Research Handbook on Climate Change, Migration and the Law 1785366580, 9781785366581

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RESEARCH HANDBOOK ON CLIMATE CHANGE, MIGRATION AND THE LAW

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RESEARCH HANDBOOKS IN CLIMATE LAW Series Editor: Jonathan Verschuuren, Tilburg University, the Netherlands This important and timely series brings together critical and thought-provoking contributions on the most pressing topics and issues within the field of climate law. The volumes in this significant series cover a wide array of the effects of climate change on such diverse fields as trade, human rights, energy, disasters, finance, and migration.  Each Research Handbook comprises specially-commissioned chapters from leading academics, and practitioners, as well as those with an emerging reputation and is written with a global readership in mind. Equally useful as reference tools or high-level introductions to specific topics, issues and debates, these Handbooks will be used by academic researchers, postgraduate students, practising lawyers and lawyers in policy circles. Titles in this series include: Research Handbook on REDD+ and International Law Edited by Christina Voigt Research Handbook on Emissions Trading Edited by Stefan E. Weishaar Research Handbook on Climate Change and Trade Law Edited by Panagiotis Delimatsis Research Handbook on Climate Change and Agricultural Law Edited by Mary Jane Angelo and Anél Du Plessis Research Handbook on Climate Change, Migration and the Law Edited by Benoît Mayer and François Crépeau

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Research Handbook on Climate Change, Migration and the Law

Edited by

Benoît Mayer Assistant Professor, Faculty of Law, Chinese University of Hong Kong

François Crépeau Hans & Tamar Oppenheimer Professor in Public International Law, Faculty of Law, McGill University, Canada

RESEARCH HANDBOOKS IN CLIMATE LAW

Cheltenham, UK • Northampton, MA, USA

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© The Editors and Contributors Severally 2017 All rights reserved. No part of this publication may be reproduced, stored in a retrieval system or transmitted in any form or by any means, electronic, mechanical or photocopying, recording, or otherwise without the prior permission of the publisher. Published by Edward Elgar Publishing Limited The Lypiatts 15 Lansdown Road Cheltenham Glos GL50 2JA UK Edward Elgar Publishing, Inc. William Pratt House 9 Dewey Court Northampton Massachusetts 01060 USA

A catalogue record for this book is available from the British Library Library of Congress Control Number: 2017939821 This book is available electronically in the Law subject collection DOI 10.4337/9781785366598

ISBN 978 1 78536 658 1 (cased) ISBN 978 1 78536 659 8 (eBook)

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Typeset by Servis Filmsetting Ltd, Stockport, Cheshire

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Contents List of contributorsviii  1 Introduction Benoît Mayer and François Crépeau

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PART I PERSPECTIVES ON THE CLIMATE-MIGRATION NEXUS   2 Climate-related migration and its linkages to vulnerability, adaptation, and socio-economic inequality: evidence from recent examples29 Robert McLeman   3 ‘Climate-induced migration’: ways forward in the face of an intrinsically equivocal concept Calum T.M. Nicholson   4 Representation and misrepresentation of climate migrants Carol Farbotko

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PART II  EXISTING LAWS AND INSTITUTIONS   5 The inadequacy of international refugee law in response to environmental migration Christel Cournil   6 The relevance of the Guiding Principles on Internal Displacement for the climate change-migration nexus Elizabeth Ferris

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  7 Climate change, human rights and migration: a legal analysis of challenges and opportunities 131 Siobhán McInerney-Lankford   8 Indigenous peoples, climate migration and international human rights law in Africa, with reflections on the relevance of the Kampala Convention 169 Ademola Oluborode Jegede v

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vi  Research handbook on climate change, migration and the law   9 International climate change law perspectives Maxine Burkett 10 Displacement due to responses to climate change: the role of a rights-based approach Sébastien Jodoin, Kathryn Hansen and Caylee Hong 11  Climate change, migration and the law of state responsibility Benoît Mayer

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12 Regional responses to climate change and migration in Latin America262 Erika Pires Ramos and Fernanda de Salles Cavedon-Capdeville 13 Organizational perspectives: International Organization for Migration’s role and perspectives on climate change, migration and the law Gervais Appave, Alice Sironi, Mariam Traore Chazalnoël, Dina Ionesco and Daria Mokhnacheva

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14 Organizational perspective from the International Labour Organization316 Sophia Kagan, Meredith Byrne and Michelle Leighton 15 Engaging the media on climate-linked migration Alex Randall

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PART III  WAYS FORWARD? 16 Ethical duties to climate migrants Katrina M. Wyman 17 When climate-induced migration meets loss and damage: a weakening agenda-setting process? Chloé Anne Vlassopoulos 18 The refugees of the Anthropocene François Gemenne 19 Towards a global governance system to protect climate migrants: taking stock Frank Biermann and Ingrid Boas 20 Towards a climate change displacement facility Ilona Millar and Kylie Wilson

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Contents  ­vii 21 Towards an extension of complementary protection? Susan F. Martin

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Afterword  James C. Hathaway

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Index471

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Contributors Gervais Appave is currently the Special Policy Adviser to the Director General of the International Organization for Migration. He was the founding Director of the Migration Policy, Research and Communication (MPRC) Department at the IOM. He has been the editor in chief and a contributing author to several IOM World Migration Reports. His ­professional itinerary and responsibilities have revolved around the search for effective policies for the governance of human mobility. Frank Biermann is a research Professor of Global Sustainability Governance with the Copernicus Institute of Sustainable Development, Faculty of Geosciences, Utrecht University, the Netherlands. He also chairs the Earth System Governance Project, a global transdisciplinary research network launched in 2009. Biermann’s current research examines multilateral institutions, options for reform of the United Nations, global adaptation governance, Sustainable Development Goals, the political role of science, global justice, non-state climate actions, and conceptual ­innovations such as the notion of the Anthropocene. Ingrid Boas is Assistant Professor at the Environmental Policy Group at Wageningen University, the Netherlands. Her research is in the field of environmental change, mobilities and governance, with a focus on environmentally-induced migration, climate security and climate ­resilience. She has recently been awarded a personal grant on the subject of ­environmentally-related migration in the digital age. Her recent book is Climate Migration and Security: Securitisation as a Strategy in Climate Change Politics (2015). Maxine Burkett is a Professor of Law at the William S. Richardson School of Law, University of Hawai‘i and a Global Fellow at the Woodrow Wilson International Center for Scholars. An expert in the law and policy of climate  change, from 2009–12, Professor Burkett also served as the inaugural Director of the Center for Island Climate Adaptation and Policy (ICAP). As the Director of ICAP, she led projects to address climate change policy and planning for island communities globally. Meredith Byrne is a Junior Technical Officer for the Labour Migration Branch of the International Labour Organisation, specializing in labour migration in the context of climate change and crisis. Meredith previously viii

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Contributors  ­ix worked with the UNHCR Livelihoods Unit in Geneva after several stints of field research in both Cameroon and Uganda. Meredith has her BA in International Relations from Connecticut College and her M.Phil. in Development Studies from the University of Oxford. ​ Christel Cournil is Associate Professor in Public Law at the University of Paris 13, Sorbonne Paris Cité and lecturer at Sciences Po Toulouse. She is a member of the IRIS laboratory and is associated with CERAP. She runs a chronicle in the European Journal of Human Rights. She holds degrees from the University of Toulouse Capitol. Her research focuses on the climate-migration nexus, climate justice and the link between human rights and environmental law. François Crépeau is Full Professor and holds the Hans and Tamar Oppenheimer Chair in Public International Law, at the Faculty of Law of McGill University. He has been appointed United Nations Special Rapporteur on the Human Rights of Migrants in 2011. He is a fellow of the Royal Society of Canada. In August 2015, he became Director of McGill’s Centre for Human Rights and Legal Pluralism for a three-year mandate. Carol Farbotko is a researcher in cultural geography and environmental studies, with interests in conceptualizing and testing the ways in which culture shapes, and is shaped by, environmental change. She has studied the cultural politics of a range of human and non-human subjects, including climate migrants. She is currently affiliated with the School of Land and Food – Geography and Environmental Studies, University of Tasmania, Australia. Elizabeth Ferris is Research Professor with the Institute for the Study of International Migration at Georgetown University’s School of Foreign Service and also serves as a Non-resident Senior Fellow in Foreign Policy at the Brookings Institution. From 2006-2015, she was a Senior Fellow and co-director of the Brookings-LSE Project on Internal Displacement. Prior to joining Brookings, she spent 20 years working in the field of ­humanitarian assistance. François Gemenne is a specialist of the geopolitics of environmental ­migration. He is a FNRS senior research associate at the University of Liège and he also lectures on environmental and migration policies in various universities, including Sciences Po in Paris and the Free University of Brussels. He has been involved in a large number of international research projects on these issues, including EACH-FOR, HELIX and MECLEP, for which he is the global research coordinator.

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x  Research handbook on climate change, migration and the law Kathryn Hansen is a research assistant with the Law, Governance and Sustainability Lab, at McGill University, where she has been primarily working on the human rights implications of climate change policies and mechanisms. She completed her B.C.L. and LL.B. degrees at the McGill Faculty of Law and holds a B.A. in Political Studies, Environmental Studies, and Geography from Bishop’s University. James C. Hathaway is the James E. and Sarah A. Degan Professor of Law and Director of the Program in Refugee and Asylum Law at the University of Michigan, as well as Distinguished Visiting Professor of International Refugee Law at the University of  Amsterdam. His publications include the leading treatise on the refugee definition (The Law of Refugee Status, second edition 2014 with M. Foster; first edition 1991); an interdisciplinary study of models for refugee law reform (Reconceiving International Refugee Law, 1997); and The Rights of Refugees under International Law (2005). Caylee Hong is a Ph.D. student in anthropology at the University of California, Berkeley. She previously practised law as a project finance attorney in New York City and clerked at the Federal Court of Canada. She holds degrees from University College Utrecht, SOAS University of London, and McGill University. Her research focuses on infrastructure, finance, political belonging and the management and governance of natural resources. Dina Ionesco is the Head of the Migration, Environment and Climate Change (MECC) Division at the International Organization for Migration (IOM). In this capacity she oversees policies and programmes related to migration, environment and climate change. She is the co-author of the Atlas of Environmental Migration (2016). Dina was awarded ‘Woman in Geneva working for the Environment’. Prior to joining IOM in 2004, Dina worked with the OECD in Paris from 1998 to 2004 as an administrator on local development, as well as in non-governmental organizations and academia. Ademola Oluborode Jegede is a Senior Lecturer in the Department of Public and International Law, University of Venda, Thohoyandou, 0950, South Africa. He holds degrees from Obafemi Awolowo University Ile-Ife, University of Ibadan and the Centre for Human Rights, Faculty of Law, University of Pretoria. He has been a research visitor to the Centre for International Environmental Law, USA and Human Rights Institute at Abo Akademi, Finland. His research focuses on the interface of climate change with human rights of vulnerable groups and general international human rights law.

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Contributors  ­xi Sébastien Jodoin is an Assistant Professor in the Faculty of Law of McGill University. He is also a member of the McGill Centre for Human Rights and Legal Pluralism and a faculty associate of the Governance, Environment & Markets Initiative at Yale University. He holds a Ph.D. in environmental studies from Yale University, graduate degrees in ­international relations and international law from the University of Cambridge and the London School of Economics, and completed his legal education at McGill University. Sophia Kagan is a lawyer and programme manager with more than a decade of experience working on migration issues. From 2013–15, she worked with the International Labour Organization Office for Pacific Island countries in policy development on the issue of climate change-induced displacement of Pacific Islanders, through a joint technical cooperation project funded by the European Commission. She is currently the Chief Technical Adviser on a regional migration project with the International Labour Organization Regional Office for Arab States, based in Lebanon. Sophia received her LL.M degree from Monash University and her Masters of Science in Development Management from the London School of Economics and Political Science. Michelle Leighton is Chief of the Labour Migration Branch for the International Labour Organization. She served as a member of the World Economic Forum Global Agenda Council on Migration (2014–16) and has expertise in the fields of international law, labour m ­ igration, human rights, and economic development. She received her LL.M degree from the London School of Economics and Political Science and previously taught on law faculties in Asia, Europe and the United States and authored numerous publications. Susan F. Martin is Donald G. Herzberg Professor Emerita and founder of the Institute for the Study of International Migration at Georgetown University. She also chairs the Thematic Working Group on Environmental Change and Migration at the Knowledge Partnership on Migration and Development (KNOMAD) at the World Bank. Previously, Dr. Martin served as the Executive Director of the US Commission on Immigration Reform, established by legislation to advise Congress and the President on US immigration and refugee policy. Benoît Mayer is Assistant Professor at Faculty of Law of the Chinese University of Hong Kong. He is also the founding managing editor of the Chinese Journal of Environmental Law. He holds degrees from the National University of Singapore, McGill University, Sciences Po Lyon and the Sorbonne University and has previously worked in Wuhan University

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xii  Research handbook on climate change, migration and the law (China). His research focuses on the climate-migration nexus and the ­international law on climate change law generally. Siobhán McInerney-Lankford is Senior Counsel at the World Bank Legal Vice-Presidency and a recognized expert in international human rights law. She is an adjunct professor at AU Washington College of Law, and has taught at EPLO, EIUC, the Harvard School of Public Health and the UN Summer Academy. She holds an LL.B. from Trinity College, Dublin, (First Class Honours), an LL.M. from Harvard Law School, a B.C.L. and D.Phil. in EU human rights law both from Oxford. Robert McLeman is Associate Professor of Geography and Environmental Studies at Wilfrid Laurier University in Waterloo, Canada. Dr. McLeman is a former Canadian foreign service officer who specializes in research on the relationship between environment and human migration; c­ ommunity adaptation to climatic variability and change; and, fostering citizen ­participation in environmental science. Ilona Millar is a Special Counsel in the Baker McKenzie climate change practice. She is also a visiting fellow and co-coordinates the i­nternational climate change law course at the Australian National University. Her particular focus is advising on the legal aspects of international and ­ domestic climate change policy, carbon markets and emissions trading. She holds degrees from the University of Western Australia, Murdoch University and the University of Sydney. Daria Mokhnacheva is Programme Officer at the Migration, Environment and Climate Change Division at the International Organization for Migration (IOM), in charge of IOM’s support to the Platform on Disaster Displacement (follow-up to the Nansen Initiative). Her undergraduate studies were in Oriental Studies and Social and Political Studies at the University of Cambridge, and her Masters studies focusing on environment, sustainable development and risks at Sciences Po Paris and Columbia University. She is one of the co-authors of The Atlas of Environmental Migration. Calum T.M. Nicholson’s thematic specialisation is on the ‘climate change and migration’ debate. His broader interests lie in the comparative study of applied fields in the social sciences, with the goal of determining the recurring structure of our narratives about what is, and what ought to be, regardless of thematic content. He holds a BA in Social Anthropology from the University of Cambridge, and an M.Phil. in Migration Studies from the University of Oxford.

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Contributors  ­xiii Erika Pires Ramos is co-founder of the South American Network for Environmental Migrations – RESAMA. She has a Ph.D. in International Law at University of São Paulo and is a Federal Attorney at Brazilian Institute for the Environment and Natural Renewable Resources – IBAMA. Researcher at Environmentally Displaced Persons Study Centre – NEPDA/UEPB, Human Rights and Vulnerabilities Research Group at UNISANTOS and Brazilian Institute for the Climate Change Law – iCLIMA. Her research focuses are: climate change, disasters, human rights and environmental migration laws, policies and governance. Alex Randall is programme manager at the Climate and Migration Coalition – a network of refugee and migration rights organizations working together on climate change. The coalition exists to support and protect people facing displacement linked to environmental change. He was lead author on ‘Moving Stories – the voices of people who move in the context of environmental change’ as well as numerous other reports. He writes regularly on climate-linked migration in the media. Fernanda de Salles Cavedon-Capdeville has a doctorate degree in Environmental Law, European mention from the University of Alicante, Spain, and a post-doctoral degree in Environmental Law and Human Rights from the University of Limoges in France. She is a researcher at the South American Network for the Environmental Migrations and at the Centre International de Droit Comparé de l’Environnement. She is an independent consultant on environment, human rights, disasters and environmental migration laws and policies. Alice Sironi is Migration Law Specialist in the International Migration Law Unit of IOM Geneva. She trains government officials and other ­stakeholders on international migration law, reviews national legislation in this area and advises IOM offices on compliance with international standards. Her current research interests are environmental migration and protection of migrants in disaster situations. She studied at the Sorbonne University of Paris and holds a Ph.D. in International Law and Human Rights from the University of Naples. Mariam Traore Chazalnoël is a Thematic Specialist in Migration, Environment and Climate Change at the International Organization for Migration (IOM) Mission to the United Nations in New York. In this capacity, Mariam manages IOM’s work in relation to the global climate negotiations. Mariam has been working with IOM since 2008 in various capacities in Geneva, Bamako and New York.

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xiv  Research handbook on climate change, migration and the law Chloé Anne Vlassopoulos is Assistant Professor of Policy Science at the University of Picardie, France and member of the ‘Centre Universitaire de Recherche sur l’Action Publique et Politique’ (CURAPP-ESS/CNRS). She holds a Ph.D. in Political Science from the University of ­Pantheon-ASSAS/ Paris II. Her research focuses on policy history and policy change in association with clean air policy, climate change and environmental migration. Kylie Wilson is a Senior Associate at Ashurst in Sydney, Australia p ­ ractising in the areas of environmental and town planning law. Kylie has a Master of Laws in environmental law from New York University, where the focus of her research was international climate change law. Kylie p ­ reviously practised law in the climate change group at Baker & McKenzie and was Researcher to the Honourable Justice Brian J. Preston, Chief Judge of the Land and Environmental Court of New South Wales. Katrina M. Wyman is the Sarah Herring Sorin Professor of Law at New York University School of Law. Wyman holds degrees from the University of Toronto and Yale Law School. Wyman’s research interests relate ­primarily to property and natural resources law and policy. She also has researched restitution for historical injustices, and the ethical, policy and legal responses to the possibility that climate change might prompt largescale human migration.

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1. Introduction

Benoît Mayer and François Crépeau

This Handbook seeks to provide an overview of the myriad of ideas and debates that have emerged in recent years on climate change, migration and the law. What is often reduced to the simple terms such as ‘climate ­migration’ or ‘climate refugees’ emerged as a rather complex theme. Climate change affects human mobility in multiple ways, often indirectly, and always within the context of particular societies and communities. It is not always possible to identify specific scenarios of climate migration and, a fortiori, to single out ‘climate migrants’. In turn, these conceptual i­ ntricacies make it more difficult to analyse how existing law applies to – and how new laws and policies could relate to – what should perhaps best be called the ‘climate-migration nexus’. As editors, we were committed to opening up a forum for different voices, even if those could be conflicting, rather than pushing for a ­particular narrative of our taste. We thus leave it to the readers to weigh multiple arguments through further research. Accordingly, the chapters gathered in this Handbook are written by authors from different backgrounds and perspectives to reflect the multiple on-going discussions on the topic. These chapters develop diverse and sometimes conflicting understandings of, among others, the implications of climate change for human mobility, terminological choices, and views about desirable steps to be taken. This introduction provides a general background to the chapters that follow. A first section discusses some difficulties in conceptualizing the climate-migration nexus. A second section offers a broad overview of relevant legal developments. A third section examines the political and normative implications of discussions on the climate-migration nexus. A fourth section presents the outlines of this Handbook.1

I.  CONCEPTUAL BACKGROUND In order to provide a conceptual background, this section briefly recalls the science of climate change (A), our understanding of migration (B), and the way the former impacts the latter (C).   All links to websites were active at the time of writing (December 2016).

 1

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2  Research handbook on climate change, migration and the law A.  Climate Change The world can expect profound changes in the coming decades as we enter into the ‘Anthropocene,’ a new geological epoch dominated by human activities. Industrial societies have increasingly impacted their ­environment, not only at the local scale, but also by effecting changes in planetary systems such as the chemical composition of the atmosphere and of the oceans. Abundant scientific evidence reviewed and compiled by the Intergovernmental Panel on Climate Change clearly establishes that massive anthropogenic greenhouse gas emissions are causing profound and irrevocable changes in the global environment.2 In addition to its ­specific impacts already observed or predicted, climate change raises the risk of a global civilizational collapse – a risk which should not be d ­ isregarded on the sole ground that it cannot be objectively weighted.3 Impacts of climate change are already occurring across the world. They include global warming, changes in weather patterns, ice melting, sea-level rise and ocean acidification. These physical impacts affect food production, health, human settlements, conflicts, economic activities, cultural practices and biodiversity in multiple ways. Climate change is also increasing the frequency and strength of extreme weather events (e.g. tropical storms, floods, heat waves) and it exacerbates gradual processes of environmental degradation (e.g. desertification, land degradation, and coastal erosion). These impacts do not affect all countries and all people in the same way. The IPCC confirmed that ‘[r]isks are unevenly ­distributed and are ­ generally greater for disadvantaged people and communities in countries at all levels of development’.4 It is disheartening that those ­populations most responsible for excessive greenhouse gas emissions are also those least affected by its adverse impacts.5 Yet, attributing any particular physical event or any specific loss and damage to climate change raises multiple difficulties. Often, climate  2   See IPCC, Climate Change 2014: Synthesis Report. Contribution of Working Groups I, II and III to the Fifth Assessment Report of the Intergovernmental Panel on Climate Change (2014).  3   See e.g. Paul R. Ehrlich and Anne H. Ehrlich, ‘Can a collapse of global civilization be avoided?’ (2013) 280:1754 Proceedings of the Royal Society B ­ 20122845; James Hansen et al., ‘Ice melt, sea level rise and superstorms: evidence from paleoclimate data, climate modeling, and modern observations that 2C global warming could be dangerous’ (2016) 16 Atmos. Chem. Phys. 3761.  4   IPCC (2014), supra note 2, at 13.  5   On these and other obstacles to successful moral arguments, see Stephen Gardiner, A Perfect Moral Storm: The Ethical Tragedy of Climate Change (Oxford University Press, 2011).

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Introduction  ­3 change only means a change in probability or frequency of particular events. Tools recently developed for a ‘probabilistic attribution’ of weather events ­uneasily fit within the common expectation that attribution could be established in a binary fashion – where y would either be or not be attributed to x. Furthermore, the loss and damage suffered by individuals or communities cannot be understood in isolation from the context in which they unfold. How extreme weather events and slow environmental degradation impact people largely depends on factors such as exposure, vulnerability and resilience, which, themselves, are contingent to effective governance, social organization, development and financial resources, among others. B. Migration Human mobility, on the other hand, is a phenomenon occurring in every society at every historical time – a ‘normal’ phenomenon, not a pathology. While some migrants flee life-threatening conditions, many others simply adjust to changes in their surroundings, seek a better life elsewhere, or explore new horizons. We are all descendants of migrants, and many of us, academics or students, live or have lived in a country, or region, other than where we first belonged – if we could ever decide where we actually belong. Yet, migration has often been approached with fears, seemingly driven by some deep, often unconscious, fear towards otherness. These representations go well beyond populist, nationalist or far-right political discourses. This is perhaps best exemplified by the highly questionable distinction made in common parlance between ‘migrants’ and ‘expatriates’. Migration takes multiple forms. While attention is often placed on international migrants, most migrants remain within their country of ­ origin: we only migrate as far as we can afford. Many migrants move on their own volition, although some have little or no choice but to move away from situations of violence, poverty or danger. The UN High Commissioner on Refugees estimates that there are 19.5 million refugees and 32 million internally displaced persons.6 These represent only a fraction of an estimated 244 million international migrants, according to an estimate by the UN Department of Economic and Social Affairs.7 Internal  6   Figure collected from the website of the UN High Commissioner on Refugees on 20 May 2016. The number of refugees include 14.4 million refugees under the UNHCR mandate and 5.1 million Palestinian refugees registered by UNRWA.  7   See UN Department of Economic and Social Affairs, International Migration Report 2015, ST/ESA/SER.A/375. International migrants are defined as people living in a country other than their country of birth.

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4  Research handbook on climate change, migration and the law migrants, difficult to define and to count, are obviously in much greater numbers. China alone was reported as having a ‘floating population’ of around 150 million of unregistered internal migrants.8 These numbers, however, do not reflect the diverse realities faced by ­ individual migrants – a diversity which challenges any attempts at ­categorizing migrants. A distinction is often made between voluntary and forced migrants, suggesting that the latter should be allowed to migrate or, at least, should not be forcibly returned to their country or region of origin. This dichotomy is problematic, conceptually because the limit between free will and coercion is difficult to assess, and normatively because of the d ­ istinction it suggests between more or less ‘deserving’ migrants. Economic migration often stands as the archetype of ­‘voluntary’ ­migration, even though extreme destitution, famine, and the lack of ­ perspective for a brighter future can surely be a factor of migration as ­decisive as persecution. Overall, consideration for the human rights of migrants ­ should not be limited to an assessment of a right to enter and stay in a new place. Migrants walk with their rights, but the effective enjoyment of these rights is often impeded by a precarious status at the place of destination. C.  The Climate-Migration Nexus The impacts of climate change and responses to these impacts affect human mobility in a myriad of ways. Extreme weather events and slowonset environmental changes push people away from affected regions. A particular case regards a few low-lying small island developing States, such as the Maldives, Kiribati and Tuvalu, whose entire territory is threatened by sea-level rise, droughts and extreme weather events. In other countries, while mass displacements are most likely to take place over relatively short distances and usually within the State, an international migration of wealthier urbanites could ensue through a domino effect. In some cases, an increasing stress on environmental resources will make it more difficult for certain populations to ‘invest’ in migration (including seasonal economic migration) and may actually reduce migration flows. The impacts of climate change, measures taken in response to them, and the displacements induced or impeded by these impacts and measures may also escalate ­tensions and conflicts, which, in turn, may trigger displacements. Response measures that seek to mitigate climate change or adapt to its impacts may also have diverse implications, ranging from development-induced

 8   Kam Wing Chan, ‘China: internal migration’ in Immanuel Ness and Peter Bellwood (eds.), The Encyclopedia of Global Human Migration (Blackwell, 2010).

