Author: Matthew Scott, Yumna Kamel, Bella Mosselmans, Stephanie Hader
This article originally appeared on the Researching Internal Displacement Blog on 19 September 2024 and is reproduced with permission.
This short piece argues that the time is ripe for a broad strategic litigation initiative addressing both internal and cross-border displacement associated with disasters and climate change. Drawing on the new Climiglaw Database, currently in beta-version, the authors highlight legal cases which have progressed protections for people facing displacement. They also point to several other areas where strategic litigation holds the potential to advance human rights and protections including the rights of Indigenous Peoples, ‘the right to stay’ and legal remedies for a State’s failure to address the need for relocation. The authors and the organizations behind Climiglaw envisage this new case database as an important tool for empowering legal practitioners, academics, NGOs and wider civil society in these efforts.
Fifteen years ago, cross-border displacement in the context of disasters and climate change was so under-researched that lawyers had to revert to formulating their own hypothetical scenarios against which to consider the applicability of international refugee and human rights law. Lawyers involved in representing applicants for international protection imagined desolate, almost post-apocalyptic landscapes as the necessary foreground to any international protection claim with even the slightest prospect of success. By now, thanks to an increase in analysis of judicial decisions at national and international levels, both the phenomenon itself and the scope of legal protection have become more clearly defined. In parallel, extensive empirical research, reflected for instance in numerous contributions to this Researching Internal Displacement blog, has generated rich insights into experiences and legal dimensions of climate- and disaster-related internal displacement across the Americas, Africa, the MENA region, Asia-Pacific, and the Nordic region of Europe, although less attention has been paid to judicial decisions in this context. At this point in time, the international legal dimensions of both internal and cross-border displacement in the context of disasters and climate change have been described to the extent that some degree of consensus around the nature of state obligations can be discerned, even if few would argue that the law is at all settled in this respect. More attention to domestic jurisprudence is required.
This blog post traces the contours of judicial and quasi-judicial engagement with climate- and disaster-related displacement. It argues that the time is ripe for a broad strategic litigation initiative grounded in national, regional and international collaborations to enhance adherence to the existing range of legal protections available to people facing varieties of displacement-related risks associated with disasters and climate change, and to identify promising avenues for progressive development of the law. It begins with an overview of categories of cases that have already been documented, dividing this discussion into cross-border and internal displacement dimensions. Readers active in this space will almost surely identify gaps in this overview, and if this results in wider dissemination of reported cases (including through the comments section of this post), the aim of this post will have already been partially achieved. As the post shifts to discussing how judicial contributions to addressing displacement-related risks can be enhanced through more strategic litigation, it introduces the the Climiglaw Database (currently in beta-version with full launch expected October/November 2024), a new initiative to collect and make accessible the growing volume of cases relevant to internal and cross-border displacement in the context of disasters and climate change. The database, developed through a partnership between the Global Strategic Litigation Council for Refugee Rights, Earth Refuge, the Raoul Wallenberg Institute of Human Rights and Humanitarian Law, the Zolberg Institute on Migration and Mobility and two international law firms, DLA Piper and Eversheds, seeks to empower legal practitioners, academics, NGOs and wider civil society to learn from past arguments and experiences, refine their strategies, and work to obtain protection for those who have been or may be displaced by climate change. Where possible, links to cases described below are to this database, which includes a summary of the case as well as a link to the original decision.
Sources for this section derive from academic literature as well as the growing collection of judicial decisions reflected in the climate displacement database referred to above.
This type of case concerns situations where individuals engage in activities that government or non-state actors perceive as somehow challenging their authority or vision. Although disasters often invoke an outpouring of humanitarianism, they also reflect failures by the state to protect the population from harm and can thus be politically sensitive. Where individuals or groups distribute relief instead of, or in parallel to, government initiatives, a risk of serious harm can arise, owing to the (imputed) political opinion of the individual. Two cases determined, respectively, by the Australian Refugee Review Tribunal (case 0903555 [2010]) and the New Zealand Immigration and Protection Tribunal (Refugee Appeal No 76374 [2009]) recognized applicants from Myanmar as refugees owing to their well-founded fear of being persecuted for having assisted in relief initiatives in the aftermath of the 2008 Cyclone Nargis. Country of origin information demonstrated that people in similar situations had faced lengthy prison sentences. In these kinds of cases, the disaster forms a backdrop to more familiar patterns of persecution that readily fall within the scope of the Refugee Convention.
