1. INTRODUCTION

The continuous burning of fossil fuels such as coal, oil, and gas, which emit greenhouse gases, are the leading causes of climate change. This fact, a product of human activity, generates consequences ranging from intense droughts, forest fires, sea level rise, floods, and storms, among other catastrophes that seem to be future events but are increasingly closer to civilization.

The IPPC (Intergovernmental Panel on Climate Change), in its most recent report, 2022.^[1] draws attention to the fact that humans are drastically modifying the climate and the earth. The impacts of climate change are intensifying faster. The opportunity to reverse some of these effects is being lost. These impacts not only result in the earth's drastic transformation but consequently affect the livelihoods of millions of species, including humans.

Recently, a phenomenon of persecution caused by these drastic changes in the planet's temperature has attracted attention,^[2] which generates a displacement of people like those recorded in armed conflict and violent events. This phenomenon is related to climate refugees, which imposes and alerts not only countries but also international organizations on the need to design, plan and develop policies to address the impacts of climate change, particularly floods and storms, which force many people to leave their territories.

According to the UN Refugee Agency, the climate emergency defines the weather, and displacement is one of its most complex consequences. It is a reality as populations, mainly those in vulnerable situations and from the poorest countries on the planet, have had to leave their territories, as they do not have the resources to adapt to an increasingly hostile environment.^[3]

After the Covid-19 pandemic, the conflicts came together and intensified. The climate crisis and the pandemic increased inequality and the constant violation of human rights. The pandemic aggravated socio-economic difficulties and had to do with the lack of access to clean water and inadequate opportunity for adequate food security systems, among other factors. The combination of climate and pandemic factors aggravates the situation of internal displacement. In other words, the pandemic intensifies the crisis imposed by climate change, as it increases social and environmental inequality to these problems.

In this context, together with the conceptual and legal identification of the status of climate refugees, as well as the unknowns about the opportunities for the response that international human rights law can provide, this article aims to analyze whether the current international legal framework offers clear solutions to the distress of climate migrants. To achieve this objective, first, the situation of the special vulnerability of climate refugees will be analyzed, followed by an analysis of whether international law provides effective responses to the crisis of displacement due to climate change, intensified by the pandemic.

2. CLIMATE REFUGEES AND THE SITUATION OF SPECIAL VULNERABILITY CAUSED BY COVID-19

2.1.Common vulnerabilities

Among all the difficulties a displaced migrant might face during the move, in the past two years the pandemic has added many other challenges to all the people who found themselves forced to leave their home country. Climate refugees, who already have a legally undefined status, must now also cope with a lack of adequate medical care as well as closed borders and international travel restrictions, making their lives extremely difficult during the global pandemic. This global threat manifested once again that some emergencies affect us all with independence of the economical background we might come from or the country of origin, and the prominent need to fight them as one.

In the early stages of the 21^st century there are three challenges that have a predominant role in international relations and national policies: migration, climate change and public health. At first sight these main issues might not be related but on a deeper analysis can be found the narrow nexus between the current COVID-19 pandemic and climate change exist. To have a proper approach to find solutions to these major developments, a common understanding is needed through a global-to-local response and long-term thinking; to respond the need of protection of the most vulnerable groups. This global pandemic has shown that, without a common plan for action, to protect in an equal way the population and under-prepared health systems can provoke devastating consequences when facing with these increasingly regular shocks and unexpected behaviors. Social inequality, gender-based violence, poor housing, and health systems: the COVID-19 crisis has revealed the cracks that divide our societies. In times of crisis, global inequality is sustained and reinforced, affecting the lives of the poor and minorities more than ever. The still latent pandemic illustrates how inequality is still an obstacle in ensuring the health and wellbeing of everyone without distinction, and how social and economic inequalities manifest themselves in unequal access to healthcare systems.

