8. Climate-Displaced People
Over the past few decades, climate change has truly begun to materialise. The world has seen a significant increase in extreme weather, heatwaves, droughts and floods. This has serious consequences for a significant portion of the world’s population.
According to the UN Intergovernmental Panel on Climate Change (IPCC), there is a risk that climate change could lead to many people having to leave their homes, both as a result of natural disasters such as landslides, hurricanes and floods, and more gradual, long-term changes to the environment.1See IPCC, “Impacts of 1.5o C of Global Warming on Natural and Human Systems” in Global Warming of 1.5o C. An IPCC Special Report on the impacts of global warming of 1.5o C abovepre-industrial levels and related global greenhouse gas emission pathways, in the context of strengthening the global response to the threat of climate change, sustainable development, and efforts to eradicate poverty, 2018, Section 184.108.40.206. See also IPCC, Climate Change 2014. Impacts, Adaptation, and Vulnerability. Part A: Global and Sectoral Aspects (AR5), 2014, Sections 12.4 and 220.127.116.11. See also Chapter 2 of the report, written by CICERO on commission from NIM. While numbers vary, the most common projection is that the world will have 150-200 million climate-displaced people by 2050.
Most people who will be displaced as a result of climate change are likely to be internally displaced.2See e.g. McAdam, Climate Change, Forced Migration, and International Law (2012) p. 31, with further references. Under international law, it is in principle States themselves who are responsible for ensuring the fundamental rights of their own citizens, including those displaced internally in their own country. But more people will also be crossing borders as a result of the consequences of climate change.3Ibid. This raises questions of whether climate-displaced people could be entitled to international protection, such as residency in Norway.
The international legal basis is that States themselves decide who is allowed to enter and reside in the country. This is part of state sovereignty, which is the guiding principle of international law.4See e.g. Shaw, International Law (8th ed., 2017) p. 16 ff. However, the right to regulate residence has certain limitations, both under international law and under the Constitution. This chapter discusses the link between climate change and migration (8.2). The chapter highlights in particular the role of the UN Convention Relating to the Status of Refugees of 2 July 1951 (the Refugee Convention) (8.3), and what protection the guarantee against return (non-refoulement) offers people forced to flee across borders as a result of climate change (8.4). In particular, we will look at provisions included in the International Covenant on Civil and Political Rights (ICCPR) and the European Convention on Human Rights (ECHR). The protection pursuant to Articles 2 and 3 of the ECHR also follows from Article 93 of the Constitution.
8.2. Climate-displaced people and the link between climate and migration
Both climate change and migration are complex phenomena, and consequently, the relationship between these is complex. Nevertheless, there is broad agreement that the two phenomena are closely linked.5See Kälin and Schrepfer, “Protecting People Crossing Borders in the Context of Climate Change: Normative Gaps and Possible Approaches” (2010), UNHCR Legal Protection Research Series, pages 31-33. Available on https://www.unhcr.org/4f33f1729.pdf. In the UN Global Compact for Migration, which is signed by a majority of the world’s States, natural disasters, climate change and environmental degradation are highlighted as factors that can cause migration.6The Global Compact for Safe, Orderly and Regular Migration, adopted by the UN General Assembly on 19 December 2018 (A/RES/73/195), see Section 18(h)–(l). For the Council of Europe, see Parliamentary Assembly, Resolution 2307 (2019): A legal status for “climate refugees”, adopted on October 3, 2019. Among other things, the Parliamentary Assembly’s recommendation is to “develop in the asylum systems of Member States and in international law protection for people fleeing long-term climate change in their native country,” see item 5.4. Although migration is a complex phenomenon, where both social, economic and environmental conditions play a part, natural disasters and environmental change have always been central drivers of migration.7Kälin and Schrepfer (2010), pp. 31–33. As a result of climate change, there is an increase in the natural and environmental causes that have historically led to migration, such as landslides, floods and extreme weather.
In addition to climate change reinforcing the existing driving forces behind migration, climate change also leads to new migratory factors. As a result of rising sea levels, desertification, drying out of rivers and extreme heat, there is a risk that several areas of the world will no longer be able to provide sustenance, forcing people to leave their homes permanently.8Ibid.
On this basis, there are two general categories of climate displaced people.9There is no authoritative legal definition of the concept of climate displaced persons. The IOM has previously defined climate displaced persons as “persons or groups who, for compelling reasons of sudden or progressive change in the environment as a result of climate change that adversely affect their living conditions, are obliged to leave their habitual homes, or choose to do so, either temporarily or permanently, and who move within their country or abroad.” See e.g. IOM  Discussion Note: Migration and Environment; 94th session, MC/INF/288; Climate Change and Migration: Improving Methodologies to Estimate Flows . See also Lyster, “Protecting the Human Rights of Climate Displaced Persons: The Promise and Limits of the United Nations Framework Convention on Climate Change” in Grear and Kotzé (eds.) Research Handbook on Human Rights and the Environment (2015), p. 429. The first are people driven into exile as a result of climate and environmental-related natural disasters, such as floods, landslides and extreme weather.10See Kälin, “Conceptualising Climate-Induced Displacement” in McAdam (ed.), Climate Change and Displacement, Multidisciplineary Perspectives (2010) p. 85. As a result of climate change, such natural disasters occur with greater intensity and frequency, and more people are driven into exile as a result.
