Non-refoulement and environmental degradation: examining the entry points and improving access to protection

The impacts of climate change on our shared world cannot be understated. The Intergovernmental Panel on Climate Change predicts that increased salinisation, flooding and erosion of coastal areas is expected to significantly impact human and ecological systems, resulting in severe consequences for the enjoyment of human rights such as the right to food, to health, and to life. Shifting environmental conditions have long been a driver of migration throughout our history, and as states and communities continue to adapt to a changing world, we cannot underestimate climate change as an objective and autonomous factor in the decision to relocate (Borges). If we understand climate change as a threat to the enjoyment of human rights, and consequently as a driver of migration, is reasonably foreseeable that environmental degradation in a country of origin may engage the principle of non-refoulement under international human rights law. This research paper seeks to articulate and project the legal and factual threshold(s) at which this occurs. It does so firstly by exploring the available entry points to protection, namely the absolute prohibition of torture or other inhuman or degrading treatment, the right to life, and the prohibition of causing irreparable harm, and then compares both emerging and established jurisprudence at the universal level with that of the Europe Court of Human Rights for regional contrast. In light of each approach, this paper then outlines practical recommendations for advocates looking to improve access to protection. These include advocating for a cumulative approach to the assessment of harm (McAdam), tailoring harm towards specific protections, and increasing awareness and consideration of indicators of individual vulnerability where appropriate. This research paper was submitted in partial fulfillment for the requirements of the LL.M. in International Humanitarian Law and Human Rights at the Geneva Academy of International Humanitarian Law and Human Rights.