Humanitarian actors are acutely aware that the risk of trafficking and gender-based violence increases significantly in the context of disasters, as social networks are disrupted and vulnerabilities of various forms are exacerbated. Judicial decisions have recognized eligibility for refugee status as well as complementary protection in these kinds of situations. For instance, in Tribunale Ordinario di Firenze, X c Ministero dell’Interno, E.R.G. 6142 [2023] the Tribunal considered that a Pakistani man trafficked in the aftermath of extreme flooding would be at risk of re-trafficking if forcibly returned. In this case the Tribunal expressly recognized climate change as a ‘factor amplifying vulnerability to the phenomenon of trafficking in human beings’ and recognized the applicant as a refugee.
In Swedish Migration Court Case UM22726-10, an applicant was granted subsidiary protection owing to the risk of being exposed to sexual violence in the aftermath of the 2010 earthquake in the Haitian capital Port au Prince.
These kinds of cases arise where authorities decide to restrict distribution of disaster relief to members of a particular ethnic, religious or political group. Where the consequences of not securing relief are sufficiently serious as to attain the high severity threshold required for persecution, or where this form of harm is part of an accumulation of multiple forms of harm that together attain that threshold, eligibility for refugee status can be established. This point was clearly articulated by the UK Asylum and Immigration Tribunal in RN (Returnees) Zimbabwe CG. In that case, a Zimbabwean former teacher recounted how disaster relief was distributed only to those able to demonstrate loyalty to the regime. The cumulative facts of the case, including risks of physical violence as well as discriminatory denial of disaster relief (required due to drought, floods, and severe mismanagement of the economy and agricultural sector) supported recognition of refugee status. A similar observation, obiter dictum, was made by the Federal Court of Australia in the case of Minister for Immigration & Multicultural Affairs v Khawar.
A person may establish a well-founded fear of being persecuted for a Refugee Convention reason in a context that has nothing to do with disasters or climate change but may nonetheless find that environmental factors prevent the internal relocation alternative from being relevant or reasonable. The principle underpinning this determination is reflected in the 1995 case of Perampalam v Minister for Immigration and Multicultural Affairs, where the Federal Court of Australia recognized that disasters could, in principle, negate the availability of internal relocation. This principle has been affirmed in other jurisdictions, including in the Norwegian case of Abid Hassan Jama v. Utlendingsnemnda, and, amongst others, in the New Zealand case of Refugee Appeal No. 76457.
Similarly, the European Court of Human Rights in Sufi & Elmi v United Kingdom, found that anyone who could not anticipate clan-based support in Mogadishu, the capital of Somalia, would likely find themselves in largely informal camps of internally displaced persons on the outskirts of the city. Conditions in the camps were extremely challenging and return to such conditions was held by the Court to amount to a violation of the prohibition of torture or inhuman or degrading treatment under Article 3 of the European Convention on Human Rights. Interestingly, a novel legal test was articulated in this context. The test established a lower severity of harm threshold than the extremely high threshold established in non-refoulement cases, like N v United Kingdom, concerning what the court there termed ‘naturally occurring’ forms of harm, such as illness, and the associated inability of the state to provide adequate protection. Where, as was the case in Sufi & Elmi, it can be shown that the ‘humanitarian crisis’ can at least in part be attributed to parties to a conflict, the test for determining whether enforced return would violate Article 3 ECHR examines the ‘applicant’s ability to cater for his most basic needs, such as food, hygiene and shelter, his vulnerability to ill-treatment and the prospect of his situation improving within a reasonable time-frame.’ This test could well apply outside of internal relocation situations as well.
The preceding cases have related to situations where there is a clear link to the conduct of human actors. These kinds of cases require limited jurisprudential innovation and will instead turn on familiar questions of credibility and risk, and applicants will benefit from robust country of origin information. However, disasters and other adverse impacts associated with climate change can contribute to situations in a country that give rise to a real risk of serious harm even in contexts where there are no identifiable human actors targeting the applicant. It may be said that these kinds of cases reflect more structural forms of violence, or what is increasingly being referred to as climate violence.
