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A recent ruling by a French court could mark a watershed moment for refugee law

 

As the COVID-19 pandemic continues to dominate media headlines around the world, a landmark ruling by a French court went rather under the radar at the turn of the year.

In December 2020, the Bordeaux Administrative Court of Appeal overturned a deportation order issued against a 40-year-old Bangladeshi man. The court ruled that the individual could not be returned to Bangladesh because of his asthma, given the state of air pollution in his home nation. In a ruling that is believed to be the first of its kind, the man’s lawyer revealed that the court overturned the deportation order because his client would be subject to “a worsening of his respiratory pathology due to air pollution”, if returned to his country of birth.

The individual’s lawyer, Ludovic Rivière, said: “To my knowledge, this is the first time a French court has applied the environment as one of its criteria in such a case. It decided my client’s life would be endangered by the air quality in Bangladesh.”

The court, which heard that the man’s father had died of an asthma attack at the age of 54, and that the medication he receives to manage his asthma is not available in Bangladesh, ultimately agreed with Rivière’s argument that sending his client back to Bangladesh would be tantamount to a death sentence.

Bangladesh is renowned for its poor air quality. According to the World Health Organization, air pollution was a high aggravating risk factor in the case of 572,600 deaths in Bangladesh that were attributed to non-communicable diseases in 2018 alone. The country ranked 162 in the Environmental Performance Index (EPI) 2020, which assessed 180 countries on 32 performance indicators across 11 categories covering environmental health and ecosystem vitality. In the ‘air quality’ category, Bangladesh was a lowly 166, and it was even closer to the foot of the pile for ‘pollution emissions’ (173), making it one of the countries with the worst levels of air pollution in the world.

The United Nations Environment Programme notes that “climate change and air pollution are closely interlinked, so by reducing air pollution we also protect the climate”.

Burning fossil fuels releases both air pollutants and greenhouse gases. Other air pollutants fall under the banner of ‘short-lived climate pollutants’, which include the likes of black carbon, a component of particulate matter. Air pollutants and greenhouse gases often interact with one another, leading to a worsening of global warming effects.

 

Setting a precedent

The climate concerns that were high on many government agendas at the start of 2020 have not melted away, despite the upheaval – and an inevitable revision of immediate political priorities – caused by Covid-19. In fact, the pandemic has arguably accentuated the urgency surrounding the need to combat climate change, having made us tangibly aware that the foundations of modern society are on more precarious and easily shifting ground than we perhaps appreciated.

Nick Butler, Chair of the Policy Institute at King’s College London, noted at the outset of the pandemic in March 2020 that, “None of the fundamentals have changed: emissions will fall a little this year in line with energy consumption but the shift is not permanent. After the coronavirus pandemic ends, a carbon-rich reality will return. The world in 2021 will still rely on hydrocarbons for close to 80% of its energy needs, the chances of extreme weather conditions have not changed and the risk of floods has not receded.”

The ruling by the Bordeaux court could be the first of many such cases over the next decade or so, with the climate crisis now firmly at the top of government, corporate and societal agendas in many countries around the world.

 

‘Climate refugees’?

The scale of the crisis is reflected in a World Bank report published in 2018, which predicted a worse-case scenario whereby climate change could lead to over 140 million people migrating internally within countries in Sub-Saharan Africa, South Asia, and Latin America.

Of course, in many cases, it is difficult to determine whether displaced people can be classed as environmental refugees or migrants, as environmental factors are often closely entwined with other drivers of displacement and migration, including civil unrest and persecution, and socio-economic factors such as poverty and population growth.

Current estimates for the total number of climate refugees by 2050 range between 25 million and one billion, with the forecast of Professor Norman Myers of Oxford University, who predicted 200 million climate refugees by the end of the first half of the century, a commonly cited figure.

Crucially, however, there is currently no agreed-upon or legally binding definition of what constitutes a ‘climate refugee’, or a ‘climate migrant’. According to the 1951 Refugee Convention, a refugee is “someone who is unable or unwilling to return to their country of origin owing to a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group, or political opinion.”

This legal lacuna may not be filled any time soon. Many scholars, experts and politicians have previously cautioned against designing a new legal framework or amending the existing refugee framework to account for ‘climate displacement’ or ‘climate refugees’.

However, with climate change, and the need to combat it, dominating the global consciousness, as well as the current global refugee crisis, it would be no surprise if the terms ‘climate refugees’ or ‘forced climate migrants’ become commonplace in legal parlance in the not too distant future. While there is no ‘home’ for climate refugees in the international community as yet, you wouldn’t bet against that changing in the coming years.

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