0% found this document useful (0 votes)

76 views29 pages

Natural Disasters, Climate Change and For Resisting Expulsion Under Articles 3 and 8 of The European Convention On Human Rights?

Uploaded by

VICENTE AYLWIN FERNÁNDEZ

We take content rights seriously. If you suspect this is your content, claim it here.

Available Formats

Download as PDF, TXT or read online on Scribd

0% found this document useful (0 votes)

76 views29 pages

Natural Disasters, Climate Change and For Resisting Expulsion Under Articles 3 and 8 of The European Convention On Human Rights?

Uploaded by

VICENTE AYLWIN FERNÁNDEZ

We take content rights seriously. If you suspect this is your content, claim it here.

Available Formats

Download as PDF, TXT or read online on Scribd

International Journal of Refugee Law, 2014, Vol. 26, No.

3, 404–432
doi:10.1093/ijrl/eeu036

Natural Disasters, Climate Change and

Non-Refoulement: What Scope
for Resisting Expulsion under Articles 3

A B ST R A CT
Climate change is already contributing to the displacement of millions of people world-
wide as extreme weather events become increasingly frequent and intense. Proposals for
responding to the phenomenon of climate change-related displacement overwhelmingly
rely on the state to act, with limited discussion of the potential to determine and develop
the scope of protection through strategic litigation. This article considers the current
and potential scope of protection under articles 3 and 8 of the European Convention on
Human Rights (ECHR) from a strategic litigation perspective. Individuals facing expul-
sion from a European host state to a receiving state during or in the aftermath of a ‘pure’
natural disaster will generally struggle to engage host state non-refoulement obligations
under the ECHR. However, in circumstances where claimants can adduce evidence
demonstrating that climate change has played a role in the disaster, it is arguable that a
lower threshold test should be applied for establishing a breach of article 3 ECHR, either
following the ‘predominant cause’ test applied in Sufi & Elmi v United Kingdom, or by
arguing that expulsion cases involving climate change-related harm form a sui generis cat-
egory because, unlike other article 3 non-refoulement cases, the host state is implicated.
Claimants may additionally or alternatively invoke their right to physical and moral integ-
rity under article 8, advancing arguments relating to the proportionality of expulsion in
light of the host state’s disproportionate emission of greenhouse gases that cause climate
change. Using two hypothetical scenarios, the article considers how such arguments
could be developed in practice, whilst also identifying potential challenges.

* Solicitor and doctoral candidate, Lund University, Faculty of Law. Financial support provided by the European Refugee
Fund. Thanks to Dr Rebecca Stern, Uppsala University, and Dr David James Cantor, University of London, School of
Advanced Study, Refugee Law Initiative, for critical engagement with some of the arguments in the text. Particular thanks to
Professor Gregor Noll, Lund University, for his in-depth engagement with the text. Errors or omissions remain entirely my
responsibility.

© The Author (2014). Published by Oxford University Press. All rights reserved. For Permissions please email: journals.
[email protected]
Natural Disasters, Climate Change and Non-Refoulement • 405

1. I n tro d u cti o n

More than 31 million people were displaced by sudden-onset natural disasters
in 2012.1 An additional 42 million people were affected by drought in the same
year. 2 Climate change is understood to play a role in some of these events.3 With
weather-related natural disasters projected to increase in both frequency and
intensity in many parts of the world as global average temperatures continue
to rise over the course of the century, 4 climate change-related displacement is
becoming part of what UN Secretary General Ban Ki Moon has described as ‘the
new normal’. 5
This article considers specifically whether articles 3 and 8 of the European

1
Internal Displacement Monitoring Centre, ‘Global Estimates 2012: People Displaced by Disasters’ (2013), 6 <http://www.
internal-displacement.org/8025708F004BE3B1/%28httpInfoFiles%29/99E6ED11BB84BB27C1257B6A0035FDC4/$f
ile/global-estimates-2012-may2013.pdf> accessed 12 Nov 2013.
2
EM-DAT: The OFDA/CRED International Disaster Database, Université Catholique de Louvain, Brussels, Belgium
<http:www.emdat.be>, accessed 19 Nov 2013. ‘Affected’ is defined in the EM-DAT database as ‘people requiring immediate
assistance during a period of emergency; it can also include displaced or evacuated people’.
3
Intergovernmental Panel on Climate Change (IPCC), ‘Managing the Risks of Extreme Events and Disasters to Advance
Climate Change Adaptation’ (2012) <http://ipcc.ch/publications_and_data/publications_and_data_reports.
shtml#SREX> accessed 12 Nov 2013.
4
World Bank, ‘Turn Down the Heat: Climate Extremes, Regional Impacts and the Case for Resilience’ (2013) <http://
www-wds.worldbank.org/external/default/WDSContentServer/WDSP/IB/2013/06/14/000445729_201306141459
41/Rendered/PDF/784240WP0Full00D0CONF0to0June19090L.pdf> accessed 12 Nov 2013.
5
Barbara Lewis and Alister Doyle, ‘Extreme Weather is New Normal U.N.’s Ban Tells Climate Talks’ Reuters (4 Dec
2012) <http://www.reuters.com/article/2012/12/04/us-climate-talks-idUSBRE8B217F20121204> accessed 12 Nov
2013.
6
See Walter Kälin and Nina Schrepfer, ‘Protecting People Crossing Borders in the Context of Climate Change: Normative
Gaps and Possible Approaches’, UNHCR Legal and Protection Policy Research Series (2012) <http://www.unhcr.
org/4f33f1729.pdf> accessed 12 Nov 2013 for a typology of climate change-related displacement scenarios.
7
ibid.
406 • Natural Disasters, Climate Change and Non-Refoulement

• A new Convention for protecting climate change migrants,8

• An amendment or additional protocol to the Geneva Convention relating to
the Status of Refugees,9
• An additional protocol to the European Convention on Human Rights,10
• An additional protocol to the UN Framework Convention on Climate
Change 1992 (UNFCCC),11
• Better implementation of the Guiding Principles on Internal Displacement,12
• Ad-hoc solutions by individual states in response to specific events,13
• Managed migration,14
• Strengthening local adaptive capacity,15

Within the European Union

• Use of the Temporary Protection Directive (2001/55/EC) in cases of mass

influx,17
• An amendment to article 15(c) of the Qualification Directive (now 2011/95/
EC) to include environmental disaster as a basis for the grant of subsidiary
protection,18
• Further development of the Joint EU Resettlement Programme.19

One feature that these approaches share is their dependence on the state to take
proactive steps to respond to the phenomenon of climate change-related displacement.
A different approach emphasizes the role that individuals can play in securing positive

8
David Hodgkinson and Lucy Young, ‘In the Face of Looming Catastrophe: A Convention for Climate Change Displaced
Persons’ (2012) <http://www.ccdpconvention.com/documents/A%20Convention%20for%20Climate%20Change%20
Displaced%20Persons%20( January%202012).pdf> accessed 12 Nov 2013.
9
Minister of Environment for Bangladesh, Dr Hasan Mahmud, quoted in ‘Durban Climate Summit: Dhaka to Seek
Amendment to Refugee Convention’ Jubilee South (4 Nov 2011) <http://www.apmdd.org/10-news/69-durban-climate-
summit-dhaka-to-seek-amendment-to-refugee-convention> accessed 12 Nov 2013.
10
Parliamentary Assembly of the Council of Europe, Recommendation 1862(2009): ‘Environmentally-Induced Migration
and Displacement: a 21st Century Challenge’ (2009) <http://assembly.coe.int/Documents/AdoptedText/ta09/
EREC1862.htm> accessed 12 Nov 2013.
11
Frank Bierman and Ingrid Boas, ‘Protecting Climate Refugees: The Case for a Global Protocol’ (2008) 50 Environment
8–16 <http://www.environmentmagazine.org/Archives/Back%20Issues/November-December%202008/Biermann-
Boas-full.html> accessed 12 Nov 2013.
12
Jane McAdam, ‘Climate Change Displacement and International Law: Complementary Protection Standards’ (2011),
UNHCR Legal and Protection Policy Research Series <http://www.unhcr.org/4dff16e99.pdf> accessed 12 Nov 2013.
13
ibid.
14
ibid.
15
ibid.
16
Kälin and Schrepfer, above n 6.
17
European Parliament, ‘“Climate Refugees”: Legal and Policy Responses to Environmentally Induced Migration’ (2011)
<http://www.europarl.europa.eu/committees/de/studiesdownload.html?languageDocument=EN&file=60931> accessed
12 Nov 2013.
18
ibid.
19
ibid.
Natural Disasters, Climate Change and Non-Refoulement • 407

outcomes for themselves and developing the scope of international protection through
strategic litigation.
Importantly, this article is not presented as a call for practitioners to start bring-
ing claims relating to climate change immediately. Rather, it is intended to generate
discussion about the potential role of strategic litigation in responding to the unique
legal challenges faced by what is likely to become an increasingly large client group for
practitioners.
The article has the following structure. Part 2 discusses the interrelated phenomena
of natural disasters, climate change and displacement. In part 3, two hypothetical sce-
narios involving an individual resisting expulsion at least in part owing to the adverse

2. N AT U R A L D I S A ST E R S, C L I M AT E C H A N G E A ND D I S P L A C E M E N T
2.1 Natural disasters and displacement
Natural hazard-induced disasters (natural disasters) can be categorized within a typol-
ogy of weather-related disasters, geophysical disasters and biological disasters. Some dis-
asters are described as ‘sudden-onset’ and others are described as ‘slow-onset’. Table 1
provides a snapshot of the typology.
Events such as those identified in Table 1 can precipitate disasters, defined as:

[A] serious disruption of the functioning of a community or a society causing

widespread human, material, economic or environmental losses which exceed the
ability of the affected community or society to cope using its own resources .... It
results from the combination of hazards, conditions of vulnerability and insuffi-
cient capacity or measures to reduce the potential negative consequences of risk.20

The definition recognizes that multiple factors contribute to making an event a disaster.
Thus, poor countries with less robust infrastructure will be more vulnerable to these
events than wealthier countries, and vulnerability and exposure will vary across the
country. Some of the vulnerability and exposure will result from a failure by national
and local authorities to adopt and/or implement adequate regulations. For example,
buildings may not be built to withstand cyclones, floods, or earthquakes, or sea wall

20
UN Office for Disaster Risk Reduction, UNISDR, quoted in IDMC, ibid, 8.
408 • Natural Disasters, Climate Change and Non-Refoulement

Table 1. Typology of natural disasters21

Weather-related disasters
Meteorological Hydrological Climatological

Sudden Tropical storms, winter Floods (flash, coastal/ Extreme winter

onset storms, tornados, snow storm surges, riverine), conditions, heat
and sand storms wet mass movements waves, wild fires
(landslides, avalanches,
sudden subsidence)