The other main category of climate displaced people are those that have to move as a result of more gradual environmental change, such as long-term effects of droughts and floods, poorer water supply and rising sea levels.11Kälin and Schrepfer (2010), pp. 31–33. Unlike climate and environmental-related natural disasters, which will mainly lead to temporary forced migration, the gradual changes are expected to mainly lead to voluntary migration, in the sense that people choose to move before the areas they live in become completely unviable.12Ibid. It is nevertheless worth pointing out that while this type of migration may initially be voluntary, this group may become permanently displaced if habitats become increasingly unviable and it is no longer possible to move back. A subcategory of this group is residents of small low-lying islands, mainly in the Pacific Ocean, which will be partially or completely under water as sea levels rise.13Ibid. This is a group that risks ending up stateless.14See e.g. McAdam (2012), pp. 137–139 with further references, for a discussion of whether climate displaced persons may have protection under the 1945 UN Convention on Statelessness.
Furthermore, climate change can help reinforce other migration factors that are not directly climate related. Climate change can, among other things, exacerbate the occurrence of armed conflict, violence and unrest arising in whole or in part as a result of resource shortages, such as water and food shortages.15Kälin and Schrepfer (2010), pp. 31–33.
8.3. Protection under the Refugee Convention
The Convention Relating to the Status of Refugees (the Refugee Convention) is a treaty of international law that provides protection for refugees. Although in everyday speech one often talks of “climate refugees”, there is broad agreement internationally that people who must leave their homeland as a result of climate change are not considered refugees under the Refugee Convention.16See e.g. McAdam (2012) ch. 2, Section II for an overview.
This is because Article 1 A (2) of the Convention requires that persons have a well-founded fear of being persecuted in their homeland based on a particular ground for persecution. Climate and environmental-related causes are not among those grounds for persecution listed in Article 1 A (2). This is related to the fact that the Convention was written a few years after World War II, with the forms of flight caused by the war in mind. Furthermore, the Refugee Convention does not provide any protection for internally displaced persons.17This follows from the condition in Art. 1 A (2) that a refugee in the sense of the Convention must be “outside the country of his nationality,” or – if the person is stateless – “outside the country of his former habitual residence.”
Although climate change cannot in itself lead to recognition of refugee status under current international law, one could imagine situations where climate change would be a contributing factor to people being entitled to protection under the Refugee Convention.18See e.g. Weerasinghe, In Harm’s Way – International protection in the context of nexus dynamics between conflict or violence and disaster or climate change (2018) in the UNHCR Legal and Protection Policy Research Series, p. 10. One example could be an ethnic minority living in an area that becomes uninhabitable as a result of increased water levels, and then ending up being persecuted by the authorities when trying to settle elsewhere in the country. As mentioned above, climate change can also contribute to creating or amplifying armed conflicts, which in turn can lead to people being driven into exile. Climate change can furthermore reinforce existing patterns of discrimination and oppression of vulnerable groups, which could be entitled to protected under the Convention if they are driven into exile.19Se e.g. Scott, Finding Agency in Adversity: Applying the Refugee Convention in the Context of Disasters and Climate Change (2016) in Refugee Surv. Q. 26.17 no. 6–7, p. 28. The reasons why people are driven into exile are often interrelated, as conflict, persecution, natural disasters and destruction are often closely linked.20Ibid. This is referred to e.g. by the UN High Commissioner for Human Rights as “nexus dynamics”, see https://www.unhcr.org/climate-change-and-disasters.html.
8.4. The Human Rights Protection against Return
Besides the Refugee Convention, human rights provide a basis for international protection. Pursuant to Articles 6 and 7 of the ICCPR and Articles 2 and 3 of the ECHR, a person cannot be returned to a country if there is a real risk of loss of life or that one will be subjected to torture or inhumane or degrading treatment or punishment.
A key difference from the protection under the Refugee Convention is that there is no requirement for persecution based on particular grounds for persecution.21Another difference is that the non-refoulement protection in Article 33 of the Refugee Convention is not absolute. For instance, persons can be excluded from refugee status if there is serious reason to assume that they have committed war crimes, crimes against humanity, etc., cf. Art. 1 F (a). Under human rights, however, the protection is absolute. In Norwegian law, this difference is reflected in Section 73, first paragraph v. second paragraph of the Immigration Act. In other words, protection based on human rights has a wider area of application. In the following we will discuss whether Articles 6 and 7 of the ICCPR and Articles 2 and 3 of the ECHR provide international protection for climate displaced people.
