Author: Earth Refuge

19 February 2021 – Interview submitted by Earth Refuge Archivist Robert Los

Mehrdad Payandeh holds the Chair for International Law, European Law and Public Law at Bucerius Law School. Born in Tehran in 1978 he studied law at Heinrich-Heine-University of Düsseldorf. In 2008, he finished his doctoral thesis in international law, and in 2009 passed the Second State Exam, after a legal clerkship that took him to the Permanent Mission of the Federal Republic of Germany to the United Nations in New York, Hengeler Mueller, as well as the Federal Constitutional Court of Germany. After obtaining an LL.M. at Yale Law School he returned to Heinrich-Heine-University as a research assistant and from 2012 until 2016 he worked there as a Junior Professor for International Law and Public Law. In 2016 he finished his habilitation with a thesis in constitutional law, before joining Bucerius Law School. Since 2020 Professor Payandeh is a member of the Committee on the Elimination of Racial Discrimination of the United Nations.

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General Questions

What is your name and where in the world do you call home?

Mehrdad Payandeh, born in Tehran, raised in Düsseldorf, and since 2016 I call Hamburg my home.

What is your role and what does this entail?

I am a professor of law focusing on international law, EU law and public law. I consider my role to be primarily in research and teaching, with the occasional involvement in consulting of civil society as well as state actors. Moreover, I am a member of the UN Committee on the Elimination of Racial Discrimination, which monitors whether states comply with their obligations under the International Convention on the Elimination of Racial Discrimination. This treaty is focused on racial discrimination, but there are some intersections with environmental issues and climate change, e.g. when it comes to the rights of indigenous peoples in the context of activities of the extraction industries.

As Professor of Law and have you noticed any changes in recent years in terms of for example weather and/or temperature? 

I have noticed those changes not really as a professor of law but rather as every other person taking note of the news as well as of public discourse. As a professor of law I have noticed an increase in interest in issues surrounding environmental law and climate change, with regard to academic discourse as well as from students.

Status Quo of International Law regarding Climate Migration – Existing Laws and Institutions

What are the open questions from the perspective of international law regarding the future challenge of climate migration?

Under international law, new phenomena always raise the question of whether they can be accommodated within the existing legal framework or whether there is need for change of the legal rules. In this regard, climate migration raises in particular the question of whether and in how far the 1951 Geneva Refugee Convention might be applicable, but also whether general international human rights law might have something to say about the obligations of states with regard to climate migration.

We should bear in mind that climate migration is not a fixed term but rather encompasses very different scenarios, to which different rules of international law may apply. For example, from the perspective of international law it makes a difference whether a person moves within his or her country of nationality or whether they cross state borders. Only those outside their country of origin can qualify as refugees under the 1951 Convention. It also makes a difference whether a person is forced to move due to climate change related environmental deteriorations or, say, because those degradations have triggered a persecutory ethnic conflict. This is because the 1951 Convention requires a risk of persecution for discriminatory reasons.

With regard to the further development of international rules, there are many open questions: Will the existing rules be re-interpreted or formally changed? Will there be a new international treaty specifically dealing with climate migration? If so, how specific will it be and how concrete would the obligations of states under such a treaty be? For the moment, however, the focus seems to be on non-binding instruments such as the Global Compact on Refugees adopted by the UN General Assembly in 2018. This Compact recognizes the connection between climate change related environmental degradation and migration and has initiated the Global Refugee Forum as a way to build solidarity between states in sharing responsibility for refugees.

What do you think of the emerging movement that wants to subsume climate migrants under the existing refugee definition given the current absence of political will to change it?

At least with regard to the definition under the 1951 Refugee Convention, treating climate migrants as refugees is rather problematic. The position that climate migrants find themselves in seems hard to reconcile with the scenarios envisioned under the Geneva Refugee Convention, which is focused on persecution and discrimination. I also have my doubts whether the rules of the Geneva Convention are well-suited to deal with the phenomenon of climate migration. The Convention grants protection only to those who reach the borders of another country. Furthermore, the protection regime under the Convention does not adequately reflect the common responsibility of the industrial countries for climate change and for the causes of climate migration.

Of course, in certain situations, the Geneva Refugee Convention may be able to offer protection also to climate refugees. And of course, the mandate of the UNHCR is broader and the UNHCR is deeply engaged with the relationship between climate change and the displacement of people, both on a policy level as well as on the ground. And rightly so.

There are other, regional instruments beyond the Geneva Convention – such as the Refugee Convention of the Organisation of African Unity of 1969 or the Cartagena Declaration of 1984 – that employ a broader definition that might be more open to including climate migration or at least climate change-related aspects of migration. The practice of states and other international actors under these regional instruments might in turn have an influence on the interpretation of universal rules, either within the context of international refugee law or human rights law.

