9 March 2021 – by Stephanie Hader

We are looking ahead, as is one of the first mandates given to us as chiefs, to make sure every decision we make relates to the welfare and well-being of the seventh generation to come, and that is the basis by which we make decisions in council. We consider: Will this be to the benefit of the seventh generation. This is a guideline.

– Iroquois Nation maxim ^[1]

INTRODUCTION

The 2019 student ‘Strikes 4 Climate Action’ in Australia were a testimony to the urgency of redirecting the climate change discourse to the foreground of political and judicial decision-making. The current warming trend, as was outlined in the IPCC Fifth Assessment Report, is significant because “most of it is extremely likely to be the result of human activity since the mid-20th century and proceeding at a rate that is unprecedented over decades to millennia”.^[2] The scientific evidence is unequivocal. If natural habitats are not protected to the extent that the integrity of all their ecological functions are maintained, we are facing a dim future. As existing in a temporal dimension, precautionary action to protect the ‘right to a healthy environment’ must be taken in the face of uncertainty.

Thousands of primary and secondary school students marched the streets in cities across Australia, attesting that “the youth are rising, we are not compromising”.^[3] And they certainly shouldn’t. The judiciary has a prevailing role in responding to their plea. It is with this contention that this paper will argue that all generations – including children and legitimate representatives of future persons –  should be regarded as co-equal in court procedures. In extending the common law rules of standing to all generations, climate litigation will finally have its place in court. This form of intergenerational equity will set new enforceable standards for governments to act as fiduciary trustees in the protection of our shared environment. The outcome will be the reduction of CO2 emissions and slowed or reversed species endangerment.

Scope and Definitions

I will narrow my analytical scope to the role of domestic courts in common law jurisdictions, with an emphasis on Public Law in the United Kingdom. For argumentative purposes, this paper will heavily draw ideas, decisions and principles from other jurisdictions as climate change is a phenomena with consequences that transcend institutional boundaries. The analysis will mostly be anchored in legal philosophy, and will thereby be less technical in nature. The first section of the paper will address our relationship to the environment, followed by our relationship to future generations and lastly to governments. This essay purports to humbly act as a policy paper in appealing to judges, particularly in the United Kingdom, to amend the common law rules of standing. Judgements that contemplate intergenerational elements not only bolster environmental standards, but also exert a persuasiveness that eclipses state borders.

PART I: OUR RELATIONSHIP WITH THE ENVIRONMENT

All of our actions and inactions affect the global ecosystem and its intricate webs. As humans, we have the capacity to shape and destroy our own natural habitat. According to the I=PAT equation, the environmental impact (I) is caused by a very large and ever-increasing human population, the increase in economic growth per capita affluence (A) and the application of resource-depletion and pollution technology (T).^[4] The results exposed that the environmental change sweeping the world is occurring at a much faster pace than previously thought. The United Nations High-level Panel on Threats, Challenges and Change has officially cautioned environmental deterioration as one of the ten most serious threats to the human race.^[5] Efforts must be made on all fronts to counteract the irreversible damage done to Earth – a planet we all call home.

Impact of Climate Change

The current statistics concerning climate change are alarming and “no longer academic”.^[6] We are confronted with the depletion of our resources, the destruction of entire ecosystems and habitats, the extinction of wildlife and a distressing increase in air pollution. The Global Environmental Outlook’s Regional Assessments paint a bleak picture of the severity of the issue. In Latin America, “nitrous oxide emissions increased by 29% between 2000-2010”.^[7] In the Pan-European region, they found that “land-use related emissions, nitrogen oxides and particulate matter persist at high levels and are still increasing”.^[8] While overall greenhouse emissions have reduced, the increasing per-capita consumption of final goods and services still remains a “major obstacle to a low-carbon economy”.^[9] On a global scale, around half of the world’s original forests have disappeared, despite their integral role in producing oxygen. Due to their ability to act as a carbon sink, it is estimated that 15% of greenhouse gas emissions are the result of deforestation.^[10] The quality of our natural atmosphere is severely affected by these changes.

This unbalanced relationship with the environment has led to a “decline in agricultural productivity; increased risk of floods and droughts; threats to food security; increased demand for water; and negative effects on biodiversity”.^[11] In North America, global warming “exacerbated the five year drought in Texas by 15-20%” and the 2010 heatwave in the northern hemisphere resulted in 54,000 cumulative excess deaths”.^[12] Climate change is exerting multiple interlinked pressures and health threats upon society and “it is clear that the frequency of such events will increase as the climate warms”.^[13] Rising temperatures are shifting our planet into an ominous state that is rapidly becoming less hospitable to human life. Costello described climate change as the “largest health threat of the 21st Century”.^[14] In this way, all members of the human family “have an interest, and a responsibility, to act to ensure we protect what we all value: a healthy future for both people and nature”.^[15] The global average temperature cap has been set by the United Nations Paris Agreement to be well below 2°C. ^[16] Remaining under this stipulated standard is the crux of the challenge.

Right to a Healthy Environment

A right ensuring that such a future is attainable can appear in many different forms and may be invoked in circumstances where a specific environmental violation incurs serious health consequences. There is a universality claim to such an argument, as our relationship with the natural environment is part and parcel of our existence. A right formed on such a basis transcends cultural relativism, political ideologies, and social constructs. Nature is fundamental, if not indispensable to our survival (at least until we invent an artificial alternative). Ergo, this paper is written on the premise that even if the terminology adopted differs across contexts, the right to a sustainable environment is enshrined in our laws in one format or another. Since this right is a natural right we enjoy as members of the same species, in the case that it is only vaguely construed, there is a strong presumption that it should be read in favor of its existence. Therefore, despite the United Kingdom not expressly providing for a positive right to a healthy environment, an individual claim to a violation brought on these grounds is still reasonable due to its universal potency.

References to rights that have an indirect bearing on the environment can be found in both domestic and international legal instruments. Whilst the Universal Declaration of Human Rights, the International Covenant on Economic, Social and Cultural Rights (ICESCR), and the International Covenant on Civil and Political Rights (ICCPR) do not explicitly mention the right to a healthy environment per se, it can still be inferred through a liberal analysis of the language adopted. An example is the ‘right to life’ mentioned in Article 6 of the ICCPR.^[17] In the Indian case Subhash Kumar v State of Bihar, the judges extracted the environmental element in declaring “that the right to a healthy environment was an integral part of the right to life”,^[18] enshrined in Article 21 of their Constitution.

Another strand of evidence in support of its universality can be found in United Nations’ sponsored declarations and conferences. The Stockholm Convention on Persistent Organic Pollutants expressly announced in 1972 that “humans have the fundamental right to freedom, equality and adequate conditions of life in an environment of a quality that permits a life of dignity and well-being”.^[19] Twenty years later, the Rio Declaration on Environment and Development similarly stated that “human beings are entitled to a healthy and productive life in harmony with nature”.^[20] Such a long-standing standard in customary international law upholds the assumption that despite the lack of a well-defined right, all persons merely by virtue of their humanity are entitled to an ecologically sound environment and the natural resources it offers. As Sax pointed out, “certain interests are so particularly the gifts of nature’s bounty that they ought to be reserved for the whole of the populace”.^[21]

Other manifestations to a right to a healthy environment have also developed in the course of judicial decision-making. In a famous judgement in 1997 concerning the Gabcikovo Nagmaros Project, it was held that due to the global development of new environmental norms, both states, namely Hungary and Slovakia, “are equally entitled to the preservation of their human right to the protection of their environment”,^[22] for “it is a sine qua non for numerous human rights such as the right to health and the right to life itself”.^[23] Likewise in Columbia and South Africa, domestic courts held the right to a healthy and sustainable environment to be categorically absolute.^[24] The Colombian Constitutional Court coined it as being a “precondition to life itself and must be guaranteed even in the face of uncertainty as to the risk of violating the right”.^[25] From these examples flows the rationale that a right to a healthy environment is universal and imprescriptible in nature. Accordingly, its legal force can also triumph in the United Kingdom.

