HUMAN RIGHTS IN THE EUROPEAN CONSTITUTIONAL ORDER

a risk of an imminent, or likely, risk of arbitrary deprivation of life upon return to Kiribati”. 60 4.1 Manifestation of Harm in Time The UNHRC recalled that “environmental degradation, climate change, and unsustainable development constitute some of the most pressing and serious threats to the ability of present and future generations to enjoy the right to life.” 61 Moreover, the Committee further recalls that “the obligation of States parties to respect and ensure the right to life extends to reasonably foreseeable threats and life-threatening situations that can result in loss of life”. 62 Therefore, since the slow-onset consequences of climate change have unfolded over the years and even decades, the issue of timing has become critical in these circumstances. Consequently, the more risk there will be in the future, the more convincing proof must be submitted to prove that the individual is personally at risk. 63 In the present case, the UNHRC admitted that increasing sea levels would render the Republic of Kiribati uninhabitable within ten to fifteen years. However, it also suggested that this timeframe could provide space for the international community “to take affirmative measures to protect and, where necessary, relocate its population”. 64 Consequently, it appears that the threshold was not reached due to a difference in time, most likely because there was time to conjecture about ways to mitigate or avert the harm that was feared would occur in the future, decreasing its likelihood. 65 Therefore, the UNHRC may find that the threshold has been met if feared harm is guaranteed to appear, even if it is anticipated to happen in 15 years, given that the chance is substantial despite the comparatively lengthy delay. 4.2 Legal Implications of the UNHRC’s Ruling Even though the UNHRC failed to elaborate on its analysis of the likelihood that the anticipated harm will be successfully prevented or mitigated, it did make a firm statement regarding states’ obligation to those displaced due to climate change. It recognizes that governments might not send individuals back to their home countries 60 Ibid., para. 9.6. 61 Ibid., para. 9.4. 62 Ibid., it concerns the Toussaint v. Canada (CCPR/C/123/D/2348/2014), para. 11.3; and Portillo Cáceres et al. v. Paraguay, para. 7.5. 63 The Court of Justice of the European Union in the case C-465/07, Elgafaji v. Staatssecretaris van Justitie, in para. 39, has oppositely stated: “The more the applicant is able to show that he is specifically affected by reason of factors particular to his personal circumstances, the lower the level of indiscriminate violence required for him to be eligible for subsidiary protection”. 64 United Nations Human Rights Committee, para. 9.12. 65 MCADAM, J. Protecting People Displaced by the Impacts of Climate Change: The UN Human Rights Committee and the Principle of Non-Refoulement. In American Journal of International Law [online]. 2020, Vol. 114, Issue 4, p. 718 [cit. 2024-06-20]. Available at: https://papers.ssrn.com/sol3/papers. cfm?abstract_id=3787187.

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