The challenges posed by climate change represent one of the greatest challenges of our time, especially for several island states that face significant environmental degradation. In 2020, 12.1 million people were displaced to the Asia-Pacific, the region most subject to natural hazards. Climate change increases the risk of disasters such as floods, droughts, storms, and sea level rise, resulting in significant population displacement. The Intergovernmental Panel on Climate Change (IPCC) also stated that the effects of climate change will persist for many centuries, even if greenhouse gas emissions decrease.
At present, there is no specific protection regime in international law for these climate migrants who must seek refuge in third states. This research paper aims to demonstrate that the areas of international law currently able to offer protection to these climate migrants, including international refugee law, remain insufficient. Solutions are being explored to develop a more comprehensive protection regime for these climate migrants, particularly in human rights and climate change law.
The observations of the United Nations Human Rights Council (UNHRC) in January 2020 in Ioane Teitiota v. New Zealand shed light on the legal debate about protection of climate migrants and the UNHRC offers an interpretation of the right to life by reappropriating the principle of non-refoulement. According to the UNHRC, people fleeing the effects of climate change should not be returned to their country of origin if their human rights were threatened.
This recent interpretation raises the following question: to what extent can the legal tools of the various branches of international law for the protection of persons (international human rights law, international refugee law, climate change law, etc) contribute to offering protection to climate migrants who face rising water levels on their territory?
To answer this question, it is necessary to answer two sub-questions which this piece poses below.
What Measures Are Already in Place and What Difficulties Do They Face?
The first section of this essay focuses on the current context that leads to violations of the rights of climate migrants in Asia-Pacific. To answer this first sub-question, this piece puts the following hypothesis: the protections offered by international refugee law are insufficient and pose many disadvantages.
People forced to move because of the effects of climate change, and more specifically of rising water, do not fall within the definition of a refugee within the meaning of the 1951 Geneva Convention. Climate change and sea level rise are not considered a reason for persecution and therefore do not allow refugee status to be granted within the meaning of the Convention. However, the number of people forced to leave their place of life due to sea level rise continues to increase. In addition, island states are the most affected by the impact of climate change and rising waters. Populations of low-altitude states, such as Kiribati, "could in the future be forced to leave their country because of climate change". The very existence of some states is threatened by the rise in sea level, thus creating entire stateless people. According to the IPCC, "rapid sea level rise flooding islands and coastal settlements is inevitable" and will lead to the movement of entire populations permanently.
The challenges posed by climate change have allowed the adoption of various legal measures from the 1980s, leading to an increase in climate litigation on a national and international scale.
In 2020, the decision of the UNHRC on the Ioane Teitioa case represents a small step forward for the international protection of climate migrants. International human rights law provides tools for voluntary States Parties to adapt their national laws to ensure this protection. In the future, the effects of climate change will increasingly expose individuals to violations of their fundamental rights and therefore trigger this obligation of non-refoulement in the event of an imminent threat to the right to life. It is possible to hold the Member States of the International Covenant on Civil and Political Rights (ICCPR) to their obligations under the right to life, by adopting the interpretation formulated by the UNHRC and by mobilizing the obligations arising from the principle of non-refoulement in international law.
Although better protection could be established (as I have discussed here), this decision represents a small step forward in the legal protection of climate migrants even if the road is still a long way to go. The concrete effects of the UNHRC’s decision remain to be seen, especially in the face of future appeals. Nevertheless, the contributions devoted to this decision are immense insofar as "it is the recognition, at the international level, of a responsibility that rests on States for those who were previously forgotten". States are no longer left to their free discretion in this matter since the Committee plays the role of interpretative authority of the Pact. This decision may therefore be invoked in similar cases, both internationally and nationally.
Within 30 years, many states will be affected by climate travel issues, and faced with a problem that will affect us all, dialogue will be inevitable in order to help millions of lives affected by rising waters. This should lead to the creation of bilateral or international agreements offering solutions adapted to people displaced by climate change, as well as to greater effort in climate action by States.
What New Measures Should be Considered to Promote the Protection of Climate Migrants?
The hypothesis put forward here is as follows: human rights law seems to be the branch of international law offering the most protective tools for climate migrants because of the inherent links between climate issues and human rights. This branch has interesting aspects to regulate and legally organize the inevitable displacement of populations affected by rising water levels.
The issue of the movement of climate migrants primarily touches on the issue of climate change: it is a real global challenge requiring local solutions adapted to each situation. The IPCC reports lead to the crucial observation of the urgency of acting in favor of the climate. Adequate funding, technology transfer, political will, and consultation of all parties concerned will make adaptation to climate change and the reduction of greenhouse gas emissions more effective. The sixth IPCC evaluation report published on April 4, 2022, mainly targets fossil fuels by calling for a substantial reduction in their consumption and production, as well as divestment from the private sector and the end of subsidies for this sector. The message is unequivocal: "Climate change threatens the well-being of humanity and the health of the planet. Any delay in concerted global action would make us waste precious and limited time to establish a viable future."
The impacts of climate change increasingly affect communities' ability to adapt to changes in their environment and thus represent a significant threat to the achievement of all human rights. Cooperation is crucial both legally and politically. States must work with relevant stakeholders to ensure that climate finance, technology, and capacity building are used to achieve sustainable human rights-based development. Countries must accelerate ambitious climate change mitigation and adaptation measures in order to preserve progress in sustainable development. A transition to a low-carbon, disaster-resilient, fair development path is necessary.
In addition, the United Nations Framework Convention on Climate Change should also recognize that external travel is inevitable and that many cases of statelessness could occur due to climate change, especially in the case of low-altitude island states hard hit by rising waters. According to some estimates, Tuvalu could disappear over the next 50 years. Similarly, Kiribati sought to obtain guarantees for its population in the event that its entire territory is submerged. The principle of preventing statelessness is a general principle recognized in international law as the corollary of the right to a nationality and this issue may be a very worrying issue in the future.
It is important to recall the significance for States to act jointly with other members of the international community to prevent future human rights violations resulting from climate change and to seek redress for violations that have already occurred, in particular through international human rights mechanisms and processes. The integration of international human rights law into climate action is essential to place human beings at the center of a combined effort to guarantee fundamental rights while fighting climate change.
Conclusion
This piece highlights how climate change affects the fundamental rights of climate migrants in Asia-Pacific and the lack of a satisfactory response from international law in this regard. The detailed analysis of the Teitiota v. New Zealand decision made by the Human Rights Committee demonstrates progress in this area while highlighting the limits surrounding an issue as complex as that of climate migrants.
According to the IPCC, we now have only 3 years to act. With only 3 years to avoid the disastrous consequences of global warming, as stated by the UN Secretary-General we must change course now, this is our only chance if we want to protect humanity.
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