[Monica Iyer is an Assistant Professor of law at the Georgia State University College of Law]
Local weather change-related migration is a matter very much in the public mind, and the query of whether or not it’s authorized to ship somebody again (or refoule them) to a spot the place they may face human rights harms due to local weather change has turn out to be a key question in local weather and human rights litigation. In current weeks, each the International Court of Justice (ICJ) and the Inter-American Court of Human Rights (IACtHR) issued advisory opinions on worldwide authorized obligations within the context of local weather change, and each courts spoke to local weather change-related migration and human rights. This transient article gives a refresher as to the place issues stand globally with regard to local weather non-refoulement circumstances, presents the interventions made by the ICJ and IACtHR on this matter, and provides an preliminary evaluation as to what the impacts of those Advisory Opinions could be on this space of local weather change litigation. It means that whereas there’s little new substance within the Advisory Opinions’ pronouncements on this space, the truth that the Courts have chosen to remark in any respect may breathe new life into these circumstances.
A Transient Historical past of Local weather Non-Refoulement Circumstances
The precept of non-refoulement is a deeply-cherished tenet of worldwide refugee and worldwide human rights regulation, and has attained the status of customary international law. Beneath refugee law, the precept gives that no State could “expel or return (“refouler”) a refugee in any method by any means to the frontiers of territories the place his life or freedom could be threatened on account of his race, faith, nationality, membership of a selected social group or political opinion.” Beneath international human rights law, the prohibition is broader, forbidding return to any State the place a person’s proper to life or proper to freedom from torture or merciless, inhumane, or degrading remedy or punishment could be below risk. As local weather harms have turn out to be extra acute, courts in immigration circumstances are more and more being requested to think about whether or not sending somebody again to a area below vital risk from local weather change may violate these prohibitions.
Essentially the most outstanding case on this space is the UN Human Rights Committee’s 2020 choice in Teitiota vs. New Zealand. Ioane Teitiota and his household have been threatened with expulsion from New Zealand to Kiribati, and challenged their removing on the grounds that local weather impacts in Kiribati threatened their proper to life. After dropping on this argument within the New Zealand courts, Teitiota and his legal professional introduced the case to the UN. The Human Rights Committee set an important global precedent in Teitiota in ruling that there’s a risk that human rights regulation may bar returns to locations the place local weather change leads to threats to the correct to life as contained in Article 6 of the Worldwide Covenant on Civil and Political Rights. However within the quick case of the Teitiota household, the Committee discovered that the brink for such a violation had not been met. Importantly, they dominated that the hurt within the case was not sufficiently particularized, as everybody in Kiribati confronted roughly the identical threats, and never sufficiently imminent, as estimates on the time recommended that below present situations it might be a minimum of 15 years earlier than Kiribati grew to become actually uninhabitable – sufficient time, within the Committee’s judgment, for the federal government to behave to guard its residents.
Earlier than and since Teitiota, various home courts have thought-about comparable local weather non-refoulement circumstances. There have been various such circumstances in New Zealand particularly, all of which reached comparable outcomes as Teitiota: not ruling out the applying of the non-refoulement precept in future circumstances, however discovering it inapplicable to the information at hand. In Europe, nonetheless, there have been extra applicant-friendly developments in environmental non-refoulement circumstances extra broadly, with a French appeals court barring the return of an applicant with extreme bronchial asthma to Dhaka, Bangladesh, given the potential impacts of that metropolis’s air air pollution, and Italy’s highest court remanding a case with the instruction that the decrease courts think about the human rights impacts of returning somebody to the Niger Delta area of Nigeria, given extreme environmental injury in that area. Regardless of this progress, nonetheless, no court docket has but issued a definitive ruling barring somebody from being returned to a spot the place local weather change impacts threaten their proper to life. Enter the IACtHR and ICJ.
Local weather Change and Non-Refoulement within the IACtHR and ICJ Advisory Opinions
Each of the opinions issued by worldwide courts in current weeks are advisory opinions, which is to say that they supply instructive interpretations of worldwide regulation with out issuing a ruling in any particular particular person case or controversy. Nonetheless, these opinions have the potential to advance the reason for candidates in local weather non-refoulement circumstances.
Of their request to the IACtHR for an advisory opinion on State human rights obligations within the context of the local weather disaster, Chile and Colombia particularly requested the Courtroom to weigh in on human rights obligations with regard to local weather change-related migration. Given this, and given the IACtHR’s long-standing progressive and rights-holder-centric approach to migration extra broadly, it isn’t stunning that the Courtroom devotes a stand-alone part of its Advisory Opinion Quantity 32 of 2025 (AO-32/25) to migration, below the heading of the “freedom of residence and motion” (paras. 414-434). The Courtroom enumerates a number of alternative ways wherein local weather change can affect the liberty of motion and residence (paras. 416-419), and reiterates its prior remark “that when persons are pressured to maneuver internationally, they face quite a few human rights violations” (para. 420). Due to this, amongst different obligations, “States are obligated to undertake measures to forestall, consistent with the usual of enhanced due diligence, migration and compelled displacement ensuing straight and not directly from disasters and different impacts of local weather change” (para. 422) and to “develop regulatory, public coverage, institutional, and budgetary devices to handle the wants of populations in conditions of involuntary mobility” (para. 424). However the Courtroom additionally considers the potential for returns within the context of local weather change. Particularly, it requires that States “set up an applicable regulatory framework that gives efficient authorized and/or administrative mechanisms on the home degree to ensure the authorized and humanitarian safety of individuals displaced throughout worldwide borders as a result of impacts of local weather change” and specifies that such a framework ought to “present them with safety towards refoulement” (para. 433).