Finally, all generations should enjoy equal access to its benefits. Future inhabitants are in this instance defined not as an abstraction, but as consisting of individuals, that are human beings; that is, we can safely assume that they share the same properties to humans today.^[26] Their mere incapacity to legally invoke the right to a robust environment, does not affect the existence of such a right. It is thereby not only universal, but also intergenerational. This paper is not committed to the claim that “future generations by definition do not exist now and they cannot now, therefore, be the present bearer or subject of anything, including rights”.^[27] Instead it will adopt an unconstrained view that the human right to healthy environment is applicable to all of mankind; past, present and future.

PART II: INTERGENERATIONAL JUSTICE

The previous section established the extremity of the climate change crisis. Naturalist David Attenborough goes so far as to suggest that “the collapse of civilization is on the horizon”.^[28] It also concluded that all of mankind has a right to a healthy environment. How this affects our relationship to future generations will be addressed below. 

Two initial points must be made. First, due to the fact that the most destructive effects of climate change are yet to come, children and future generations will experience its most lethal impacts. As they too have a right to a secure environment, adequate climate action is just as much, if not more, their concern than it is ours. Despite this, the voices of children and future generations are mostly left unheard. This paper makes an attempt to address this issue.

Second, a correlating duty to protect the environment naturally derives from the inference that a right to a healthy environment exists. Domestic courts can fulfill this duty in setting stringent environmental standards through public interest litigation. At its core is the “right to demand protection from public authorities in case of any breach or compromise or right”.^[29] With such a judicial system in place, measures are available to the public if authorities mishandle the pursuance of a sustainable ecosystem. Provided that the “right to effective judicial protection is one of the cornerstones of societies governed by the rule of law and judicial access is a key aspect of that right”,^[30] it has immense power to effectively serve the best interests of the public.

Issue of Standing

It is of great concern that domestic courts in the United Kingdom are currently unable to hear climate change cases on the ground that there is no clear correlation between a plaintiff and the injury caused by rising temperatures. It is either a) that the intended plaintiff does not have sufficient interest in the particular injury, or b) that those who will suffer the injury are unable to be identified as plaintiffs. The issue at hand is one of legal standing (locus standi), which refers to the ability of a particular individual or pressure group to bring legal action in a court of law. It is a matter of “threshold inquiry in the determination of the appropriateness of judicial intervention”.^[31] In other words, locus standi is “a place of standing; standing in court; a right of appearance in a justice or before a legislative body on a given question”.^[32] Fundamentally, it is about the right to be heard.

The Injury

The first issue is concerned with linking the injury to the legal or natural person. Section 31(3) of the Supreme Court Act 1981 in the United Kingdom provides that “no application for judicial review shall be made… unless… the applicant has sufficient interest in the matter to which the application relates”.^[33] This is interpreted more liberally for pressure groups like Greenpeace and Friends of the Earth amongst others. Individuals must demonstrate that they have a sufficient interest in the decision they are preparing to challenge.

There is an inherent inability to prove interest in a case where the violation is concerned with environmental degradation or climate change. Due to its complex nature, it is extremely difficult to prove how exactly the ‘injury’ has affected an individual. The applicant must normally “show that the challenged conduct has caused that injury in fact”.^[34] However, as there are many different layers of impact, responsible public bodies may not be held accountable for a specific course of action that has the capacity to cause serious consequences for a large group of people in the future.[2] 

The presence of this obstacle is clear in the following cases. In Balmer-Schafroth and Others v Switzerland, “applicants failed to show that the operation of the power station at issue exposed them personally to a danger that was not only serious but also, specific, above all, imminent”.^[35] A similar conclusion was drawn in Stichting Greenpeace v EC Commission in which the Court of First Instance declared Greenpeace’s action inadmissible, as it was not directly involved with the controversy in question. It was held that “while environmental protection is one of the fundamental objectives of the community”,^[36] it does not automatically confer a right on a natural person that is enforceable by law. The environmental violations were not only too remote, but also not deemed to be an issue of public importance at the time.

The difficulties in establishing a causal link between the commission or omission of the public body and the individual or group can lead to courts declaring a case inarguable. Given the inability to establish a direct aggrievance, actions of environmental degradation which are practiced and condoned can be overlooked by the judicial branch on the ground that the violation itself has not yet manifested into a danger grave enough for the party in question to allow court proceedings to commence. As per Lord Denning, “the court would of course not listen to a mere busybody who was interfering in things which did not concern him”.^[37]

The Plaintiff

The second issue is concerned with the inability of the standing doctrine to link environmental harm to children and future generations. Despite the inevitable impact of climate change circumventing generational boundaries, youth without representation and the unborn are unable to voice their complaints in court. The future person does not fit into the “regular” concept of a legal person, as the law does not yet have the capability to address and represent an entity which does not yet exist.^[38] In the case of Faroque v Bangladesh for example, the court whilst weighing the issue of a pollution-free environment, did not grant locus standi to future generations, simply on the grounds that the Constitution of Bangladesh does not expressly provide them with any rights.^[39]

The shortcoming of the courts in articulating the definition of a non-subject has meant that there is no enforceable duty of care for the health and wellbeing of future generations. In this legal reality, the right to a healthy environment, which one pertains by virtue of being a person, cannot be invoked insofar as there is no actual person who may benefit from it. This strict view of the principle that legal personhood is “based on the biological birth and death of the human being”^[40] violates the basic fundamental assumption that there will, all singularities aside, be a future generation. In the face of climate change, this narrow understanding of locus standi – that the ‘individual’ in the Supreme Court Act 1981 is merely defined as legal construct rather than a legal person – must be overcome, This will allow room for alternative interpretations. 

locus standi for Future Generations

The way in which both of these encumbrances can be addressed appropriately when considering climate change is through the integration of intergenerational justice into the domestic law of the United Kingdom. It will not only urge “agents to act now on the basis that the antecedent will at some point in the future come true”,^[41] but will also establish a link between the plaintiff and the injury so that legal representatives of future generations will be granted the capacity to institute and commence legal proceedings. In recognizing that justice must be achieved across generations, courts can effectively play a role in preserving the future state of the environment from current impairment. This is a normative discussion and will be based on the premise that “in order to care about the future it is necessary that there be a future”.^[42]

Philosophy of Intergenerational Justice

To avoid animosity, I will address the ethical element of intergenerational justice and ask whether we have a moral duty to ensure that the right to a healthy environment will also be enjoyed by future generations; otherwise it may be difficult to justify a sacrifice for the sake of a future which has not yet manifested.^[43] While there is a strong presumption that there is such a duty, it must first be briefly defended that there is also a general willingness to support the preservation of the existence of humankind. I will base my value judgement on two grounds: that the “human species should survive, and that future generations are entitled to live in dignity”.^[44] This notion fortunately “strikes a deep chord with all cultures, religions and nationalities”.^[45]

First, from a moral standpoint, it can be assumed that the ‘human species should survive’. As Professor Weiss argued, “the interest in survival is deeply rooted in the thinking of all peoples”.^[46] In this way, there is a greater moral force than a mere obligation of present generations.^[47] As discussed in the previous section, it has become apparent that humans now have the capacity to shape their natural surroundings on such a scale that warrants scrutiny. We are changing our global environment irreversibly, with “profoundly damaging effects on the robustness and integrity of the planet”.^[48] To an extent, humans can now “collectively decide to let the human race peter out”.^[49] In the past we only had little discretion over the natural process in which humans replenished the earth. These developments in our powers inevitably changed the nature of human action.^[50] With the fate of mankind in our hands, comes the moral responsibility to ensure its survival, at least in part.

Secondly, it also seems fair to assume that ‘future generations are entitled to live in dignity’. For this quality of life to manifest, three basic principles of intergenerational equity must be satisfied according to Weiss: the conservation of options, conservation of quality and conservation of access.^[51] If left ignored, we are “threatening the survival of humankind under conditions worthy of human beings”.^[52] The reason that we are morally obliged to play an implicit role in shaping their future is that there exists an unspoken “partnership among those who are living, those who are dead and those who are to be born”, ^[53] as was phrased by Edmund Burke. At present we are holding the earth on trust for all generations to come, just as previous generations did for us, and it is by virtue of this relationship that we must “realize and protect the welfare and well-being of every generation”.^[54] As Weiss elegantly put it, “all generations are inherently linked to other generations, past and future, in using the common patrimony of earth”,^[55] and it is with this regard that we can say that the right to a healthy environment spans across all generations.

