Climate migrants: How German courts take the environment into account when considering non-refoulement
The following article was written by Camilla Schloss, a judge at the Administrative Court of Berlin where she decides mainly on asylum and immigration cases. It was published on 3 March 2021 on Völkerrechtsblog, an academic blog on all matters of international public law and international legal thought.
In a recent landmark decision concerning an Afghan national a German Higher Administrative Court declared a ban on deportation (non-refoulement) based on German immigration law in conjunction with international human rights. The court’s main argument was that the humanitarian conditions in Afghanistan have seriously deteriorated due to the COVID-19 pandemic. It thereby explicitly mentioned “environmental conditions, such as the climate and natural disasters” as relevant factors for determining the humanitarian conditions in Afghanistan (VGH Baden-Wuerttemberg, judgement of 17 December 2020 – A 11 S 2042/20 – para. 25).
What relevance does this decision have for the millions of persons displaced in the context of natural disasters and climate change-related harm? Much has been written about the lack of a legal framework to address persons displaced due to natural disasters and climate change-related harm. In this article I would like to focus on existing legal developments. International and national case law has provided some examples of how protection might be possible outside the scope of the Refugee Convention. In the 2020 decision Teitiota v New Zealand, the UN Human Rights Committee considered non-refoulement obligations to derive from Art. 6 of the International Covenant on Civil and Political Rights for a person from Kiribati claiming that climate change and sea level rise was threatening his life. Later that year, a French Court of Appeals overturned an expulsion order against a Bangladeshi citizen on the ground that his respiratory illness would exacerbate due to air pollution in his country of origin.
What is the situation in Germany? This blog post investigates the current degree of protection granted by German courts for persons displaced in the context of environmental disasters and climate change. What you will see in the following paragraphs is that German courts take the environment into account when examining a ban on deportation based on immigration law and international human rights. This is another argument that non-refoulement protection based on human rights is what we should pay special attention to when assessing protection for climate migrants. [Read more here.]
