Page - 185 - in Loss and Damage from Climate Change - Concepts, Methods and Policy Options

7 LegalResponses toClimateChange… 185 person.Thus, theburdenofaddressingL&Dfallsdisproportionatelyondeveloping states rather thanon those states responsible formostgreenhousegasemissions. A particular question related to human rights law surrounds the protection of individuals displaced in circumstances related to climate change impacts. Some arguments have been made for an international protection of “climate refugees” either inapplicationofexistinginternational lawor throughthedevelopmentofnew international legal frameworks. Inexistinginternational law,however,a“refugee”is narrowlydefinedasapersonfleeingoutofawell-foundedfearofbeingpersecutedon thegroundofhis race, religion,nationality,membershipofaparticular socialgroup orpoliticalopinion(ConventionrelatingtotheStatusofRefugees,art.1(A)(2)).Even whenstateshaveextendedthisdefinitiontopeoplelivinginasituationofgeneralised violence, environmental factorshavenotgenerallybeen recognisedas aground for internationalprotection.For instance,claimsforasylumbasedontheenvironmental conditions inTuvaluwere rejectedby theNewZealandImmigrationandProtection Tribunal in2009(InRe:AD(Tuvalu)).Arguably, the livesofpeoplemigratingfrom a state seriously impacted by climate change are threatened if they are returned to that state. However, national courts have previously considered that provisions of internationalhumanrights treatiesdealingwith the right to life, suchasart. 6of the InternationalCovenant onCivil andPoliticalRights, did not prevent the expulsion ofan individualwhosecountryoforigin is seriouslyaffectedby impactsof climate change (see e.g. for instanceTeitiota vChief Executive of theMinistry ofBusiness InnovationandEmployment)orwasinviolationof theprincipleofnon-refoulement (seee.g.AC(Tuvalu)). Furtherdevelopments could, however, occur.Ongoingdevelopments include for instance the Platform onDisaster Displacement which continues the work of the Nansen InitiativeonDisaster-InducedCross-BorderDisplacement and theworkby the ILCon theprotectionofpersons in theeventofdisasters (ILC2016), as further discussed in thechapterbyHeslinet al. (2018). 7.4 CustomaryInternationalLaw Nationalandinternationalhumanrightslawsaretoolimitedinscopetofullyaddress L&D.This isbecauseclimatechange responsibilitiesandharmsaregeographically split.Most greenhouse gas emissions take place in industrialised nations,whereas most L&Daffects individuals in the least developed or developing states. Human rights protectionmay reduce theharmcaused toparticular communities, including through adaptation measures, but its effectivity largely depends on the resources available to national authorities.Without enhanced support from the international community, themostvulnerablestatesmayhavelittlecapacity toeffectivelyprotect their populations.This suggests that approaches to addressL&Daremore likely to takeplaceat an international level. There are twomain sources of international law: customs and treaties (Statute of the InternationalCourt of Justice, art. 38(1)).Normsof customary international