Protection of Environmentally Displaced Persons: A Case for European Union Legislation

Treaty and environmental obligations

The EU is bound by its foundational treaties, including TEU, TFEU, and CFR, ⁴⁸ which collectively enshrine commitments to the protection of human rights, sustainable development, and environmental protection.

Article 2 TEU expressly enumerates the values of respect for human dignity and equality.

It identifies solidarity as a value, but the principle of solidarity imposes a legal obligation derived from Article 3(3) TEU and the general principles of EU law on the EU and its Member States to address transboundary challenges collectively, ⁴⁹ a mandate that logically encompasses environmental displacement.

This obligation is further reinforced by Article 3(3) TEU, which imposes a binding duty on the EU to ‘promote… economic, social and territorial cohesion, and solidarity among Member States.’ The imperative term ‘shall’ establishes a positive legal obligation requiring EU institutions to take concrete measures. ⁵⁰

In the context of environmental displacement, given the disparate exposure of Member States to environmental-induced displacement pressures, the current framework risks creating asymmetrical burdens in the allocation of responsibility across national asylum and international protection systems. Such imbalances contravene the principle of solidarity under Article 3(3) TEU, which mandates equitable burden-sharing and collective action to preserve cohesion. ⁵¹

Consequently, the EU is legally compelled to adopt a coordinated, Union-wide response encompassing both legal harmonisation and policy coordination. This includes harmonisation through binding instruments such as directives and regulations establishing uniform standards for EDP protection, as well as non-binding coordination mechanisms, including guidelines, recommendations, and financial instruments. Non-compliance may give rise to infringement proceedings under Article 258 TFEU against Member States that fail to act and to judicial review before the Court of Justice of the European Union (CJEU) for breaches of Treaty obligations.

Importantly, this obligation of coordinated action also requires that such measures be internally consistent across EU policy fields, thereby bringing into focus the broader requirement of policy consistency as a structural feature of Union governance. This requirement, often referred to in doctrine as coherence, is distinct from the principle of solidarity, although the two are related. It refers to the obligation, reflected in Article 7 TFEU, for the Union to ensure consistency between its different policies and activities. While cohesion under Article 3 TEU focuses on equitable burden-sharing among Member States, coherence under Article 7 TFEU is understood as requiring that different policy areas, including environment, asylum, and migration, are developed and implemented in a manner that avoids mutually contradictory objectives or outcomes.

The relationship between the two is that coherence in policy outcomes supports cohesion among Member States: inconsistent policies lead to unequal burdens. This connection becomes particularly relevant when read in conjunction with Article 77 TFEU, which governs border checks, asylum, and immigration. ⁵² Article 77(1)(c) TFEU calls for ‘the gradual establishment of an integrated management system for external borders’, a framework that could accommodate environmental displacement scenarios by, for example, creating expedited or differentiated entry procedures for persons displaced by environmental disasters, as the provision does not limit the scope of border management to existing categories of displaced persons.

Moreover, Article 77(2)(b) TFEU allows for the adoption of measures relating to ‘the checks to which persons crossing external borders are subject,’ thus opening the possibility for differentiated procedures for persons displaced by environmental factors. This is because it authorises the EU legislature, through the ordinary legislative procedure, to determine what checks apply to which categories of persons; nothing in the text prevents the creation of a distinct procedural category for EDPs, such as simplified border checks or humanitarian entry permits. Additionally, Article 77(2)(d) TFEU authorises ‘any measure necessary for the gradual establishment of an integrated management system for external borders’, granting the Union flexibility to adapt its border and asylum and international protection framework to emerging challenges, including environmental migration.

While these provisions offer a legal basis for action, their potential remains untapped because the EU has not exercised its legislative competence under these articles to adopt specific measures for EDPs – a gap that becomes even more apparent when examining the EU's broader environmental and human rights obligations, as discussed in the next section. This disconnect leads directly to the second dimension.

