A Converging Rights-Based Approach To Climate, Displacement
And Conflict

Climate Security in South Asia    

Similar tendencies towards an increase in militarisation and securitisation are also unfolding in Asia. In May 2025, the suspension of the Indus Water Treaty between India and Pakistan, was part of the reason the two countries became embroiled in a short but quickly escalating war. Relatedly, ‘national security’ has increasingly become the determining  factor in the treatment of Afghan refugees in Pakistan. The recent escalation in tensions between Pakistan and Afghanistan triggered the closure of all refugee camps in Khyber Pakhtunkhwa. The porous nature of the international border between Pakistan and Afghanistan makes it extremely difficult to prevent cross-border migration and if these underlying causes are not addressed, pose a serious risk for future conflict. These geopolitical ramifications illustrate the nexus between climate, displacement and conflict for South Asia. A recent report on climate migration in the region predicts displacement of ‘over 800 million people by 2050, further straining the region’s economies’. The 2025 monsoon spell has left the country reeling, with 1,037 lives lost and an estimated PKR 822 billion in economic losses. In Afghanistan, nearly 9 million people were impacted by climate change over the last year. It is thus cognisant to foresee that climate change will be the primary driver for forced migration across South Asia. Consequently, the weaponisation of resources and collapse of climate diplomacy will be catastrophic for the region, likely leading to an increase in conflict between and within ethnically fragmented societies and stained economies.

A number of South Asian countries have not ratified the 1951 Refugee Convention, and regrettably the convention definition currently does not extend to ‘climate refugees’. Similarly, while the UNFCCC and the Paris Agreement recognise a link between climate change and mobility through its Task Force on Displacement, established under the Warsaw International Mechanism for Loss and Damage, the mechanism is effectively weak as it cannot impose binding obligations on parties. This weak effectivity issue also arises for the Global Compact for Safe, Orderly and Regular Migration (GCM). 

Climate Change and Refugee Rights in Pakistan

Prominently, while Pakistan is not a party to the Refugee Convention, the judiciary in Rahil Azizi v. The State PLD 2024 Islamabad 231 has advanced a customary international law interpretation to the principle of non-refoulement under Article 3 of the CAT, to which Pakistan is signatory. Pakistan is thus bound by this customary international law obligation – an obligation that will be owed to refugees in the future and is now being      constructed by international and regional courts as an obligation owed to those displaced due to climate change.

Moreover, the Constitution of Pakistan also extends a number of guarantees to all ‘persons’ and not just citizens, including the right to life which has been interpreted widely by the courts, notably in the Shehla Zia v. WAPDA case (PLD 1994 SC 693), where the Supreme Court of Pakistan interpreted Article 9 as covering the right to environment. This must now be read in conjunction with the 26^th Amendment to the Constitution of Pakistan which inserts article 9A: ‘Every person shall be entitled to a clean, healthy and sustainable environment’. As a party to the UNFCCC, the Kyoto Protocol and the Paris Agreement, Pakistan is also bound by international commitments arising under these instruments. Reflexively, perhaps, Pakistan promulgated its Climate Change Act in 2017, establishing the Pakistan Climate Change Authority, which is to work under the Pakistan Climate Change Council. While the Act directs the authority to establish mechanisms for the implementation of policies at the federal and provincial levels to adapt policies to mitigate the impacts of climate change, it lacks operative enforcement mechanisms and does not stipulate penalties for those found in breach of the law. In addition, it does not consider climate-induced displacement. In October 2024, the Climate Refugees Rights and Protection Bill 2024 was tabled in Parliament. The Bill (if passed) would mark the first instance of a country providing a legally binding definition of ‘climate refugees’. However, the definition is restrictive and unclear, while it recognises climate refugees as a distinct category, it limits this understanding to persons forcibly displaced within Pakistan (Art. 2(d)). Overall, there exists a substantial foundational framework, which if amended and implemented appropriately, can be utilised to address the issues to climate change, displacement in averting domestic conflict.    

The Right to a Clean and Healthy Environment: A Standalone Right    

‘Taken together, the statements, treaty participation, national constitutional and legislative provisions, judicial reasoning and official submissions form a beyond doubt converging and convincing body of evidence. They firmly confirm that a substantial number of States, across all regions and legal traditions, engage in the recognition and implementation of the right to a clean, healthy and sustainable environment not as a mere matter of policy discretion or discretional political preference, but out of a sense of legal duty. This belief demonstrates that the practice previously identified is accompanied by the requisite opinio juris. Consequently, both conditions for the existence of a customary norm are fulfilled’.

SEPARATE OPINION OF JUDGE AURESCU – ICJ Advisory Opinion (p.17)

Notably, in international fora we can observe a convergence towards a rights-based approach to the right to a healthy environment as inextricably linked to the accessibility of fundamental rights and thereby extending obligations for States toward those displaced due to climate change. Citing  the Teitiota decision, the International Court of Justice’s  Advisory Opinion (AO) on the ‘Obligation of States in Respect to Climate Change’  states:

‘In the view of the Court, States have obligations under the principle of non-refoulement where there are substantial grounds for believing that there is a real risk of irreparable harm to the right to life in breach of Article 6 of the ICCPR if individuals are returned to their country of origin)’ (para 378).

By recognising ‘substantial grounds’, the court clarifies prior confusion vis-à-vis ‘imminence’ of harm, as Michelle Foster and Jane McAdam suggest ‘that the appropriate frame of analysis is one of foreseeability of harm—not imminence’ (p. 982) for the invocation of international protection, the foreseeability of climate-induced displacement is now evident. It is also worthwhile highlighting that climate-change and statelessness are increasingly being recognised as a fast emerging issue, (see Global Action Plan to End Statelessness 2.0 and Public Consultation on Nationality and Statelessness in the Context of Climate Change).

Correspondingly, on September 30 2025 the UN Committee on Economic, Social and Cultural Rights issued General Comment No. 27, affirming that a clean, sustainable and healthy environment is a necessary prerequisite for the enjoyment of economic, social and cultural rights. GC 27 also refers to the ICJ-AO, in addition to the Inter-American Court of Human Rights’ Advisory Opinion on the obligations of States in responding to the climate emergency, OC-32/25 2025 (OC-32/25), and the ITLOS Advisory Opinion on climate change and international law. This strong engagement by international and regional judicial bodies on the right to a clean environment and displacement substantiates an emerging rights-based customary international law approach to these issues.     

While the ICJ’s Advisory Opinion falls short on clearly delineating to whom these obligations are owed, this is remedied through the OC-32/25 which provides a cohesive ‘differentiated and human-centred approach’. The OC-32/25 recognises that ‘the impacts of climate change can also affect populations already in situations of forced displacement, exacerbating the risks they face and driving additional displacement, as well as prolonged and continuous displacement’ (para. 419). Accordingly, the OC-32/25 offers a comprehensive framework of obligations for States, including the obligation to protect sources of livelihood, food security and housing, institutionalise regulatory and budgetary measures and  calls on local, national and regional stakeholders to co-operate to implement these measures (paras. 422-434).

Consequently, if South Asian nations are committed to addressing these pressing challenges, the evolving international legal environment provides a significant platform for establishing binding obligations and equitable solutions (para. 365, ICJ AO).