7.1 Introduction

The ‘Anthropocene’ has flourished as a common scientific term to designate the period of Earth’s history in which humans have a crucial influence on the present and future of the Earth system associated with a variety of anthropogenic processes, including colonization, agriculture, urbanization, industrial activities and global warming (Brisman & South, Reference Brisman, South, Holley and Shearing2018; Zalasiewicz et al., Reference Zalasiewicz, Waters, Williams and Summerhayes2019). As an example of what such an Earth transformation signifies, Soriano remarks that ‘only human action has already provoked the major mass vertebrate extinction in the Earth history known from the stratigraphic record’ (Soriano, Reference Soriano2020, p. 2). Hence, green topics are increasingly recognized as being of serious importance at a time when climate change and resource contestation are identified as global challenges (White & Kramer, Reference White and Kramer2015). In this light, both environmental criminal law and green criminology assume thought-provoking roles which are aimed at achieving broader sympathetic knowledge on such environmental threats (García Ruiz, Reference García Ruiz2018; White, Reference White2018; Brisman & South, Reference Brisman and South2020).

The aim of this chapter is to examine whether and how environmental criminal law at an international level, coupled with strategic use of environmental law at a national level, may lend a hand to enlighten and make evident the violence behind eco-migration. Forced displacement is well represented in auxiliary contexts of soft law, often amalgamated with societal instruments, but they do not work for setting up legal barriers to ecocide coming from governmental and corporate (dirty) activities that hasten human mobility flows in various areas of the planet, not always the poorest ones. Based on environmental migration outlook, the aim of this chapter is to examine whether and how environmental criminal law strategies, combined with strategic use of environmental law at a national level and, of course, soft law or societal instruments, can be merged for setting up legal barriers to ecocide coming from governmental and corporate activities that are responsible for major environmental harm that often hasten mobility flows. The international criminal justice system does not include the protection of the environment from harmful effects of ecocide including one of its more intricate consequences, that is, territories affected by environmental damage resulting in forced or voluntary migration flows, both induced by the suffering of native populations, as well as other eco-victim archetypes (García Ruiz, Reference García Ruiz2018). As a natural consequence, this chapter also discusses the eventual right to migration of environmentally displaced populations, inasmuch as the concepts of ‘migrant’ and ‘displaced person’ seem not to have the same meaning. Speaking on behalf of the vulnerability and adaptive capacity approaches along with ‘loss and damage’, ‘migration as adaptation’, securitization tendencies and migration-friendly solutions (Etzold & Sakdapolrak, Reference Etzold and Sakdapolrak2016; Ober & Sakdapolrak, Reference Ober and Sakdapolrak2017; Fröhlich & Kleep, Reference Fröhlich and Kleep2018; McNamara et al., Reference McNamara, Bronen, Fernando and Klepp2018), this chapter recommends searching for integrated paths in which voices from potentially involved communities can be heard.

7.2 The Stimulus of a (Projected) Ecocide Act

The term ‘ecocide’ describes extensive damage to, destruction of or loss of ecosystem(s) of a given territory, whether by human agency or by other causes, to such an extent that peaceful enjoyment by the inhabitants ‒ human and non-human ‒ of that territory has been severely diminished (the environmental equivalent of genocide according to Higgins, Reference Higgins2012).Footnote ¹ It is obvious that a higher rate of effective prevention and reduction of environmental disasters must not be postponed. All these environmental issues and their transboundary implications for humans and non-humans deserve a strong emphasis on the importance and legitimacy of international criminal law concerning the environment. Certainly, over time, ecocide has gradually taken on certain parallels with genocide (Gauger et al., Reference Gauger, Rabatel-Fernel, Kulbicki, Short and Higgins2012).