Geophysical Biological
Sudden Earthquakes, volcanic Epidemics, insect
onset eruptions, dry mass infestations, animal
movements (rockfalls, stampedes
snow and debris
avalanches, landslides,
sudden subsidence)
Slow onset Long-lasting Epidemics, insect
subsidence infestations

defences may not be constructed or maintained. However, vulnerability and exposure

are influenced by a complex interplay of factors, including settlement patterns, urbani-
zation, changes in socio-economic conditions, as well as broader economic, social, geo-
graphic, demographic, cultural, institutional, governance, and environmental factors.22
Importantly, whilst ‘the community’ may recover following the aftermath of a natu-
ral disaster, or may adapt to challenges associated with climate change, some individu-
als may have particular vulnerabilities that make them unable or unwilling to return.23
Individual responses to natural disasters will vary considerably owing to a range of
factors, such as their health and mobility as well as the health and mobility of depend-
ants, personal and family resources, the response of state and civil society actors and
so forth. Many will remain in the general vicinity of the disaster, for example, at home,
with friends or relatives, or in shelters or camps. Some may move short distances,
for example, from affected rural areas to more resilient or less affected rural or urban
areas. Others will move greater distances, including to large urban centres within the
same country. It is widely understood that most displacement associated with natural

21
Adapted from Internal Displacement Monitoring Centre (IDMC), ‘Global Estimates 2011: People Displaced by Natural
Hazard-Induced Disasters’ (2012) <http://www.internal-displacement.org/8025708F004CFA06/(httpPublications)/A01
8C57177748E8AC1257A22002DF0A8> accessed 12 Nov 2013, 8.
22
IPCC, above n 3, 7.
23
For more on how community cannot be considered as a homogeneous entity, see Irene Gujit and Meera Kaul Shah (eds), The
Myth of Community: Gender Issues in Participatory Development (Intermediate Technology Publications 1998).
Natural Disasters, Climate Change and Non-Refoulement • 409

disasters follows these patterns of internal displacement, and that only a minority of
those affected will migrate internationally.24
Among those who do cross international borders, it will be a still smaller minority
who move beyond immediately neighbouring countries.25 In all scenarios, there may
be individuals who are permanently displaced, although many will return home if/as
conditions improve.

2.1.1 Internal relocation

At least at this stage of climate change, it would be rare for a natural disaster to affect the
entire territory of a country. An important consideration in any claim to resist expul-

2.1.2 Causation
Environmental pressures, let alone climate change, cannot be considered to be the cause
of displacement, whether internal or international, owing to the range of factors that are
at play in individual displacement scenarios. This recognition is significant for the wider
discussion about climate change-related displacement. However, from the perspective of
an individual resisting expulsion to a home country that has been adversely affected by
climate change, the question of causation of movement is immaterial. The relevant per-
spective is forward-looking, to the conditions the individual can expect to find on return.

2.2 The role of climate change in natural disasters

The increasing frequency and intensity of natural disasters, as well as overall changes
in the climate system that affect human security in multiple ways, make climate change
a ‘risk multiplier’, exacerbating the impact of existing risks.28 According to the Global
Facility for Disaster Risk Reduction:

The number of people affected by climate-related disasters is on the rise, par-

ticularly in low- and middle-income countries where rapid urbanization is taking
place. Poor households are severely affected by climate change impacts as they
have less access to protective assets and face higher exposure to environmental

24
Frank Laczko and Christine Aghazarm, ‘Introduction and Overview: Enhancing the Knowledge Base’ in International
Organization for Migration, ‘Migration, Environment and Climate Change: Assessing the Evidence’ (2009) <http://www.
ccema-portal.org/file/get/5757> accessed 12 Nov 2013.
25
ibid.
26
The internal relocation/flight alternative is a well-established element of refugee status determination, and is also recognized
as being a relevant consideration in determining the extent of contracting states’ obligations in relation to extraterritorial
article 3 claims – see, eg, Sufi & Elmi v United Kingdom App no 8319/07 (ECtHR, 28 June 2011) [294].
27
The ‘unduly harsh’ threshold was established by the House of Lords in the refugee case Januzi v Secretary of State for the Home
Department [2006] UKHL 5, [2006] 2 AC 426, cited as a ‘relevant principle’ by the Court in Sufi & Elmi at [36].
28
International Fund for Agriculture and Development, ‘Rural Poverty Report 2011: New Realities, New Challenges: New
Opportunities for Tomorrow’s Generation’ (2011) <http://www.ifad.org/rpr2011/report/e/rpr2011.pdf> accessed 12
Nov 2013; World Food Programme website <http://www.wfp.org/climate-change> accessed 12 Nov 2013.
410 • Natural Disasters, Climate Change and Non-Refoulement

risks. With expected shifts in rainfall patterns, melting snow-packs and glaciers,
stronger tropical cyclones, and a rising sea level, climate change is becoming a
risk multiplier for the poor …29

The degree of scientific consensus regarding the role of climate change in any natural
disaster will be central to any claim to resist expulsion owing to the adverse effects of
climate change and it must be recognized that many claims will fail owing to an inability
to establish the required degree of causation.
The Intergovernmental Panel on Climate Change (IPCC) attributes different degrees
of certainty to whether climate change has played a role in observed changes in differ-

Downloaded from http://ijrl.oxfordjournals.org/ at San Diego State University on September 12, 2014
ent kinds of natural disasters, for example, in terms of their frequency or intensity,30 and
identifies considerable, although not always insurmountable, challenges in establish-
ing a causal link between climate change and specific events.31 At the global level, the
IPCC expresses ‘medium confidence’ that anthropogenic influences have contributed
to intensification and frequency of extreme precipitation events, yet ‘low confidence’
relating to changes in drought patterns. There is ‘likely’ anthropogenic influence on
the observed increase in extreme coastal high water worldwide related to increases in
mean sea level in the late twentieth century, but ‘low confidence’ in the attribution of
any increased intensity in tropical cyclone activity to anthropogenic influences (due
to uncertainties in historical tropical cyclones records, incomplete understanding of
physical mechanisms, and the degree of tropical cyclone variability).32
The degree of certainty about the link between climate change and natural disasters
varies between regions as well. For example, there is far higher confidence that changes
in rainfall patterns are occurring in the Americas and Europe compared with Asia and
Africa. One clear reason is the insufficiency of data from the latter two regions.33 Thus,
lower levels of confidence relating both to the existence of a process of environmental
change and the role of climate change in these processes does not establish that there is
no change underway or that climate change does not play a role. The IPCC recognizes
insufficient data as one key reason for low confidence.34
Importantly, although the IPCC and other international bodies such as the World
Meteorological Organization (WMO)35 are authoritative, other sources can potentially
be relied upon to strengthen the correlation between natural disasters and climate
change. Additionally, the IPCC assessments are based on a wide review of literature
and thus primarily focus on regional and global trends, rather than on country-specific
developments. Consequently, site-specific evidence establishing a link between climate
change and natural disasters should arguably be afforded weight notwithstanding gen-
eral conclusions by the IPCC and other authorities that may paint a different picture.

29
Global Facility for Disaster Risk Reduction <https://www.gfdrr.org/cca> accessed 12 Nov 2013.
30
Intergovernmental Panel on Climate Change (IPCC), ‘Working Group I Contribution to the IPCC Fifth Assessment Report,
Climate Change 2013: The Physical Science Basis’ (2013) <http://www.ipcc.ch/report/ar5/wg1/> accessed 11 May 2014, 36
31
IPCC, above n 3, 127.
32
IPCC, above n 30, 112–13
33
IPCC, above n 3, 193–94.
34
ibid, 120.
35
World Meteorological Organization <http://www.wmo.int/pages/index_en.html> accessed 12 Nov 2013.
Natural Disasters, Climate Change and Non-Refoulement • 411

Although establishing causal links is very challenging, in some cases it is possible

to demonstrate that climate change has affected the likelihood that a particular natural
disaster will occur.36 This ‘probability’ approach is discussed in part 5.

3. S C E N A R I O S
3.1 Maria
Maria is a 60-year-old shopkeeper from the Philippine town of Tacloban City. Maria
was in the United Kingdom on a family visit to her son Gustavo, a settled migrant,
when Typhoon Haiyan struck her island on 8 November 2013. She has since received

• 13.2 million people are affected, of which 4.4 million are displaced,
• Over 1 million houses are damaged, about half of which are completely
destroyed,
• 400,000 people are sheltering in evacuation centres. 22 centres in Tacloban
City have no electricity and have problems with drainage and waste
management,
• 115 (mainly hospitals) of 2,495 health facilities in the affected area have been
assessed. Of the 115 assessed, 47 are not functioning (41 per cent). 87 medi-
cal teams have been deployed,
• Residents of Tacloban now have access to clean water and hygiene kits,
• Hundreds of thousands of hectares of crops have been damaged or destroyed,
including ready-to-harvest rice fields and newly planted rice plots. Most of
the people affected rely on agriculture for their livelihood.37

Shortly after hearing the news from Tacloban, Maria makes an application for a resi-
dence permit as she cannot bear the thought of returning to the Philippines, where she
has lost everything.

3.2 Abdi
Abdi is a pastoralist from Kismaayo in southern Somalia. The 2011 drought killed all
of his livestock and the associated famine forced him to move with his family into the
Dadaab refugee camp across the border in Kenya.38 Two of his children died in the
camp from dehydration associated with diarrhoea. With assistance from an extended
family and clan network, Abdi arranges passage to Sweden, leaving his remaining family
36
James Hansen, Makiko Sato and Reto Ruedy, ‘Perception of Climate Change’, Proceedings of the National Academy of
Sciences (2012) <http://www.pnas.org/content/early/2012/07/30/1205276109.abstract> accessed 12 Nov 2013.
37
Office for the Coordination of Humanitarian Affairs (OCHA), ‘Philippines: Typhoon Haiyan -Situation Report No. 13 (as
of 19 November 2013)’ <http://reliefweb.int/sites/reliefweb.int/files/resources/OCHAPhilippinesTyphoonHaiyanSitrep
No13.19November2013.pdf> accessed 20 Nov 2013.
38
42.9% of Somalia’s population fell victim to natural disasters in 2011, mostly due to drought, see Debby Guha-Sapir, Femke
Vos, Regina Below with Sylvain Ponserre, ‘Annual Disaster Statistical Review 2011: The Numbers and Trends’ (Centre
for Research on the Epidemiology of Disasters (CRED) Institute of Health and Society (IRSS), Université catholique de
Louvain, Brussels, Belgium) <http://www.cred.be/sites/default/files/ADSR_2012.pdf> accessed 12 Nov 2013, 1.
412 • Natural Disasters, Climate Change and Non-Refoulement

behind. On arrival he seeks a residence permit on the basis that he cannot return to
Somalia owing to the adverse environmental conditions there. He invokes articles 3
and 8 ECHR.39 The rains fail again in 2014 and the death toll rises daily.

