No week passes without a newspaper article, television news or a documentary describing the plight of “climate refugees”. In this post, I would like to explain why, in my opinion, “survival migrants” is a more adequate term than “climate refugees” from a humanitarian and legal protection perspective. Secondly, I would like to examine to what extent “survival migrants” who have crossed an internationally-recognised border can legally be sent back to their country of origin or habitual residence.
The frequently heard term “climate refugees” is legally incorrect. To be a refugee in the sense of Article 1 of the 1951 Convention relating to the Status of Refugees (1951 Refugee Convention) it is required that a person fears persecution for reasons of race, religion, nationality, membership of a particular social group or political opinion. Although it is possible that a person fleeing climate-related events also fears persecution on one of the five grounds – for example, when a government intentionally refuses to offer relief to a minority group after a cyclone has affected the country – this is rather the exception than the rule. I therefore argue that it is preferable to use the term “migrant” instead of “refugee”.
Also the word “climate” I prefer not to use. While this term might be useful for the purpose of advocating for climate change mitigation and adaptation, thus for the prevention of “climate refugees”, it is not an adequate term as regards humanitarian and legal protection questions. People usually flee for a complex mix of reasons and therefore it is in most cases very difficult if not impossible to isolate one factor, for example the climate factor, as the only cause of migration. There is no clear causal link between climate change and migration. Other elements that are intertwined with the climate factor are environmental problems other than climate change and socio-economic elements: air and water pollution, development projects, industrial accidents, deforestation, population pressure, lack of income, collapsing economies and physical insecurity are some examples.
Given this multi-causality of migration, I abandon the term “climate refugees” or “climate migrants” and exchange it for the recently-developed concept of “survival migrants” by Alexander Betts (see A. Betts and E. Kaytaz, ‘National and International Responses to the Zimbabwean Exodus: Implications for the Refugee Protection Regime’ (2009) New Issues in Refugee Research, Research Paper No. 175, UNHCR, Geneva). Survival migrants are defined as persons who are outside their country of origin as a result of an existential threat for which they have no access to a domestic remedy. The reasons for their flight have mainly been a combination of state fragility, livelihood failure and environmental disaster. Stated differently, a combination of social, economic and environmental factors. Survival migrants fall outside the traditional dichotomy of people fleeing persecution or conflict on the one hand, and voluntary economic migrants on the other.
The international legal protection framework for survival migrants is, contrary to the one for people fleeing persecution or conflict, very weak. There is no single migration-related international instrument that clearly offers protection in a foreign country. International human rights law, on the other hand, applies to each person without discrimination and thus also to survival migrants.
It is within this framework of international human rights law that I would like to examine to what extent the right to be protected against forced return to the country of origin or habitual residence applies to survival migrants. This right is known as the non-refoulement principle: no State is allowed to return, expel or extradite a person in any manner whatsoever to another State where that person risks being subjected to serious human rights violations.
The core question that arises here is what is understood by “serious human rights violations”. Because there is no univocal prohibition of refoulement in international law – the concept has been developed under various treaties – it is necessary to examine the scope of the principle in each treaty separately.
The non-refoulement principle in both the 1951 Refugee Convention and the 1984 UN Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (UNCAT), respectively stipulated in Article 33 and Article 3, is not helpful for survival migrants given the requirements of respectively the risk of persecution on one of the five grounds and the strong link between the human actor inflicting the act of torture and the State. With regard to the International Covenant on Civil and Political Rights (ICCPR), although the Human Rights Committee – the body in charge of implementing the ICCPR – has interpreted the prohibition of torture and other cruel, inhuman or degrading treatment or punishment (Article 7) as implying the non-refoulement principle, there are no cases of survival migration where the Human Rights Committee has acknowledged a violation of Article 7.
As regards the 1950 European Convention on Human Rights (ECHR), Article 3 – stipulating the prohibition of torture and other inhuman or degrading treatment or punishment – implies, according to case law of the European Court of Human Rights (the Court), the principle of non-refoulement (see Soering v. the United Kingdom (1989) 11 EHRR 439, 91; Cruz Varas v. Sweden (1991) 14 EHRR 1, 70; Salah Sheekh v. the Netherlands (2007) 45 EHRR 50, 135). Although in most of the cases in which the Court has applied Article 3 the risk of being subjected to a proscribed form of treatment emanates from intentionally inflicted acts of public officials or non-State actors, we can observe that the Court does not exclude the application of Article 3 in other contexts. In other words, the source of the risk of proscribed treatment in Article 3 is in principle irrelevant and thus the harm may emanate from a situation instead of human activity. Two relevant cases in this context are D v. the United Kingdom ((1997) 24 EHRR 423) and N v. the United Kingdom ((2008) 47 EHRR 885). While in the first case, the Court decided that returning the applicant to St. Kitts would amount to a violation of Article 3, referring to the very exceptional circumstances of the case (the applicant suffered from HIV/AIDS and was in the advanced stage of this terminal and incurable illness), in the second case (where the applicant also suffered HIV/AIDS) the Court decided that expulsion would not constitute a breach of Article 3. In other words, except for very exceptional situations, the Court is reluctant to include socio-economic rights within the scope of Article 3.
As regards survival migrants, finding themselves on the territory of a State Party to the ECHR, it seems unlikely – though not necessarily excluded – that their expulsion to a country where they would face life threatening socio-economic and environmental conditions, in the absence of “very exceptional circumstances” with regard to a severe illness, would in the future be considered by the Court as a violation of Article 3.