Written by Jillian Ratnavale

Introduction

Climate change has become a driving force behind widespread droughts, desertification, and crop failure in the Horn of Africa. These impacts have displaced millions of people across Somalia, Ethiopia, and Kenya, either internally or across borders.¹ Horn of Africa Floods and Drought 2020–2023: A Forensic Analysis, UNDRR (2024), https://www.undrr.org/resource/horn-africa-floods-and-drought-2020-2023-forensic-analysis; U.N. Off. for the Coordination of Humanitarian Affs., Greater Horn of Africa Humanitarian Key Messages: February 2024 ¶¶ 5–6 (Feb. 2024), https://www.unocha.org/publications/report/ethiopia/greater-horn-africa-humanitarian-key-messages-february-2024. The growing scale of climate displacement demands legal recognition and protection. As global responses to the climate crisis evolve, can individuals displaced by climate-related disasters in the Horn of Africa qualify for international protection or asylum under the existing legal framework, namely, the International Covenant on Civil and Political Rights (“ICCPR”), and regional mechanisms like the Kampala Convention?  

Background  

The African Union Convention for the Protection and Assistance of Internally Displaced Persons in Africa (“Kampala Convention”), was passed by the African Union in 2009. It’s the first binding international treaty to recognize internal displacement caused by climate change and natural disasters.²African Union Convention for the Protection and Assistance of Internally Displaced Persons in Africa, Oct. 23, 2009, 52 I.L.M. 397 (2013).  Article 5(4) explicitly obligates states to protect and assist persons displaced by climate change. The scope of the treaty is limited to internal movement within a country’s borders, aimed at assisting internally displaced persons (IDPs) in Africa.³Id. at Art. 5. While the Kampala Convention expressly recognizes climate change as a cause of internal displacement,⁴Id. at Art. 5(4). existing international legal frameworks, including the ICCPR, do not protect individuals who cross borders due to climate-related harms. The ICCPR was adopted by the U.N. in 1966 and guarantees fundamental rights such as the right to life, liberty, and security of the person.⁵International Covenant on Civil and Political Rights, Mar. 23, 1976, 999 U.N.T.S. 171. While the treaty is not specific to refugees, the U.N. Human Rights Committee (“UNHRC”) has interpreted it to apply in the context of climate-related displacement.⁶Ioane Teitiota v. New Zealand, CCPR/C/127/D/2728/2016, UNHRC (2020), https://www.refworld.org/jurisprudence/caselaw/hrc/2020/en/123128. More locally, the African Union has signaled growing regional momentum through its 2022–2032 Climate Change and Resilient Development Strategy & Action Plan (“the Strategy”), which outlines a continent-wide vision for building resilience, strengthening governance, and coordinating cross-border adaptation to climate change.⁷African Union Commission, Climate Change and Resilient Development Strategy & Action Plan (2022–2032) (adopted Feb. 8, 2022), available at https://au.int/sites/default/files/documents/41959-doc-CC_Strategy_and_Action_Plan_2022-2032_08_02_23_Single_Print_Ready.pdf. The Strategy is not binding, nor does it explicitly address legal status or refugee protection, but its emphasis on regional policy harmonization, vulnerable group protections, and cross-border climate planning provides a foundation for the development of future legal frameworks in Africa.⁸Id. at §3–4.  