Yet at an international level, the International Criminal Court (ICC) is the single competent judicial authority to prosecute individuals for the international crimes of genocide, crimes against humanity, crimes of aggression and war crimes according to the Rome Statute (RS) – in force from 1 July 2002. So far, the ICC has brought a few criminal offenders to trial though the selected cases are not transmutable for prosecution of international environmental crimes. Even within the existing legal corpus it is not possible because the RS refers only to environmental damage caused during wartime. Particularly in the context of criminal law, green crimes in peacetime are, in effect, overlooked by all international strata. The ICC’s sole legal instrument, the RS, refers strictly to environmental damage caused during wartime (article 8.2 b. iv). However, a relatively new line of reasoning may allow the ICC to expand its area of activity towards environmental crimes, including illegal deforestation, land-grabs, and the prosecution of transnational, corporate environmental crime (Bernaz, Reference Bernaz2017). In September 2016, the Office of the Prosecutor unexpectedly issued a Policy Paper on case selection and prioritization, which foresees the extension of its jurisdiction under certain premises (International Criminal Court, 2016). In this context, the overture to further concrete legislation might arise from the proposal for an Ecocide Act, which is an open declaration proposing a natural evolution of law, that is, inserting the crime of ecocide as the fifth crime against peace. In April 2010, a fully drafted proposal was submitted to the United Nations by Polly Higgins.Footnote ²

As the greatly missed visionary Higgins pointed out, it should be relatively effortless to change ‘the rules of the game’, and criminal law can be used to prevent environmental abuse (Higgins, Reference Higgins2012). The inspirational work she carried out is being continued by an international team through the platform ‘Stop Ecocide’, along with distinct cooperation events led by the social movement ‘Extinction Rebellion’ as well as the commitment of several countries, for example, Vanuatu (Oceania).Footnote ³ Small Pacific islands on the frontline of climate breakdown are best placed to demand an ecocide law due to the fact that any member State, however small, can propose it as an amendment to the Rome Statute. Small Island Developing States are under-represented at the ICC – they simply lack resources to pay for delegates to attend, and so remain largely invisible and their issues remain silent. Climate change is a threat to Pacific Island countries and territories and therefore these are widely viewed as likely sites of climate‐related migration, displacement, and resettlement (Farbotko et al., Reference Farbotko, McMichael, Dun, Ransan‐Cooper, McNamara and Thornton2018; Klepp & Chavez-Rodriguez, Reference Klepp, Chavez-Rodriguez, Klepp and Chavez-Rodriguez2018). The Statute had already been amended when the crime of aggression was added in 2017, so there is a singular precedent for proposing other similar regulation attempts. Besides Macron’s relatively strong support in France (see the official response in July 2020 to the 150 randomly selected members of the French citizens assembly on climate, the Convention Citoyenne pour le Climate) and the Pope’s response letter at the World Congress of the International Association of Penal Law advocating for the inclusion of a fifth category of crimes against peace ‒ different initiatives are calling for an ecocide law.

The Ecolo-Groen (Green) party in Belgium and the Social Democrats, Greens and Left Party in Sweden, all aimed to submit a bill into their parliaments, to propose legislating for ecocide both nationally and at an international level, backing the call from Vanuatu and the Maldives back in December 2019. The motion has been also echoed in Canada, Luxembourg, Finland, Spain, Netherlands, Portugal and the European Union. In this light, the open campaign to draw a dynamic legal definition of ecocrime recently pioneered by Stop Ecocide represents a definitive step forward, as it informs consultation that involves opinions from well-known international lawyers but also from the public, state parties, individuals, groups, organizations, corporations, and institutions. In this day and age, we can count numerous examples of ecocide around the world, for example, the recent but recurrent catastrophe destroying Europe’s largest saltwater lagoon in the coast of Mar Menor (Spain) (García Ruiz et al., Reference García Ruiz, South and Brisman2022). Several social platforms and scientists launched a pioneering initiative petitioning to turn Mar Menor into a legal entity to protect it against ecocide, but though this proposal has been admitted for processing, it has also been criticized due to the lack of scientific and technical criteria required in order to be supported in an ambitious but moreover realistic manner (Pérez-Solero, Reference Pérez-Solero2020).