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Introduction  ­5 ­ isplacement and resettlement, to diverse economic incentives (‘push’ or d ‘pull’ factors) generated by a transition towards a green economy. Identifying these possible causal scenarios does not make it p ­ ossible to recognize individual ‘climate migrants’. Certainly not everyone fleeing an extreme weather event can be called a ‘climate migrant’, for instance, even if climate change can be demonstrated to have increased the ­ likelihood of some extreme weather event. Great difficulties are faced when trying to ­disentangle the signal of climate change from the ­influence of other factors, including more frequently than not poverty and local e­nvironmental ­degradation not related to climate change. An ­influential British ­governmental report concluded in 2011 that, although ­environmental factors are effecting changes in human mobility, ‘the range and complexity of the interactions between [economic, social and political drivers] means that it will rarely be possible to distinguish individuals for whom environmental factors are the sole driver’.9 In addition, there is no obvious need to single out ‘climate migrants’ from a legal perspective. Recognizing that climate change impacts (and responses to these impacts) generate changes in patterns of human ­mobility does not necessarily imply the existence of migrants of a unique sort, with protection needs different from those of other migrants, who should be targeted by particular laws or policies. It appears rather that climate change is exacerbating pre-existing protection gaps, as well as shedding light on the shortcomings of existing protection mechanisms. Narrow instruments for the protection of refugees certainly do not protect all ­individuals in need of protection – whether they are called ‘climate ­refugees’, ‘economic refugees’, or ‘survival migration’10 – as, one could argue, they should. Likewise, while most people displaced by extreme weather events, slow environmental changes or violence are generally ­considered within the concept of ‘internally displaced persons’11 and are in any case the holders of universal rights, their effective protection is often impeded by a lack of resources in developing or least-developed States. The need for further i­nternational cooperation in the protection of the human rights of all is not new, but it is increasingly pressing as climate change starts to impact the planet’s most vulnerable populations.   Foresight, Migration and Global Environmental Change: Future Challenges and Opportunities, final research report, 2011. 10   See Alexander Betts, Survival Migration: Failed Governance and the Crisis of Displacement (Cornell University Press, 2013). 11   See Guiding Principles on Internal Displacement, E/CN.4/1998/53/Add.2 (1998); African Union Convention for the Protection and Assistance of Internally Displaced Persons in Africa (2009).  9

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6  Research handbook on climate change, migration and the law

II.  OVERVIEW OF THE RELEVANT LAWS Legal debates on the climate-migration nexus extend to different fields of law. This section surveys the main developments in environmental and climate law (A); in refugee, migration and human rights law (B); and more specifically regarding the climate-migration nexus (C). A.  Environmental and Climate Law International environmental law developed progressively following the famous 1941 arbitral award in the Trail Smelter case between the United States and Canada. In this award, it was found that a State should prevent the use of its territory in manners that are evidenced to cause serious transboundary consequences.12 The growing realization of the limits and dangers associated with a rapid economic growth based on technological advance led to the organization of the United Nations on the Human Environment conference, held in Stockholm in June 1972, where the UN Environment Programme (UNEP) was established. The ‘Stockholm Declaration,’ adopted at this occasion, recognizes that: ‘The protection and improvement of the human environment is a major issue which affects the well-being of peoples and economic development throughout the world; it is the urgent desire of the peoples of the whole world and the duty of all Governments.’13 International environmental law has flourished in the last decades with the adoption of multiple legal instruments on matters such as b ­ iodiversity, desertification, chemical and wastes, fresh water resources, marine pollution, forests and wetlands, air pollution and the protection of the ozone layer, as well as procedures relating to information, consultation and impact assessment. Overall, environmental protection was recognized as an important concern at all levels of governance. The framework of a ­sustainable development identifies environmental protection as one of three pillars, along with economic development and social protection. Concerns for the global environment were triggered by scientific findings of the impacts of industrial civilization on planetary systems. The 1985 Vienna Convention for the Protection of the Ozone Layer and its protocols, in particular the 1987 Montreal Protocol, established a successful

12   Trail Smelter case (United States v Canada), award of 11 March 1941, III UNRIAA 1938, at 1965. 13   Declaration of the United Nations Conference on the Human Environment (16 June 1972), para. 2.

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Introduction  ­7 international cooperation to phase out the production of ozone-depleting substances. The Intergovernmental Panel on Climate Change was set up in 1988 by UNEP and the World Meteorological Organization in order to assess scientific information. Its first assessment report, published in 2010, provided the basis to initiate international negotiations on an instrument to address climate change. At the 1992 ‘Earth Summit’ in Rio de Janeiro, 154 States signed the UN Framework Convention on Climate Change which had been adopted by the International Negotiating Committee.14 Arduous negotiations led further to the adoption of the Kyoto Protocol in 1997,15 its ‘Doha’ Amendment in 2011,16 and the Paris Agreement in 2015.17 The Conference of the Parties for the UN Framework Convention on Climate Change have also been the occasion for the discussion and adoption of multiple decisions.18 International cooperation on climate change has initially focused almost exclusively on climate change mitigation – efforts to reduce sources and enhance sinks of greenhouse gases. Thus, the ‘ultimate objective’ of the UN Framework Convention on Climate Change (UNFCC) was defined as the ‘stabilization of greenhouse gas concentrations in the atmosphere at a level that would prevent dangerous anthropogenic interference with the climate system’.19 The Kyoto Protocol defined more specific obligations for developed States, in particular through the adoption of ‘­quantified emission limitation and reduction commitments’ in its Annex B for ­ a first commitment period extending from 2008 to 2012.20 The Doha

14   United Nations Framework Convention on Climate Change, adopted in New York on 9 May 1992, entered into force on 21 March 1994, 1771 UNTS 107. As of mid-2016, the parties to the UNFCCC comprise 196 States and one regional entity (the European Union). 15   Kyoto Protocol to the United Nations Framework Convention on Climate Change, adopted in Kyoto on 11 December 1997, entered into force on 16 February 2005, 2303 UNTS 162. As of mid-2016, the parties to the UNFCCC comprised 191 States and a regional entity (the European Union). 16   Doha Amendment to the Kyoto Protocol, adopted in Doha on 8 December 2012, not yet entered into force. As of 1 June 2016, the Doha Amendment had been ratified by 65 parties. 17   Paris Agreement, adopted in Paris on 12 December 2015, not yet entered into force. The Paris Agreement was signed by 177 States at a ceremony held in New York on 22 April 2016. 18   See for instance the ‘Cancún Pledges’ endorsed in decision 1/CP.16, ‘The Cancun Agreements: Outcome of the work of the Ad Hoc Working Group on Long-term Cooperative Action under the Convention’ (10–11 December 2010), paras 36 and 49. 19   UNFCCC, art. 2. 20   Kyoto Protocol, art. 3 and Annex B.

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8  Research handbook on climate change, migration and the law Amendment added a column in Annex B for a second commitment period, from 2013 to 2020. Under the Paris Agreement, all parties are to adopt and ­communicate ‘nationally determined contributions to the global response to climate change,’ including objectives for domestic mitigation measures.21 Despite these efforts to mitigate climate change, climate change impacts have become more tangible. The importance of climate change adaptation was progressively recognized, in particular in the 2007 Bali Action Plan,22 the 2010 Cancún Agreements,23 and the Paris Agreement.24 While most of the climate finance has focused on climate change mitigation, some efforts have been made to promote financial support to the developing States most severely affected by the impacts of climate change.25 Claims for a more systematic support – or ‘compensation’ – to the most ­vulnerable nations, long resisted by industrial nations, led to the establishment of the Warsaw international mechanism for loss and damage associated with climate change impacts in 2013,26 although little concrete measures have yet be taken.27 B.  Refugee, Migration and Human Rights Law Discourses on ‘climate refugees’ have played an instrumental role in ­ensuring the policy relevance of debates on the impact of climate change on human mobility. The 1951 Convention relating to the Status of Refugees and its 1967 Protocol provide a relatively narrow definition of a refugee, as a person outside his country of origin, to which he is unable to return ‘owing to a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion’.28 The Refugee Convention does not protect all foreigners in need of protection, and was arguably not intended to do so. In a seminal article, James Hathaway argued that international refugee law ‘in fact rejects the goal of comprehensive protection for all involuntary migrants’, creating a   Paris Agreement, arts 3 and 4.2.   Decision 1/CP.13, Bali Action Plan (14–15 December 2007), para. 1(c). 23   Decision 1/CP.16, supra note 18, paras 11–35. 24   In particular Paris Agreement, art. 7. 25   See e.g. UNFCCC, art. 4.4; Kyoto Protocol, art. 12.8; Paris Agreement, art. 9.4. 26   Decision 2/CP.19, ‘Warsaw international mechanism for loss and damage associated with climate change impacts’ (23 November 2013). 27   A two-year workplan was adopted in 2014, but focused mostly on research and advocacy. A review of the Warsaw International Mechanism should take place at the 22nd Conference of the Parties in November 2016. 28   Convention relating to the Status of Refugees, 28 July 1951, art. 1(A)(2). 21 22

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Introduction  ­9 regime where most people in need of international protection ‘must accept whatever emergency assistance is voluntary provided for them through official or nongovernmental initiatives’.29 Incremental improvements through complementary or subsidiary protection regimes ­established in many countries do not fundamentally change the exceptional character of international protection in the current practice of international relations. While pledging international protection, many developed countries have devised non-entrée strategies aimed at preventing asylum-seekers claiming a refugee status, for instance through imposing sanctions to the transporters of non-authorized migrants, investing substantial resources in border control and surveillance, and establishing partnerships with ‘buffer’ countries. International migrants who do not qualify as refugees face more frequent discriminative or abusive treatments. Specific international human rights instruments have been adopted in the last decades to protect categories of individuals who had historically been subjected to abuses. In the case of international migrants, the development of such protection has been impeded by a lack of support from developed States. The International Convention on the Protection of the Rights of All Migrant Workers and Members of their Families, adopted in 1990 by the UN General Assembly, only entered into force in 2003, after the slowest ratification process for any international human rights treaty. Its 48 parties30 include mostly countries of net emigration, such as Mexico and the Philippines, and none of the major States of emigration in Northern America, Europe, the Persian Gulf and Oceania. Likewise, a few conventions adopted under the International Labour Organisation seek to protect the rights of migrant workers, but their impact is also limited by a patchy ratification record.31 Migrants remain the only category of individuals whose human rights protection is defined in relation to their activity – as workers – as if one’s ­inalienable rights could be conditioned to one’s contribution to the host State’s economy. It remains however that general international human rights law applies to each and every individual, regardless of their status as migrants. While nationality may be a condition for an individual to enter or stay in a   James Hathaway, ‘A reconsideration of the underlying premise of refugee law’ (190) 31 Harvard International Law Journal 129, 132–3. 30   As of 22 May 2016. 31   See, in particular, the 1949 ILO Convention No. 97 concerning Migration for Employment (49 ratifications) and the 1975 ILO Convention No. 143 ­concerning Migrations in Abusive Conditions and the Promotion of Equality of Opportunity and Treatment of Migrant Workers (23 ratifications). 29

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10  Research handbook on climate change, migration and the law country and to participate in electoral processes, all other human rights extend to everyone within a State’s jurisdiction. Migration status should not be the condition for the enjoyment of human rights. Distinctions on the basis of national origin or ‘other status’ are expressly prohibited under the International Covenant on Civil and Political Rights as well as the International Covenant on Economic, Social and Political Rights.32 Human rights also apply, naturally, to internally displaced persons, and the Guiding Principles on Internal Displacement adopted by the Human Rights Council in 1998 provide an authoritative interpretation ­synthesis of the relevant obligations of States.33 This document has inspired ­numerous domestic laws and policies as well as a regional instrument, the African Union Convention for the Protection and Assistance of Internally Displaced Persons in Africa, adopted in Kampala in 2009.34 The effective implementation of human rights is often limited, sometimes by a lack of willingness of the competent national authorities, but probably more often by a lack of capacity in developing or less-developed States. International assistance and cooperation, encouraged by international human rights instruments in particular as a way to foster an effective protection of social, economic and cultural rights,35 have remained ­insufficient. International negotiations have tried to foster more cooperation, first by setting financial objectives of official development assistance,36 then by raising aspirations through the a­doption of ‘Millennium Development Goals’ in 200037 and of ‘Sustainable Development Goals’ in 2015.38 Through the Sustainable Development Goals, States committed, on the one hand, to ‘take urgent action to combat climate change and its impacts’39 and, on the other hand, to ‘cooperate internationally to ensure safe, orderly and regular migration involving full respect for human rights

  1966 International Covenant on Civil and Political Rights, art. 2(1); International Covenant on Economic, Social and Political Rights, art. 2(2). 33   Guiding Principles on Internal Displacement (1998), E/CN.4/1998/53/Add.2. 34   African Union Convention for the Protection and Assistance of Internally Displaced Persons in Africa, adopted on 22 October 2009 in Kampala, entered into force on 6 December 2012. 35   International Covenant on Economic, Social and Political Rights, art. 2(2). 36   See e.g. International Development Strategy for the Second United Nations Development Decade, UNGA Res 2626 (XXV), 24 October 1970, para. 43, on the objective of an official development assistance reaching 0.7 per cent of the gross domestic product of each donor State. 37   United Nations Millennium Declaration, UNGA Res 55/2, 8 September 2000. 38   Transforming our world: the 2030 Agenda for Sustainable Development, UNGA Res. 70/1, 2015. 39   Ibid., goal 13. 32

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Introduction  ­11 and the humane treatment of migrants regardless of migration status, of refugees and of displaced persons’.40 C.  Relevant Provisions on the Climate-Migration Nexus A few instruments have a direct relevance to the climate-migration nexus. Within the climate regime, two decisions of the Conference of the Parties to the UN Framework Convention on Climate Change have touched upon the consequences of climate change for human ­mobility. First, in order to enhance action on adaptation, article 14(f) of the Cancún Agreements (2010) calls Parties to take ‘[m]easures to enhance understanding, ­ ­ coordination and cooperation with regard to climate change induced displacement, migration and planned relocation, where appropriate, at the national, regional and international levels’.41 Secondly, a decision on approaches to address loss and damage associated with climate change impacts adopted in Doha in 2012 acknowledges the need for further work to ‘enhance the understanding of . . . how impacts of climate change are affecting p ­atterns of migration, displacement and human mobility’.42 These measures ­recognize the importance of migration as both a form of adaptation and something of relevance to approaches to address loss and damage. Climate migration has been touched upon by a variety of recent international documents. For instance, the Sendai Framework for Disaster Risk Reduction, applicable from 2015 to 2030, identifies climate change along with other factors that exacerbate disaster risks.43 This Framework also notes the need to promote preparedness for disaster-induced ­displacement.44 Likewise, through the 2015 Suva Declaration on Climate Change, the Summit of the Leaders of the Pacific Islands Development Forum stated that ‘climate change is already resulting in forced ­displacement of island populations and the loss of land and territorial integrity’.45   Ibid., para. 29 and target 10.7.   Decision 1/CP.16, supra note 18, para. 14(f). 42   Decision 3/CP.18, ‘Approaches to address loss and damage associated with climate change impacts in developing countries that are particularly vulnerable to the adverse effects of climate change to enhance adaptive capacity’ (8 December 2012), para. 7(a)(vi). 43   Sendai Framework for Disaster Risk Reduction 2015–2030, adopted at the Third UN World Conference, held in Sendai, Japan, on 18 March 2015, para. 4. 44   Ibid., para. 33(h). 45   Suva Declaration on Climate Change, adopted at the Third Annual Summit of the Pacific Islands Development Forum held in Suva, Fiji, from 2 to 4 September 2015, para. 7. 40 41

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12  Research handbook on climate change, migration and the law By contrast, climate or environmental factors of migration are clearly not the focus of the international refugee regime. As noted above, it stems from the provision of the 1951 Convention relating to the Status of Refugees that this instrument does not protect people unable to return to their country of origin on grounds other than a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion.46 The UN High Commissioner on Refugee’s criteria for determining refugee status justly interprets this definition as excluding ‘such persons as victims of famine or natural ­disaster, unless they also have well-founded fear of persecution for one of the reasons stated’.47 Domestic tribunals deciding on asylum claims have ­consistently rejected arguments founded on the environmental or ­economic impacts of climate change.48 Nevertheless, two Scandinavian countries provide for subsidiary ­protection to those unable to return to their country of origin because of an environmental disaster.49 Other States regularly provide ad hoc ­temporary protection in similar circumstances.50 The Guiding Principles on Internal Displacement applies, among others, to people ‘forced or obliged to flee or leave their homes or places of habitual residence . . . as a result or in order to avoid the effects of . . . natural or human-made ­disasters’.51 More s­pecifically, the African Union Convention for the Protection and Assistance of Internally Displaced Persons in Africa adopted in Kampala in 2009 requires State Parties to ‘take measures to protect and assist persons who have been internally displaced due to natural or human made disasters, including climate change’.52 The actual implementation of p ­ rovisions for the protection of internally displaced persons remains however very incomplete.53

  Convention relating to the Status of Refugees, art. 1(A)(2).  UNHCR, Handbook on Procedures and Criteria for Determining Refugee Status under the 1951 Convention and the 1967 Protocol relating to the Status of Refugees (2011), HCR/1P/4/ENG/REV. 3, para. 39. 48   See for instance the decision of the Supreme Court of New Zealand: Ioane Teitiota vs. Ministry of Business, Innovation and Employment, SC 7/2015, [2015] NZSC 107, 20 July 2015. 49  Sweden’s Aliens Act, Ch. 4, s. 2, para. 3 (SFS 2005:716); Finland’s Aliens Act (Act No. 301/2004, 30 April 2004), s. 88a(1). 50   See for instance the US Temporary Protected Status, 8 U.S.C. § 1254a(b). 51   Guiding Principles on Internal Displacement, para. 2. 52   African Union Convention for the Protection and Assistance of Internally Displaced Persons in Africa adopted in Kampala in 2009, article 5.4. 53   See Phil Orchard, ‘Implementing a global internally displaced persons ­protection regime’ in Alexander Betts and Phil Orchard (eds.), Implementation 46 47

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Introduction  ­13

III.  THE CHANGES NEEDED The exploration of climate change, migration and the law in this ­introduction – and in this Handbook – cannot limit itself to a description of existing law. Much in the current debates is not about the law as it exists (lex lata), but about what the law ought to be (lex ferenda). This section provides an overview of different argumentative discourses involving the climate-migration nexus (A) which leads to a more specific discussion of possible reforms in international migration governance (B). A.  Coexisting Agendas The climate-migration nexus has been invoked by different argumentative discourses taking place in various forums. Without providing a full picture of the argumentative battlefield or of the alternative framings of the theme,54 three main agendas can be identified. They promote, respectively, the protection of migrants, the protection of the environment, and our protection from perceived security threats. The first agenda regards the protection of migrants or other populations of concern. Migration and refugee law scholars and advocates involved in debates relating to the climate-migration nexus are often concerned that existing tools for the protection of migrants (refugees, ‘economic’ migrants, internal migrants, etc.) are insufficient and that mechanisms for the protection of human rights often fail to provide an effective protection to populations, especially in the developing world. Climate change is, in this perspective, a crisis exacerbating the shortcomings of protection institutions – possibly an eye-opening crisis. Arguments for the protection of ‘climate refugees,’ however, are largely the adaptation of previous arguments for the protection of ‘­economic refugees,’ and they could be made in more general terms, more ­consistently so, through concepts such as ‘crisis migration’ or ‘survival migration.’55 In this perspective, the climate-migration nexus is largely

and World Politics: How International Norms Change Practice (Oxford University Press, 2014) 105. 54   See Hedda Ransan-Cooper et al., ‘Being(s) framed: The means and ends of framing environmental migrants’ (2015) 35 Global Environmental Change 106; Benoît Mayer, ‘“Environmental Migration” as Advocacy: Is It Going to Work?’ (2014) 29 Refuge: Canada’s Journal on Refugees 27. 55   See Susan Martin, Sanjula Weerasinghe and Abbie Taylor, Humanitarian Crises and Migration: Causes, Consequences and Responses (Routledge 2014); Betts, supra note 10.

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14  Research handbook on climate change, migration and the law an opportunity to promote reforms in migration governance to a higher political visibility. A second agenda promotes environmental protection, in p ­ articular climate change mitigation. In the discourses of scholars or non-­ governmental organizations (NGOs) concerned with environmental protection or climate change mitigation, the nations of low-lying small island States are depicted as the canary in the coalmine – the early sign of an ­impending crisis. Alarmist predictions are communicated by engaged scholars or NGOs about large numbers of ‘climate refugees’ as a d ­angerous harm for the world’s international security.56 These ­discourses, connecting to powerful emotions such as fear, have had a great political impact, with ‘climate refugees’ being repeatedly m ­ entioned as a reason for cutting greenhouse gas emissions.57 They provide however a simplistic account of the relation between climate change and human mobility, and often play on the dangerous fears associated with international migration. A third agenda focuses precisely on these fears and depicts the climatemigration nexus as a threat to ‘our’ security. Building on the anguished reception of international migration in Western societies, discourses ­developed by military institutions or security pundits incline to the development of control technologies supposed to protect ‘us’ against ‘climate refugees’. The ‘solutions’ include walls, military investments, and transregional partnerships to ‘manage’ international migrants.58 Such discourses are likely to impede the protection of migrants by ­constructing identities and interests in stark opposition. Yet, they are likely to be p ­ articularly influential in political processes, as reflected by the ­omnipresence of migration in the first debates held by the UN Security Council on climate change and its implications for international peace and security.59

56   See e.g. Christian Aid, Human Tide: The Real Migration Crisis (2007), at https://www.christianaid.org.uk/Images/human-tide.pdf. 57   See for instance Remarks by US President Obama at United Nations Secretary General Ban Ki-Moon’s Climate Change Summit (New York, 2009), stating that ‘On shrinking islands, families are already being forced to flee their homes as climate refugees.’ 58   See in particular Gregory White, Climate Change and Migration: Security and Borders in a Warming World (Oxford University Press, 2011). 59   See UN Department of Public Information, SC/9000, Security Council Holds First-ever Debate on Impact of Climate Change on Peace, Security, Hearing over 50 Speakers (2007); UN, Department of Public Information, SC/10332, Security Council, in Statement, Says ‘Contextual Information’ on Possible Security Implications of Climate Change Important When Climate Impacts Drive Conflict’ (2011).

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Introduction  ­15 Not all these agendas propose a legal reform. The third agenda, ­ epicting ‘climate migration’ as a threat to security, is more likely to d ­influence domestic policies and investments regarding border control and the military than any legal reform, although some action by the Security Council cannot be completely excluded.60 Likewise, the second agenda, invoking the consequences of climate change on human mobility as a ground for more ambitious mitigation measures, does not propose any legal reform which would deal specifically with the climate-migration nexus. Most (relatively) specific legal reform proposals relate to the first agenda – the protection of migrants and other populations of concern. One needs however to keep in mind that these legal reform proposals take place in a broader political context characterized by coexisting political discourses on the climate-migration nexus. B.  Towards New Protection Instruments? Proposals for new instruments for the protection of ‘climate refugees’ have played an important role in initiating legal debates on the relation between climate change and migration. Some scholars supported civil society ­advocacy in favour of a new international instrument for the protection of people displaced as a result of climate change.61 This agenda faces ­conceptual challenges because, as noted above, it is rarely, if ever, ­possible to attribute an individual migrant to climate change. Difficulties in ­attributing a physical event to climate change add to the fact that i­ndividuals are never displaced as a mechanical consequence of a ­physical event – a variety of ­economic, political, social or demographic factors determine the exposure, vulnerability and resilience of individuals and societies facing physical hazards. Moreover, climate change affects very different forms of human mobility: forced or ­voluntary, internal or cross-border, temporary or p ­ ermanent, individual or collective migrations do not pose the same protection challenges and they could require different measures. In turn, from a protection perspective, the cause of these unfulfilled protection needs is of no direct relevance: people fleeing a famine, for instance, need protection notwithstanding the possible relation between this famine and climate change.   See Shirley Scott and Charlotte Ku (eds.), Climate Change and the UN Security Council (forthcoming). 61   See e.g. Frank Biermann and Ingrid Boas, ‘Preparing for a warming world: towards a global governance system to protect climate refugees’ (2010) 10 Global Environmental Politics 60; Bonnie Docherty and Tyler Giannini, ‘Confronting a rising tide: a proposal for a convention on climate change refugees’ (2009) 33 Harvard Environmental Law Review 349. 60

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16  Research handbook on climate change, migration and the law Other questions regard the legitimacy of ascribing specific protection obligations to the States most affected by the impacts of climate change. Most migrants are likely to remain in the country of origin or, if they cross an international border, in the same region. The main challenge to the protection of migrants in the developing world is arguably a lack of resources rather than a lack of awareness. If this is so, putting pressure on d ­ eveloping States for them to offer a better protection to a category of migrants risks diverting protection resources from other populations of concern. While migrants are generally more visible to outsiders, the most vulnerable populations are often less able to migrate through lack of ­financial or other resources: international advocacy for the protection of the displaced could come at the expense of the protection of those displaced ‘sur place,’ affected by changing circumstances but unable to move. It is profoundly disturbing to notice that a focus on the displaced, diverting protection resources from other vulnerable populations, could foster the perceived interests of many developed States – the strategy of c­ ontaining migrants in the developing world62 – instead of genuinely seeking to promote the human rights and welfare of the populations concerned. An extension of international protection would also face formidable political obstacles. The implementation of the 1951 Convention r­ elating to the Status of Refugees remains incomplete in many countries, for instance in those who are pursuing a non-entrée strategy incompatible with the object and purpose of the Convention. Beyond, political trends in most developed States seem clearly unfavourable. Scapegoating ­foreigners and calling for always more border surveillance, despite their excessive costs and their limited effectiveness in containing desperate migrants, has long been an easy populist tactic for unscrupulous politicians, but the current presidential campaign in the United States is bringing xenophobic demagogy to new extremes. In these circumstances, a review of the 1951 Convention relating to the status of refugees would more likely lead to a much lower level of international protection rather than to an extension of international protection. Although these political obstacles certainly exclude any international binding instrument for the time being, advocacy could push for domestic laws or policies. In this sense, the governments of Switzerland and Norway launched in 2012 the ‘Nansen Initiative’ on disaster-induced cross-border displacement as a series of regional consultations with governmental and

  On the strategy of containing migrants in the developing world, see B.S. Chimni, ‘The birth of a “discipline”: from refugee to forced migration studies’ (2009) 22 Journal of Refugee Studies 11. 62

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Introduction  ­17 non-governmental stakeholders. The Initiative led to the presentation of a ‘protection agenda,’ endorsed by 109 government delegations, in October 2015. On the one hand, this outcome document identifies and discusses States’ best practices in ‘protecting cross-border displaced persons’ and in ‘managing disaster displacement risk in the country of origin’. On the other hand, it identifies some ‘priority areas for future action’, in particular ‘enhancing the use of humanitarian protection measures’ and ­‘strengthening the management of disaster displacement risk in the country of origin’.63 At the end of 2015, a Platform on Disaster Displacement was established to succeed to the Nansen Initiative and promote its protection agenda. Of importance to some populations, this protection agenda relates to displacements triggered by any disaster, whether or not related to climate change, thus using the political momentum for reform generated by climate change to address a more general shortcoming in international human rights protection. Attempts to bend the trajectory of States’ actions are often based on compromises. Ambitious proposals about an extension of international protection through a new treaty can initiate an important debate, but they face formidable political obstacles. The Nansen Initiative, on the other hand, is narrow and modest in its proposals. States can simply ignore it at will. The experience of the Guiding Principles on Internal Displacement suggests however that such an instrument, being promoted through persistent advocacy, could progressively induce national c­ommitments ­ and, perhaps, induce some real changes in States’ practice. As a long journey always starts with a first step, the Protection Agenda of the Nansen Initiative could initiate a progressive improvement of the protection offered to migrants in the context of climate change.