8.4.2. Articles 6 and 7 of the ICCPR
The issue of whether Articles 6 and 7 of the ICCPR may provide protection against return for people who migrate as a result of climate change was considered by the UN Human Rights Committee in the individual appeal case of Teitiota v. New Zealand.22 Teitiota v. New Zealand, case no. 2728/2016 (delivered 24 October 2019, published 7 January 2020, CCPR/C/127/D/2728/2016). The appellant in this case was a person from the island state of Kiribati in the Pacific Ocean, who had been rejected for asylum. The asylum application was based on rising sea levels in the home country, which according to the appellant had led to, among other things, lack of clean drinking water, difficulties obtaining food, violent conflicts over land, as well as frequent and powerful cases of flooding.23It is worth mentioning that the decision does not say anything explicit about whether the same conditions could lead to protection against return, pursuant to the ban on torture and inhumane and degrading treatment in Article 7 of the ICCPR. The appeal was based solely on Article 6 of the ICCPR and the right to life. The Committee stated on a general basis that climate displaced people could have protection against return under Article 6 and 7 of the ICCPR, although the specific circumstances of the case were not currently sufficiently serious for the appellant to succeed. Nevertheless, the recognition that climate displaced persons may have protection against return is regarded as an important step in international legal development in this area.24See e.g. Reeh, “Climate Change in the Human Rights Committee”, EJIL: Talk! (2020) available on https://www.ejiltalk.org/climate-change-in-the-human-rights-committee/ and Malafosse and Zipoli, “’Climate refugees’: a historic decision of the UN Human Rights Committee?”, Andrew & Renata Kaldor Centre for International Refugee Law (2020) available on https://www.kaldorcentre.unsw.edu.au/news/%E2%80%9Cclimate-refugees%E2%80%9D-historic-decision-un-human-rights-committee.
The basis for the Committee’s judicial review was the general non-refoulement principles already established in other types of cases.25See paragraph 9.3 of the decision. According to this practice, there must be good reasons to assume that there is a real risk of irreparable harm as mentioned in Articles 6 and 7 of the ICCPR in order for protection against return to apply. The basis is furthermore that the threat must be personal, and not a consequence of the general situation in the country, except in “the most extreme cases.”
According to the Committee, the right to life must be understood broadly, and the State has positive obligations to protect. The Committee further noted that the right implies a right to a life with dignity, and that no one should be subjected to actions or omissions that would result in an unnatural or early death.26See paragraph 9.4 of the decision. This argument is based in part on the same basis as Portillo Cáceres v. Paraguay, to which the Committee also refers in the decision, mentioned in Chapter 6 of the report on climate and the UN human rights system. The Committee emphasised that “environmental degradation, climate change and unsustainable development constitute some of the most pressing and serious threats to the ability of present and future generations to enjoy the right to life.”27Ibid. An important point is that the state’s duty to protect the right to life also includes “reasonably foreseeable threats” to life. This suggests that the protection (and the state’s corresponding duty) could potentially take effect before climate change actually materialises.28The Committee stated the following later on in the decision, under the specific assessment (see section 9.11): “[G]iven that the risk of an entire country becoming submerged under water is such an extreme risk, the conditions of life in such a country may become incompatible with the right to life with dignity before the risk is realized.”(our emphasis). In that case, it was estimated that Kiribati will become uninhabitable in 10 to 15 years, and the Committee emphasized that by that time it could be possible to implement protective measures, see paragraph 9.12.
In short, the decision shows that it is possible to achieve international protection under Article 6 of the ICCPR for people leaving their home country as a result of climate change.29The significance of the treaty bodies’ various types of statements will be reviewed in Chapter 6 of the report on climate in the UN human rights system. However, there is a high threshold for protection because the protection in principle is personal, with the exception of extreme cases.
8.4.3. Articles 2 and 3 of the ECHR
Articles 6 and 7 have their parallels in Articles 2 and 3 of the ECHR. Under these provisions also there is a protection against return that means that the Convention States cannot expel or return a person who will be at real risk of losing his life, or be subjected to torture or degrading or inhumane treatment or punishment in the country of origin.30 Soering v. United Kingdom (14038/88). A Convention State will also be prevented from expelling or returning a person to another country, where the person concerned is at a real risk of being sent on to a country where there is a real risk of treatment contrary to Articles 2 or 3 of the ECHR, cf. M.S.S. v. Belgium and Greece [GC] (30696/09), Hirsi Jamaa et al. v. Italy [GC] (27765/09). This protection includes the risk of being sent on from a third country to the country of origin and the potential actions or omissions of the host country.31 N v. Sverige (23505/09).