The argument for an Ecocide Act and the International Criminal Court’s function regarding environmental ‘crime’ (Higgins, Reference Higgins2012, Reference Higgins2015) raises two main key research questions. First is how an international agreement on ecocide might stimulate the engagement of populations in the prevention of ecocide. Second, given that ‘climate change is both a discursive and material phenomenon’ (Farbotko & Lazrus, Reference Farbotko and Lazrus2012, p. 382), might an Ecocide Act promote a framework for the inclusion of the right of environmental asylum within future legal corpus for ‘eco-refugees’ at an international level? It is essential to establish innovative forms of reinforcement to confront this type of social exclusion under the cloak of an international loophole in view of the 1951 Convention Relating to the Status of Refugees not being valid sensu stricto for offering protection to eco-migrants. The serious environmental challenges that humanity will have to face in the rapidly approaching future requires taking scientific forecasts as a guide, and the theoretical and scientific contribution of Green Criminology is likewise vital since it takes on a critical interpretation in analysing disparate environmental crimes and the consequences of human behaviour for the environment (Brisman & South, Reference Brisman and South2020, Reference Brisman and South2019).

7.3 Are We Climate Refugees or Not?

The increasing ambiguity surrounding general terminology with the inclusion of expressions such as ‘climate refugee’, ‘environmental migrant’, ‘environmental refugee’, ‘climate-induced migrant’ (among others) also adds to the confusion and restricts recognition of the anomaly of forced migration. Instead, this chapter, harnessing the compound word ‘eco-migrant’, links the two central proposals argued below. While the label of eco-victim provides a global concept embracing both notions, the expressions ‘displaced person’ and ‘environmental static victim’, will be used when appropriate depending on legal or programmatic cited texts. In addition, the idea of ‘static eco-victim’ considers that, besides those migrants who may be displaced or move out voluntarily from their original or habitual temporary, long term, or permanent place of residence, other groups have no such opportunity since they are compelled to remain in polluted areas. These static eco-victims, as distinct from climate refugees, symbolize the abandonment of climate concerns (Brisman et al., Reference Brisman, South, Walters, Carrington, Hogg, Scott and Sozzo2018, p. 310), as ‘trapped populations’.

According to the UK Government’s Foresight Migration and Global Environmental Change report (Foresight, 2011) – the first narrative that identified such a stereotype, it involves ‘people geographically “trapped” in environmentally high-risk areas due to economic, legal, or social constraints upon their mobility’ (Ayeb-Karlsson et al., Reference Ayeb-Karlsson, Smith and Kniveton2018, p. 558; Schewel, Reference Schewel2020, p. 338). The question here is whether such static eco-victims are formally covered by any international provision in the case that their respective governments do not preserve their rights, and they certainly are not. I would dare to further argue that this holds the same maze with no exit for developed countries due to the extreme violence associated with climate change and global warming. Also, we are assisting a recurrent denial of the socio-ecological inequalities regarding negative effects of environmental conditions. In the words of South, ‘unequal and differentially distributed (negative) impacts … affecting those who have contributed least to anthropogenic climate change’ (South, Reference South2019, p. 62), that favours the recurrent capitalization of certain privileged sanctuaries, friendly, greening, and sustainable ‘eco-enclaves’ by means of gated, entrenched communities against their local dwellers (South, Reference South2019). For example, the Eko Atlantic project in Nigeria, conceived ‘as a walled sanctuary for the richest one per cent while impoverished locals are evicted from their nearby homes to provide space for the development’ (South, Reference South2019, p. 67). Definitely, ‘for some of those who can afford it, relocation to less stressed and less risky environments will be an attractive possibility’ (South, Reference South2019, p. 62).

Furthermore, there exist environmental sufferers who are unaware of their condition (label) as victims, such as children, elderly people or populations that merely have no access to regular information about the environment they inhabit (Skinnider, Reference Skinnider2013; Myers & Theytaz-Bergman, Reference Myers and Theytaz-Bergman2017). Therefore, distinct interactions between international ecocide protection and ongoing knowledge on the environmental migration crisis should adopt modern stances and methodologies in order to offer a complete configuration of both phenomena, ecocide and climate migration. Some approaches are useful for understanding the causal linkages between climate stimuli and migration behaviour. For example, the Sustainable Livelihoods Approach (SLA) seeks to explain the responses of households to external vulnerabilities in terms of a variety of strategies. In this sense, climate change and variability can be considered as factors that change households’ levels of vulnerability, whilst migration is one possible strategy in response. Another perspective is the New Economics of Labor Migration (NELM) which addresses more directly why individuals migrate, although again in the context of household decision-making (International Organization for Migration, 2008). It will allow for several migration terminological trends such as ‘relocation’, ‘forced-voluntary mobility’, ‘loss and damage’, etc., that are able to count on the participation of such affected and marginalized populations, increasing monitoring of the likely vulnerable areas on the planet as well as for providing more in-depth analysis (Farbotko & Lazrus, Reference Farbotko and Lazrus2012; Morrissey, Reference Morrissey, Hastrup and Fog Olwig2012; McNamara et al., Reference McNamara, Bronen, Fernando and Klepp2018; Santos & Mourato, Reference Santos and Mourato2022).

