Exhausting heat waves, unstoppable wildfires and devastating floods, all linked to climate change, marked the summer of 2023. After the end of the (for many, very long) summer, we are talking about floods related to climate change, the consequences they create, as well as the development of legal mechanisms that can protect the affected population.
The catastrophic floods that hit Libya and Greece between September 9 and 11 are a tragic reminder of the increasingly serious consequences of climate change. Storm Daniel, which emerged as a Mediterranean hurricane-like system, brought unprecedented rainfall, especially in the eastern part of Libya. In just 24 hours, more than 400mm of rain fell along the north-east coast, a drastic departure from the average September rainfall of around 1.5mm for the region. Libya’s National Meteorological Center recorded this as a new rainfall record.
In Greece, the floods have caused damage over 700 square kilometers (270 square miles) in central farming belt, according to the European Union’s satellite and earth observation agency, Copernicus. The floods destroyed homes and roads and left thousands of households without power and water for days. Fifteen people have died in the deluge while several thousand were rescued in a major evacuation effort that included the use of helicopters.
After the floods that hit northeastern Libya, according to WHO sources, it is assumed that more than 5,000 are dead (6,000 according to UNICEF data), and a total of 3,922 deaths have been registered in hospitals. Over 10,000 people are still missing, so the numbers are likely underestimates given the limited data available. Aid organizations are seeking $71.4 million to address the most urgent needs of the 250,000 people targeted out of the 884,000 people estimated to be in need over the next three months.
The storm caused significant damage to infrastructure, including the road network, disrupted the telecommunications network and caused displacement.
According to UNHCR and UN OCHA data, 43,059 people are currently displaced. In addition, IOM DTM reports over 900 displaced families from the affected area in eastern Libya and Derna to western Libya, including the capital Tripoli. The reported numbers are likely to rise as the emergency response continues.
The question arises – how will Libya, as a country that is already politically and economically shaken, cope with such a problem?
Since August 5, 2023, incessant monsoon rains have lashed Bangladesh, particularly Chattogram, Cox’s Bazar, Rangamati and Bandarban areas. Heavy rainfall, ranging from 44 to 89 mm, led to flash floods and landslides in hilly areas.
Floods and landslides affected 2.4 million people (according to UNICEF data as of August 17, 2023), while 600,000 people are in need of humanitarian assistance, with 51 deaths reported. Major rivers in the region overflowed, blocking major transport routes, causing damage to up to 410 kilometers of roads. (UNICEF, September 5, 2023)
In Cox’s Bazar, some 538,373 people were at risk following floods and landslides, while nearly 85,500 people were displaced or in shelters (UNICEF, 25 September 2023)
The topic of floods is also extremely relevant for Serbia, mostly from the aspect of damage suffered and impaired health and living conditions.
During the summer floods in Serbia in 2023, heavy rainfall and floods hit more than 56 municipalities and cities, causing landslides in some municipalities, while severely damaging essential infrastructure, such as roads and bridges, agricultural land, as well as people’s homes.
Affected households faced significant damage to housing, basic infrastructure needed for daily activities, and livelihoods of local residents. Households in rural areas and villages especially suffered a lot of damage on agricultural land.
According to the estimate of the branches of the Red Cross, more than 15,432 people (5,144 households) suffered damage.
Connection with climate change
These events illustrate how climate change directly affects extreme weather events, such as these devastating floods. Increased precipitation, more intense heat waves, and altered weather patterns are becoming more frequent, creating serious threats to the safety and well-being of people around the world. In order to adequately face the increasingly frequent disasters of this type, it is necessary to urgently take measures to reduce greenhouse gas emissions and adapt to changed climate conditions.
IPCC reports confirm that climate change brings with it droughts, heat waves, floods and increasingly aggressive storms. The negative consequences of the mentioned changes in climate conditions are incalculable. Not only is there a direct danger to people’s lives and health, but the risk of starvation is increased due to the unavailability of food and water, the development of pathogens is accelerated and there is a greater risk of mass infection with certain bacteria. The emergence of new food-borne and water-borne diseases has increased, and pre-existing animal and human diseases are emerging in new areas.