Intergenerational Justice in International Law

Intergenerational justice is not only normative in nature, as versions of it can also be found in international treaties and conventions. The UN Framework Convention on Climate Change (UNFCCC), for example, has a clear provision for the principle of intergenerational equity. Article 3 states that “the parties should protect the climate system for the benefit of present and future generations of humankind, on the basis of equity and in accordance with their common but differentiated responsibilities and respective capabilities”.^[56] Similarly, the Brundtland Commission maintains that “sustainable development is development that meets the needs of the present without compromising the ability of future generations to meet their own needs”.^[57] It was only a year before this report was released that there was a quest for “all Governments and peoples of the world to discharge their historical responsibility, collectively and individually, to ensure that our small planet is passed over to future generations in a condition which guarantees a life in human dignity for all”.^[58] Evidently, the concept of intergenerational equity is not  novel, and is instead deeply anchored in customary international law. 

Intergenerational Justice in Case Law

The above analysis creates a strong argument for the introduction of intergenerational equity into domestic bodies in the United Kingdom. Internationally, some cases have already been successful in pleading the interest of future generations. In Diego Cali & Figli Srl v Servizi Ecological Porto Di Genova SpA, the ECJ stated that the prevention of pollution serves the interests of not only current, but also future generations.^[59] In Nauru v Australia, the ICJ linked the rights of future generations to the liability for environmental damages. ^[60] Most importantly, in Minors Oposa v Department of Environment and Natural Resources in the Philippines,^[61] the courts allowed a claim based directly on the concept of intergenerational responsibility. These cases show that there is already a willingness to contemplate the welfare of all generations in court decisions.

I will briefly focus on the Minors Oposa case, as the decision by the Philippines Supreme Court has the conceptual capacity to serve as a transferable model to common law jurisdictions. The facts of the case are as follows: the plaintiffs sought an order from the government to discontinue timber licensing agreements, as the grave environmental damages resulting from deforestation were “causing adverse effects, disastrous consequences, serious injury and irreparable damage … to the Plaintiff minor’s generation and to generations yet unborn”.^[62] In response, the judges held that future generations should also be warranted legal personhood in the eyes of the court. They reasoned that “we find no difficulty in ruling that they can, for themselves, for others of their generation and for succeeding generations, file a class suit. Their personality to sue in behalf of succeeding generations can only be based on the concept of intergenerational responsibility insofar as the right to a balanced and healthful ecology is concerned”.^[63] Intergenerational environmental interests were deemed sufficiently worthy of judicial protection.

In taking this strong position, the Philippines has thus welcomed climate litigation into its legal narrative. In doing, it plays an active role in reducing the detrimental effects of climate change. In granting locus standi to legitimate representations of future generations the Supreme Court has successfully imputed the missing link between the plaintiff and the injury. Applicants are now affected by the violation in question and thus have sufficient interest in the matter. Further, the next generations who will bear the brunt of the climate change impact will have a voice in court so that representatives will be granted the ability to defend the right to a healthy environment in their name.

Climate change is forcing a paradigm shift in the way that our eco- and legal-systems cooperate. The judgement passed down by the Philippines Supreme Court is a commendable decision in whereby the courts effectively responded to emerging norms. This paper encourages all common law jurisdictions to follow in their footsteps. It is only if future generations can hold public bodies accountable that climate change can be addressed with the judicial attention it deserves. 

Government and Intergenerational Equity

Once intergenerational responsibility is enshrined as a legal principle, in which all three parties (non-voting youths, adults and future generations) are contemplated as co-equal, a stricter standard for the government to protect the environment can then emerge. As per the Public Trust Doctrine, the sovereign holds the environment on trust for public use and owes the public the fiduciary duty to protect and maintain the natural resources it provides.^[64] When a “state holds a resource which is available for the free use of the general public, a court will look with considerable skepticism upon any governmental conduct which is calculated … to subject public uses to the self-interest of private parties”.^[65] Some interests, such as that of a healthy environment, are so intrinsically important to every citizen that “a government may never alienate trust property by conveying it to a private owner and that it might not affect changes in the use to which that property has been devoted”.^[66] There is no reason why this judicial protection of public resources we enjoy today should not also extend to those who will be forced to bear environmental devastations greater than what we can realistically comprehend today. With such an observation in mind, it is imperative that future generations are given a voice in court proceedings, because it is only then that the preservation of the environment will be treated equitably alongside economic or short-term exploitations.

Offering future generations locus standi not only invites climate litigation into the courtroom but will also put pressure on governments acting as trustees to abide by higher environmental protection standards. In Australia, the judges in Gray v The Minister for Planning actively extracted the meaning of intergenerational equity from the Environment Protection and Biodiversity Conservation Act 1999 ^[67] and used it to assert the responsibility of the government to “ensure the health, diversity and productivity of the environment”.^[68] Evidently, the intergenerational preservation of the environment is already being consulted across various authoritative institutions, both domestically and internationally. Implementing the principle of intergenerational equity into legal proceedings in the United Kingdom would in theory be no more than a natural extension of the courts’ compliance with climate action.

PART III: LIMITATIONS

Reservations about the consequences of allowing future generations to legitimately gain entry into the sanctuary of the courts must also be made. Before judges can even begin their attempt in accurately predicting the particular consequences of climate change that will violate the ‘right to a healthy environment’, the courts will have to unanimously agree that future agents will in fact exist and what their identity will be. They must set aside the view that “unborn people cannot have anything as they do not exist”.^[69] Without much deliberation, there is certainly an inherent difficulty in deducing steadfast conclusions from mere predictions. This is a very substantial flaw in the theory of intergenerational justice. 

Sanklecha provides three requirements that must be fulfilled before intergenerational justice can be considered in its full capacity. Firstly, we must assume that there will “be agents who exist in the future at all”,^[70] because if there were none, it would not be possible to assign a duty to present inhabitants of the planet to preserve it for the next. Secondly, these agents “must be of a certain sort”^[71] that will demand rights that are synonymous to what understand to be fundamental. This means that the courts will have to predict their interests. Are the unknown unborn entitled to the exact same biological diversity that we currently enjoy? While for example, “depriving future generations of breathable air … would indeed be a violation of their moral obligations to posterity”, “depriving them of the opportunity to see live Dodos” might not be.^[72]

Furthermore, their needs for survival may be drastically different to those we classify as  necessities today. Lastly, the courts must make an assumption about the number of agents. Only if meaningful conclusions can be drawn from these predictions of the future of mankind will we be able to justify the duties that the people of today will have towards the people of tomorrow.

CONCLUSION

Tackling this environmental crisis rests upon the commitment to equality across generations. Quoting the 1972 Stockholm Conference on the Human Environment, we have a “responsibility to protect and improve the environment for both present and future generations.” At a time when children are protesting across the globe in the name of climate action, institutions are urged to finally define and implement their promise. It is not merely about sporadic protective measures, but about a long-term solution to the destabilization of the earth’s climate system. As Albert Einstein said, “we cannot solve problems by using the same kind of thinking we used when we created them”.^[73] Holding his words in high esteem, we must finally allow future generations an opportunity to voice their preferences for the future in the courts of law. What the foregoing shows is that intergenerational equity is not only a moral postulate but a legal framework for environmental change.^[74] Enshrining this principle in the United Kingdom as an element of locus standi has the power to reflect an ethos that is planetary in scope.

Stephanie Hader is the Co-founder and Director of Earth Refuge.  She is a Penn LLM Graduate with experience in drafting government reports for both the Australian and German Parliament. Stephanie also holds a Juris Doctor from the University of Hong Kong.