Concerning eco-migration, despite the notion of the environmental refugee having been discussed for nearly 30 years (Brown et al., Reference Brown, McGrath and Stokes1976; El-Hinnawi, Reference El-Hinnawi1985), disgracefully, neither transnational nor internal ecological displacement are yet sufficiently identified by international humanitarian law frameworks or by national rules in numerous countries. Even though the number of people is expanding steadily, it is still problematic in trying to offer a clear definition capable of bringing forms of eco-migration processes together, given their inherent complexity, as they can be caused by a myriad of factors. Environmental migration is multifaceted, particularly as demonstrated by ecological disasters (floods), industrial practices, deforestation, water scarcity, extreme heat, rising sea levels, siltation of rivers, urban planning, etc. Regardless, environmental matters are behind the migration phenomenon in most cases, a great many built into, or hidden by social, political and economic factors (Farbotko & Lazrus, Reference Farbotko and Lazrus2012). Few people would want to move out from their respective country, region or local community without having robust reasons for doing so. Referring to nomadic communities believed to be constantly on the move, Nabenyo (Reference Nabenyo2020) points to an example to demystify this old conception.

In Kenya, the Turkana, a nomadic-pastoralist community are compelled to move from place to place in search of pastures; however, when Turkana nomads have access to water and green pasture they do not keep moving on. The decision to move is therefore not a voluntary one. Most of the time these victims need an improved quality of environmental life that is, in a certain sense, the only possible choice to avoid forced displacement. It is also well known that they are unlikely to be welcome in the receiving country due to both the current discourse on citizenship and the consequences of ‘crimmigration’, a neologism that draws attention to the interlinkages between migration law and criminal law (Stumpf, Reference Stumpf2006). Climate migrants, therefore, will have to deal with unethical but widely spread speeches on the part of economically developed countries, a discourse genuinely bound to moral and political isolation that is capable of rejecting migrants that have arrived at their frontiers (Brouwer et al., Reference Brouwer, van der Woude and van der Leun2017; García Ruiz, Reference García Ruiz2018). It is readily accepted there are no simple causal relationships between the environment, migration and displaced people; there is indeed no economic improvement under unsuitable environmental conditions (see some case studies reported by Bedarff & Jakobeit, Reference Bedarff and Jakobeit2017). All these factors contribute to the loss of biodiversity, decline of ecosystems and destruction of any form of life in such ravaged areas; however, when people are able to farm the land, have access safe drinking water or draw on natural resources, it will be less probable they decide to migrate. As Watts et al. (Reference Watts, Amann and Arnell2018, p. 2490) note ‘Climate change is the sole contributing factor for thousands of people deciding to migrate and is a powerful contributing factor for many more migration decisions worldwide’.

7.4 What Regional Maps on Migration, Environment and Climate Change Tell Us

Several regional maps recently launched are shedding light on the enormous extension of climate change related problems. Funded by the European Union and created under the Migration, Environment and Climate Change: Evidence for Policy (MECLEP) project, in collaboration with IOM – Sciences Po project on the Atlas of Environmental Migration, these maps describe scientific forecasts ranging from the increase in global average air and sea temperatures; the prevalent melting of snow and ice; the intensification and high variability of extreme weather events; the acidification of the oceans; and the rising average global sea levels (Ionesco et al., Reference Ionesco, Mokhnacheva and Gemenne2017). Climate change has already affected all regions of the world, but its regional and local impacts are uneven, and hard to predict accurately.

