Flykten undan klimatförändringar - en undersökning av möjligheten att hävda klimatförändringar som grund för skydd i annan stat

Sammanfattning: During many years, migration has been a part of people’s life and the reasons for migration have varied. One group of migrants that has become larger in recent years is the “climate refugees”. This concept has its foundation in the fact that these humans are forced to flee from the effects of climate changes. Humans are a big contributing factor to climate changes, mostly due to the large amount of carbon dioxide emissions. Among other things, climate changes are expected to result in changes in the atmospheric precipitation and raised sea levels. Since the awareness of this group of migrants has been raised relatively recently questions such as the extent of the protection and whether or not it is sufficient is of interest to analyze. There are several forms of protection for people who are fleeing. One form is the protection as a refugee. To be considered as a refugee a person has to have a well-founded fear of persecution due to one or several of the grounds for persecution in the refugee convention and the Swedish Aliens Act. Apart from being a refugee a person can be regarded as a person in need of subsidiary protection. Beyond this, in Sweden, a person can be regarded as otherwise in need of protection. This ground includes among other things protection from environmental disasters. However, this article is currently not applicable due to a temporary law. In those cases a person is not regarded to have reasons for protection other principles may be applicable. One principle is the principle of non-refoulement which is a protection from persecution, torture and other ill-treatments. To receive protection in another state there cannot be a possibility to move within the home country in order to avoid persecution, the so called internal flight alternative. This is regarded to be possible if the movement is reasonable and suitable. A large number of the people moving away from the effects of climate change move within their own country and are therefore regarded as internally displaced persons. Apart from the protection in the migration law there have been discussions about applying the complimentary protection that other instruments can offer, one example is instruments regarding human rights. There is no right to a healthy environment in the majority of the instrument but other rights may be breached in an indirect manner. Examples on rights that have been discussed are articles 2, 3 and 8 ECHR. In relation to climate changes, article 2 has been discussed within the meaning that environmental destruction can be a danger to human lives. Article 3 ECHR, protection from torture and other ill-treatment, embraces three types of damage; direct and intentional infliction of harm, purely naturally occurring harm and damage where the state is the predominant cause. In cases with people fleeing from climate change the contribution from developed countries to the climate changes has been discussed as a form of damage where a state is the predominant cause. Article 8, protection of private- and family life, has been discussed in relation to the risk of impact on a person’s physical and moral integrity that severe environmental damage may have. One challenge when applying human rights is the question about jurisdiction. In ECHR the jurisdiction is primarily territorial. Although there are exceptions and situations where an expulsion can give rise to a breach of article 3 ECHR is one example. Instruments in environmental law have also been discussed as a possible form of protection. Among other things, these instruments regulate the question about responsibility for emissions. When states act contrary to their obligations responsibility can be established in accordance with ARSIWA. If established, states shall cease the act and assure that it will not be repeated. Since there, in the majority of the situations, is no specific right to a healthy environment a causal link has to be established in relation to another right in order to establish responsibility. There is no univocal answer to the question if the protection of people fleeing climate changes is adequate. The protection in migration law can be regarded as inadequate but there can be a possibility to complimentary protection in human rights. Although, since there is usually not a right to a healthy environment a causal link to another right has to be established. To enable improved protection there is a need to review the current protection.