Non‐refoulement and climate change‐induced displacement: Regional and international cross‐fertilization?

Abstract

AbstractIn the landmark Teitiota decision, the United Nations Human Rights Committee held that the return of an asylum seeker to his home State may trigger the non‐refoulement principle under the right to life in the International Covenant on Civil and Political Rights, due to harms associated to climate change and environmental degradation. Whereas the 1951 Refugee Convention remains silent on the topic, the Committee seemingly broadened the scope of the non‐refoulement principle applicable to asylum seekers to include those fleeing the effects of climate change. While hailed by many, the implications of the case should not be exaggerated. Instead, upon closer inspection, the cracks and flaws in the reasoning of the Committee become evident. The reconcilability of this decision with the obligation to ensure that rights protected by the Covenant do not become theoretical and illusory is obscure at best. This analysis adopts a two‐pronged comparative approach. First, it investigates the scope of non‐refoulement across regional human rights instruments and notable domestic cases, with a focus on how the general conditions of the country of return factor into its application. This comparative case law approach provides clarity on whether the Committee adopted a cautious or rather progressive approach in this climate change‐induced displacement case. Second, this contribution investigates the procedural burden and standard of proof in non‐refoulement cases across regional human rights bodies. As the raison d'être of this principle is to anticipate hypothetical situations of harm upon return, it is crucial to determine whether consensus or divergence exists concerning the burden and standard of proof and how this may apply to climate change‐induced displacement cases.