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Natural disasters, climate change and non-refoulement: What scope for resisting expulsion under Articles 3 and 8 of the European Convention on Human Rights?

Scott, Matthew LU (2014) In International Journal of Refugee Law 26(3). p.404-432
Abstract
Climate change is already contributing to the displacement of millions of people worldwide as extreme weather events become increasingly frequent and intense. Proposals for responding to the phenomenon of climate change-related displacement overwhelmingly rely on the state to act, with limited discussion of the potential to determine and develop the scope of protection through strategic litigation. This article considers the current and potential scope of protection under articles 3 and 8 of the European Convention on Human Rights (ECHR) from a strategic litigation perspective. Individuals facing expulsion from a European host state to a receiving state during or in the aftermath of a ‘pure’ natural disaster will generally struggle to... (More)
Climate change is already contributing to the displacement of millions of people worldwide as extreme weather events become increasingly frequent and intense. Proposals for responding to the phenomenon of climate change-related displacement overwhelmingly rely on the state to act, with limited discussion of the potential to determine and develop the scope of protection through strategic litigation. This article considers the current and potential scope of protection under articles 3 and 8 of the European Convention on Human Rights (ECHR) from a strategic litigation perspective. Individuals facing expulsion from a European host state to a receiving state during or in the aftermath of a ‘pure’ natural disaster will generally struggle to engage host state non-refoulement obligations under the ECHR. However, in circumstances where claimants can adduce evidence demonstrating that climate change has played a role in the disaster, it is arguable that a lower threshold test should be applied for establishing a breach of article 3 ECHR, either following the ‘predominant cause’ test applied in Sufi & Elmi v United Kingdom, or by arguing that expulsion cases involving climate change-related harm form a sui generis category because, unlike other article 3 non-refoulement cases, the host state is implicated. Claimants may additionally or alternatively invoke their right to physical and moral integrity under article 8, advancing arguments relating to the proportionality of expulsion in light of the host state’s disproportionate emission of greenhouse gases that cause climate change. Using two hypothetical scenarios, the article considers how such arguments could be developed in practice, whilst also identifying potential challenges. (Less)
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author
organization
publishing date
type
Contribution to journal
publication status
published
subject
keywords
Article 8 ECHR, Article 3 ECHR, non-refoulement, climate change-related displacement, strategic litigation, folkrätt, public international law
in
International Journal of Refugee Law
volume
26
issue
3
pages
404 - 432
publisher
OUP
ISSN
0953-8186
language
English
LU publication?
yes
id
59086330-5365-4364-9bdf-f85255e22354 (old id 4124158)
date added to LUP
2013-10-25 10:58:26
date last changed
2016-04-15 16:07:55
@article{59086330-5365-4364-9bdf-f85255e22354,
  abstract     = {Climate change is already contributing to the displacement of millions of people worldwide as extreme weather events become increasingly frequent and intense. Proposals for responding to the phenomenon of climate change-related displacement overwhelmingly rely on the state to act, with limited discussion of the potential to determine and develop the scope of protection through strategic litigation. This article considers the current and potential scope of protection under articles 3 and 8 of the European Convention on Human Rights (ECHR) from a strategic litigation perspective. Individuals facing expulsion from a European host state to a receiving state during or in the aftermath of a ‘pure’ natural disaster will generally struggle to engage host state non-refoulement obligations under the ECHR. However, in circumstances where claimants can adduce evidence demonstrating that climate change has played a role in the disaster, it is arguable that a lower threshold test should be applied for establishing a breach of article 3 ECHR, either following the ‘predominant cause’ test applied in Sufi & Elmi v United Kingdom, or by arguing that expulsion cases involving climate change-related harm form a sui generis category because, unlike other article 3 non-refoulement cases, the host state is implicated. Claimants may additionally or alternatively invoke their right to physical and moral integrity under article 8, advancing arguments relating to the proportionality of expulsion in light of the host state’s disproportionate emission of greenhouse gases that cause climate change. Using two hypothetical scenarios, the article considers how such arguments could be developed in practice, whilst also identifying potential challenges.},
  author       = {Scott, Matthew},
  issn         = {0953-8186},
  keyword      = {Article 8 ECHR,Article 3 ECHR,non-refoulement,climate change-related displacement,strategic litigation,folkrätt,public international law},
  language     = {eng},
  number       = {3},
  pages        = {404--432},
  publisher    = {OUP},
  series       = {International Journal of Refugee Law},
  title        = {Natural disasters, climate change and non-refoulement: What scope for resisting expulsion under Articles 3 and 8 of the European Convention on Human Rights?},
  volume       = {26},
  year         = {2014},
}