Addressing climate-induced migration through adaptation measures. An emerging human rights-based approach?

The issue of adaptation has always been present in the international legal system to combat climate change, but the 2015 Paris Agreement represented a turning point in terms of its explicit recognition as a complementary measure to mitigation. Over the last few years, these measures are gaining importance also outside the context of climate conventions, due to the need to implement climate obligations in connection to human rights standards, as recognized by consistent judicial practice. This approach based on human rights appears to be functional to the judicial enforcement of international climate obligations, but it could have a more meaningful role, particularly in the context of climate-induced migration. Climate hazards in the country of origin, which lead to the perception of uninhabitability, could constitute the ground for the application of the non-refoulement principle. Existing literature on legal issues of climate migration mainly focuses on the use of pre-existing legal categories and the lack of suitable protection rules. However, focusing on States and other actors’ practices and taking into consideration the emerging vulnerabilities of individuals affected by climate change would entail a more comprehensive approach. In the emerging jurisprudential practice, reference is made to the positive obligation of States to adopt all the necessary measures to ensure the exercise of fundamental rights, mainly with reference to the right to life. Such rulings underline how adaptation measures are relevant for defining States’ standards of conduct based on due diligence. This standard varies according to the fundamental right concerned and reflects a balance between adaptation and mitigation measures, to be found on a case-by-case basis and considering the particular situation of each State, its vulnerability to the effects of climate change, its economic and technological capabilities.