To what extent are there existing international agreements, national laws or institutes that guarantee protection to climate migrants?

Again, there is no unified approach, but there are a number of global initiatives dedicated to climate migration. There is, for example, the Nansen Initiative which developed a (non-binding) Protection Agenda with the involvement of a large number of states as well as non-state actors. This initiative, like its follow-up project, the Platform on Disaster Displacement, approached climate migration from a broad perspective, dealing both with internally displaced persons as well as migrants that cross state borders against the background of disasters and climate change. The Paris Agreement acknowledges the relationship between climate change and migration, but it does not address climate migration in a more meaningful way. However, at the Conference of the Parties session in Paris (COP21), a Taskforce on Climate Displacement was established. Initiatives aimed at progress in the field of environmental law, such as for example the Global Pact for the Environment project that aims at establishing a legally binding instrument, do not focus on climate migration. So, we can see a number of mostly state-led initiatives aimed at cooperation and exchange, but no real momentum to address the issue in any legally binding manner.

On the regional level, there are some rules on the protection of migrants that could be interpreted as encompassing at least some forms of climate migration. Within the European Union, for example, there are some attempts to interpret the conditions for so-called “subsidiary protection” under the EU Qualification Directive (2011/95/EU) in a manner encompassing the threat of serious harm in the context of environmental disasters, but this seems to be rather an outlier position at the moment. Moreover, there are a number of EU member states which under their national laws recognize – albeit in a rather limited manner and subject to some restrictive conditions – subsidiary or temporary protection for persons who, if they were deported, would be subject to serious harm because of environmental destruction.

In the absence of a more far-reaching European political momentum to recognize climate change-related circumstances as grounds for protection, there is also further potential for human rights-based approaches, both under the European Convention on Human Rights as well as under the Charter of Fundamental Rights of the European Union. In this connection, the recent case of Teitiota v. New Zealand, decided by the UN Human Rights Committee could serve as a precedent for the human rights discourse in Europe.

Moving beyond Europe, there is in particular the Kampala Convention, a binding treaty adopted within the African Union, which deals with the protection of internally displaced persons and explicitly covers people who had to flee due to natural or human-made disasters. However, this is still far away from comprehensively covering all forms of climate migration.

Are there any claims under international law against emitters by states that have been particularly hard hit by climate change?

This question touches upon a rather different topic, the vast and rather controversial field of climate change litigation. While we have, up to now, talked about the protection of (individual) climate migrants from deportation, claims against emitters aim in a different direction. In the last years, we have seen a huge increase in cases being brought before domestic as well as regional courts to tackle the effects of climate change. These cases are based on different legal rules and principles – e.g., environmental law, human rights law but also domestic torts law – and aimed at different litigation goals – e.g., ordering states to employ more ambitious measures against climate change, or compensation for climate change-related damages or adaptation measures. On the international level, there have not been any major cases directly dealing with climate change. But there are debates surrounding the question of whether and how a case could be brought before the International Court of Justice – with a number of states, in particular island states that are and will be most directly affected by climate change, openly discussing options for such action.

Which way forward is imaginable, and which is feasible?

Regarding the specific issue of climate migration at the level of international law, I think we need to be realistic. The short-term prospects for a universal legally-binding instrument addressing climate migration in a comprehensive and effective manner are rather limited – regardless of whether we are thinking of a specific climate migration convention, or an addendum or protocol to any of the existing treaties dealing with climate change or migration.

For the time being, dealing with climate migration remains primarily a political endeavour. That does, however, not mean that academics, civil society, states and organisations should not think about and advocate for feasible instruments, measures and approaches concerning legal responses to climate migration. This includes exploring the potential of general human rights for issues surrounding climate migration.

Teitiota v. New Zealand (2020) – First of many climate migration cases?

Which implications does the case have for the recognition of climate migration in international law? What was the ground-breaking aspect of it?

The case originates in an individual communication to the UN Human Rights Committee under the International Covenant on Civil and Political Rights (“the Covenant”), one of the main human rights treaties on the universal level. Mr. Teitiota, a national of Kiribati, had unsuccessfully claimed refugee status in New Zealand due to the deteriorating environmental and economic situation on the island of Tarawa in Kiribati, which he attributed to rising sea levels. He claimed that this situation would deprive him of his means of subsistence and that it could result in violence, thereby threatening his right to life under article 6 of the Covenant.

