INTRODUCTION
Climate change is turning the forced migration into a new landscape of forced migration and is posing a serious and increasing risk to human life and ecology. Since 1990, the “Intergovernmental Panel on Climate Change (IPCC)1” has “being” forecasting that, “climate change” would have its greatest “impact on human mobility”. The effect of disasters caused by weather has resulted in “21.7 million people” being displaced each and every year since the year 2008, which is not inclusive of the average people who cross the borders as a result of slow-moving phenomena like sea-level rise and desertification. Estimates indicates that by 2050, climate-induced migrants may be recorded between the range of 50 million and 350 million, and there will be maximalist estimates of around one billion migrants.
The “European Union”. holds a distinctively complex position in this regard. Though it also presents itself as being a global leader in climate governance and human rights protection, it also maintains one of the most restrictive migration regimes in the world. The normative position of the EU is further complicated by its historical contribution to the greenhouse-gas emission in the world. However, regardless of the accumulating evidence of climate-induced displacement, the EU migration law still functions according to the assumptions left by a legal framework of the twentieth century that was ill-equipped to handle the environmental damage.
Literature Review
A. Defining the Climate Refugee Misnomer”
One of the most dominant themes in the literature that survived is that the term climate refugee is actually a misnomer in the context of modern international law. “Jagers (2022)”2 argues that even though anthropogenic “climate change” is clearly acts as a contributing factor to displacement, the definition of a refugee in the “1951 Refugee Convention” is based upon personalized persecution as to a defined threat of environmental damage, in most instances, unattainable. The same argument by “Karayigit and Kilic (2021)”3 is that climate-related damage is generally indiscriminate and structural, lacking the targeted human agency which is necessary in order to persecute it within the legal context of persecution. “Van Duren (2018)”4 substantiates this argument by warning that the blind increase of the refugee lexicon will undermine the jurisdictional consistency of the protection of refugees itself. As a result, researchers have come to use other less offensive terms like, e.g., environmental displaced persons or climatic displaced persons (CDPs).
B. Causality: Minimalists v. Maximalists
The academic debate is divided into two major schools of thought on the issue of causality. Maximalists- mostly environmental scientists- hold the position of a direct cause of climate change and mass migration. According to Scissa and Martin (2024)5, the initial scholarship in the subject placed environmental degradation as the main cause of mass displacement, commonly through alarmist forecasts. Likewise, “Keckhut (2024)”6 supports a moderate and minimalist approach, arguing that climate change is a “threat multiplier” and not the unilateral source of migration. According to this perspective, environmental stressors are in combination with economic precarity, weak governance, and social inequality.
C. Migration as Adaptation
In recent scholarship, there is an indication of a significant paradigm shift, which sees migration not as a failure of adaptation but as an active adaptive choice. Researchers are more likely to see migration as a process of climate change adaptation, and not the lack of resilience. “Erickson (2022)”7 also supports the idea of institutionalization of migration pathways as part of climate governance systems in order to resolve the existing protection gaps. On the policy level, the “European Parliament Study on Climate Change and Migration8” recognizes this change and proposes a further enhanced coherence between EU climate policy and control over migration.
D. Identified Gap within the Existing Scholarship
In the EU law oriented literature, “displacement caused by climate” is often seen as an obstacle in the form of an emerging issue or a future issue, but not the current lack of a doctrine. “Van Duren” and the “European Parliament Study” reveals the gaps in protection though avoiding questioning the structural nature of EU asylum law which creates exclusion. Similarly, “Karayigit and Kilic” introduce gradual reformation, but they mostly leave as-is the current structure of the “Common European Asylum System (CEAS)9”. A large part of the existing literature is devoted to the establishment of new classes of protection; the paper aims at showing how EU law, with its hard legal categorizations and evidentiary standards, constructively creates exclusion even in situations of great harm.
LEGAL FRAMEWORKS AND JUDICIAL INTERPRETATIONS
International agencies such as “UNHCR, IOM and the UNFCCC Task Force10” converge on the concept of integrated complementarity of the international law. This concept was stemmed from the normative position that Climate induced displaced people are not refugees.
A. International Refugee Law
The “1951 Refugee Convention” remains the significant law for protecting international refugees. The further developed protocol of 1967 provides an umbrella protection to those people who are defined as refugees under “Article 1 A (2) of the Convention”11.