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References

^[1] Oren, L. (2000) An Iroquois Perspective, in Environmental Discourse and Practice: A Reader, 15

^[2] IPCC Fifth Assessment Report (AR5)

^[3] Albeck-Ripka, L. (2018) Climate Change Protest Draws Thousands of Australian Students, New York Times

^[4] Sherbinin, A., Carr, D. Cassels, S. & Jiang, L. (2009) Population and Environment, Annu Rev Environ Resour, Vol 32

^[5] Lonergan, S. (1998) The Role of Environmental Degradation in Population Displacement, Environmental Change and Security Project Report, Issue 4, 11

^[6] Weston, B. and Bach, T. (2009) Recalibrating the Law of Humans with the Laws of Nature: Climate Change, Human Rights, and Intergenerational Justice, Vermont Law School Legal Research Paper Series, No. 10-06, 60

^[7] UN Environment (2016) Latin American Region, Global Environment Outlook 6 Regional Assessments, 35

^[8] UN Environment (2016) Pan-European Region,  Global Environment Outlook 6 Regional Assessments, 66

^[9] Ibid. 53

^[10] Rawles, S. (2018) Deforestation, WWF-Canon

^[11] Kebede, A.S., Dunford, R., Mokrech, M., Audsley, E., Harrison, P.A., Holman, I.P. and Wimmer, F. (2015) Direct and indirect impacts of climate and socio-economic change in Europe: A sensitivity analysis for key land-and water-based sectors, Climatic Change 128(3-4), 1

^[12] Safronov, A., Fokeeva, E., Rakitin, V., Grechko, E. and Shumsky, R. (2015) Severe wildfires near Moscow, Russia in 2010: Modeling of carbon monoxide pollution and comparisons with observations

^[13] Trenberth, K.E., Fasullo, J.T. and Shepherd, T.G. (2015) Attribution of climate extreme events, Nature Climate Change, Vol. 5, Issue 5, 8

^[14] Costello, A., Abbas, M., Allen, A., Ball, S., Bell, S., Bellamy, R., Patterson, C., Friel, S., Groce, N., Johnson, A. et al. (2009) Managing the health effects of climate change, The Lancet

^[15] Carrington, D. (2014) Earth has lost half of its wildlife in the past 40 years, says WWF, The Guardian

^[16] United Nations Framework Convention on Climate Change (2018) The Paris Agreement

^[17] United Nations (1966) Article 6 of the International Covenant on Civil and Political Rights

^[18] Subhash Kumar v State of Bihar (1991) High Court of Judicature at Patna Criminal Miscellaneous No 55717

^[19] UNEP (1972) Stockholm Convention Protecting Human Health and the Environment from Persistent Organic Pollutants

^[20] UNESCO (1992) The Rio Declaration on Environment and Development

^[21] Sax, J.L. (1969) The Public Trust Doctrine in Natural Resource Law: Effective Judicial Intervention, Michigan Law Review, Vol. 68, 484

^[22] The Gabcikovo Nagmaros Project Hungary/Slovakia (1997) Reports of Judgements, Advisory Opinions and Orders, International Court of Justice

^[23] Ibid.

^[24] Fundepublico v Mayor of Bugalagrande and Others (1991) held in favor of the right to a healthy environment as a fundamental human right. The court made reference to rights contained in the Colombian Constitution and also to “recent developments in international law”. In South Africa, Wildlife Society of Southern Africa and Others v Minister of Environmental Affairs and Tourism of the Republic of South Africa and Others (1996), the right to healthy environment was affirmed in that the court stated that the applicants had locus standi to bring the action pursuant to sections 7(4)(b) and 29 of the Interim Constitution of 1993.

^[25] Fundepublico v. Mayor of Bugalagrande and Others (1991) Judgment No. T-4 15/92, First Chamber of Appeal, Constitutional Court, Santafe de Bogota, Colombia

^[26] Weiss, E.B. (1990) Our Rights and Obligations to Future Generations for the Environment, The American Journal of International Law, Vol. 84, No. 198, 205

^[27] De George, R. (1981) The Environment, Rights, and Future Generations, In Responsibilities to Future Generations, Environmental Ethics, New York: Prometheus Books, 161

^[28] Carrington, D. (2018) David Attenborough: Collapse of Civilization is on the Horizon, The Guardian

^[29] Pecaric, M. (2012) Public Interest and the Question of locus standi, Belgrade Law Review, No. 3, 318

^[30] Ibid. 319

^[31] Haskett, D.J. (1981) Locus Standi and the Public Interest, Canada-United States Law Journal, Vol. 4, Article 4, 40

^[32] Blacks Law Dictionary (1990) St.Paul Mina: West Printing Co, 941

^[33] Supreme Court Act (1981) United Kingdom

^[34] Lee, J. (2000) The Underlying Legal Theory to Support a Well-defined Human Right to a Healthy Environment as a Principle of Customary International Law, Journal of Environmental Law, 331

^[35] Balmer-Schafroth and Others v Switzerland (1997) European Court of Human Rights

^[36] Stichting Greenpeace v EC Commission (1998) European Court of Justice

^[37] R v Paddington Valuation Office ex parte Peachey Property Corporation Ltd (1965) 2 All ER 836

^[38] Haaf, L.T. (2016) Future Persons and Legal Persons: The Problematic Representation of the Future Child in the Regulation of Reproduction, Laws Vol. 5, No. 10

^[39] Farooque v Government of Bangladesh (2001) National High Court, Source UNEP

^[40] Haaf, L.T. (2016) 10

^[41]Sanklecha, P. (2017) Our obligations to future generations: the limits of intergenerational justice and the necessity of the ethics of metaphysics, Canadian Journal of Philosophy, Vol. 47, Issue 2-3, 232

^[42] Ibid. 231

^[43] Sanklecha, P. (2017) 233

^[44] Gündling, L (1990) Our responsibility to future generations, American Journal of International Law, Vol. 84, Issue 1, 209

^[45] Weiss, E.B. (1992) In Fairness To Future Generations and Sustainable Development, American University International Law Review, Vol. 8, Issue 1, 20

^[46] Weiss in Gündling, L. (1990) 209

^[47] Ibid. 210

^[48] Weiss, E.B. (1990) 198

^[49] Ibid.

^[50] Sanklecha, P. (2017) 232

^[51] Gündling, L (1990) 209

^[52] Ibid. 208

^[53] Burke, E (1970) Reflections on the Revolution in France, Works of Edmund Burke, London

^[54] Weiss, E.B. (1990) 200

^[55] Weiss, E.B. (1990) 199

^[56] United Nations Framework Convention on Climate Change (1992) Article 3.1, FCCC/INFORMAL/84

^[57] Brundtland Report (1987) Report of the World Commission on Environment and Development: Our Common Future, A/42/427

^[58] The Nairobi Declaration (1982) UNEP Report of the Governing Council. A/37/25

^[59] Diego Cali & Figli Srl v Servizi Ecological Porto Di Genova SpA (1997) Tribunale di Genova, European Court Reports

^[60] Nauru v Australia (1992) International Court of Justice, Reports of Judgements, Advisory Opinions and Orders

^[61] Minors Oposa v Secretary of the Department of Environmental and Natural Resources (1994) Supreme Court of the Philippines, 33 ILM 173

^[62] Minors Oposa v Secretary of the Department of Environmental and Natural Resources (1994)

^[63] Ibid.

^[64] ‘Public Trust Doctrine’ definition as per the Wex Legal Information Institute

^[65] Ibid. 490

^[66] Sax, J.L. (1969) 486

^[67] Environment Protection and Biodiversity Conservation Act of 1999 (EPBC) Australia

^[68] Gray v The Minister for Planning (2006) NSWLEC 720

^[69] Beckerman, W. (2006) The impossibility of a theory of intergenerational justice, Handbook of intergenerational justice , 54

^[70] Sanklecha, P. (2017) 231

^[71] Ibid. 231

^[72] Beckerman, W. (2006) 58

^[73] Kevin Harris, Collected Quotes from Albert Einstein (1995), available at http://rescomp.stanford. edu/~cheshire/EinsteinQuotes.html.

