Yazmin Steelandt-Humphries gives her perspective on the implications of international law for climate change victims, a grim paradox that means those fleeing climate change are not currently defined as refugees, and a courageous attempt by young people affected by heatwaves to hold governments to account over emissions via the European Court of Human Rights.

This feature is published as part of Aberystwyth University’s Ambassadorship scheme and hosting partnership with Planet.

 

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Climate change is arguably the most extraordinary phenomenon of our time, a momentous, overwhelming challenge to grapple with. Since the industrial revolution large amounts of fossil fuels have been burned by humans, exacerbating the greenhouse gas effect. Increased human activity, consumerism, overpopulation and engagement in activities such as mass farming and deforestation have had a major impact on climate change. Weather extremes are becoming commonplace, with record temperatures being surpassed. Other effects include glaciers melting, rising sea levels, more intense heat waves, floods, droughts and loss of biodiversity.

The key threats for humanity because of these impacts on our planet include the following:

Food scarcity and water shortages

Exacerbation of poverty, loss of livelihood and income sources

Enhanced divisions and inequalities between the Global North and South

Uninhabitable environments

Reduced quality of life and poor health

Human insecurity –resulting in increased migration

A growing realisation about key threats has culminated in many countries declaring a ‘climate emergency’ in recent times. Closer to home, environmental matters and the related areas of agriculture, fisheries and food are devolved to Wales. The Welsh Government declared a climate emergency on 29 April 2019 . In June 2021, the Climate Change Committee published its third independent assessment of UK climate risk, setting out sixty-one risks to and opportunities from climate change for Wales. Significantly, twenty-six of the risks have increased in urgency since the last report in 2016. Risks include threats to coastal communities from sea level rise, flooding, erosion, health risks because of overheating, risks to roads and railways from extreme weather conditions, and risks to wildlife on sea and land.

With regard to the fate of climate change refugees worldwide and Wales’s formal responsibilities to them, issues of immigration and asylum are not devolved to Wales. However, Wales does have devolved powers over many aspects of life that will affect asylum seekers, such as their access to health services. In recent times the topic of immigration has been charged with polarised views; for example, the full effect of policies for those wishing to migrate to the UK post-Brexit remain to be seen.

What about the implications of existing international law for the fate of climate change refugees? It is a long-established principle in environmental law that states can exploit their resources according to their own environmental and development policies. However, the contrasting principle of ‘sic utere tuo alienum non laedas’ sets out that states’ sovereign right is circumscribed by an obligation to conduct activities in such manner so as not to cause injury to other states. This principle aspires to be preventative – a duty to identify, investigate and avoid harm before making decisions, rather than reactively repairing damage. This principle is relevant to the discussion around increased migration as a result of environmental degradation.

Climate change produces environmental effects that can potentially worsen existing vulnerabilities related to the political or economic backdrop, which will make it difficult or impossible for people to maintain an adequate quality of life or survive. Yet currently under international law, people wishing to move for reasons central to issues with their environment are not protected as refugees. Under the 1951 Refugee Convention, a ‘refugee’ refers to someone 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; 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.

It has been suggested that environment migrants could potentially fit within this definition if it could be evidenced that their country induced the environmental degradation. If this could be proven, it would then need to be established that they were persecuted by virtue of being a member of a particular social group – i.e. environmental refugees. The ‘member of a social group’ criteria has successfully been used by some women seeking asylum to avoid future gender-based violence, when their home state has been unwilling or unable to protect them. Therefore, there is the potential for this to be applied to environmental harms or risks to life if the state is not taking appropriate action.

However, there is a grim paradox in that a person fleeing the effects of climate change in their home country will likely be endeavouring to seek refuge from an economically more powerful country which has contributed significantly to climate change – the very thing that has caused their predicament. The issue with the current refugee definition is that it assumes that the perpetrator is the home country: not only does climate change transcend the boundaries humans have created, the perpetrator could very well be the host country. This matter is hugely complex as environmental degradation is a globally shared responsibility, which does not correspond with the sovereign right to control borders.

There is increasing traction with regard to rising consciousness about the interrelation between environmental degradation and the right to life. For the first time in 2019 the UN Human Rights Committee set out the existence of a connection between environmental protection and the right to a life with dignity. Furthermore, a case in 2020 was brought by a Kiribati national (Ioane Teitiota) who submitted that the effects of climate change, including sea-level rise, freshwater scarcity, inability to grow crops and overpopulation influenced his migration to New Zealand and need for protection there. The Committee decided against Teitiota’s violation of the right to life submission due to the evidence of uninhabitable effects in ten to fifteen years time not being strong enough. Nevertheless, despite an unsuccessful personal outcome for Teitiota, this case has been described as landmark. Importantly, the Committee accepted that without robust action against climate change, international responsibility could be engaged for states not to return people to countries where there are risks to life.