However, on a plain reading and on a critical interpretation of the said Article, it can be argued that environmental or climate related harm is not expressly relied as a ground for persecution under the Article. In a way this argument can further voice that the issue faced by the people of the island of Tuvalu located in the Pacific Ocean is not given global consideration owing to this lack of clear definitions.
This issue of structural gap was highlighted by international agencies, citing that “International Refugee Convention” was primarily drafted following the “World War II” in a political context where migration was premised on a human agency. Thus, seeing climate change induced migration as one that holding the characteristic of slow onset process. To mitigate the slow onset one needs to form contemporary interpretative legislation is the argument put forward by the “UNHCR”. A landmark development can be seen from “United Nation Human Rights Committee” in a case of “Loane Teitiota v. New Zealand12” wherein it was “held that returning of an individual” to territories where climate induced threats are possible may violate the right to life guaranteed under “Article 6 of the International Convention on Civil and Political Rights”13.
B. European Union Perspective:-
When the “courts of the European Union” urge that climate harm alone cannot be an applicant to be called a “refugee” as per the EU Qualification Directive. However, the Judicial landscape and perception reveal an openness to the understanding. The “European Courts of Human Rights” in their case of “M.S.S v. Belgium and Greece14” acknowledged that environmental degradation is relevant for assessing inhuman condition even though they don’t qualify as persecution.
Therefore, the European Union Policy perspective is that it does “acknowledge climate change as a reason for migration” but deliberately avoided recognising climate refugees. EU focuses much on adaptation and resilience building combined with migration containment through external action.
C. International Environmental Law
International Environment Law emerged as an indirect framework for catering “the issue of climate change induced migration”. This focuses on the necessity of state obligations with collective responsibility and prevention. Unlike the International Refugee law, this law is not individual oriented.
The Law prevents states within its jurisdiction from causing any act that can harm the environment adversely, more over since the harm of Climate Change is transboundary it further prohibits a state from causing harm to another state. However who takes the responsibility is an issue to be deliberated. The emission by industrial states such as the USA often adopt a stance of silencing any voice that raises significant attraction. The entry and exit conundrum of the country with regards to the “Paris Agreement of 2016”15 is lightening example.
Therefore be the “UNFCCC16” or the “Paris Agreement of 2016”, both the agreements do not create a migration rights, they indirectly acknowledge human mobility being impacted by the Climate induced effects. The “Warsaw International Agreement and Loss and Damage Fund17” has increasingly recognised the displacement caused. A study conducted for operationalising this during the Conference of Parties revealed that in a country like India the rural to urban migration has increased owing to crop failures and indifferent rain patterns therefore citing Climate Change as one of the prominent “Push Factors” of migration.
D. European Union Perspective
The “European Green Deal formed in 2019”, is a strategy adopted by the EU in alliance with the International Environmental Law to achieve climate neutrality by 2050. It sees “climate change” as a significant risk and indirectly addresses climate change induced migration as a secondary risk stemmed from Climate Change. The EU parliament study that followed the Deal envisaged that climate migration that has to be mitigated at source. Therefore with Climate Adaptation Funding, resilience building programs the Climate Diplomacy focus by the EU aims at reducing the displacement pressures mostly seen in the Global South.
On a decision by the court in the case of “Budayeva v. Russia”18, “the “court held that the failure to protect a life during a mudslide violated the Right to Life” guaranteed under Article 2 of ECHR””. Therefore the “European Green Deal” marks a shift in climate governance, but remains silent on the migrant protection. This deal reflects the affirmative action on mitigation climate change and thereby reducing the issue climate refugees. The Deal is a mere governance background and has not qualified to become a legal pathway for recognising the refugee rights.
EUROPEAN UNION DIRECTIVES
A. Qualification“Directive (2011/95/EU)”
Article 15 of the Directive 2011/95/EU19” defines the scope of serious harm as that to include torture or inhuman treatment. It is this “15 (b)” that acts as the pathway for legal rights for the climate refuged persons, this is validated by the EU Court acknowledging that the Climate induced harm is a valid inhuman condition to exist. “Clause 15 (c)” discusses about the serious threat to civilian’s life, in the case of “Elgafi v. Staatssecretaris van Justitie20” the “Court of Justice of the European Union” gave an elaborate expansion of 15(c). The judgement hold significant value for its characteristic of incorporating harms that can be structural or systemic including climate change as one such reason for a humanitarian collapse.
