Evolution of Non-Refoulement Principle - Enabler for Protection of Environmentally Displaced People

Abstract

Climate change, one of the biggest challenges of our time, is disproportionately affecting vulnerable populations who have least contributed to it, forcing them to leave their homes and to seek protection in other countries. This doctrinal study analyses the scope under which protection of such environmentally displaced people is being granted. The study shows that such a scope is broad, reflecting the principles of international human rights law. However, the safeguards granted under international human rights law are typically general, while more specific and adapted protection, similar to the international refugee regime, is still lacking. As a result, there is no guaranteed protection against refoulement. The study examines various catalysts, such as: climate-related legal cases, including the contributions of the Teitiota v. New Zealand (2019) case and the Daniel Billy and Others v. Australia (2022) case; Advisory Opinions of the judicial authorities; private sector initiatives; international institutions initiatives; as well as the Australia-Tuvalu Falepili Union Treaty. The analysis further demonstrates that the broader context and key insights from those catalysts lay the foundation for the progressive development of international law. Finally, the analysis highlights the evolutionary potential of the non-refoulement principle, operationalized through a “four-step test” mechanism as a robust platform for further development of a normative protection framework for environmentally displaced people.