Climate change-related harm and non-refoulement: how refugee lawyers respond to global warming

PhD Candidate: Matthew Scott

Climate change threatens to increase the frequency and intensity of natural disasters, such as droughts, cyclones, heat waves and other extreme weather events. Commonly cited estimates of the number of people displaced in relation to climate change-related natural disasters range from 200 million to one billion by the end of the century. Although these estimates have been criticized, few would dispute that displacement on a vast scale is anticipated. Indeed, more than 32 million people were displaced by sudden-onset natural disasters in 2012 alone.

There has been substantial academic and policy interest in the phenomenon of climate change-related displacement in recent years, and a range of proposals have been advanced, including the drafting of a new international convention or adaptation of existing international or regional instruments. However, although important work towards building a consensus around guiding principles is being done, notably under the Nansen Initiative, political realities make the adoption of any binding agreement unlikely.

Consequently, this research takes a different approach. Rather than considering what States can do, this research focuses on the potential for legal practitioners, through strategic recourse to national, regional and international courts and institutions, to address the immediate protection needs of individuals who resist expulsion to countries that have been adversely affected by climate change.

Legal protection from expulsion to countries where an individual would be at risk of serious harm exists in regional and international human rights instruments, and is generally referred to as the non-refoulement obligation. However, at present, apart from notable exceptions in the domestic legislation of some countries (notably Sweden and Finland), interpretations regarding the material scope of the obligation overwhelmingly require the harm to originate in the acts or omissions of State or non-State actors. So-called ‘naturally-occurring’ harm is not explicitly protected against, and the few judicial interpretations that exist are restrictive. However, by focusing on the role of anthropogenic climate change in an otherwise naturally-occurring source of harm, some lawyers (particularly in Australia and New Zealand) have begun to argue that existing international human rights and refugee law obligations apply in the context of climate change-related displacement.

The research will follow two tracks. The first is to map the existing legal framework that extends protection from refoulement in the European Union, and to consider how this framework can respond to the phenomenon of climate change-related displacement. The second is to investigate the current work of lawyers in different EU countries, particularly Sweden and the United Kingdom, and to ask why, notwithstanding possible sources of protection within national, regional or international legal frameworks, European lawyers do not appear to have been as active as their Australian and New Zealand counterparts in actually advancing climate change-related harm arguments in courts and tribunals.

It is anticipated that the project will generate practical benefits from an early stage. By highlighting the potential relevance of climate change-related non-refoulement arguments to claimants and their legal representatives, in particular with regard to the work of Australian and New Zealand practitioners in this area, the likelihood that such claims will reach European courts will increase. The outcome of such claims will inform future litigation whilst also contributing to the broader debate about the scope of States’ non-refoulement obligations.

This sub-project is a PhD project at the Department of Law, Lund University. Supervisor: Gregor Noll (Lund). Assistant supervisor: Rebecca Stern (Uppsala).

Read a brief summary of the subproject (June 2015).