IV. OUTLINES The contributions to this Handbook are organized in three parts. A first cluster of chapters offer a multidisciplinary discussion of the climatemigration nexus (A). A second part contains chapters which analyse the laws and institutions relevant to this climate-migration nexus (B). The third and last segment turns to prospective developments (C).

  The Nansen Initiative, Agenda for the Protection of Cross-Border Displaced Persons in the Context of Disasters and Climate Change (October 2015), volume I, at 10. 63

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18  Research handbook on climate change, migration and the law A.  Perspectives on the Climate-Migration Nexus The three chapters of this section provide complementary perspectives on the climate-migration nexus. Robert McLeman opens with a synthetic overview, replete with illustrations, of the empirical literature. This chapter shows how relatively common climate-related phenomena such as floods, droughts, and extreme weather events influence migration and mobility patterns in vulnerable populations. It draws on evidence that anthropogenic climate change will exacerbate existing environmental risks in many parts of the world and thus increase the frequency and scale of environmental migration. Three recent examples of environmental migration – drought-related migration in the Sahel, flood-related migration in Bangladesh, and hurricane-related migration in Central America – are used to illustrate the complexity of interactions between climate and migration and the diversity of possible outcomes. Climate change does not affect migration patterns in simple push-pull fashion; rather, migration outcomes are mediated by ­intervening economic, social, and political forces that affect the ability of exposed populations to adapt to climate-related threats to homes and livelihoods. Calum T.M. Nicholson offers a much more sceptical, even critical perspective on the linkage between climate change and migration. His chapter intends to reveal a technocratic turn in academic research. It situates the literature on climate migration within a more general trend – the proliferation of new explanatory concepts which are (wrongly) assumed to have an inherent utility. ‘Climate-induced migration’ appears as an example of this trend, as a term which gained significant currency in the past decade by linking two grand themes of contemporary concern, although, on close examination, it remains conceptually incoherent. This chapter outlines the surface pattern and underlying structure of that incoherence. It also argues that, far from suffering problems peculiar to this field, the pattern and structure of the incoherence is typical of a larger technocratic trend. It finally suggests an alternative approach to research, transcending the problem of this incoherence by holding that the resolution of our predicament lies not in thinking different things (i.e. in new thematic categories), but in thinking differently. Finally, Carol Farbotko’s chapter offers a more pragmatic, if hardly less critical perspective, by reviewing the social, cultural and political processes through which ideas about ‘climate migration’ are produced and c­ ontested. This chapter examines ideas about climate migration, as well as the ­mobilities that such ideas purport to describe and govern, as performative and praxiographic. It examines a range of sometimes-contradictory socioecological relations that are creating the conditions by which the realities

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Introduction  ­19 of particular populations – at the same time vulnerable and bureaucratic, mobile and governing – are experienced and understood. It concludes by observing that when the everyday lives and voiced concerns of migrants are apprehended, a more nuanced representation of the complex context of governance is possible. On the spectrum away from ‘misrepresentation’ and towards ‘representation,’ however, it is not just complexity but also agency which must be taken into account. B.  Existing Laws and Institutions The second part of the book gathers analyses of the many fields of laws addressing the climate-migration nexus and multiple institutions approaching these questions from alternative angles. Christel Cournil’s chapter explains why people displaced in the context of climate change are unlikely to qualify as refugees under existing laws, or to be protected by existing institutions. Her chapter examines in particular the 1951 Geneva Convention relating to the Status of Refugees in the light of climate change, showing that this treaty does not cover environmental factors of migration, although it may provide ground for arguments by analogy for a protection of other forced migrants. The Geneva Convention was adopted in a different context, with little awareness of environmental factors of migration. The protection of refugees is by and large an individual protection, whereas environmental changes often affect societies in a more diffuse way. Overall, the international regime for the protection of refugees is based on the notion of ‘persecution,’ which, for lack of intent to harm, does not straightforwardly apply to environmental factors of migration. Lastly, the international protection of refugees only concerns people who cross international borders, whereas environmental factors are more likely to force people to migrate within the borders of their country of origin. By contrast, Elizabeth Ferris’s chapter discusses the relevance of the Guiding Principles on Internal Displacement to the climate-migration nexus. These principles, presented to the UN Human Rights Commission in 1998 and endorsed by the Global Summit in 2005, provide a widelyaccepted normative framework for protecting the rights of internally displaced persons (IDPs). Given the definition of IDPs in the Guiding Principles, those displaced by the effects of climate change could be ­considered as IDPs and the Guiding Principles should be applied to them. This chapter documents how the Guiding Principles have been used to uphold the rights of those displaced by sudden-onset disasters and then turns to the more difficult issue of their relevance to those displaced by other forms of environmental changes which can be associated with

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20  Research handbook on climate change, migration and the law climate change, in particular in the case of communities affected by a loss of livelihood. While Ferris argues that the Guiding Principles are and should be the primary normative framework in upholding the rights of those displaced internally by the effects of climate change, she notes that further elaboration is needed with regard to durable solutions and accountability. Siobhán McInerney-Lankford then investigates the potential relevance of international human rights law to climate change and migration. She suggests that existing international law provides multiple entry-points to respond to the plight of individuals displaced either internally or through international borders as a result of climate change. The principle of ­equality and non-discrimination is of a particular relevance because, in many cases, the populations most affected by climate change – those who have no choice but to migrate – are already populations subjected to ­multiple discriminations patterns. In this perspective, McInerney-Lankford explores the significance of the obligation of States to respect, protect and fulfil the human rights of climate migrants, showing that, despite important challenges (e.g. the ill-established extraterritorial a­ pplication of human rights), international human rights law does provide at least general principles to approach climate migration and, perhaps, guide further legal developments. Ademola Oluborode Jegede provides complementary insights on the particular significance of the climate-migration nexus for the rights of Indigenous peoples. Throughout the world but perhaps more so in Africa, Indigenous populations are affected by the adverse effects of climate change as well as, often, of response measures. Yet, international human rights instruments developed under the aegis of the United Nations are inadequate to tackle the challenge. The instruments in question make no specific link between climate change and migration and they often fail to define concrete obligation of international agencies and to establish appropriate remedy mechanisms. Jegede’s chapter highlights in particular, in the context of Africa, the key relevance of provisions of the Kampala Convention of the African Union which can serve as important ­normative lessons to any global instrument addressing the link between climate change and the rights of Indigenous peoples. This is followed by Maxine Burkett’s chapter, which presents an overview of relevant developments in international climate change law and beyond. As Burkett notes, the Intergovernmental Panel on Climate Change once called human migration the ‘Greatest single impact of climate change.’ Yet, the last quarter century of climate change law- and policy-making has not fostered robust governance of the emerging phenomenon. In fact, it was not until two decades after the IPCC’s initial statement that the Parties to

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Introduction  ­21 the United Nations Framework Convention on Climate Change addressed this form of migration formally through the 2010 Cancún Agreements. While climate change will mostly spur internal displacement, cross-border migration presents some of the most confounding challenges for migration and displacement management. Sébastien Jodoin, Kathryn Hansen and Caylee Hong examine more specifically the issues related to internal displacement and forced eviction induced by response measures to climate change (e.g. mitigation or adaptation projects). Jodoin, Hansen and Hong review the risks of displacement associated with three diverse types of responses to climate change: first, displacement due to the Site C Clean Energy Project, a dam and hydroelectric generating station in northern British Columbia (BC), Canada; second, forced evictions in the Cherangani Hills, Kenya resulting from the implementation of REDD+ initiatives; and third, planned relocation programmes in the Republic of Maldives (Maldives) developed to adapt to extreme weather events like tsunamis. They discuss the legal parameters of forced evictions in international human rights law. They submit that a rights-based approach may assist in creating responses to climate change that are rooted in international human rights norms. Benoît Mayer’s chapter approaches the climate-migration nexus from the perspective of the international law on State responsibility. It submits that States have a customary international law obligation to pay reparation for the injury caused to other States by their internationally wrongful acts. Such responsibility could arise not only when a State fails to comply with its obligations under climate agreements, but also when it infringes norms of general international law such as the no-harm principle, and they could give rise to secondary obligations to make reparation, typically through compensation. Mayer highlights however that this does not lend support to the imposition of specific obligations on the developing States affected by climate change to adopt particular policies on ‘climate m ­ igration’ beyond the general standards defined by international human rights law. Measures allowing for the resettlement of foreign citizens as a form of reparation, on the other hand, appear unlikely to provide an effective protection to the human rights of the individuals concerned. Erika Pires Ramos and Fernanda de Salles Cavedon-Capdeville’s chapter turns to a more pragmatic review of legal and institutional developments relevant to the climate-migration nexus in the particular context of Latin America. This continent is particularly exposed to climate change due to its geographical and environmental configuration, socioeconomic vulnerabilities and population groups which strongly depend on the ­ ­environment, as indigenous peoples and other traditional c­ommunities. The impacts of disasters and climate change are an important cause of

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22  Research handbook on climate change, migration and the law internal and cross-border displacement. These impacts tend to increase, intensifying human mobility in the region. In this context, this chapter aims to identify, on the one hand, the lack of specific norms and ­guidelines on environmental migration at the regional and sub-regional levels, and on the other hand, the inclusion of this topic in the role of some regional ­organizations. Thus, coordination between existing normative and ­institutional frameworks on migration, disasters and climate change and the adjustment of policies and governance structures on regional and sub-regional level emerges as a possible strategy to face the challenges ­presented by environmental migration in Latin America. In this sense, good practices and national experiences could give a relevant ­contribution to the building process of protection standards, policies and regional ­cooperation in this topic. The next three chapters present more specific institutional perspectives. Thus, Gervais Appave, Alice Sironi, Mariam Traore Chazalnoël, Dina Ionesco and Daria Mokhnacheva’s chapter develops a reflection on the role of the International Organisation for Migration (IOM). Even before it became a United Nations specialized agency in 2016, the IOM had been working on migration and displacement in connection with e­ nvironmental and climate changes at the legal, policy and operational levels since the early 1990s. The extensive and comprehensive nature of IOM’s work on climate and environmental migration and displacement, spanning 25 years, has given IOM a global leading voice on policy and legal questions related to climate migration and displacement. IOM’s three institutional ­objectives are: (1) to prevent forms of forced migration linked to ­environmental and climate change; (2) to assist, protect and reduce vulnerabilities of migrants; and (3) to facilitate migration as an adaptation strategy. In carrying out activities aimed at achieving these objectives, the IOM supports both migrants and its Member States facing increasing challenges in developing solutions to climate migration and displacement, including in the search for appropriate legal solutions. Sophia Kagan, Meredith Byrne and Michelle Leighton then present the perspective of the International Labour Organisation (ILO). This chapter puts a particular emphasis on the protection of the rights of migrant workers, which has long been a key concern of this organization. Kagan, Byrne and Leighton show that many workers are already seeking decent work and income security abroad due to poor economic opportunities at home, conflict or disaster. While the consequences of environmental degradation on labour markets are well-researched – particularly as they relate to core economic sectors such as agriculture and tourism – much less is known on how climate variability or other environmental change in the future will affect workers and drive some to migrate in search of new

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Introduction  ­23 livelihoods. Given the vulnerability of these new migrants, the ILO’s role in making regular and well-managed labour migration a positive ­experience for all and fostering greater awareness of the positive contributions that migrant workers make to host countries will, they submit, become ­increasingly important. Finally, Alex Randall presents the questioning of an advocate engaged in advocacy for refugee and migrants working on climate change. More specifically, this chapter engages a discussion of the treatment of climate migration in the media in the United Kingdom. Randall analysed h ­ undreds of newspaper stories about climate-linked migration to examine which people and institutions have become key sources for journalists. The results reveal that a relatively small group of people dominate media coverage as sources. Further, this lack of diversity in sources is created by the very narrow focus the UK media takes when covering climate-linked m ­ igration. Press coverage over the past decade has focused on a small number of highprofile cases of climate-linked migration. Through this survey, Randall makes the case that to improve the wider public’s understanding of the issue academics and civil society groups must engage with ­journalists and write to encourage a more nuanced understanding of the issue, and a wider array of sources in their writing. C.  Ways Forward? The third and last part of the Handbook gathers chapters which reflect on steps which could or should be taken to address the climate-migration nexus. The first chapters develop a rather theoretical reflection on the ethical dimensions, political processes, and relevant terminology. Following ones turn to more concrete steps which could be made through either legal or institutional innovations carried out at different scales. First of all, Katrina M. Wyman provides a broad, synthetic overview of the thriving literature interested in defining our ethical duties towards climate migrants. This chapter discusses more specifically the responses that have been given to three questions: (1) What is the ethical basis on which countries are obligated to assist climate migrants from other states? (2) what is the scope of the rights that climate migrants enjoy to resettle elsewhere, in particular is the right an individual or a collective right to resettle? and (3) how should obligations to climate migrants be allocated among countries? Wyman concludes by emphasizing that the existing literature is focused on the obligations owed to, and the rights enjoyed by, migrants from the small island states that are existentially threatened by climate change. The focus of the literature should be broadened to ­consider the responsibilities that states owe to migrants in other situations.

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24  Research handbook on climate change, migration and the law Chloé Anne Vlassopoulos’s chapter turns to a socio-political analysis of the agenda-setting process at work in relation to the climate-migration nexus. Vlassopoulos retraces the emergence of climate migration as a global issue. She examines in particular the role played by different actors, ranging from scholars from environmental and migration studies, to operational institutions such as the IOM and the UN High Commissioner for Refugees. Vlassopoulos thus analyses how migration was constructed, in the context of environmental disturbances and then climate change, as both a political issue and the cause of political issues, or even as a possible solution to issues raised by climate change. This chapter also discusses the re-interpretation of climate migration in the context of the workstream on loss and damage and highlights the difficulty of promoting the role for climate change institutions without disempowering migration institutions. This is followed by a thought-provoking chapter where François Gemenne defends a terminology rejected by most in the field: ‘climate refugees.’ Gemenne duly recognizes that there are plenty of reasons, and not just legal reasons, to avoid using the term ‘climate refugee’. Without denying that these reasons exist, his chapter argues that there are also at least two good reasons to use the term ‘refugee’ – not in the legal sense, of course, but in the sense to which people relate when using that term, as a reflection of the plight of the individuals in question. This is not just a matter of semantics, Gemenne contends: we should talk of ‘climate refugees’ because climate change is a form of political persecution, and because the term ‘migrant’ has sadly become a life-threatening label, in a world marred by populism and xenophobia. Following chapters turn to more concrete steps which could be made to address the climate-migration nexus. Frank Biermann and Ingrid Boas reflect on the possibility of a global governance system to protect climate migrants. A new governance system is required, they argue, because the current institutions, organizations and funding mechanisms, including new soft law initiatives, are not sufficiently equipped to deal with the looming crisis of climate-induced migration. The two scholars advance a blueprint for global governance architecture on the protection and ­voluntary r­ esettlement of climate migrants. Key elements of their proposal are a new legal instrument that builds on the responsibility of the international community and is ­specifically tailored for the needs of climate migrants  – a Protocol on Recognition, Protection and Resettlement of Climate Migrants to the United Nations Framework Convention on Climate Change – as well as a separate funding mechanism, a Climate Migrant Protection and Resettlement Fund. Alternatively, Ilona Millar and Kylie Wilson explore the possibility of a more limited – and perhaps more likely – institutional change under the United Nations Framework Convention on Climate Change. They

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Introduction  ­25 consider the possibility that the Climate Change Displacement Facility, announced at the Paris Summit in 2015, become an operational institution under the Warsaw International Mechanism on Loss and Damage Associated with Climate Change Impacts. Millar and Wilson argue that such proposals provide a politically feasible, short- to medium-term ­international response to an issue that is unable to garner traction in other legal fora. This chapter also explores the potential mandate, functions and sources of funding for such a facility, and other relevant arrangements. Last but not least, Susan F. Martin’s chapter reviews proposals towards an extension of complementary protection to individuals displaced across international borders by the effects of climate change and other ­environmental drivers. In particular, this chapter discusses the outcomes of the Nansen Initiative, an intergovernmental initiative that sought to promote the development of a protection agenda through a series of consultation conducted from 2012 to 2016 under the leadership of Walter Kälin. In terms of process, Martin emphasizes certain parallels between this initiative and the developments which led to the adoption of the Guiding Principles on internal displacement. Her chapter then recounts the origins and outcomes of the Nansen Initiative’s Agenda for Protection and its successor, the Platform on Disaster Displacement and discusses the Nansen Initiative’s recommendations on humanitarian admissions and deferral of deportation, a centrepiece of its protection agenda. Its ­conclusions outline the strengths and weaknesses in this approach to protection as well as next steps in this process. *** A synthetic Afterword by James C. Hathaway concludes the Handbook, but much, much more remains to be researched, thought, and written on the climate-migration nexus and what laws, domestically, ­regionally or internationally, do, could do and should do about it. As editors, we saw this volume as an opportunity to bring together many voices rather than forcing our own perspectives. As expected, the outcome is somewhat cacophonic. Methodological, empirical, ontological and ethical i­nconsistencies can be found between the contributions, many authors taking for granted assumptions that others persuasively rebut. It was ­ ­ precisely to bring ­evidence of these inconsistencies that we believe a Research Handbook could be useful – as a cross-section of evolving debates on a fast-­developing field of academic research. By taking stock of existing debates on what the law does, could do, or should do in relation to the climate-migration nexus, we hope that the twenty following chapters will serve as the foundation for further research and, most importantly, help spur genuine progress in law and governance for the benefit of all.

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PART I PERSPECTIVES ON THE CLIMATE-MIGRATION NEXUS

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2.  Climate-related migration and its linkages to vulnerability, adaptation, and socioeconomic inequality: evidence from recent examples Robert McLeman

INTRODUCTION Variations and changes in the climate can and sometimes do cause changes in human migration patterns and behaviour. This is not a hypothesis, and it is not mere speculation about what might happen in the future as a result of global warming. Rather, it is something that has happened often throughout human history, that continues to happen in many parts of the world today, and is likely to happen more frequently in coming years as the impacts of anthropogenic climate change become more manifest on the ground. The book you are presently reading is a very timely collection of insights from authors who have been considering the legal and policy implications of climate-related migration for many years. The editors have kindly invited me to discuss and reflect upon specific examples from the recent past, so as to set the stage for the analyses that follow. My c­ hallenge in writing this chapter has been not in the identification of potential ­examples to discuss, for there are many,1 but in selecting ones that are usefully representative of the complex and context-specific interactions of natural and human systems that give rise to climate-related m ­ igration. The three that I have selected – drought-related migration in West Africa, flood-related migration in Bangladesh, and post-hurricane migration in Central America – are all contemporary examples where relatively common climatic phenomena have generated observable changes in m ­ igration patterns.

  Readers interested in a much larger array of examples may wish to consult R.A. McLeman, Climate and Human Migration: Past Experiences, Future Challenges (Cambridge University Press, 2014) and R. Obokata, L. Veronis and R. McLeman, ‘Empirical Research on International Environmental Migration: A Systematic Review’ (2014) 36 Population and Environment 111, or browse the Climig database maintained by the University of Neuchâtel at http://www.environmentalmigration. iom.int/projects/climig.  1

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30  Research handbook on climate change, migration and the law As will be shown, local cultural, economic, political and cultural processes have as great an influence on the resulting migration outcomes as do the climatic phenomena in question, meaning that one cannot simply copy and paste the findings from one example to another and expect them to align perfectly. So, for example, droughts in West Africa do not lead to the exact same migration outcomes as do droughts in rural Mexico or in rural India. Drought-related migration is a product of human-environment systems interactions, and since the characteristics of human systems vary from one location to another – and indeed, will change with the passage of time in any given location – so, too, will migration outcomes vary from one place and time to another, even should the meteorological ­characteristics of the droughts in question be similar (and usually they are not). This inherent place- and time-specificity does not mean we should throw up our hands and despair that we can never fully understand climate-related migration; on the contrary, researchers have learned a great deal about the ways in which climate influences migration behaviour, and are ­continuing to identify with greater precision the specific interactions that produce particular types of migration outcomes. Indeed, I would suggest that decision-makers who seek to craft legal policies to address climate-related migration have reliable evidence at their disposal equal in quality to the information available to decision-makers who craft economic and monetary policies. More research and data on climate-related migration is certainly desirable and needed, but just as an observant physician does not need to wait for a heart attack to happen to recognize the signs of an unhealthy heart in a patient, the observant and engaged decision-maker (or policy analyst, or legal scholar) already possesses the tools and ­ information necessary to ­recognize situations where climate has the potential to affect ­migration, and can thus plan accordingly. Further, there is more than sufficient ­ ­ empirical evidence available to support a lively civil society ­discussion about what priority should be given to addressing the root causes of climate-related migration and to providing assistance to those at risk of climate-related displacement in comparison with, for example, other ­international ­challenges with respect to migration, environmental degradation, and other public policy priorities.

I.  GENERAL CONSIDERATIONS A few basic principles need first to be introduced. The most elemental aspect of the relationship between human population behaviour and climate is that climate is one of several ecological factors that delineate the human habitat. In the absence of significant technological interventions,

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Climate-related migration  ­31 the human organism expires quickly in environments with extremely hot or extremely cold temperatures, and/or where precipitation is irregular or scarce. Conversely, locations with relatively mild climates and reliable precipitation provide highly suitable habitat for humans. To readers not trained in the natural sciences, it may seem unusual to discuss humans in such simple biological terms, but they are a fundamental starting point for recognizing the fact that in certain environments, the influence of climate on human behaviour, whether we are talking about migration behaviour or any other type of behaviour, is going to be fundamentally more pronounced than in others. Climate-related migration events are not randomly distributed across the planet, but tend to be most common in inhabited areas where extreme temperatures, precipitation, and/or storm events are common. One of the more likely and imminent consequences of anthropogenic climate change is that the frequency and/or severity of extreme weather events and droughts will increase in coming decades, making inherently challenging environments even more challenging.2 In other words, many locations that are already dry or storm-prone, or where precipitation is already highly variable, are likely to become more so. In the language of climate scientists, human exposure to difficult climatic events and conditions that create vulnerability – that is, the potential to experience loss or harm – is growing.3 That said, the relationship between climate and migration is not of a simple push-pull nature. A change in the frequency of extreme storms or the arrival of an unexpectedly harsh drought does not automatically trigger an increase in the number of people who undertake migration or cause changes in the destination choices of those who do. This is because the options people have in terms of potential responses to climate extremes vary considerably from one place or community to another; indeed, they often vary considerably among people within the same community. Climate researchers refer to this as adaptive capacity – the ability to cope with and adjust to changes in the environment on an ongoing basis. The adaptive capacity of a given individual, household, or group of people is determined by local factors, such as family configuration or the livelihood a given household pursues; by intermediate-scale factors, such as the social network a family belongs to; and by larger-scale factors over which the household or community has no influence, like market prices and national governance structures. In other words, adaptation options are a ­function

 IPCC, Climate Change 2014: Impacts, Adaptation and Vulnerability: Summary for Policy Makers (Cambridge University Press, 2014).  3   W.N. Adger, ‘Vulnerability’ (2006) 16 Global Environmental Change 268.  2

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32  Research handbook on climate change, migration and the law of complex and dynamic interactions of social, economic, political, ­technological, and cultural processes interacting across multiple scales.4 The greater the range of adaptation options available to a given group of people, the greater the range of climatic conditions and events they are able to cope with and adjust to. How does migration fit within the broader context of adaptive capacity? It depends on the nature of the climatic risk and on the adaptation options of the people exposed to it. When an extreme event or condition occurs, some people who experience it will adapt in ways that do not entail ­migration, for they have the means and resources to make adjustments that are less ­disruptive to the household and its day-to-day activities. Other people in the same situation may decide, given the range of adaptation options available to them, that migration, either temporarily or more permanently may be the best option. They may not necessarily want to migrate, but the decision to do so is made with some degree of agency. Scholars often refer to this simply as migration as adaptation.5 Still others may have no option but to migrate or relocate, and do so under conditions of distress. Such people are often referred to in the popular media as ‘environmental refugees’, a problematic term that other authors in this volume will dissect. Finally, there may be still others for whom relocation or migration might be the most preferred response option, but who lack the necessary means – people sometimes referred to as trapped populations.6 Keeping in mind these basic principles, the following examples have been selected to provide the reader with a decent overview of the variety of ways by which migration patterns and behaviour can respond to particular types of climatic variability or change, and how these responses are bound up in interactions between physical and socio-economic processes that affect the adaptive capacity of households and communities.

II. FIRST EXAMPLE: MIGRATION AND ADAPTATION IN DRYLAND WEST AFRICA South of the Sahara Desert and north of the Central African rainforests, a wide belt of semi-arid land stretches across the African continent, a region   B. Smit and J. Wandel, ‘Adaptation, Adaptive Capacity and Vulnerability’ (2006) 16 Global Environmental Change 282.  5   R. McLeman and B. Smit, ‘Migration as an Adaptation to Climate Change’ (2006) 76 Climatic Change 31; R. Black, ‘Climate Change: Migration as Adaptation’ (2011) 478 Nature 447.  6   R. Black et al., ‘Migration, Immobility and Displacement Outcomes Following Extreme Events’ (2013) 27 Environmental Science and Policy S32.  4

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400 mm

32.5ºC

300 mm

30ºC

200 mm

27.5ºC

100 mm

25ºC

0 mm

Jan Feb Mar Apr May Jun Jul Aug Sep Oct Nov Dec

Temperature

Rainfall

Climate-related migration  ­33

22.5ºC

Source:  World Bank Climate Change Knowledge Portal, http://sdwebx.worldbank.org/ climateportal/index.cfm. Based on period 1960–90.

