ENVIRONMENTAL MIGRATION IN REGIONAL HUMAN RIGHTS COURTS: A LIFEBOAT FROM THE "SINKING VESSEL"

Abstract

Environmental and climate change-related migration is an issue of critical and growing global importance and interest. According to various estimates, millions of people are at risk of being driven from their homes by environmental factors in the coming decades. A set of cases that have arisen in international and domestic courts concern “environmental non-refoulement” – efforts to block the removal of individuals to locations affected by climate change or other environmental degradation on the basis that they will face significant human rights risk, notably to their rights to life or to freedom from torture or cruel, inhuman or degrading treatment. However, while human rights courts in the European, Inter-American, and African systems have confronted a number of non-refoulement claims and have made significant contributions to the jurisprudence in this area, these regional courts all have yet to hear an environmental non-refoulement case. In this article I examine what these courts will do when presented with such a claim.

The leading international and domestic cases on environmental non-refoulement have, for the most part, recognized the grave human rights threats posed by environmental crises but denied relief under the particular sets of facts presented. In making these decisions, courts have varied in their consideration of key questions including the required imminence of the human rights harm, the necessary specificity of the harm, and the special protections available to groups in vulnerable situations. In this article, through an examination of both the non-refoulement and environmental jurisprudence of regional human rights courts, I argue that with respect to these three elements – imminence, specificity, and vulnerability – such courts would apply a more flexible standard than international and domestic courts, and thus would protect more people from the human rights harms caused by environmental crises.

Keywords: human rights, climate change, migration, non-refoulement, environmental migration

JEL Classification: K33, K37