Researchers working on the use of algorithms to forecast population displacement are suggesting how difficult it is to predict millions of such climate refugee routes, since their next frontier appears to be apparently their last frontier (Groen & Suleimenova, Reference Groen and Suleimenova2019), that is, it is impossible to figure out if the very last movement will be their ultimate destination or not. Despite some bold and exciting claims that the refugee forecast has largely been resolved, this is not entirely accurate (Groen & Suleimenova, Reference Groen and Suleimenova2019). The polymorphy of socio-spatialities in vulnerability research includes the external side (exposure and sensitivity) and the internal side (coping and adaptation) of vulnerability (Etzold & Sakdapolrak, Reference Etzold and Sakdapolrak2016, p. 241). Researchers did test this method on collected data by the United Nations Human Rights Council over three recent conflicts in Burundi, the Central African Republic and Mali that turned out to be significantly more precise than foreseen regarding more than 75 per cent of cases searching for shelter. In the years ahead, the local effects and vulnerability of populations will depend greatly upon local exposure, development and adaptive capacities, future demographic and economic changes, and mitigation adaptation policies to be undertaken (see the description of Etzold & Sakdapolrak Reference Etzold and Sakdapolrak2016, p. 241). These graphs also illustrate some of the most prominent regional changes that have already been occurring and what is yet to come across the globe and their impact on humans and ecosystems. Exacerbating socio-economic vulnerabilities are observed thanks to several emerging patterns linked to changing climate which are affecting human mobility worldwide through both slow-onset environmental and ecosystem changes and sudden-onset extreme weather events (Ionesco et al., Reference Ionesco, Mokhnacheva and Gemenne2017). Voluntary or forced environmental migration is likely to rise due to effects of climatic change such as increased water stress, greater food insecurity, and accelerating risks related to health and human security. Moreover, the maps identify a number of ‘climate change hotspots’ – in other words, areas undergoing a combination of distinct extreme climatic risks that are expected to be particularly harmful to human survival.

In the same vein, the first-ever scientific report carried out in the Mediterranean basin asserts that ‘the region faces unequal distribution of resources, social instability, conflict and migration’ (MedECC, 2019, p. 5). This ambitious work relies on previous research by a panel of over 80 scientists (see Cramer et al., Reference Cramer, Guiot, Fader, Garrabou, Gatusso, Iglesias, Lange, Lionello, Llasat, Paz, Peñuelas, Snoussi, Toreti, Tsimplis and Xoplaki2018). The researchers’ findings identify the Balearic Islands, the northwest Ionian, the Aegean and Levantine Seas as the regions of maximum sea surface temperature increase. As such it implies both rising sea levels and water acidification as ocean pH has decreased dramatically since the pre-industrial period, an unprecedented fact in the past 65 million years. With respect to social instability and unrest, conflict and migration, the report points out that human security in the Mediterranean is highly dependent on the socio-political situation but similarly impacted by ecological environmental mutations (MedECC, 2019, p. 20).

Further studies on patterns for indirectly affected people, for example in the United States, show that such indirect repercussions, mostly due to sea level rise, will prompt accelerated changes for inland zones, especially urban areas, which will stand greater ‘levels of incoming migrants than they would have without climate impacts’ (Robinson et al., Reference Robinson, Dilkina and Moreno-Cruz2020). Globally, researchers are also suggesting ‘a strong tension between expected future population distributions and the future locations of climate conditions that have served humanity well over the past millennia’. They conclude that, in addition to climate mitigation, enhancing human development in certain areas should be a prime concern ‘as the potentially most affected regions are among the poorest in the world’ (Xu et al., Reference Xu, Kohler, Lenton, Svenning and Scheffer2020).