Turning to environmental commitments, while Articles 191–194 TFEU do not explicitly address environmental displacement, systematic interpretation—reading environmental objectives together with EU human rights and solidarity obligations—implies an obligation to mitigate its human consequences. However, this implied obligation has not been operationalised: the absence of a dedicated framework creates a normative gap, as the EU's environmental acquis is predicated on preventing harm but fails to extend this logic to protecting displaced individuals. The existing legal order provides no pathway from environmental protection to displacement protection without legislative intervention. This gap becomes even more apparent when examining the preventive logic of the EU's environmental acquis.

The Union's environmental acquis, the body of EU environmental law, is predicated on a preventive logic. This logic focuses on avoiding environmental harm before it occurs through emission limits, impact assessments, and precautionary measures, yet it fails to extend this logic to the protection of individuals displaced by the very harms it seeks to regulate. This constitutes a paradoxical disconnect: while the EU legislates extensively to reduce environmental degradation, it neglects the most acute human ramifications. The treaties impose an obligation to combat climate change through three instruments: Article 191(1) TFEU, which lists climate change mitigation as a Union objective; the EU's ratification of the Paris Agreement, binding on the EU under Article 216 TFEU; and the European Green Deal, which operationalises these Treaty commitments. The ramifications of this gap extend directly into fundamental rights law, which forms the second dimension.

Fundamental rights

The relationship between CFR rights and EDPs requires careful specification. The preceding subsection has already established the existence of a ‘legal gap’, defined as the absence of binding EU rules conferring rights or status upon EDPs. The analysis here focuses on the consequences that flow from it. The CFR enshrines rights to dignity, ⁵³ life, ⁵⁴ integrity of the person, ⁵⁵ and non-discrimination. ⁵⁶ The legislative gap produces distinct and justiciable violations of the CFR. First, the right to life under Article 2 is engaged where return to an environmentally degraded country of origin would expose the individual to life-threatening harm, such as extreme food insecurity or lack of potable water. Whether return violates Article 2 CFR depends on the severity of environmental harm in the country of origin. Drawing on CJEU case law on subsidiary protection, notably Case Elgafaji (2009), the Court's reasoning on Article 15(c) of the Qualification Directive indicates that a ‘serious and individual threat’ arises where generalised conditions create a real risk to life or person (paras. 43–45). ⁵⁷ Applied by analogy to environmental harm, this suggests that only extreme situations such as severe desertification, total crop failure, or complete lack of access to potable water could meet the threshold of life-threatening harm. The lack of any protection status for EDPs means that return remains legally permissible under EU law unless such exceptional thresholds are reached, thereby enabling a potential violation of Article 2 CFR.

Second, the right to dignity and the prohibition of inhuman or degrading treatment ⁵⁸ are implicated where EDPs are left without any legal status, documentation, housing, or healthcare—conditions the CJEU has consistently held to constitute degrading treatment. Third, the right to non-discrimination is violated where EDPs are treated less favourably than refugees or beneficiaries of subsidiary protection without objective justification, given that environmental displacement is no less involuntary than persecution. The EU's failure to address environmental displacement thus risks violating its fundamental rights obligations under the CFR in a manner that is distinct from the general gap identified above: here, the violation is not merely the absence of a rule but the concrete, justiciable harm that absence produces for identifiable individuals. The absence of a legal framework for EDPs does not simply represent a policy gap; it risks violating the EU's constitutional obligations regarding environmental sustainability and fundamental rights. These obligations are firmly established under the TEU, Articles 2 and 3; the TFEU, Articles 191 and 192; and the CFR, notably Article 37 on environmental protection, together with Articles 1, 2, 3, 6, and 7 on fundamental rights.

Treaty, COP decisions, and EU implementation

The EU's commitments under international environmental law, including the United Nations Framework Convention on Climate Change (UNFCCC) ⁶⁵ and its legally binding implementing agreement, the Paris Agreement, ⁶⁶ provide an indirect normative framework for addressing environmental displacement. While neither treaty explicitly mentions ‘environmental displacement’ or ‘climate displacement’, several decisions adopted under the Conference of the Parties, or COP, do. Notably, COP16 Decision 1/CP.16, para 14(f), ⁶⁷ recognises the need to consider ‘measures to enhance understanding, coordination and cooperation with regard to climate change-induced displacement, migration and planned relocation.’