Where adverse environmental conditions in themselves are the basis of claim, judicial authorities have struggled to recognize eligibility for international protection, as clearly reflected in a series of early claims brought by inhabitants of Pacific Island states in Australian and New Zealand jurisdictions. In cases like Refugee Appeal No. 72189/2000 – 72195/2000, the New Zealand Refugee Status Appeals Authority was unable to identify a relevant actor of persecution and could not see any connection between the harm feared (adverse impacts of rising sea levels) and one or more of the five Convention reasons. The approach started to change with the determination of the New Zealand Immigration and Protection Tribunal (NZIPT) in the case of AF (Kiribati), which concerned an applicant from Kiribati who feared adverse climate impacts including difficulties accessing drinking water, saltwater contamination due to rising sea levels making agriculture much more difficult, and interpersonal violence owing to crowding and land disputes as people moved from outer islands to the main island of Tarawa, amongst other challenges. Like in the previously mentioned cases, the Tribunal here was unable to identify a relevant actor of persecution, could not find a connection between the applicant’s civil or political status and his exposure to harm, and did not consider the harm to which he was exposed was sufficiently serious to attain the high persecution threshold. The application under the Refugee Convention, as well as under Articles 6 and 7 of the International Covenant on Civil and Political Rights (ICCPR) (protecting the right to life and the prohibition on torture or inhuman or degrading treatment or punishment, respectively) was dismissed, but not before the Tribunal articulated a fundamental principle that should guide consideration of similar cases in the future:
“... generalised assumptions about environmental change and natural disasters and the applicability of the Refugee Convention can be overstated. While in many cases the effects of environmental change and natural disasters will not bring affected persons within the scope of the Refugee Convention, no hard and fast rules or presumptions of non-applicability exist. Care must be taken to examine the particular features of the case.”
The case reached the Human Rights Committee as Ioane Teitiota v New Zealand and was argued exclusively in relation to Article 6 of the ICCPR. Having regard to the present and potential future conditions on Kiribati, as recorded in detail by the NZIPT in AF (Kiribati), the Committee concluded that New Zealand had discharged its obligations under Article 6, and that the applicant had been unable to demonstrate that there was a real risk that his right to life with dignity would be violated if returned to Kiribati. However, in reaching this conclusion, the Committee significantly expanded the potential scope of the non-refoulement obligation under international human rights law, in particular though its recognition that the right to life with dignity can be violated well in advance of a person actually facing death. Specifically, such a violation can arise in the context of serious adversity associated with limited access to water, food, shelter and other fundamental economic, social and cultural rights.
Somewhat surprisingly, notwithstanding the clear expansion of the scope of the non-refoulement obligation that this decision represents, very few judicial decisions have invoked or applied the principles. There is a strong case for more strategic litigation building on this important, international legal precedent.
The use of domestic immigration law categories in Latin America has been extensively documented by Cantor, who argues that they may have more practical utility in addressing context-specific displacement dynamics when contrasted against international protection categories whose narrow eligibility criteria make it extremely difficult for most people, particularly those facing adversity that cannot readily be attributed to a malign human actor. Scott and Lahnalahti have traced the existence of similar categories in the Nordic region, and Scott and Garner have closely examined Swedish judicial decisions applying domestic provisions, including one provision specifically designed to address the situation of people unable to return home in the context of disasters. Although this research revealed an extremely low rate of success in the Swedish context, other jurisdictions may, like those surveyed by Cantor, generate interesting decisions that may inspire replication.
In stark contrast to people who rely on international law in order to avoid being forced to return home, others resist being forced to leave home in the first place. This idea, now often described as voluntary immobility or invoked as the right to remain or stay, is frequently advanced by Indigenous Peoples, who articulate a deep attachment to specific territory. Where action or inaction (or both) jeopardizes this right to remain, international human rights law may compel responsible state actors to take steps to prevent displacement.
