It was not all that long ago that the idea of linking refugee protection to the impacts of climate change seemed not only embryonic, but futuristic. Yet, over the course of the past decade, an important body of case law and guidance has developed that shows clearly how, in the right factual scenario, people could indeed be refugees in the context of climate change and disasters.
As more decision-makers and legal practitioners are faced with protection claims involving the impacts of disasters and climate change – and as the world’s governments meet at COP29 this month – it is important that they are armed with clear, accurate and comparative analysis about clearly when and how protection principles derived from refugee law and human rights law might apply.
There is no need to reinvent the wheel, create new principles or make things overly complicated. The better option is to apply existing international protection principles to the facts at hand, appreciating how the impacts of climate change and disasters factor interact with the broader social and political context and intersect with other drivers of displacement. This is exemplified by work done by judges and other decision-makers across the world – including in the case law of New Zealand and Italy, examined below – who have indeed found that, in some cases, climate change and disasters can contribute to shaping a well-founded fear of persecution or other serious harm.
Climate change does not cause displacement on its own, but it amplifies risk – both the risk of more frequent and severe disasters, and the risk of displacement. Its interaction with other social, economic, cultural and political drivers of displacement means that it may make an already precarious situation worse – for instance, by exacerbating existing discrimination or social vulnerabilities. That is why decision-makers need to assess the risk of harm cumulatively, set against the country conditions generally and how they affect the particular applicant based on their individual circumstances, characteristics and capacities.
A series of cases in New Zealand has provided much-needed clarity. Many have been brought by Pacific Islanders claiming that both the future, longer-term consequences of climate change – and its more immediate impacts – put their lives at risk. While no case has yet succeeded on the facts at hand, courts and tribunals have accepted in principle that people fleeing the impacts of climate change and disasters could qualify for refugee status or complementary protection (that is, protection under human rights law). This was affirmed by the UN Human Rights Committee in the famous matter of Teitiota v New Zealand.
Italy is also developing a body of jurisprudence that provides important insights into how people adversely impacted by climate change and disasters could be recognized as refugees or beneficiaries of complementary/subsidiary protection. While many of its cases have considered the effects of past disasters, some also look at their ongoing and future impacts. This is significant: even if an immediate disaster has passed, its impacts may be felt for a long time and undermine the enjoyment of human rights.
A good example is a recent case heard by the Tribunal of Milan. It concerned a man from Bangladesh who had already been displaced several times on account of flooding and faced a future risk of flood-related displacement. He argued that this posed a threat to his rights to life, physical integrity and health (among others), cumulatively amounting to inhuman or degrading treatment. The judges agreed, noting that the Bangladeshi government’s failure to safeguard against these known risks was a contributing factor. Here, the Tribunal considered not only the adverse human rights impacts of past disasters, but also the current inability of the State to avert harm generated by future disasters (see Tribunale di Milano, decreto del 13 marzo 2024 con R.G. n. 8753/2020).
In two other cases, the Tribunal of Florence found that the claimants were at risk of being re-trafficked in part because of flood-related vulnerability and associated land disputes. In the first case, concerning a man from Bangladesh, the judges explained that his extreme vulnerability due to trafficking was inextricable from his exposure to recurring floods, and the government’s inability to mitigate the risk or provide a remedy for harm suffered. In the second case, concerning a man from Pakistan, the judges found that flood had destroyed his livelihood and exacerbated family conflicts over land (which is of increasing importance where climate change is likely to exacerbate resource scarcity). His ‘climate vulnerability’ exposed him, more than other groups in Pakistan, to trafficking and labour exploitation (see Tribunale di Firenze, Sezione specializzata Immigrazione e Protezione Internazionale, decreto del 10 maggio 2023).
Decision-makers in New Zealand have similarly assessed the factors that place a particular individual at risk within the broader context of climate change and disasters, in some cases finding a protection need. For instance, in a case concerning an elderly couple from Eritrea, the New Zealand Immigration and Protection Tribunal stated that if returned, they would face ‘conditions of abject poverty, underdevelopment and likely displacement’, ‘further heightened by climate change’ which ‘disproportionately affect[s] the most vulnerable persons and systems’. As older persons, they faced a ‘heightened risk of dying from climate-related disasters’, and there was ‘a real chance that their rights to be free from cruel, inhuman or degrading treatment in Article 7 of the ICCPR will be impinged giving rise to serious harm within the meaning of being persecuted’. As such, they were granted complementary protection.
In AV (Tuvalu), the New Zealand Immigration and Protection Tribunal acknowledged that a deaf and mute man from Tuvalu was ‘inherently … more vulnerable to natural hazards’ because ‘being hearing impaired, he would not be in a position to hear early warnings of impending events that may be broadcast over the radio and would need to rely on communication and sign language’. While he was not granted refugee status or complementary protection, he was permitted to remain in New Zealand for humanitarian reasons.
Fortunately, these cases take us a long way from older judgments that saw disasters as purely ‘natural’ events and thus unable to give rise to a successful protection claim. Importantly, they demonstrate how existing refugee and human rights law can already provide protection in the context of climate change and disasters, and why we do not need to wait for the creation of a new treaty or protocol to the Refugee Convention (which seems highly unlikely in the present political context).
It is therefore vital that lawyers, government officials and judges clearly appreciate when, how and why international protection principles apply in the context of climate change and disasters. This means understanding, first, how the impacts of climate change and disasters interact with other drivers of movement to create or exacerbate risk and vulnerability, and secondly, how their impacts can be felt differently by different people, depending on their individual characteristics and circumstances.
Accordingly, the Kaldor Centre for International Refugee Law at UNSW Sydney in Australia – together with the Center for Gender & Refugee Studies (CGRS) at UC Law San Francisco in the United States and Essex Law School and Human Rights Centre in the United Kingdom, and with the support of UNHCR – will soon be releasing a practical toolkit to provide such guidance. The toolkit does not seek to extend the scope of international protection under refugee or human rights law, but rather explains how climate change and disasters can contribute to establishing the factual basis for international protection under existing legal frameworks. This will aid decision-makers and lawyers in understanding when, why and how people fleeing the impacts of climate change and disasters might already be protected by the law.
The toolkit contains a detailed analysis of relevant principles from international refugee law, international human rights law, and their regional equivalents in Africa, the Americas and Europe. It begins with a series of key considerations to guide the assessment of international protection claims in which the impacts of climate change and/or disasters are relevant to the harm feared by the applicant, before engaging in a detailed analysis of how specific international and regional legal frameworks may apply to such claims. It also draws on cases such as the Italian and New Zealand examples above, to show how decision-makers are already applying international and regional law in this context.
In particular, the toolkit notes that a cumulative assessment of the risk of harm is important since climate change and disasters may impact a wide range of human rights, including the rights to life, water and sanitation, food security, shelter and health. This cumulative assessment should also take into account the broader circumstances, characteristics and capacities of the individual applicant. In other words, how does the overall ‘hazard-scape’ interact with political, social and economic factors for the particular individual concerned? Furthermore, there is no requirement that the harm must be imminent; rather the relevant timeframe to consider is the risk of harm in the reasonably foreseeable future.
It is hoped that the toolkit will help to demystify international protection claims involving climate change and disasters, and provide a practical, task-oriented roadmap for decision-makers and legal practitioners engaged with such claims.