This was reaffirmed at COP21 in Paris in 2015, which established the Task Force on Displacement under the Warsaw International Mechanism for Loss and Damage to develop recommendations on climate-related displacement, a category of environmental displacement that the Paris Agreement explicitly addresses. ⁶⁸ Both the adaptation and loss and damage dimensions of the Paris Agreement are directly relevant to environmental displacement: adaptation measures address displacement by strengthening in situ resilience, while loss and damage mechanisms address displacement as an unavoidable consequence when adaptation fails. Together, they capture the full cycle of climate-induced movement.

These COP decisions do not create binding obligations in the treaty sense but are interpretive instruments that inform the implementation of the Paris Agreement, especially in its adaptation and loss and damage dimensions. In this way, together they suggest a policy framework through which the EU's responsibility to address displacement may be inferred. These developments support the view that an emerging normative expectation exists under international climate law ⁶⁹ for developed countries, including EU Member States, to address climate-induced displacement. ⁷⁰

The Paris Agreement requires all Parties to submit Nationally Determined Contributions (NDCs) reflecting their highest possible ambition in mitigation and adaptation. However, an examination of the EU's 2020 NDC reveals no explicit reference to climate-related displacement. This omission highlights the absence of a structured and explicit approach to displacement within EU climate planning. ⁷¹ From a doctrinal perspective, this gap also reflects policy inertia, as climate governance frameworks fail to integrate displacement despite its recognition within international climate and environmental discourse.

Such an absence does not imply that NDCs should regulate cross-border displacement into the EU; rather, they should acknowledge climate-induced displacement as a critical adaptation and loss and damage challenge. This applies both internally within the EU ⁷² and externally in the context of international cooperation with third countries affected by climate impacts.

The EU already possesses a range of financial instruments capable of addressing these challenges, including the Green Climate Fund, ⁷³ the Adaptation Fund, ⁷⁴ and internal budgetary tools such as the Neighbourhood, Development and International Cooperation Instrument (NDICI)–Global Europe. ⁷⁵ These mechanisms could be further mobilised or expanded to support EDPs within the EU's jurisdiction, for example through funding resettlement programmes, legal assistance, housing, healthcare, and livelihood support, framed within adaptation and loss and damage strategies. Such an approach aligns with COP Decision 1/CP.16 and the work of the Task Force on Displacement, as well as Article 7 of the Paris Agreement, which emphasises resilience-building and vulnerability reduction. These objectives are undermined when displaced persons lack adequate protection and support.

Nevertheless, the absence of displacement considerations in EU NDCs reveals a broader structural gap: existing climate instruments offer financial and strategic tools but fail to provide concrete legal protections for individuals affected by climate-induced displacement. Addressing this deficiency requires more than interpretive obligations—it demands the creation of a dedicated legal framework within the EU to operationalise commitments. ⁷⁶ Such a framework would establish enforceable rights and procedures for EDPs, including temporary protection status, residence permits, climate-adapted asylum procedures, or a specific legal status for climate-displaced persons. This instrument could take the form of an EU directive or regulation that (1) defines EDPs and/or related categories; (2) establishes rights related to residence, employment, social protection, and family unity; (3) allocates responsibilities and funding among Member States; and (4) introduces monitoring and accountability mechanisms. This would transform indirect, interpretive commitments into enforceable legal protections.

Customary principles and state responsibility

The EU's responsibility to address environmental displacement finds direct normative support in customary international law, independent of the treaty and COP-based framework discussed above in the preceding subsection. It is not an explicitly codified treaty obligation but rather a legal conclusion drawn from the EU's duty to act in good faith in implementing its climate commitments and its responsibility to prevent harm within its jurisdiction and control.

