard to

the “particularly vulnerable” situation of an asylum-seeker, the Grand Chamber of the ECtHR found

that Belgium had violated Article 3 ECHR by returning the applicant to Greece, where he would be 2060

subjected to living conditions of which Belgium was aware.546

The meaning of what constitutes an “exceptional situation” and what could be the upside of

an asylum-seeker being considered “particularly vulnerable” is what will be of defining importance

for and EDP who has crossed a border to resist being refouled. There are no cases available in which

the principle of non-refoulement has been invoked at all by an individual on the basis of

environmental disruptions. The assessment we make with regards to EDPs is therefore largely

hypothetical, perhaps even aspirational, and leads us deep into uncharted territories of the principle

of non-refoulement. As it stands the case-law of the ECtHR is not receptive to EDPs, but not

necessarily the contrary either. It might be some time before the opportunity will arise to adjudicate

on the matter, if ever, and the case-law only evolves slowly.547 Unfortunately, considering the 2070

threshold applied so far in cases of unintentional and purely natural occurring harm the likelihood

of success for EDPs is small.548

SCOTT argues that where EDPs are displaced by the results of climate change, there is

some theoretical scope for the threshold to be lowered, since it is established that climate change is

caused by states, however not intentionally and therefore could be qualified as having a predominant

link with state action.549 That lower threshold would also apply to EDPs who are direct but

unintentional victims of state actions or inactions, potential dam failures or bust agricultural

policies. This approach would place central the socio-economic implications of natural effects and

their origin, instead of the displacement caused by it. But we should be mindful of the practical

problems surrounding the individualization of the effects of climate change even if this 2080

individualization is one degree less difficult. Therefore, the theoretical conclusion is that EDPs,

under differing circumstances and different requirements could invoke the prohibition on being

545 DE MOOR, N., Returning to a destructed environment: on the right and duty to return, working paper presented to the

ClimMig Conference on “Human Rights, Environmental Change, Migration and Displacement”, Vienna, 20-21 September

2012, 19. 546 European Court of Human Rights, M.S.S. v. Belgium and Greece, judgment [GC], 21 January 2011, application no.

30606/09, paragraph 353 and 359. 547 DE MOOR, N., Returning to a destructed environment: on the right and duty to return, working paper presented to the

ClimMig Conference on “Human Rights, Environmental Change, Migration and Displacement”, Vienna, 20-21 September

2012, 24. 548 SCOTT, M., “Natural Disasters, Climate Change and Non-Refoulement: What Scope for Resisting Expulsion under Articles

3 and 8 of the European Convention on Human Rights?” International Journal of Refugee Law 2014, vol. 26(3), 414. 549 SCOTT, M., “Natural Disasters, Climate Change and Non-Refoulement: What Scope for Resisting Expulsion under Articles

3 and 8 of the European Convention on Human Rights?” International Journal of Refugee Law 2014, vol. 26(3), 415

103

returned against the sending state, if the humanitarian grounds are compelling and his case is

sufficiently exceptional.

C. The status of individuals protected by the principle of non-refoulement

When a person is protected by the principle of non-refoulement, a state is withheld from

returning that person to a country where his rights are at risk of being violated. However, this right

not to be returned strangely does not come with a right to stay necessarily. It does not keep a state,

if it receives adequate guarantees,550 from removing an individual to where his rights will not be 2090

violated. This means the protected individual only receives a form of de facto asylum.551

The right to asylum which is found in the UDHR,552 in the OAU Refugee Convention,553

the American Declaration on the Rights and Duties of Man,554 and the American Convention on

Human Rights,555 Is structured as a right that is essentially granted by a state but is not enforceable

by the individual.556 States are reluctant to include an enforceable right of an individual to be granted

asylum in treaties, as demonstrated by the absence of such a provision in the Refugee Convention,

and prefer to keep this part of their immigration law as a prerogative of their sovereignty.

Although theoretically a failure to regularize for example could lead to an infringement of

ECHR provisions, such as the right to private and family life under Article 8 ECHR due to the

precarious situation persons with a lack of residential status are in, this is only very exceptionally 2100

possible.557 This means that the right not to be returned, combined with the absence to be granted

asylum or residential status,558 could result in persons finding themselves in some type of ‘legal

limbo’. Therefore, the recourse to the principle of non-refoulement is not a solution and as it stands

cannot be relied on too much, it should remain what it is as an unusual, subsidiary measure.