4. R E L E VA N T J U R I S P R UD E N C E UND E R A RT I C L E S 3 A ND 8 E C H R
A P P L I E D TO T H E H Y P OT H ET I C A L C A S E S
From the outset it is necessary to recognize that claims by non-citizens invoking
Convention rights to resist expulsion fall within a narrow category of exceptional cases
where contracting states’ obligations extend beyond circumstances appertaining within
their own territory. Although less of an issue where article 3 claims are concerned,

4.1 Article 3 ECHR

Article 3
Prohibition of torture
No one shall be subjected to torture or to inhuman or degrading treatment or
punishment.

The law appears to be still developing in relation to the application of article 3 in cases
where the expulsion of an individual would expose her to some form of adversity out-
side of the contracting state.
Three categories identified within the article 3 ‘non-refoulement’ jurisprudence are
described below:40

• Direct and intentional infliction of harm cases: where the receiving state or
non-state actors directly and intentionally inflict serious harm (exemplified by
Soering v United Kingdom41),
• Purely naturally occurring harm cases: where the receiving state is not consid-
ered to be responsible for harm that results from ‘purely’ naturally occurring
phenomena such as HIV (exemplified by the cases of D v United Kingdom42
and N v United Kingdom43),
• Predominant cause cases: where actors in the receiving state are seen as being
the predominant cause of a humanitarian crisis (exemplified by Sufi & Elmi v
United Kingdom44).

39
Although not related to the application of articles 3 and 8 ECHR, it is interesting to note that Sweden is one of the few
countries in Europe, Finland being another, to have incorporated ‘environmental catastrophe’ into the grounds for granting
international protection (see Swedish Aliens Act (Utlänningslagen) 4 kap 2a§ 2).
40
The term non-refoulement is most commonly associated with international refugee law. However, the term has also been applied
in the context of human rights law, with relevant provisions of the International Covenant on Civil and Political Rights 1966;
the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment 1984; and the Convention
on the Rights of the Child 1990; along with the ECHR; being identified as imposing non-refoulement obligations on host states.
41
Soering v United Kingdom App no 14038/88 (ECtHR, 7 July 1989).
42
D v United Kingdom App no 30240/96 (ECtHR, 2 May 1997).
43
N v United Kingdom App no 26565/05 (ECtHR, 27 May 2008).
44
Sufi & Elmi v United Kingdom App no 8319/07 (ECtHR, 28 June 2011).
Natural Disasters, Climate Change and Non-Refoulement • 413

The threshold that must be reached before the harm feared will engage the
Convention obligations of the host state will increase along a continuum, with a lower
(albeit already very high) threshold required for the direct and intentional infliction of
harm, a somewhat higher threshold for acts which are seen as being the predominant
cause of a humanitarian crisis, and a still higher ‘very exceptional’ threshold where con-
ditions on return are seen as being entirely naturally occurring. Each category will be
considered in turn below.

4.1.1 Type 1 cases: Direct and intentional infliction of harm

In Soering, the Court recognized that the prohibition on torture applied even in circum-

4.1.2 Type 2 cases: Purely naturally occurring harm

There is a far less comprehensive prohibition on refoulement to a country where the
individual would experience ‘naturally occurring’ harm, such as from an illness where
the receiving state cannot be considered to be directly or indirectly responsible for the
harm feared. However, in exceptional circumstances, the act of expelling a non-citizen
in such a scenario has been held to engage contracting states’ Convention obligations.
The Court in D found that the UK would breach article 3 by expelling a termi-
nally-ill man to St Kitts. In that case, D’s life expectancy was considered to be a few
months and he could not expect to receive adequate palliative care upon return. It was
accepted by the Court at paragraph 53 that his expulsion would expose him to ‘a real
risk of dying under most distressing circumstances and would thus amount to inhu-
man treatment’.
D thus established that a contracting state can breach article 3 ECHR not only by
expelling a person to face the direct and intentional infliction of harm by the receiv-
ing state, but also in situations where the expulsion will result in harm relating more
to socio-economic rights than to civil and political rights. However, in those cases the
threshold is set higher. For a breach to be found in these cases, the case must be both
‘very exceptional’ and the ‘humanitarian considerations’ must be ‘compelling’.47 What
made D ‘very exceptional’ was the fact that he ‘was critically ill and appeared to be close
to death, could not be guaranteed any nursing or medical care in his country of origin

45
Chahal v United Kingdom App no 22414/93 (ECtHR, 15 Nov 1996).
46
Saadi v Italy App no 37201/06 (ECtHR, 28 Feb 2008).
47
N v United Kingdom, above n 43 [42].
414 • Natural Disasters, Climate Change and Non-Refoulement

and had no family there willing or able to care for him or provide him with even a basic
level of food, shelter or social support’.48
The need for a high threshold was emphasized by the majority in the Grand Chamber
judgment in N. In that case the Court held by fourteen votes to three that the expul-
sion of a Ugandan woman living with HIV would not breach article 3 ECHR where to
do so would result in a significantly reduced life expectancy, but not imminent death.
Maintenance of a high threshold was justified at paragraph 43:

The Court does not exclude that there may be other very exceptional cases where
the humanitarian considerations are equally compelling. However, it considers that

Controversially, having regard to the absolute nature of article 3, the Court observed
at paragraph 44 that a balancing exercise was involved in determining whether expul-
sion would breach article 3.

… inherent in the whole of the Convention is a search for a fair balance between
the demands of the general interest of the community and the requirements of the
protection of the individual’s fundamental rights (see Soering v the United Kingdom,
judgment of 7 July 1989, Series A no. 161, § 89). Advances in medical science,
together with social and economic differences between countries, entail that the
level of treatment available in the Contracting state and the country of origin may
vary considerably. While it is necessary, given the fundamental importance of
Article 3 in the Convention system, for the Court to retain a degree of flexibility to
prevent expulsion in very exceptional cases, Article 3 does not place an obligation
on the Contracting state to alleviate such disparities through the provision of free
and unlimited health care to all aliens without a right to stay within its jurisdiction.
A finding to the contrary would place too great a burden on the Contracting States.

The joint dissenting opinion of Judges Tulkens, Bonello and Spielmann takes issue
with four aspects of the decision of the majority. In particular, the dissenting opinion
identifies what the judges consider to be the ‘real concern’ of the majority; namely, that
a finding in favour of the applicant would open Europe to medical immigration. Not
only does this ‘floodgates’ argument offend the absolute nature of article 3, they say,
but it is also unfounded, having regard to statistics on Rule 39 applications based on
HIV-related claims.
Although natural disaster-related displacement claims could not be construed
as imposing the same kind of resource burden on host states as would a ‘flood’ of
‘medical tourists’, concerns about opening the floodgates to ‘environmental refugees’
could, without more, lead the Court to apply the ‘very exceptional’ and ‘compelling

48
ibid.
Natural Disasters, Climate Change and Non-Refoulement • 415

humanitarian considerations’ test in article 3 non-refoulement cases in the aftermath of a

natural disaster.49 As with HIV, proponents of a restrictive approach might seek to argue
that natural disasters are generally naturally occurring and the future harm would not
normally emanate directly from the intentional acts or omissions of public authorities
or non-state actors, but instead from a naturally occurring phenomenon and the lack
of sufficient resources to deal with it in the receiving state. The author has addressed
the argument that natural disasters are purely naturally occurring in a separate article.50
Although it is not inconceivable that a natural disaster-related non-refoulement claim could
succeed even where the impacts are seen as resulting from ‘purely natural’ phenomena, the
circumstances would have to be very exceptional, involving extreme deprivation without relief.

If the dire humanitarian conditions in Somalia were solely or even predominantly

attributable to poverty or to the state’s lack of resources to deal with a naturally
occurring phenomenon, such as a drought, the test in N. v. the United Kingdom may
well have been considered to be the appropriate one. However, it is clear that while
drought has contributed to the humanitarian crisis, that crisis is predominantly due
to the direct and indirect actions of the parties to the conflict. The reports indicate
that all parties to the conflict have employed indiscriminate methods of warfare in
densely populated urban areas with no regard to the safety of the civilian popula-
tion .... This fact alone has resulted in widespread displacement and the breakdown
of social, political and economic infrastructures. Moreover, the situation has been
greatly exacerbated by al-Shabaab’s refusal to permit international aid agencies to
operate in the areas under its control, despite the fact that between a third and a half
of all Somalis are living in a situation of serious deprivation .... (References omitted.)

Thus, where the direct and indirect actions of state and non-state actors are seen as
the ‘predominant cause’ of the disaster, the ‘very exceptional’ threshold test should not
be applied. The assessment of ‘predominant cause’ is identified below as the ‘Type 3
qualifying test’.
The following factors were identified at paragraph 283 as being relevant to establish-
ing whether a breach of article 3 would occur in a Type 3 scenario:
• the applicant’s ability to cater for his most basic needs, such as food, hygiene
and shelter,
49
Alarming estimates of between two hundred million and one billion have been widely discussed in the literature, but have also
been criticized. For a discussion, see Jane McAdam, Climate Change, Forced Migration and International Law (OUP 2012).
50
Matthew Scott, ‘Refuge from climate change-related harm: Evaluating the scope of international protection following New
Zealand’s Teitiota Judgment’ (Conference paper) Refugee Law Initiative, University of London Doctoral Affiliates Network
Second Postgraduate Workshop on Refugee Law, University of London (25 Apr 2014) <http://works.bepress.com/mat-
thew_scott/4/> accessed 22 May 2014.
51
MSS v Belgium and Greece App no 30696/09 (ECtHR, 21 Jan 2011).
416 • Natural Disasters, Climate Change and Non-Refoulement

• his vulnerability to ill-treatment,

• the prospect of his situation improving within a reasonable time-frame.

Applying the above principles, the Court in Sufi & Elmi found a violation of article
3 at paragraph 291:

In light of the above, the Court considers that the conditions both in the Afgooye
Corridor and in the Dadaab camps are sufficiently dire to amount to treatment
reaching the threshold of Article 3 of the Convention. IDPs in the Afgooye
Corridor have very limited access to food and water, and shelter appears to be

It is not clear from this judgment, or the MSS authority on which it is based, whether
all three factors must be in evidence in the circumstances for this lower threshold to
apply. Thus, it is not clear whether the claimant must be able to point to a risk of ill-
treatment on return, or whether return to circumstances where she is unable to cater for
her basic needs and there is no prospect of her situation improving within a reasonable
time frame would suffice.
With many expecting resource-related conflicts to increase as the effects of climate
change begin to be more keenly felt,52 it is perhaps likely that similar circumstances
as those prevailing in Somalia at the time of the Sufi & Elmi judgment will give rise to
future claims under article 3.