The Rio Declaration, ⁷⁷ while not a binding treaty, provides evidence of state practice and opinio juris relevant to principles that have, at least in part, crystallised into customary international law, particularly the polluter-pays principle. Soft law may also provide more immediate evidence of international support and consensus than a treaty. ⁷⁸ Its invocation here is not to assert a direct legal obligationbut to support the normative foundation of customary rules binding on the EU. Although the precise customary status of the principle remains contested at the global level, ⁷⁹ it nonetheless reinforces the expectation that the EU, as a major historical contributor to environmental degradation, should bear the financial costs of mitigation, including those arising from displacement. ⁸⁰

It is necessary here to distinguish the normative weight of the principles invoked. The no-harm principle is widely regarded as customary international law and therefore binding on states and, increasingly, on international organisations such as the EU. ⁸¹ By contrast, the polluter-pays principle, although firmly embedded in EU law and Organisation for Economic Co-operation and Development practice and reflected in instruments such as the Kyoto Protocol, ⁸² has a more contested status in general customary international law. While the Rio Declaration is formally soft law, it has contributed to the crystallisation of certain principles into customary norms through consistent state practice and opinio juris. This distinction is important: the no-harm principle provides the strongest customary basis for deriving binding obligations, whereas the polluter-pays principle reinforces the normative and policy framework guiding EU climate responsibility without yet constituting a universally binding rule.

Building on this normative foundation, the polluter-pays principle further reinforces the expectation that the EU should bear the costs of mitigating environmental damage, including its displacement effects. In this sense, it extends the broader logic of responsibility beyond prevention alone, linking environmental harm to financial accountability for its consequences.

Together, these principles suggest a dual obligation for the EU: preventing harm and remedying its consequences. This combined reading supports the view that responsibility under environmental law is not limited to ex ante prevention but also extends to post facto remedial action, including responses to displacement linked to environmental degradation. ⁸³

Crucially, the polluter-pays principle and the law of state responsibility operate in a complementary rather than parallel manner. The polluter-pays principle supplies a substantive rule of attribution: it identifies who should bear the costs of environmental harm—here, the EU as a historical contributor to global emissions. The law of state responsibility, by contrast, provides the remedial framework that activates only upon breach, determining the legal consequences of cessation, non-repetition, and reparation that follow from a failure to meet substantive obligations. Together, they transform a normative expectation into a legally cognisable claim, provided that a substantive primary obligation exists under international law: the polluter-pays principle answers the question of who should pay, while state responsibility answers the question of what happens if they do not.

These normative foundations are further reinforced by state responsibility under customary international law. The International Law Commission's Draft Articles on State Responsibility, ⁸⁴ though not a treaty, reflect widely accepted legal standards, affirming that states are accountable for internationally wrongful acts, including environmental harm, and must provide reparations, a duty that could extend to addressing displacement resulting from such harm. ⁸⁵

Importantly, this framework operates as a secondary rule system: it does not define the substantive obligations of states, but it determines the legal consequences when such obligations are breached, including those arising in the environmental field. The substantive content of these obligations is primarily informed by international environmental law, in particular the no-harm principle.

Recognised since the Trail Smelter Arbitration ⁸⁶ and reaffirmed in Principle 2 of the Rio Declaration, this principle requires states to ensure that activities within their jurisdiction do not cause significant environmental damage beyond their borders. In the context of climate change, this obligation becomes particularly relevant where anthropogenic emissions contribute cumulatively to global environmental degradation.

The question of causation requires careful handling. Environmentally-induced displacement is rarely monocausal; poverty, governance failures, and conflict interact with environmental change. ⁸⁷ This analysis does not require but-for causation. It suffices that EU emissions are a substantial contributing factor to the environmental changes that foreseeably produce displacement. If the EU's historical and ongoing emissions contribute to significant environmental degradation resulting in human displacement, then a legally relevant causal chain (based on substantial contribution rather than sole causation) emerges between emissions, environmental harm, and displacement. This chain engages not only in preventive duties to mitigate emissions but also responsibility for the foreseeable consequences of such harm.

The International Court of Justice, in Pulp Mills (Argentina v. Uruguay) (2010), ⁸⁸ further clarifies the content of this due diligence obligation, holding that the duty to prevent transboundary harm requires continuous monitoring, risk assessment, and equitable cooperation (Paras 197, 204–205, 266).