^[74] Gündling, L (1990) 208

^[75] O’Shea Carre in Albeck-Ripka, L. (2018)

25 February 2021 – by Robert Los

Introduction

The European Union (EU) has been a driving force in the fight against the climate challenges of the future even before Ursula von der Leyen, President of the European Commission, presented her ambitious targets for the “European Green Deal” to the public in December 2019.^[1] The EU’s international climate policy began to gain significant momentum with the ratification and implementation of the United Nations Framework Convention on Climate Change (UNFCCC) and the Kyoto Protocol. It finally manifested itself as an international driving factor with the Paris Agreement of 2015, prior to which the EU, together with several developing countries and island states formed the so-called High Ambition Coalition (HAC) and conducted relevant preparatory work to persuade other major players like the United States (US) to reach an ambitious agreement.^[2]

The Paris Agreement was signed during the refugee crisis of 2015/2016, which troubled Europe in particular. The highly complex issue of climate migration thus seems destined to receive a heightened degree of attention. In this respect, it may come as no surprise that the agreement acknowledges the problem for the first time in the context of an international climate agreement, albeit only in the legally non-binding preamble.^[3] Additionally, by addressing the issue in Art. 50 the agreement incorporates climate migration into the existing system of loss and damage, and opens up the scope of the ‘Warsaw International Mechanism for Loss and Damage’ task force.^[4] However, it is stated in the same section that the findings of the task force do not provide a legally binding basis for liability or compensation.^[5] An international agreement exceeding the status of soft law or mere declarations of intent, and which regulates the complexity of climate migration in a binding manner, is still non-existent.^[6]

In light of this legal gap in protection and the EU’s self-formulated claim to leadership in the fight against climate change,^[7] this essay intends to provide a cursory overview of the legal status quo of climate migration – an important ramification of climate change – in the EU, and the developments in response to it. First, the historical development of the policy debate on climate migration will be retraced and certain milestones will be outlined before existing regulations at both the European and member state levels will be discussed. Finally, possible leverage points for legal gateways and regulations for the protection of climate migrants will be briefly pointed out.

A discourse with teething problems

Climate migration has been addressed at the European level by European institutions for more than 20 years, although the debate has admittedly not remained consistent. The European Parliament first addressed the issue in 1999 in a resolution on environment, security, and foreign policy.^[8] In Art. K of the resolution, the parliamentarians stated that the number of climate migrants already exceeded that of ‘traditional’ refugees, according to international studies. Furthermore, climate migration was classified as a symptom of the global poverty problem, and it was recognized that already-destitute and impoverished people would be specifically and intensely affected.^[9] The explanatory statement shows that the complexity of the issue was already recognized at that time. Identifying climate-induced migration as a threat to security and international relations, but above all as having the propensity to become “one of the worst humanitarian crises of our time” and lead to an “exodus of refugees”, the resolution called for international recognition of climate refugees and emphasized the need for international cooperation to mitigate the problem.^[10] Subsequently, Green Members of the European Parliament (MEPs) in particular have tried, unsuccessfully, to include the issue in reports, studies and resolutions of the EU.^[11]

The issue gained renewed and more concrete momentum in the years 2007 to 2009. In addition to the Green MEPs who conducted seminars and again wrote reports to give the issue the attention it deserved, several weighty papers and events addressed the issue. In April 2007, the European Parliament established a temporary Committee on Climate Change with 60 parliamentarians to formulate goals for European policy regarding the fight against climate change. At the Agora on climate change the following year, a number of the more-than 500 European NGOs in attendance warned of a link between climate change and increasing migration. One of the workshops again called on EU institutions to develop a strategy for climate-induced migration.^[12] As many as 3 major papers joined the call of the social societies: a paper from the High Representative^[13], a paper from the European Commission that linked climate change and security concerns^[14], as well as another paper from the European Commission which advocates for the consideration of climate change effects in security, development and migration policy debates.^[15]

The Stockholm Program, launched by the Swedish Presidency of the Council, gave the issue major impetus. The report not only established a link between natural disasters and migration, but it also addressed international protection and operational frameworks as “deficient, leaving several categories of people forced to flee or seeking safer existence without effective national or international protection.”^[16] Precisely because of the latter, the final report called on the Commission to conduct further research regarding the legal gaps in protection and suggested that it develop a specific set of rules both by drawing on established protective instruments, and incorporating completely new concepts. The primary objective of the authors was to give Europe a pioneering role whereby, in addition to the recommended studies, on the one hand a fund for the provision of financial aid on the ground from European states was to be established and, on the other hand, migration policy was to be incorporated more strongly into development policy and in new international agreements.^[17] A study by the European Parliament in 2011 supported this by further highlighting the gaps in legal protection and formulating similar recommendations.^[18]

In 2013, the European Commission, under political and societal pressure, responded to the calls with a Staff Working Document.^[19] Due to the evidence highlighted in a summary overview of the scientific studies at that time which showed that a large part of climate-induced migration is domestic in nature, development policy and adaptive instruments were identified as the preferable focus of the EU initiatives.^[20]  However, a position paper composed mainly by Green parliamentarians agreed to this only partially. They welcomed adaptive (and especially financial) local aid for the people and states affected. However, this alone would not be far-reaching enough for them. Instead, the paper argued for a so-called “two-axis” model. For the first axis, consisting of national or European protection, the paper provided concrete implementation suggestions in recasting existing law as the Qualification Directive, Temporary Protection Directive or the Return Directive^[21]. For the second axis, concerned with international protection, the paper made suggestions in the form of addendums or protocols to existing international agreements.^[22]

Nevertheless, the discourse dissipated somewhat when, in 2015, the aforementioned refugee crisis interfered with the positive trend. Although the European Commission mentioned climate change as one cause for migration amongst others in the European Agenda on Migration, just as the Paris Agreement did later in the year, the then-current crisis, its causes and respective countermeasures were to seize the full attention of the political agenda.^[23] The European Parliament attempted to restart developments on climate migration with two further papers in 2016 and 2017, once again emphasizing cause-and-effect of climate change and migration, and highlighting the need for legal protection instruments.^[24]

It can thus be stated that climate migration has been addressed across institutions in the EU in recent decades. Within these discourses, the different dimensions of the problem were also recognized and elaborated. The various dimensions of the problem were also recognized and concrete strategies and starting points were identified. To what extent the discourses have actually resulted in implementation, and whether the EU can thereby live up to its aspired pioneering role will be discussed in the following section.

Status Quo of European Legislation

When considering the legal landscape of Europe, it is convenient to distinguish between different levels and dimensions of protection. Protection can arise from regulations at the level of European law, but it can also arise at the level of member state law. Within the European level, again a distinction can be made between external and internal protection dimensions. Furthermore, the jurisprudence, which will not be covered during the scope of this paper, has to be considered as a third level.^[25]

1. Protection at EU level

a. Protection in the external dimension

Legal protection that is explicitly linked to forced migration is found almost exclusively at the externally oriented dimension of European law.

The 2020 report initiated by the European Parliament on this very topic sees above all a gateway for legal protection for climate-induced migration in intergovernmental pacts on mobility and migration. ^[26] Indeed, it is true that both the EU Global Approach to Migration and Mobility (GAMM)^[27] and the Valetta Summit Action Plan^[28] identify changing climatic conditions as a driver of migration in their respective regulations.^[29] Both agreements are primarily aimed at addressing the root causes of migration and the legally secure management of migration flows to ensure humane migration. The GAMM in particular, as the overarching regulatory framework for migration in the EU, is of enormous importance in this context. Though several bilateral agreements have been conducted with neighboring and third countries under this framework, none explicitly mention climate-induced migration in the arrangements for better management of migration flows.^[30] An explicit mention is only made in the context of adaptive strategies. Whilst the GAMM and the Valletta Summit Action Plan only suggest adaptation as part of the global strategy,^[31]  the EU Emergency Trust Fund for Africa^[32] actually concretized this in the aftermath of the Valetta agreement of the EU, its member states and the African states.^[33]

In fact, the direct instruments at the European level are exclusively those of preventive and damage-mitigating adaptation. In addition to those already mentioned, there are other regulations and mechanisms of a similar thrust. For instance, the regulations based on the Commission’s concept of “Lives Dignity: from Aid-Dependence to Self-reliance”,^[34] intend to “prevent forced displacement from becoming protracted and to gradually end dependence on humanitarian assistance in existing displacement situations by fostering self-reliance and enabling the displaced to live in dignity as contributors to their host societies, until voluntary return or resettlement.”^[35] With respect to damage mitigation instruments, recourse to the general humanitarian aid instruments of the European Union is necessary. Firstly, humanitarian aid – largely determined by the Humanitarian Act of 1996^[36] and its concretizations by the Commission – is of interest here.^[37] The aim of this “act of solidarity”^[38] is above all to help the most vulnerable people in third countries who are exposed to natural disasters or human-induced crises.^[39] Secondly, through the 2019 Decision on a Union Civil Protection Mechanism, the EU provides a protective umbrella for its own member states that might also take effect in the event of natural disasters.