Therefore, climate migrants and COVID-19 are interrelated with one another, in a direct and indirect way. Borders and immobility played a central role in the response of the ongoing pandemic, limiting the freedom to move and imposing restrictions to all affecting those who are on the move the most. This is directly tied to climate change in different aspects, not only as a negative impact but also positive ones. For instance, focusing the temporary positive impact of lockdown imposed to the population to prevent the exponential contagion experienced during the outbreak of COVID-19, measures on CO2 emissions and the extraordinary decrease of contamination during the first months of the pandemic improving the conditions of the nature thanks to the standstill in human activity. On the other hand, the health threat spread by the coronavirus, on average, is greater for people exposed to higher levels of pollution, which are most often to vulnerable people. The same occurs regarding the health impacts of climate change, also adding pollution to the air and disproportionately impacting the health of those in poverty. The continuous range of the climate crisis and its direct consequences can be seen as another test case for the world’s emergency preparedness to respond to the impacts of a common crisis, that, like COVID-19, affect particularly the most vulnerable populations such as refugees and internally displaced people. Unlike the current pandemic, which has seen governments swiftly adopt measures to control its spread and mitigate the social and economic impacts, however, the climate crisis is not yet being met with the same sense of urgency. Research shows that without ambitious climate action and disaster risk reduction, climate-related disasters could double the number of people requiring humanitarian assistance to protect weather-related victims. COVID-19 can be considered as one of the consequences of rising global temperatures, within the hazards warned for decades by scientists, such an increase in infectious disease. Due to climate change’s conditions, like the world warmer temperatures, higher sea levels, higher precipitation, and increased contact between humans and animals due to loss of habitat help extend the geographic reach and transmission season of diseases. The causes of both crises have commonalities, and their effects converge. The climate emergency and COVID -19 are both due to human activities that have led to environmental degradation. Neither the climate emergency nor the pandemic was unexpected. Both have resulted in avoidable loss of life due to delayed, inadequate, or incorrect actions.

Along the crisis, UNHCR is increasing its focus on the links between climate, vulnerability, and displacement to identify vulnerable populations and mitigate the impacts of climate change before they become full-blown displacement crises. According to the UN Refugee Agency, there was over 100,000 cases of COVID-19 among forcibly displaced people by of October 2021. As with the response to the crisis, UNHCR is advocating for specific measures to protect forcibly displaced and stateless people from the threats posed by climate change, which include food and lack of water, increased disease incidences and loss of livelihoods.^[4]

Both COVID -19 and the climate crisis have shown that the poorest and most marginalized groups in society, such as migrants and refugees, are always the most affected by shocks. As for climate change, those most affected by the extremes have generally contributed least to the causes of the crisis. Climate has slipped from the top of the global agenda due to political indifference and the need to address the immediate problems of COVID -19. Following the Paris Agreement, it is time to seize the chance to refocus interests on sustainability to protect our future health and the environment. While governments are implementing plans in place for economic recovery after COVID -19, concerns about climate change and equity are rightly focused on green recovery. A rapid global transition is needed to clean energy sources to end the stranglehold of fossil fuels.

On the European scenario, in countries such as Greece, Belgium and the Netherlands, in the asylum procedures, there have been instances of forced immobilization or containment targeting migrant populations under the restrictions of COVID-19, including the partial suspension, the lockdown of asylum seekers in overcrowded reception centers where physical distancing is near impossible and service provision is critically scaled-down (creating extreme realities like the camp of Moria in Lesvos- Greece) and even, in some cases, illegal pushbacks in direct contravention of the non-refoulement principle (such as in Malta) in order to avoid the entrance of refugees in the host country. Before COVID-19 crisis, The EU and national governments are already using the security-oriented narrative as an excuse to introduce emergency measures focused on deterring, containing, criminalizing, and externalizing migrants. This is the case for the 'hotspot approach', the mechanism set out in the European Agenda on Migration 2015, to register and control arrivals at the EU's external borders. Overcrowded camps in the Greek Islands quickly became a symbol of the latent migration crisis Europe is facing and their ongoing existence is really proof to the long-term repercussions of so-called ‘emergency’ measures put in place by the EU dealing with the high influx of people arriving to the European borders over the past years.^[5]