The ECtHR has not so far dealt with any issues concerning climate displaced people. It is however not inconceivable that the general principles developed in ECtHR case-law be applicable to climate-displaced persons.
First of all, the ECtHR’s Grand Chamber has made it clear that “[t]he source of the risk does nothing to alter the level of protection guaranteed by the Convention.”32 Tarakhel v. Switzerland Section 104. The ECtHR’s doctrine of protection against return has thus been expanded to include situations of “extreme material poverty”33M.S.S. v. Belgium and Greece,Tarakhel v. Switzerland [GC] (29217/12). and “serious deprivation or want incompatible with human dignity.”34 Budina v. Russia (45603/05). In M.S.S. v. Belgium and Greece, the Grand Chamber of the ECtHR found that Belgium’s return of an asylum seeker to Greece violated Article 3 of the ECHR since the living conditions for asylum seekers in Greece were generally too poor.35 M.S.S. v. Belgium and Greece. Both Greece and Belgium were deemed to have violated Article 3 of the ECHR. Greece because the authorities had failed to improve living conditions for the appellant, and Belgium because the situation of asylum seekers in Greece was “well known” and “freely ascertainable from a wide number of sources” before the appellant was returned there.36 M.S.S. v. Belgium and Greece Section 366. The appellant had for several months lived on the street, “with no resources or access to sanitary facilities, and without any means of providing for his essential needs”. The ECtHR argued that the situation did not safeguard the appellant’s “dignity” and that it was above the threshold for inhumane treatment, as his living conditions must have led to feelings of “fear, anguish or inferiority capable of inducing desperation.”37 M.S.S. v. Belgium and Greece Section 263.
It was of no consequence that the appellant was not individually or separately affected.38Cf. the Swiss Supreme Court, which appears to establish a requirement for individualised risk in its internal judicial procedural assessment of appeals from KlimaSeniorinnen. The case is discussed in more detail in Chapter 9 of the report on climate action based on human rights. The fact that the situation “described by the applicant exists on a large scale and is the everyday lot of a large number of asylum-seekers” was rather an argument suggesting that the appellant’s arguments were substantiated.39 M.S.S. v. Belgium and Greece Section 255. In Tarakhel v. Switzerland, the Grand Chamber stressed that Article 3 of the ECHR makes stricter demands for living conditions for children and families with children, “to ensure that those conditions do not ‘create (…) for them a situation of stress and anxiety, with particularly traumatic consequences.’”40 Tarakhel v. Switzerland, Section 119, referring to Popov v. France (39472/07 and 39474/07).
Emerging developments in national law show that climate and pollution could trigger “non-refoulement” under ECHR Article 3. In a 2020 German judgement concerning the return of an Afghan national, an administrative court stated that environmental conditions, such as the climate and natural disasters, are relevant factors for determining humanitarian conditions.41GH Baden-Wuerttemberg, judgement of 17 December 2020 – A 11 S 2042/20 – para. 25. See also Camilla Schloss, Climate migrants – How German courts take the environment into account when considering non-refoulement, Völkerrechtsblog, 03.03.2021, doi: 10.17176/20210303-153650-0. Similarly, in a 2021 French judgement, an administrative court ruled that the return of a Bangladeshi national would violate the non-refoulement requirement because the air quality in Bangladesh would pose a real risk to his life and health.42CAA de BORDEAUX, 2ème chambre, 18/12/2020, 20BX02193, 20BX02195, Inédit au recueil Lebon. Jugdment available in French at https://www.dalloz.fr/documentation/Document?id=CAA_BORDEAUX_2020-12-18_20BX02193_dup#texte-integral.
To summarise, people who migrate as a result of climate change are not, as a basic general rule, entitled to protection under the UN Refugee Convention. The UN Human Rights Committee has nevertheless concluded that climate displaced people may be protected against return under Articles 6 and 7 of the ICCPR. And while the ECtHR has not yet decided on cases concerning climate displaced persons, it has extended the protection against return to situations that are sufficiently precarious to arouse feelings of fear, anxiety and inferiority “capable of inducing desperation.”43 M.S.S. v. Belgium and Greece Section 263. As evidenced by developments in some national courts, one may ask whether climate change could cause desperation analogous to the situation in MSS v. Greece and Belgium. Climate change could cause entire island States and coastal areas to be flooded by oceans, land areas becoming uninhabitable because of heat beyond human tolerance, droughts in population-dense areas dependent on water supply from glaciers about to disappear, as well as extreme weather at increasing frequency and extent. At the same time, it is a fact that the ECtHR has recently shown restraint in the field of immigration since the regulation of asylum and immigration policy is at the heart of state sovereignty.