4.1.4 Article 3 in Maria’s and Abdi’s cases

When turning to apply the law to the facts in the hypothetical cases of Maria and Abdi,
the first question to arise following the above discussion is whether the Type 1, Type 2
or Type 3 test applies.
As neither Maria nor Abdi fear the direct and intentional infliction of harm the Type
1 test is not applicable.
In Abdi’s case, it is clear that the Type 3 test would have been applicable at the time of
the 2011 famine. However, with a constantly changing security situation,53 it is unclear
whether the Type 3 test would continue to apply, even taking into account the impact of
the new (hypothetical) drought. Unless there is substantial evidence of human actors

52
See, eg, International Crisis Group, ‘Climate Change and Conflict’ <http://www.crisisgroup.org/en/publication-type/key-
issues/thematic/climate-change-and-conflict.aspx> accessed 12 Nov 2013.
53
UNHCR, 2014 UNHCR Country Operations Profile – Somalia <http://www.unhcr.org/pages/49e483ad6.html> accessed
11 May 2014.
Natural Disasters, Climate Change and Non-Refoulement • 417

‘predominantly causing’ the humanitarian crisis, this is likely to be treated as a ‘purely

naturally occurring’ (Type 2) case.
There would be no realistic prospect of success in Abdi seeking to rely on article 3 if the
Type 2 test was applicable, as his case could not be described as ‘very exceptional’ if regard is
had to the decidedly high threshold set in Type 2 cases, for explicitly public policy reasons. If
expelling Abdi would breach article 3, then a large majority of those facing severe socio-eco-
nomic hardship in Somalia and other countries could establish a claim on similar grounds.
The Type 2 test would be applied in Maria’s case as there is no hint of the authorities
in the Philippines ‘predominantly causing’ the natural disaster. As with Abdi, Maria’s
claim would most likely fail applying this test.

4.2 Article 8 ECHR

Article 8
Right to respect for private and family life
1. Everyone has the right to respect for his private and family life, his home and
his correspondence.
2. There shall be no interference by a public authority with the exercise of this
right except such as is in accordance with the law and is necessary in a democratic
society in the interests of national security, public safety or the economic well-
being of the country, for the prevention of disorder or crime, for the protection
of health or morals, or for the protection of the rights and freedoms of others.

In immigration cases, article 8 can protect individuals who have established private and
family life ties in the host contracting state.
When the Court considers whether the (proposed) action by the state is ‘necessary
in a democratic society’ and therefore permissible under article 8(2), it is engaging
in an analysis of the proportionality of the action. The balance of individual and state
interests is at the heart of the proportionality assessment.
The Court’s first treatment of article 8 in an expulsions context was Berrehab v the
Netherlands,55 where it held at paragraph 28 that for expulsion to be ‘necessary’ it must
‘correspond to a pressing social need’ and be ‘proportionate’.
In C v Belgium,56 the Court characterized the proportionality assessment as an
attempt to strike a ‘fair balance’.
The Court has developed jurisprudence that guides decision makers towards strik-
ing a ‘fair balance’ between the interests of the state and the rights of the individual. It is
settled law that the impact of expulsion on a claimant’s spouse and minor children are
relevant considerations in the proportionality exercise, including ‘the seriousness of the

54
See line of cases commencing with Tyrer v United Kingdom App no 5856/72 (ECtHR, 25 Apr 1978).
55
Berrehab v the Netherlands App no 10730/84 (ECtHR, 21 June 1988).
56
C v Belgium App no 21794/93 (ECtHR, 7 Aug 1996).
418 • Natural Disasters, Climate Change and Non-Refoulement

difficulties’ that the spouse or minor children are ‘likely to encounter in the country to
which the applicant is to be expelled’.57 Claimants resisting expulsion owing in part to
the adverse environmental conditions in the receiving state who have settled close fam-
ily members can therefore rely heavily on this settled case law.58
However, the Court places far less weight on the seriousness of the difficulties that the
claimant herself will face on return. In Bensaid v United Kingdom59 the Court considered
the obligations of contracting states in the context of the expulsion of a non-citizen with
serious mental health problems. Mr Bensaid was an Algerian national suffering from
schizophrenia. His condition was managed by the National Health Service in the United
Kingdom. He argued that he would not be able to access the necessary level of treatment

Downloaded from http://ijrl.oxfordjournals.org/ at San Diego State University on September 12, 2014
in Algeria, and that his condition would deteriorate. Applying the Type 2 threshold test,
the Court held at paragraph 40 that there would be no breach of article 3 ECHR.
The Court then turned to consider whether article 8 ECHR would be breached by the
proposed expulsion. Recognizing at paragraph 46 that the private life aspect (identified here
as the right to ‘physical and moral integrity’) could be engaged in circumstances where the
impact on the individual of some form of harm was not sufficient to engage article 3, the
Court nonetheless went on to conclude that article 8 would not be breached in this context
because the necessary threshold had not been met. The finding was based on the Court’s
view that the evidence adduced was not sufficient to establish that Mr Bensaid ran more
than a hypothetical risk of suffering the deterioration in his mental state that he feared.
Bensaid is an important judgment for claimants resisting expulsion owing in part
to their fear of adverse environmental conditions in the receiving state as it establishes
that the impact of expulsion to the receiving state on the claimant’s physical and moral
integrity is a relevant consideration for article 8.60 Although the judgment concerns in
particular the impact on the claimant’s mental health, the concept of physical and moral
integrity is inherently loose and would extend at least to the physical health impacts
related to natural disasters (such as increased disease incidence in the aftermath) as well
as to the psychological impacts of living in the aftermath of a natural disaster.61

57
See Boultif v Switzerland App no 54273/00 (ECtHR, 2 Aug 2001) and Üner v the Netherlands App no 46410/99 (ECtHR, 18
Oct 2006).
58
Claimants with minor children can further rely very heavily on the rights of the child under the Convention on the Rights
of the Child, particularly in light of the interpretation by the Committee on the Rights of the Child of states’ non-refoule-
ment obligations in this connection. See Committee on the Rights of the Child, General Comment No. 6: ‘Treatment of
Unaccompanied and Separated Children outside Their Country of Origin’ (Final Unedited Version, 2005) <http://www2.
ohchr.org/english/bodies/crc/docs/GC6.pdf>. See also Jane McAdam, ‘Seeking Asylum under the Convention on the
Rights of the Child: A Case for Complementary Protection’ (2006) 14 International Journal of Children’s Rights 251–74.
59
Bensaid v United Kingdom App no 44599/98 (ECtHR, 6 Feb 2001).
60
Recent case law from the Upper Tribunal of the United Kingdom suggests that the physical and moral integrity aspect of art
8 is becoming a viable tool for claimants resisting expulsion on health grounds and who cannot establish a claim under art 3
ECHR. Consider, eg, Akhalu (health claim: ECHR Article 8) Nigeria [2013] UKUT 400 (IAC) (24 July 2013).
61
The Court is developing jurisprudence in relation to how environmental factors can impact on art 8 rights. Starting with the case
of López Ostra v Spain App no 16798/90 (ECtHR, 9 Dec 1994), the Court has recognized a positive obligation on states to ensure
that industrial and other nuisances do not disproportionately interfere with an individual’s health or enjoyment of her home. This
line of jurisprudence may initially appear helpful in the context of climate change-related displacement claims. However, there is a
real risk that any benefit gained by pointing to the ‘right to a healthy environment’ could be outweighed by the risks of the Court
reading such an argument as an attempt to extend a positive obligation for environmental protection beyond the territory of the
contracting states, in a similar way as was rejected in Z & T v United Kingdom App no 27034/05 (ECtHR, 28 Feb 2006).
Natural Disasters, Climate Change and Non-Refoulement • 419

4.2.1 Must a ‘flagrant breach’ be established before article 8 will be engaged extraterritorially?
When holding in Bensaid that article 8 could apply extraterritorially, no reference was made
to the ‘flagrant breach’ test that the Court has applied in some other qualified right cases.62
The House of Lords in Ullah & Do63 (and subsequently in EM (Lebanon))64 consid-
ered that the ‘flagrant breach’ test did apply in article 8 ‘extraterritorial’ cases. However,
of the four article 8 European Court of Human Rights judgments surveyed in Ullah &
Do, only one (Bensaid) involved a fear of harm outside of the territorial jurisdiction of
the host state.65 We have seen in that case that the Court took no pains to address the fact
that the harm feared would take place in the receiving state and thus ‘extraterritorially’.
Although approving of Ullah & Do in its decision on admissibility in Z & T v United

Downloaded from http://ijrl.oxfordjournals.org/ at San Diego State University on September 12, 2014
Kingdom66 (an article 9 case), the Court has never explicitly required a flagrant breach
to be established when article 8 rights are at risk on return.
In F v United Kingdom,67 the claimant, a gay man, argued that expulsion would breach
article 8 because he would have to repress his identity in order to avoid being executed
by the authorities in Iran. Comparing the case to Bensaid, the Court, in declaring the
application inadmissible, concluded at paragraph 3 that, in light of the lack of evidence
of a real risk of ill-treatment by the authorities, the claimant had not established that
his right to physical and moral integrity would be ‘substantially affected to a degree fall-
ing within the scope of article 8’. Whilst not explicitly requiring a ‘flagrant breach’, the
Court did suggest a different threshold would be required in article 8 extraterritorial
cases by observing, again at paragraph 3, that ‘On a purely pragmatic basis, it cannot be
required that an expelling Contracting state only return an alien to a country which is in
full and effective enforcement of all the rights and freedoms set out in the Convention’.
From both Bensaid and F, it is clear that the Court is unwilling to require states
to protect article 8 rights extraterritorially to the same extent as those rights must be
protected within Europe. However, with no explicit requirement in the Strasbourg
jurisprudence, the interpretation of article 8 that requires a ‘flagrant breach’ to be estab-
lished before host state obligations are engaged appears to set the threshold too high.