The Directives and the Judicial Landscape within the ambit therefore reveal that the EU policy has again limited itself to the Climate induced harms. The Directive has a limited approach to the climate impacted refugees across the country. EU adopts the notion that “climate induced migration” is a developmental issue which needs a tailored approach for mitigation. The need of the hour is to introduce re interpretative legal pathways and existing law recalibration.
B. Temporary Protection Directive (2001/55/EC)”
The Directive21 offers protection to individuals who have fled “ the areas of armed conflict or was exposed to serious risk of systemic human violations”. The article opens a scope for functional interpretations. Whereas, it is pertinent to note that this Directive was never operationalised by the EU for any climate induced harms, the last known swift responsive use was in 2022 when the Russian invasion over Ukraine happened.
The Directive is highly depended on its political activation, in spite of the lethargic and selective approach adopted, this Directive is a staunch protection that can be used to counter the displacement foreseen especially when the verticals of the Directive align with the United Nations Platform on Disaster Displacement and the Nanseen initiative. These initiatives called for a tool box agenda which is capable of manging the cross border displacement.
While the notion remains a bridge for climate induced displacement, the highly politically motivated agenda of the Directives pulls back it as ineffective to counter environmental issues. The need is to compliment the Directive with specific climate specific regulations.
C. Return Directive (2008/115/EC)”
This Directive22 is involved with the removal “of third country nationals who do not have a legal standing to stay in the European Union”. The objective of the Directive is to respect fundamental rights and human dignity. It is crucial to observe that the Directive applies after an asylum claim has been rejected in EU. This makes this Directive a final legal table where climate induced hardships can be assessed.
“Article 5 of the Directive” envisaged the principle of “fundamental rights and non-refoulement” however respecting the “EU Charter of Fundamental Rights”. In the case of “Paposhivli v. Belgium” 23 ,the “ECtHR” adopted a consequence based approach focusing on a foreseeable impact of return. The Directive gives predominant consideration to human rights facing hindrances owing to climate induced hardships.
Therefore the Return Directive acts as a robust structural safeguards. It can be seen as a compliance filter allowing the climate justice with reasonable and proportional levels of screening.
CRITICAL ANALYSIS
The EU’s response to “climate-induced displacement” is constrained by an enduring “causality hurdle,” which demands that the applicant must “demonstrate that climate change” is the proximate and decisive cause of his or her displacement, despite the long-standing empirical reality that the process of migration can be seen in the form of a multifarious nexus of both environmental, economic, and political effects. This burden of evidence allows the government to re-classify people, who have been influenced by climate, as economic migrants, and thus denies them the protection afforded by the international regimes.
Simultaneously, the self-perception of the EU as a human rights actor globally, continues to be congruent with its increasingly securitised control over migration. The “New Pact on Migration and Asylum (2020)24” is the archetype of this dissonance as it focuses on border screening, expedited procedures, and returns and does little to organise the systematic approach to climate-related mobility. This position reflects a wider political hesitation to expand types of protection in the context of the modern growth of nationalism and the exhaustion of migration.
Although non-refoulement is instituted as the binding constraint to expulsion in some places, it is still a containment measure, but not a protection regime. The effect of the lifting of the ban on returning on any similar right to residence, work or social benefit is to create a category of right-holders who are indefinitely in between, neither deportable nor belonging. This institutionalised temporariness does not only strip human dignity of a substantive content, but also reveals a great loss of permanence of status, making the displaced persons indefinitely vulnerable to the EU legal system.
COMPARATIVE ANALYSIS
A. Regional Development: The African v. Latin American Models
In Africa, the “OAU Convention (1969)25” and the “Kampala Convention (2009)26” can be viewed as the first-of-their-kind. The “OAU” definition of individuals displaced includes those who are perished by events that are causing severe disturbance to the order in the society, and thus, it may include environmental disasters. The “Kampala Convention” is a particular treaty of significance as it is the initial binding treaty that states are required to offer protection to internally displaced people and this can be traced directly to climate change. The Latin American model, represented by the “Cartagena Declaration (1984)”27 of Latin American states and the “Brazil Plan of Action (2014)”28 in particular, uses a liberal definition of refugees in general, which many states have used to refer to the victims of the Haitian earthquake.
