Climate change migration and the views in Teitiota

• Author: Max Barrett
• Position: Judge of the High Court of Ireland
• Pages: 1-19

IRISH JUDICIAL STUDIES JOURNAL

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[2021] Irish Judicial Studies Journal Vol 5(1)

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CLIMATE CHANGE MIGRATION AND THE

VIEWS IN

TEITIOTA

Abstract: This article considers the Views recently expressed by the UN Human Rights Committee in the

Teitiota application, assessing them in the context of climate change migration litigation more generally. There

are no adequate international organisations which have compulsory jurisdiction in this area; as a consequence,

the Views expressed in Teitiota have no legal force. However, they show how a distinguished international

body perceives the present ‘lie of the land’ in terms of the legal issues that presented before it and are likely a

good indicator as to the types of issue around which climate change migration cases will crystallise now and in

the near future, whether in administrative law cases directed against governments or administrative agencies,

or in climate tort actions against, e.g., producers of fossil fuels, direct users of such fossil fuels, and companies

that manufacture/market products whose use aggravates climate change.

Author: Mr Justice Max Barrett, Judge of the High Court of Ireland*

‘[S]tandards solemnly declared, even if unobserved, live on to supply ammunition to those

who thereafter demand observance.’

Arthur Schlesinger, Jr.

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Introduction

Climate change, ‘the most consequential challenge of the twenty -first century’,

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has only

come to the fore of public debate since the 1990s. It was not in the contemplation of the

authors of the Universal Declaration on Human Rights 1948 or the Refugee Convention

1951.

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Yet it requires to be addressed in the same comprehensive and far-sighted manner as

the rights challenges which confronted the authors of those instruments.

In the years ahead, climate change seems likely wholly to ‘reshape the concept of global

citizenship’,

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not least because of the anticipated increase in climate change-related

migration.

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Four key prompts for such migration will be the greater frequency/intensity of

weather-related disasters; the adverse consequences of climate change for health, food

* I am g rateful t o Professors Gavin Barrett and Suzan ne Kingston of UCD Sutherland Law School for their

comments on an earlier draft o f this article. Any errors and all views are mine alone. All views are expressed in

a personal capacity.

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Arthu r Schlesinger, ‘Hu man Rights and the A merican Tradition’ (1978) 57(3) Foreign Affairs 503-26, 511.

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Global Citizens hip Commissio n, The Universal Declaration of Human Right s in the 21st Cent ury (New York: Global

Citizenship Com mission 2016) 47.

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See Universal Declaration of Hum an Rights,

<www.ohchr.o rg/EN/UDHR/Docu ments/ UDHR_Translation s/eng .pdf> Accessed 23 October 2020. See also,

Convention and Protocol Relating to th e Status of Refugees (UNCHR) <www.unhcr.o rg/3b66c2aa10>.

Accessed 23 October 2020.

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ibid footnote 2.

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International Organization for Migration (I OM), IOM Outlook on M igration, Environme nt and Climate Chan ge

(Geneva: IOM 2014) 5. A qu estion perhaps arises as to wh ether the full awfulness of the experience of

displacement by virtue of climate change is captured by th e somewhat anod yne but st ill widely used terms

‘climate change migration’ and ‘climate change m igrant’.

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security, water availability and natural resource-dependent livelihoods; competition for

shrinking natural resources; and increased uninhabitability of coastal areas and islands

(thanks to rising tides).

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Estimates for the number of climate change migrants by 2050 vary

widely, from 25 million people to 1 billion people.

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The actual number will depend on, eg

‘which climate change scenarios will be borne out…what adaptation actions are

undertaken…and…the evolution of various socioeconomic, political and demographic

factors’.

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One recent study shows that in the European Union alone, holding everything else

constant, climate-related ‘asylum applications by the end of the century are predicted to

increase, on average by 28% (98,000 additional asylum applications per year)’.

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Children, the innocent inheritors of a future bequeathed to them by previous generations,

are likely to be especially badly impacted by climate change in at least four ways: (1) their

physiological/cognitive development and simple curiosity make them more exposed to

environmental risks; (2) many of the disease risks to young children, eg cholera, diarrhoea

and other vector-borne illnesses are sensitive to climate conditions; (3) the least developed

countries (which have large child populations) will likely bear the worst of climate change;

and (4) climate-related civil strife exposes children to all manner of risks, including

psychological trauma, forced migration, familial separation and recruitment into armed

forces.

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Women, the elderly, indigenous peoples, and people with disabilities are also at

heightened risk.

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It behoves lawmakers and lawyers to ensure that, when climate change

migration becomes an even more pressing reality than already presents (and it already

presents), the international/regional/domestic legal systems are duly equipped to take a

‘human-sensitive’ approach to the various issues presenting.

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At the European level, measures such as the Temporary Protection Directive seem unlikely

to suffice in terms of meeting the challenge of climate migration.

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(The Directive does not

mention environmental factors and the notion of ‘mass influx’ would only meet certain types

of climate-related migration).

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The need for further coordination/action by member states

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ibid 38.

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ibid. The divergence of estim ates as to the scale of likely futu re climate change migration is one of the

‘subst antial challenges’ that present wh en it comes t o ‘[p]olicy deliberations on environmentally related

migration” (Victor Mence and Alex Parrinder, ‘Environm entally related international mig ration: Policy

challenges’ in Marie McAuliffe and Kos ser Khalid, A Long Way to Go (Canberra: ANU Press 2017) 317-42,

317).

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ibid .

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Anouch Missirian and Wolfram Schlenker, ‘A sylum Applications Respon d to Temperatu re Fluctuations’

(2017) 358 Science 1610-14, 1610.

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Katharina Ruppel-Schlichting and others, ‘Climate Change and Children’s Right s’ in Oliver Ruppel and

others (eds), Climate Ch ange: Intern ational Law and Global Governance ( Baden-Baden: No mos Verlag 2013), Volume

I, 349-377, 354.

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ibid 349.

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United Nations Hu man Rights Committee, Views ado pted by the Com mittee u nder article 5 ( 4) of the

Optional Protocol, concerning comm unication No. 2728/2016 (CCPR/C/127/D/2728/2016) hereafter

‘Teitiota’, Dissenting View of Mr M uhumu za, para 6.

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ie Cou ncil Directive 2001/55/EC of 20 July 2001 o n minimum standards for giving temporary pro tection

in the event of a mass influx of displaced persons and on m easures promoting a balance of efforts between

Member States in receiving such persons and bearing t he consequences thereof (O.J. L212, 07.08.2001, 12-23).

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The term ‘ mass influx’ is defined in Art. 2(d) of the Directive as m eaning the ‘arrival in the Commu nity of a

large num ber of displaced persons, w ho come from a specific country or geographical area, whether their arrival

in the Comm unity was sp ontaneous or aided, for examp le throu gh an evacuation programme’. The potency of

the Directive is perhaps lim ited by the fact that the existence of a mass influ x can only b e ‘established by a

Council Decision ado pted by a qualified majority on a proposal from the Com mission, which shall also examine

any request by a Member State that it subm it a proposal to the Council’ (Art. 5(1)).