Figure 2.1  Average monthly temperatures and precipitation, Burkina Faso commonly referred to as the Sahel. The climate is generally c­ haracterized by consistently high average temperatures and distinctive rainy and dry seasons (Figure 2.1 above). The amount of precipitation received on an annual basis varies considerably from one year to the next, triggering ­corresponding fluctuations in the extent and quality of vegetation, which is dominated by grasslands and savanna (i.e. grassland interspersed with shrubs, trees and thin forests). Since the 1970s, the Sahel has experienced a distinctive drying trend, with annual precipitation being consistently lower than in previous decades, and leading to multiple multi-year drought events (Figure 2.2 below). Scientists believe that twentieth century drought trends in the Sahel have been caused by multi-year variations in differential sea surface temperatures between the northern and southern hemispheres, which are in turn driven by the combined effects of the concentration of aerosol pollutants in the northern hemisphere (where most industrial production occurs), anthropogenic greenhouse gas concentrations, and the internal dynamics of ocean circulation patterns.7 It is expected that as global sea surface temperatures continue to rise in coming decades due   M. Biasutti and A. Giannini, ‘Robust Sahel Drying in Response to Late 20th Century Forcings’ (2006) 33 Geophysical Research Letters L11706. For a detailed discussion see I. Held, ‘Sahel Drought: Understanding the Past and Projecting into  7

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34  Research handbook on climate change, migration and the law

cm/month

Sahel precipitation anomalies 1900–2013 5 4 3 2 1 0 –1 –2 –3 –4 –5

University of Washington Joint Institute for the Study of the Atmosphere and Ocean

1900

10

20

30

40

1950

60

70

80

90

2000 2010

June through October averages over 20–10N, 20W–10E. 1900–2013 climatology NOAA NCDC Global Historical Climatology Network data

Source:  Joint Institute for the Study of the Atmosphere and Ocean, doi:10.6069/ H5MW2F2Q, http://research.jisao.washington.edu/data_sets/sahel/. Reproduced with permission.

Figure 2.2  Precipitation trends in the Sahel since 1900 to anthropogenic greenhouse gas emissions, climate change will exert an increasingly stronger force on precipitation patterns in the Sahel; however, there remains considerable uncertainty among researchers as to the nature and scale of potential future droughts in the region. In the West African Sahel, rural livelihoods have traditionally centred on nomadic or semi-nomadic pastoralism, on less mobile small-scale subsistence cultivation, and combinations of the two. The specific mix of ­activities varies by cultural group and by local environmental conditions. Even within cultural groups, specific livelihood choices and patterns of mobility can vary. For example, among Fulani pastoralists in Senegal, mobility choices depend on household size and labour availability, herd composition, the household’s involvement in other economic activities, and personal preferences and values.8 Small-scale farmers who practice mainly sedentary agriculture can also be highly mobile, using temporary, seasonal labor migration to urban areas or to wetter rural environments as a means of coping with the dry season, when food is scarce and there is the Future’ (2016) NOAA Geophysical Fluid Dynamics Laboratory, https://www. gfdl.noaa.gov/sahel-drought/.  8   H.K. Adriansen, ‘Continuity and Change in Pastoral Livelihoods of Senegalese Fulani’ (2006) 23 Agriculture and Human Values 215.

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Climate-related migration  ­35 r­ elatively little work to do on the farm.9 Pastoralists and small-scale farmers are equally adept and practised at adapting to the ­unavoidable seasonal dryness of the region, with mobility and migration being c­ ritical tools in the rural household’s adaptation ‘toolkit’. However, when p ­ recipitation patterns differ significantly from expected norms – that is, when conditions are exceptionally dry or unusually wet – deviations from ordinary patterns of migration and mobility can occur, as households do their best to cope until more favourable conditions return. For example, Fulani pastoralists used to pursue a mix of herding and small-scale farming, but severe multi-year droughts in the 1990s stimulated permanent changes in livelihood practices and mobility patterns, especially among younger people.10 During the droughts there were widespread crop failures, and pastoralists lost large numbers of livestock. Specialization and intensification in livestock production came to be seen as less tenuous than subsistence nomadism or crop farming, and pastoralists switched their herds from dairy cattle to beef cattle, goats, and sheep, which can be sold in urban markets for cash income. Some older herders cling to more traditional patterns of pastoralism, personally watching over herds which they move across traditional grazing areas throughout the year, but such practices are dwindling. Instead, growing numbers of young Fulani adults prefer to settle near urban centres with large markets, where they can be actively involved in the buying and selling of livestock. Rather than personally moving with their herds across wide areas, they hire labourers or have their children tend their herds and flocks, and keep their livestock concentrated on the edge of cities and towns. The result is an emergence of urban-based agropastoralism; it is estimated, for example, that half the households in city of Ouagadougou in Burkina Faso farm or keep cattle in the peri-urban area.11 Rural-to-urban migration rates are growing in West Africa, driven ­primarily by social and economic processes, but slow-progression land degradation is also a factor.12 Generally, migration tends to flow from areas where land is relatively scarce and where land degradation is relatively high to areas where land is more plentiful and degradation is relatively low.13

  D. Rain, Eaters of the Dry Season: Circular Labor Migration in the West African Sahel (Westview Press 1999). 10  Adriansen, supra note 8. 11   E. Thys et al., ‘Socio-Economic Determinants of Urban Household Livestock Keeping in Semi-Arid Western Africa’ (2005) 63 Journal of Arid Environments 475. 12   K. Neumann et al., ‘Environmental Drivers of Human Migration in Drylands: A Spatial Picture’ (2015) 56 Applied Geography 116. 13   Ibid; S. Henry, P. Boyle and E.F. Lambin, ‘Modelling Inter-Provincial Migration in Burkina Faso, West Africa: The Role of Sociodemographic and  9

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36  Research handbook on climate change, migration and the law However, there is considerable variability at local levels, and the relative strength of environmental factors on migration decisions as compared with socio-economic ones can vary. In regions where land degradation is high and precipitation is especially variable, environmental factors are the prime motivation for migration, while in less degraded areas, economic factors tend to be more influential.14 Rural-urban migration can last for t­ emporary or indefinite periods of time. Seasonal rural-urban labour migration is one way small farmers cope with the normal variability of p ­ recipitation. During the dry season, young men and, depending on the cultural group, young women, will migrate out of the countryside to nearby cities until the rains return and their labour is once again needed at home.15 Long-distance, international migration out of dryland West Africa occurs in growing numbers, but the evidence runs counter to the popular belief that it is exacerbated by drought. It is actually in years when ­precipitation is good and crop yields are high that households are most likely to send a member to an international migration destination.16 This is not surprising, for two reasons: (1) long-distance migration is costly in terms of direct expenses and lost labour, since the migrant will not return in time for the next farming season; and (2) there is a risk that the migrant may not obtain a well-paid job at the destination and be able to remit money home. Consequently, international migration is most likely to take place when household incomes are at their strongest, with the poorest households ­typically not attempting it at all. When drought strikes, ­international ­migration rates actually drop, since households need to ­conserve their ­financial resources and cannot afford to take expensive risks.17 Instead, there is more likely to be a surge in short-term, local ­migration, as more Environmental Factors’ (2003) 23 Applied Geography 115; A.K. Braimoh, ‘Seasonal Migration and Land-Use Change in Ghana’ (2004) 15 Land Degradation and Development 37; M. Abu, S.N.A. Codjoe and J. Sward, ‘Climate Change and Internal Migration Intentions in the Forest-Savannah Transition Zone of Ghana’ (2014) 35 Population and Environment 341. 14   Henry et al. (2003), supra note 13. 15  Rain supra note 9; K. Hampshire and S. Randall, ‘Seasonal Labour Migration Strategies in the Sahel: Coping with Poverty or Optimising Security?’ (1999) 5 International Journal of Population Geography 367; W. Quaye, ‘Food Security Situation in Northern Ghana, Coping Strategies and Related Constraints’ (2008) 3 African Journal of Agricultural Research 334. 16   S. Henry et al., ‘Descriptive Analysis of the Individual Migratory Pathways According to Environmental Typologies’ (2004) 25 Population and Environment 397. 17   Henry et al. (2003), supra note 13; B. Barbier et al., ‘Human Vulnerability to Climate Variability in the Sahel: Farmers’ Adaptation Strategies in Northern Burkina Faso’ (2009) 43 Environmental Management 790; K. van der Geest, A. Vrieling and T. Dietz, ‘Migration and Environment in Ghana: A Cross-District

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Climate-related migration  ­37 young people than usual seek cash-paying work. Similar patterns of short-term labour migration occur in the wake of severe flood events that ­periodically occur in West African river valleys, especially in rural areas where relief assistance may be slow to arrive, if it arrives at all.18 In short, migration and mobility patterns in dryland West Africa cannot be separated from livelihood strategies. There are ongoing flows of what can best be described as ‘background migration’ that reflect ongoing adaptation and adjustment to the general variability of the climate; this background migration is periodically disrupted by severe droughts or extreme weather events that generate additional, temporary flows of shortterm, short-distance migration as households adjust. Extended periods of drought can stimulate longer-term changes in migration behaviour as households further adjust their livelihood strategies, with persistent land degradation having an additional effect on longer-term migration patterns within countries. Environmental factors have historically had a negative influence on participation in long distance international migration from West Africa, although this could conceivably change if the precipitation trends shown in Figure 2.2 persist or deteriorate further in coming decades.

III. SECOND EXAMPLE: FLOODS AND MIGRATION IN BANGLADESH The Bangladeshi experience with natural disasters, including tropical cyclones and storm-surge-related flooding, has been very well documented over the years, with growing attention being given to potential future risks associated with sea level rise.19 Floods are a fact of life in Bangladesh. Each summer, up to 20 per cent of the total land area of the country may be briefly flooded as monsoon rains (Figure 2.3 below) drain from the Indian sub-continent through the Brahmaputra, Ganges and Meghna river basins.20 Although Dhaka is one of the world’s largest and fastest growing Analysis of Human Mobility and Vegetation Dynamics’ (2010) 22 Environment and Urbanization 107. 18   V. Lassailly-Jacob and M. Peyraut, ‘Social and Spatial Inequality Linked to Flood-Induced Displacements in Burkina Faso in 2009 and 2010’ in R. McLeman, J. Schade and T. Faist (eds.), Environmental Migration and Social Inequality (Springer 2015). 19   M.F. Karim and N. Mimura, ‘Impacts of Climate Change and Sea-Level Rise on Cyclonic Storm Surge Floods in Bangladesh’ (2008) 18 Global Environmental Change 490. 20   S.K. Paul and J.K. Routray, ‘Flood Proneness and Coping Strategies: The Experiences of Two Villages in Bangladesh’ (2010) 34 Disasters 489.

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38  Research handbook on climate change, migration and the law

500 mm

25ºC

250 mm

20ºC

Rainfall

30ºC

0 mm

Jan Feb Mar Apr May Jun Jul Aug Sep Oct Nov Dec

Temperature

750 mm

15ºC

Note: Based on period 1960-1990. Source: World Bank Climate Change Knowledge Portal, http://sdwebx.worldbank.org/ climateportal/index.cfm.

Figure 2.3  Average monthly temperatures and precipitation, Bangladesh cities, the majority of the Bangladeshi population (and the ­ majority of those affected by floods) lives in rural areas, where farming, fishing, and aquaculture ponds (particularly for shrimp) are the main livelihood ­activities. The annual floods benefit rural areas by recharging farms and shrimp ponds with new soil and nutrients, and so local agricultural systems have adapted to take advantage of them, such as by timing the planting of different varieties of rice in synchronicity with the seasons.21 In some years, however, monsoonal floods are much higher than usual, and cause damage to fields, farm buildings, and shrimp-pond infrastructure, and the longer the flood event lasts, the greater the damage and displacement caused. In the lower reaches of the Brahmaputra and Ganges rivers, a severe flood lasting ten days or longer occurs every ten to 13 years, on average.22 In ­addition to monsoonal floods, there are also years when tropical cyclones enter the Bay 21   S. Banerjee, ‘Labour Migration in Response to Rapid Onset Water Hazards in the Hindu Kush-Himalayas: Is Labour Migration an Adaptation to Impacts of Rapid Onset Water Hazards?’ (2010), http://www.esf.org/activities/esf-confer​ences/ details/2010/confdetail328/328-preliminary-programme.html; C.  Del Ninno and P. Dorosh, ‘Averting a Food Crisis: Private Imports and Public Targeted Distribution in Bangladesh after the 1998 Flood’ (2001) 25 Agricultural Economics 337. 22   P.J. Webster and J. Jian, ‘Environmental Prediction, Risk Assessment and Extreme Events: Adaptation Strategies for the Developing World’ (2011) 369

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Climate-related migration  ­39 of Bengal and their storm surges flood coastal Bangladesh and low-lying inland areas, causing significant damage to homes and farms.23 Because flooding is endemic and government institutions are weak, rural households and communities have over the course of generations developed a range of adaptation strategies, with migration and mobility being key components, especially for the rural poor. During the summer flood season, as soon as the rice seedlings have been transplanted to paddies, large numbers of young men from poorer households migrate to nearby urban centres or to other agricultural areas in search of temporary wage income, often not returning until the rice is ready to be harvested in November.24 The women, children and older people left behind often struggle during this period when food and financial resources are scarce (known locally as ‘mangha’), and are especially at risk if the men are unable to remit money home.25 When particularly damaging floods strike, the poor are very hard hit, given that they are most likely to occupy the more highly exposed lands, and so rates of temporary out-migration from affected areas increase.26 The specific destination choices of flood-season migrants depends upon the availability of employment, the travel costs to reach potential destinations, and the geographic orientation of social networks that can help offset the costs of travel and accommodation.27 Philosophical Transactions of the Royal Society A – Mathematical and Engineering Sciences 4768. 23   B. Mallick and J. Vogt, ‘Cyclone, Coastal Society and Migration: Empirical Evidence from Bangladesh’ (2012) 34 International Development Planning Review 217. 24   T.G. Rabby et al., ‘What Offers Solution to the Poverty Reduction of the Haor People in Bangladesh? Seasonal Migration or a New Inshore Economic Livelihood Policy’ (2011) 5 African Journal of Business Management 9979; E.C.  Penning-Rowsell, P. Sultana and P.M. Thompson, ‘The “Last Resort”? Population Movement in Response to Climate-Related Hazards in Bangladesh’ (2013) 27 Environmental Science & Policy S44. 25   B.A. Ackerly, ‘Hidden in Plain Sight: Social Inequalities in the Context of Environmental Change’ in R. McLeman, J. Schade and T. Faist (eds.), Environmental Migration and Social Inequality (Springer 2015). 26   R. Brouwer et al., ‘Socioeconomic Vulnerability and Adaptation to Environmental Risk: A Case Study of Climate Change and Flooding in Bangladesh’ (2007) 27 Risk Analysis 313; M.A.M. Joarder and P.W. Miller, ‘Factors Affecting Whether Environmental Migration Is Temporary or Permanent: Evidence from Bangladesh’ (2013) 23 Global Environmental Change 1511. 27   M.G. Ahamad et al., ‘Seasonal Unemployment and Voluntary Out-Migration from Northern Bangladesh’ (2011) 2 Modern Economy 174; K.M. Farhana, S.A. Rahman and M. Rahman, ‘Factors of Migration in Urban Bangladesh: An Empirical Study of Poor Migrants in Rajshahi City’ (2012) 9 Bangladesh e-Journal of Sociology 105.

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40  Research handbook on climate change, migration and the law Few rural families migrate permanently away from their farms or home communities even after very bad floods, since their social networks and household wealth are tied to those particular locations.28 Because the costs of accommodation, food, education and other services are so much higher in the city, to move there permanently would require severing beneficial rural social networks at home, making the immediate aftermath of a flood a poor time to undertake a permanent move.29 Only in cases where a household’s land has been indefinitely lost to flood erosion will those ­displaced by floods consider permanently moving farther afield.30 Even then, the distinction between the impacts of the flood on the household versus the impacts on the community is important.31 Where the ­community as a whole is able to recover quickly, even households that have ­suffered ­extensive losses are unlikely to migrate away, and will instead draw upon local social and employment networks to recover; it is only when both the individual household and the community as a whole have suffered ­significant losses that new or additional out-migration is likely to occur. In short, damaging monsoonal flood events have a relatively modest influence on the normal ‘background migration’ that occurs within ­ Bangladesh, with the most common response being a temporary surge in short-term, short-distance migration.32 While rural-urban migration rates are high, most rural people who migrate permanently to the city cite ­economic factors and the desire to escape chronic poverty as being their main motivations.33 Similarly, there are high, ongoing movements of migrants from Bangladesh to international destinations; this form of migration also shows relatively little response to floods, since those 28   H. Lein, ‘The Poorest and Most Vulnerable? On Hazards, Livelihoods and Labelling of Riverine Communities in Bangladesh’ (2009) 30 Singapore Journal of Tropical Geography 98. 29   K. Kartiki, ‘Climate Change and Migration: A Case Study from Rural Bangladesh’ (2011) 19 Gender and Development 23. 30   T. Siddiqui, ‘Migration as a Livelihood Strategy of the Poor: The Bangladesh Case’, Regional Conference on Migration, Development and Pro-Poor Policy Choices in Asia (2003), http://www.eldis.org/vfile/upload/1/document/0903/ Dhaka_CP_5.pdf; S.D. Barman et al., ‘Foundations of Migration from the Disaster Consequences Coastal Area of Bangladesh’ (2012) 2 Developing Country Studies 22; S. Iqbal, ‘Flood and Erosion Induced Population Displacements: A Socio-Economic Case Study in the Gangetic Riverine Tract at Malda District, West Bengal, India’ (2010) 30 Journal of Human Ecology 201. 31   C.L. Gray and V. Mueller, ‘Natural Disasters and Population Mobility in Bangladesh’ (2012) 109 Proceedings of the National Academy of Science 6000. 32   Joarder and Miller, supra note 26. 33  Lein, supra note 28; H. Lein, ‘Hazards and “Forced” Migration in Bangladesh’ (2000) 54 Norsk Geografisk Tidsskrift 122.

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Climate-related migration  ­41 ­ igrating abroad are often higher skilled, better educated workers from m urban centres who are less likely to be directly affected by flooding.34 By contrast, droughts and tropical cyclones have greater potential to cause changes in migration patterns, since households and communities ­typically have less capacity to recover from those types of events.35 Even so, the duration and destination of migration is strongly influenced by the r­ esilience of local social networks and community cohesion and by the timing and severity of such events.36 For example, when a relative lack of precipitation leads to poor harvests in the season immediately following mangha, household food insecurity is magnified, and, in turn, this increases the likelihood of entire households migrating to the city.37 As with the West African example, flood-related migration in Bangladesh needs to be seen within the wider range of adaptation strategies rural households and communities undertake in response to a dynamic and challenging physical environment. Floods are just one of the many, normal risks rural households must cope with, and so even particularly d ­ amaging events lead to relatively modest, temporary surges in short-distance, short-duration migration. Only events that overwhelm community and household capacity simultaneously, or are outside the bounds of what is considered normal (such as droughts) stimulate noticeable changes in usual migration patterns. Migration patterns in Bangladesh tend to be highly gendered in general, and women, children, and the elderly have a high potential to be trapped in difficult situations when rural men migrate in search of temporary employment during the flood season or in the aftermath of cyclones. Further, it is the rural poor who suffer most greatly from floods and other disasters, and are most likely to resort to migration as a coping strategy. The result is that environmental migration patterns in Bangladesh mirror social and economic inequality within the country.

IV. THIRD EXAMPLE: MIGRATION PATTERNS IN CENTRAL AMERICA FOLLOWING HURRICANE MITCH Tropical storms and hurricanes are an ongoing risk for people living in Central America, the Caribbean, and the Atlantic coast of the US, and there  Siddiqui, supra note 30; Barman et al., supra note 30.  Kartiki, supra note 29; Gray and Mueller, supra note 31; Lein (2000), supra note 33. 36   Paul and Routray, supra note 20; Mallick and Vogt, supra note 23. 37   Farhana et al., supra note 27. 34 35

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42  Research handbook on climate change, migration and the law is evidence to suggest that the intensity of extreme storms in the region will grow in coming decades due to warming sea surface temperatures attributable to anthropogenic climate change.38 One of the most devastating such storms in recent decades was Hurricane Mitch, a category 5 storm that made landfall in Central America in October 1998. Honduras, Guatemala, Belize, El Salvador, Nicaragua, and southern Mexico were lashed by heavy rains for up to a week due to the slow movement of the storm, triggering large numbers of flash floods and landslides.39 The previous decade had seen high rates of rural-urban migration in Central America, and extensive neighbourhoods of self-built homes on the hillsides surrounding urban centres ­experienced especially high rates of property damage and loss of life.40 In many areas, preceding years of deforestation of steep slopes e­ xacerbated the risk of landslides and flash floods. It is estimated 7 000 people were killed during Mitch, over 12 000 injured, and more than 600 000 people were displaced from their homes.41 The worst hit countries were Guatemala, where over 100 000 people were left homeless, and Honduras, where 35 000 homes were destroyed, 50 000 homes experienced significant damage, and 90 per cent of the country’s built infrastructure sustained damage.42 Although in absolute terms the value of economic losses per household was greatest among wealthier households, the economic losses sustained by the rural poor were much higher when expressed as a percentage of total household assets.43   E. Fraza and J.B. Elsner, ‘A Climatological Study of the Effect of SeaSurface Temperature on North Atlantic Hurricane Intensification’ (2015) 36 Physical Geography 395. 39   R.C. Bucknam et al., ‘Landslides Triggered by Hurricane Mitch in Guatemala: Inventory and Discussion’ (2001), http://pdf.usaid.gov/pdf_docs/PNACP982.pdf; J. Hellin, M. Haigh and F. Marks, ‘Rainfall Characteristics of Hurricane Mitch’ (1999) 399 Nature 316. 40   R.A. Pielke et al., ‘Hurricane Vulnerability in Latin America and The Caribbean: Normalized Damage and Loss Potentials’ (2003) 4 Natural Hazards Review 101. 41   United Nations Economic Commission for Latin America and the Caribbean, ‘Guatemala: Assessment of the damage caused by Hurricane Mitch, 1998: Implications for Economic and Social Development and for the Environment’ (1999), http://www.eclac.org/publicaciones/xml/5/15505/L370-1-EN.pdf; United Nations Economic Commission for Latin America and the Caribbean, ‘Honduras: Assessment of the damage caused by Hurricane Mitch, 1998: Implications for Economic and Social Development and for the Environment’ (1999), http://www. eclac.org/publicaciones/xml/6/15506/L367-1-EN.pdf. 42   M. Glantz and D. Jamieson, ‘Societal Response to Hurricane Mitch and Intra- versus Intergenerational Equity Issues: Whose Norms Should Apply?’ (2000) 20 Risk Analysis 869. 43   S.S. Morris et al., ‘Hurricane Mitch and the Livelihoods of the Rural Poor in Honduras’ (2002) 30 World Development 49. 38

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Climate-related migration  ­43 People living in the affected area received little advance warning of the storm from government authorities, and received little in the way of relief assistance after the fact.44 As a result, households had to adapt and cope in the aftermath as best they could, relying on their own resources and the assistance of friends, neighbours, and social networks. Unsurprisingly, the number of men and women seeking employment soared after the storm, even though there was little paid work to be found locally.45 Out-migration from rural areas – which had been strong for many years in Guatemala and Honduras – slowed temporarily as people concentrated on rebuilding their homes, replanting crops, and repairing basic infrastructure that had been damaged by the storm.46 After the initial recovery period, migration rates began to soar as households began looking elsewhere for sources of income that could be remitted home. Rural-urban migration within countries grew, as did cross-border migration to less-affected countries like Costa Rica and Belize and longer distance migration to the US. Migration destinations reflected the socio-economic status of households and their access to social networks. For example, large numbers of rural poor from Nicaragua migrated into rural Costa Rica in search of work as seasonal agricultural labourers, while even larger numbers of urban Nicaraguans moved to Costa Rican cities to work as construction labourers and domestic helpers.47 This latter group was not drawn from the poorest of Nicaragua’s urban poor, but was instead comprised primarily of people from less-destitute households. Migration to the US from Central America soared in the year following Mitch, especially from Honduras (Figure 2.4 below). The potential value of remittances received from a migrant that successfully reached   L. Comfort et al., ‘Reframing Disaster Policy: The Global Evolution of Vulnerable Communities’ (1999) 1 Global Environmental Change Part B: Environmental Hazards 39; S.S. Morris and Q. Wodon, ‘The Allocation of Natural Disaster Relief Funds: Hurricane Mitch in Honduras’ (2003) 31 World Development 1279. 45   World Bank, ‘Hurricane Mitch: The Gender Effects of Coping and Crises’ (2001), http://www-wds.worldbank.org/external/default/WDSContentServer/WDSP​ /IB/2002/10/04/000094946_02092504034174/Rendered/PDF/multi0page.pdf. 46   D.L. Carr, ‘Migration to the Maya Biosphere Reserve, Guatemala: Why Place Matters’ (2008) 67 Human Organization 37. 47   E. Funkhauser, ‘The Choice of Migration Destination: A Longitudinal Approach Using Pre-Migration Outcomes’ (2009) 13 Review of Development Economics 626; E. Murrugarra and C. Herrera, ‘Migration Choices, Inequality of Opportunities and Poverty Reduction in Nicaragua’ in Edmundo Murrugarra, Jennica Larrison and Marcin Sasin (eds.), Migration and Poverty: Towards Better Opportunities for the Poor (International Bank for Reconstruction and Development 2011). 44

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44  Research handbook on climate change, migration and the law 20 000 15 000 10 000 5000 0

1997

1998

1999

2000

2001

2002

Source:  US INS (note 50). Figure by author.

Figure 2.4  Undocumented Honduran nationals intercepted by US border patrols attempting to enter at the US-Mexico border the US was much higher than those obtainable at migration destinations within the region. However, the migration route to the US is much longer, more dangerous, and more expensive to traverse, meaning that the sending household had to accept the risk that the migration attempt could fail, and that there would be a significant lag in r­ eceiving remittances were it to succeed. Most US-bound migrants therefore ­ came from middle class urban households that had the necessary means to finance the migration attempt (which often entailed paying a migrant-smuggling ­organization), and each participating household selected the member who had the highest earning potential.48 Most migrants arriving from Central America in the aftermath of Mitch settled in US states ­bordering Mexico and the Gulf of Mexico,49 an influx that created new pressure for the US ­immigration system. The American g ­overnment granted ­‘temporary protected status’ (TPS) to El Salvadoran, Guatemalan, Honduran, and Nicaraguan ­nationals who were in the US prior to December 30, 1998, allowing them to stay with 48   L. Schmalzbauer, ‘Searching for Wages and Mothering from Afar: The Case of Honduran Transnational Families’ (2004) 66 Journal of Marriage and Family 1317; S. McKenzie and C. Menjivar, ‘The Meanings of Migration, Remittances and Gifts: Views of Honduran Women Who Stay’ (2011) 11 Global Networks 63. 49   A. Kugler and M. Yuksel, ‘Effects of Low-Skilled Immigration on US Natives:  Evidence from Hurricane Mitch’ (2008), http://www.nber.org/papers/ w14293.pdf.