B. National Models within the EU
Italy is the most liberal within the EU, where a “residence permit of calamity” (Art. 20 -bis CAI29) is granted to those who could not be repatriated because of a serious calamity. The number of such permits that Italy is 153 which issued in the period between 2018 and 2023 and it demonstrates the manageability of the system. On the other hand, Nordic countries like Sweden and Finland used to implement national laws to safeguard persons who had been impacted by natural disasters. However, these provisions were halted or repealed in 2016 due to the large number of arrivals, which was caused by fears of a so-called suction effect when no harmonised EU policy was in place.
RECOMMENDATIONS
Legislative Reform
From the European Union perspective there is a need to recalibrate the existing legal framework. The EU “Qualification Directive (2011/95/EU)” or the recent “New Pact on Migration and Asylum” has to comprehensive to include the harms caused by climate change. This has to be considered a ground for serious harm under “Article 1530”.
The Judicial narrowness can only be countered with the interpretative character of the Directive. This is crucial to correct the Doctrinal imbalance and align the EU laws with the contemporary laws of migration. The need for a directly enforceable regulation would bring significant legal uniformity within the member states. The current framework is incompatible with the Common European Asylum system, thus a regulation would significantly reduce the political discretionary upper hand.
Transition from Securitisation to Adaptation
Rather than treating migration as a risk to get eliminated, the transition of the “European Green Deal” to a recognised human mobility can be termed as a climate adaptation strategy. The focus of containment has to be shifted wherein the era of repair has gone by far long. The transition to adaptation requires comprehensive neighbourhood and international policies. Various track to diplomacy mechanisms can be expanded for populations in climate vulnerable regions. This helps in viewing migration as a planned and dignified adaptation measure rather than a fight for legal rights thus holding up the values of “EU Directives”.
Preventing Measures
Investment into anticipatory measures are the most viable and futuristic option available to not just European Union but to the powers. Sponge cities can be seen as a significant intervention in this regard that aims to counter displacement with climate mitigating measures. A legal and bilateral framework for understanding countries can be adopted as another viable option for preventing fight for refugee rights. They help prevent situations rise up to a humanitarian crisis. However the measures much be participatory and rights based.
Further a judicial harmonisation between EU asylum law and European Human Rights Jurisprudence particularly “Article 3 of ECHR31”, and prominent articles of “EU Charter of Fundamental Rights”. Finally the EU should adopt an evidence based climate mitigation incorporating disciplines of climate science and trust worthy environmental data.
CONCLUSION
Climate change related migration is a fast progressing reality of the 20th century legal framework. The issue has been doing round across the discussion tables of climate change induced hardships. The conventions have remained static over the topic, and it is the Judicial interpretation that shed a light of scope in protecting the life’s of individuals exposed to climate induced migration. The “European Union” to establish itself as a nation of proactive human rights protector it should integrate climate mobility into the ambit of its constitutional principles ensuring that the legal status of climate change is met with dignity.
This research is therefore reveals the absence of the explicit legal recognition for “climate induced displacement”. The paper sheds light on how EU laws are merely oversight and a result of rigid legal categories.
Comparative legal landscapes and standards shed a scrutinised approach to migration governance. It is therefore necessary to adopt the protocols followed by the selected member states to adopt the broader protection and administrative feasibility. This should be considered by the EU since the legislation relies on fragmented and discretionary responses.
The need of the hour is to incorporate climate mobility with the “Common European Asylum System” and align with the Union’s external climate and developmental policies. The provisions and alliances are to be drafted in a way that the climate displaced people will remain trap free in a cycle of temporary protection and legal lacunae. The need is to draft a EU claim to a rights based and coherent migration governance.
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Footnotes
1. Intergovernmental Panel on Climate Change, Climate Change 2022: Impacts, Adaptation and Vulnerability (Working Group II Contribution to the Sixth Assessment Report, 2022).
2. Nicola Jagers, Climate Change Induced Displacement, Migration and International Law, in RESEARCH HANDBOOK ON CLIMATE CHANGE, MIGRATION AND THE LAW 45 (Benoît Mayer & François Crepeau eds., 2022).