4.2.2 Article 8 in Maria’s and Abdi’s cases

As neither Maria nor Abdi have a spouse or dependent children in the host state, they
would be unable to rely on the settled case law establishing the seriousness of the dif-
ficulties the spouse or minor children are likely to encounter in the receiving state as a
relevant factor in the proportionality assessment. Instead, both Maria and Abdi would
need to rely on the impact of expulsion on their physical and moral integrity.
In both cases the conditions on return are extremely challenging. The Court would
clearly have regard to more specific facts than have been provided in the hypothetical

62
Othman (Abu Qatada) v United Kingdom App no 8139/09 (ECtHR, 17 Jan 2012) (art 6); Z & T v United Kingdom App no
27034/05 (ECtHR, 28 Feb 2006) (art 9).
63
R (Ullah) v Special Adjudicator [2004] UKHL 26, [2004] 2 AC 323.
64
EM (Lebanon) v Secretary of State for the Home Department [2008] UKHL 64, (2008) 3 WLR 931.
65
The other three cases (Moustaquim v Belgium (1991) 13 EHRR 802; Abdulaziz, Cabales and Balkandali v United Kingdom
(ECtHR, 28 May 1985); and Boultif v Switzerland (2001) 33 EHRR 1179) involved conventional applications of art 8 where
the decision would affect the family life of individuals in the host state.
66
Z & T v United Kingdom App no 27034/05 (ECtHR, 28 Feb 2006).
67
F v United Kingdom App no 17341/03 (ECtHR, 22 June 2004).
420 • Natural Disasters, Climate Change and Non-Refoulement

case summaries, but in general both face inconsistent access to food and fresh water.
Communicable diseases are prevalent in both contexts.
However, in Maria’s case, there is some prospect of access to food and fresh water
through government and NGO humanitarian intervention. Medical services have been
seriously compromised, although there are some functioning health centres and medical
teams have been deployed. There could possibly be differing first-instance judicial opinions
about whether concerns about the physical and mental strain of displacement in unsani-
tary and unsafe conditions on a sixty-year-old widow could tip the balance under article 8
in her favour, but the Court, in light of its judgment in Bensaid and F, may be reluctant to
recognize this kind of strain as necessarily engaging states’ Convention obligations. Maria

Downloaded from http://ijrl.oxfordjournals.org/ at San Diego State University on September 12, 2014
may have some success relying on article 8 on conventional family life arguments relating
to her ties to her son, and the adverse environmental conditions appertaining across much
of the Philippines would in that context weigh in her favour, but perhaps not as a stand-
alone claim based exclusively on the physical and moral integrity aspect of article 8.
On current authorities therefore, Maria may struggle to rely on either article 3 or
article 8 in the context of the natural disaster.
In Abdi’s case there is some scope for arguing that expulsion to a country struggling
with drought and associated food insecurity made worse by a challenging security situa-
tion could breach the article 8 right to physical and moral integrity. The Court would need
to be provided with evidence in relation to the proportion of the population affected, the
scope of the territory affected, the extent of Abdi’s clan network, the nature of any assis-
tance, if any, that that network could be expected to provide, the extent and nature of any
government or NGO assistance, the security situation, and so forth. However, consider-
ing the emphasis the Court in Sufi & Elmi placed on the significance of the detrimental
role of state and non-state actors in justifying a more generous approach to protection
from expulsion to states affected by natural disasters, it is perhaps unlikely that the Court
would, without more, be prepared to accept that enforced return to a country where the
humanitarian crisis could not be linked to human actions would amount to a dispropor-
tionate interference in the claimant’s right to physical and moral integrity. The propor-
tionality approach adopted in relation to article 3 in N would almost certainly be applied
restrictively in the article 8 context as well. Nevertheless, the observation in Bensaid that
some cases that do not reach the article 3 threshold could still succeed under article 8
and is certainly worth recalling in this connection.
How the role of anthropogenic climate change in a natural disaster potentially affects the
extent of contracting states’ obligations under articles 3 and 8 ECHR is considered below.

5. A P P L I C AT I ON O F A RT I C L E S 3 A ND 8 I N T H E CON T E X T O F
C L I M AT E C H A N G E -R E L AT E D N AT U R A L D I S A ST E R S
5.1 Article 3
As the Court observed in D, and notwithstanding the restrictive interpretation of that
article in N, ‘given the fundamental importance of article 3 in the Convention system,
the Court has reserved for itself sufficient flexibility to address the application of that
article in other contexts which might arise’.68 Climate change-related displacement can

68
D v United Kingdom, above n 42, [49].
Natural Disasters, Climate Change and Non-Refoulement • 421

be seen to represent a new context that the Court will almost certainly be asked to
address.
The role of anthropogenic climate change in a displacement scenario potentially
affects the interpretation of article 3 in at least two ways. The first approach, which
would set the threshold for engaging the article 3 threshold lower than even the Type 1
non-refoulement category, would be to treat climate change-related displacement claims
as sui generis. Indeed, it would be anomalistic to find that a host state carries a heavier
non-refoulement obligation in cases where only another country is responsible for the
harm feared, than where the host state itself contributes to that harm. An additional/
alternative argument would characterize climate change-related displacement as a vari-

5.1.1 Climate change-related displacement claims as sui generis

The variability of the article 3 threshold in non-refoulement cases enables a proposition
to be made that a further category can be introduced into the framework. Climate
change-related harm is not like Type 1 (direct and intentional infliction), Type 2
(purely naturally occurring) or Type 3 (predominant cause) cases. Nevertheless,
individuals in certain climate change-related displacement scenarios will be able to
disclose substantial grounds for believing that they face a real risk of serious harm if
expelled from the host European state. What is the Court to do if its existing categories
are unsuitable?
One approach would highlight that the host state has, to a certain, roughly meas-
urable extent, contributed to the harm to which the individual resists being expelled.
Such a scenario would support an understanding of the relevant threshold as being
only one degree more demanding than domestic article 3 cases, where the contract-
ing state has inflicted harm on an individual. The harm in this new climate change
context is one step removed because it takes place outside of the territorial juris-
diction of the contracting state, and the responsibility is shared with multiple other
states. The circumstances warrant a lower threshold than Type 1, Type 2 or Type 3
cases because, whereas those cases saw the host state as innocent provided the state
did not expel the individual to face the harm, climate change-related displacement
claims attribute responsibility to the host state, albeit less directly than in purely
domestic scenarios.
The controversial reasoning of the majority at paragraph 44 of N, that ‘… inherent
in the whole of the Convention is a search for a fair balance between the demands
of the general interest of the community and the requirements of the protection of
the individual’s fundamental rights’, could be turned on its head in this connection.
Such fairness would arguably require the host state’s contribution to climate change
and its associated harms to feature when determining the relevant threshold that
must be met before Convention obligations are engaged. This ‘fairness’ argument
has close parallels with the approach developed to article 8 below, where it is dis-
cussed in more detail.
422 • Natural Disasters, Climate Change and Non-Refoulement

5.1.2 Climate change-related displacement as a variant on the Type 3 ‘predominant cause’ cases,
owing to the responsibility of certain states for climate change
McAdam69 identified the possibility that the role of anthropogenic climate change in
a humanitarian crisis could justify applying the Type 3 approach instead of the more
stringent Type 2 approach.70 However, she did not explore the possibility in any detail.
Existing jurisprudence also supports the argument that the responsibility of states for
causing climate change requires the Court to apply the Type 3 ‘predominant cause’
approach, instead of the higher Type 2 threshold test that would apply in the case of
‘pure’ natural disasters.
In light of the precedent set by the Court in Sufi & Elmi, the Type 3 qualifying test

• Direct and indirect actions of state and/or non-state actors,

• Which are seen as being the predominant cause of a humanitarian crisis.

In the context of the humanitarian disaster in Somalia, the Court had regard to sub-
stantial evidence about the actions of the parties to the conflict, including indiscrimi-
nate attacks in populated areas contributing to a mass exodus from Mogadishu and a
breakdown of institutions, as well as the refusal by al-Shabab to allow humanitarian aid
into the areas they controlled. The 2011 drought that was taking place at the same time
was, in the opinion of the Court, not the predominant cause of the crisis.
In the context of climate change-related risk on return, the causal chain would be
one link longer. The claimant would need to establish that climate change is a conse-
quence of greenhouse gas emissions by certain actors, and that this climate change was
the predominant cause of the harm feared on return to the receiving state.
The obstacles to making out such a claim are substantial, but not necessarily insur-
mountable in every case.

5.1.2.1 The cause of climate change

There are two elements to consider. First, are anthropogenic greenhouse gas emissions
the ‘predominant cause’ of climate change? Second, who are the responsible actors
whose emissions are the ‘predominant cause’ of climate change?
In relation to the first element, claimants could not reasonably be required to adduce
more evidence than what is contained in the summary for policy makers to the IPCC’s
Fifth Assessment Report setting out key findings on the physical science basis of cli-
mate change:

Human influence has been detected in warming of the atmosphere and the ocean,
in changes in the global water cycle, in reductions in snow and ice, in global mean
sea level rise, and in changes in some climate extremes .... This evidence for human
influence has grown since AR4. It is extremely likely that human influence has been
the dominant cause of the observed warming since the mid-20th century.71

69
McAdam, above n 49.
70
ibid, 71.
71
IPCC, above n 30, 12.
Natural Disasters, Climate Change and Non-Refoulement • 423

Thus, climate change is predominantly caused by anthropogenic greenhouse gas

emissions.
Who are the responsible actors? In Sufi & Elmi the actions of multiple actors were
cumulatively seen as being the predominant cause of the humanitarian crisis. Indeed,
one of the main parties to the conflict in Somalia was the Ethiopian forces. In the same
manner, the harm wrought by climate change is caused by multiple actors including,
at the highest level of generality, the receiving state, the host state, and all other states.
Climate change is the result of a collective global failure to reduce greenhouse gas emis-
sions, and in that sense the international community is responsible for the related harm.
However, some states have contributed disproportionately more than others. For the pur-

Noting that the largest share of historical and current global emissions of greenhouse
gases has originated in developed countries, that per capita emissions in developing
countries are still relatively low and that the share of global emissions originating in
developing countries will grow to meet their social and development needs.

Thus, considering the fact that 194 states have ratified the UNFCCC, the third
recital reflects an international consensus that developed countries are the predomi-
nant source of historical and current greenhouse gas emissions. We know from the
IPCC that anthropogenic greenhouse gas emissions are the predominant cause of cli-
mate change. Thus, it is clearly arguable that emissions from those states identified at
Annex II to the UNFCCC are the ‘predominant cause’ of climate change.

5.1.2.2 Climate change as the predominant cause of the natural disaster

This element of the test is potentially insurmountable in many climate change-related
natural disasters on the basis of current scientific understanding, as discussed in part 2.
However, some scientists have begun to develop a method of establishing the link
between climate change and environmental conditions based on a calculation of the
probability of an event occurring were it not for climate change.72
72
This approach corresponds with the adequacy theory of causation – see HLA Hart and Tony Honoré, Causation in the Law
(2nd edn, OUP 1985). Theories of causation could be leveraged in arguments supporting the sui generis approach where the
evidence does not establish that climate change was the ‘predominant cause’ of a natural disaster, but where there is some
evidence linking the phenomenon to the disaster.
424 • Natural Disasters, Climate Change and Non-Refoulement

Notably, Hansen et al argue that the heat waves in Texas and Oklahoma in 2011
and in Moscow in 2010 were caused by climate change ‘because their likelihood in
the absence of global warming was exceedingly small’.73 The method employed was
to compare seasonal mean temperature anomalies between the last 20 years and the
1951–1980 baseline. The researchers observed that:

The probability distribution for temperature anomalies has shifted more than
one standard deviation toward higher values … The most important change …
is the appearance of a new category of extremely hot summer anomalies, with
mean temperature at least three standard deviations greater than climatology.