In the case of Daniel Billy and others v Australia, the Human Rights Committee found that Australia had violated the right of Indigenous Torres Straits Islanders to culture, which is protected by Article 27 ICCPR. The Committee also found a violation of Article 17 protecting the right to private and family life and the home. The violations arose in relation to Australia’s failure to significantly reduce greenhouse gas emissions and to adequately invest in climate change adaptation initiatives that would enable Torres Straits Islanders to remain on their traditional lands, with the consequence that the applicants were already experiencing deterioration of burial grounds due to saltwater intrusion as a result of rising sea levels, as well as other impacts including destruction of marine and coastal ecosystems (therefore impacting the lives and livelihoods of the Islanders). The complaint repeatedly raises the concern that Islanders will have to relocate or otherwise be displaced from their territory, and the Views adopted by the Committee articulate clear legal principles regarding the duty of states to take steps to address foreseeable displacement.
In January 2020, the Alaska Institute for Justice submitted to multiple UN Human Rights Council Special Procedures mandate holders a complaint of human rights violations against the United States government on behalf of five Indigenous Tribes entitled Rights of Indigenous People in Addressing Climate-Forced Displacement. The complaint outlines how the disappearance of coastal Louisiana (and similar issues in Alaska) can be ascribed to numerous climate-related causes, including extreme weather events, flooding, saltwater intrusion, coastal erosion, subsidence, and sea level rise. These changes threaten the Tribes’ way of life by reducing the viability of traditional subsistence trapping, fishing, hunting, and farming, as well as destroying sacred and historical sites. This poses risks to health and human safety, protection and maintenance of natural resources, and occupations such as commercial fishing. Although not limited to this issue, the case is noteworthy because it reflects a situation where communities are seeking legal remedies for a State’s failure to adequately address the issue of relocation, an issue particularly acute in the context of the Native village of Kivalina (Alaska), from which residents have been trying to relocate since the early 1990s. In response to the complaint, ten UN Human Rights Council Special Procedures mandate holders wrote to the US government in September 2020, restating the allegations from the complaint and seeking comment from the government about its actions or measures taken to address the issues, including reference to international human rights law standards and guidelines.
The 1998 Guiding Principles on Internal Displacement reflect the prohibition on arbitrary displacement under international law. Although the Guiding Principles recognize that States may enforce evacuation orders in order to comply with the duty to protect life, the human rights implications of being required to move are significant. While we are yet to identify specific judicial decisions concerning the enforcement of evacuation orders, research by McAdam on the Australian legal context and by Fairchild et al. in relation to the USA points to a range of issues that are likely to have engaged judicial authorities in the context of evacuations, including both in relation to failures to facilitate evacuation as well as decisions to enforce evacuation in a situation where alternatives may have been available.
Whereas evacuation suggests an imminence of harm, eviction in the context of disasters and climate change is closely related and may be invoked by authorities for the same life-saving purpose. Perhaps to an even greater extent than with evacuations, forced eviction in the context of disasters and climate change has serious human rights implications. Communication to Pakistan concerning the ongoing forced evictions and home demolitions along Karachi’s waterways (nullahs), details the concerns of five UN Human Rights Council Special Procedures mandate holders about the decision to evict people from informal settlements in the name of climate change adaptation and disaster risk reduction. The Communication points to a Supreme Court decision authorizing the eviction on the basis that the settlements increase flood risk. Despite a stipulation in the Supreme Court decision that evicted persons were to be ‘rehabilitated’, the Communication notes that no such rehabilitation appears to have taken place. The Communication includes a wealth of references to relevant international human rights law standards and guidelines that should be adhered to in this complex process, which would prove useful in other jurisdictions where people are facing similar harms related to eviction in the context of disasters and climate change.
In the landmark case of José Noé Mendoza Bohórquez et al. v. Department of Arauca, following the forced displacement of victims of the Bojabá River flooding, the Colombian Constitutional Court reviewed international instruments on internal displacement due to environmental factors, and found that current Colombian laws lack clear guidelines for the relocation and protection of environmentally displaced persons. Various local authorities were found to have violated the applicants' rights by only providing immediate aid after initial flooding and failing to address subsequent needs, in contrast to the safeguarding extended to victims of conflict. The Court urged Congress to develop a
In light of the above, we argue that judicial and quasi-judicial actors play a critical role in addressing the myriad ways in which people are forced to move in the context of disasters and climate change. However, the complexity and relative novelty of some of the issues mean that judges and other decision-makers are likely to require support to reach decisions that accurately reflect existing international and/or domestic legal standards. Consequently, a strategic litigation initiative is called for. Moving beyond conceptions of strategic litigation as reflecting high profile, single issue, precedent-setting, activist projects, we see strategic litigation as encompassing a far-reaching collaborative initiative that works with a wide range of actors to develop clarity around how domestic and international law applies in this context, whilst also committing to ensure its progressive development and implementation in specific cases.