7.5 Eco-Migrants: State of Play

For its part, the International Organization for Migration (IOM) proposed the following definition: ‘Environmental migrants are persons or groups of persons who, for compelling reasons of sudden or progressive changes in the environment that has adversely affected their lives or living conditions, are obliged to leave their home, or choose to do so, either temporarily or permanently, and who move either within their country – known as Internally Displaced Person (IDP) or abroad’ (IOM, 2007). According to the IOM, three types of environmental migrants are identified so far: ‘Environmental emergency migrants’ – people who flee temporarily due to an environmental disaster or sudden environmental event (e.g., hurricanes, tsunamis, earthquakes, etc.); ‘Environmental forced migrants’ – people who have to leave due to deteriorating environmental conditions (e.g., slow deterioration of their environment such as deforestation, coastal deterioration, etc.); and ‘Environmental motivated migrants’ or ‘environmentally induced economic migrants’ – people who choose to leave to avoid possible future problems (e.g., declining crop productivity caused by desertification). The sum total of current eco-migrants is uncertain as predictive figures are merely guesswork, yet reports do show an alarming rate for potentially receiving countries which, inversely, contributes to justifying an increase of isolationist policy in developed countries, which are usually cited by literature as the largest receivers, in particular when referring to migration from the Global South to the Global North (Fröhlich & Klepp, Reference Fröhlich and Kleep2018, p. 113). As a recent example, the new immigration system in the UK has introduced some notably radical proposals designed to discourage people from crossing the Channel in small boats to claim asylum. The concept of ‘environmental migration’, however, is solely applicable to certain contexts and complicated to be defined at a global level. Being mindful of the fact that the environmental refugees label is, to date, outside the legal corpus for refugees at an international level, the task of how to define environmental migration also becomes controversial.

What is crucial is that eco-migrants are regarded as having second-class rights in comparison with the rights of refugees in general and the name of ‘refugee’, as Zetter (Reference Zetter2007, p. 183) notes, in certain sense, entails a privilege. Illegal human mobility is often an issue understood as a problem that solely poorer populations have to face, basically due to social or economic inequalities but there is little work at present talking about linking climate migration with human trafficking in the organized crime sphere (South, Reference South, Farrall, Ahmed and French2012, p. 101; Nett & Rüttinger, Reference Nett and Rüttinger2016, pp. 42–45; for an overview, see United Nations Office on Drugs and Crime, 2018 and 2019).

7.6 The Question of Refugee Status

What can be done about eco-migrants with international provisions at present? In accordance with the Geneva Convention Relating to the Status of Refugees (1951) and its Protocol (1967), the term ‘refugee’ shall apply to any person who satisfies specific requirements: (1) as a result of events that occurred before 1951; (2) owing to a well-founded fear of being persecuted for five reasons: race, religion, nationality, membership of a particular social group or political opinion; (3) the person must be outside the country of their nationality and be unable or, owing to such fear, is unwilling to avail themself of the protection of that country. Or the person has not a nationality and being outside the country of their former habitual residence is unable or, owing to such fear, is unwilling to return to it [article 1, A(2)]. At a glance, the Geneva Convention might be applicable, yet it raises dire obstacles. First, it does not consider internal migration but only transnational migration, and indeed it has limited success to date because internal migration far exceeds transboundary migration (Internal Displacement Monitoring Centre, 2017). Secondly, environmental degradation cannot be strictly described as ‘persecution’ for those specific reasons the Convention set out – incidentally, making use of politically tinted prose has occurred in responding to the extensive refugee flow throughout post-war Europe. Another reliable document is the 1969 Organization of African Unity Convention Governing the Specific Refugee Problems in Africa (OAU) but its scope is only regional. To the same extent, the 1984 Cartagena Declaration on Refugees which covers Central America, Mexico and Panama cannot achieve worldwide international impact either.