Clearly, the consequences of the climate ‘crisis’ on border closures and mobility are much less direct and straightforward. Within the crisis context – rather than the measures adopted – it seems to indirectly support restrictive immigration measures through, for instance, the manifestation of the figure of migrants as a clear alert to the dangers of climate change, seeing environmental migration as a security threat (instead of as the current and urgent reality that it is). This leads to diverse far right and anti-immigration politicians and parties across the different countries to promote ‘eco-nationalism’ or ‘eco-patriotism’, in order to justify political agendas aimed at considerably restricting the movement of people and goods across borders. This demonstrates the urgent need for regional data to inform national policy. Sudden domestic lockdowns and international border closures have forced people to fight against how prolonged, government-imposed restrictions on mobility can undermine people's livelihoods and well-being are, and, reshape the functioning of societies in a matter of weeks. Yet this is something that scholars and practitioners in the field of environmental migration have been grappling with for years-the plight of "trapped" or "immobile" populations in places where the natural environment gradually or suddenly becomes uninhabitable. Indeed, the current emergency, in fact, is about both mobility and immobility, which has perhaps never been more evident or global than in recent months. People around the world, not just the destitute and vulnerable, are having to navigate a world of (forced) immobility and experience firsthand what it means to be "trapped" or "unwelcome".^[6]

2.2.Climate refugees and COVID-19 around the globe

For many refugees, the effect of the pandemic has been devastating to their condition, it has added significantly to the difficulties they were already experiencing in a negative way. The various restrictions on mobility and the closure of borders in most parts of the world, such as Lebanon, Malaysia, and Bangladesh, meant that those seeking refuge due to different reasons, including worsening climatic conditions, have encountered even higher walls to reach a better destiny.

Lebanon is a country with a population of 4.5 million inhabitants, which hosts many refugees. More than 2 million Syrian refugees currently live in Lebanon and nearly half a million Palestinian refugees within its borders, in addition to half a million Palestinian refugees. More than 52% of Lebanon's Syrian refugees are children, and UNHCR figures indicate that about 450,000 refugees from Lebanon are of school age. Living in an informal environment where their rights and access to protection, health care, education, and other areas are limited, and COVID-19 has further aggravated the situation. Living conditions are spartan and overcrowded, leaving little room for social distancing during the pandemic.^[7]

Now, public opinion is turning against the refugees, and some politicians are even blaming them for the country's financial difficulties. The country's newly formed Council of Ministers has not yet adequately considered the needs of refugees in its response to the pandemic or in its policy priorities, and because the right of refugees to access hospitals during times of national emergency is poorly defined and controversial, this could lead to disastrous results. According to Human Rights report, during the pandemic, at least 21 Lebanese municipalities have introduced discriminatory restrictions on Syrian refugees that do not apply to Lebanese residents as part of their efforts to combat Covid-19, undermining the country’s public health response.

Syrian refugees have also expressed concerns about not receiving medical care and not being adequately informed about how to protect themselves from infections and not being able to access health protocols. For access, one must be registered: UN-registered, undocumented, and based on sponsorship, with denial of care to infected refugees possible if they are not registered. The surveillance, privacy, and freedom of movement of refugees have also been restricted, a concern following the tightening of measures in 18 municipalities, such as the imposition of curfews for refugees. Some restrict mobility between 9 a.m. and 1 p.m., making it difficult to access medical care outside these hours. City police have implemented these measures and Syrians who violate them, face "legal action" and can have their identity documents confiscated. If Syrians are too scared to seek medical help after 1pm, such measures risk spreading the virus.^[8]

Despite these conditions, refugees are forging ahead in their communities by translating COVID -19 health information into Arabic in the camps, raising awareness on social media, collecting donations, and distributing supplies. International human rights law requires authorities to address the health needs of refugees and, in the context of the Covid 19 pandemic, any restrictions on fundamental rights for reasons of public health or national emergency must be lawful, non-discriminatory, and necessary and proportionate

On another note, during the pandemic, Malaysia’s restrictions affected severely people on the move, detaining hundreds of refugees and migrant workers for illegally living in the country, when limitations were imposed to contain the spread of the new coronavirus. The public opinion along the crisis has not been favorable towards refugees in the country, there has been growing public anger towards migrant foreigners, accusing them of spreading the coronavirus and being a burden on government resources. Malaysia has some 2 million registered foreign workers, but authorities estimate that many more are living in the Southeast Asian country seeking refuge without proper documentation and without being properly registered. Malaysia does not formally recognize refugees and considers them illegal immigrants.^[9]