It seems that in such cases, the state authorities respond with ad hoc measures, and a significant part of rehabilitation is financed by donors, through the work of international and local organizations. The measures stop at rehabilitation, and depend on the ability and readiness of the executive power and municipal units. Citizens cannot rely on long-term, preventive or systemic solutions.
In addition to the devastating consequences that occur for the local population and property that are directly affected by such disasters, climate change will also affect the entire region, as it will trigger a new wave of refugees and migrants – the climate-induced ones. The damage caused this summer as a result of floods and fires is only the first in a series of disasters expected as a result of climate change.
Such changes make normal life difficult or even impossible in certain regions, and the population of those regions is expected to start moving across borders, in search of better living conditions, or to escape from hunger and disease.
Climate refugees in UN practice
Article 14 of the Universal Declaration of Human Rights affirms the right of everyone to seek and enjoy asylum. However, the concept of asylum at the international level was not given clear content until the 1951 Convention Relating to the Status of Refugees (1951 Convention) was adopted, and the UNHCR was tasked with overseeing its implementation. The 1951 Convention and its 1967 Protocol, as well as regional legal instruments, such as the 1969 OAU Convention Governing Specific Aspects of Refugee Problems in Africa (1969 OAU Convention), are the cornerstones of the modern refugee protection regime. They set a universal definition of a refugee and include the basic rights and obligations of refugees.
The 1951 Convention Relating to the Status of Refugees and its 1967 Protocol Relating to the Status of Refugees (together the Refugee Convention) form the basis of the international refugee protection regime. Over 148 countries are signatories to one or both instruments.
A “refugee” is defined as a person who has crossed an international border “due to a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion.”
The OAU Convention regulating certain aspects of refugee problems in Africa from 1969 is also significant for this issue, as it provides protection to refugees in cases of events that “seriously disturb public order”, under which term natural disasters can also be included.
Climate change affects people and usually creates internal displacement before it reaches a level where it displaces people across borders. However, there may be situations where the refugee criteria of the 1951 Convention or the broader refugee criteria of regional refugee law frameworks could apply. People may have a valid claim for refugee status, for example, where the adverse effects of climate change interact with armed conflict and violence.
We refer to the study “In Harm’s Way”, through which UNHCR in 2020 indirectly provided guidelines for interpretations and directing the international discussion on the topic of climate refugees, analyzing several known cases. One of them is the case of Somalia.
Between late 2010 and early 2012, southern and central Somalia faced severe famine. On July 20, 2011, the UN declared famine in certain parts of Somalia, the first time since 1991-1992. that famine was officially declared in Somalia. Although famine conditions ended by February 2012, the humanitarian crisis continued.
The absence of rain for two consecutive years, in late 2010 and between March and June 2011, contributed to this later failure, suggesting that climate change played a role. During 2011 and 2012, large numbers of Somalis crossed international borders, primarily into Ethiopia and Kenya, fleeing starvation. It is estimated that about 150,000 Somalis arrived in Kenya and 120,000 in Ethiopia.
On this occasion, UNHCR is issuing qualifying guidelines for assessing the international protection needs of asylum seekers from Somalia from 5 May 2010 (2010 Eligibility Guidelines). This document recognizes that Somalis may, depending on the circumstances surrounding their flight, qualify as refugees within the meaning of the Refugee Convention definition. This is in view of serious and widespread human rights violations and ongoing armed conflict and insecurity in much of southern and central Somalia.