With arguments being advanced in judicial and quasi-judicial forums around the world, we see first and foremost an urgent need to compile relevant cases in a single location or repository. The idea first stemmed from in-person regional consultations with civil society across the world, led by the Global Strategic Litigation Council (‘the Council’) in 2023. The Council unites and supports a coalition of over 400 refugee and migrant-led organizations, NGOs, lawyers, advocates and academic experts working on strategic litigation and advocacy to advance the rights of people on the move. Climate displacement was identified as a priority by various council members at these consultations, with a need for such a resource to be created. To that end, following an expert roundtable discussion in the summer of 2023, the Council initiated a project to develop a database of judicial decisions from around the world focused exclusively on displacement in the context of disasters and climate change. Through collaboration with an international pro-bono network of lawyers working at DLA Piper and Eversheds, and with editorial and strategic guidance from Earth Refuge, the Raoul Wallenberg Institute of Human Rights and Humanitarian Law and the Zolberg Institute on Migration and Mobility, the project has identified, analyzed and published summaries of a curated selection of important judicial decisions relating to both cross-border and internal displacement. An early version of the database was launched in August in Bangkok at the Council’s fifth regional consultation on strategic litigation for migrants and people on the move, co-hosted by the Office of the United Nations High Commissioner for Human Rights (OHCHR) and the Asia-Pacific Refugee Rights Network (APRRN). As momentum builds around this project, we hope to rapidly increase the volume of cases available in the database.
We believe the database will serve as a valuable tool to complement a variety of initiatives supporting continuing professional development of lawyers and judges, as well as wider learning exchanges focusing on legal and broader justice dimensions of climate- and disaster-related displacement. In our view, any strategic litigation initiative must begin with a clear understanding of the legal landscape. By compiling cases from around the world, this database facilitates horizon scanning across jurisdictions, as well as, over time, opportunities for practitioners to dive deeper into jurisprudence from their own domestic jurisdiction.
The Nansen Initiative on Disaster-Induced Cross-Border Displacement found that domestic and regional approaches, rather than comprehensive international legal instruments, are likely to be better attuned to the particular challenges facing people displaced in different parts of the world. In a similar way, we appreciate that strategic litigation in this context is likely to be most effective when it builds on consistent articulation of coherent legal arguments in relevant cases adapted strategically according to jurisdiction, rather than placing hopes in ground-breaking high-level judgments. Instead of hoping for a single definitive ground-breaking judgment at the supra-national level, we envisage an international community of practice that shares insights, experiences and expertise to promote cross-fertilization of effective arguments that advance protection of people from being displaced in the first place, from the harms associated with being displaced, and from being forcibly returned to places where they would (again) be exposed to harm. Providing a central repository for relevant jurisprudence is one part of this initiative.
Matthew Scott is Associate Professor of Public International Law at the Raoul Wallenberg Institute of Human Rights and Humanitarian Law and Lund University. He works almost exclusively on the legal dimensions of internal and cross-border displacement in the context of disasters and climate change, through research, education and direct engagement in partnerships facilitated by RWI offices around the world.
Yumna Kamel is Executive Director and Co-founder of Earth Refuge, a legal think tank focused upon the rights of those impacted by climate induced displacement.
Bella Mosselmans is Director of the Global Strategic Litigation Council for Refugee Rights and Senior Researcher based at the Zolberg Institute on Migration and Mobility at the New School. The Council unites and supports a coalition of over 400 NGOs, advocates and academics to use the power of people and the power of the law to advance the rights of those forcibly displaced worldwide. Climate Displacement is a core thematic priority of the Council’s membership.
Stephanie Hader is the Director and Co-founder of Earth Refuge. She led the legal education initiatives at Earth Refuge, collaborating with universities worldwide to supervise students in their climate-related legal and field research projects.
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