Refuge from climate change-related harm: Evaluating the scope of international protection within the Common European Asylum System

Extreme weather events have the potential to cause serious harm and can contribute to displacement. Such events are expected to increase in frequency and/or intensity as a consequence of climate change. It is therefore of concern that there is widely considered to be a protection gap when affected individuals cross an international border. However, apart from a handful of cases in Australia and New Zealand, the contours of this perceived gap have not been fully explored in practice. In its judgment in Teitiota v Chief Executive of the Ministry of Business Innovation and Employment, the High Court of New Zealand described a claim brought by a citizen of the low-lying Pacific island nation of Kiribati seeking protection from climate change-related harm as an ‘impermissible’ attempt to ‘dramatically’ expand the scope of the Refugee Convention. Far from spelling the end of litigation, this Chapter argues that this case, along with earlier cases in Australia and New Zealand, helps to clarify ways in which migrants fearing disaster-related harm may secure international protection in an era of climate change. Building on the notion of ‘pathways to protection’ articulated in AF (Kiribati), the Chapter considers the different circumstances in which affected persons may be entitled to international protection within the European Union and how the EU Qualification Directive might be relied upon to incrementally extend the scope protection in this context. The Chapter concludes that litigation may contribute to the development of the law by consolidating existing precedents and securing new ones, but also potentially through the articulation of normative principles that may help to guide State practice in a warmer world.