In April 2017, UNHCR issued Legal Considerations on Refugee Protection for People Fleeing Conflict and Famine-affected Countries (Legal Considerations of Conflict and Famine), which explains how environmental factors can influence human factors, and outlines the applicability of the Refugee Convention and we apply wider refugee criteria to the issues of climate refugees. The document concludes: People displaced by humanitarian crises linked to a mix of conflict, public unrest, the effects of climate change and drought need international protection. Based on the way these crises unfold, they qualify as refugees within the meaning of the 1951 Convention or the OAU Convention of 1969, or, when they do not fall into this group according to the criteria for refugee status, they should be granted complementary protection statuses where applicable under national law.
Regardless, UNHCR does not use the term “climate refugee” in its practice, and this term, based on all of the above, can be replaced with “persons displaced in the context of disasters and climate change”.
In Europe, the European Convention on Human Rights, as well as the developed practice of the European Court of Human Rights, especially the application of the non-refoulement principle, are significant in this segment.
On the other hand, the term “migrant” is used in practice as an umbrella term for all persons who move across borders, and as an “umbrella term” also covers refugees, but it should be emphasized that the term “migrant” does not have a generally accepted definition, and that migrants who the position of refugees is not recognized and they do not enjoy any international legal protection.
In the literature, the term “environmental refugees” or “environmental migrants” is also used, which mainly denotes a wider range of natural disasters as the cause of movement, which may also include earthquakes, environmental incidents, etc.
Climate cases in the practice of international courts
In several climate cases that have appeared before international bodies in the past few years, issues related to sea level rise or worsening weather events due to climate change are repeated, and states are being held accountable for the resulting damage. Although the following cases do not exclusively involve flooding caused by climate change, we believe that the development of jurisprudence in these cases is extremely important to the topic we are dealing with.
In one case, a group of eight Torres Strait Islanders, Australian citizens and six of their children filed a petition against the Australian government with the United Nations Human Rights Committee. They are all indigenous to a small island in Australia’s Torres Strait region. The islanders claimed that the changes in the weather have direct adverse effects on their livelihoods, their culture and traditional way of life. Islanders said severe flooding caused by high tides in recent years destroyed family graves and left human remains scattered across their islands. They claimed that maintaining ancestral cemeteries and visiting and communicating with deceased relatives were at the heart of their culture. In addition, the most important ceremonies, such as coming-of-age ceremonies and initiation ceremonies, have cultural significance only if they are performed in the native lands of the community. The islanders also claimed that climate change with heavy rainfall and storms had degraded the soil and trees and consequently reduced the amount of food available through traditional fishing and agriculture.
According to materials released by prosecutors, the complaint alleges that Australia’s lack of action on climate change violated the following rights under the International Covenant on Civil and Political Rights (ICCPR): Article 27 (Right to culture), Article 17 (Freedom from arbitrary interference with privacy, family and home), and Article 6 (Right to life). The complaint further alleges that these violations also stem from insufficient targets and plans to mitigate greenhouse gas emissions and inadequate funding for coastal defense and island resilience measures, such as seawalls.
On 23 September 2022, the UN Human Rights Committee found that Australia’s failure to adequately protect indigenous islanders from the harmful effects of climate change violated their rights to enjoy their culture and to be free from arbitrary interference with their private lives, family and home.
In a New Zealand case of Ioane Teitiota v. The Chief Executive of the Ministry of Business, Innovation and Employment, a Kiribati citizen appealed the denial of refugee status in the New Zealand High Court. The appellant argued that the effects of climate change on Kiribati, namely rising ocean levels and environmental degradation, are forcing citizens off the island. Since the climate related lack of drinking water, food, and damage of property is not addressed properly by the state, the island is slowly getting uninhabitable. The High Court found that the impacts of climate change on Kiribati did not qualify the appellant for refugee status because the applicant was not subjected to persecution required for the 1951 United Nations Convention relating to the Status of Refugees.
The applicant appealed the decision to the Court of Appeals. In dismissing the application, the Court of Appeals noted the gravity of climate change but stated that the Refugee Convention did not appropriately address the issue. The applicant again appealed, this time before the Supreme Court of New Zealand. The Supreme Court affirmed the lower courts’ conclusions, finding that the applicant did not qualify as a refugee under international human rights law.
