London Climate Action Week: Climate refugees – an international legal conundrum

4 July 2019

In the last week, Philip Alston, the UN special rapporteur on extreme poverty and human rights said the world was increasingly at risk of “climate apartheid” where the wealthy pay to escape the impact of climate change and the rest of the world is left to suffer.

In a heart breaking news story from the same week which illustrated the human rights which are already at risk, Oscar Alberto Martinez and his daughter were pictured after having drowned trying to cross the US border to claim asylum.  Martinez was fleeing El Salvador, one of the three Central American countries whose nationals have been leaving in increasing numbers. The reasons behind the rise in asylum seekers from the region are complex but there is a growing consensus that climate change has played a significant role in the poverty and instability driving the movement of people.

Those who do reach the US from Guatemala, El Salvador and Honduras and claim asylum, will have to show they fit within the definition of ‘refugee’ set out in the 1951 Convention which defines a refugee as a person who:

Owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence as a result of such events, is unable or, owing to such fear, is unwilling to return to it."

As such, an individual would not be able to make a successful asylum claim, under the current international legal definition, on the basis of climate change.

The lack of an available international remedy is going to become an increasing conundrum as more and more people find themselves displaced as a direct or indirect result of climate change. Estimates suggest that by 2050, the number of persons displaced due to environmental factors could be anywhere from up to one billion people!

We saw the humanitarian and political consequences of the refugee crisis in Europe in 2015. In that year, it is estimated that just over one million migrants and refugees arrived in Europe. This is a figure which looks set to be eclipsed in the future as natural disasters, droughts, famines and other environmental crises force millions to leave their homes.

There is a clear ‘protection gap’ for these people. The Refugee Convention was derived from a series of international agreements originally conceived after the first world war in response to the millions of people that war had displaced. When millions more were displaced after the second world war, a bigger response was necessary and was codified in the 1951 Convention. The 1967 protocol expanded the geographic and temporal scope of the convention to have applicability outside of those displaced prior to 1951.

In 1951, the international community recognised and respected the need to provide protection and safe harbour to those displaced for reasons outside their own control. It is difficult to see why those displaced by climate change ought to be treated differently. That said, the sheer scope of the potential future migration is daunting and must be considered in a political environment increasingly shaped by populist and nationalist viewpoints.

There are some bright spots on the horizon. The Nansen Initiative, funded primarily by Norway and Switzerland, is a “state-led consultative process to build consensus on a protection agenda addressing the needs of people displaced across borders in the context of disasters and the effects of climate change.” Its work on the ‘protection gap’ has led to the creation of the Platform on Disaster Displacement which advocates for the ‘Protection Agenda’. Acknowledging the reality of climate based displacement of people and the lack of available remedies, this agenda aims to improve preparedness of states to prevent, avoid and respond to disaster displacement as well as encouraging states to take positive action to give “full respect for the rights of the individual in accordance with the letter and spirit of applicable bodies of law, names human rights law, international humanitarian law and refugee law”.

Crucially, this agenda does not call for a new international convention but seeks to draw on the most effective approaches states are already taking to protect those displaced persons. One example of this may be ‘humanitarian protection’, protected under the Qualification Directive in EU law and thus recognised in the UK. This offers international protection to those who fall outside the definition of the refugee convention but still require protection because “substantial grounds have been shown for believing that the person concerned, if returned to the country of return, would face a real risk of suffering serious harm and is unable, or, owing to such risk, unwilling to avail themselves of the protection of that country”.

Humanitarian protection can be granted where return to a country of origin would subject the applicant to treatment which breaches their Article 3 ECHR right not to be subjected to torture, inhumane or degrading treatment. It is accepted that in exceptional circumstances, conditions in a country such as lack of access to food, water and basic shelter may be so unacceptable that they would amount to inhumane or degrading treatment. It is possible that a person displaced due to a climate related disaster could qualify for humanitarian protection in these circumstances.

These state led, internationally supported initiatives are critical in establishing a response to the ‘protection gap’ so called climate refugees currently face. With large parts of the inhabited world forecast to be unliveable within our lifetimes, this is an issue we simply cannot afford to ignore. To avoid climate apartheid, a human rights focused response to disaster displacement must be front and centre.

Latest blogs & news

Environmental Law Quarterly Update - Q3 2021

This quarterly environmental law update provides a summary of a cross-section of news stories in the period July 2021 - September 2021. 

Environmental Law Quarterly Update - Q2 2021

This quarterly environmental law update provides a summary of a cross-section of news stories in the period April 2021 - June 2021. 

Environmental Law Quarterly Update - Q1 2021

This quarterly environmental law update provides a summary of a cross section of news stories in the period Jan 2021 - March 2021. 

