The Role of Domestic Courts in Climate-Related Asylum Appeals

• In Event: Citizens Across Borders: The Role of Courts in Migration and Asylum

Abstract

The relationship between climate change and migration is becoming more evident. Scientists project that the growing severity of weather patterns like hurricanes, typhoons, droughts, and forest fires will displace millions worldwide. The severity of these events encouraged national and international migration—however, migrants crossing international borders face numerous challenges in gaining recognition and legal entrance to the desired country of destination. Existing international laws and domestic laws in most countries offer little protection to individuals fleeing the effects of climate change. As a result, some individuals made attempts to gain lawful entrance and remain in their country of choice through the domestic asylum system. In large, these attempts were unsuccessful; however, a 2016 asylum appeal in New Zealand paved a possible pathway to asylum for future environmental migrants. The New Zealand case demonstrated that domestic courts could play a pivotal role in shaping national asylum policy. As such, I ask what political conditions allow domestic courts to extend asylum protections to climate refugees? And which individual judge characteristics influence case outcomes and indirectly impact asylum policy? I argue that the court's ability to extend asylum protections rests on a policy window, or the meeting point between politics, policy, and problems. A policy window opens every time the courts receive a climate-based asylum appeal; however, whether the courts take advantage of this opportunity depends on the domestic political conditions and individual judge characteristics. Current literature on asylum adjudication offers little guidance on the mechanism that allows domestic courts to extend asylum protections. This paper takes an inductive approach and focuses on Australia and New Zealand's asylum processes to uncover this mechanism. Using Grounded Theory, I develop a theory that explains the mechanism allowing domestic courts to extend asylum protections to individuals fleeing climate change. Throughout this process, I pay special attention to asylum appeals before Australia's Federal Court and High Court and New Zealand's Courts of Appeal and Supreme Court from 1995 to 2020.

Author

• Ivanka Bergova, Georgia State University