The Court noted, however, that its decision does not rule out the possibility “that environmental degradation resulting from climate change or other natural disasters could create a pathway into the Refugee Convention (…)”
Furthermore, in September 2020, six young Portuguese people filed a complaint with the European Court of Human Rights (ECtHR) against the 33 countries signatories of the Paris Agreement. The complaint alleges that the respondents have violated human rights by failing to take sufficient action on climate change and seeks an order requiring them to take more ambitious action, citing Articles 2, 8 and 14 of the European Convention on Human Rights, which they protect the right to life, the right to privacy and the right not to experience discrimination.
The complainants claim that their right to life is threatened by the consequences of climate change in Portugal, such as forest fires; that their right to privacy includes their physical and mental well-being, which is threatened by heat waves that force them to spend more time indoors; and that they will experience the worst consequences of climate change as young people. Hearings in this procedure are ongoing.
Decisions are also awaited in two remaining climate cases before the ECtHR: Verein Klimaseniorinnen Schweiz and Others v. Switzerland, and Carême v. France.
The International Tribunal for the Law of the Sea (ITLOS) received a request for an opinion on the application of maritime law in cases of damage caused by climate change, submitted by the Commission of Small Island States (COSIS) and a summary of the submitted opinions and of interpretations was published in October 2023.
The central issue before ITLOS is whether member states of UNCLOS (UN Convention on Law of the Sea) have special obligations in relation to the prevention, reduction and control of pollution of the marine environment resulting from climate change, as well as the protection and preservation of marine environment regarding the impact of climate change. While states and civil society organizations have presented various arguments in their submissions and statements, they mainly relate to three key aspects of international maritime law: (i) the jurisdiction and ability of ITLOS to issue an advisory opinion on climate change, (ii) the definition of pollution seas under UNCLOS and (iii) responsibilities of states in the context of climate change under UNCLOS. The central question that arises is whether the emission of GHG in the context of climate change can be subsumed under the term “pollution of the marine environment”.
The growth in the number of climate cases in which we have the opportunity to review the interpretations of international organizations and tribunals regarding the negative effects of climate change is of exceptional importance for the regional application of human rights law, but also for the application of domestic legislation in this area. As we know, environmental protection requires a creative approach to the interpretation of institutes, and the development in these cases is of exceptional importance for the protection of the rights of the most vulnerable.
The summer of 2023 will forever remain in the memories of people around the world, not only because of the high temperatures, but also because of the terrible weather events that hit many regions. The latest in a series of these devastating events were the recent floods in Libya.
Through this text, we have looked at the practice of the UN in the treatment of refugees from areas affected by natural disasters caused by climate change, taking into account significant climate cases. The emphasis is on floods related to the effects of climate change, but similar mechanisms can be included when it comes to damage caused by strong storms and rising sea levels.
Faced with the unpredictable consequences of climate change, it becomes clear that we must take a closer look at how international and national legal frameworks will respond to these challenges and protect the basic human rights of citizens at risk. Climate change is a global problem that knows no borders, and as such, requires a global response. There are already discussions in international circles about defining the status of “climate refugees” and the rights that should be guaranteed to these people. It is important to build a consistent and comprehensive legal framework in the future that will enable effective treatment and protection for those forced to leave their homes due to climate disasters.
When it comes to Serbia, the risks of devastating flash floods as a consequence of climate change should be taken into account when creating all strategic plans, as well as when addressing issues related to the rehabilitation and prevention of climate change.
As we have seen from the example of Libya and other similar situations around the world, climate change not only leads to loss of life and destruction of property, but also raises serious questions about justice and human rights. To prepare for the future, we must continue to research, develop policies and legislation, and act at all levels to protect what is most valuable – the lives and well-being of all citizens, globally.