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Climate-related migration  ­45 legal status until the environmental disaster in their home countries had passed.50 Originally scheduled to last 18 months, TPS was ­eventually cancelled for El Salvadorans and Guatemalans but remained in place for Hondurans and Nicaraguans for more than a decade. A 2004 postdisaster assessment by the World Bank found that most Honduran households had still not recovered from the economic losses they had sustained during Mitch, and that remittances from abroad remained a main source of income for many households.51 Several lessons may be learned from the case of Mitch, a first being that, despite the known risk of tropical storms and hurricanes, g­ overnments and institutions in Central America were unprepared and incapable of providing meaningful assistance to people affected by the storm. This was a symptom of the more chronic problems of under-development and political instability throughout the region, problems that persist to this day. In the absence of capable governance, households had to adapt to the environmental disaster as best they could given the resources at hand, with mobility and migration being a key means of doing so – a ­recurring theme through each of these three examples, and one that is often encountered in other cases as well. A single sudden-onset disaster event like Mitch generates a range of migration responses, which in turn reflect social and economic differences within the affected populations. Poorer households and those with the most urgent need for cash looked to short-distance labour migration as a means of generating income, while households with more resources looked to more distant destinations, where the potential financial returns to migration would be greater. Not only does long-distance migration cost more to undertake, thereby precluding poor households from participating, the entire household, including those who remain behind, must be willing to assume the inherent risks in doing so. Post-disaster migration generated by Mitch reinforced the importance of intra-national and international social networks, created new ones, and increased the importance of remittances to economic development within the region. It is worth noting that many of the observations made in the study of Hurricane Mitch have also been made by researchers studying the migration outcomes of Hurricane Katrina in the US state of Louisiana,

50   US INS, Statistical Yearbook of the Immigration and Naturalization Service, 1999 (US Government Printing Office 2002), http://www.dhs.gov/xlibrary/assets/ statistics/yearbook/1999/FY99Yearbook.pdf. 51   J. Telford, M. Arnold and A. Harth, Learning Lessons from Disaster Recovery: The Case of Honduras: Disaster Risk Management (Working Paper Series No. 8, The World Bank 2004).

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46  Research handbook on climate change, migration and the law suggesting that the post-disaster migration ‘churn’ is not unique to less developed countries.52

V. CONCLUSION The three preceding examples were selected because they reflect climaterelated events and phenomena that are common in many regions around the world, ones that are expected to increase in frequency, duration, ­intensity, and/or severity in coming decades as a result of anthropogenic climate change. They also reflect a spectrum of environmental risks, from the infrequent yet intensively destructive phenomena of t­ ropical storms and hurricanes, which have a relatively sudden onset, to the slower d ­ eveloping, persistent impact of droughts that cause a slow but steady erosion of household livelihoods. Rural livelihoods are especially ­vulnerable to such risks, and human activities such as land degradation and deforestation can exacerbate them. Most importantly, the examples highlight just some of the ways in which environmental events and ­conditions, socio-economic development trajectories, and migration are inextricably connected in lessdeveloped countries and regions. In the absence of improved institutional capacity to cope with and adapt to environmental risks, mobility and migration will for the foreseeable future continue to be key ways by which households adapt. The number of people migrating for environmental reasons will grow in coming decades. This is a virtual certainty for two reasons: the number of people living in areas exposed to environmental hazards of the types shown in the examples is steadily growing; and, anthropogenic climate change will amplify the scale of these environmental risks. The need for policies, programmes, and legal mechanisms to address intra-national and ­international environmental migration will grow accordingly. However, as the examples suggest, it will be a challenge to find one-size-fits-all s­ olutions. Each environmental migration event will inevitably have its own physical characteristics in terms of the scale of harm caused, and each affected community or population will have its own social, economic, and cultural characteristics that influence the adaptive capacity of individual households and their ability to use migration as a means of adapting. Authors of later chapters will offer specific prescriptions for future policies and legal

  J. DeWaard, K.J. Curtis and E. Fussell, ‘Population Recovery in New Orleans after Hurricane Katrina: Exploring the Potential Role of Stage Migration in Migration Systems’ (2016) 37 Population and Environment 449. 52

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Climate-related migration  ­47 tools; for now, I would like to suggest a few important c­ onsiderations for readers to reflect upon as they read this book. A first is to appreciate that migration is not something to be feared or demonized, as is currently taking place in Europe, in the wake of recent large-scale migrant arrivals from the Middle East, Africa and Asia, and in the US, where President Trump successfully campaigned on p ­ romises to build a wall to keep out economic migrants from Mexico and Latin America. In the absence of political and socio-economic security, households in less developed countries must use mobility and migration as a means of reducing their exposure to risks ­(environmental or otherwise), stabilizing their food and income security, and taking advantage of ­ ­economic opportunities elsewhere when such opportunities are lacking in their home ­communities. To expect them to do otherwise would be naïve. Any moves taken to restrict the movement of ­environmental migrants would mean restricting socio-economic development and restricting ­people’s capacity to recover from environmental disasters, plain and simple. Instead of seeking to prevent environmental migration, ­governments and institutions should instead view it as one component of broader processes of adaptation, and seek ways to manage and channel it so that the risks are minimized and the benefits are maximized for sending communities, receiving communities, and for migrants themselves. A related observation is that while migration events triggered by suddenonset disasters like hurricanes and typhoons are more likely to grab popular attention, environmental considerations figure into longer term m ­ igration patterns and trends as well, although less dramatically. The inherent ­seasonality and variability of dryland climates and the annual flood regimes of heavily populated river systems in monsoonal Asia are already e­ mbedded in the longer term migration patterns of those regions; unsound land use practices amplify these environmental influences. Policies and practices to address environmental migration therefore need to account for and be linked in some way to wider initiatives to improve longer term land-use practices in developing regions; for example, it is becoming i­ncreasingly clear that initiatives to address land degradation in dryland regions through the UN Convention to Combat Desertification need to take into account livelihood-related migration patterns in targeted countries.53 The fact that environmental migration is heterogeneous in nature at local levels should not discourage us from seeking to build national and international accords that provide structure and frameworks for ­governing

53   This will be a chapter in the next UNCCD Global Land Outlook report in 2017, which is still in production at the time the present chapter is being written.

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48  Research handbook on climate change, migration and the law climate-related migration. As was noted earlier in this chapter, there is considerable empirical evidence already available to help guide and inform decision-makers and, as will be seen in the chapters that follow, many informed people are already drawing upon it to generate useful analyses and suggestions to help us move forward on what promises to be one of the most important public policy discussions of the coming century.

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3.  ‘Climate-induced migration’: ways forward in the face of an intrinsically equivocal concept Calum T.M. Nicholson

INTRODUCTION Increasingly, ‘social science’ has come to be conducted through ­thematically-oriented fields, such as ‘migration studies’ and ‘development studies’. This should not come as a surprise, given that ­specialisation and ‘expertise’ are now well established as shibboleths of our c­ ontemporary political life in democratic contexts – itself less ideological and more ­technocratic than it was in the twentieth century. As universities find themselves needing to demonstrate ‘outcomes’ and ‘impact’ in our ­contemporary ‘audit culture’,1 it is perhaps inevitable that the content of research begins to reflect this technocratic turn so characteristic of the context in which the research is conducted. One result of this is the proliferation of new concepts held to be a ­prerequisite to both understanding and to changing the world we live in and as such, they are assumed to have an inherent utility. One such example is ‘climate change migration’, a term that gained significant ­currency in the past decade, linking as it does ‘climate change’ and ‘migration’, two grand themes of contemporary, and proliferating, concern. Despite the c­ urrency of the term (and other cognate categories implying the same causal understanding), it is one that, on close examination, remains conceptually incoherent, and thus equivocal in terms of its meaning. This chapter does three things. First, drawing on previously published work, it outlines the six tendencies of the literature symptomatic of that incoherence. Second, it argues that these symptoms reflect an underlying pathology in the questions we ask, and that we can therefore approach the study of the literature epidemiologically. That is, equivocal claims can be examined as one would a disease, with the analysis isolating the literature’s surface symptoms, its underlying pathology and, etiologically,

 1   M. Strathern (ed.), Audit Culture: Anthropological Studies in Accountability, Ethics and the Academy (Routledge, 2000).

49

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50  Research handbook on climate change, migration and the law the ­contingency of our contemporary concern with ‘climate migration’ in the first place. Third, the chapter suggests the political context in which ­conducting such an epidemiological analysis is both possible and ­necessary (it is argued that it is necessary because it is possible). The chapter ­concludes by arguing that, faced with irredeemably equivocal c­ ategories such as ‘climate migration’, the resolution to our predicament lies not in thinking different things (i.e. through new concepts), but in thinking ­differently. That is, we should not be aiming to produce new concepts, but to be vigilant against their proliferation by developing a means to process them. It is argued that the epidemiological approach allows us to be so. It should be noted that this approach is not to be construed as an ‘attack’ or ‘dismantling’ of the ‘climate-induced migration’ concept. Rather, it is simply exposing that the theme is not sufficiently tangible to be put to use, let alone dismantled. The purpose of this chapter is to demonstrate our tendencies in lieu of coherent conceptualisation.

I. THE PROBLEM WITH THE CONTENT OF OUR ARGUMENTS AND ANSWERS The climate-induced migration theme is one marked by a growing l­ iterature in the last decade. Academic conferences and workshops are widespread; institutions such as IOM and UNHCR increasingly enrol the theme of climate change into their policy and position papers; NGOs and research projects, and institutions such as the Nansen Initiative, concerned with the impact of climate change on migration, are multiplying. Despite the attention given to it, the topic remains notable for its ambiguity and inconclusiveness. It is a field where the central theme ­ remains equivocal with regard to both its subject and purpose: what is ‘climate migration’, as opposed to what it is not? Why do we privilege this theme, relative to any other? That these questions remain open has not foreclosed on a proliferation of ‘empirical’ literature. Yet without certainty as to what the phrase ‘climate migration’ (and its cognate categories) refers, and why it is foregrounded by particular research and policy actors, the literature remains rooted in the realm of meaningless abstraction, regardless of how well-meaning the motivations behind those producing it. It is important to recognise that research is not ‘applied’ and ‘of consequence’ simply because those are the well-meant intentions. We have, in fact, no idea what ‘the empirical’ even means in the absence of a threshold for what it makes sense to say. The literature on the relationship between climate change and ­migration is marked by six tendencies indicative, and indeed symptomatic, of its

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‘Climate-induced migration’  ­51 equivocal nature. These tendencies, which break down into three pairs, will now be briefly outlined.2 The first pair of tendencies is with regard to ideational framing. That is, the tendency of framing statements in the literature on ‘climate-induced migration’ to be either general or specific. The problem with this is that their content and context in the world can essentially be anything, and as such they constitute the first two ‘symptoms’ we need to be vigilant against. The first such tendency is to make general statements that lack a ­specific, exclusive referent or application in the real world. Such statements have only relative meaning – in relation to other similarly abstract statements. A classic example is the definition of ‘environmental migrants’ once ­suggested by the International Organisation for Migration: Persons or groups of persons who, for compelling reasons of sudden or progressive change in the environment as a result of climate change that ­ adversely affect their living conditions, are obliged to leave their habitual homes, or choose to do so, either temporarily or permanently, and who move either within their country or abroad.3

Statements of such a general nature, without much sense of what the ­composite terms mean independent of their relation to each other, are endemic in the literature. Examples include ‘[a]s a result [of climate change], migration patterns are likely to change profoundly’;4 ­‘environmental changes, including climate change, currently play a role in migration’.5 Similarly, the Nansen Initiative, launched in 2012 in order to provide a ‘state-led, bottom-up consultative process intended to identify effective practices and build consensus on key principles and elements to address the protection and assistance needs of persons displaced across borders in the context of disasters, including the adverse effects of climate change’,6   For a more comprehensive discussion of these tendencies, see C. Nicholson, ‘The Politics of Causal Reasoning: The Case of Climate Change and Migration’ (2014) 180(2) The Geographical Journal 151, 154; C. Nicholson, ‘A Cartography of Expression: The Case of the Climate Change and Migration Debate’ (PhD Thesis, Swansea University, 2015).  3   International Organisation for Migration (‘IOM’) (2007). Discussion note: Migration and Environment; 94th Session, MC/INF/288.  4   G. White, Climate Change and Migration: Security and Borders in a Warming World (Oxford University Press, 2011), at 10.  5   E. Piguet, A. Pécoud and P. de Guchteneire (eds.), Migration and Climate Change (UNESCO Publishing and Cambridge University Press, Cambridge, 2011) at 188.  6   Report of the Nansen Initiative Global Consultation Conference held in Geneva on 12–13 October 2015, https://www.nanseninitiative.org/wp-content/ uploads/2015/02/GLOBAL-CONSULTATION-REPORT.pdf at 8.  2

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52  Research handbook on climate change, migration and the law hedges its very subject in ambiguity. Words such as the ‘adverse’ are attached to phrases such as ‘effects of climate change’, ‘forced displacement’ is discussed as it is ‘related to disasters’,7 and discussion of migration, displacement and mobility are understood in the ‘context of disasters’.8 It is not made clear what the words ‘adverse’, ‘effect’, ‘related to’ and ‘context of’ actually, and exclusively, mean, beyond banalities such as that, in a complex system, everything is interrelated to some degree. Such statements are not false, but they are ultimately useless without clarity regarding what they can be coherently and consistently mapped with in reality. The second ‘symptomatic’ tendency complements the first: the tendency to make specific claims about the relationship between an environmental variable and a societal outcome, such as human migration or displacement, which, without a possibility of reconciling it with general claims, remains wholly illusory. What is most revealing about many case studies is the simultaneous acknowledgement that ‘climate change will be ­experienced very differently around the world and across countries, as the vulnerability to nature is ultimately a product of the socio-economic forces that shape all societies’.9 The second pair of tendencies is with regard to the literature’s empirical substance. Substantive statements in the literature are often contradictory or tautological. The problem with this is that they are evidence that the discussion is simultaneously making claims to everything, and as such they constitute the second set of ‘symptoms’ of which to be aware. The first of these is contradiction. In this case, the contradiction has the following pattern: there will be an acknowledgement that no clear, exclusive definition of ‘climate’ or ‘environmental’ migration has been established, or that the ‘drivers’ of migration are always complex, and that all migration is conditioned by myriad contingencies and ‘geo-socialpolitical context’.10 It is notable that these papers nevertheless go on to refer to ‘climate displacement’ as if it is an essential and ontologically stable category.11   Ibid., at 24.   Ibid., at 9.  9   Piguet, Pécoud and de Guchteneire, supra note 5, at 25. 10   J. McAdam (ed.), Climate Change and Displacement: Multidisciplinary Perspectives (Hart Publishing, Oxford, 2010) at 107. 11   Ibid., 1; G. Hugo, ‘Climate Change-Induced Mobility and the Existing Migration Regime in Asia and the Pacific’ in ibid., at 10; J. Barnard and M. Webber, ‘Migration as Adaptation: Opportunities and Limits’ in ibid., at 54–5; R. Zetter, ‘Protecting People Displaced by Climate Change: Some Conceptual Challenges’ in ibid., at 140–41; S. Castles, ‘Afterword: What Now? ClimateInduced Displacement after Copenhagen’ in ibid., at 243.  7  8

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‘Climate-induced migration’  ­53 For instance, Renaud states that ‘there is a broad scientific consensus, compelled with a concerned public expectation, that the phenomenon of environmental migration, ill-defined as it may be, would turn worse in the years to come’.12 How can something be held to be a ‘phenomenon’, let alone one that can ‘grow worse’, if it remains ‘ill-defined’? Renaud goes on to write that: A point has been reached at which it is important to investigate the extent to which environmental degradation is a root cause for migration or displacement, and moreover to urgently address the issue of environmental migration ­consistently through policies supported by rigorous scientific and academic research.13

Again, how can one talk of ‘urgently’ addressing ‘the issue of ­environmental migration’ before one has established whether ‘environmental degradation’ is in fact a demonstrable ‘root cause for migration and displacement’? In the same vein, McAdam writes that ‘acknowledging the ­multicausality of climate-related movement may in fact open up a wider range of legal and policy “solutions” to address it’.14 However, surely if ‘multicausality’ is acknowledged, with the implication that we cannot meaningfully distinguish a ‘climate change migrant’ from any other sort of migrant, what exactly is the ‘it’ in question? Can we even talk of an ‘it’ as ‘a phenomenon’?15 Can one have a ‘solution’ without knowing precisely what needs solving? And by extension, what exactly does it mean to talk of a ‘normative gap in the international legal protection regime’ with regard to ‘cross-border displacement stemming from natural disasters and the effects of climate change’,16 if we don’t know what would constitute the latter, and thus who might fit the description of a person migrating because of climate change? The fourth tendency of the literature is to retreat into tautology, so as to avoid bringing the contradiction into uncomfortably sharp relief. Examples of tautological arguments in the field include: ●● ●●

that there is a continuum from forced to voluntary migration;17 that some people will migrate from climate change, and some will not;18

  F. Renaud et al., (2007) ‘Control, adapt or flee: How to face environmental migration’, InterSecTions, UNU-EHS, No.5/2007, at 6. 13   Ibid., at 10. 14   J. McAdam, Climate Change, Forced Migration, And International Law (Oxford University Press, 2012) at 5. 15   Ibid., at 186. 16   Ibid., at 1. 17  Hugo, supra note 11, at 12. 18   Barnard and Webber, supra note 11, at 40. 12

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54  Research handbook on climate change, migration and the law ●● ●● ●●

that immobility matters as much as mobility;19 that ‘people are as likely to migrate to places of environmental ­vulnerability as from these places’;20 that ‘environmental change is equally likely to make migration less possible as more probable’.21

In a sense, such tautological positions act as a deus ex machina for the field, allowing it to escape the corners into which it otherwise writes itself. Because such tautological statements and conclusions include all ­possible options, and are thus statements of the obvious, they are a­nalytically meaningless. Stating that immobility matters as much as mobility is to subsume the original focus on climate change and migration within a broader concern with law, governance and political economy in general, raising the question of why ‘climate change’ or ‘migration’ was privileged in the analysis in the first place. Researchers are not unaware of this. McAdam, for instance, cautions that ‘the degree to which climate change can – and needs to – be singled out as a factor (influencing migration decision-making) would need careful consideration’,22 and admits that ‘climate change is best conceived of as a threat multiplier which exacerbates existing vulnerabilities’.23 Yet although such acknowledgements are made, the theme of climate change and migration continues to be privileged in research. The monograph within which McAdam makes the aforementioned caution is itself titled Climate Change, Forced Migration, and International Law. The third and final pair of tendencies is with regard to the literature’s concessive conclusions. That is, the tendency to conclude with statements that either kick the proverbial can down the road (equivocation) or launder the categories involved (metamorphosis). These imply a tacit admittance that the discussion and claims preceding them amounted to nothing, a conclusion that does not, however, address why it amounted to nothing, nor how future discussion might avoid doing so. This is the third set of ‘symptoms’ we need to be aware of. First, the fifth ‘symptom’ – equivocation. A classic example of this is from

 Hugo, supra note 11, at 8; Zetter, supra note 11, at 149.   Foresight (Government Office for Science), ‘Migration and Global Environmental Change: Future Challenges and Opportunities’ (21 October 2011), https://www.gov.uk/government/uploads/system/uploads/attachment_data/ file/287717/11-1116-migration-and-global-environmental-change.pdf, at 9. 21  Ibid. 22  McAdam, supra note 14, at 197. 23   Ibid., at 267. 19 20

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‘Climate-induced migration’  ­55 Piguet and co-authors, stating that ‘more research is needed to ­establish whether increasing local awareness of likely future trends in climate change results in an increase or a reduction in the probability of mobility among those affected’.24 For those with an institutional or ­normative angle, the phrase ‘more dialogue is necessary’25 plays a similar role, and is equally ­ubiquitous in the literature. Such admonitions emerge in light of the failure of the existing literature to reconcile specific and general cases under the theme of ‘climate-induced migration’. A ­variation on the tendency is to call for ‘interdisciplinary’ approaches rather than ‘multidisciplinary’ a­ pproaches.26 Yet what is most notable about calls for more research or dialogue is a failure to be explicit about why they are needed at all – why exactly research to date has failed, and how such ­failures can be avoided in future research. Finally, the sixth ‘symptom’ – to engage in the metamorphosis of ­categories and phraseology surrounding the theme. Even a perfunctory survey of the literature reveals a cacophony of terms and phrases in ­circulation, often within the same texts. For instance, one single text uses the following phrases in the same discussion: ●●

●● ●● ●● ●● ●● ●● ●●

the ‘relationship between climate change and migration’,27 which is the reverse of the title of the book itself, ‘Migration and Climate Change’; ‘climate change [and its] impact on migration’,28 which differs from ‘relationship between’ in that it implies a one-way relationship; ‘this volume . . . presents empirical insights on the link between climate change, the environment and migration’;29 ‘people who move in connection with environmental factors’;30 ‘natural disaster induced displacement’;31 ‘people who migrate in connection with environmental factors’;32 ‘the collective dimension of migration in the case of environmental change’;33 ‘environmental factors will increasingly fuel migration’;34

  Piguet, Pécoud and De Guchteneire, supra note 5, at 156.  McAdam, supra note 10, at 3. 26  Ibid. 27   Piguet, Pécoud and De Guchteneire, supra note 5, at i. 28   Ibid., at 1. 29  Ibid. 30   Ibid., at 2. 31   Ibid., at 20. 32  Ibid. 33   Ibid., at 21. 34   Ibid., at 22. 24 25

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56  Research handbook on climate change, migration and the law ●● ●● ●● ●●

‘situations of environmental migration’;35 ‘climate change has consequences in terms of human migration and mobility’;36 ‘environmental migration’;37 ‘climate change-migration’.38

Some contributors to the same volume use phrases such as ‘unwanted ­migration due to climate change’,39 ‘critical linkages between climate change, migration and health’;40 ‘one of the potential impacts of ­predicted climate change is to induce population displacements’;41 and ‘future ­population migration induced by climate change’.42 McAdam offers ‘climate-related displacement’,43 and shortly after ‘climate-related movement’.44 Findlay and Geddes invoke ‘environmentally induced ­mobility’45 and ­‘environmentally informed mobility policies’.46 Later, in closing comments, Castles offers ‘climate change-shaped migratory experiences’.47 The constant variation of terms, categories and phraseology renders any attempt to make sense of what, precisely, is at issue, virtually impossible. Complicating matters, concerns with ‘environment’ and ‘migration’ are increasingly linked with or attendant to other themes of research, such as ‘development’, ‘conflict’, ‘poverty’, ‘deprivation’, ‘humanitarian crises’, etc.48 Thus, McAdam notes that the relationship between climate change

 Ibid.   Ibid., at 25. 37  Ibid. 38  Ibid. 39   M. Rebetez, ‘The Main Climate Change Forecasts That Might Cause Human Displacements’ in Piguet, Pécoud and Guchteneire supra note 5, at 45. 40   A.F. Barbieri and E.C. Confalonieri, ‘Climate Change, Migration and Health in Brazil’, in ibid., at 49. 41  Ibid. 42  Ibid. 43   J. McAdam, ‘Refusing “Refuge” in the Pacific: (de)constructing climateinduced displacement in international law’, in Piguet, Pécoud and Guchteneire supra note 5, at 130. 44   Ibid., at 132. 45   A. Findlay and A. Geddes ‘Critical Views on the Relationship Between Climate Change and Migration: Some Insights from the Experience of Bangladesh’, in ibid., at 140. 46   Ibid., at 156. 47   S. Castles, ‘Concluding remarks on the climate change-migration nexus’, in ibid., at 420. 48   For example, R. McLeman, J. Schade and T. Faist (eds.) Environmental Migration and Social Inequality (Springer 2016). 35 36

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‘Climate-induced migration’  ­57 and human migration can be approached in a variety of ways, namely ‘as a protection issue, a migration issue, a disaster issue, an environmental issue, a security issue, or a development issue. Each “lens” contains an implicit set of assumptions that motivates different policy outcomes’.49 As noted elsewhere: The effect of all this semantic fluidity is to render the field impervious to ­critique: one can raise methodological, conceptual, and even political objections to the use of a particular term by a particular actor in a particular context, but the moment the labels change, criticism is neutralised, and the process begins all over again.50

Thus, we have the six tendencies widespread in the literature: abstract ­generality, where meaning is only relative; arbitrary ­specificity; contradiction; tautology; equivocation; and the metamorphosis of ­ ­categories. These six tendencies, broken down into pairs, can be seen as the ‘phenotypic’ surface pattern in the arguments and conclusions of the ­literature that are telltale signs of an equivocal claim. The tendencies ­indicate a failure to reconcile specific case studies with general claims. They are evidence that equivocal claims can mean anything, refer to everything, and conclude nothing, but that all three of these are at most negations of what is surely the objective of claiming to have value in their ‘truth’ content: to say something clear, consistent and certain. The ­tendencies are indications that, although equivocal claims perhaps cannot be proved wrong or false, neither are they demonstrably right or true. This matters, as without the ability to prove them one or the other, there can be no potential for positing a discrete, deterministic relationship between environmental or climate change and migration or displacement that is not truistic or arbitrary. As researchers, our problem is not one of data or definition. It is deeper than that. It is about how (and why) we frame our questions as we do. As such, there is little possibility of establishing an evidence-based ­conceptual framework that might inform any policy intervention hoping to have intended (rather than arbitrary) outcomes. In fact, marked by these symptoms, there is no clarity as to what, exactly, research on the topic is actually engaged in doing. The purpose of drawing attention to these ­tendencies is not, therefore, to say anything categorical and conclusive about equivocal claims, but rather to show that they are neither categorical nor conclusive. That the theme has political currency and cachet does not necessarily mean it is clear in either its subject or purpose.  McAdam, supra note 14, at 212.  Nicholson, supra note 2, at 154.