So far, all applications for obtaining the declaration of refugee status based on climate change have been refused with the argument that the stated legal basis is erroneous – persons who alleged persecution by industrialized countries were failed precisely because they were searching for shelter in developed countries which they claim as their own source of oppression – which is fairly illogical (Williams, Reference Williams2008; Biermann & Boas, Reference Biermann and Boas2010; McAdam, Reference McAdam2016). In general, doctrine agrees with these limitations, yet some voices are claiming the opposite (Gemenne & Brüker, Reference Gemenne and Brücker2015). They assert that since there is no other document at the international level, it would be enforceable in a subsidiary manner (Becker, Reference Becker2014). In my opinion this would be more detrimental than beneficial because of the ease of revoking it through several general principles for the interpretation of Treaties (e.g., principle of good faith, primacy of the text, purpose of the Treaty, grammatical interpretation and intention of parties, etc.). More importantly, there is some evidence of people rejecting being listed in such a category as ‘refugee’. The fact is that participants of several migration strategies have already adopted or refused that option. For example, in Kiribati, an archipelago in the central Pacific highly affected by climate change, several persons interviewed stated they wanted to actively decide their destiny and participate in the development of both adaptation and migration strategies, more than becoming refugees (McNamara et al., Reference McNamara, Bronen, Fernando and Klepp2018). This attitude approaches the concept of ‘migrate with dignity’ pointed out by Fröhlich & Kleep (Reference Fröhlich and Kleep2018, p. 7) which alludes to McNamara’s argument on ‘loss and damage’ as negative effects including a break in ties to a sense of place and identity, rights to land and culture or self-efficacy (McNamara et al., Reference McNamara, Bronen, Fernando and Klepp2018). In the context of Pacific island communities facing sea-level rise, some earlier experiences tell us they do not need labels but action, at times they refuse to see their community members as future refugees (see Farbotko & Lazrus, Reference Farbotko and Lazrus2012, p. 383, quoting Rakova’s narrative on islanders from Papua New Guinea).

7.7 An Epoch-Making Human Rights Committee Verdict: Assessing Human-Sensitive Climate Approach to Human Rights

The recent decision adopted by the UN Human Rights Committee by virtue of the International Covenant on Civil and Political Rights (ICCPR) decidedly opens an opportunity to bring about additional meaning to what a life with dignity does represent. However, it did not declare illegal the victim deportation from New Zealand to the Republic of Kiribati neither violation of his rights under article 6 of the Covenant. Substantive issue: Article 6 (1) Every human being has the inherent right to life. This right shall be protected by law. No one shall be arbitrarily deprived of his life.

The alleged victim is a citizen of the Republic of Kiribati, an archipelago in the central Pacific highly affected by climate change. His application for refugee status in New Zealand was rejected although he asserted the State party violated his right to life under the ICCPR but sent him back to Kiribati in 2015. The victim sought asylum in New Zealand, but the Immigration and Protection Tribunal issued a negative decision concerning his claim; however, they did not exclude the possibility that environmental degradation could ‘create pathways into the Refugee Convention or protected person jurisdiction’. Both the Court of Appeal and the Supreme Court denied the victim’s subsequent appeals concerning the same matter.

Who would wish to seek shelter while apparently living in paradise? For many people the situation in the island of Tarawa had become increasingly unstable and precarious due to sea level rise caused by global warming. Freshwater had become scarce because of saltwater contamination and overcrowding on Tarawa. Attempts to combat sea level rise have largely been ineffective. Inhabitable land on Tarawa has eroded, resulting in a housing crisis and land disputes that have led to numerous fatalities. Kiribati had thus become an untenable and violent environment for the victim and his family. The complaint asserts that sea level in Kiribati has resulted in the scarcity of habitable space, which has in turn caused violent land disputes that endanger the victim’s life, and environmental degradation, including saltwater contamination of the freshwater supply.

Most nutritious crops were available and could be prepared into long-term preserved food; however, the health of the population had generally deteriorated, as indicated by vitamin A deficiencies, malnutrition, fish poisoning, and other ailments reflecting the situation of food insecurity. The islands constituting the country rise no more than three meters above sea level. Soils are generally poor and infertile, and unemployment is high. No island in Kiribati has surface freshwater. As a result of the increase in population, the rate of water extraction from the freshwater lens exceeded the rate of its replenishment through the percolation of rainwater. Waste contamination from Tarawa has contributed to pollution of the freshwater lenses, rendering some of the five underground water reserves unfit for the supply of fresh drinking water. Under the current international human rights standards, the Tribunal concluded that the author did not objectively face a real risk of being persecuted if returned to Kiribati. In this context, he was not a ‘refugee’ as defined by the Refugee Convention but ‘while in many cases the effects of environmental change and natural disasters will not bring affected persons within the scope of the Refugee Convention, no hard and fast rules or presumptions of non-applicability exist. Care must be taken to examine the particular features of the case’.