Many of the detained came from the neighborhood where the raids took place was close to an area, with poor economic resources and health conditions. The spread of the virus took place under the strict lockdowns within the buildings of the neighborhood. About 9,000 people lived in the buildings, a large number of whom were foreigners. According to authorities, more than 235 of them have tested positive for COVID-1. About 700 migrants, including children, and Rohingya refugees from Myanmar were detained, according to Human Rights Watch and the Asia Pacific Refugee Rights, due to their illegal stay according to government claims. The arrest and detention of the immigrants lacked proper conditions and unhygienic detention centers, violating human rights and the right to health.^[10]

Aid workers and community leaders that were interviewed said the fear of Rohingya refugees being separated from their families and isolated is hampering testing efforts in the overcrowded Cox's Bazar refugee camp.in Bangladesh. Only one death has been recorded, fears are that the novel Coronavirus may be spreading faster than the 29 confirmed cases as of mid-May. Although 860,000 refugees live in the camps, only 339 tests have been carried out, and community organizers say the camp hospitals are empty, makeshift medical stores are busy, and refugees are forced to self-medicate. It is said that it is considered to go. He saw a 50% reduction in clinic visits in March, according to an IOM study. Yale University researchers who surveyed hundreds of refugees in April found that about a quarter of the refugees they surveyed reported at least one coronavirus symptom. ^[11]

Almost 390 surviving refugees were rescued on April 16, 2020, on a smuggling boat bound for Malaysia, as they were trying to escape desperate conditions in the world's largest refugee complex, Cox's Bazar. The boat had previously arrived in Malaysia but was denied permission to disembark because authorities prohibited it due to the coronavirus. The refugees were turned back into the sea, where 70 people reportedly died, and were eventually taken to Cox's Bazar, where they were quarantined and received medical treatment for two weeks due to deplorable conditions on board. Several boats have been identified with numerous refugees on board and the UN warns that if no action is taken, a "human tragedy of terrible proportions" could occur. Refugees are presumably leaving Cox's Bazar because of rumors circulating about the spread of the coronavirus. At the same time, Bangladesh is taking steps to fence off the camp and restrict communications.^[12]

The tragedy unfolding in the Bay of Bengal and Cox's Bazar, affecting hundreds of Rohingya who have already fled ethnic cleansing in Myanmar, creating a critical situation and necessary action in the face of the advancing pandemic and limited humanitarian protections under the new COVID -19 restrictions. If Bangladesh had refused to return the ship and Malaysia had sent the refugees back to their countries of origin, where they might suffer persecution, torture or other cruel and degrading treatment, this would have constituted a violation of the principle of non-refoulement, which under international human rights law has a broader application than refugee law, protecting persons who do not have refugee status from serious human rights violations.^[13]

Furthermore, for the Cox's Bazar refugees, the right to health, a fundamental human right enshrined in human rights, international humanitarian and refugee law, is being impeded because the refugees are being denied access to life-saving health information by the Bangladeshi government's decision to restrict access to internet communications, and thus their freedom of movement, through recent measures to fence off the refugee compound in an effort to contain the new coronavirus. Refugee camps have been a major concern for public health and human rights experts, even before COVID-19, because of the lack the resources within the centers. For example, there are about 900,000 Rohingya refugees who have left Myanmar and moved to Cox’s Bazar in Bangladesh.^[14]

COVID-19 crisis is an opportunity to reassess human mobility and find new approaches to old problems. The diverse responses present an opportunity to improve public health, creating a more sustainable economic future, and better protection to natural resources and biodiversity. Although migration, climate change, and public health emergencies may be considered merely temporary phenomenon (such as the rapid arrival of migrants, sudden disasters, or epidemics), this does not mean that only short-term, should deal with the proper requirements to deal with such events.

On the contrary, such interventions need to be aligned with longer-term, preventive measures that better address the structural nature of these phenomena. As marginalized and vulnerable populations continue to lose mobility limitations, negative impacts of environmental change and healthcare, it is important to recognize that potential "crisis events" are anything but disconnected or seldom. It could be argued that the overlapping crises highlighted by COVID-19 form a continuum of causes and effects that must be addressed in an integrated manner.

