Blog post by Carla Field, currently undertaking a PhD at the University of Leicester
In October 2021, the United Nations Office of the High Commissioner for Human Rights (OHCHR) adopted a resolution to appoint a Special Rapporteur on the promotion and protection of human rights in the context of climate change. The mandate of the Special Rapporteur includes monitoring states’ commitments under climate-focused treaties, including the Paris Agreement and the UN Framework Convention on Climate Change, to address the ongoing and highly detrimental impacts of the climate crisis. The resolution recognises that climate change:
‘… and the ensuing adverse effects, have led to economic, social, cultural, and environmental consequences that have negative implications, both direct and indirect, for the effective promotion and protection of human rights and the achievement of the Sustainable Development Goals’.
Following adoption of the resolution, the Human Rights Council appointed Ian Fry as the first Special Rapporteur on the promotion and protection of human rights in the context of climate change in March 2022. In his most recent report to the Human Rights Council, published ahead of the Council’s meeting from 19 June to 14 July 2023, the Special Rapporteur addressed one of the most controversial issues of the climate crisis, namely, protection of the rights of individuals displaced across international borders due to climate change.
In his report Fry outlines the ‘various international, regional, and national legal and policy approaches to address people displaced across international borders due to climate change’. Responding directly to the state and non-state submissions produced in response to his call for input, the report considers existing arrangement options for providing appropriate legal protection to such people and the existing protection gaps. The key issues addressed by the report include what I will be categorising as:
- Recognition; who is defined as a climate displaced person in this report?
- Vulnerable groups; are there particular persons most affected by climate change impacts?
- Solutions; what solutions to protecting climate change displaced persons are recognised by the report?
I will examine each of these key areas in turn in the commentary below.
Recognition
Fry examines the difficulties in ‘defining’ individuals displaced across borders in the context of climate change due to the lack of international consensus on the matter, which is evident from the submissions he received and the relevant international frameworks relating to climate change discussed in his report. Fry settles on the term ‘persons displaced across international borders due to climate change’, which I will here term ‘climate change displaced persons’. Fry’s definition side-steps questions concerning causation and the (in)voluntary nature of the movement. He identifies that the regular use of the term ‘mobility’ in defining climate change displaced persons adds to a narrative of ‘under-emphasis’ that risks minimising the human rights related harms inherent in displacement. Furthermore, he addresses how both states and the IOM’s use of the term ‘migrant’ to refer to climate change displaced persons obscures the involuntary nature of this movement.
Fry’s definition seems to be both unambiguous and constructive when assessing who is a person displaced due to climate change. However, the report goes on to address the complexities of distinguishing between expected or ‘natural’ climate-based disasters, described by Fry as ‘so-called natural disasters, such as earthquakes and tsunamis’ and those events where ‘climate change’ is the clear primary cause. Fry suggests that a distinction should be made between these two kinds of events when assessing cross-border climate displacement due to a different relationship of responsibility.
I would argue that Fry’s position that ‘people displaced due to climate change should be considered legally and procedurally different to those affected by geological disasters’, could create substantive issues in the future of climate-based claims for protection, by limiting who is recognised as a climate change displaced person. Firstly, decision makers are likely to lack the tools and skills necessary to make informed decisions as to whether a particular climate event from which an individual is fleeing could be considered to be within an expected or ‘normal’ range of events for their country of origin. This presents a functional issue, with decision makers needing in depth and clear knowledge of geographic and meteorological histories of various states, which is unfeasible. It is also highly likely that states will use this ‘procedurally different’ treatment between those fleeing climate-change events and those fleeing natural ‘geological disasters’ to set high and unattainable thresholds for proving an event is climate-changed based in order to limit the use of any new protection frameworks in this context. The distinction proposed by Fry fails to recognise the ever-changing landscape of climate change. It begs the question; at what stage does a climate or geological event surpass ‘normal’ limits and become an event not just associated with, but clearly caused by, climate change, and who has the authority to decide this?
The Central American Dry Corridor is a good example of the difficulties posed by Fry’s proposed distinction. There is no question that large scale displacement out of countries in the Dry Corridor, such as Honduras and El Salvador, is directly driven by climate change, which Fry comments on in his report. The increasing number of climate events seen in these countries, including drought and hurricanes, are widely attributed to the phenomena known as the El Niño Southern Oscillation cycle (ENSO). The ENSO refers to the periodic and historically predictable rise and fall in surface level temperature in the Pacific ocean. Depending on the period (El Nino vs La Nina) and the region, the ENSO has huge effects on the climate, increasing the likelihood of flooding and hurricanes, severe drought and wildfires. The Climate Risk Index for 2021 has noted that the effects of the ENSO are altering as a result of climate change, increasing the frequency and severity of climate-based extremes. However, the ENSO itself was first documented as early as the 16th century, and has always affected the resulting climate events in the region. These events could therefore be argued as a ‘natural’ or historically occurring, despite clearly being exacerbated by climate change.