Regarding the ICCPR, the Tribunal noted that the right to life must be interpreted broadly, but also considered that the Government of Kiribati was active on the international stage concerning the threats of climate change, as demonstrated by the 2007 Programme of Action. Moreover, the victim could not establish that there was enough risk to his life, or that of his family. However, the Committee pointed out that the right to life also includes the right of individuals to enjoy a life with dignity and to be free from acts or omissions that would cause their unnatural or premature death. State parties may be in violation of article 6 even if such threats and situations do not result in the loss of life. In addition, the Committee recalls that environmental degradation, climate change and unsustainable development constitute some of the most pressing and serious threats to the ability of present and future generations to enjoy the right to life. The Committee is of the view that without robust national and international efforts, the effects of climate change in receiving States may expose individuals to a violation of their rights under articles 6 or 7 of the ICCPR, thereby triggering the non-refoulement obligations of emitting States. Furthermore, given that the risk of an entire country becoming submerged under water is such an extreme hazard, the conditions of life in such a country may compromise the right to life with dignity. According to article 6, the right to life is a right that should not be interpreted narrowly. It concerns the entitlement of individuals to be free from acts and omissions that are intended or may be expected to cause their unnatural or premature death. Therefore, to enjoy a life with dignity embodies a central point.

Individual opinions by two members clearly disagree with the Committee position regarding what drinking ‘safe water’ really means. For example, one notes that the notion of ‘potable water’ should not be equated with ‘safe drinking water’. Water can be designated as potable, while containing microorganisms dangerous for health, particularly for children, and the State Party failed to present evidence on having access to safe drinking water in the country of Kiribati. The other disagreeing party claims that it should be sufficient that the child of the author has already suffered significant health hazards on account of the environmental conditions. It is enough that the author and his family are already facing significant difficulty in growing crops and resorting to the life of subsistence agriculture on which they were largely dependent. All these facts reveal a livelihood short of the dignity that the Convention seeks to protect. In addition, the fact that this is a reality for many others in the country does not make it any more dignified for the persons living in such conditions. This climate change reality in Kiribati illustrates similar assumptions and actions in different territories that can be summarized in analogous situations for a large variety of inhabitants worldwide.

7.8 Conclusion

On the assumption that environmental crimes within the Rome Statute framework play no role for the time being, the critical disconnection between international binding legislation and the real world makes clear that international criminal policy is not seriously involved with this whole complex subject. An Ecocide Act, within or outside the RS, might be applicable at the international level as it could set legal barriers to ecocidal behaviour due to environmental practices on the part of corporations and States.

Criminalizing ecocide is an imperative need for this pressing reality and demands advanced legal and criminological approaches to fill in the lacuna prompted by lack of international conceptualization aimed at ensuring the rights of eco-migrants at all stages, including those climate victims choosing to remain in polluted areas and to reject the refugee label. Considering the existing relationships among States and those commitments achieved by international Treaties, negotiating a new international agreement on the issue would be extremely problematic and it would be easier to try to reach regional, bilateral or multilateral agreements. Accordingly, implementing quantitative and qualitative methodology is essential in establishing when, how and who should be recognized as an environmental victim forced to migrate either internally or transnationally, above all when migration is forecast to be long-lasting or on a permanent basis.

Elite groups have preserved their hierarchical position with regard to vulnerabilities associated to climate change, higher than ‘disenfranchised or marginalized groups’ and the consequent ‘intersectional discrimination that results from this’, and this fact often obstructs the use of valiant practices and normative commitments (Klepp & Fröhlich, Reference Klepp and Fröhlich2020). The lack of an ecocide law at the international level and the huge legal distress on environmental displaced people are both issues of extreme importance but interconnections between facts and legal facts require more advanced stand points in criminal making policies and international humanitarian law. Indeed, as Chin-Yee (Reference Chin-Yee2019) notes, climate change has exacerbated uncertainty and instability in vulnerable populations in different territories; therefore it is foreseeable that social instability, the scarcity of natural goods and the loss of biodiversity and cultural heritage will represent real threats to the good living of distant and not so distant generations.