Crucially, it also emphasised procedural obligations such as environmental impact assessment, notification, and consultation. Applied to the EU, these standards support an argument that climate governance must incorporate systematic assessment of displacement risks and meaningful engagement with populations affected by environmental harm linked to EU emissions. In the context of displacement, this due diligence obligation requires the EU to systematically assess how its climate policies and historical emissions contribute to displacement risk—both within its territory and, through transboundary harm, in third countries—and to adopt corresponding preventive and remedial measures.

A related yet distinct issue concerns the EU's unique international legal personality. The EU and its Member States are parties to the UNFCCC and the Paris Agreement as a mixed agreement. Under international law, as confirmed in Article 216(2) of the TFEU and in Opinion 2/91 concerning the ILO Convention, ⁸⁹ the EU bears independent responsibility for fulfilling its treaty obligations within its areas of competence. Accordingly, references to ‘EU responsibility’ in this section denote the EU as an independent legal person, without prejudice to the shared responsibility of Member States under the principle of loyal cooperation.

As such, the law of state responsibility does not create new primary obligations but rather provides the remedial architecture through which the EU's failure to address environmental displacement – should such a failure amount to a breach of a primary rule – could give rise to legal consequences, including reparation.

Synthesis

In sum, the convergence of treaty obligations (The Paris Agreement), interpretive COP decisions, customary principles (the no-harm rule), general principles (polluter-pays, within the EU context), and international jurisprudence (Trail Smelter and Pulp Mills) establishes a strong prima facie legal case for the EU's responsibility to address environmental displacement. These frameworks imply that the EU cannot remain passive in the face of growing displacement. However, this argument is prima facie rather than conclusive. Full doctrinal confirmation would require further development of three elements: (1) a primary rule of international law imposing a specific duty on the EU to address climate-induced displacement; (2) a breach of that duty through the EU's failure to establish a protection framework, allocate adequate funding, or include mobility measures in its NDCs; and (3) attribution of that breach to the EU as an international legal person with separate legal personality under international law. This article does not conclusively resolve all three elements but proceeds on the basis that the foregoing analysis makes a legally cognisable case for responsibility.

Treaty sources and EU human rights obligations

The EU, as a prominent global actor and staunch advocate for human rights, ⁹⁰ bears a significant responsibility to address environmental displacement. The EU's human rights commitments derive from multiple legal sources: its own treaties (CFR and Article 2 TEU); its Member States’ obligations under international human rights law, including UN treaties and the European Convention on Human Rights (ECHR); and general principles of EU law.

In this article, ‘international human rights law’ refers to a body of legally binding international norms that establish minimum standards of protection owed to all individuals, requiring states and supranational entities such as the EU to respect, protect, and fulfil rights grounded in the principle of human dignity, ⁹¹ while ‘fundamental rights’ refers to the rights protected within the EU legal order, particularly under the CFR. ⁹² The ‘human rights obligations’ of the EU discussed below arise from both its duty to respect fundamental rights when implementing its own policies and the fact that all Member States are bound by international human rights treaties, which the EU itself must not undermine.

The absence of a legal framework to protect those displaced by environmental degradation and climate change risks undermining its human rights commitments and may amount to a violation of international human rights law. ⁹³ This legal framework requires states, and by extension, regional bodies like the EU, to protect fundamental rights. These rights are increasingly at risk because of the impacts of environmental degradation and climate change, which disproportionately affect vulnerable populations, particularly in the Global South. ⁹⁴ These communities bear the brunt of environmental degradation despite contributing the least to its causes.

Given this disparity, the EU's failure to establish a proper legal framework for EDPs is especially concerning. By denying access to territory, asylum procedures, and protection from refoulement, it exacerbates human rights violations against individuals already affected by environmental degradation. Those fleeing life-threatening conditions are either returned to harm or pushed into irregular channels, rendering their human rights protections effectively illusory.