Analysis  

The UNHRC issued General Comment No. 36 (2018), interpreting Article 6 (Right to Life) of the ICCPR, as relevant to the evolving interpretation of environmental threats. The General Comment notes that environmental degradation and climate change “constitute some of the most pressing and serious threats to the ability of present and future generations to enjoy the right to life… and the obligation of States parties to respect and ensure the right to life must reinforce their relevant obligations under international environmental law.”⁹U.N. Human Rights Comm., General comment No. 36 on article 6 of the International Covenant on Civil and Political Rights, on the right to life, ¶ 65, U.N. Doc. CCPR/C/GC/36 (Sept. 3, 2018), available at https://www.ohchr.org/sites/default/files/Documents/HRBodies/CCPR/GCArticle6/GCArticle6_EN.pdf The UNHRC’s Teitiota v. New Zealand decision, while arising from the Pacific, marked the first time an international tribunal recognized that returning someone to a climate-threatened country could, theoretically, violate the right to life under Article 6 of the ICCPR. Although the Committee ultimately denied Teitiota’s claim, it acknowledged that environmental degradation could trigger non-refoulement.¹⁰Non-refoulement is defined as the practice of not forcing refugees or asylum seekers to return to a country in which they are liable to be subjected to persecution.  protections in future cases, laying a groundwork for possible future climate refugee cases.¹¹Id. at note 5.  Daniel Billy et al. v. Australia reaffirmed that climate degradation may engage the right to life under Article 6, even though it declined to find a violation on the specific facts. It also offers State remedies such as compensation for those who have suffered climate displacement and community consultations for those who are at risk.¹²Daniel Billy et al. v. Australia, U.N. Human Rights Comm., Comm. No. 3624/2019, U.N. Doc. CCPR/C/135/D/3624/2019 (Sept. 22, 2022).  The Kampala Convention and the ICCPR offer a framework for expanding protection under international law and signal growing momentum toward legal recognition.¹³ Supra note 8 and 2.  The Strategy further identifies climate impacts as a regional priority and calls for harmonized, African-led responses that could inform future legal protections for climate-displaced persons.¹⁴Supra note 6.  While the Strategy does not create legal protections for cross-border climate-displaced persons, it reinforces the African Union’s recognition that environmental degradation contributes to migration pressures.¹⁵Id.

Some argue that labeling flows of refugees as purely environmentally related may obscure the complex, multifactorial nature of migration and dilute protections for those fleeing direct political violence, or that displacement from the Horn is primarily political, not environmental (e.g. civil war).  This concern reflects a valid tension, but legal frameworks do not require rigid, single-cause displacement to function. The ICCPR applies broadly to violations of the right to life, regardless of whether the underlying causes are political, environmental, or both. In Billy, the UNHRC recognized that climate threats can coexist with other systemic vulnerabilities and still trigger state obligations under Article 6.¹⁶Billy v. Australia, Comm. No. 3624/2019, ¶65.  Recognizing climate drivers enhances, rather than dilutes, protection for at-risk populations.  

Conclusion 

Climate-driven displacement exposes gaps in international refugee protection in the Horn of Africa and beyond. As environmental stressors force more people across borders, existing legal frameworks, particularly the Kampala Convention, prove insufficient.¹⁷ U.N. Off. for the Coordination of Humanitarian Affs., Greater Horn of Africa Humanitarian Key Messages: February 2024 ¶¶ 5–6 (Feb. 2024), https://www.unocha.org/publications/report/ethiopia/greater-horn-africa-humanitarian-key-messages-february-2024; International Covenant on Civil and Political Rights, Mar. 23, 1976, 999 U.N.T.S. 171.  The region serves as a warning that climate displacement is no longer a future problem but a present legal crisis, challenging the international community to rethink how displacement is defined and addressed. In addressing this, it may be beneficial to expand ICCPR-based protections using the Teitiota precedent and possibly lower the level of scrutiny for Article 6.¹⁸International Covenant on Civil and Political Rights, Art. 6, Mar. 23, 1976, 999 U.N.T.S. 171; Ioane Teitiota v. New Zealand, CCPR/C/127/D/2728/2016, UNHRC (2020). The UNHRC’s decision in Billy provides a framework for meaningful remedies short of formal refugee status. Although the Committee declined to find a violation of Article 6, it required Australia to compensate the Indigenous petitioners, engage in consultations to assess their needs, and take measures to secure their continued safe existence on their islands.¹⁹Billy v. Australia, Comm. No. 3624/2019. These remedial obligations can inform future legal guidance and institutional best practices on state responsibility for climate-affected populations.  

Current refugee law excludes those fleeing climate crises, but recent legal developments suggest a shifting tide. Regional and international instruments are beginning to recognize the legitimacy of climate-induced displacement, and growing cross-border movement from the Horn of Africa may compel the international community to adapt its frameworks for protection.²⁰U.N. Human Rights Comm., General comment No. 36 on article 6 of the International Covenant on Civil and Political Rights, on the right to life, ¶ 65, U.N. Doc. CCPR/C/GC/36 (Sept. 3, 2018), available at https://www.ohchr.org/sites/default/files/Documents/HRBodies/CCPR/GCArticle6/GCArticle6_EN.pdf; Teitiota, CCPR/C/127/D/2728/2016, UNHRC (2020).