The COVID -19 pandemic risks aggravating the precarious living conditions of millions of internally displaced persons and migrants, worsening food insecurity for millions, and stalling necessary global efforts to address climate change while governments focus on post-pandemic economic recovery. According to the UN, the capacity of disaster management and public health systems to respond to this “expanded risk environment” will determine the recovery path for COVID-19 and beyond. If there is not an interconnected perspective regarding these common issues and proactively address deep-seated inequalities in society through solidarity mechanisms, the short-term visions will continue to be blinded and will be vulnerable to shocks during the next global "crises".

Creating a healthy environment for a healthier population are two of the most effective ways to reduce the long-term health impacts of the coronavirus pandemic and climate change and to increase our resilience and adaptive capacity – both the coronavirus pandemic and climate change affecting people on the move.

Covid 19 has highlighted the vulnerability of the world to extraordinary events such as the pandemic itself, which, like climate change, affect people differently depending on their position of vulnerability. As we have seen, migrants and refugees have been severely affected by the pandemic, and in this sense people who have mobilized for reasons related to climate change are in a situation of vulnerability. There are different international tools recognizing the hazards of climate change and the status of refugees, but it is not so clear that international law recognizes them as refugees or grants them protection appropriate to their position.

3. ARE CLIMATE REFUGEES RECOGNIZED IN INTERNATIONAL LAW?

3.1.International refugee law

The concept of climate refugees has been present for some time now in the discussion on the effects of climate change and its relation to migration and refugee law. In the United Nations Environment Programme, Essam El-Hinnawi defines environmental refugee as “those people who have been forced to leave their traditional habitat, temporarily or permanently, because of a marked environmental disruption (natural and/or triggered by people) that jeopardized their existence and/or seriously affected the quality of their life.” This definition does not require, unlike the 1951 Refugee Convention refugee definition, which does, that the refugee is outside his or her country of nationality or habitual residence, which opens the door to considering environmental refugees as persons who have had to flee internally within countries.^[15]

But Hinnawi’s definition departs from what is traditionally established in international refugee law, since, considering only the definition provided by the Refugee Convention (1951), it is difficult to conclude that people who flee due to the consequences of climate change are refugees, because the refugee status according to that Convention, is based only in a “well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion”.^[16]

According to the United Nations High Commissioner for Refugees UNHCR, the term "well-founded fear" has a subjective element, fear, to which the qualification "well-founded" is added, and must therefore be supported by an objective situation. The fear should be considered well-founded if the applicant can establish, to a reasonable degree, that his continued stay in his country of origin has become intolerable to him for the reasons of race, religion, nationality, membership of a particular social group or political opinion, or would for the same reasons be intolerable if he returned there. UNHCR has also pointed out that there is no universally accepted definition of “persecution”, but from Article 33 of the 1951 Convention, it may be inferred that a threat to life or freedom on account of race, religion, nationality, political opinion or membership of a particular social group is always persecution, and that other serious violation of human rights – for the same reasons – would also constitute persecution.^[17]

Therefore, in order to apply the 1951 Convention's refugee definition to people fleeing for climate change reasons, we would have to characterize the impacts of climate change as "persecution", and that is not easy because, on the one hand, the threshold of a threat to a person's life or liberty must be met, and on the other hand, the persecutor must be identified, which we could perhaps consider as the state that failed to develop measures to protect the inhabitants from the effects of climate change, or the international community that has not reacted adequately to prevent climate change or the industrialized states that contribute the most by emitting CO2. But this, as McAdam notes, would be a complete paradigm shift in traditional refugee law, because while 1951 Convention refugees flee from their own government (or from private actors from whom the government is unable or unwilling to protect them), a person fleeing the effects of climate change does not escape his or her government.^[18]

But maybe the greatest difficulty in applying the 1951 Convention definition of refugees to those displaced by climate change relates to the failure to meet the requirement that the persecution is based on race, religion, nationality, political opinion or membership of a particular social group, since, as McAdam has noted, persecution alone is not enough and the problem with climate change impacts is that they are largely indiscriminate, rather than being linked to the particular characteristics of individuals. Thus, climate change may affect some countries or populations to a greater extent, but it does not affect them by virtue of nationality or religion.^[19]