49 50

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58  Research handbook on climate change, migration and the law

II. THE PROBLEM WITH THE CONTENT OF OUR QUESTIONS If these six tendencies can be understood as ‘symptoms’, it suggests there must be an underlying ‘pathology’ generating them. What might this pathology be, and where might it be sited? If the symptoms are themselves sited in the arguments made and answers given, with regard to what ‘climate migration’ is, it stands to reason that the ‘pathology’ lies in the questions being asked. The most prevalent type of question about climate change and m ­ igration is normative. That normative questions and concerns are so common should not come as a surprise, as the theme is chiefly a technocratic ­construct, given currency in institutional contexts. Normative questions about climate change and migration fall into two types. The first are concerns with what we could term ‘human ­security’ – the rights of so-called ‘climate migrants’. What ought to be done to protect them? The second are concerns with what we could term ‘national security’  – institutional ‘governance’ structures for managing ‘climate migration’. In both cases there is an implied orientation to institutional structures of the state system, and its infra-national, international and transnational extensions. Regardless of the political agendas and principles implied in the various normative positions on the theme, in the end they are only words, unless the categories themselves – ‘climate change’ and ‘migrant’ – coherently and consistently refer to something in reality, thereby facilitating action in and on the world in a coherent (as opposed to arbitrary) manner. In short, however well meant, normative concerns are meaningless without an ­ontological foundation.51 The previous section noted that the framing of climate change and ­migration was either general, from which no specific claims could be ­consistently deduced, rendering the claims vacuous, or specific, from which no general claims could be consistently induced, thereby ­rendering the claims arbitrary. Without a definition reconciling both general and ­ specific claims, the literature is forced into either ­ contradictory or ­ tautological arguments, followed by concessive conclusions of either  metamorphic categories or suggestions that ‘more research is needed’. The  elephant in the room is the absence of any ontologically

  This might at first look like a concern for ‘causality’. However, prior to an enquiry into the causal relationship between two variables, one first must identify what is (as opposed to what is not) a variable. 51

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‘Climate-induced migration’  ­59 stable  understanding of the relationship between climate change and migration. In light of this, the problem may look like an empirical one. It may seem that what we need is data: where and when climate migration occurs, and what the ‘weighting’ of the ‘dynamic’ is in relation to other ‘dynamics’ – be they socio-economic, political, agential or structural. Yet, as Peter Winch has noted, our analysis is crippled if we mistake ‘conceptual enquiries into what it makes sense to say for empirical enquiries which must wait upon experience for their solutions’.52 As a prerequisite to empirical evidence we need an exclusive definition of both ‘climate’ and ‘migrant’ (i.e. what one is as opposed to what one is not). What is ‘environment’ as opposed to society? What is a migrant, as opposed to a non-migrant? The threshold for this would, however, by ­definition, require a reconciliation of both general and specific claims. One can make claims that are generally true, or specifically true, but can we produce claims consistent across both simultaneously, and which thus avoid falling into being, respectively, either relative or arbitrary? We therefore see that, as a prerequisite to normative concerns for what ought to be the case, and indeed ontological concerns for what is the case, we must first, reflexively, address the problem of the frameworks, thresholds and conditions for presuming ourselves a special case, capable of making certain claims about what is, and what ought to be. As Burnet noted, ‘the sense in which the philosopher asks “what is real?” involves the problem of man’s relation to reality, which takes us beyond pure science’.53 When we turn to the reflexive question about what we can say about what is (and thus what ought to be), we are asking an epistemological question. It is a concern for our theory of knowledge, our concern for the conditions of sense, and thresholds for truth. It is a concern not for what we see, but the lens through which we process what we see. It is about the terms on which we can ask our ontological questions about what ­distinguishes one category in space from another, and what determines the relationship between one category and another. Ontological certainty is, in turn, a prerequisite to making normative statements that can be applied and put into practise with non-arbitrary outcomes, and thus aren’t simply proverbial castles in the sky. In his classic 1958 essay on ‘The Idea of a Social Science and its Relation to Philosophy,’ Peter Winch wrote that epistemological q ­ uestions

  P. Winch, The Idea of a Social Science and its Relation to Philosophy (Taylor & Francis, 2003), at 16. 53   Ibid., at 9. 52

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60  Research handbook on climate change, migration and the law are ‘central to serious philosophical work’,54 and indeed, disciplines ‘lose their philosophical character if unrelated to epistemology’.55 This was not a new idea. The Stoics of ancient Greece believed we needed a ­criterion for knowledge and sense, and epistemology was the central branch of western philosophy for centuries following the Enlightenment. Yet ­curiously, ­epistemology has largely fallen out of fashion since Winch was writing, especially in what we can loosely term ‘social science’. Across most ­disciplines, far beyond the ‘social sciences’, the distinction between ­studying the origin of an idea and the validity of the claims involved is one that has often been overlooked by scholars.56 Once the ‘pride of philosophy’,57 by the 1950s epistemology had begun to be eroded by the challenges to orthodox conceptions of knowledge by the likes of Heidegger, Merleau-Ponty and Wittgenstein’s later philosophy. The theory that had informed epistemology was that of ‘correspondence’, but the second half of the twentieth century saw this view come under serious attack, notably in Rorty’s Philosophy and the Mirror of Nature.58 Rorty argued that the correspondence theory, which held that ‘the inner logic of language corresponds to an outer reality’,59 did not reflect a universal truth, but simply the context-specific preferences of a particular intellectual milieu – namely, European. With regard to the discussion of climate change and migration, however, we are dealing with ‘truth’ claims about what is, and what ought to be, which do presume to not only correspond to a particular context, but also to have universal validity. Put another way, such claims imply ‘truth’ that is applicable both specifically and generally – the goal is not to be subjectively interpretative, but objectively explanatory. An epistemological threshold is required for making a claim coherent and reconcilable across both general and specific contexts: where, in short, deduction and induction are simply mutually constitutive and reconcilable. To not do this results in either banal general claims or arbitrary specific claims. This leads to arguments that are subject to contradictions and tautologies, and to concessive c­ onclusions tacitly admitting that research is otherwise inconclusive.

  Ibid., at 6.   Ibid., at 7. 56   D. Phillips, Wittgenstein and Scientific Knowledge: A Sociological Perspective (Macmillan, 1977), at ix. 57   C. Taylor, Philosophical Arguments (Harvard University Press, 1997) at 1. 58   R. Rorty, Philosophy and the Mirror of Nature (Princeton University Press, Princeton, 1979). 59   R. Wilson, ‘The Trouble with Truth: Anthropology’s Epistemological Hypochondria’ (2004) 20(5) Anthropology Today 14. 54 55

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‘Climate-induced migration’  ­61 The epistemological requirement must not simply be correspondence in a specific case, but coherence across both general and specific cases. If this is the case, then the very question of what would be an epistemological threshold reduces to an ethical question:60 why do we care to have a threshold for sense at all? If we are asking what we can know, it must surely be contextualised by a concern for why we care to know, in the sense of how would knowing a ‘truth’ actually impact upon how we conduct ourselves in the world, and, particularly, with regard to other people. It would seem clear that the only defensible ethical justification for why we care to know is to allow us to act with consistency. Consistency is the essence of Kant’s categorical imperative, itself the central plank of his deontological moral philosophy:61 ‘act only according to that maxim whereby you can, at the same time, will that it should become a universal law’.62 If ethics is not defined as ‘to act consistently’, it is hard to understand not just what it would be, but also why we would bother to talk about it at all. For the alternative to consistency is to act arbitrarily, and if that were the case, then one wonders why one would seek any ­justification for action at all, let alone to seek an epistemological foundation. To act without ­foundation and justification can be understood as ­constitutive of precisely the arbitrary tendencies leading to a closed society, as it would be to impose a monist ideology on an irreducibly plural society. The internal threshold for sense, therefore, can only be consistency63 in ­application and in practice, rather than a threshold for sense in principle. An ­epistemological question must reduce to an ethical one. At this stage we encounter a paradox. To be ethically consistent, we would have to know what we can say about the world in which the very   It is perhaps important to distinguish between normativity, morality and ethics. Normativity refers to what should happen in a specific case, regardless of its validity. Morality refers to principles of our personal conduct in the world. Ethics refers to the qualifying conditions of knowledge claims about the world – i.e. to be consistent. 61   Kant’s ‘deontological’ moral philosophy was a response to his dissatisfaction with the state of moral philosophy at the time. He saw it as all deriving from subjective ontological claims, thereby rendering all imperatives hypothetical. Instead, Kant proposed a system deriving not from claims about the world per se, but from adherence to certain rules. In thereby transcending the problem of subjective ontologies, he was able to replace hypothetical imperatives with categorical ones. Kant’s philosophy has thus been termed ‘deontological’. 62   I. Kant, Groundwork for the Metaphysic of Morals (1785), at 29. 63   It is important to note that the concept of ‘consistency’ can have no meaning in the ‘real world’, and only has meaning in the context of a prescribed framework. It is a concern with regard to language and the justification for ­semiotic systems, not a concern with regard to the world itself per se. 60

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62  Research handbook on climate change, migration and the law proof of that consistency might be found. Thus, it is revealed that, while an epistemological question reduces to an ethical one, the ethical one in turn reduces to an epistemological one. We therefore encounter a foundational paradox in attempting to assert a threshold or condition for ontological sense (and thus normative application). Epistemological and ethical questions are simultaneously mutually constitutive and irreconcilable. In philosophy, we dig until ‘our spade is turned’.64 While normative and ontological questions must inevitably reduce to questions of epistemology and ethics,65 what is revealed is that those particular reflexive questions have sense only in relation to each other. It is this paradox that constitutes the underlying pathology accounting for the ‘symptoms’ of equivocal claims. As Wittgenstein wrote: We never arrive at fundamental propositions in the course of our investigations; we get to the boundary of language which stops us from asking further questions. We don’t get to the bottom of things, but reach a point where we can go no further, where we cannot ask further questions.66

One of the peculiarities of equivocal claims is that, even if one exposes the ‘genetic pathology’ to the questions accounting for the pattern of ‘phenotypic symptoms’ in the arguments we make and the answers we give about what is, and what ought to be, equivocal claims still maintain a grip on our imagination. Having shown ‘climate-change migration’ to be a senseless concept, the subsequent riposte is almost inevitable: ‘the concept may not make sense, but what then are we to do about climate change migrants?’ This brings to mind Marshall McLuhan’s quip, ‘for your ­information, let me ask you a question’,67 as it implies some a priori conviction that the very concern with climate change and migration is both normal and natural, even if the actual questions we ask and answers we give are senseless. One could, therefore, argue that the pertinent question is not ‘what about climate-change migrants?’, a question that insists on a solution. Rather, the pertinent question is held to be ‘why has a concept such as ­ “climate-change migrant” come to grip our collective imagination despite its phenotypic and genetic incoherence?’ This alternative approach   L. Wittgenstein, Philosophical Investigations (Blackwell, Oxford, 1958), §217. 65   And if explicit arguments are not reducible to questions of epistemology and ethics, then why do these questions exist at all? 66   R. Monk, Ludwig Wittgenstein: The Duty of Genius (Penguin, 1990), at 301. 67   P. Marchand, Marshall McLuhan: The Medium and the Messenger (MIT Press, 1998). 64

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‘Climate-induced migration’  ­63 ­ resents the ­possibility of achieving a dissolution of, rather than a solution p to, the question posed. There is not enough space in this chapter to outline this approach, as it would require an examination of the anthropological and historical contingency of how we perceive equivocal claims such as ‘climate-change migration’ to be natural and normal, despite their incoherence. Continuing the theme of ‘symptoms’ and ‘pathology’, this third stage could be termed an ‘etiology.’ The etiological approach is, however, addressed elsewhere.68 A concern for the symptoms, pathology and etiology of equivocal ­categories constitutes, of course, an epidemiological approach to their analysis. That is, such claims are being treated as akin to a disease. A disease is subject to epidemiological analysis because it has an effect on the body. We must, therefore, contextualise the epidemiological approach to equivocal claims by examining what effect they have on the body politic. Only by considering the impact of equivocal claims and categories in a particular political context can we come to understand the necessity of an epidemiological framework allowing us to unpack their content.

III. THE NEED TO CONSIDER THE CONTEXT OF OUR QUESTIONS It is here argued that, when made by political actors in an open society, equivocal claims about what is, or what ought to be (such as those made about ‘climate-induced migration’) constitute a problem, as they act to disaggregate power from accountability. If a claim is equivocal, it becomes almost impossible to define either the obligations or responsibilities of those occupying privileged positions in the political structure. On the one hand, equivocal claims allow one to talk about what is, or what ought to be, without creating obligations to take a specific action, thereby allowing the speaker to perform ‘engagement’ without consequence. On the other hand, equivocal claims allow one to avoid responsibility for the consequences of any action taken. This is perhaps what Amartya Sen meant when he wrote that ‘the theory of justice, as formulated under the currently dominant transcendental institutionalism, reduces many of the most relevant issues of justice into empty – even if acknowledged to be “well-meaning” – rhetoric’,69 with ‘empty rhetoric’ referring to what is here termed ‘­ equivocal claim’.

  Nicholson (2014), supra note 2; Nicholson (2015), supra note 2.   A. Sen, The Idea of Justice (Penguin, 2009), at 26.

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64  Research handbook on climate change, migration and the law By insulating actors from the risk inherent in accumulating clearly defined obligations and responsibilities, equivocal claims such as those on ‘climate-induced migration’ constitute, en masse, a fundamental c­ hallenge to the central tenet of an open society – that power should be held accountable, as otherwise it consolidates itself, leading inevitably to a closing of society. Ineluctably, the interest of power lies not in declaring what society ought to be, or in influencing what it is, but in strengthening and ­consolidating the grip of those in power. Given that silencing dissent is, by definition, not possible in an open society, the surest way for power to insulate itself from risk, and thereby consolidate itself, has been to put itself beyond the scope of criticism by hiding the nature of power, and thus what might be subject to criticism. As Orwell memorably put it, ‘when there is a gap between one’s real and one’s declared aims, one turns as it were instinctively to long words and exhausted idioms, like a cuttlefish squirting out ink’.70 One could argue that the old adage ‘scientia potentia est’ – knowledge is power – gets the wrong end of the stick entirely regarding the nature of ‘power’. It would seem more accurate to say that obfuscation is power. Thus, the context in which equivocal claims are a subject of concern is when they are made by actors occupying positions in the political structure of an open society,71 given that the open society has of course emerged as a political stent against the threat of a closed society, where power being accountable is not a central tenet of the society. Equivocal claims are the means by which power can disaggregate itself from accountability. Such claims are, arguably, not only increasingly prevalent, but characteristic of our era, and as such constitute the primary contemporary threat to the open society model itself. In this political context, there is a clear need for us not to attempt to resolve our societal problems by producing new categories, for all such categories are equivocal in nature. Instead, it is necessary to focus on processing any equivocal claim or category. In the case of our inadequate categories, we need to avoid simply thinking different things, through the

  G. Orwell, Shooting an Elephant and Other Essays (Penguin, 2003), at 371.   It is important to note that if equivocal claims are made in a closed society, it is pointless to single them out as a problem, as the conditions (i.e. freedom from being silenced as a central organising tenet of the society) under which they could be openly identified as a problem have not yet been established. In such a society, a political revolution is necessary to replace a closed society with an open one, before constant vigilance can be practised to keep the latter open. As Popper argued, totalitarian regimes politicize knowledge to an extent that critical thinking becomes impossible. See K. Popper, The Open Society and its Enemies (Routledge, 2002). 70 71

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‘Climate-induced migration’  ­65 reification of new categories, and instead learn to think differently – and see our most important role as being vigilant against the reification of new categories. Twentieth century threats to the open society came primarily from the encroachment of ideologies threatening to silence dissent and contradiction. In the twenty-first century, it seems that the threat is less from such exclusive assertions, and more from a retreat into ambiguity presenting nothing distinct enough to be contradicted, a problem nicely distilled in a quip attributed to G.K. Chesterton, that ‘you can’t turn a thing upside down if there’s no theory of it being the right way up’. The absence of overt terms on which to disagree, and from which to dissent in our post-ideological era may appear to represent ‘progress’. But consensus is ­pernicious. The equivocal nature of technocratic language, and thus the terms of the consensus, act to insulate those in power from the risk of having defined obligations and responsibilities. This has the effect of disaggregating power from accountability, by putting into circulation claims to what is, and what ought to be, that prove proverbial Teflon to critique. The apparent technocratic consensus around intrinsically equivocal themes such as ‘climate-induced migration’, and the absence of strongly opposed ideologies, is therefore a ‘frenemy’ – perhaps more dangerous for the open society than the outright enemies Karl Popper identified. As Bacon wrote, ‘a false friend is more dangerous than an open enemy’.72 Themes such as ‘climate-induced migration’ may be well-meaning in sentiment, but they are not ethically meaningful. Worse, in their very ambiguity, they are open to expedient use and abuse by those in power. In other words, far from being the means by which we can address our societal problems, equivocal themes like ‘climate-induced migration’ are symptomatic of the f­undamental problem that we face: the challenge of keeping power accountable.

IV. CONCLUSION The discussion of ‘climate migration’ in this chapter acts as a case study that is illustrative of the much more pervasive problem of equivocal claims in an ‘open society’ context. That is, the problem that equivocal claims about what is, and what ought to be, disaggregate power from accountability, thereby violating the central tenet of the political system of an ‘open’

72   N.A. Jeffares and M. Gray (eds.), Dictionary of Quotations (Harper Collins, 1995), at 35.

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66  Research handbook on climate change, migration and the law society. In the face of this problem, developing an epidemiological h ­ euristic to process such equivocal categories is surely of crucial import, for it would provide us with the tools to put the principle of constant v­ igilance  – so necessary for the maintenance of an open society – into ­practice. In encouraging us to think ‘processively’ rather than ­ ­ ‘productively’, this chapter is suggesting that we need not ‘think different things’, but rather, ‘think differently’. Suggesting that we ‘think differently’ in this way is, of course, at crosspurposes with a research and policy culture oriented to reconciling our words with the world, so that we may then act upon the world, changing it and, it is hoped, improving it. It is this chapter’s contention, however, that this ‘will to knowledge’, about what is, or what ought to be, is c­ onstitutive of the problems we face, rather than the means by which we will resolve our problems. Arriving at ‘true’ knowledge about ‘climate-induced m ­ igration’ that can be of ‘use’ to policy-makers is, in my view, impossible. That such terms and aspirations circulate at all can, however, lead to their abuse. We would perhaps do more for the good of society if we endeavoured to process such terms, thereby dissolving them from our cultural imagination, than if we simply endeavoured to produce such terms. As such, this chapter has attempted to gain a perspective, shorn of the sentiment that infuses the substantive discussion of ‘climate-induced migration’, allowing us to examine the assumptions on which a d ­ iscussion of the theme is founded. The chapter is a reminder of the need to approach newly reified categories with a degree of dispassion and healthy s­ cepticism, and to do our due diligence before we invest in them. Whether the terms in question are well meant or not, it is incumbent on us all to first ensure that our conceptual framework is meaningful. If we fail to do so, we risk wasting our time and public resources, and in doing, putting into ­circulation themes that – in their equivocal nature – are easily turned to far less salubrious ends than we might have intended.

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4.  Representation and misrepresentation of climate migrants Representation and misrepresentation of climate migrants

Carol Farbotko

INTRODUCTION Climate migration is a relatively recent issue of concern, emerging as part of debate over climate change as a global crisis. It has some traction in climate change policy, but remains a contested rather than an accepted policy category. It is perhaps better established as a concept in research and activist practices. From a perspective based in the academic theories of performativity and praxiography, the study of ‘climate migration’ is as much an exercise in understanding the institutions that stake a claim in governing groups called climate migrants, as it is in understanding mobile populations in a changing climate. A key thesis of performativity theory is that human activity, such as the production of law, is always shaped by particular cultural systems of representation.1 Performativity, according to Butler, is the ‘aspect of discourse that has the capacity to produce what it names’.2 Praxiography, meanwhile, posits that there is no ‘out-there’ reality of phenomena, such as climate migration, independent of research and policy, that can be objectively known. Instead, mobile subjects and ­changing climates can be fruitfully conceived to exist interdependently with efforts to know them.3 Climate migration is not, therefore, a fixed ‘out-there’ phenomenon. Rather, it is emergent in practices, including those that attempt to know and govern a set of subjects called ‘climate migrants’. Furthermore, there are multiple climate migrations, enacted not only in the daily lives and political activities of migrants or future migrants, but in the research, policies, documentaries and media reports that make climate migration visible and knowable. Multiple climate migrations emerge at the intersection of long-standing and anticipated mobility practices, c­ hanging

 1   See L. Fletcher, ‘. . . some distance to go’: a critical survey of Island Studies’ (2011) 17 New Literatures Review 47.  2   See J. Butler, ‘Gender as performance: An interview with Judith Butler’ (1994) 67(1) Radical Philosophy 32.  3   See A. Mol, The Body Multiple: Ontology in Medical Practice (Duke University Press, 2002).

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68  Research handbook on climate change, migration and the law climates, and attempts to know and manage these. The point is that, by tracing such multiplicities of climate migration, it becomes possible to expose, and then intervene in, the staging of particular versions of climate migration reality over alternatives.4 In this way, the dynamic conditions by which realities for particular, perhaps mobile or future mobile populations are co-created, can be understood. Both praxiography and performativity theory conceive ­representation and reality as ontologically inseparable. This chapter – using this ­perspective – therefore presents a different type of scholarship to that seeking to explain or advance policy-focussed definitional or ‘solutionoriented’ debates. Here, climate migration is an institutional and p ­ olitical ­phenomenon to be understood, even as it is shaped and shifted as a rather vexing policy and research category. Ideas about climate migration are helping to create the institutional conditions by which the realities of particular populations – both vulnerable and bureaucratic, mobile and governing – are ordered, experienced and understood. These, I contend, are as important as the conditions ‘on the ground’. The aim of this chapter is to explore how multiple ideas about ‘climate migration’ are produced, particularly the ways in which these ideas coalesce into ostensible truths in particular contexts or are variously contested as misrepresentation, not least among climate migrants themselves.5 It commences with a brief discussion of definitional debates about climate migration, followed by an exploration of the many imaginaries of climate migration. Next, the focus turns to an examination of national security as one of many possible versions of climate migration. Collective and individual agency of climate migrants are then considered, showing how performances of climate migration can be found in institutional settings, perhaps more readily than in sites of environmental risk.

I.  DEFINITIONAL DEBATES To explore the ideas of performativity and praxiography in relation to climate migration, a starting point is to observe a paradox in debates over definitional clarity about ‘climate migration’. Agreement on definition may be possible, and indeed may be emerging, at least, to reject a strict

 4   See J. Law and A. Mol, ‘Veterinary realities: what is foot and mouth disease?’ (2011) 51(1) Sociologia Ruralis 1.  5   See C. Nicholson, ‘Climate change and the politics of causal reasoning: the case of climate change and migration’ (2014) 180(2) The Geographical Journal 151.

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Representation and misrepresentation of climate migrants  ­69 notion of causality linking climate to migration events. However, there is a characteristic of complexity that seems to be both central to any prospect of definitional agreement and the very characteristic that makes climate migration empirically elusive.6 In short, while climate migration is understood as a complex nexus of economic, social, cultural and political – as well as environmental – factors that contribute to mobility associated with climate change, locating actual climate migrant populations, at least in the present, remains an almost impossible project.7 Climate migrants cannot be identified by particular trajectories of movement, since these are varied, for example, circular rural-urban household migrations,8 international individual labour and education migrations,9 and locally ­relocating ­communities.10 Movement may be away from, or towards, spaces of ­environmental risk.11 Furthermore, climate migration can involve people who are already mobile, while immobilities can be climate related too, ­particularly among those that are highly vulnerable. Immobilities are also said to depend as much as mobilities on the interlinked political, cultural and social fabric in which their lives are woven, as well the environmental and economic challenges they face.12 Further, climate migrants cannot be identified by application of an instrument of international law, as with those displaced by political persecution or war. Finally, much anticipated climate migration has not happened yet: it is currently a projection, a scenario, a statistical probability of increasing risk, for example, drought – these technologies of science are very difficult to pin to specific, identifiable people and events.13 The point here is not to refute or confirm climate   See A. Baldwin, ‘Pluralising climate change and migration: an argument in favour of open futures’ (2014) 8(8) Geography Compass 516.  7   See A. Baldwin, ‘Orientalising environmental citizenship: climate change, migration and the potentiality of race’ (2012) 16(5–6) Citizenship Studies 625.  8   See H. Ransan-Cooper, ‘The role of human agency in environmental change and mobility: a case study of environmental migration in Southeast Philippines’ (2016) 2(2) Environmental Sociology 132.  9   See L. O’Brien, ‘Migrating with dignity,’ a study of the Kiribati-Australia nursing initiative (KANI), University of Kansas (2013). 10   See J. Campbell, ‘Climate-induced community relocation in the Pacific: the meaning and importance of land’ in Jane McAdam (ed.), Climate Change and Displacement: Multidisciplinary Perspectives (Oxford University Press, 2010) 191. 11   See A. Geddes et al., ‘Migration, environmental change, and the “­ challenges of governance”’ (2012) 30(6) Environment and Planning C: Government and Policy 951. 12   See R. Black et al., ‘Migration, immobility and displacement outcomes ­following extreme events’ (2013) 27 Environmental Science & Policy S32. 13   See A. Baldwin et al., ‘Securitizing “climate refugees”: the futurology of climate-induced migration’ (2014) 2(2) Critical Studies on Security 121.  6

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70  Research handbook on climate change, migration and the law migration as an empirical reality. Rather, to observe that ‘climate migrants’ seem to elude attempts to locate, know and govern them. Indeed, an ­argument can be made that climate migration is currently largely (although not entirely, as will be explored below) conceptual, existing in ­theoretical development, scenario-building of climate-change effects, policy-related discussions, and a (very) few actual laws and policies. As an issue ­increasingly being formalised on policy agendas, however, this conceptual dominance is likely to shift towards the practical, as policies and programs begin to identify and respond to mobile groups.14

II.  MULTIPLE CLIMATE MIGRATIONS To better understand the multiple realities of climate migration, it is useful to question how its subjects are being conceptually ordered. Drawing on different critical theories such as Marxism, critical race theory, critical development theory, postcolonial theory, feminist theory and Foucauldian biopolitics, social scientists have demonstrated the positioning of climate migrants in various social and political hierarchies. For example, they are imagined as ‘destabilising subjects bearing down on the present from the future’.15 Governed in terms of resilience, their political space is ‘reduced to the question of “to stay or to go”; to live or to die’.16 They are both a vulnerable Other and simultaneously are ascribed as having an ­ ‘enormous potential for disorder and disruption on the planet’.17 They are an ­ embodiment of a security threat to the Global North, ­conveniently ­conjured in security reports to further the interests of private defence ­contractors and anti-immigration lobbyists.18 They are imagined to possess fewer reproductive rights than migratory animals.19 They appear

14   See C. Vlassopoulos, Defining Environmental Migration in the Climate Change Era: Problem, Consequence or Solution? Disentangling Migration and Climate Change (Springer, 2013) 145. 15   See Baldwin (2012), supra note 7. 16   See C. Methmann and A. Oels, ‘From “fearing” to “empowering” climate refugees: Governing climate-induced migration in the name of resilience’ (2015) 46(1) Security Dialogue 51. 17   See C. Methmann, ‘Visualizing climate-refugees: race, vulnerability, and resilience in global liberal politics’ (2014) 8(4) International Political Sociology 416. 18   See B. Hartmann, ‘Rethinking climate refugees and climate conflict: ­rhetoric, reality and the politics of policy discourse’ (2010) 22(2) Journal of International Development 233. 19   See J. Reid, ‘Climate, migration, and sex: The biopolitics of climate-induced migration’ (2014) 2(2) Critical Studies on Security 196.

