International Law, the Non- Refoulement Principle, and Environmental Displacements Nisheet Dabadge, Georgetown University Law Center (JD exp. May 2023) Universitat Bern (Fall 2022) | Professor Fornalé, World Trade Institute

Overview u Introduction u Hypothesis u Positive International Law u GCR and the Refugee Convention u GCM and ICPRMW u EU Directive 2004/83/EC u Statelessness u Nansen Initiative u Case Law Doctrines u “A ‘real risk’ of ‘irreparable harm’ to life or via ‘acute mental or physical suffering’ equating to inhumane treatment” u “No ‘reasonable relocation’ alternatives available upon return to the home country” u “‘Imminent danger’ is expected, without potential government intervention in the interim” u Conclusion u Impacts of climate migration on sending and receiving states: migrant workers

Introduction u Global average surface temperatures set to rise 2-4 degrees C (next 50-100 years) u Expected increase in climate catastrophes, both sudden- and slow-onset u Hurricanes, typhoons, forest fires, flooding u Droughts, desertification, rising sea levels, salinization, land degradation u “Nearly 1 billion people” exposed to high risks of climatic events, with ~216 million likely to be internally displaced by 2050 u Exposure for cross-boundary displacement is indeterminable but interlinked

Hypothesis u What is the international law treatment, especially in terms of refoulement, for climate migrants? u Positive international and regional law exists, but has limitations. Accordingly: u “In refoulement situations where (1) a migrant (or the migrant’s family) would face a real risk of “irreparable harm” to life or via “acute mental and physical suffering” equating to “inhumane treatment”; (2) no “reasonable relocation” alternatives would be available to the migrant upon return to the country of origin; and (3) “imminent danger” is expected upon refoulement, without any expectation of a time period for government intervention, global climate migration law state practice indicates that non-refoulement may be an obligation that host states should honor. Additionally, where the Sending state’s government is the direct reason, through for a climate migrant’s inhuman treatment upon refoulement, or where a humanitarian basis for entry into the host state otherwise exists, such as for the protection of the rights of a migrant’s children and family, non-refoulement should more dispositively be an honored obligation upon host states.”

Positive International Law

IL: Global Compact on Refugees and the Refugee Convention u Defines “refugees” as those who have faced “persecution” on a discriminatory basis u Post-convention refugee doctrines and case law: persecution requires a social element u Climate events do not equate to social persecution u Discrimination: race, religion, nationality, membership of a particular social group or political opinion u Climatic events are indiscriminate

IL: Global Compact on Migration and the International Convention on the Protection of the Rights of All Migrant Workers u GCM u Recognition of climate migration: “migration movements … may result from sudden-onset and slow-onset natural disasters, the adverse effects of climate change, [and] environmental degradation …” u Pushes states to build on national and regional non-refoulement doctrines, namely on humanitarian and compassionate grounds u ICPRMW u Provides temporary protection from refoulement for migrant workers: one “who is to be engaged, is engaged or has been engaged in a remunerated activity in a state of which he or she is not a national”

Regional IL: EU Directive 2004/83/EC u Covers refugee and international protection status of refugees and migrants u A “real risk of suffering serious harm” associated with refoulement to a climate disaster- impacted country u Where there can be no reasonable expectation of protection upon return to the country of origin u Where refoulement would lead to the migrant facing “… inhuman or degrading treatment” u Teitiota: potential ICCPR Arts. 6,7 violations where there exist “reasonably foreseeable threats and life-threatening situations” impacting life or equating to inhumane treatment u In tandem: regional crystallization of climate-based non-refoulement

IL: Statelessness u Minimum level of treatment for “stateless” people u Those “who [are] not considered as a national by any State under the operation of its law.” u Climate migrants are de facto stateless, not de jure stateless u No protection from refoulement

IL: The Nansen Initiative u Specifically addresses climate change, climate migration, and non-refoulement as a forum u Pushes countries to develop internal and multilateral frameworks, through negotiation, to address these issues u Creates no positive international obligations u “Pre-soft law”

Case Law

Doctrine 1: A ‘real risk’ of ‘irreparable harm’ to life or via ‘acute mental or physical suffering’ equating to inhumane treatment u Soering: “real risk” of “inhumane treatment” = violation of ECHR Art. 3 (right to be free from inhumane treatment) u Non-refoulement for German man facing death penalty in the US; he faced “extreme conditions” and “ever present and mounting anguish” on death row u See also Judge: man detained in Canada for 10 years, faced refoulement to death row in the US = violation of ICCPR Art. 6 (right to life) due to “irreparable harm” u D. v. UK: “acute mental and physical suffering” upon refoulement = ECHR Art. 3 violation u Terminally-ill man sent back to Caribbean to face worse living, health conditions u Even if “the risk … in the receiving country … stems from factors … [that do not] in themselves infringe” ECHR, an ECHR Art. 3 violation can still be found u Teitiota: importing the above, a real risk of “irreparable harm” under ICCPR Arts. 6 or 7 can trigger climate-based non-refoulement u Man and his family fled from Tarawa, a sinking Kiribati island, due to land degradation, salinization, lack of fresh water, conflicts over remaining land, and sea level rise u “Real risk” of infringement of the above rights did not exist here, where Kiribati still received sufficient financial assistance and freshwater imports, there was sufficient land for agriculture, and no general state of conflict existed

Doctrine 2: No ‘reasonable relocation’ alternatives available upon return to the home country u Federal Constitutional Court of Austria, Decision U84/11 u Pakistani migrant left home because landowner shot his family; afraid to return u Lower court dismissed his asylum case u Appellate tribunal: lower court should have considered whether (1) migrant had domestic alternatives to relocation within Pakistan; (2) whether such domestic alternatives were reasonable – keeping in mind the flooding in Pakistan u Potential ECHR Art. 3 violation – right to be free from inhumane treatment

Doctrine 3: ‘Imminent danger’ is expected, without potential government intervention in the interim u Teitiota (Kiribati) and AD (Tuvalu) / AC (Tuvalu) u Climate migrants and their families fled their countries to New Zealand u While non-refoulement was potentially applicable (refoulement could equate to violations of ICCPR Arts. 6, 7 OR humanitarian / cultural and compassionate / familial IL), not applicable here u Both cases: danger was not imminent and government had time to intervene and seek financial assistance u Kiribati: 15 years until sea level rise, land degradation, and salinization would have impacts on life / humanity u Tuvalu: government was actively implementing measures to combat sea level rise (outcome did not necessarily matter)

Conclusion u Domestic and regional principles and doctrines for non-refoulement are either crystallizing or in states of pre-crystallization u The 3-factor test is a viable framework for non-refoulement u To crystallize internationally, a new international instrument is required u Nansen Conferences / Iniative = fora for positive climate IL development

The impacts of climate migration on sending and receiving states: migrant workers – the Spain- Colombia circular model u Pros u Seasonality of both migrant work and climate issues u Large, cheap workforce u Flexibility for receiving countries: only temporary visas u Helps migrants obtain technical skills and remit incomes for development u Cons u Neoliberalism that avoids real “collective political action” in favor of exploitation u Lack of human rights protections (extreme conditions, no social security or right to organize) u Temporary protection, sometimes not provided to workers’ families