This is a key example of where the distinction proposed by Fry in his report could be problematic. When does one decide that climate change has influenced weather-based phenomena enough to be ‘considered in the context of causality and responsibility’ of the international community as opposed to the individual state responsibility for ‘normal’ environmental disasters? Given the historic lack of political will to offer protection in cases of cross-border climate change displacement, states may use this proposed distinction as a way to limit the protection they offer in the future.
Fry has addressed the lack of political will in establishing clear and consistent protections for those displaced across borders due to climate change, noting that:
‘The countries that are historically the most responsible for the climate crisis spend more money securing their borders to keep migrants out than on tackling the crisis that forces people from their homes in the first place’.
This suggests that states may use the distinction between geological disasters and climate change as a legal loophole to minimise the protection they must offer to individuals making climate-based claims in their jurisdictions.
Concern around this distinction deepens when considered in light of recent jurisprudence from the Human Rights Committee concerning climate change displacement. In the 2020 case of Ioane Teitiota, the Committee adopted an ‘imminence’ requirement for protection claims by climate change displaced persons to succeed, imposing a sense of immediacy in relation to the assessment of future harm. This concept of ‘imminence’ has already been criticised by legal scholars[1] as setting an unreasonable test in climate change-based claims with potentially negative effects on the future of such claims and detrimental impacts on subsequent jurisprudence. Fry’s proposal for a distinction on the basis of causality, combined with the imminence requirement developed in Teitiota, is likely to create a two-step barrier to protection: sudden-onset climate disaster, such as hurricanes, may be difficult to ascribe clearly to climate change and thus would not meet the standard of ‘causality’ suggested by Fry. Yet, slow-onset disasters, such as sea-level rise, which are arguably easier to attribute to climate-change, are unlikely to meet the test of ‘imminence’. Fry’s proposed ‘causality’ test in conjunction with the ‘imminence’ test developed in Teitiota would give decision makers a large degree of discretion to avoid providing protection to climate change displaced persons reaching their jurisdictions.
Vulnerable Groups
In establishing his working definition of ‘persons displaced across international borders due to climate change’, Fry analyses relevant climate-based frameworks and highlights how the individualised impact of climate-based harms has been overlooked so far in the majority of these frameworks. For example, addressing the Nansen Initiative, Fry recognises that the framework’s definition of climate change displaced persons ‘ignores the fact that climate change can have an effect on an individual and may not necessarily lead to widespread losses’ which is how climate-change impacts have been traditionally viewed.
While there are clear instances of ‘widespread losses’, such as that seen in the large-scale displacement of persons out of Somalia from 2020 onwards, highlighted in the submissions of the Environmental Justice Foundation, there are many instances in which the effects of climate change will be more harshly felt by individuals, or individually affected minority groups. Fry’s report highlights that climate change affects various groups on a sliding-scale, and that the impacts of environmental degradation are often most prejudicial to the rights of women and girls, those who are minors or elderly, and indigenous populations.
The identification of particularly vulnerable groups and the call for an individualistic approach to protection, as opposed to previous approaches of ‘widespread’ loss taken in key soft law frameworks on climate change such as those mentioned above, echoes recent developments in international law on the protection of people’s rights in the context of climate change more generally. In a resolution recognising the right to a Clean, Healthy, and Sustainable Environment (CHSE) as a human right on 28 July 2022, the UN General Assembly notes that the right is related to other rights and existing international laws and calls on states, and other actors, ‘to adopt policies, to enhance international cooperation, strengthen capacity-building and continue to share good practices in order to scale up efforts to ensure a clean, healthy and sustainable environment for all.’ The General Assembly also affirms that the promotion of the human right to a CHSE ‘requires the full implementation of the multilateral environmental agreements under the principles of international environmental law’.
Many of the ‘environmental agreements’ states are signatory to have provisions to recognise and support climate change displaced persons, such as the previously referenced Nansen Initiative. The right to a CHSE may therefore encourage states to implement further support for climate change displaced persons, notwithstanding the problems concerning the recognition of climate change displaced persons discussed above. What is particularly significant is that the text of the General Assembly resolution also recognises that:
‘the consequences [of environmental degradation] are felt most acutely by women and girls and those segments of the population that are already in vulnerable situations, including indigenous peoples, children, older persons and persons with disabilities.’
In highlighting the groups most vulnerable in the context of climate change displacement in his report, and read in line with the General Assembly’s recognition of the right to CHSE, there is potentially an argument for protection of individuals who are already displaced due to climate change in the existing refugee law regime. Individuals from these vulnerable groups who have been displaced and are facing serious or irreparable harm as a result of the individual effects of climate change on their livelihood, education, health, or freedom could arguably be considered persecuted as a result of belonging to one or more of these vulnerable groups.