The ICJ, in contrast, was not particularly requested to think about local weather change-related migration or local weather non-refoulement in its Advisory Opinion on worldwide authorized obligations in respect of local weather change, though migration was raised in inputs to the Courtroom. This makes it all of the extra placing that the Courtroom not solely made reference to local weather non-refoulement circumstances in its opinion, but additionally selected to focus on this type of case within the abstract of the opinion that was introduced from the Bench. For the ICJ, local weather non-refoulement is taken into account below its examination of the correct to life (paras. 377-378). After a common paragraph establishing that local weather change impacts the correct to life (para. 377), the Courtroom devotes a paragraph to non-refoulement, firmly stating that, “[i]n the view of the Courtroom, States have obligations below the precept of non-refoulement the place there are substantial grounds for believing that there’s a actual danger of irreparable hurt to the correct to life in breach of Article 6 of the ICCPR if people are returned to their nation of origin.” It must be famous that all the part of the opinion particularly dedicated to human rights is barely fifteen paragraphs in whole, and the paragraph on non-refoulement is the one one wherein the Courtroom makes a definitive pronouncement on a selected style of local weather rights litigation. However what does this imply going ahead?
Potential Impacts and Subsequent Steps
Each the ICJ and the IACtHR cite to Teitiota, and neither Advisory Opinion accommodates any indication that both Courtroom would have damaged with the Human Rights Committee on that case. That is one in every of several areas the place the courts might have been extra detailed or forceful of their pronouncements. It additionally stays to be seen usually how States will reply to the Advisory Opinions, and the extent to which they are going to meaningfully implement the options known as for. And the protections of the non-refoulement precept, whereas vital, are relevant solely to those that have already migrated and face displacement, and are solely obtainable on a person foundation. Additional, neither ruling gives any steerage on the important thing questions of imminence and particularity left open by Teitiota and the opposite local weather non-refoulement selections issued up to now: how quick do threats to the correct to life from local weather change should be, and the way particular have they got to be to the applicant in any particular person case? Accordingly, there’ll seemingly be those that would argue that the brand new Advisory Opinions do little, or not enough, to advance the regulation associated to local weather non-refoulement or climate-related migration extra broadly.
Elsewhere, I’ve argued that the perfect venue to advance the regulation on this space and reply the imminence and particularity questions is adversarial litigation in regional human rights courts. As I talk about extra totally in that piece, these courts have well-established our bodies of jurisprudence associated to non-refoulement and a powerful (and rising) historical past of contemplating circumstances on the intersection of human rights and the atmosphere. One other potential avenue for regional courts to contribute to creating this jurisprudence might include a current request for an advisory opinion on local weather change offered to the African Court of Human and Peoples’ Rights (ACtHPR). As I emphasised in prior work, whereas the ACtHPR has heard fewer circumstances addressing non-refoulement than the opposite main regional human rights courts, it has addressed the intersection of displacement and environmental harms by means of its jurisprudence on the correct of peoples to a wholesome atmosphere contained in Article 24 of the African Constitution of Human and Peoples’ Rights. The ACtHPR additionally has large latitude to think about a number of sources of regulation in its rulings, and can absolutely be capable of draw on each the ICJ and IACtHR Advisory Opinions in making its local weather ruling. Regional courts are restricted in that they need to look ahead to applicable circumstances to be introduced, having had home cures exhausted, and so they have confronted compliance challenges. Nonetheless, they’ve the benefit of with the ability to think about the specificities of regional contexts (recognizing that the majority cross-border migration nonetheless occurs inside geographically-proximate areas). That is significantly vital given that the majority local weather change-related migration occurs throughout the International South, such that the regional perspective and specificities of the ACtHPR and IACtHR tackle particular weight on this space. On the identical time, these courts provide authorized interpretations with persuasive worth past nationwide borders, and interact in productive alternate with each other, home courts, and different worldwide courts just like the ICJ. In making particular reference to the necessity to guarantee non-refoulement within the context of local weather change, the IACtHR cements its standing as a venue ripe for this type of case.
Additional, whereas they might not present vital steerage on open authorized questions concerning local weather non-refoulement, the reference to this concern in each Advisory Opinions suggests extra broadly that these circumstances are nonetheless ripe for examination. Trends in climate and human rights litigation since Teitiota have tended in different instructions, with specific focuses on guaranteeing sufficiently bold local weather motion and addressing company wrongdoing. These sorts of litigation stay essential, and there’s wealthy assist for litigants in such circumstances, in addition to various different types of local weather and human rights litigation within the Advisory Opinions. However local weather non-refoulement litigation shouldn’t be uncared for. It doesn’t present the entire options to the human rights abuses related to local weather change-related migration, nevertheless it does have the potential to affect the lives of various people threatened with return to local weather harms and to contribute to vital developments in local weather change regulation and coverage. The Worldwide Courtroom of Justice and the Inter-American Courtroom of Human Rights would appear to agree.