Greater potential for protection for people fleeing the effects of climate change can be found in regional refugee law systems. In Africa and Latin America, there are broader definitions of refugee than in the 1951 Convention, although they do not expressly contemplate the concept of climatic refugee. In Latin America, in response to migration crises in the region where people in need of protection did not fit the refugee category of the Refugee Convention, the Cartagena Declaration was adopted in 1984. This Declaration is a non-legally binding agreement that, in addition to containing the elements of the 1951 Convention and its 1967 protocol, includes among refugees persons who have fled their country because their lives, safety or freedom have been threatened by generalized violence, foreign aggression, internal conflicts, massive violation of human rights or other circumstances which have seriously disturbed public order. Although adopted as a non-binding agreement, according to Ochoa all South American countries and several Central American countries have incorporated a Cartagena-inspired refugee definition into their domestic law.^[20]

Normally in a refugee claim, an examination of the situation in the country of origin, as well as the particular situation of the individual or group of persons seeking refugee protection, is required to assess an asylum seeker's well-founded fear of persecution with respect to the grounds protected in the applicable refugee definition. In the case of the Cartagena declaration, the assessment focuses on exposure to the risks inherent in the five situations contained in its definition (generalized violence, foreign aggression, internal conflicts, massive violation of human rights or other circumstances which have seriously disturbed public order). According to UNHCR,^[21] the five situational events in the Cartagena refugee definition are characterized by the indiscriminate, unpredictable, or collective nature of the risks they pose to an individual or group of individuals, or even to the population at large, and also cover the indirect effects of the five situational events – including poverty, economic decline, inflation, violence, disease, food insecurity, and malnourishment and displacement. Under such an interpretation of this broad definition of refugees, it is possible to consider people fleeing the consequences of climate change in the region as climate refugees. But UNHCR has also noted that the Cartagena refugee definition is not intended to be an all-encompassing definition of refugees that covers all situations in which people are forced to leave their country of origin and that, while States may choose to apply the Cartagena refugee definition to people who are forced to leave their country because of ecological disasters, they are not strictly protected under the Cartagena refugee definition.^[22]

The regional OAU Convention in Africa, the binding legal instrument governing refugee protection in Africa, also presents a broad definition of refugee in its article 1(2),^[23] applying the term to:

every person who, owing to external aggression, occupation, foreign domination or events seriously disturbing public order in either part or the whole of his country of origin or nationality, is compelled to leave his place of habitual residence in order to seek refuge in another place outside his country of origin or nationality.

As Edwards argues, the extent to which the term "public order" is understood will determine whether environmental refugees fall within the definition of the OAU Convention, so it would be theoretically possible. But Edwards also argues, concerning people fleeing environmental disasters that, even though these persons are often given refuge in the territory of neighboring States, receiving States rarely declare that they are acting in compliance with their obligations under the OAU Convention. Therefore, although under a broad interpretation of the concept of public order in the definition of refugee present in the African regional system, the existence of climate refugees could be considered, in practice this would not happen because it is not through the use of the OAU Convention that African states would be giving protection to environmentally displaced persons. Thus, as Edwards points out, the practice of receiving and hosting people seeking asylum from the effects of climate change in Africa could be seen as a contribution to the development of a right of temporary protection on humanitarian grounds under customary international law, rather than under refugee law treaties.^[24]

As noted by the Human Rights Council, “the adverse effects of climate change have a range of direct and indirect implications for the effective enjoyment of all human rights”.^[25] In many cases, these effects force people to flee the places where they live to seek refuge and protection of their rights elsewhere, it is, therefore, necessary to consider the protection that human rights can provide to climate-displaced persons. As McAdam points out, through human rights treaties, countries' protection obligations have been extended beyond the "refugee" category, and this is known in international law as "complementary protection" because it describes human rights-based protection that is complementary to that provided by the 1951 Refugee Convention.^[26]

This complementary protection follows from the major difference in the scope of application of refugee law and human rights law. As Chetail indicates, human rights apply to everyone because of the inherent dignity of every human being, whereas the benefit and rights of refugee status depend on the identification of a category of protected persons according to the definition of refugee used.^[27]