This omission also raises questions under Articles 2, 6, and 8 TEU, which require the EU to respect fundamental rights and promote international human rights standards. In the absence of any viable legal avenue for protection, EDPs remain exposed to foreseeable risks of inhuman treatment or death upon return. This inaction is not neutral; it actively perpetuates the vulnerability of EDPs. Under international law principles of due diligence and state responsibility for acts within a state's jurisdiction or control, the EU's indirect contribution to environmental degradation through its consumption patterns and global economic activities further strengthens the case for its legal responsibility.

One of the pressing questions this article seeks to answer is whether, by failing to uphold its obligations, the EU is complicit in systemic human rights violations against those disproportionately affected by environmental and climate-induced displacement.

Customary principles, jurisprudence, and state responsibility

The disconnect between the EU's human rights obligations and its lack of protections for EDPs becomes apparent when examining the Universal Declaration of Human Rights (UDHR). ⁹⁵ While not a treaty, the UDHR has profoundly shaped customary international law and influenced EU treaties, CFR, and policies. ⁹⁶ It explicitly recognises the right to life and the right to seek asylum from persecution, though it is silent on environmental harm.

The EU's failure to provide explicit legal protections for EDPs violates these rights because the absence of protection denies access to asylum procedures and exposes individuals to life-threatening conditions upon return – conditions that, if state-caused, would clearly trigger UDHR protections.

More broadly, the EU is bound by international human rights principles, including the prohibition of refoulement, the duty to respect and ensure human rights without discrimination, and the obligation to protect individuals from foreseeable harm. These principles bind the EU both because its Member States have ratified the underlying treaties and because the EU has recognised them as general principles of EU law. Indeed, environmental degradation undermines fundamental rights, depriving people of clean water, food security, and liveable conditions. ⁹⁷

Those displaced face a double injustice: first, from environmental harm in their home countries, and second, from the EU's failure to recognise environmental displacement under its EU asylum and international protection framework. By denying protection, the EU may be complicit in perpetuating human rights violations, effectively disregarding its obligations under international human rights principles. This exclusion has tangible consequences. Consider, for instance, a farmer displaced by prolonged drought in sub-Saharan Africa, unable to grow crops or access clean water. Under current EU laws, they would not qualify for asylum, despite the clear threat to their basic human rights.

While the UDHR upholds universal rights to life and protection from persecution, including from severe environmental harm that renders return impossible, the EU's framework does not extend these principles to those fleeing environmental crises. The core principles of the UDHR are reinforced by major international human rights treaties, such as the International Covenant on Civil and Political Rights ⁹⁸ (ICCPR) and the International Covenant on Economic, Social and Cultural Rights ⁹⁹ (ICESCR). While these agreements do not directly bind the EU as an institution, they influence its human rights framework, as all Member States have ratified them. As a result, the EU is obliged to ensure its policies adhere to these standards. Under the ICCPR and ICESCR, Member States are legally required to safeguard fundamental rights, including the right to life ¹⁰⁰ and the rights to health, adequate living conditions, and housing. ¹⁰¹

The UN Human Rights Committee (HRC) jurisprudence has expanded the interpretation of the right to life ¹⁰² to encompass environmental threats, as demonstrated in two key cases. In Teitiota v. New Zealand (2020), ¹⁰³ the Committee acknowledged that climate-induced conditions, such as rising sea levels rendering Kiribati uninhabitable, could trigger non-refoulement obligations if return would expose individuals to life-threatening harm. ¹⁰⁴ Although the claim was dismissed because of ‘insufficient imminence’ – the risk of harm, while serious, was not yet immediate enough to trigger Article 6 on the specific facts – the ruling established a precedent that environmental degradation may violate the right to life under the ICCPR.

Similarly, in Daniel Billy & Ors. v. Australia (2022), ¹⁰⁵ the Committee found that Australia's failure to implement adequate climate adaptation measures for Torres Strait Islanders violated their rights to private and family life and cultural rights under Articles 17 and 27 of the ICCPR. Although the right to life claim in Billy was dismissed because of the 10–15 year timeframe for projected inundation, dissenting opinions contended that Australia's insufficient mitigation efforts posed a foreseeable threat to life.