b. Protection in the internal dimension

Legal protection at the European level in the internal dimension is to be found in the barriers of international human rights and the obligation to protect against their violation. In this regard, the right to life (Art 6 ICCPR, Art 2 ECHR, Art 2 CFR) and the prohibition of torture and inhuman and degrading treatment (Art 7 ICCPR, Art 3 ECHR, Art 4 CFR; Art 15 QD) are of particular relevance.^[40] However, even in its latest version, the Common European Asylum System (CEAS)^[41] does not provide protection exclusively for climate-induced migration. If no other recognized ground for protection is met, legal protection is not guaranteed.^[42]

The absence of an explicit provision does not exclude protection altogether. Primarily, the definition of inhumane and degrading treatment in Art 3 of the European Convention on Human Rights (ECHR)^[43] and Art 15b of the Qualification Directive (QD)^[44] provides for some leeway, supported by established court practice in analogous cases.^[45] The QD harmonizes the standards under which a person is classified as “in need of international protection” for the member states. And while its refuge definition is nearly identical to the definition of the Geneva Refugee Convention, it grants a so-called subsidiary protection status. This subsidiary protection is defined as “protection of a third-country national or a stateless person who does not qualify as a refugee but in respect of whom substantial grounds have been shown for believing that the person concerned, if returned to his or her country of origin […] would face a real risk of suffering serious harm”^[46]. It is granted, amongst other reasons, in cases of inhumane and degrading treatment.^[47] The vagueness of this legal definition allows the member states, their courts and the European courts to interpret it favorably for climate migrants. However, amidst this positive interpretation of indeterminacy, it must also be mentioned that courts “have carefully circumscribed the meaning of ‘inhuman or degrading treatment’ so that it cannot be used as a remedy for general poverty, unemployment, or a lack of resources or medical care except in exceptional circumstances”.^[48] Therefore, in light of the practical reluctance in case law and policy, the indeterminacy seems more like an evasion than a hopeful starting point for legally adequate protection.

Besides the QD, there are two more EU secondary legal acts that might provide protection in their scope. One is the Temporary Protection Directive,^[49] which has never been triggered since its creation. In the long term, however, the Directive can only provide temporary protection, the applicability of which is questionable in the case of slow-onset events,^[50] and is thus unsuitable for sustainable legal protection for climate migrants. Nevertheless, Art 2d of the Directive,^[51] which regulates the arrival of refugees, could legally safeguard the reception and arrival of people affected by natural catastrophes.^[52] Also potentially promising is the Return Directive.^[53] This regulates the return of refugees and incorporates in particular the principle of non-refoulement for both political and factual reasons. It is worth noting that both an explicit mention of climatic reasons and a harmonized definition or recognition of reasons are omitted, so that member states could theoretically postpone an expulsion on environmental grounds according to Art 9(2).^[54] The first efforts in this sphere were made by a German administrative court when it clarified that in exceptional cases, climate and environmental factors can lead to a non-refoulement obligation. However, the court left open the question of when such circumstances could exist, as they were not relevant to the decision and instead only noted that a “very high level of damage” is required.^[55] Therefore safe legal grounds are not established, rather  the postponement of return depends again upon administrative will.^[56]

c. Conclusion

In summary, given the historical genesis of the European discourse on climate migration, the external dimension is unsurprisingly limited to mostly indirect adaptive assistance, and does no more than merely mention climate change as one of many drivers of migration. The internal dimension lacks explicit instruments altogether and presents the legal practitioner with the challenge of constructing vague and uncertain legal protection from the disconnected existing norms. Therefore, it can be stated that a sophisticated and reliable protection system has not yet been established at the European level. 

2. Protection at the member states’ level

When it comes to protection at the level of national law in the member states, the special characteristics of European law must be considered a priori. In harmonized areas of law, member states can only adopt derogative regulations if they go beyond the requirements in positive terms in cases of “minimum harmonization”, or if they regulate aspects not covered by harmonizing frameworks.^[57] Indeed, the European regulations on migration and asylum contain a significant gap between subsidiary protection as defined by the QD, and the principle of non-refoulement as set out in Art 3 ECHR for which member states can develop their own legal protections for refugees to the extent that they do not undermine the minimum standards of the CEAS. ^[58]

According to the 2020 report of the European Migration Network,^[59] 20 member states have made use of this option, each with at least one humanitarian ground that exceeds the minimum standards of the CEAS. A total of 60 additional grounds can be found in the national regulations.^[60] However, only two member states’ (Sweden and Italy) regulations explicitly address the issue of climate migration.

In Italy, persons eligible for the protection under Art 20-bis of the Immigration Act are third-country persons who cannot return to the country of origin due to a contingent situation and exceptional circumstances that do not allow for safe conditions upon their return.^[61] These circumstances may very well cover environmental reasons amongst others.^[62] The application for this protection status is to be submitted to and assessed by the Territorial Chief of Police. An appeal against a negative decision is to be filed with the bodies that otherwise decide on international protection, and does not automatically carry a suspensive effect but must be applied for separately. Within the substantive protection dimension, Italy issues a residence permit for 6 months in case of positive recognition of the status, which is less than the 1-year residence for people in the scope of Subsidiary Protection of the QD. The residence status is valid only on Italian territory and denies the beneficiary some rights granted under the European refugee standard. For example, family reunification is excluded and access to social welfare is reduced to its core elements. Nonetheless, beneficiaries are granted access to the labor market and employment, mainstream health services at a level equal to that afforded to other third-country persons, and general integration support. Since its introduction in 2018, this protection tool has only been used once.^[63]

The eligibility definition of Sec. 2a of the Swedish Aliens Act does not differ too drastically from the Italian framework, though there are some differences. For example, it does require that the need for “protection” must feature a triggering environmental event that qualifies as “sudden”, and the unavailability of internal relocation. Additionally, unlike the Italian option, the Swedish application for protection follows the usual procedure for applying for international protection, and an appeal has an automatically suspensive effect. Swedish protection also goes beyond Italian protection in terms of content. Not only is the granted residence status valid for 3 years, but its validity can be extended to other states by issuing a travel document in the form of an alien passport. In addition, spouses – or partners in similar social relationships, such as same-sex or engaged couples – dependent children and parents of unaccompanied minor children are eligible for family reunification. In addition, unlike Italy, Sweden provides access to support services on par with the European Minimum Standards. However, within the context of the European refugee crisis, this protection has been suspended until 2021. How it is set to advance remains unclear.^[64]

Alongside the two explicit regulations, there are also provisions in Finland and Cyprus that take ecological circumstances into account in the context of granting protection. Finland considers environmental reasons when assessing humanitarian grounds under Chapter 6 Section 88a of the Finnish Aliens Act, especially in cases in which neither refuge nor subsidiary protection can be granted, but the return to the home country seems unbearable. Similar to the Swedish regulation, this protection was also suspended around 2015.^[65] Art 29 (4) of the Cypriot Refugee Law mentions environmental destruction as an additional justification for non-refoulement, but does not grant protection on this ground alone.^[66]

Conversely, the remaining member states do not provide for any protective regulations. There are also hardly any known initiatives to close the national gaps in this sphere.^[67] Most states refer to the international consensus on refugees – manifested in the Geneva Refugee Convention – and refuse to adopt a differing interpretation.^[68] Thus, similar to the situation on the European level, legal practitioners in these states are left to search for new interpretation and readings of national law. In conclusion, it can be said that at the member states’ level, the protective dimension is being rolled back rather than developed further. Even where there is still explicit protection for people fleeing climate-induced change, it is weaker than that provided to other displaced peoples.

Ways forward

The current status quo is inadequate, and results in the need for further development and improvement of the current level of protection in view of the ever-increasing numbers of people forced to flee as a result of climate change. There are various possible answers to the question regarding which path to take, and perhaps the first thing to do is to take a general step in the direction shared by them all.