A case that clearly shows the relationship between complementary human rights protection and persons seeking refuge for climatic reasons is the case of Ioane Teitiota v. New Zealand where, in 2019, the Human Rights Committee adopted a view concerning the complaint of a national of Kiribati, seeking asylum in New Zealand, from the effects of climate change in Kiribati. The complainant claimed that by sending him back to Kiribati, New Zealand violated his right to life under the International Covenant on Civil and Political Rights by exposing him to conditions that endanger his life. These conditions included the sea level rise in Kiribati due to climate change, resulting in the scarcity of habitable space, environmental degradation, and saltwater contamination of the freshwater supply.^[28]

The Committee found that, in the specific case, New Zealand did not violate the complainant's right to life, because of its thorough and careful assessment of the case and the available information that led it to determine that, despite the serious situation in Kiribati, sufficient protection measures were in place. However, through its decision, the Committee sets new standards that may facilitate the success of future asylum claims related to the effects of climate change.^[29]

The Committee noted that States parties have an obligation not to extradite or remove a person from their territory where there are substantial grounds for believing that there is a real risk of irreparable harm, such as those covered by articles 6 and 7 of the Covenant, which refers to the right to life and the prohibition of torture and cruel, inhuman or degrading treatment or punishment. The Committee observed that this obligation may be broader than the scope of the principle of non-refoulement under international refugee law, as it may also require the protection of aliens who are not entitled to refugee status. In addition, the committee pointed out that ”without robust national and international efforts, the effects of climate change in receiving States may expose individuals to a violation of their rights under articles 6 or 7 of the Covenant, thereby triggering the non-refoulement obligations of sending States” (para 9.11).^[30]

Thus, although the Committee found that the complainant's deportation was not unlawful because his life was not in immediate danger in Kiribati, it recognized that climate change can generate a real risk of danger to life or other cruel, inhuman or degrading treatment and, in such cases, under human rights law, the principle of non-refoulement protects individuals against forcible return and must therefore be taken into account by those deciding on deportation challenges, as all States have an obligation to protect individuals from the harmful effects of the climate crisis, including displacement.

This standard developed by the Human Rights Committee could be adopted by regional human rights bodies and by local courts when reviewing cases of people seeking asylum from the effects of climate change. Recently, the Inter-American Commission on Human Rights (IACHR) has also developed standards regarding persons who move for reasons directly or indirectly associated with climate change, stating that States "must guarantee due process during the procedure leading to the recognition of their migratory status, and in any case guarantee their human rights, such as the safeguard of non-refoulement while their status is determined".^[31] The IACHR has also emphasized that States should recognize access to justice, reparation measures, and guarantees of non-repetition for persons forced to move due to adverse consequences of climate change.

For its part, the UNHCR has indicated that, without prejudice to the applicability of international and regional refugee and human rights law, a pragmatic way to offer protection to displaced persons in the context of climate change is temporary protection or time-limited stay arrangements that include minimum human rights standards of treatment. According to UNHCR, temporary protection or stay arrangements (TPSAs) are “pragmatic “tools” of international protection, reflected in States’ commitment and practice of offering sanctuary to those fleeing humanitarian crises. TPSAs are complementary to the international refugee protection regime, being used at times to fill gaps in that regime”. However, as noted by UNHCR, these tools may be useful when the situation in the displaced person's country of origin is unclear, but may not be effective if the country of origin is unwilling or unable to stabilize the situation resulting from climate change, and in such long-term situations the displaced person should be able to request and receive international protection, and even, when justified, refugee status, from the host country.^[32]

Thus, while international and regional refugee and human rights law may be insufficient to define and safeguard so-called climate refugees, they do present important opportunities to provide protection for them and, as we can see in the case of Ioane Teitiota v. New Zealand, we might expect that interpretations and standards to protect them under existing international norms will prevail in the future, although perhaps not as quickly as necessary, since the adverse effects of climate change are being suffered today by those forced to move, who are in a situation of particular vulnerability that has increased with the effects of the pandemic.^[33]

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Como citar este artículo | How to cite this article: FERRERO ALBERO, Ofelia; TÉLLEZ GUZMÁN, Felipe; GALLO APONTE, William Ivan. The situation of vulnerability and the impact of the pandemic on climate refugees. Revista Eurolatinoamericana de Derecho Administrativo, Santa Fe, vol. 9, n. 2, p. 269-290, ene./jun. 2022. DOI 10.14409/redoeda.v9i2.12399