Migrants are likely to be influenced by a multitude of factors – the environmental issues which prompt their fleeing could well be combined with political, economic or social deprivation. When is the tipping point for another state to assume responsibility for a migrant who claims risks to life because of environmental harms? This is yet to be defined.

With the support the Global Legal Action Network’s support (GLAN),a group of Portuguese young adults and children are in the process of suing thirty-three countries (including the UK) over climate change at the European Court of Human Rights. The applicants have experiences of forest fires and unprecedented heat waves in Portugal, and they demand that these thirty-three countries make more ambitious emissions cuts, to safeguard their future physical and mental wellbeing. The European Court of Human Rights refused the defendant governments’ request to reverse its decision to fast-track the case and has now received the defences of all thirty-three of the respondent states in the case (with an extended deadline of July 2021). Once GLAN has received the defences and reviewed these, they will be made available on its website. GLAN has been using the extra time to gather evidence and strengthen its legal team, appealing for support via crowdfunding. The result of this case could be eye-opening in terms of what commitments are required from countries to safeguard the health of future generations.

As a millennial, my awareness of environmental issues is acute. It has an impact on my desire to live more sustainably, to respect nature and wildlife, to grow my own food, to opt to cycle or walk where possible and reuse and upcycle items. It will also influence future major decisions such as deciding where my next home will be in Wales. I recall the major flooding in Wales in 2018 and 2020, with danger to life warnings, hundreds evacuated in south Wales, and Pontypridd town centre left under water after the River Taff burst its banks. According to research by Nestpick, Cardiff is named as one of the world’s most at-risk cities from global warming, astoundingly being ranked number six. Other decisions which could be influenced by climate change include whether to bring a child into an already overpopulated world, and how and where to travel, depending on which countries are safe to visit. It is crucial and sobering to be alert to the luxury of having choices; not everyone will have this autonomy when their options are predominantly influenced by the ability to survive, being at the mercy of any protection offered by future legal decisions and migration policies.

Resources

Websites and articles

1951 Refugee Convention and its 1967 Protocol

2050 Climate Change City Index, Nestpick

6 Young Portuguese Activists Are Suing European Countries Over Climate Change, Global Citizen

Asylum Seekers and Refugees, Public Health Network Cymru

Belgium’s climate failures violate human rights, court rules, The World News

Climate change one of the biggest concerns for people in Britain say Cardiff University, ITV News

Climate change report: five key points, Guardian News

Wales' climate change plans 'not sufficient', advisers say

Climate change: Wales 'needs to do twice as much' in next decade, BBC News

Countries Climate Action Tracker

Does Climate Change Violate Children's Human Rights? A European Court May Soon Decide, Time

EU can set much higher target for 2030 emissions reduction, NS Energy

European Court of Human Rights

Global Legal Action Network – The case

Global Legal Action Network – Government defences [to be made available once reviewed]

Independent Assessment of UK Climate Risk

Kids are taking governments to court over climate. And they are starting to win, CNN World

Landmark ruling on climate refugees Guardian, 20 January 2020 (Online edition)

Portuguese children sue 33 countries over climate change at European court, The Law Gazette

Support unprecedented youth climate case against 33 European countries

WALES, DEVOLUTION, BREXIT AND ENVIRONMENTAL LAW, Prospect Law

‘We must protect our children’s health from air pollution’, says Deputy Minister for Climate Change’ Press Briefing, Welsh Government

Journals

Demola Okeowo ‘Examining the link: climate change, environmental degradation and migration’ Env. L. Rev. 2013, 15(4), 273-289

Ginevra Le Moli ‘The Human Rights Committee, environmental protection and the right to life’ I.C.L.Q. 2020, 69(3), 735-752

Katrien Steenmans and Aaron Cooper ‘Ioane Teitiota v New Zealand: a landmark ruling for climate refugees?’ Cov. L.J. 2020, 25(2), 23-32

Unprecedented climate case clears major hurdle as European court recognises “importance and urgency”, Global Legal Action Network

Cases

Portillo Caceres v Paraguay (2751/2016) unreported 9 August 2019 (UN HRC)

Teitiota v New Zealand (2728/2016) 47 B.H.R.C. 645; [2020] 1 WLUK 501 (UN HRC)