Non-refoulement: A Legal Hope for the Protection of Environmental Migrants and their Rights

Shaindl Keshen, Steven Lazickas, and Lucía Solórzano
November 03, 2021

Food insecurity, disease, air pollution, drought, and rising sea levels caused by environmental degradation are making many places around the world uninhabitable, triggering forced climate-induced environmental migration and displacement. It is estimated that environmental disasters domestically displaced 228 million people between 2008 and 2016 and almost 25 million in 2019. Now, children are four times more likely to be displaced by environmental disaster than violence or conflict. 

Existing international law does not currently provide a single legal framework to protect environmental migrants. For example, the 1951 United Nations Refugee Convention does not directly grant protection to environmental migrants, since fleeing climate change or environmental degradation does not meet the specific persecution criteria established by the convention. And, while the 2010 Cancun Agreements under the UN Framework Convention on Climate Change call for states to adopt “measures to enhance understanding, coordination and cooperation with regard to climate change induced displacement,” states have not yet acted to meaningfully do so. This gap in protection requires states and stakeholders to take action and apply existing legal frameworks to protect environmental migrants.

The international legal principle of “non-refoulement” offers an encouraging path forward. Non-refoulement prohibits states from expelling or returning a person to a territory where they face a real risk of persecution, serious human rights violations, or irreparable harm. Non-refoulement has repeatedly been affirmed as a peremptory norm of “jus cogens” the highest form of international law, under which no violation or deviation is permitted. A viable avenue for the protection of environmental migrants and their rights could start with non-refoulement at its core: an international policy which asserts states cannot deport environmental migrants back to uninhabitable conditions.

Two recent human rights cases have demonstrated non-refoulement as an important option to protect environmental migrants’ rights.

Ioane Teitiota v. New Zealand, a landmark case in the United Nations Human Rights Committee, lays the groundwork for this path with its 2019 decision. Teitiota claimed New Zealand violated his right to life when it denied his application for refugee status and returned him to Kiribati. Teitiota claimed that severe environmental degradation in the small island state created conditions that threatened his right to life. Teitiota argued that the principle of non-refoulement prohibited New Zealand from returning him to Kiribati.

While the Human Rights Committee ultimately did not side with Teitiota, it did conclude that the life-threatening effects of climate change could create conditions where returning a migrant to such an environment would violate their right to life and trigger a non-refoulement obligation. Although, the committee did take the view that environmental conditions in Kiribati would likely reach the threshold that would prohibit New Zealand from returning Teitiota, the extant conditions in Kiribati had not yet reached that point.

Human Rights Committee member Duncan Laki Muhumuza, in a dissenting opinion, wrote that the committee’s decision created an unreachable standard to demonstrate degraded environmental conditions as a threat to the right to life. He noted: “it would indeed be counterintuitive to the protection of life, to wait for deaths to be very frequent and considerable; in order to consider the threshold of risk as met.” Laki Muhumuza also maintained that threats to life have been considered a violation of the right to life even if they do not result in death, and implied this view applied to the threats posed by environmental degradation.

With the committee’s decision in Teitiota v. New Zealand, the view that degraded environmental conditions could trigger non-refoulement is now part of international human rights jurisprudence. In a similar and more recent development in 2020, a French court successfully applied non-refoulement to an environmental migration case in a groundbreaking domestic ruling.

A court of appeal in Bordeaux, France prevented the deportation of a Bangladeshi national with a respiratory illness. The court asserted that returning him to Bangladesh, which has the highest levels of air pollution in the world, would result in his imminent death. In a legal first, the French court specifically cited environmental conditions in Bangladesh in its ruling against the deportation.

By 2050, the climate crisis could create between 216 million and 1.2 billion environmental migrants, though the vast majority of them are expected to move within their home countries. Establishing a new international treaty specifically for environmental migrants and their rights would guarantee a protection framework for this currently unprotected group.  But in its absence, the precedent set by these non-refoulement cases represents a critical step forward in filling the existing protection gap.

Non-refoulement is not the panacea of protection for environmental migrants. It does not provide a forward-looking and proactive approach, but rather requires migrants to cross international borders before they can avail themselves of its protection. In practice this is equally a key limitation of the global refugee regime, in which 99% of refugees don’t have access to resettlement or other mobility pathways. Still, however, as a fundamental and widely codified principle of customary international law, non-refoulement offers a pathway for states and stakeholders to extend protection to some of the world’s most vulnerable.  In the spirit of the commitments made in the Cancun Agreement, the international community must be bolder in our interpretations of non-refoulement, taking responsibility now to adopt meaningful mechanisms for the protection and survival of environmental migrants. We have reached the turning point, and Duncan Laki Muhumuza’s opinion holds especially true: if the international community waits until environmental conditions constitute human rights violations in order to address climate migration, it will be too late.

About the Authors:

Shaindl Keshen (MIA 21), Steven Lazickas (MPA 21), and Lucía Solórzano (MIA 21) are recent graduates from Columbia University’s School of International and Public Affairs. This post draws on research conducted for a SIPA Capstone Workshop consulting project on behalf of the International Organization for Migration (IOM)’s International Migration Law Unit. The project produced a training manual on this emerging topic. The authors give special thanks to advisors Ben Fleming and Gianna Sanchez for their support.

Shaindl Keshen (MIA ’21) currently works at UNICEF. At SIPA she studied humanitarian affairs policy, focusing on international human rights and humanitarian law, migration, and emerging technologies. She has been an advocate at the UN on behalf of Indigenous peoples in Canada and has worked on incorporating international rights-based legal frameworks into Canadian provincial laws. 

Steven Lazickas (MPA '21) studied Human Rights and Humanitarian Policy, specifically the intersection of human rights, large-scale emergencies, and climate change. He currently works as an editorial and research associate for the African-American Redress Network. He is a writer, policy professional, and experienced organizer dedicated to environmental justice, racial reconciliation, and worker's rights.

The views and opinions expressed in this think-piece are those of the authors and do not necessarily reflect the official policy or position of SIPA or Columbia University.