550 Otherwise there would be an indirect refoulement. 551 BOED, R., “The State of the Right of Asylum in International Law”, Duke Journal of comparative & International Law 1994,

vol. 5:1, 16. 552 Article 14(1) of the Universal Declaration of Human Rights, Paris, 10 December 1948, General Assembly Resolution 217

A (III). 553 Article II of the Organization of African Unity Convention Governing the Specific Aspects of Refugee Problems in Africa,

Addis-Ababa, 10 September 1969, United Nations Treaty Series no. 1001, entered into force on 20 June 1974. 554 Article XXVII of the American Declaration of the Rights and Duties of Man, Bogotá, 9th international conference of

American States, April 1948. 555 Article 22(7) of the American Convention on Human Rights, San Jose, 22 November 1969, entered into force on 18 July

1978. 556 BOED, R., “The State of the Right of Asylum in International Law”, Duke Journal of comparative & International Law 1994,

vol. 5:1, 9. 557 For example, see: European Court of Human Rights, Sisojeva and Others v. Latvia, judgment [GC], 15 January 2007,

application no. 60654/00. 558 BOED, R., “The State of the Right of Asylum in International Law”, Duke Journal of comparative & International Law

1994, vol. 5:1, 22.

105

V. Conclusion

The problem of environmental displacement is not new but as old as human kind. Where

we depend on our environment we have always been at risk of suffering as it suffers. However; the

proportion of what is coming is new. Therefore, so will be the problems associated with it. The goal 2110

of this dissertation was to see whether this old problem with new proportions has a contemporary

solution, and whether it is adequate. To put our findings together, we must however consider what

our standards and expectations are. It seems reasonable to say that as the suffering of a person in a

precarious situation increases, more and more recourse to protection should become available. In

no way this justifies the infliction of harm, as long as there is a remedy. Although there are

obligations on states to prevent harm from occurring, under the forecast of climate change this

appears to be insufficiently adequate. The recourse to protection when prevention has failed, then

will have to serve as an ultimate rectification. In the light of our foregoing investigation can we then

say that under international law, this rectification is at hand for environmentally displaced persons?

We have found no instrument or mechanism in international law that specifically grants 2120

environmentally displaced persons a distinct status. However, we have had to assess whether other

fields of international law are applicable to them. In general, we found that only under certain

exceptional circumstances environmentally displaced persons can successfully seek protection,

based on international law as it stands. In practice only a very small fraction of environmentally

displaced persons will be able to enjoy an adequate status. To some extent we could say that as the

suffering of an EDP increases, he will have a better chance of success in finding a remedy. This

increase is unfortunately both hypothetical and at best disparate. The possibility that a person who

is unable to return could apply with success for refugee status under the Refugee Convention has

not been explored enough and requires to be tested in practice, however this offers little certainty

for when the day comes that people will not be able to effectively return. Along the same lines we 2130

find the principle of non-refoulement, but the development of case-law has been slow and hesitant,

and offers even less solace. Because in fact EDPs who cannot be refouled do not have a legal right

to stay either. Those who leave a country, which has an environment that caused it to be unable to

provide for its inhabitants’ means, but not yet exceptionally so, fall through the cracks of

international law. Those who move within their country, remain in full possession of their rights

and status. In theory this is not problematic, but in practice the standard of enjoyment of human

rights, whether they are civil, socio-economic, collective or other is not uniform. Whatever little

106

status exists for environmentally displaced persons in international law, we perceive it as

inadequate.

At what point however, could we come to say that the status of a class of persons in 2140

international law is adequate? If the Refugee Convention, and by expansion international refugee

law, does not provide the possibility for EDPs to seek protection, then by all means at least for

EDPs it is inadequate. The Refugee Convention is however, an imperfect instrument. This does not

go to say that if EDPs could be protected by the Refugee Convention, it should be refused because

the Convention itself is imperfect. On the contrary, whatever is available for EDPs should be

explored, at any level. Since a unique opportunity of addressing environmental displacement exists,

a multitude of solutions, some more ambitious than the other, remain. Theoretically, the Refugee