The Committee eventually rejected the claim of the petitioner. Nonetheless, its decision was ground-breaking in that it acknowledged the implications of the right to life in the context of climate change and climate migration: It highlighted both the obligation of Kiribati to take measures aimed at adapting to climate change impacts and enhance resilience in order to protect the right to life of its inhabitants, as well as the obligations of New Zealand when it comes to the decision of whether to deport a person to a state that suffers climate change-induced harm. The Committee acknowledged that the right to life could bar such a deportation if there was the serious threat that due to environmental conditions a person would not have adequate access for example to water and food. The Committee thereby acknowledged that the level of protection under the Covenant and in particular under the right to life can go beyond the scope of the protection against deportation (non-refoulement) under international refugee law. While this was already clear before the decision – the protection against deportation under international human rights law goes further than the protection under international refugee law insofar as no discriminatory persecution is required –, the decision is ground-breaking for making the link to climate change and climate change-related situations.

However, the Committee established a rather high threshold for a violation of the right to life: It emphasized that the petitioner must prove that the deteriorating situation in his resident country would have a specific impact on him; an overall bad situation would not suffice. And there would have to be a high risk of irreparable harm. Furthermore, it held that while the situation in Kiribati was threatening, it was not clear yet whether Kiribati – with the help of the international community – was in a position to take measures to halt the development or even to relocate its population.

The decision is therefore remarkable for highlighting very clearly the human rights dimension of climate change, in particular with regard to the right to life. And it acknowledges that the deportation of a person to a country in which they would be subjected to a serious threat to their life, also with regard to a lack of possibilities to provide for water and food, could amount to a human rights violation. However, the Committee also made clear that the threshold for such a violation is very high and, in particular with regard to incremental climate change-related impacts, a prohibition to deport someone can only be assumed when the threat to his or her life is imminent.

Change in international court rulings?

The decision of the Human Rights Committee builds upon earlier decisions by the Inter-American Court of Human Rights as well as the European Court of Human Rights which had already highlighted some human rights implications with regard to climate change. The Committee, however, goes beyond those previous holdings. Its decision is not so much a “change” in international rulings as it is a further development.

Which further questions derive from that particular ruling?

The decision highlights that the threshold for a violation of the right to life in the context of climate migration is rather high. And although the Committee develops a number of criteria, it is not easy to predict in which constellations exactly it would come to the conclusion that there has been a violation. What is clear is that the Committee looks at the probability of the risk and the severity of the impact, and that it does not only consider the overall situation in a country or region but that the environmental degradation must affect the individual petitioner himself.

The decision moreover shows the inherent limits of a human rights approach to climate migration: It highlights the non-refoulement obligation, i.e., the obligation to not deport someone to a country where he or she will be exposed to a serious threat to his or her life, but that, of course, presupposes that the person has already reached the territory of a state in which he or she wants to apply for refugee status. For people wanting to leave their country due to deteriorating circumstances, this approach does not do much – a problem which we already know from the field of refugee law in general. This obligation also only applies in the last minute, when the worst effects have already set in.

And while the Committee highlights the general implications of the right to life in order to combat climate change, it does so in a rather general manner, leaving much leeway to states with regard to what measures they want to take to tackle climate change and to adapt to the negative impact of climate change. Generally, this is in keeping with human rights doctrine on positive obligations: how they are fulfilled is primarily a political question and not for the courts to decide. A violation of such obligations will usually only exist if a state does nothing at all, or blatantly way too little. In this regard, though, I think that there is still a lot of potential for the development of normative guidelines for dealing with climate change and climate migration.

Is the ruling a possible back door entrance for legal protection under Art. 3 ECHR and the respective national laws (for example § 3e AsylG)?

As I have mentioned, the European Court of Human Rights has already acknowledged that human rights have implications in cases of environmental harm and in the context of climate change. And it has also developed a line of jurisprudence dealing with human rights limits to deportation decisions. In this regard, the Court could, in the future, build upon the Human Rights Committee’s decision to further develop its jurisprudence.

In a similar manner, domestic courts could consider the decision of the Committee when interpreting domestic law and fundamental rights: While decisions of UN human rights treaty bodies are not formally binding, they constitute authoritative interpretations of the human rights obligations of states under the international treaties they have ratified. Accordingly, domestic courts, including the German Federal Constitutional Court, have held – albeit with different degrees of enthusiasm – that decisions of UN treaty bodies should be taken into account when interpreting and applying the law. In this regard, the Teitiota decision could serve as a starting point for the development of human rights obligations in the context of climate migration.

It should, however, be highlighted again that such a human rights approach cannot substitute for a more comprehensive approach to climate migration: Political measures are needed to address the root causes of climate migration, to mitigate the impact of climate change, specifically with regard to states and regions that are particularly vulnerable to its effects, and to come up with ideas and plans of how to deal with the rising number of people that will have to leave their homes because they have been deprived of their means of subsistence or because their place of residence has become uninhabitable. International law provides the normative framework for this discussion, and international human rights law in particular should serve as a constant reminder of what’s at stake.

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This interview was slightly edited for formatting purposes.