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Representation and misrepresentation of climate migrants  ­71 as ­perpetrators of cross-border violence on the basis of dubious data and ideology.20 They are hero-victims in white environmentalist agendas.21 It is not unheard of for climate-change campaigners to see green potential in mobilizing a climate refugee ‘threat’, to prompt consumer-citizens into action on climate change.22 They are sources of mobile labour for ­capitalist expansion.23 They are considered by some as expendable in the pursuit of proof of climate change that their displacement might offer to climate sceptics.24 They have been targeted for relocation by national governments concerned with reducing services to remote regions.25 They have been victim-blamed for presuming to inhabit hazardous environments.26 These imaginaries at times involve the lives and worlds of specifically named potentially mobile climate-vulnerable populations, as well as ideas about climate migratory populations in the abstract. Climate migrants, current and future, have also been subjects of ­proposed radical new international legal frameworks for ex-situ s­ overeignty.27 They have been named as deserving recipients of international ­hospitality.28 They  have been recognised as pioneering climate change mitigation ­lobbyists in the international arena.29 They are regarded as beneficiaries of ­compassion and ‘climate justice’ on a global scale.30 They can be agents   See G. Bettini, ‘Climate barbarians at the gate? A critique of apocalyptic narratives on “climate refugees”’ (2013) 45 Geoforum 63. 21   See C. Farbotko, ‘“The global warming clock is ticking so see these places while you can”: Voyeuristic tourism and model environmental citizens on Tuvalu’s disappearing islands’ (2010) 31(2) Singapore Journal of Tropical Geography 224. 22   See E. Stratford et al., ‘Reading Suvendrini Perera’s Australia and the insular imagination’ (2011) 30(6) Political Geography 329. 23   See R. Felli, ‘Managing climate insecurity by ensuring continuous capital accumulation: “climate refugees” and “climate migrants”’ (2013) 18(3) New Political Economy 337. 24   See C. Farbotko, ‘Wishful sinking: disappearing islands, climate refugees and cosmopolitan experimentation’ (2010) 51(1) Asia Pacific Viewpoint 47. 25   See U. Kothari, ‘Political discourses of climate change and migration: ­resettlement policies in the Maldives’ (2014) 180(2) The Geographical Journal 130. 26   See J. Barnett and J. Campbell, Climate Change and Small Island States: Power, Knowledge, and the South Pacific (Earthscan, 2010). 27   See M. Burkett, ‘The Nation Ex-Situ: On climate change, deterritorialized nationhood and the post-climate era’ (2011) 2(3) Climate Law 345. 28   See N. Clark, ‘Acquiescence: fluid realities and planned retreat’ (2010) 4 Reading Room: A Journal of Art and Culture 42. 29   See E. Shibuya, ‘“Roaring mice against the tide”: The South Pacific Islands and agenda-building on global warming’ (1996) Pacific Affairs 541. 30   See S. Klepp and J. Herbeck, ‘The politics of environmental migration and climate justice in the Pacific region’ (2016) 1 Journal of Human Rights and the Environment 54. 20

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72  Research handbook on climate change, migration and the law of their own economic destinies in the face of considerable environmental risk.31 Some are peaceful advocates for climate change mitigation and adaptation efforts, particularly through performance arts.32 They have imagined and pioneered a policy for migrating with dignity in a ­changing climate.33 They have forged new geopolitical identities and democratic practices.34 They wish to be viewed as ‘proactive, self-determining, and active agents of change’.35 They do not wish to be identified as ‘climate refugees’.36 Female activists from possibly mobile populations reflect their vulnerability back to the international community in terms of its weakness to act on climate change issues broadly.37 Such representations of climate migrants are always contestable, and certain representations find footings in some arenas and not others. Mayer,38 for example, predicts that policy approaches to climate m ­ igration are likely to become more highly securitised than humanitarian, given that fear operates powerfully to advance self-protection over empathy. Such an outlook ostensibly accords with dominant neoliberal values, at least in much of the Global North. Yet Felli has argued divergently that it is an adaptive mobile subject enrolled into global processes of capital ­accumulation that fits most readily into the neoliberal ­paradigm.39 However, international and national governance systems consist of humanitarian, economic and military institutions, which coexist and   See K. E. McNamara et al., ‘Insecure hope: the challenges faced by urban slum dwellers in Bhola Slum, Bangladesh’ (2015) Migration and Development 1. 32   See C. E. Steiner, ‘A sea of warriors: performing an identity of resilience and empowerment in the face of climate change in the Pacific’ (2015) 27(1) The Contemporary Pacific 147. 33   See K. E. McNamara, ‘Cross-border migration with dignity in Kiribati’ (2015) 49 Forced Migration Review 62. 34   See E. Hirsch, ‘“It won’t be any good to have democracy if we don’t have a country”: Climate change and the politics of synecdoche in the Maldives’ (2015) 35 Global Environmental Change 190. 35   See T. Dreher and M. Voyer, ‘Climate refugees or migrants? Contesting media frames on climate justice in the Pacific’ (2015) 9(1) Environmental Communication 58. 36   See K. E. McNamara and C. Gibson ‘“We do not want to leave our land”: Pacific ambassadors at the United Nations resist the category of “climate ­refugees”’ (2009) 40(3) Geoforum 475. 37   See H. Mansfield, ‘Discourses of vulnerability: Kiribati, I-Kiribati women and forced migration due to climate change’ (A Thesis Submitted to Victoria University of Wellington in fulfilment of the requirements for the degree of Master of Arts in Pacific Studies, 2012). 38   See B. Mayer, ‘“Environmental migration” as advocacy: is it going to work?’ (2014) 29(2) Refuge 27. 39   See Felli, supra note 23. 31

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Representation and misrepresentation of climate migrants  ­73 overlap, despite inconsistencies in ideology and values, but which also change over time, such as in pre- and post-disaster periods. Imaginaries of climate migrants, furthermore, are themselves ‘mobile’: ‘victims of environmental degradation in one place re-emerge as agents of their own good fortune in distant labour markets, or re-victimised [or as a threat to security] in places of greater dystopia’.40 From a praxiographic perspective, it should also be recognised that ­contestation over climate migration is, in part, a function of a c­ ontinued lack of formal governance mechanisms that recognise something called ‘climate migration’. While enjoying lively attention in what are u ­ ltimately non-mainstream corners of policy, academic and media debate, climate migration has long been marginalised from central institutions of ­governance. Few states have amended their immigration laws, for instance, to accommodate recognition, or provision for facilitation of, climate migration. While focus on mitigation of greenhouse gas emissions in ­ the United Nations Framework Agenda on Climate Change commenced in the 1980s, it was only in 2009 that migration was formally ­recognised in this arena. In the absence, furthermore, of an institutionalised ­mechanism for individual (rather than collective) categorisation, as is the case for political refugees, ‘climate migrant’ remains an abstracted analytical ­ ­category, rather than an identity or a (potential) legal status for particular individuals or communities. Representation is never static, but is produced and contested in the ever-changing landscape of knowledge and politics grappling with climate migration. Multiple representations, however, can coalesce, in the context of prevailing values and ideologies, into what counts as a basis for policy debate (and what does not).41 It is thus instructive to examine how ­particular ‘truths’ are established and challenged. The rhetoric, and indeed sometimes sensationalism, surrounding climate change and migration are objects of interest in their own right, as discourses with effects on the ­populations named as potentially mobile.42 Certain accounts, ­characterized by hyperbole, have cemented as truths and indeed an a­ pocalyptic ­imaginary underlies much representation, across academia, popular science and

40   See H. Ransan-Cooper et al., ‘Being(s) framed: the means and ends of framing environmental migrants’ (2015) 35 Global Environmental Change 106. 41   See M. Hajer and D. Laws, ‘Ordering through discourse’ in M. Moran, M. Rein and R. E. Goodin (eds.), The Oxford Handbook of Public Policy (Oxford University Press, 2006) 249. 42   See C. Farbotko and H. Lazrus, ‘The first climate refugees? Contesting global narratives of climate change in Tuvalu’ (2012) 22(2) Global Environmental Change 382.

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74  Research handbook on climate change, migration and the law policy.43 For communities in the Maldives, for instance, the future-oriented crisis narratives of their political elite do not match existing, quite successful (in the short- to medium-term), local adaptation strategies.44 Accounts of climate migration in the commercial media focussed on the Pacific’s low-lying islands, to take another example, have become the sole basis of a purportedly scientific work on climate change, described by Wolfgang Kempf as ‘less an appropriate representation of disaster than a disaster of representation’.45 More substantively, in places as diverse as Nanumea (Tuvalu) and Shishmaref (Alaska), the identification of climate change victims has triggered ‘the withdrawal of infrastructure investment by ­government and non-governmental agencies’.46

III. PERFORMING CLIMATE MIGRATION FOR ‘SECURITY’ It was an ecologist named Norman Myers who did a great deal to raise the concept of climate/environmental migration into the policy sphere, writing mainly in the 1990s. However, some of his work was j­ournalistic rather than peer-reviewed, and some has since been discredited for c­ irculating irresponsibly high predictions of future numbers of ­ ­ environmental migrants based on dubious data.47 The language of his claims, however, was influential in mobilising an idea of the environmental migrant as a racialised ‘other’: a bringer of disease, disorder, and incompatible c­ ultural differences which might lead to conflict and political breakdown.48 The climate migrant was imagined to originate only in the Global South, with associated ‘pressure’ on the Global North as potential hosts. Climate migrants were identified as potentially bearers of conflict, and their place was deemed to be always out of place, threatening the borders of the North.   See Bettini, supra note 20.   See A. Arnall and U. Kothari, ‘Challenging climate change and migration discourse: different understandings of timescale and temporality in the Maldives’ (2015) 31 Global Environmental Change 199. 45   See W. Kempf, ‘Representation as disaster: mapping islands, climate change and displacement in Oceania’ (2015) 38(1–2) Pacific Studies 200. 46   See E. Marino and H. Lazrus, ‘Migration or forced displacement? The complex choices of climate change and disaster migrants in Shishmaref, Alaska and Nanumea, Tuvalu’ (2015) 74(4) Human Organization 341. 47   See e.g. Bettini, supra note 20. 48   See E. Kelly, ‘A rough climate for migration’ (2011) 23 Alternate Routes: A Journal of Critical Social Research 59. 43 44

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Representation and misrepresentation of climate migrants  ­75 A prominent construction of environmental change and human ­mobility thus posits a ‘security risk’. The often seemingly faceless and voiceless masses of mobile poor are ‘climate barbarians at the gate’.49 They embody a danger for receiving states, not for the displaced themselves. This framing has been legitimised in part by the Intergovernmental Panel on Climate Change, in which early reports cited Myers’ work.50 But more broadly, such a positioning of climate migration is legitimised by widely taken-forgranted geopolitical framings that posit a North-South axis of ­security. The supposedly rational North tends to be positioned n ­ ormatively in control in relation to ‘chaotic’ southern states. Through agendas of military intervention, development and modernisation, sovereignty in the Global North seems to be under threat.51 The point is that there is nothing ‘natural’ or inevitable about the ­securitisation of climate migration. Rather, it is one of multiple ­possibilities, one in which particular claims can be logically made, such as ‘climate change threatens to significantly increase human movement’, often leaving unexplained who and what is perceived as being threatened. According to Barnett, the security frame places ‘solutions’ to environmental migration and environmental change logically within the realm of the military and the protection of sovereignty rather than as a global commons problem and an issue for foreign policy.52 Central to the reproduction of this particular knowledge of climate migration in places such as Australia, where humanitarian migration is politicised and policy is focussed on deterring international migrants, is the question of opening or closing national borders to ‘climate refugees’. Inhabitants of low-lying islands from the Pacific, for example, are not arriving en masse at Australian or New Zealand borders. Yet there is a disturbing anticipation within the security discourse, that they will do so in the near future, like boat people seeking humanitarian assistance before them.53 However, there is no particular reason to claim that Pacific people prioritise individual humanitarian assistance in Australia or New

  See Bettini, supra note 20.   See e.g. R. T. Watson et al., Climate Change 1995 Impacts, Adaptations and Mitigation of Climate Change: Scientific-technical Analysis (Cambridge University Press, 1996). 51   See S. Chaturvedi and T. Doyle, ‘Geopolitics of fear and the emergence of “climate refugees”: imaginative geographies of climate change and displacements in Bangladesh’ (2010) 6(2) Journal of the Indian Ocean Region 206. 52   See J. Barnett, ‘Security and climate change’ (2003) 13(1) Global Environmental Change 7. 53   See Stratford et al., supra note 22. 49 50

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76  Research handbook on climate change, migration and the law Zealand. On the contrary, Pacific governments and activists alike tend to seek state- or community-based solutions to climate mobility issues, and those of climate change more broadly. The Alliance of Small Island States (AOSIS), for instance, of which Pacific governments formed a part, has lobbied for many years for mitigation commitments, not migration rights, in international climate negotiations. AOSIS and its constituent state ­representatives argued for global emissions reductions significant enough to minimise sea level rise and thus prevent large-scale migration.54 AOSIS positioned itself morally in terms of emissions innocence, and attempted to bolster this position with rhetoric invoking climate change as a form of terrorism against their populations.55 Thus the security discourse can be invoked by different subjects in policy debates, for different purposes. Also countering the security frame are organisations without a traditional security focus, such as humanitarian groups, migrant support networks and some environmental non-government organisations. Articulations of an alternative to the security discourse in these arenas are largely made in terms of ‘human security’. At first, policy debates focussed on international legal instruments to protect ‘climate refugees’. Ostensibly, these were victims, and the North was imagined as a space of salvation for climate change victims on the move, provider of compassion and protection for helpless ‘Others’. And yet, an underlying motivation for the c­irculation of ‘victim’ narratives was often to build evidence for the need to reduce carbon emissions, harnessing social compassion for environmental ends, and ultimately, to prevent mobility by preventing climate change (or other environmental) impacts. The question of whether vulnerable groups would be best ‘saved’ by staying in place (as many of them articulated themselves) or by being received into the North is therefore answered ambivalently. The focus of human security turned to adaptation and social resilience through non-state and non-militaristic.56 Migration trajectories, however, must end somewhere according to the human security discourse, and in practice, raise the need for policies on intra- and cross-border climate migration that enable political agency, and not simply provide corporeal assistance in destination areas. The camps and detention centres that too often shape the experience of displaced populations loom large in the policy gap here, yet are rarely discussed in environmental migration discourse. According to Angela Oels’ application of Agamben, when the governing of the d ­ isplaced   See Shibuya, supra note 29.   See Stratford et al., supra note 22. 56   See L. Elliott, ‘Climate migration and climate migrants: what threat, whose security?’ in Jane McAdam (ed.), Climate Change and Displacement: Multidisciplinary Perspectives (Oxford University Press, 2010). 54 55

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Representation and misrepresentation of climate migrants  ­77 is carried out outside the state, it is necessary to be wary of spaces of ­exception where lives might be saved, but political voices are silenced.57

IV.  CONTEXT AND AGENCY When the everyday lives and voiced concerns of migrants are brought into the picture, a more nuanced representation of the complex space in which institutions try to govern ‘climate migration’ can be apprehended. The question of whether the people vulnerable to displacement have a clear voice in the way their futures are being imagined by others, albeit sometimes with the best of intentions for their legal protection and advancing sustainable livelihoods, is often bypassed. It is instructive to consider what happens to representation when context is taken into account. The news media, for example, often insists that Pacific mobility associated with climate change involves passive victims. However, such a narrative makes little sense when a cultural revival of ancient sailing technologies and practices in the Pacific is taken seriously. This revival centralises identities of islanders as great seafarers who tame the ocean, through their own practices of exploration and colonisation of islands previously uninhabited by humans, rather than the ocean claiming them. Neither do Pacific islanders imagined as passive victims accord with the history of unplanned journeys which also regularly occur in ­ contemporary and historical everyday Pacific life. The strength of Pacific people is clear in a different way: their knowledge of survival at sea is culturally ­embedded, serving not just corporeal survival but perhaps also political survival in a world of forces beyond the control of island communities.58 Even more significant is what happens when (possible future) climate migrants themselves speak and act. For example, some are selforganising and forming new types of political spaces.59 Here is the   See A. Oels, ‘Saving climate refugees as bare life? A theory-based critique of refugee status for climate-induced migrants’ (paper presented at the ESFZiF-Bielefeld Conference on Environmental Degradation and Conflict: From Vulnerabilities to Capabilities, Center for Interdisciplinary Research, Bielefeld, Germany, 2010). 58   See C. Farbotko, ‘Skilful seafarers, oceanic drifters or climate refugees? Pacific people, news value and the climate refugee crisis’ in K. Moore et al., Migrations and the Media (Peter Lang Publishing, 2012) 119. 59   See Mansfield, supra note 37; O’Brien, supra note 9; Arnall and Kothari, supra note 44; Dreher and Voyer, supra note 35; Hirsch, supra note 34; McNamara, supra note 33; Steiner, supra note 32. 57

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78  Research handbook on climate change, migration and the law state-based example of Kiribati, whose government under the Tong ­administration (2003–15) sees migration as a viable and pragmatic, if not wholly ­desirable, long-term response to island inundation by sea level rise. As a part of an integrated set of climate change strategies, the aim of the Kiribati ‘Migration With Dignity’ policy is to prevent forced ­migration when possible, and to promote human security when migration is not ­ avoidable. Gradual economic and education-based international ­migration is promoted, seeking to minimise the need for humanitarian responses to mobility associated with a disaster. New opportunities for voluntary migration are negotiated under bilateral ­ migration ­agreements, building also on established international labour mobility patterns such as those of i-Kiribati sea-farers.60 Under this policy, a g ­ eographic d ­ estination for migration is of secondary importance to social t­ rajectories: improving livelihoods through the up-building of internationally competitive skills. It is however noteworthy that, while the ‘Migration With Dignity’ approach is islander-led, it also fits well within a neoliberal world in which adaptable mobile subjects make themselves useful to global capital markets.61 It also perhaps represents a politically and symbolically productive moment when the climate migrant as ‘security risk’ is quashed by the agency of the climate migrant subject, dodging potentially militarised solutions. Yet a history of exploitation in destination areas of immigrant workers from impoverished states with high unemployment rates such as Bangladesh and the Philippines rings certain alarm bells. The ‘Migration With Dignity’ policy does not explicitly address the question of the political status and agency of Kiribati’s mobile subjects, nor does it address entrenched patterns of low pay and poor conditions for international workers. Will there be a new form of ex situ sovereignty needed, for example, as Burkett has outlined, with rights to self-determination and sovereignty continuing even when the islands are uninhabitable?62 Can sovereignty become detached from territory and attached to a mobile, politically cohesive, group of people who already share a culture, a history and an identity?

  M. Borovnik, ‘Seafarers’ “maritime culture” and the “I-Kiribati way of life”: the formation of flexible identities?’ (2005) 26(2) Singapore Journal of Tropical Geography 132. 61  Felli, supra note 23. 62   See Burkett, supra note 27. 60

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Representation and misrepresentation of climate migrants  ­79

V.  INDIVIDUAL AGENCY While the question of collective political identity remains to be answered, it is interesting to turn to individual claims to a climate migrant identity.63 Pacific migrants, in the context of enabling immigration laws, lawyers and judges who test their merits in the court system, for example, have selfidentified as ‘climate migrants’ in New Zealand. A June 2014 decision of the New Zealand Immigration and Protection Tribunal granted residency status in New Zealand to a Tuvaluan family on humanitarian grounds, citing strong links to extended family members already residing in New Zealand [NZIPT501370-371].64 Part of the husband’s argument stated that, on the grounds of climate-change related environmental risk, ‘he fear[ed] for his own and particularly his wife and children’s safety’ if they were deported to Tuvalu [NZIPT 800517-520].65 The family had no access to land in Tuvalu, and remembered drinking water contaminated with rust provided by the Tuvalu government during a drought. This entry in the legal record is one of the few instances where climate migrants are officially identifiable, culturally and politically, if not legally. An identifiable set of individuals formally stating their overwhelming fear of environmental risk in their ancestral islands, combined with a migration history from Tuvalu to New Zealand, is one of very few instances of self-identification as climate migrants in international governance. If the family was granted the right to remain in New Zealand, this was however on humanitarian grounds not directly related to climate change.66 Interestingly, an i-Kiribati applicant for residency in New Zealand on refugee grounds was also heard in the Immigration and Protection Tribunal of New Zealand a year earlier than the Tuvaluan case. The i-Kiribati individual cited worsening environmental conditions in Kiribati related to climate change. The applicant had not only witnessed these changes himself, he ‘was concerned that the information . . . from television, media and from other sources meant that there would be no possibility of living on Tarawa [the capital of Kiribati]’ [NZIPT 800413].67 The media played a role in ‘educating’ a migrant about environmental risk in the country of

63   See C. Farbotko et al., ‘Climate migrants and new identities? The geopolitics of embracing or rejecting mobility’ (2015) 17 Social & Cultural Geography 533. 64   See Tuvalu, NZIPT, Immigration and Protection Tribunal New Zealand (2014). 65  Ibid. 66   See J. McAdam, No ‘Climate Refugees’ in New Zealand (Brookings, 2014). 67   See AF (Kiribati) NNZIPT 800413, Immigration and Protection Tribunal New Zealand (2013).

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80  Research handbook on climate change, migration and the law origin, highly mediated, it is probable, by advice of lawyers. The category of climate migrant was also mobilised here to attempt to secure legal ­recognition of a right to reside in a receiving nation-state, although in this latter case the attempt was unsuccessful on every ground. Unsurprisingly, no security logic was invoked in these legal arguments for international protection. Rather, it was within a humanitarian framework that these events unfolded legally, and with which the subjects most closely identified at this moment in their personal history. The point is that, through a performative combination of representation and practice, an abstract notion of ‘climate migration’ can become ‘real’ for particular ­individuals, at least at a particularly important legal moment. Arguably, these test cases were political as well as legal acts. From a ­performativity and praxiography perspective, ‘climate migrants’ are observable here because a particular constellation of narratives about climate ­migration was taken up and put to official work, by individuals for whom it made sense in the context of their lifeworlds, in a legal setting where such formalisation was feasible. The capacity of the legal system in New ­ Zealand to decide on mobility associated with climate risk within the state system is significant, if one is interested in the political agency of climate migrants. The ability of ‘climate migrants’ in New Zealand to appear in court and voice their concerns in a receiving states’ internal legal arena is important, even if the court does not necessarily rule in their favour. In contrast, the informal discourse in Australia continues to position climate migration as somehow outside the state’s issues of concern, in ­accordance with the Australian policy of either offshore or onshore detention. In New Zealand, climate migrants’ own perspectives on their mobilities in the context of environmental risk can be officially recorded and perhaps engage greater moral and political awareness, if not legal precedent. What remains is for similar opportunities for collective voices to be heard in the international justice system, and in other receiving states. Performances of climate migration, in this case were more readily found in an institutional setting post-migration, rather than, perhaps as might be expected, in sites of environmental risk prior to a migration event.

VI. CONCLUSION On the spectrum away from ‘misrepresentation’ and towards ‘­ representation’ of climate migration, it is not just complexity but agency which must be taken into account. The often implicit positioning of populations, or even humanity at large, as either fundamentally sedentary or mobile is important here. So too the point that mobility and immobility can reflect both long-

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Representation and misrepresentation of climate migrants  ­81 standing customs and new opportunities and challenges in a globalised world, and yet framings of mobility, particularly among indigenous and vulnerable populations, are often underscored by an a­ ssumption that the ‘uprootedness’ of such people is somehow unnatural.68 If environmental change can contribute to immobility as well as ­mobility, and migration can contribute to livelihoods as well as be a result of l­ivelihood decline, whether mobility feels like uprootedness, opportunity, or a complex mixture of both for those involved will always depend on context and agency. And yet the ways in which migration trajectories are depicted  – even in would-be objective science – can be a reflection of very specific – often Eurocentric – cultural and political values.69 These a­ ssumptions, if not examined and explicated, can result in mismatch between the concerns of affected ­populations and purported ‘solutions’.

68   See L. Malkki, ‘National geographic: the rooting of peoples and the t­erritorialization of national identity among scholars and refugees’ (1992) 7(1) Cultural Anthropology 24. 69   See Chaturvedi and Doyle, supra note 51; Farbotko, supra note 58.

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PART II EXISTING LAWS AND INSTITUTIONS

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5.  The inadequacy of international refugee law in response to environmental migration The inadequacy of international refugee law

Christel Cournil

INTRODUCTION In its Chapter 12 on human security, the latest Intergovernmental Panel on Climate Change (IPCC) report recognizes, once more, the interrelations between climate change and migration.1 According to recent ­estimates from the Internal Displacement Monitoring Centre (IDMC),2 more than 20 million people have been displaced on average each year since 2008, due to weather-induced disasters. These estimates do not include the ‘gradual’ displacements due to drought or those which result less directly from ­environmental events. The projections for 2050 are that more than 200 million people will be forced to move as a result of ­environmental disasters. Although environmental changes clearly impact on human m ­ obility, it remains difficult to identify clear, distinct or isolated m ­ igration ­scenarios because the socio-economic and political causes of p ­ opulation ­displacements are complex and interrelated.3 Difficulties in ­conceptualizing the climate/environmental/ecological-displaced/migrants/refugees4 hinder  1  IPCC, Climate Change 2014: Impacts, Adaptation, and Vulnerability, Working Group II Contribution to the IPCC Fifth Assessment Report (Cambridge University Press, 2014), chapter 12:

Climate change is projected to increase the displacement of people throughout this century. The risk of displacement increases when populations who lack the resources to migrate experience higher exposure to extreme weather events, in both rural and urban areas, particularly in low-income developing countries. Changes in migration patterns can be responses to both extreme weather events and longer-term climate variability and change, and migration can also be an effective adaptation strategy.   IDMC, ‘Global Estimation 2015’ (July 2015) at 109.   Foresight project, ‘Migration and global environmental change: future challenges and opportunities’, Government Office for Science (20 October 2011), at 234.  4   Christel Cournil and Benoît Mayer, Les migrations environnementales. Enjeux et gouvernance, (Paris Presses Sciences Po, 2014).  2  3

85

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86  Research handbook on climate change, migration and the law attempts to define5 or categorize ­environmental migration. The concepts of ‘environmental migration’ or even ‘climate migration’ have nevertheless been gradually mobilized in the support of political arguments relating to the fight against climate change, to humanitarian aid, migration and even to promote national security or economic interests.6 The doctrine has largely shown that it is inappropriate, in the current state of the law, to describe people who move due to an environmental factors as ‘environmental refugees’.7 As a general rule, these people do not fall within the legal definition in the ‘Geneva’ Convention ­relating to the Status of Refugees8 of 28 July 1951, an international treaty r­atified by 148 States. Adopted under the auspices of the United Nations (UN), the Geneva Convention and its 1967 Protocol9 define the ­international framework of refugee law. The Convention essentially provides a ­universal definition of the refugee in Article 1.A.2. (modified by the Protocol) along with a negative obligation under the principle of ­non-refoulement and a ‘declaration of rights’ for refugees. This ­protection under the Convention was accompanied by the concomitant creation of a ­protective body, the High Commissioner for Refugees (UNHCR). The concept of ‘climate refugee’ has been largely rejected in the last decade, especially by legal scholars, as a misnomer.10 However, it is now defended by some, such as the political scientist François Gemenne.11 According to Gemenne, the Anthropocene and its environmental changes have become one of the main factors of migration and the displacement of populations, who are the victims of these changes. Gemenne uses the term of ‘climate refugees’ not so much as an analytical tool, but rather as an advocacy instrument to highlight the political aspects of migrants,

 5   Chloé Vlassopoulos, ‘Des migrants environnementaux aux migrants climatiques: un enjeu définitionnel complexe’ (2012) 88 Cultures et Conflits 7.  6   Benoît Mayer, The Concept of Climate Migration: Advocacies and its Prospects (Edward Elgar, 2016).  7   This term was officially used for the first time by E. El-Hinnawi, Environmental Refugees (United Nations Environment Programme,1985).  8   Geneva Convention relating to the Status of Refugees, adopted on 28 July 1951 by 1951 Conference of Plenipotentiaries on the Status of Refugees and Stateless Persons; convened by the United Nations pursuant to resolution 429 (V) of the General Assembly on 14 December 1950. Entered into force on 22 April 1954 pursuant to art. 43.  9   Protocol Relating to the Status of Refugees, 606 UNTS 267, 13 January 1967. 10   Jane McAdam, ‘From Economic Refugees to Climate Refugees?’ (2009) 10(2) Melbourne Journal of International Law 579. 11   See François Gemenne, Chapter 18 in this volume.