Convention could be amended. A new protocol to the Refugee Convention could be drafted. A

protocol within the UNFCCC could be negotiated, however, considering what we concluded the

incorrect bifurcation between “environmental” and “climate change” displacement, it is doubtful 2150

that this is a proper route. A stand-alone convention could be drafted, where both international

environmental and international human rights law could provide a cross-over solution. One could

also move past the hard law, top-down solutions and start at domestic level by introducing national

or supranational legislation. From the bottom-up a state practice and opinion juris could be

developed leading to customary international law being formed. Even at the softest level, by

analogy to the Guiding Principles on internal displacement, a restatement of existing obligations,

but strengthening them by formulating them so as to apply to environmental displacement could be

a starting point. Declarations and resolutions of intergovernmental organisations and conference of

parties could give impetus to raising awareness and smoothening the path for more comprehensive

solutions, the important role of soft law should not be underestimated. However, the viability and 2160

appropriateness of each of these approaches will have to be studied and assessed, not only from a

legal perspective but also as a matter of policy, sociology, development and many others.

It comes to us that slowly, the discours surrounding environmental disruption, climate

change and displacement is entering a new phase. During a long discussion in the margins, caused

by the careless adoption of terminology and incorrect conceptualisation in academic literature

which created confusion and diffusion in scientific study, precious time has been lost. Furthermore,

there is now a consensus, that EDPs lack the status they minimally deserve, or will deserve. The

next step will be to act upon our awareness, and face the storm ahead.

107

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European Court of Human Rights, Hirsi Jamaa and Others v. Italy, judgment [GC], 23 February 2012,


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112

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Inter-American Commission on Human Rights, Victore Saldaño v. Argentina, 11 March 1999, report no. 38/99

Inter-American Commission on Human Rights, Armando Alejandre Jr. and Others v. Cuba, 29 September 1999,

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Inter-American Commission on Human Rights, Maya indigenous community of the Toledo District v. Belize, 12

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24

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COMMITTEE ON ECONOMIC, SOCIAL AND CULTURAL RIGHTS, General Comment no. 12: the right to adequate food

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COMMITTEE ON ECONOMIC, SOCIAL AND CULTURAL RIGHTS, General Comment no. 15: The right to water (art. 11

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120

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HUMAN RIGHTS COMMITTEE, General Comment no. 15: The position of aliens under the Covenant, 27th session,

1986

HUMAN RIGHTS COMMITTEE, General Comment no. 16: Article 17 (Right to privacy), 32nd session, 1988

HUMAN RIGHTS COMMITTEE, General Comment no. 20: Article 7 (Prohibition of Torture, or Other Cruel, Inhuman

or Degrading Treatment or Punishment), 44th session, 10 March 1992

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HUMAN RIGHTS COMMITTEE, General Comment no. 29: States of Emergency (Article 4), 24 July 2001

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82

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KROMM, C. and STURGIS, S., Hurricane Katrina and the Guiding Principles on Internal Displacement, Special

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UN Doc. A/CONF.151/26 (vol. I) (1992)


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Dimension of Global Climate Change, Male, 3

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Change, Niue, 3

Resolution 64/292 of the United Nations General Assembly (3 August 2010), The Human Right to Water and

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Decision 1/CP16 of the Conference of Parties to the United Nations Framework Convention on Climate Change

on its 16th Session (15 March 2011), Cancún, FCCC/CP/2010/7/Add.1 (2011)

E. Newspaper articles

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2015, http://www.theguardian.com/environment/2015/sep/22/kiribati-climate-change-refugee-told-he-must-

leave-new-zealand

HOWARD, E., “Hague climate change judgement could inspire a global civil movement”, The Guardian 24 June

2015, http://www.theguardian.com/environment/2015/jun/24/hague-climate-change-judgement-could-inspire-a-

global-civil-movement

MCDONALD, T., “The man who would be the first climate change refugee”, BBC News 5 November 2015,


MERCER, G., “The linkage between Zika and climate change”, The Atlantic 24 February 2016,


UNESCO, “I need a new home, my island has sunk”, 6 June 2012, http://www.unesco.org/new/en/rio-20/single-

view/news/i_need_a_new_home_my_island_has_sunk/#.Vvm7MeZBG3c

VERLAAN, J., “Kabinet vecht vonnis aan in Klimaatzaak Urgenda”, NRC Handelsblad 24 September 2015,


WEISS, K. R., “The Making of a Climate Refugee”, Foreign Policy 28 January 2015,


ZELNIENE, L., “Paris Agreement sees largest number of countries to sign on during one single day”, Politifact 26

April 2016, http://www.politifact.com/global-news/statements/2016/apr/26/ban-ki-moon/paris-agreement-sees-

largest-number-countries-sign/















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