Having examined the ICCPR and ICESCR framework, the analysis now turns to the ECHR, which exerts a more direct legal influence on the EU through the accession obligation in Article 6(2) TEU and the case law of the CJEU. While the EU is not yet a formal party to the ECHR, it operates under a clear duty to uphold its provisions through the legal commitments of its Member States and its own foundational treaties. Article 6(2) of the TEU explicitly requires the EU to accede to the ECHR, affirming that the Convention's principles form part of EU law. Furthermore, the CFR incorporates ECHR protections and mandates their interpretation in line with the jurisprudence of the European Court of Human Rights (ECtHR). ¹⁰⁶ The CJEU has reinforced this alignment in rulings such as Bosphorus v. Ireland, ¹⁰⁷ upholding the primacy of ECHR rights, particularly the prohibition of inhuman or degrading treatment under Article 3, within EU law.

Despite these legal safeguards, the EU's failure to formally recognise EDPs as eligible for protection under EU law creates a stark contradiction with its human rights obligations. The ECtHR has progressively interpreted Article 2 ¹⁰⁸ of the Convention, ruling that state inaction on climate change can violate fundamental rights. Similarly, cases like López Ostra v. Spain ¹⁰⁹ and Budayeva v. Russia ¹¹⁰ have affirmed that states may be held liable for failing to prevent or mitigate environmental disasters that infringe upon human rights. These rulings highlight a clear legal imperative: governments must take proactive measures to protect individuals from environmental harm that threatens their right to life.

The same legal logic extends to the EU because the EU exercises sovereign powers over asylum and return and because under Article 51(1) of the CFR, the EU's institutions are bound to respect fundamental rights when implementing Union law. Accordingly, if member states are obliged under the ECHR to prevent foreseeable environmental harm, the EU – as the entity that has harmonised asylum policies and controls external border management through agencies such as Frontex – cannot evade a parallel obligation. However, this obligation remains unfulfilled in practice. The EU's asylum and international protection framework, though incorporating protections against refoulement under Article 3 ECHR, fails to explicitly acknowledge the vulnerabilities of those displaced by environmental-related disasters.

This legal gap not only disregards the ECtHR's evolving jurisprudence – which, while not directly binding on the EU, is treated as authoritative by the CJEU and represents a legal standard the EU must consider to avoid liability – but also exposes Member States to potential litigation before the ECtHR if they return individuals to regions where climate disasters pose life-threatening risks. Such litigation would argue that return violates Article 3, which prohibits inhuman or degrading treatment, or Article 2, which guarantees the right to life, of the ECHR.

Compounding this issue, the EU's ongoing accession process to the ECHR underscores the urgency of policy coherence. Without explicit recognition of climate displacement – meaning a legal provision acknowledging that severe environmental harm can be a basis for international protection, whether subsidiary or humanitarian – the EU's legal framework continues to treat EDPs as invisible, forcing them into irregular channels or return. This omission represents a legal failure, one that demands urgent reform to align the EU's policies with its foundational principles and international obligations.

Synthesis

The UDHR, ICCPR, ICESCR, and ECHR, together with the jurisprudence of the UN Human Rights Committee and the ECtHR, converge on a clear legal principle: states and regional organisations must protect individuals from foreseeable, life-threatening environmental harm. Applied to the EU, this principle generates legal responsibility on three grounds. First, the EU is directly bound by the CFR and by Article 6(2) TEU's obligation to accede to the ECHR. Second, the EU exercises effective control over harmonised asylum and border policies, engaging state responsibility under international law. Third, the EU's due diligence obligations are engaged by its indirect contribution to environmental degradation through consumption patterns and economic activities.

Consequently, the EU's failure to recognise EDPs within its asylum and international protection framework is not a mere policy gap but a legal failure that breaches its own fundamental rights commitments and international human rights obligations. Taken together, these developments confirm that policy inertia operates not only within the EU asylum and international protection framework, but also across its external environmental and climate governance regimes, thereby reinforcing the systemic nature of the gap identified in this article.