World Environment Day - The green lining of the Coronavirus lockdown… and how to continue to ease our environmental impact

As the UK settles into its tenth week of lockdown, we are starting to see glimpses of hope that we might soon be back to work, the gym, and school. But while we are all looking forward to enjoying things we did before lockdown, we shouldn't be so hasty to revert back to all of our old ways.  

London Climate Action Week: Climate refugees – an international legal conundrum

In the last week, Philip Alston, the UN special rapporteur on extreme poverty and human rights said the world was increasingly at risk of “climate apartheid” where the wealthy pay to escape the impact of climate change and the rest of the world is left to suffer.

London Climate Action Week: International criminal law and the environment – considering a law of ‘ecocide’

In April 2019, Polly Higgins, a British barrister, passed away after devoting ten years of her life to a campaign for a new law of ‘ecocide’ – a law that would make corporate executives and government ministers criminally liable for the damage they cause to the environment.  In this blog, we consider the current framework for punishing environmental crime at international level, and what the proposed crime of ecocide might look like.

London Climate Action Week: Funding environmental cases & the Aarhus fixed costs Rules

Access to justice is central pillar to the rule of law. Ensuring individuals and organisations can afford access to justice is a real challenge, none more so than in environmental cases where the success is not driven by monetary reward.

London Climate Action Week: Saving Londoners from nitrogen dioxide, one judicial review at a time

According to the most recent data, two million people in London are living with illegal levels of air pollution. Nitrogen dioxide is one of the main pollutants and road transport is estimated to be responsible for 50% of total emissions.

KN Green Week: Can law help save the world?

We have seen in recent months various and different attempts by those who want to change the course of government policy on the issue of climate change.

KN Green Week: Confessions of a (mostly) reformed ‘Shopaholic’

For most of my life, shopaholic is a label I would have happily applied to myself. Shopping has always been a happy place for me. I have sought solace in the late night opening hours of Oxford Street’s shops after a tough day at work. I have laughed uncontrollably trying on ridiculous outfits while meandering the shops with friends on Saturday afternoons. I have felt a rush of delight at finding the perfect outfit for a friend’s wedding.

KN Green Week: Plastic Packaging – Reduce, Reuse, Recycle

No doubt many of you reading this will have heard about the ‘Attenborough Effect’, sparked by his two latest series, ‘Blue Planet II’ and ‘Our Planet’.  Whilst these series have changed the way many of us think about plastic and have made us see that things have to change, it is important that we understand that we, as individuals, have to be part of that change. How?

KN Green Week: Eating the Environment Better

The aim of this blog is not to point the finger and attribute blame to people who eat meat, mangos and Manchego. I myself am far from perfect, and am fully aware that I need to re-evaluate my relationship with cheese and stop eating so many avocados.  What this blog is intended to do, however, is to make us all think about, and be aware of, where our food comes from, the impact that food production has on the environment, and what we should be doing to reduce that impact.

KN Green Week: Climate change and the individual: Where to begin… by starting to ask the right questions

Emily Carter is lawyer living in central London with two small children. Although she knows a thing or two about the law, she is not an expert in the science of climate change or the answers to the current crisis. She has, however, been asking herself some questions



Plastic Patrol paddle board clean-up

Members of our Environment Committee and Charities and Communities Committee took to the Limehouse Basin canal on paddle boards to clear its plastic waste. The cleanup was organised by Plastic Patrol, an international not-for-profit organisation tackling plastic pollution.

View the photos

London Climate Action Week blog series

We explore the current climate crisis, focussing on the role of the law in responding to the impact of climate change.

Read our blog series

Bartlett Mitchell/Kingsley Napley Green Roadshow

In May 2019, Bartlett Mitchell, our internal catering company, hosted their Green Roadshow and coffee morning at our office. There was lots of chat about environmental issues and lots of people with reusable cups to hand.

Find out more about Bartlett Mitchell

KN Green Week blog series

We have published blogs on four topics questioning the decisions we make on a day to day basis – about food, packaging, clothing and finally, the potential of the law in holding governments to account.

Read the blog series

Cape Town drought - let's be water wise

Read the blog from Laura Ryan.

Read the blog

How to live a (more) plastic free life workshop

It was a pleasure to welcome Bettina Maidment (founder of 'Plastic Free Hackney') and Daniel Webb (founder of 'Everyday Plastic') on 20 June for their Guardian Masterclass on 'How to live a (more) plastic free life'.

Find out more about the workshop

Cycle to Work Day 2019

Members of our firm took part in Cycle to Work Day on Thursday 8 August 2019.

Learn more about Cycle to Work Day

Share insightLinkedIn Twitter Facebook Email to a friend Print

Email this page to a friend

We welcome views and opinions about the issues raised in this blog. Should you require specific advice in relation to personal circumstances, please use the form on the contact page.

Leave a comment

You may also be interested in:

Close Load more

Skip to content Home About Us Insights Services Contact Accessibility