Using a similar method to Hansen et al, Coumou and Rahmstorf reached the follow-
ing conclusion: ‘We conclude that … the evidence is strong that anthropogenic, unprec-
edented heat and rainfall extremes are here — and are causing intense human suffering’.75
This approach is gaining acceptance at the international level. The World
Meteorological Organization’s summary report 2001–2010 notes:

While climate scientists believe that it is not yet possible to attribute individ-
ual extremes to climate change, they increasingly conclude that many recent
events would have occurred in a different way – or would not have occurred at
all – in the absence of climate change. For example, the likelihood of the 2003
European heatwave occurring was probably substantially increased by rising
global temperatures.76

Thus, in the case of certain extreme heatwaves, it is possible to say, following Hansen
et al, that climate change was the predominant cause.77
A similar approach has been taken by scientists studying drought in the East Africa
region. As this evidence is central to Abdi’s claim, that evidence is addressed in part 6.

5.2 Article 8: The fairness of expulsion in light of the host state’s

disproportionate emission of greenhouse gases
The article 8 argument would focus on the proportionality of expelling a person whose
physical and moral integrity would be adversely affected on return to a natural disaster
or its aftermath, or to conditions where climate change has demonstrably and signifi-
cantly multiplied the risks of already insecure livelihoods.
73
Hansen et al, above n 36, 1.
74
ibid 6.
75
Dim Coumou and Stefan Rahmstorf, ‘A Decade of Weather Extremes’ (2012) 2 Nature Climate Change 491, 495 <http://
www.nature.com/nclimate/journal/v2/n7/full/nclimate1452.html> accessed 12 Nov 2013.
76
World Meteorological Organization, ‘The Global Climate 2001–2010: A Decade of Weather Extremes – Summary Report’
(2013) <http://library.wmo.int/pmb_ged/wmo_1119_en.pdf>.
77
Although I do not consider the potential scope of protection in the context of a heatwave in this article, future research may
consider the protection implications of any connection that can be established between heat waves, food production, and
climate change-related harm, such as starvation and livelihood impacts.
Natural Disasters, Climate Change and Non-Refoulement • 425

The claimant would argue that her expulsion to face conditions sufficiently severe as
to affect her physical and moral integrity would fail to strike a fair balance between her
rights and the interests of the community.
Climate change-related displacement claims could be clearly distinguished from
other article 8 ‘foreign’ cases because of the responsibility the host state carries (along
with other Annex II states) for causing climate change. In supporting the distinction
made in Ullah & Do between ‘domestic’ and ‘foreign’ cases, Baroness Hale of Richmond
observed at paragraph 41 in Razgar:78

Another way of putting this distinction is that in domestic cases the contracting

Unlike in other ‘foreign’ cases, the responsibility of the contracting state is clearly
engaged because of its role in emitting greenhouse gases that cause climate change. Any
reference to a ‘flagrant breach’ threshold for extraterritorial cases should therefore be
avoided in this connection.
Considering the proportionality of expulsion against such a backdrop, the claimant
could argue that, owing to the substantial economic benefits that the community has
derived from its disproportionate emission of greenhouse gases, and having regard to
the fact that these emissions have caused the climate to change to such an extent that
natural disasters are more frequent and intense, particularly in countries such as that
of the claimant, less weight should be placed on the economic interests of the commu-
nity and more weight should be placed on the impact of expulsion on the individual.79
Climate change can be seen as the result of a conscious decision by states to prior-
itize their economic interests in continuing to emit unsustainable levels of greenhouse
gases, notwithstanding the increasingly strong likelihood that failure to dramatically
reduce greenhouse gas emissions globally would result in unprecedented adverse envi-
ronmental impacts, particularly in poor countries which are least responsible for the
phenomenon yet most vulnerable to its impacts. As former UN Secretary General and
President of the Global Humanitarian Forum Kofi Annan observed in the lead up to the
Copenhagen climate conference in 2009:

The effects of pollution driven by economic growth in some parts of the world are
now driving millions of people into poverty elsewhere. At the same time, decades-old
aid pledges continue to go unmet. The Millennium Development Goals are endan-
gered. And the poor lack capacity to make their voices heard in international arenas, or
attract public and private investment. For those living on the brink of survival, climate
change is a very real and dangerous hazard. For many, it is a final step of deprivation.80
78
R (Razgar) v Secretary of State for the Home Department [2004] UKHL 27; [2004] 2 AC 368.
79
Although ‘immigration control’ is not included in the list, the Court in Bensaid has identified ‘the prevention of disorder and
crime’ and ‘protection of the economic well-being of the country’ as being relevant in decisions to expel non-citizens.
80
Global Humanitarian Forum, ‘Anatomy of a Silent Crisis: Human Impact of Climate Change’ (2009) <http://www.eird.org/
publicaciones/humanimpactreport.pdf> accessed 12 Nov 2013.
426 • Natural Disasters, Climate Change and Non-Refoulement

The proportionality exercise is concerned with striking a ‘fair balance’ between com-
peting interests, and where climate change is implicated in a natural disaster, or signifi-
cantly diminished human security, that ‘fair balance’ should arguably include the role of
the contacting state in contributing materially to the adverse environmental conditions
that the claimant resists being expelled to. In this connection, the individual emission
levels of the host state are relevant.
Table 2 below contrasts the five highest and five lowest European Annex II states
based on per capita CO2 emissions, with ten of the countries identified as being particu-
larly vulnerable to the adverse effects of climate change.81
These data reveal that even the European countries with the smallest carbon footprint

Table 2. Disproportionate contribution to climate change: Per capita CO2

emissions (thousand metric tonnes of carbon)82
Annex II Country 2010 ‘Climate Vulnerable’ Country 2010

Luxembourg 5.82 Philippines .24

Finland 3.14 Pakistan .25
Netherlands 2.99 Cambodia .08
Norway 3.19 Bangladesh .10
Belgium 2.77 Sierra Leone .03
Spain 1.60 Myanmar .05
France 1.57 Mozambique .03
Switzerland 1.37 Somalia .02
Sweden 1.53 Niger .02
Portugal 1.34 Afghanistan .07

81
DARA, ‘Climate Vulnerability Monitor’ (2nd edition, 2012) <http://daraint.org/wp-content/uploads/2012/09/
CVM2ndEd-TheMonitor.pdf> accessed 12 Nov 2013.
82
Carbon Dioxide Information Analysis Center (CDIAC): <http://cdiac.ornl.gov/trends/emis/tre_coun.html> accessed 12
Nov 2013.
83
Estimated by Hansen et al as 350 parts per million (ppm), ‘Target Atmospheric CO2: Where Should Humanity Aim?’ (2008)
<http://www.columbia.edu/~jeh1/2008/TargetCO2_20080407.pdf> accessed 12 Nov 2013.
84
Adopted as part of the Copenhagen Accord following the fifteenth Conference of Parties to the UN Framework Convention
on Climate Change (2009) <http://unfccc.int/resource/docs/2009/cop15/eng/11a01.pdf> accessed 12 Nov 2013.
Natural Disasters, Climate Change and Non-Refoulement • 427

of the proportionality of expelling an individual to a receiving state where to do so

would impact adversely on the individual’s physical and moral integrity.

6. A P P L I C AT I ON O F N E W A RG U M E N TS TO
M A R I A’S A ND A B D I ’S C A S E S
6.1 Maria
Between 1980–2010 the Philippines experienced 363 natural disasters.85 The country is
affected by drought, earthquakes, epidemics, extreme temperatures, floods, insect infesta-
tions, dry and wet mass movements (for example, landslides, subsidence), volcano erup-

Science tells us that simply, climate change will mean more intense tropical
storms. As the Earth warms up, so do the oceans. The energy that is stored in the
waters off the Philippines will increase the intensity of typhoons and the trend
we now see is that more destructive storms will be the new norm … Typhoons
such as Haiyan and its impacts represent a sobering reminder to the international
community that we cannot afford to procrastinate on climate action.87

Table 3. Change in typhoon frequency 1900–201388

Time period Average number of typhoons

1900–2013 2.4
1950–2013 4.19
1960–2013 4.83
1970–2013 5.58
1980–2013 5.84
1990–2013 6
2000–2013 7.3
2003–2013 8.2

85
PreventionWeb, ‘Philippines – Disaster Statistics’, <http://www.preventionweb.net/english/countries/statistics/?cid=135>
accessed 12 Nov 2013.
86
ibid.
87
Naderev Saño, ‘Typhoon Haiyan: we cannot afford to procrastinate on climate action’ The Guardian (11 Nov 2013) <http://
www.theguardian.com/world/2013/nov/11/typhoon-haiyan-philippines-climate-change> accessed 12 Nov 2013.
88
EM-DAT, above n 2.
428 • Natural Disasters, Climate Change and Non-Refoulement

Moreover, the EM-DAT database shows that typhoons are also becoming more fre-
quent in the Philippines. Records from 1900 to 2013 reveal a significant increase in
actual and average numbers of typhoons in recent years. Table 3 reveals the increasing
frequency of typhoons that hit the Philippines.
Even allowing for poorer quality data collection earlier in the twentieth century,
there is a very clear trend showing an increasing frequency of typhoons that hit the
Philippines over the course of the century. The three years with the greatest number
of typhoons on record were 2008, 2009, and 2011, with eleven, thirteen and twelve
typhoons recorded respectively.
However, the UN Economic and Social Commission for Asia and the Pacific

Trends in intense typhoon frequencies, such as Category 4 to 5, are particularly

divergent in recent decades, and remain uncertain. Satellite-based intensity trends
since 1981 show only modest evidence for significant trends and their utility is
limited by the relatively short record length together with uncertainty about nat-
ural variability levels … key uncertainties remain about both data homogeneity
and the potential role of natural variability. In general, uncertainties in observed
TC datasets, as reflected for example in the differences between records from
different centers in the basin, as well as uncertainties about the potential role of
natural variability on TC trends and other changes in the basin, limit our ability
to make a confident attribution of the observed changes in these TC metrics to
human influences.91

This conclusion mirrors that reached by the IPCC in relation to the influence of cli-
mate change on tropical cyclone frequency and intensity in general.92 Thus, two author-
itative reports addressing the impact of climate change are unable to draw a significant
connection between climate change and typhoons at present.
In light of the current state of scientific evidence, and particularly considering the
recent and authoritative position of UNESCAP/WMO and the similar findings of the
IPCC, it is unlikely that Maria would be able to establish that climate change contrib-
uted to the intensity of Typhoon Haiyan. She would therefore struggle to draw any
compelling connection between the United Kingdom’s greenhouse gas emissions and

