Together with the Geneva Convention, the Task Force on Climate Displacement established by the Paris Agreement refers to migration and human mobility in relation to climate change, as well as recommendations for integrated approaches to prevent, minimize and combat displacement in the context of the negative impacts of climate change, But no solid terminology specific to climate refugees. Although some researchers (Biermann and Boas 2010), institutions (German Advisory Council on Global Change 2007) and non-governmental organizations (Foundation for Environmental Justice 2017) support the use of the term “environmental/climate refugees”, they are reluctant to expand the scope of the 1951 Convention relating to the Status of Refugees. Frank Bierman, a professor at Utrecht University, and Ingrid Boas, a professor at Wageningen University, have paved the way for an alternative proposal to establish an ad hoc convention on climate refugees to be included as a protocol to the UNFCCC. However, they wanted to make a strict distinction between climate change and the environmental drivers of forced migration, preventing their proposal from gaining traction. In fact, a conceptual and legal distinction between environmental and climate disasters triggers several negative reactions. So far, science has not made a clear distinction between pure environmental and climate threats. Nevertheless, states could grant disaster victims a more cautious protection status to ensure that the claimant is only affected by pure climate protection measures. It would also lead to a greater number of categories and subcategories of migrants, making efforts to address their vulnerability less effective. The right to health is enshrined in article 25 of the Universal Declaration of Human Rights (UDHR) and is reaffirmed in many other international agreements, such as article 12 of the International Covenant on Economic, Social and Cultural Rights (ICESCR). At regional level, neither the European Charter nor the European Social Charter contain provisions on the right to a healthy environment.

However, the European Committee of Social Rights (the Committee) has interpreted Article 11 of the European Social Charter, which refers specifically to the right to health protection, as including the right to a healthy environment. The Committee noted complementarity between Article 11 of the Social Charter and Articles 2 and 3 of the ECHR. Accordingly, in several concluding observations on the right to health, the Committee explicitly stated that due account should be taken of the provisions of article 11 of the Social Charter in order to eliminate the causes of disease, including those arising from threats to the environment. In the above-mentioned decision in the Marangopoulos case, the Committee identified environmental protection as one of the key elements of the right to health under article 11. The Committee also reaffirmed that States are responsible for activities harmful to the environment, whether carried out by public authorities themselves or by private companies. It is important to note that Article 16 of the African Charter deals with the right to health, while Article 38 of the Arab Charter explicitly recognizes the right to a healthy environment. In addition, art. 24 of the African Charter, by including a right to a “satisfactory environment” for development, is interpreted as the first binding international commitment with regard to the right to the environment (Ebeku 2003).

Although people fleeing places where they are exposed to risks from the effects of climate change are often referred to as “climate refugees”, in most cases they do not fall within the definition of refugee in Article 1 of the Convention. This is due either to the fact that most of them remain in their country or to the limited scope of the Convention on Refugees` concept of persecution (McAdam, p. 708). In this context, it is fair to ask whether it is time to broaden the definition of refugees. The Geneva Convention on Refugees is a legal framework that regulates those seeking refuge in another country, and since persecution must be detected, it cannot apply to climate refugees. Human migration has always been linked to the environment, but political awareness of the importance of this factor is new (IOM 2008). Indeed, it was not until the 1990s that global concerns about environmental change became a humanitarian problem with massive implications for the well-being and security of vulnerable populations. Over the next decade, international experts and regional bodies provided various regulatory solutions to identify and protect people forced to flee for environmental and climate reasons. However, this first proposal was quickly rejected, as few requirements under Article 1A of the 1951 Convention relating to the Status of Refugees could be met by such a category (McAdam 2011). The traditional definition of the term “refugee” requires that the applicant be outside the country of which he or she is a national or in which he or she has his or her habitual residence. First, it has been recognized that most people affected by the environment remain in their country of origin and therefore do not meet this prior requirement (Nansen Initiative, 3). Second, it is difficult to prove the danger of persecution by climate change or to classify climate change as a threat of persecution under the 1951 Convention relating to the Status of Refugees.

In the famous Tetiota case, the complainant`s asylum application in New Zealand was based on the failure of the international community, particularly developed countries, to limit greenhouse gas emissions, which, according to the complainant, had led to dramatic effects of climate change in Kiribati. However, the High Court of New Zealand has noted that “numerous decisions reject claims from persons from Kiribati, Tuvalu, Tonga, Bangladesh and Fiji on the grounds that the harm feared does not constitute persecution and that there has been no differential impact on the claimants” (Teitiota v. Chief Executive of the Ministry of Business, Innovation and Employment 2015). Third, while the effects of climate change can be considered acts of persecution, the 1951 Convention relating to the Status of Refugees requires that such persecution be based on race, religion, nationality, political opinion or membership of a social group, while the effects of climate change are largely indiscriminate and not related to personal characteristics. Environmental threats and their drastic impact on human rights can therefore be seen as another, but not the only, reason for granting refugee status. In this context, one might be tempted to adopt Chetail`s view that the HRL is the main source of protection, at least for people displaced in the context of climate change. After being asked about this topic during the webinar, McAdam recalled that the IHR and the Convention relating to the Status of Refugees “serve different and complementary purposes” and stressed the importance of both branches of international law for the protection of refugees in general and those whose displacement is linked to the effects of climate change in particular. In fact, the extent to which we can say that international law protects those who are forced to move in the context of disasters and climate change depends on whether we want to see it as a glass half empty or half full.

And it seems that the view of the two branches of international law as complementary to each other provides a more solid basis for this goal. Despite this initial political breakthrough, all these innovative UN instruments lack binding power, so they do not produce strong binding commitments. In addition, several countries have refrained from adopting the GCM, which has weakened its potential to promote cooperation in the field of migration management. The 2020 Sustainable Development Goals report notes that only 54% of countries have implemented adequate migration policies to reduce inequality and vulnerability (United Nations 2020), while weak measures have been taken to concretely address climate change. In particular, the last Conference of the Parties (COP25) in Madrid did not present common rules for the implementation of the 2015 Paris Agreement on Climate Change, which saw the international community express its commitment to reduce greenhouse gas emissions on the one hand and to intensify concerted action to limit the negative effects of climate change on the other. Given that the majority of states have also strayed from the path of achieving the 2°Celsius target of the Paris Agreement, it seems that short-term national economic and political interests make states reluctant to address two of the greatest challenges of our time. The general lack of commitment by states to fight climate change and protect broader categories of forced migrants is visible not only at the international level, as the US withdraws from the Paris Agreement, but also at the EU level, where the negotiation process between member states on humanitarian visas, Joint resettlement programmes and a long-awaited reform of the Common European Asylum System have been stalled for five years. years at an impasse. Although we refer to climate refugees, the concept does not fully exist in international refugee law.