Non-Refoulement and Environmental Degradation: Examining the Entry Points and Improving Access to Protection

by Chris Caskey

Provenance of the research: 

Title of thesis/research question: “Non-refoulement and environmental degradation: examining the entry points and improving access to protection”

Type of thesis: Masters (LL.M.)

University affiliation: Geneva Academy of International Humanitarian Law and Human Rights, Switzerland

Research duration: August 2020

Abstract

In today’s context, it is clear that the effects of climate change threaten the enjoyment of human rights. As these effects intensify and we begin to understand them as a driver of migration, it is reasonably foreseeable that environmental degradation may engage the principle of non-refoulment, an international human rights norm in place to protect persons from being returned to a territory where they may face irreparable harm. This research paper seeks to articulate the legal threshold at which this occurs. It does so by exploring the available entry points to protection, comparing the approach at both the universal and regional level, and outlining practical recommendations for human rights defenders looking to access protection. This paper was supervised by Professor Vincent Chetail, Professor of International Law at the Graduate Institute of International and Development Studies.

1. What were the most important or surprising findings of your work?

Outside the main premise of the research, two points remain in my mind a year later. The first being the sheer gap between the ideals of international law and the documented experience of attempting to access protection within the cross-border migration process. The second is a point raised by the brilliant Professor Jane McAdam in one of her papers published in the AJIL. Professor McAdam highlighted that while previous cases litigated may not have met the threshold required for protection under the principle of non-refoulment, there are likely persons within our global community already facing circumstances that would.

2. What did you struggle with during the research and/or writing process, and how did you overcome these issues?

I actually thoroughly enjoyed the research process! It felt topical and engaging, and Professor Vincent Chetail was a brilliant supervisor. I feel the largest challenges were those that come along with any sort of climate related work – the balance of hope vs existential angst, depending on the day or the news cycle, and of course the challenges of COVID-19. Be kind to yourself and learn how to say no.

3. What are you doing now, and what are your plans for the coming year?

I currently lead the human rights team at the United Nations Global Compact Network Australia. Having spent time within both the NGO and academic sectors on these issues, I’m convinced that the private sector is where I can have the greatest impact. International lawyers (like me) often don’t like hearing it, but I’m increasingly convinced that the dollar moves the dial. This role also gives me the ability to scale human rights interventions with leading companies that have joined the Global Compact in Australia and share these with leading organizations across the world. 

4. Per the above, did your research impact those plans in any way?

The research focus, absolutely. I nearly pursued a PhD in the area! However, in the soul searching, I was struck that most of the research and literature on international norms has already been completed and that so much brilliant international human rights work often gets lost as aspirational text saved to a PDF somewhere. In looking to make an impact, I found that the barriers to States meeting their human rights obligations are often financial – also with the right stakeholder pressure, the private sector is actually well positioned to lead States if you can show them why and how.

5. Do you have any advice for people who are undertaking this type of research?

Firstly, I’d challenge anyone working in this space to think back to first principles daily: who are the human beings you are seeking to impact, and what are the broad range of tools at your disposal – legal tools will only make up a small subset of those available. Secondly, be kind to yourself. Climate scientists receive existential-crisis counselling for a reason, and the related human rights issues are becoming unique in both their urgency and frequency of discourse. You’re just one person.

Read the full thesis here: NEW PUBLICATION: NON-REFOULEMENT AND ENVIRONMENTAL DEGRADATION | IHEID

Author’s Bio:

Chris is an international lawyer and manager based in Sydney, Australia. He holds an LL.M. in International Humanitarian Law and Human Rights from the Geneva Academy of Humanitarian Law and Human Rights, and currently serves as Manager, Human Rights at the United Nations Global Compact Network Australia.

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