A Reflection on Climate Mobility: Has Causality Lost Resonance?

In a recent European Court of Human Rights (ECtHR) ruling against Switzerland (KlimaSeniorinnen) the court found that the state had violated the European Convention on Human Rights by failing to take timely and sufficient action to mitigate against climate change.

This is a moment of celebration for climate activism and climate justice and a huge leap forward as it connects the action of an emitter state to human rights violations against its citizens. It relates the hazard that is climate change with the breach of the promise of state protection.

It is not about the consequences of climate change. It is not about adaptation nor the responsibility of island nations. It is about mitigation, the accountability of emitter states, the ethics of greenhouse gas emissions, and the resulting breach of human rights.

This is also an important moment for pause and reflection for those of us contemplating the appetite for, and framing of, a new normative legal framework on cross-border climate-induced movements. Does this ruling begin to pave the way for a climate convention ground as the new nexus to persecution in the 1951 Refugee Convention? Or could it be more akin to an extended refugee definition included in binding and non-binding regional instruments, which is premised on a more flexible justification of people fleeing conflicts and crisis where their life and freedom is threatened by generalized violence or serious disturbances to public order? This latter definition does not require a discriminate or individualized risk. And if so, would a proliferation of such rulings by the ECtHR or national courts justify a new normative framework altogether with innovative language and definitions?

A right to international protection due to climate change would be much more than, and much different to, the international refugee law regime in moving beyond notions of surrogacy and exceptionalism. It would be a paradigm shift in how we understand borders and immigration as well as people and belonging. The Guardian on May 8, 2024 cited the inevitability of a future dystopia with global temperatures likely reaching 2.5C by the end of the century. This is not just an event or circumstance to build a framework around. It’s the event. People will move in large numbers, and they will likely move to remain given the inhabitability of land. Disruption will come from all directions. There will be increased strain on communities and on infrastructure in urban centers, as well as stressors on food, water, shelter, and other key sectors. This isn’t about imagining another exception to immigration laws. It’s about a fundamental rethink of the organizing principles of statehood, nationhood, and governance to accommodate the changing planet and resulting movement of people in a climate adverse world.

The bigger picture will need to go hand-in-glove with any new normative legal framework for climate-induced movements across borders. This notwithstanding, there are some important considerations derived from this ECtHR ruling, and from my own personal reflections that have evolved over time on how to develop and adjudicate norms, that warrant discussion at this juncture.

The first consideration relates to causality, namely the direct attribution of greenhouse gas emissions to the adverse effects on human life. It was only when I began teaching a course on climate change and human mobility at Columbia/SIPA that I saw more clearly how often this general principle of law and rigorous analytical tool is used as the very obstacle to an objective, scientific, and legal understanding of climate risks. On data and predicting future movements due to climate change, causality is the reason for lack of clarity since it is difficult to separate and disaggregate the grounds for people moving. On the relationship between climate change and international peace and security, causality is again used to question whether climate risks are indeed linked to insecurity and conflict given the many layers to any genesis of unrest. In climate litigation cases, an applicant such as Ioane Teitiota from Kiribati was requested to prove the causal link between the adverse effects of climate change in his small island nation and its impact on his right to life and family life (Human Rights Committee, Ioane Teitiota v New Zealand). A test that the world and all its resources cannot meet is being posited on a single applicant to prove. And instead of being used flexibly or recognized as nuanced, it is being weaponized to justify restrictions to international protection on climate grounds.

Has causality then lost its value and purpose, I wonder, as a general principle of law for any future norm- setting on climate-induced movements? Perhaps yes.

And while the following Human Rights Committee decision of Billy v Australia softened the burden on the applicants around proving causality and imminence of harm, it didn’t go far enough. The case pertained to the Indigenous inhabitants of the Torres Strait islands claiming adverse impacts on their livelihoods, culture, and way of life as a result of the destruction of marine and coastal ecosystems due to sea level rise, flooding, and ocean acidification. It found Australia was in breach due to its failure to adopt adequate adaptation, but not mitigation, measures.

Another important win of the ECtHR case was that causality didn’t really matter. The court was satisfied with establishing a looser, more indirect, and therefore more presumptive legal (rather than factual) test of causality, This more generous reading was perhaps because the ECtHR case was not about the crossing of international borders. Nonetheless, my sense is any responsible future international protection framework on climate change ought to separate from the need to prove causality and should as such refrain from contemplating the creation of a new convention ground as the nexus to persecution as this would only exacerbate the difficulty in satisfying the principle of causality.

I would also suggest that for a future international protection framework on climate change, the issue of “imminence of harm” be considered not within the framing and interpretation of the 1966 International Covenant on Civil and Political Rights (ICCPR) in examining the establishment of a breach to the right to life but rather as configured in the 1951 Refugee Convention for establishing a well-founded fear of persecution using jurisprudence on the meaning of “reasonable likelihood” and “forward-looking risk”

While progress is being made in climate litigation cases under the rubric of international human rights law, for an eventual new normative legal framework for climate induced movements, there are important lessons to be learned from the refugee and asylum context and decades of legal interpretation of meaning of international protection.