Whilst the Tribunal acknowledged the difficulty the Appellants faced and the distress that they suffered, it concluded that they did not satisfy the requisite definition for refugees. It was held that any harm they might face in Nepal did not arise from “being persecuted”, a concept requiring human agency or omission. It was also noted that the Nepalese government had provided food and shelter immediately after the earthquake, leading the Tribunal to find that there was no reason to suspect that there was a failure to take adequate steps to protect from such an incident.
In regard to the Convention against Torture and the ICCPR claims, the Tribunal held there was no evidence to indicate that the Appellants would be at risk of torture if returned to Nepal. The ICCPR claim required the Appellants to show that they would be arbitrarily deprived of life if returned. The Tribunal, again citing AF (Kribati), held that in principle this might be shown through an omission to take adequate steps to protect a population from a natural disaster. However, as there was no evidence to indicate that this was the case, the claim failed. Finally, the Tribunal held that general socio-economic conditions did not constitute “treatment” under Article 7 of the ICCPR unless there was an “infliction of socioeconomic harm by state agents or a failure to intervene while non-state agents did the same; the adoption of the particular legislative, regulatory or policy regime in relation to a section of the population; or the failure to discharge positive obligations towards individuals wholly dependent on the state for their socioeconomic well-being.”
Potential takeaways for future climate migration litigation
- This Appeal is a clear indication of how the 1951 Refugee Convention can exclude climate migrants. Namely, that whilst natural disasters may cause human rights issues within a country, an individual must be persecuted because of their race, religion, nationality, or membership of a particular social or political group to qualify for asylum under the Convention. Failing to fall into these categories will not allow an individual to be defined as a refugee, despite the greatest of difficulties that they might have suffered.
- It was suggested by the Tribunal that both the 1951 Convention and the ICCPR might be relied upon where the State has either failed to take adequate steps to protect people from natural disasters or failed to act accordingly after such a disaster. However, the former would still require it to be shown that was a risk of persecution, whilst the latter would require it to be shown that the State failed to act accordingly in protecting people from “known environmental hazards”.