89
ESCAP/WMO Typhoon Committee, ‘The Second Assessment Report on the Influence of Climate Change on Tropical
Cyclones in the Typhoon Committee Region’ (2012) <http://www.typhooncommittee.org/45th/Docs/item%20
11/2assessment_FINAL.pdf> accessed 12 Nov 2013.
90
A typhoon is the term given to tropical cyclones in the Western North Pacific – EM-DAT Glossary <http://www.emdat.be/
glossary/9#lettert> accessed 12 Nov 2013.
91
ESCAP/WMO, above n 89, xv.
92
IPCC, above n 30, 113.
Natural Disasters, Climate Change and Non-Refoulement • 429

the impact of the typhoon on her home, livelihood and family. Her article 3 claim
would thus still be considered a Type 2 claim and would be likely to fail.
Unable to establish a link between climate change and Typhoon Haiyan, Maria
could equally not rely on innovative arguments under article 8 and would thus be best
advised to present her claim in line with conventional article 8 arguments linked to
her relationship with her son. As part of her article 8 claims she could also point to
the impact that return in the aftermath of the disaster would have on her physical and
moral integrity, and argue that a ‘flagrant breach’ is not required before non-refoulement
obligations are engaged.
If scientific consensus were to be established, or at least a compelling argument link-

Downloaded from http://ijrl.oxfordjournals.org/ at San Diego State University on September 12, 2014
ing the typhoon to climate change advanced by a section of the scientific community,
then the first argument Maria could advance would be that a lower article 3 threshold
should be applied because climate change is sui-generis. Additionally and in the alterna-
tive, she could argue that the claim falls to be considered as a variant on the Type 3
category of ‘predominant cause’ cases. Focus would then turn to applying either of the
threshold tests.
If, on the facts, neither the sui generis threshold nor the Type 3 threshold are
met, then focus would turn to the article 8 responsibility and proportionality
argument.
In Maria’s case, the physical and moral integrity argument could potentially carry
some weight with the Court. As a sixty-year-old widow, Maria faces return to an envi-
ronment that is severely degraded, as described in the OCHA situation report referred
to in part 3. There is inconsistent access to food, water and medicine. Although ques-
tions may be raised about the ability of Maria’s son to support her in another part of
the Philippines, there are potentially strong grounds for Maria to argue that her expul-
sion to face such conditions on return would be disproportionate, in particular hav-
ing regard to the historical and ongoing responsibility of the United Kingdom for the
warmer climate that contributed to the disaster.
Having now taken up residence with her son in the United Kingdom, and consid-
ering the fact that she has lost her home, her business, and her husband as a conse-
quence of climate change for which the United Kingdom carries partial responsibility,
the Court might still be persuaded that expulsion would be disproportionate even as
conditions improve through repairs to infrastructure and housing. Importantly, the
potentially short duration of an individual’s protection needs should not be used to
justify a refusal to recognize the existence of a non-refoulement obligation, even if only
of a few months’ duration.

6.2 Abdi
The 2012 IPCC report expresses

Medium confidence that anthropogenic influence has contributed to some

observed changes in drought patterns.
Low confidence in attribution of changes in drought at the level of single regions
due to inconsistent or insufficient evidence.93

93
IPCC, above n 3, 119.
430 • Natural Disasters, Climate Change and Non-Refoulement

The same report expresses low confidence that there has been any change in dryness in
the East Africa region, owing to ‘spatially varying trends’.94 However, the conclusions of
the IPCC are subject to challenge in this case.
In the Somalia context, the work of Funk et al is particularly relevant. Funk, who
predicted the 2011 famine in his 2008 article, highlights the ‘substantial contribution’
of anthropogenic climate change to eastern African food security:

Two independent, but interacting, post-1980 tendencies have contributed to food

insecurity in eastern and southern Africa .... First, population growth has exceeded
increases in agricultural infrastructure and cultivated area. Second, there has been a

Challenging the approach taken in the IPCC Fourth Assessment Report, Funk
continues:

We question the fidelity, in general, of continental precipitation simulations,

especially over the extremely complex terrain of east Africa. Global models
suppress important local mechanisms [internal thermal and orographic gravity
waves] and vary substantially in their ability to represent the transient systems
that draw kinetic energy from the mean circulation, overcoming stability inhibi-
tions and producing organized mesoscale convection.96

Funk’s findings are supported by research carried out by the UK Met Office,97 which
concluded that the failure of the long rains in East Africa in 2011 were more likely when
anthropogenic climate change was factored in:

Dr. Fraser Lott, an Attribution Scientist at the Met Office and lead author on the
paper, said: ‘We found that the particularly dry short rains in 2010 were most
likely caused by natural variability. However, the chances of long rains as dry, or
drier, as those of 2011 were found to have increased due to human influence.’

However, the findings stop short of concluding that climate change was the ‘predomi-
nant cause’ of the drought:

While there is evidence of substantial human influence on the risk of failure of

the long rains in 2011, the magnitude of that increase is difficult to quantify.
94
ibid, 193.
95
Chris Funk et al, ‘Warming of the Indian Ocean threatens eastern and southern African food security but could be
mitigated by agricultural development’ (2008) 105 PNAS 11081, 11085 <http://earlywarning.usgs.gov/fews/pubs/
WarmingInTheIndianOceanThreatensEasternAndSouthernAfrica.pdf> accessed 12 Nov 2013.
96
ibid.
97
UK Met Office, ‘Human Influence on East Africa Drought’ (20 Feb 2013) <http://www.metoffice.gov.uk/news/releases/
archive/2013/east-africa-drought> accessed 12 Nov 2013.
Natural Disasters, Climate Change and Non-Refoulement • 431

This is due to uncertainty in the estimated pattern by which human influence has
changed sea surface temperatures.

The use of the probability approach in the context of the East African drought suggests
that in the future it will become more possible to establish a causal connection between
climate change and particular natural disasters.
For Abdi, this evidence suggests that there is at least a prospect of establishing that
climate change was a significant cause of the drought affecting Somalia, and thus having
the Court apply either the sui generis or the Type 3 threshold test.
If, for example, owing to the intervention of international NGOs as well as the efforts

7. CON C LU S I ON
This article has considered how individuals resisting expulsion to receiving states
in the aftermath of a natural disaster might rely on articles 3 and 8 of the European
Convention on Human Rights. Having mapped existing non-refoulement jurisprudence
of the European Court of Human Rights, it concluded that individuals facing expulsion
in the context of a ‘pure’ natural disaster would only exceptionally succeed in engaging
host state Convention obligations. However, where climate change can be identified as
playing a role in the natural disaster, a number of contentions supporting an expansion
of the scope of host state obligations become arguable.
The emission of greenhouse gases into the atmosphere, primarily by developed
countries, has led to a situation where natural disasters are more frequent and more
intense, increasing the vulnerability and exposure of millions of people to loss of life,
serious harm or illness, and/or severe deprivation in the aftermath of a sudden-onset
disaster, or as a consequence of slow onset disasters, such as drought or sea level rise.
These threats do not result from the normal vicissitudes of life for which host states
cannot reasonably be held responsible. That responsibility should arguably be reflected
in the way the Court approaches the protection of Convention rights in climate change-
related displacement claims, in particular, by reducing the threshold for engaging arti-
cle 3 obligations, and by reducing the weight to be given to the interests of the state in
the proportionality exercise under article 8.
As this article has highlighted, any claim that seeks to rely on the impact of climate
change as a way of resisting expulsion will have to overcome substantial challenges,
in particular, the challenge of establishing a connection between climate change and
the particular natural disaster. However, scientific understanding of such connections is
increasing, as recent findings relating to the 2011 drought in Somalia indicate.
Practitioners representing individuals from countries that have been affected by
natural disasters may be encouraged to carefully consider the scientific and other evi-
dence regarding risk on return, and to evaluate the chances of success that a claim may
have if the role of climate change in the disaster were to be relied upon. Climate change
432 • Natural Disasters, Climate Change and Non-Refoulement

threatens all regions of the planet in multiple ways. Practitioners are therefore likely
to see an increasing caseload where environmental factors may play a role in an indi-
vidual’s inability or unwillingness to return home. Being aware of that possibility, and
of the potential scope of articles 3 and 8 ECHR, are necessary first steps in a strategic
litigation initiative that may help fill some protection gaps that states may otherwise
choose not to fill.