An abstract example, not based on existing case-law, may be drawn from information on the status of women affected by climate change provided by Fry’s Fact Finding visit to Bangladesh in April 2023. It is arguable that an indigenous woman from Bangladesh displaced across international borders by the effects of climate change would satisfy the ‘persecution’ element of the refugee definition. Severe and debilitating health crises including miscarriages, rapid infertility, and hair loss due to the effects of climate change, all identified in the above mentioned fact finding report, may amount to a violation of the right to CHSE which is, in turn, leading to irrevocable harm constituting a violation of her right to health under Article 12 of the ICESCR, and her right to reproductive health under Article 11 of CEDAW, as a result of her membership of a particular social group (an indigenous woman in Bangladesh). While the state of Bangladesh cannot be said to have responsibility for the climate change effects that have led to these violations, they have arguably failed to safeguard her rights by inadequately implementing healthcare accessibility in a non-discriminatory manner that is mindful of the challenges faced by her social group. As is well established, finance or resource constraints in the country of origin cannot be used to argue that economic or social rights violations, such as that of health, can be considered ‘fair’ if the state has not used its resources in a non-discriminatory manner. The potential of such a claim under the existing refugee law regime is also given further weight by a failure of the state to safeguard the right to CHSE that has ultimately led to such health issues which she cannot get support for. This example aims to highlight the potential that this recognition of vulnerable groups has to protect individuals displaced across borders due to climate change under the existing refugee regime while the international community looks to more concrete and specific solutions.
Solutions
So, what are the concrete solutions for climate change displaced persons in the future? In the concluding recommendations of his report, Fry has proposed that the General Assembly ‘commence negotiations on an optional protocol… to define and give legal protection to persons displaced across international borders due to climate change.’ The recommendation of an optional protocol to the Refugee Convention, while better than no normative hard-law protection for climate change displaced persons, does present a number of challenges.
Firstly, an optional protocol is unlikely to support individuals who are displaced internally due to climate change as an individual cannot be recognised as a refugee in their own state. Refugee status fundamentally requires an individual to have crossed an international border. Therefore, this group of climate displaced persons would remain unprotected by the elaboration of the proposed optional protocol.
The proposal is not without its challenges in the cross-border context either. Individuals claiming protection under the Refugee Convention need to prove persecution, and it has been widely argued that those displaced due to climate change do not meet the persecution element of the refugee definition. While I have highlighted how the vulnerable groups identified by Fry could strengthen protection arguments under the persecution criterion of the current refugee regime in some instances, for most this will not be the case. It will be difficult to adapt the refugee definition within an optional protocol to include all individuals who require protection, but do not fulfil the requirement of persecution. Therefore, the protocol will have to include an expansion of the refugee definition which does not require the presence of persecution in climate change displacement claims, but instead provides a more general prohibition of the return to harm. Such an approach is to be found in subsidiary protection. The tests present in claims for protection seen under Article 6 of the ICCPR or under Article 3 of the ECHR in a European context are less concerned with the administering of harm and more concerned with the significance of the harm. Harm that is irreparable, leaving significant and long-term effects on the individual, is enough to warrant protection without concern for the actors of harm. An optional protocol to the refugee convention would have to adopt a similar approach if it were to ensure adequate protection is available to all who view themselves at risk of climate-change triggered harm, not just those who face a real risk of persecution.
Furthermore, a predominant issue in the climate change displacement context is that violations of economic and social rights (such as access to safe housing or the right to health) tend to be the primary violations, although violations of economic and social rights can in turn feed into violations of civil and political rights (such as the right to life). Under the existing refugee regime ESC rights violations have historically been side-lined. Consequently, claims solely concerning ESC rights are often not afforded the same protection as civil and political rights. The example provided in the above section of an indigenous woman from Bangladesh explored only violations of ESC rights, but these violations clearly entail irrevocable harm to the individual. If an optional protocol is developed, it will be important that the protocol outline the relevance of ESC rights in these cases.
Not only will it be important for the proposed protocol to include an expansion of the refugee definition, it will also be important for it to address the issue of ‘imminence’ previously discussed. The protocol would need to make clear not only who may be recognised as a refugee under an expanded definition but would equally need to answer the question of when. Will there be a time scale for when harm that has not yet occurred becomes likely enough for an individual to be afforded protection? It will be important that this unclear and potentially limiting ‘imminence’ test be addressed in any future protocol to ensure it does not have the predicted outcome of negatively effecting future jurisprudence and further entrenching barriers to protection in the face of new legal developments.
Conclusion
Fry’s report on the status of persons displaced across borders by climate change presents a number of challenges in both defining such individuals and proposing legal solutions for their protection. However, the report is a step in the right direction towards creating a better vision for the future of persons displaced by climate change. It emphasises the importance of international cooperation and responsibility in the context of climate displacement and provides an important and much delayed steppingstone for greater action by the international community to better address this issue.
[1] Of particular note is the recent analysis of this case by Michelle Foster and Jane McAdam in which they recognise not only the potentially damaging effect of this precedent on future jurisprudence, but also re-define what is likely meant by the Committee’s use of ‘imminence’ as ‘foreseeability’. (Michelle Foster and Jane McAdam, ‘Analysis of ‘Imminence’ in international protection claims: Teitiota v New Zealand and beyond’ (2022) 71 International and Comparative Law Quarterly 975)
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