That is, to carry the issue from niche academic spheres into the broader public conversation and, above all, into day-to-day political discourse. This applies to both the European and national levels. A survey conducted by the European Migration Network shows that in most member states, the topic is discussed in academic and socially engaged circles, but lacks the attention of legislative and executive powers.^[69] In view of the historical genesis of the discourse, this may seem a tedious and  Sisyphean-like task, especially at the European level, but it is a fundamental prerequisite for the implementation of protective instruments and assistance of any kind, including the elimination of legal uncertainties. A slight positive trend may even be triggered if one realizes that in the last few years, both European^[70] and member state institutions^[71] have paid some attention to the subject in studies, despite the fact that these are not legally binding. We can only add to the clamor made in the last two decades by those in the relevant spheres, and hope that this time the positive upward trend will manifest itself into concrete and protective action.

Once this step has been taken, the question arises as to which path will finally be taken. There are various options, which are not necessarily contradictory and can also coexist in some cases. Broadly speaking, to pick up on the two-axis suggestion of the Green MEPs, there are two major currents – each in turn with two tributaries – for legal policy-making. Given that most climate-related migrants are internally displaced persons, there must be a local and regionally focused course of action. Despite the focus on internally displaced persons and local support, the remaining protection seekers must not be neglected, so that the second course of action should focus on guaranteeing international and national protection for them.

A distinction can then be made within the local and regional strategy. On the one hand, the path of adaptation already proposed by the Commission in its 2013 findings can be taken. This mostly-financial aid can certainly make use of the already existing European mechanisms and build upon them. It would be crucial to also legally couch this financial aid with regard to climate migration in a concrete manner. Moreover, financial aid could be established and coordinated more effectively through regionally focused international agreements with countries in the affected regions. This leads into the second sub-prong of the local and regional strategy. In addition to an actively supportive role, the EU can play a passively supporting role as an advocate or promoter in the international forum for local initiatives with a bottom-up approach to international governance, and as a mediator for negotiation in such agreements.

The second stream of action can also be divided into an active, self-implementing sub-prong and a passive, facilitating sub-prong that relies on the cooperation of others. The latter would consist primarily of seeking, in addition to regional and local agreements, an international compromise that goes beyond the soft-law arrangements agreed to date. For instance, additional protocols to the Geneva Refugee Convention or the Paris Agreement are conceivable, or the promotion of an entirely new agreement that adapts refugee protection rules to the challenges and circumstances of the modern world.

The former, self-implementing part, in which the EU would not be dependent on external help, would have to consist of a redesign of the existing regulations. In particular, an adaptation of Art 15 of the QD, which has already been discussed, would provide a suitable solution. It would be plausible to add a fourth section, (d), to the already existing alternatives, which would also provide for subsidiary protection in the case of an “environmental catastrophe.” For better protection, however, a legal definition of the term should be standardized, so that imprecision and difficulties of delimitation are avoided in practice.^[72] Alternatively, an Art 15a QD with corresponding content could be introduced.^[73]

Furthermore, member states could, of course, issue their own national regulations, which would provide for protection up to the point of regulation at European level. Besides the concrete standardization of protection, the EU and its member states could develop other legal instruments for protection. Such as, for example, a humanitarian corridor which already exists in several European states and provides a pathway for people escaping conflict,^[74] or a temporary travel document issued by the states in the form of a climate passport. This would offer those who are threatened by climate change the option to demand civil rights in safe countries.^[75]

Conclusion

As discussed, the current outlook – despite years of attention and discourse – does not do justice to the ultimate goal of protection. Rather, it seems almost negligent in the fight against the climate crisis to utterly exclude it as an important factor, or to instead surrender to the benevolent interpretation of legal practitioners. Although there are mentions of the topic in various agreements and instruments, there is no commitment beyond the status of soft law.

On the legal protection level, with the exception of two national regulations in Italy and Sweden, there is a complete lack of rules that address the issue. This is disappointing, as the EU could be a pioneer and has a wide range of options for implementation. It is submitted that if all four described tributaries of the two main streams were implemented and followed, the EU would be able to provide effective protection.

Of course, the implementation of one is better than complete inaction, but as stated above, this would only lead to a patchy and, above all, deficient protective dimension, and would not necessarily lead to an improvement of the status quo. This would neither correspond to the ambitious, but also self-claimed pioneering role of the EU, nor to the moral responsibility stemming from the Polluter Pays principle (to which the polluting countries agreed in the Paris Agreement).

This shows precisely how much of a difference an ambitious major player can make, even in terms of initiatives for which the EU would have to rely on the cooperation of other countries. The ambitious deal from 2015 would have not been possible without the initiation of the HAC. Accordingly, it would be desirable for the EU to address the issue and follow societal and academic demands in order to alleviate the current unsatisfactory status quo with regard to climate migration and its related challenges. There is truly no lack of concrete proposals, only the lack of concrete will to revisit the spirit of the HAC.

Robert Los is an Archivist at Earth Refuge and a student of law at the Bucerius Law School in Hamburg, Germany. His interest and commitment to climate law issues extends mainly to voluntary work alongside his studies and work.

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References

^[1] https://www.politico.eu/article/the-commissions-green-deal-plan-unveiled/ (Last Access: 18.01.2021, 17:23).

^[2] https://www.eyes-on-europe.eu/can-the-eu-lead-the-way-in-the-fight-against-climate-change/ (Last Access: 21.01.2021, 15:25).

^[3] Paris Agreement(2015), Preamble.

^[4] https://www.iass-potsdam.de/de/node/5386 (Last Access: 18.01.2021, 17:43).

^[5] Report of the Conference of the Parties on its twenty-first session, held in Paris from 30 November to 13 December 2015 (FCCC/CP/2015/10/Add.1), Addendum, Nr. 51; The Warsaw International Mechanism and its requires a separate examination that will follow in a separate essay.

^[6] Cf. for a deeper examination: Mile (2021):  Protecting Climate Migrants: A Gap in International Asylum Law; https://earthrefuge.org/protecting-climate-migrants-a-gap-in-international-asylum-law/ (Last Access: 21.01.2021; 15:34).

^[7] Cf. the opening statement of Ursula von der Leyen in the European Parliament Plenary Session in Jul:y 2019; https://ec.europa.eu/commission/presscorner/detail/en/SPEECH_19_4230 (Last Access: 20.01.2021; 18:37).

^[8] European Parliament (1999): Resolution on the environment, security and foreign policy. 28.1.1999, A4-0005/99.

^[9] European Parliament (1999): Resolution on the environment, security and foreign policy, Art. J and Art. L. 28.1.1999, A4-0005/99.

^[10] European Parliament (1999): Resolution on the environment, security and foreign policy, explanatory note. 28.1.1999, A4-0005/99.

^[11] www.reseau-terra.eu/article844.html (Last Access: 15.01.2021; 22:37).

^[12] Ibid.

^[13] High Representative and the European Commission (2008), Climate Change and International Security.

^[14] Commission of the European Communities (2008). European Consensus on Humanitarian Aid – Action Plan. Commission Staff Working Paper, SEC (2008) 1991.

^[15] European Commission (2009): WHITE PAPER Adapting to climate change: Towards a European framework for action; COM (2009) 147.

^[16] https://pace.coe.int/en/files/12098/html#_TOC_N1047B (Last Access: 19.01.2021; 23:54).

^[17] Ibid.

^[18] Kraler/Cernei/Noack (2011), “Climate Refugees”: Legal and Policy Responses to Environmentally Induced Migration. Study commissioned by the Directorate General for Internal Policies, Policy Department C: Citizens’ Rights and Constitutional Affairs, Civil Liberties, Justice and Home Affairs (PE 462.422) Brussels, European Parliament.

^[19] European Commission (2013): Commission Staff Working Document: Climate change, environmental degradation, and migration -Accompanying the document Communication from the Commission to the European Parliament, the Council, the European Economic and Social Committee and the Committee of the Regions: An EU Strategy on adaptation to climate change.

^[20] Ibid, p. 17 and 35.

^[21] Cf. also Kraler/Katsificias/Wagner (2020), Climate Change and Migration: Legal and policy challenges and responses to environmentally induced migration. Study commissioned by Policy Department for Citizens’ Rights and Constitutional Affairs Directorate-General for Internal Policies (PE 655.591), Brussels, European Parliament, p. 67.

^[22] The Greens (2013): Climate Change, Refugees and Migration.

