Natural disasters, climate change and non-refoulement: What scope for resisting expulsion under Articles 3 and 8 of the European Convention on Human Rights?

Climate change is already contributing to the displacement of millions of people worldwide as extreme weather events become increasingly frequent and intense. Proposals for responding to the phenomenon of climate change-related displacement overwhelmingly rely on the state to act, with limited discussion of the potential to determine and develop the scope of protection through strategic litigation. This article considers the current and potential scope of protection under articles 3 and 8 of the European Convention on Human Rights (ECHR) from a strategic litigation perspective. Individuals facing expulsion from a European host state to a receiving state during or in the aftermath of a ‘pure’ natural disaster will generally struggle to engage host state non-refoulement obligations under the ECHR. However, in circumstances where claimants can adduce evidence demonstrating that climate change has played a role in the disaster, it is arguable that a lower threshold test should be applied for establishing a breach of article 3 ECHR, either following the ‘predominant cause’ test applied in Sufi & Elmi v United Kingdom, or by arguing that expulsion cases involving climate change-related harm form a sui generis category because, unlike other article 3 non-refoulement cases, the host state is implicated. Claimants may additionally or alternatively invoke their right to physical and moral integrity under article 8, advancing arguments relating to the proportionality of expulsion in light of the host state’s disproportionate emission of greenhouse gases that cause climate change. Using two hypothetical scenarios, the article considers how such arguments could be developed in practice, whilst also identifying potential challenges