3. “Mustafa T. Karayigit & Merve Kilic, The Legal Status and Protection of Climate Refugees in the European Union, 23 GER. L.J. 789 (2021).”
4. “C. van Duren, Legal Obligations for the EU to Protect Climate-Induced Migrants, 20 INT’L J. REFUGEE L. 412 (2018).”
5. Caterina Scissa & Susan F. Martin, Migration in the Context of Climate and Environmental Changes, in THE OXFORD HANDBOOK OF CLIMATE CHANGE AND SOCIETY 301 (John S. Dryzek et al. eds., 2024).
6. Nikolas Keckhut, Climate Change and Migration: The Development of a European Legal Approach, 61 COMMON MKT. L. REV. 987 (2024).
7. Kimberly A. Erickson, Filling the Protection Gaps for Climate Change and Disaster-Induced Migrants, 34 GEO. IMMIGR. L.J. 1 (2022).
8. European Parliament, Climate Change and Migration: Legal and Policy Challenges (Policy Dep’t for Citizens’ Rights & Const. Affs. 2020).
9. Consolidated Version of the Treaty on the Functioning of the European Union art. 78, June 7, 2016, 2016 O.J. (C 202) 47.
10. U.N. High Comm’r for Refugees (UNHCR), Int’l Org. for Migration (IOM), Task Force on Displacement, Report of the Task Force on Displacement (2018), U.N. Framework Convention on Climate Change.
11. Convention Relating to the Status of Refugees art. 1A(2), July 28, 1951, 189 U.N.T.S. 137.
12. Supra Note 6.
13. International Covenant on Civil and Political Rights art. 6, Dec. 16, 1966, 999 U.N.T.S. 171.
14. M.S.S. v. Belg. & Greece, App. No. 30696/09, Eur. Ct. H.R. (2011).
15. Paris Agreement, Dec. 12, 2015, T.I.A.S. No. 16-1104.
16. United Nations Framework Convention on Climate Change, May 9, 1992, 1771 U.N.T.S. 107.
17. Warsaw International Mechanism for Loss and Damage Associated with Climate Change Impacts, Decision 2/CP.19, U.N. Framework Convention on Climate Change, U.N. Doc. FCCC/CP/2013/10/Add.1 (2014).
18. Budayeva v. Russ., App. No. 15339/02, Eur. Ct. H.R. (2008).
19. Supra Note 8.
20. Case C-465/07, Elgafaji v. Staatssecretaris van Justitie, ECLI:EU:C:2009:94.
21. Supra Note 9.
22. Directive 2008/115/EC of the European Parliament and of the Council of 16 December 2008 on Common Standards and Procedures in Member States for Returning Illegally Staying Third-Country Nationals, 2008 O.J. (L 348) 98.
23. Supra Note 6.
24. European Commission, A New Pact on Migration and Asylum, COM (2020) 609 final (Sept. 23, 2020).
25. Convention Governing the Specific Aspects of Refugee Problems in Africa, Sept. 10, 1969, 1001 U.N.T.S. 45.
26. African Union Convention for the Protection and Assistance of Internally Displaced Persons in Africa (Kampala Convention), Oct. 23, 2009, 49 I.L.M. 86 (2010).
27. Cartagena Declaration on Refugees, Colloquium on the International Protection of Refugees in Central America, Mexico and Panama (Nov. 22, 1984), reprinted in 3 Int’l J. Refugee L. 287 (1991).
28. Brazil Declaration and Plan of Action, A Framework for Cooperation and Regional Solidarity to Strengthen the International Protection of Refugees, Displaced and Stateless Persons in Latin America and the Caribbean (Dec. 3, 2014).
29. Testo Unico delle disposizioni concernenti la disciplina dell’immigrazione e norme sulla condizione dello straniero [Consolidated Immigration Act], Legislative Decree No. 286 of July 25, 1998, art. 20-bis (Italy), as amended by Legislative Decree No. 130 of Oct. 21, 2020.
30. Directive 2011/95/EU of the European Parliament and of the Council of 13 December 2011 on Standards for the Qualification of Third-Country Nationals or Stateless Persons as Beneficiaries of International Protection, art. 15, 2011 O.J. (L 337) 9.
31. Convention for the Protection of Human Rights and Fundamental Freedoms art. 3, Nov. 4, 1950, 213 U.N.T.S. 221.