Berchin 2017
No ratings yet
Berchin 2017
4 pages
Climate Refugees Aff and Neg - Michigan7 2018 HJPV
No ratings yet
Climate Refugees Aff and Neg - Michigan7 2018 HJPV
295 pages
Status of Climate Refugees in Law
No ratings yet
Status of Climate Refugees in Law
8 pages
Cambio Climatico Y Migracion Forzada
No ratings yet
Cambio Climatico Y Migracion Forzada
20 pages
Climate Migration: Challenges & Solutions
No ratings yet
Climate Migration: Challenges & Solutions
9 pages
Defining Climate Refugees: A Legal Gap
No ratings yet
Defining Climate Refugees: A Legal Gap
12 pages
Climate Refugees
No ratings yet
Climate Refugees
13 pages
Climate Change
No ratings yet
Climate Change
14 pages
Climate Change and Migration Protection
No ratings yet
Climate Change and Migration Protection
56 pages
Climate Refugees: Legal Gaps & Solutions
No ratings yet
Climate Refugees: Legal Gaps & Solutions
80 pages
Climate Change Migrants: Legal Gaps & Solutions
No ratings yet
Climate Change Migrants: Legal Gaps & Solutions
29 pages
Climate Change and Migration Trends
No ratings yet
Climate Change and Migration Trends
5 pages
UNHCR (Study Guide) Agenda A - 20250101 - 135259 - 0000
No ratings yet
UNHCR (Study Guide) Agenda A - 20250101 - 135259 - 0000
8 pages
Brooklyn Technical-Novice-Starter-Aff-Fall Face-Off-Round1
No ratings yet
Brooklyn Technical-Novice-Starter-Aff-Fall Face-Off-Round1
331 pages
Climate Migrants: Global Crisis Solutions
No ratings yet
Climate Migrants: Global Crisis Solutions
12 pages
Climate Change Disasters and The Refugee
No ratings yet
Climate Change Disasters and The Refugee
1 page
Climate Refugees: Global Crisis Solutions
No ratings yet
Climate Refugees: Global Crisis Solutions
4 pages
The Concept of 'Climate Refugee': Towards A Possible Definition
No ratings yet
The Concept of 'Climate Refugee': Towards A Possible Definition
11 pages
SSRN Id3787187
No ratings yet
SSRN Id3787187
19 pages
Jaswal CLIMATEREFUGEESCHALLENGES 2013
No ratings yet
Jaswal CLIMATEREFUGEESCHALLENGES 2013
15 pages
Refugee Group 3
No ratings yet
Refugee Group 3
7 pages
Climate Change Refugees: Legal Insights
No ratings yet
Climate Change Refugees: Legal Insights
26 pages
Climate Change and Migration Governance
No ratings yet
Climate Change and Migration Governance
19 pages
Climate Displacement: Challenges & Responses
No ratings yet
Climate Displacement: Challenges & Responses
33 pages
Unhcr
No ratings yet
Unhcr
4 pages
Environmental-Induced Displacement Potential Prote
No ratings yet
Environmental-Induced Displacement Potential Prote
16 pages
Understanding Climate Change Displacement
No ratings yet
Understanding Climate Change Displacement
24 pages
NRC Future Floods of Refugees
No ratings yet
NRC Future Floods of Refugees
44 pages
Climate-Induced Displacement Solutions
No ratings yet
Climate-Induced Displacement Solutions
9 pages
Literature Review Draft
No ratings yet
Literature Review Draft
6 pages
Borras Pentinat 2023 Climate Migration A Gendered Perspective
No ratings yet
Borras Pentinat 2023 Climate Migration A Gendered Perspective
15 pages
Climate-Induced Migration - Challenges and Policy Responses
No ratings yet
Climate-Induced Migration - Challenges and Policy Responses
3 pages
UNHCR Course - QuickGuide - UNHCRDisasterdisp 1
No ratings yet
UNHCR Course - QuickGuide - UNHCRDisasterdisp 1
4 pages
Climate Change and Human Displacement
No ratings yet
Climate Change and Human Displacement
41 pages
(Routledge Studies in Environmental Migration, Displacement and Resettlement) Dimitra Manou, Andrew Baldwin, Dug Cubie, Anja Mihr, Teresa Thorp - Climate Change, Migration and Human Rights-Routledge (
No ratings yet
(Routledge Studies in Environmental Migration, Displacement and Resettlement) Dimitra Manou, Andrew Baldwin, Dug Cubie, Anja Mihr, Teresa Thorp - Climate Change, Migration and Human Rights-Routledge (
285 pages
Climate Refugees: An Imminent Threat
No ratings yet
Climate Refugees: An Imminent Threat
15 pages
Climate Change and Migration Report
0% (1)
Climate Change and Migration Report
37 pages
Climate Refugees
No ratings yet
Climate Refugees
26 pages
UGMUN Projects - UNHCR - Study Guide
No ratings yet
UGMUN Projects - UNHCR - Study Guide
23 pages
Climate Refugees in India: Challenges Ahead
No ratings yet
Climate Refugees in India: Challenges Ahead
4 pages
Climate Change and Refugee Resettlement
No ratings yet
Climate Change and Refugee Resettlement
3 pages
Civil Emergency Planning Study Guide
No ratings yet
Civil Emergency Planning Study Guide
12 pages
Unhcr 2
No ratings yet
Unhcr 2
3 pages
Climate Change Environmental Displacemen
No ratings yet
Climate Change Environmental Displacemen
11 pages
Climate Change and Human Rights Impact
No ratings yet
Climate Change and Human Rights Impact
5 pages
10996
No ratings yet
10996
12 pages
Climate Change and Displaced Persons Law
No ratings yet
Climate Change and Displaced Persons Law
13 pages
Social Dynamics of Climate Migration
No ratings yet
Social Dynamics of Climate Migration
7 pages
Climate Change and Migration Politics
No ratings yet
Climate Change and Migration Politics
7 pages
Climate Justice and Displacement Policies
No ratings yet
Climate Justice and Displacement Policies
31 pages
Legal Protections for Climate Migrants
No ratings yet
Legal Protections for Climate Migrants
15 pages
Climate Refugees and India's Future
No ratings yet
Climate Refugees and India's Future
5 pages
Abdullah Buzdar Assignment EE
No ratings yet
Abdullah Buzdar Assignment EE
14 pages
Survival Migration and Global Protection Framework
No ratings yet
Survival Migration and Global Protection Framework
23 pages
Climate Change Refugees and UN Convention
No ratings yet
Climate Change Refugees and UN Convention
12 pages
2018 Rouleau Dick Why Environmentally Displaced Persons From Low PDF
No ratings yet
2018 Rouleau Dick Why Environmentally Displaced Persons From Low PDF
23 pages
Climate Displacement and European Law
No ratings yet
Climate Displacement and European Law
5 pages
Climate Change As A Trigger of Non-Refoulement Obligations Under International Human Rights Law PDF
No ratings yet
Climate Change As A Trigger of Non-Refoulement Obligations Under International Human Rights Law PDF
4 pages
Summary of Deliberations On Climate Change and Displacement PDF
No ratings yet
Summary of Deliberations On Climate Change and Displacement PDF
9 pages
Climate Change As A Trigger of Non-Refoulement Obligations Under International Human Rights Law PDF
No ratings yet
Climate Change As A Trigger of Non-Refoulement Obligations Under International Human Rights Law PDF
4 pages
Dedication in Law Dissertation
No ratings yet
Dedication in Law Dissertation
57 pages
Emigration Process of Displaced Persons: Marcel Matuschek
No ratings yet
Emigration Process of Displaced Persons: Marcel Matuschek
9 pages
ESIA Consultancy for SRCTIP in Nepal
No ratings yet
ESIA Consultancy for SRCTIP in Nepal
22 pages
Sudanese Refugees in Uganda: Durable Solutions
No ratings yet
Sudanese Refugees in Uganda: Durable Solutions
18 pages
Rehabilitation and Resettlement in India
No ratings yet
Rehabilitation and Resettlement in India
12 pages
Relocatees' Experiences in China's Urban Restructuring
No ratings yet
Relocatees' Experiences in China's Urban Restructuring
22 pages
UNDG UNDAF Companion Pieces 2 Common Country Analysis PDF
No ratings yet
UNDG UNDAF Companion Pieces 2 Common Country Analysis PDF
16 pages
Call For Paper Abstracts-Who Is A Refugee in The 21st Ce
No ratings yet
Call For Paper Abstracts-Who Is A Refugee in The 21st Ce
1 page
Refugee Livelihoods Ec Inclusion Concept Note -წაკითხული PDF
No ratings yet
Refugee Livelihoods Ec Inclusion Concept Note -წაკითხული PDF
11 pages
Unit 2 Webquest Updated
No ratings yet
Unit 2 Webquest Updated
3 pages
Protection: Case Management
No ratings yet
Protection: Case Management
250 pages
Security in The Contemporary World
No ratings yet
Security in The Contemporary World
42 pages
Globalization's Impact on Labor Migration
No ratings yet
Globalization's Impact on Labor Migration
18 pages
Questions
No ratings yet
Questions
5 pages
First Term Compiled Notes
No ratings yet
First Term Compiled Notes
26 pages
Community Outreach Trainee Vacancy
No ratings yet
Community Outreach Trainee Vacancy
3 pages
Final Rap For Karuuguza Daily Market - Kibaale - 31-08-2023
No ratings yet
Final Rap For Karuuguza Daily Market - Kibaale - 31-08-2023
93 pages
Flooding, Resettlement, and Change in Livelihoods: Evidence From Rural Mozambique
No ratings yet
Flooding, Resettlement, and Change in Livelihoods: Evidence From Rural Mozambique
21 pages
Economic Empowerment for IDPs in Taraba
No ratings yet
Economic Empowerment for IDPs in Taraba
14 pages
Computational, Parametric, and Generative Design Application To Traditional Architectural Materials From Rural Regions of Colombia.
No ratings yet
Computational, Parametric, and Generative Design Application To Traditional Architectural Materials From Rural Regions of Colombia.
60 pages
Limuru Sewerage Project ESIA Report
100% (1)
Limuru Sewerage Project ESIA Report
117 pages
MDS Framework for Climate-Related Displacement
No ratings yet
MDS Framework for Climate-Related Displacement
4 pages
101 (2026) Syllabus
No ratings yet
101 (2026) Syllabus
11 pages
Understanding Global Migration Dynamics
No ratings yet
Understanding Global Migration Dynamics
15 pages
Final Exam (Contemporary World) 18 Copies
No ratings yet
Final Exam (Contemporary World) 18 Copies
3 pages
Agenda for Humanity: 5 Core Responsibilities
No ratings yet
Agenda for Humanity: 5 Core Responsibilities
12 pages
Soci E-143 Fall 2022
No ratings yet
Soci E-143 Fall 2022
14 pages
Analysis: Module 3: Exposure, Vulnerability and Capacity
No ratings yet
Analysis: Module 3: Exposure, Vulnerability and Capacity
3 pages
Understanding Human Rights and Refugees
No ratings yet
Understanding Human Rights and Refugees
72 pages
Forced Migration Trends in Latin America
No ratings yet
Forced Migration Trends in Latin America
27 pages

Natural Disasters, Climate Change and For Resisting Expulsion Under Articles 3 and 8 of The European Convention On Human Rights?

Uploaded by

Natural Disasters, Climate Change and For Resisting Expulsion Under Articles 3 and 8 of The European Convention On Human Rights?

Uploaded by

International Journal of Refugee Law, 2014, Vol. 26, No.

Natural Disasters, Climate Change and

1. I n tro d u cti o n

• A new Convention for protecting climate change migrants,8

Within the European Union

• Use of the Temporary Protection Directive (2001/55/EC) in cases of mass

[A] serious disruption of the functioning of a community or a society causing

Table 1. Typology of natural disasters21

Sudden Tropical storms, winter Floods (flash, coastal/ Extreme winter

defences may not be constructed or maintained. However, vulnerability and exposure

2.1.1 Internal relocation

2.2 The role of climate change in natural disasters

The number of people affected by climate-related disasters is on the rise, par-

Although establishing causal links is very challenging, in some cases it is possible

4.1 Article 3 ECHR

4.1.1 Type 1 cases: Direct and intentional infliction of harm

4.1.2 Type 2 cases: Purely naturally occurring harm

humanitarian considerations’ test in article 3 non-refoulement cases in the aftermath of a

If the dire humanitarian conditions in Somalia were solely or even predominantly

• his vulnerability to ill-treatment,

4.1.4 Article 3 in Maria’s and Abdi’s cases

‘predominantly causing’ the humanitarian crisis, this is likely to be treated as a ‘purely

4.2 Article 8 ECHR

4.2.2 Article 8 in Maria’s and Abdi’s cases

5.1.1 Climate change-related displacement claims as sui generis

• Direct and indirect actions of state and/or non-state actors,

5.1.2.1 The cause of climate change

Thus, climate change is predominantly caused by anthropogenic greenhouse gas

5.1.2.2 Climate change as the predominant cause of the natural disaster

5.2 Article 8: The fairness of expulsion in light of the host state’s

Table 2. Disproportionate contribution to climate change: Per capita CO2

Luxembourg 5.82 Philippines .24

of the proportionality of expelling an individual to a receiving state where to do so

Table 3. Change in typhoon frequency 1900–201388

Trends in intense typhoon frequencies, such as Category 4 to 5, are particularly

Medium confidence that anthropogenic influence has contributed to some

Two independent, but interacting, post-1980 tendencies have contributed to food

We question the fidelity, in general, of continental precipitation simulations,

While there is evidence of substantial human influence on the risk of failure of

You might also like