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Environmentally Induced Human Displacement and Human Rights: Bridging Legal Gaps Through a Human Rights-Based Approach
Abstract
This article discusses the complex issue of environmentally induced human displacement and emphasises the urgent need for a comprehensive approach to address it effectively. It begins by examining the terminology and underlying causes of environmentally induced human displacement and highlights the interdependence of environmental degradation, climate change and human migration. Next, it stresses the importance of protecting displaced individuals irrespective of terminology and advocates for a human rights-based approach as the most effective means to ensure their legal status and protection. The article calls for a paradigm shift within the human rights regime through the recognition of a right to a healthy environment in a legally binding global instrument. That shift would provide a stronger legal foundation for protecting environmentally induced displaced persons and would bridge the existing gaps in international law. Furthermore, the introduction of this right would empower States to clearly define their obligations and grant displaced individuals access to legal recourse and support systems, ensuring their rights are recognised and upheld.
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Human rights law is increasingly being mobilized to litigate against the effects of anthropogenic climate change. This now includes proceedings before the European Court of Human Rights, which is currently considering its first five climate cases. The present article contends that an examination of climate change as a human rights issue by the Strasbourg Court, although requiring transformations of existing case law, is not only possible but also normatively desirable. It does so while examining two interlinked topics that could prove crucial to this type of case. The first is the assessment of risk – that is, the ability of the European Convention on Human Rights (ECHR) to capture impending harms through the doctrine of positive obligations. Second, the article frames climate claims as a matter for Article 3 of the ECHR (the prohibition of torture and inhuman and degrading treatment). This right has gone largely ignored in the relevant scholarship and the Court’s environmental cases to date. The resulting discussion of positive climatic obligations is interlinked with a discussion of climate-related vulnerabilities, which could potentially shape state obligations and lower the procedural and substantive hurdles that imperil the success of climate cases before the Court.
This Chapter illustrates how the procedural environmental rights introduced by the Aarhus Convention have facilitated the shaping of an ‘Aarhus space’ in which human rights and the environment are able to interact in Europe. The Aarhus Convention Compliance Committee, the European Court of Human Rights and the Court of Justice of the European Union have each contributed to the shaping of this ‘Aarhus space’, in particular by using teleological means of interpretation. The Chapter suggests that within the ‘Aarhus space’ individuals and groups in society are exercising their right to protect the environment. What individuals and groups are implicitly claiming in relevant cases is that public authorities are hampering them in the exercise of this right, because authorities are not providing them with information, do not allow them to participate in decision-making or impede their access to justice. Individuals and groups then are not seeking to protect their own substantive rights, even if these may play a role in a given case, but rather the protection of the environment. The ‘Aarhus space’ thereby can be characterized as mostly eco-centric. © The Editors and Contributors Severally 2015. All rights reserved.
The European Court of Human Rights established the interpretative doctrine of margin of appreciation to support the subsidiarity principle underlying the whole system of the Council of Europe. Despite not being well accepted by theorists, the doctrine has found its way into many rights enshrined in the European Convention on Human Rights. This article analyzes how the Court applies the margin of appreciation in environment-related cases, based on Article 8 of the Convention. The objective is to uncover how the wide margin of appreciation granted to States in environmental matters impacts on the environment. In that regard, the methods of the Court in hearing environmental cases and their results are examined. Special attention is paid to how the Court balances the competing interests within the fair balance assessment and how it evaluates whether the respondent State exceeded the margin of appreciation.
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Additional Protocol to the American Convention on Human Rights in the Area of
Economic, Social and Cultural Rights (Protocol of San Salvador), oas Treaty Series No. 69
(1988), adopted on 17 November 1988, entered into force on 16 November 1999, Art 11.
Rapporteur: Mr Luigi Ferrari Bravo) The Institute of International Law
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Ferrari Bravo) The Institute of International Law, Environment (Session of Strasburg 1997)
Art 2.
Arts 4 and 6-9. For further details on environmental justice, see D Chotouras, 'L'encadrement juridique du changement climatique par le droit: une question de la responsabilité internationale
United Nations Economic Commission for Europe (unece), Convention on Access
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Environmental Matters (Aarhus Convention), Adopted on 25 June 1998, Entered into force
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Chotouras, 'L'encadrement juridique du changement climatique par le droit: une question
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J Albers, 'Human Rights and Climate Change, Protecting the Right to life of Individuals
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I Krstic and Bo Čučković,
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chotouras et al
International Human Rights Law Review 13 (2024) 412-441
The Future is Now: Climate Cases Before the ECtHR' (2022) 40(1) Nordic Journal of Human Rights 157
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chotouras et al
International Human Rights Law Review 13 (2024) 412-441
]; Carême v France (2024) and Duarte Agostinho and Others v Portugal and 32 Others
- Verein Klimaseniorinnen Schweiz
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Verein Klimaseniorinnen Schweiz and Others v Switzerland, Application no 53600/20 (9
April 2024) [gc]; Carême v France (2024) and Duarte Agostinho and Others v Portugal
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environmentally induced human displacement and human rights International Human Rights Law Review
- Ibid
Ibid, para 519.
environmentally induced human displacement and human rights
International Human Rights Law Review 13 (2024) 412-441
Summary for Policy makers
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- See
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See Report of the UN Special Rapporteur on the Issue of Human Rights Obligations Relating to the Enjoyment of a Safe, Clean, Healthy and Sustainable Environment
See Report of the UN Special Rapporteur on the Issue of Human Rights Obligations
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A/73/188 (19 July 2018) para 49.
chotouras et al
International Human Rights Law Review 13 (2024) 412-441