^[23] Kraler/Katsificias/Wagner (2020), Climate Change and Migration: Legal and policy challenges and responses to environmentally induced migration. Study commissioned by Policy Department for Citizens’ Rights and Constitutional Affairs Directorate-General for Internal Policies (PE 655.591), Brussels, European Parliament, p. 66.

^[24] European Parliament (2016): Resolution on the situation in the Mediterranean and the need for a holistic EU approach to migration; European Parliament (2017): Addressing refugee and migrant movements: the role of EU external action European Parliament resolution of 5 April 2017 on addressing refugee and migrant movements: the role of EU External Action (2015/2342(INI)).

^[25] In view of the few previous rulings on the matter, both at national and European level, this can be disregarded for the time being. However, an incorporation into the other categories will follow. For a summary overview cf. Kraler/Katsificias/Wagner (2020), p. 79 et seqq.

^[26] Kraler/Katsificias/Wagner (2020), p. 68 et seqq.

^[27] European Commission (2011), COM(2011), 743 final: Communication from the Commission to the European Parliament, the Council, the European Economic and Social Committee and the Committee of the Regions – The Global Approach to Migration and Mobility.

^[28] Valletta Summit Action Plan (2015).

^[29]  Cf. European Commission (2011), COM(2011), 743 final, p. 6 et. Seqq.; Valletta Summit Action Plan (2015), p. 3.

^[30]  Cf. Kraler/Katsificias/Wagner (2020), p. 68 et seqq.

^[31] European Commission (2011), COM(2011), 743 final, p. 6 et. Seqq.; Valletta Summit Action Plan (2015), p. 3.

^[32] Cf. for more detail: https://ec.europa.eu/trustfundforafrica/sites/euetfa/files/eutf_2019_annual_report_english.pdfeuropa.eu (Last Access: 17.01.2021; 21:50).

^[33] Kraler/Katsificias/Wagner (2020), p. 69.

^[34] European Commission (2016c) COM(2016) 234 final: Lives in Dignity: from Aid-dependence to Self-reliance; Communication from the Commission to the European Parliament, the Council, the European Economic and Social Committee and the Committee of the Regions; cf. for a more detailed description Kraler/Katsificias/Wagner (2020), p. 69.

^[35] European Commission (2016c) COM(2016) 234 final, p.2

^[36] Council Regulation (EC) No 1257/96 of 20 June 1996.

^[37] Kraler/Katsificias/Wagner (2020), p. 69.

^[38] Commission of the European Communities (2007): Communication from the Commission to the European Parliament and the Council – Towards a European Consensus on Humanitarian Aid; COM(2007) 317 final; Commission of the European Communities (2008). European Consensus on Humanitarian Aid – Action Plan. Commission Staff Working Paper, SEC (2008) 1991; European Commission (2015). Implementation Plan of the European Consensus on Humanitarian Aid. Commission Staff Working Document, SWD (2015) 269 final.

^[39] Council Regulation (EC) No 1257/96 of 20 June 1996, Art. 1; cf. for a more detailed description of humanitarian aid system Kraler/Katsificias/Wagner (2020), p. 70 et seqq.

^[40] Kraler/Katsificias/Wagner (2020), p. 71.

^[41] Cf. for more detailed information: https://ec.europa.eu/home-affairs/what-we-do/policies/asylum_en (Last Access: 19.01.2021; 22:01).

^[42] Kraler/Katsificias/Wagner (2020), p. 71.

^[43] https://www.echr.coe.int/Documents/Convention_ENG.pdf (Last Access: 19.01.2021; 19:54).

^[44] Qualification Directive (2004), Directive 2004/83/EC: https://www.asylumlawdatabase.eu/en/content/en-qualification-directive-directive-200483ec-29-april-2004#Art%2015%20QD (Last Access: 19.01.2021; 20:02).

^[45] For the analogous transfer of case law on the rejection of sick persons, cf. Kraler/Katsificias/Wagner (2020), p. 79 et. seqq.

^[46] Qualification Directive (2004), Directive 2004/83/EC: https://www.asylumlawdatabase.eu/en/content/en-qualification-directive-directive-200483ec-29-april-2004#Art%202%20QD (Last Access: 20.01.2021; 20:06).

^[47] Kraler/Katsificias/Wagner (2020), p. 71 et. seqq.

^[48] McAdam (2014). The human rights implications of cross-border displacement in the context of disasters what are the protection gaps and what is the role of the human rights council?.

^[49] Temporary Protection Directive (2001), EU CD 2001/55/EC: https://eur-lex.europa.eu/legal-content/EN/TXT/PDF/?uri=CELEX:32001L0055&from=en (Last Access: 20.01.2021; 20:10).

^[50] Kraler/Katsificias/Wagner (2020), p. 73.

^[51] Qualification Directive (2004), Directive 2004/83/EC: https://www.asylumlawdatabase.eu/en/content/en-qualification-directive-directive-200483ec-29-april-2004#Art%202%20QD (Last Access: 20.01.2021; 20:14).

^[52] Beirens/Maas/Petronella/Velden (2016): Study on the Temporary Protection Directive,

p17; Study commissioned by the European Commission Directorate-General for Migration and

Home Affairs Unit C.3 — Asylum.

^[53] Return Directive (2008), EU RD 2008/115/EC: https://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=OJ:L:2008:348:0098:0107:EN:PDF (Last Access: 20.01.2021; 20:22).

^[54] Return Directive (2008), EU RD 2008/115/EC, Art. 9: https://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=OJ:L:2008:348:0098:0107:EN:PDF (Last Access: 20.01.2021; 20:22).

^[55] VGH Mannheim (2019): 29.10.2019, A 11 S 1203/19.

^[56] Kraler/Katsificias/Wagner (2020), p. 73.

^[57] https://eur-lex.europa.eu/legal-content/DE/TXT/HTML/?uri=LEGISSUM:l14527&from=DE (Last Access: 20.01.2021; 20:27).

^[58] Kraler/Katsificias/Wagner (2020), p. 74.

^[59] European Migration Network (2020): Comparative Overview of National Protection Status in the EU and Norway – EMN Synthesis Report for the EMN Study 2019.

^[60] European Migration Network (2020), p. 4.

^[61] European Migration Network (2020), p. 25.

^[62] European Migration Network (2017): EMN Ad-Hoc Query on ES Ad hoc Query on Humanitarian Protection.

^[63] European Migration Network (2020), p. 25.

^[64] European Migration Network (2020), p. 25.

^[65] Kraler/Katsificias/Wagner (2020), p. 78.

^[66] Ibid.

^[67] European Migration Network (2018): European Migration Network; Ad-Hoc Query on Climate change and migration.

^[68] Explicitly stated by Austria, Czech Republic, Germany to a questionnaire on environmentally induced migration distributed by ICMPD to selected EU+ countries in March 2020; cf. Kraler/Katsificias/Wagner (2020), p. 78.

^[69] European Migration Network (2018).

^[70] see, for example, the 2020 study commissioned by the European Parliament on Climate Change and Migration: Kraler/Katsificias/Wagner (2020).

^[71] see, for example, the advisory study of the Economic Advisory Council of the Federal Government in Germany, which dealt with climate migration in 2018: WBGU (2018), Zeitgerechte Klimapolitik: Vier Initiativen für Fairness.

^[72] Hush proposes a definition along the lines of: “a natural disaster affecting a large number of persons in a geographic area, occurring either suddenly or over time, with or without human action, and causing the destruction, or reasonable threat of destruction, or severe degradation of, the applicant’s livelihood, residence, community, or land”; Hush (2018)- Developing a European Model of International Protection for Environmentally Displaced Persons: Lessons from Finland and Sweden.

^[73] Hush (2018) – Developing a European Model of International Protection for Environmentally Displaced Persons: Lessons from Finland and Sweden.

^[74] Cf. Kraler/Katsificias/Wagner (2020), p. 75.

^[75] Cf. for a more detailed examination of this idea: Los (2020), Climate Passport: A Legal Instrument to Protect Climate Migrants – A New Spirit for an Historical Concept; cf. WBGU (2018): Zeitgerechte Klimapolitik: Vier Initiativen für Fairness, p. 24 ff.