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The inadequacy of international refugee law  ­87 as victims of industrial development. Through this political argument, Gemenne aims to reactivate one of the central elements of the spirit of international refugee law, based on the need for international protection for a new victim. For their part, the populations of some Pacific States have rejected this name as being too far from their reality and conveying an overly negative image of their fate.12 For about a decade, the protection needs of persons displaced due to environmental or climate change have been identified and have been becoming more visible in international negotiations, expert and academic studies, as well as within the advocacy of human rights and ­environmental non-governmental organizations (NGOs). The potential of possible tools (public policies and legal instruments) but also the challenges of international governance and the role of the key actors in setting the agenda of ­environmental migration have been identified and studied.13 Possible actions, initiatives and international cooperation are gradually ­emerging at the international or regional level around the issues of the protection of populations displaced by environmental or climate factors. The Nansen Initiative14 needs in particular to be mentioned as the first intergovernmental action towards the protection of environmentally­ displaced people. This project was jointly launched by Norway and Switzerland in a side event to the UNHCR’s Executive Committee meeting in Geneva on 2 October 2012. The Initiative was led by a number of States, academic institutions and civil society members, under the direction of Walter Kälin, a professor of international law and former UN rapporteur on the human rights of internally displaced persons. The initiative involved a bottom-up intergovernmental consultative process,15 the main objective of which was to compile the best practices for addressing the displacement of populations. Based on these extensive consultations, the Agenda for

  Jane McAdam and Maryanne Loughry, ‘We aren’t refugees’ Inside Story (30 June 2009), http://insidestory.org.au/we-arent-refugees. 13   Christel Cournil and Chloé Vlassopoulos (eds.), Mobilité humaine et ­environnement: Du global au local (Quæ, 2015). 14   See https://www.nanseninitiative.org/. It was launched following a major ­conference in Oslo on 6 and 7 June 2011, which led to the Nansen Principles on environmental migration. 15   Leonie Tuitjer and Émilie Chevalier, ‘L’initiative Nansen et le développement d’un agenda international de protection des populations déplacées à travers les frontières’, in Cournil and Vlassopoulos, supra note 13, 141–7. Jane McAdam, ‘From the Nansen Initiative to the Platform on Disaster Displacement: Shaping International Approaches to Climate Change, Disasters and Displacement’ (2016) 39 UNSW Law Journal 1518. 12

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88  Research handbook on climate change, migration and the law Protection16 was presented on 12 and 13 October 2015, two months before the 21st Conference of the Parties to the UN Framework Convention on Climate Change (COP21).17 It is also in this particularly rich political and legal international context that issues related to human mobility have gradually integrated into the climate negotiations.18 Migration and displacement are indeed increasingly seen as one of the symbols of the impacts of climate change on populations. The Cancún Agreements adopted in December 2010 contained the first mention of human mobility in a COP decision. Among the proposals adopted by the Ad-Hoc Working Group on the Long-Term Cooperative Action under the Convention (AWG-LCA) at this occasion, it was ­clarified that adaptation should include, ‘[m]easures to enhance understanding, coordination and cooperation with regard to climate change induced ­displacement, migration and planned relocation, where appropriate, at the national, regional and international levels’.19 On this first basis, an intense collaboration between actors or experts from different backgrounds has continued throughout the negotiations up to the COP21 in Paris. A series of proposals were developed to specify more particular ‘options’ ­regarding the governance of human mobility in the context of climate change through further COP decisions.20 References21 within the Paris Agreement enshrined the issue of displaced populations in international climate law   Agenda for the protection of cross-border displaced persons in the context of disasters and climate change, Final draft, October 2015, 45. 17   See Susan Martin, Chapter 21 in this volume. 18   Koko Warner, ‘Climate change induced displacement: adaptation policy in the context of the UNFCCC climate negotiations’ (May 2011) at 22. 19   UNFCCC Decision 1/CP.16 (2010), para. 14 (f). 20   HRC, ‘Human Mobility in the Context of Climate Change: Elements for the UNFCCC Paris Agreement’ (March 2015); Recommendations from the Advisory Group on Climate Change and Human Mobility COP 20 Lima, Peru (March 2015); Joint Submission on Activities for the Nairobi Work Programme (August 2014); Joint submission to the UNFCCC on NAPs (July 30, 2014); Joint ­ submission to the Excom of the Warsaw International Mechanism for Loss and Damage associated with Climate Change on the Excom’s draft initial two-year workplan for the implementation of the functions of the Mechanism, in ­accordance with paragraph 5 of Decision 2/CP.19 (July 1, 2014); Contribution and Potential Elements Related to Human Mobility in the Context of a Warsaw COP 19 Decision on Loss and Damage (Nov. 4, 2013). 21   The term ‘migrant’ is enshrined and inserted into the §11 of the Preamble of the Paris Agreement. While art. 8, which deals with ‘loss and damage’ is inserted into the legal agreement, it should be noted that climatic displacements are not explicitly mentioned in this article under the various more ambitious versions of the preparatory text. Climate displacements are only mentioned in the ‘Decision on the adoption of the Paris Agreement’ (decision 1/CP.21) para. 50. 16

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The inadequacy of international refugee law  ­89 and provided a legal basis22 to develop recommendations for integrated approaches to prevent and reduce displacement associated with the adverse effects of climate change, and to deal with such displacement when it occurs. Discussions on human mobility are currently ongoing and there was a call for consultations, submissions and expertise by the Loss and Damage Executive Committee in March 2016, which was to r­ ecommend actions later that year. It is thus possible to note that more developments related to the climatemigration nexus are taking place within the climate regime than within the migration regime. This can certainly be explained by the shortcomings of the concept of environmental migration, in particular its oversight of the complexity and multicausality of migration. Likewise, from the point of view of the law and its enforcement, the limitations of the international protection of refugees, internally displaced persons, or migrants generally have been largely demonstrated by the academic doctrine.23 Among the different aspects of migration law addressed in several ­contributions throughout this volume, the present chapter focuses on the limited relevance of the international protection of refugees. It examines in particular the key text that is the Geneva Convention,24 showing that this treaty is unable to address the issue of environmental migration although it may imply some possible approaches by analogy. The present ­analysis focuses on legal questions, in particular the determination of refugee status. It submits that the international protection of refugees, which ­crystallized in the immediate aftermath of the Second World War, is ­inadequate to address   Phillip Warren, ‘Evaluating the “Climate Change Displacement Coordination Facility”: How the UNFCCC Can Address Forced Migration after Paris COP21’ (April 6, 2016), http://ssrn.com/abstract52760131. 23   See recent law theses: Hélène Ragheboom, ‘The international legal status and protection of environmentally-displaced persons; a European ­perspective’ (University of Luxembourg, 2012); Aurélie Sgro, ‘Les déplacés de l’environnement à l’épreuve de la catégorisation en droit de l’Union ­européenne’ (University of Nice Sophia Antipolis, 2013); Benoît Mayer, ‘The concept of climate m ­ igration: ­adapting international law to climate change?’ (Faculty of Law National University of Singapore, September 2015); Emnet Gebre, ‘La protection internationale des déplacés en raison des changements climatiques’ (Université Capitole, June 2016). 24   Beyond the Geneva Convention, important sources of protection for refugees include several other international instruments such as the Universal Declaration on Human Rights, the International Convention on the Elimination of All Forms of Racial Discrimination, the Convention on the Rights of the Child, the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, as well as the International Covenants on Civil and Political Rights and on Economic, Social and Cultural Rights. 22

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90  Research handbook on climate change, migration and the law numerous forms of environmental and climate migrations that are currently underway and can be predicted to develop in the coming decades. Thus, section I describes the limits of the Geneva Convention in light of current realities. The following sections note in particular the obstacles resulting from the individual bases of the protection of refugees in the Geneva Convention (II), the difficulty of defining persecution when the factors forcing individuals to migrate are related to the environment (III) and the limitation of the protection of refugees to individuals c­rossing international borders (IV). Consequently, individuals displaced in the context of climate change or other environmental phenomena, even when they are ‘forced’ to flee such ­phenomena, rarely qualify for a protection as refugees under existing law.

I. THE GENEVA CONVENTION, AN ‘OUTDATED’ POST-WAR TEXT REGARDING NEW FORMS OF HUMAN MOBILITY Established in a post-war context and providing a status only to the ­‘political’ refugees who are facing persecution in their country of origin (A), the Geneva Convention is ill-adapted to the diversification of factors forcing individuals to flee (B). A.  A Dated Convention Providing Protection only to ‘Political’ Refugees Until the end of the Second World War, international law dealt with the issue of refugees without a real protection strategy and without adopting a comprehensive approach to refuge. Addressing the issue of migration on an individual case basis, international law took the origin and nationality of the asylum-seeker into consideration in the decision to grant protection. International law did not provide a list of rights to which refugees would be entitled, nor even a universal definition of a ‘refugee,’ and as a general matter it was left to States to decide how to protect human rights within their jurisdiction. This pragmatic approach on the basis of the grouping of refugees, which marked the first period in the history of international refugee protection, has quickly shown its limitations due to the emergence of new conflicts and new situations of exile. The Second World War was a turning point because it helped trigger the largest movements of ­refugees the world has ever known.25 It is in this political, socioeconomic and m ­ igratory

25   Gérard Noiriel, Réfugiés et sans papiers, la République face au droit d’asile, XIXème–XXème siècle (Pluriel, 1998), at 118.

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The inadequacy of international refugee law  ­91 context of the immediate post-war period, very different to the situation today, that the Geneva Convention was negotiated and adopted in 1951. While this document was conceived to relieve the plight of Second World War refugees in mostly Western countries,26 it has mainly served to construct a politically connotative approach and an ‘Eastern’ vision of the figure of the refugee. Indeed, as it was created in a time of a ­confrontation between the two Cold War blocs (West/East), the Geneva Convention conveys a binary approach that is particularly criticized because it is built around the ‘fear of persecution’ based on well-defined political grounds with ­ dimensions of race, religion, nationality, social group and political opinion. The affirmation of this concept of persecution is not neutral:27 it crystallized the political issues of the Convention due to the ­bipolarity of the world at the time. In short, what was built was international protection for persons in distress who were fleeing their countries due to easily ­identifiable persecution, which essentially derived from the threats of Eastern State authorities. Infringements on living ­conditions due to environmental causes were not included during the drafting process of the text, given that in the early 1950s the international ­community had not yet started to become aware of planetary degradation and its human ­consequences, which include population displacement. Such awareness began in the 1970s and accelerated in the 1990s due to the ­availability of increasingly clear information on the consequences of global ­environmental changes such as climate change and biodiversity loss, whose impact was increasing in scope and pace. In addition, the refugees, protected under the Geneva Convention, were conceived of fundamentally in opposition to so-called ‘voluntary’ or ­‘economic’ migrants, while the criteria for the distinction is ­persecution, which affects the individual’s civil and political rights rather than (directly) his or her economic and social rights.28 It should be noted that while ­violations of economic and social rights such as rights to health, education, housing and food had been proposed by some communist States during the negotiations, they were excluded from the final version. This omission has been criticized because it has led to the situation where persons fleeing difficult economic conditions or who move following a natural disaster are excluded from this status. 26   It should also be noted that the original text of the Convention contained a temporal and spatial limitation (victims of events occurring before 1 January 1951 in Europe). The 1967 Protocol abolished the restriction. 27   James C. Hathaway, The Law of Refugee Status (Butterworths, 1991), at 6. 28   Michelle Foster, International Refugee Law and Socio-Economic Rights (Cambridge University Press, 2009).

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92  Research handbook on climate change, migration and the law Ultimately, by retaining only a political conception of motivations and a restrictive view of persecution, the Geneva Convention led to a narrow, unidimensional and arguably Western-centric29 definition of the refugee, introducing arbitrary distinctions in the protection of fundamental rights.30 B.  An Outdated Text given the Diversification of Human Mobility Since the adoption of the Geneva Convention, migratory paths have changed radically, going through a profound evolution and ­diversification.31 New causes of exile have emerged since the late 1960s. The dislocation of nation States, deepening gaps in global inequalities, numerous postcolonial conflicts, demographic growth exacerbating natural disasters as well as environmental degradation and climate change have exacerbated ­migration factors and altered traditional migratory routes. Persecution itself is no longer the sole deed of totalitarian States; it may also result from the action of rebels, factions, de facto authorities or terrorist organizations. The structure of the Geneva Convention has reached the point of exhaustion. Its particular provisions no longer fulfil its ambition because circumstances have changed radically in the last six and a half decades.32 A number of States or groups of States33 have sought to extend p ­ rotection, in Europe,34 Africa,35 Latin America36 and Asia,37 through regional   Caroline Lantero, Le droit des réfugiés, Entre droits de l’homme et gestion de l’immigration (Bruylant 2011), at 22. 30  Hathaway, supra note 27. 31   Catherine Wihtol de Wenden and Madeleine Benoît-Guyod, Atlas des migrations, un équilibre mondial à inventer, collection Atlas Monde (4th ed, ­ Autrement, 2016). 32   François Crépeau, Droit d’asile: de l’hospitalité aux contrôles migratoires (Bruylant, 1995) 318. 33   Report of the Working Group on Solutions and Protection to the Forty-Second Session of the Executive Committee of the High Commissioner’s Programme (EC/SCP/64, 12 August 1991), para. 55(b). 34   Directive 2004/83/EC on minimum standards for the qualification and status of third country nationals or stateless persons as refugees or as persons who otherwise need international protection and the content of the protection granted, 29 April 2004. 35   Convention Governing the Specific Aspects of Refugee Problems in Africa, Organization of African Unity, 1001 UNTS 45, 10 September 1969, art. 1(2). 36   Cartagena Declaration on Refugees (Annual Report of the Inter-American Commission on Human Rights at 190-93 (1984-85), OEA/Ser.L/V/II.66/doc.10, rev. 1, 1984), para. 3. 37   Final Text of the AALCO’s 1966 Bangkok Principles on Status and Treatment of Refugees, adopted by the Asian-African Consultative Organization at its 40th Sessions, on 24 June 2001 in New Delhi. 29

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The inadequacy of international refugee law  ­93 c­ ooperation.38 The Arab Convention on Regulating Status of Refugees in the Arab Countries adopted on 3 September 1994, in particular, extended the protection of refugees in these countries to: every person who, inadvertently takes refuge in a country other than his or her country of origin or country of habitual residence owing to prolonged external aggression, occupation or foreign domination of a particular country or because of the occurrence of natural disasters or events seriously disturbing public order in either a part or the whole of the country.

Because it was only ever ratified by Egypt, this Convention has never entered into force. To make up for the limited number of reasons for persecution defined in the Geneva Convention and to address changes in human mobility, many host countries in charge of refugee status determination have subsequently lowered the quality of the protection to those asylum seekers they allowed within their territory. Beyond the Convention, standards of subsidiary protection39 and (even more) protection on humanitarian grounds have reduced the rights of authorized refugees to sometimes hardly more than a bare right to life. On a regional basis, instruments establishing complementary protection40 and temporary protection in cases of the mass influx of displaced persons41 have been adopted within the European Union (EU). This type of protection only very rarely42 offer protection to displaced persons as a result of sudden natural catastrophes and slowly evolving e­ nvironmental degradation. The EU directive on temporary protection has yet to be enforced. Only Finnish and Swedish laws have expanded their ­subsidiary protection   Niebla Declaration on Revitalizing the Protection of Refugees, 1 December 2001. 39   Jane McAdam, Complementary Protection in International Refugee Law (Oxford University Press, 2007); Daphné Bouteillet-Paquet, La protection ­subsidiaire des réfugiés dans l’Union européenne: un complément à la Convention de Genève? (Bruylant, 2002). 40   Directive 2011/95/EU of the European Parliament and of the Council on standards for the qualification of third-country nationals or stateless persons as beneficiaries of international protection, for a uniform status for refugees or for persons eligible for subsidiary protection, and for the content of the protection granted, 13 December 2011. 41   Council Directive 2001/55/EC on minimum standards for giving temporary protection in the event of a mass influx of displaced persons and on measures ­promoting a balance of efforts Between Member States in receiving such persons and bearing the consequences thereof, 20 July 2001, art. 5. 42   For example, Denmark has occasionally granted protection to persons of Afghan nationality fleeing drought. 38

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94  Research handbook on climate change, migration and the law to a person ‘who is unable to return to the country of origin because of an environmental disaster’43 or ‘if . . . he or she cannot return to his or her country of origin . . . as a result of an e­ nvironmental catastrophe’.44 The United States occasionally uses its Temporary Protected Status (TPS) to extend the stay of foreigners present on the US territory if their country of origin suffers an environmental disaster.45 However, TPS does not apply to individuals who seek refuge after the disaster; not does it provide any protection to the citizens of States severely affected by the impacts of slowonset environmental degradation. In addition, regional and national humanitarian protection has complemented the deficiencies of the international protection of the ­ Geneva Convention. For example, the case law of the European Court of Human Rights (ECtHR)46 recognizes ad hoc protection under Article 3 of the European Convention on Human Rights (ECHR) to persons who would be at risk of inhumane or degrading treatment if returned to their country of origin. In principle at least, such protection could benefit to people displaced because of severe environmental factors, although only in very extreme circumstances.47 A case was brought in New Zealand in 2014 by a citizen of Tuvalu claiming asylum on the ground of the impacts that climate change had on his living conditions in Tuvalu. While ad hoc protection was provided, it was more on the grounds of the applicant’s family relations in New Zealand than based on the environmental factors invoked in Tuvalu.48   Sweden’s Aliens Act, Ch. 4, s. 2, para. 3 (SFS 2005:716).   Finland’s Aliens Act (Act No. 301/2004, 30 April 2004), s. 88a(1). 45   Chelsea Krombel, ‘The Prospective Role of Temporary Protected Status: How Discretionary Designation Has Hindered the United States’ Ability to Protect Those Displaced by Environmental Disaster’ (2012) 28 Connecticut Journal of International Law 153, at 161. 46   ECtHR (Chamber), D. v the United Kingdom, 30240/96 (2 May 1997), para. 53; ECtHR, Sufi and Elmi v the United Kingdom, 8319/07 and 11449/07 (28 June 2011), para. 282. 47   See Siobhán McInerney-Lankford, Chapter 7 in this volume. 48   Immigration and Protection Tribunal of New Zealand, AD (Tuvalu), [2014] NZIPT 501370-371, para. 32: 43 44

As for the climate change issue relied on so heavily, while the Tribunal accepts that exposure to the impacts of natural disasters can, in general terms, be a humanitarian circumstance, nevertheless, the evidence in appeals such as this must establish not simply the existence of a matter of broad humanitarian concern, but that there are exceptional circumstances of a humanitarian nature such that it would be unjust or unduly harsh to deport the particular appellant from New Zealand.

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The inadequacy of international refugee law  ­95 This therefore constitutes a one-off or ad hoc provision of international protection. Similarly, according to the principle of extraordinary regularization, ­ ­ following the Tsunami disaster of 26 December 2004, the Canadian Ministry of Immigration and Citizenship had stated that it would ­accelerate the processing of immigration applications to give ­priority to those foreigners affected by the Indian Ocean tsunami and who had family links with foreign nationals residing in Canada, also on the basis of family relations.

II. THE INDIVIDUAL APPROACH OF THE CONVENTION IS UNSUITED TO ENVIRONMENTAL DISPLACEMENTS To qualify as a refugee under the Geneva Convention, an asylumseeker must be able to demonstrate the existence of a personal threat (A) ­affecting him or her individually (B). This is often impossible for ­individuals forced to migrate by environmental factors, including sudden natural disasters. A.  The Difficulty in Establishing a Personal Threat International refugee law is based on an individual approach to the causes of exile, which provides a definition of the refugee which refers to ‘any person’ as opposed to a group. The individual nature of refugee status ­recognition puts aside the general and diffuse threats of persecution, and only retains the fear of personal persecution. The specific reasons and the personal nature of the conditions on which the refugee definition was based in the Geneva Convention clearly leads to the exclusion of people fleeing threats of a private or general nature from the scope of international protection. Situations of generalized violence such as civil war or grave civil unrest do not fall within the definition of persecution and, consequently, people fleeing such situations do not qualify as refugees under the Geneva Convention. Victims of famine or natural disaster are also excluded from the scope of the Convention for the same reason. The UNHCR’s Handbook and Guidelines on Procedures and Criteria for Determining Refugee Status confirms that such s­ ituations do not fall within the ambit of the Convention.49 Widespread e­ nvironmental

49   UNHCR, ‘Handbook and Guidelines on Procedures and Criteria for Determining Refugee Status’, (HCR/1P/4/eng/Rev. 3, 2011), para. 39.

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96  Research handbook on climate change, migration and the law degradation is in principle insufficient to demonstrate the existence of ‘a well-founded fear’ of persecution. The Canadian Federal Court has made a ruling to this effect in Sinnapu v Canada, where claims based on natural disasters such as drought, famine and earthquakes are excluded as the risk is generalized.50 In theory, it remains possible for people displaced by environmental disasters to demonstrate the existence of a threat, but it remains that establishing the personal nature of this threat would be difficult. Moreover, in many cases, environmental factors induce migration without really ‘forcing’ it, and the very rationale of international refugee law – to protect people who have no choice but to seek refuge elsewhere – does not apply to voluntary environmental migrants.51 B. Individual Status Attribution when Faced with Urgent and/or Mass Mobility In current practice, the Geneva Convention defines the scope of the ­protection of refugees but it is not the most authoritative source in defining their rights at the place of destination. International human rights law has developed since 1951, so much so that more ambitious instruments prevail in defining the civil and political as well as economic, social and cultural rights of refugees, like anyone else. Therefore, the Geneva Convention should rather be seen as a starting point, while the condition of the refugee largely depend on domestic measures implementing international human rights law with regard to refugee populations. The determination of refugee status is done either by national ­authorities or by the UNHCR. This process involves an interpretation of the Geneva Convention in particular individual cases. Usually, the d ­ ecision follows an interview with the applicant. However, new situations of exile or those occurring in future that are accompanied by a massive influx of people are raising doubts over the possibility and opportunity of such ­individual status determination, questioning the ability of the Convention to adapt to ­ situations of environmental displacement. Indeed, the i­ndividual ­examination of applicants is often unfit for instances where emergency ­protection is required for people that have been displaced, sometimes in mass, due to a sudden environmental catastrophe for example. Group-based

  Minister of Citizenship and Immigration (1997), 2 C F 791 (First instance).   Jane McAdam, ‘Swimming Against the Tide: Why a Climate Change Displacement Treaty is not the Answer’ (2011) 23 International Journal of Refugee Law 10. 50 51

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The inadequacy of international refugee law  ­97 status determination is, by far, more a­ ppropriate to such ­circumstances. The prima facie approach of group-based ­determination that the UNHCR has practised for a long time in situation of large ­populations fleeing situations of generalized violence appears more appropriate than a full individual status determination in the face of large population movements forced by environmental factors. EU law also offers collective and temporary protection in the event of a mass influx of people. It addresses situations of ‘a mass influx of displaced persons’ such as the arrival in the EU of ‘a large number of displaced persons, who come from a specific country or geographical area, whether their arrival in the Community was spontaneous or aided, for example through an evacuation programme’.52 ‘The mass influx of people’ defined by this text could correspond to an emergency situation triggered by an environmental disaster, and the exceptional nature53 which determines this protection strengthens the potential of the directive for victims of ­environmental disasters. The definition54 of displaced persons in the ­directive is relatively broad and includes victims of natural disasters.55 Two particular sorts of circumstances are explicitly included within the scope of the directive, notably those of ‘(i) persons who have fled areas of armed conflict or endemic violence’, and those of ‘persons at serious risk of, or who have been the victims of, systematic or generalised violations of their human rights’.56 Although environmental factors are not explicitly mentioned, the definition seems sufficiently inclusive to integrate these circumstances ­ as well. EU Member States have two possibilities to operationalize this ­temporary protection for environmentally displaced people: either they   Council Directive 2001/55/EC, supra note 41, art. 2.d.   Ibid., Preamble, para. 13. 54   Ibid., art. 2.c: 52 53

‘displaced persons’ means third-country nationals or stateless persons who have had to leave their country or region of origin, or have been evacuated, in particular in response to an appeal by international organisations, and are unable to return in safe and durable ­conditions because of the situation ­prevailing in that country, who may fall within the scope of Article 1A of the Geneva Convention or other international or national instruments giving ­international protection.   During the development of this instrument, the Finnish proposal to e­ xplicitly include people displaced by natural disasters was rejected on the grounds that this type of displacement is not mentioned in any of the international legal documents on refugees. Council, Outcome of proceedings, 16 February 2001, 6128/01, at 4. 56   Council Directive 2001/55/EC, supra note 41, art. 2.c(i), (ii). 55

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98  Research handbook on climate change, migration and the law integrate these people by substantially modifying the definition of the ­directive to create protection in cases of natural catastrophes, or they decide to extensively interpret the directive. Moreover, temporary p ­ rotection under this directive is only triggered following a decision of the EU Council, which is politically challenging. Political consensus has been missing for this option to be applied to address the current European refugee crisis. It should be noted, however, that temporary protection in the EU is only granted to displaced persons from third-country nationals.57 People displaced due to an environmental catastrophe in one of the 28 Member States, even if a massive flight was to follow from a natural disaster, would fall within a different set of legal regimes. However, it is known that people displaced for this reason often seek refuge either in another part of their home territory, as was the case in Chernobyl or following hurricane Katrina in the US, or in the border areas of neighbouring countries. In principle, such migrants would be able to make use of the fundamental freedoms guaranteed under EU law.

III. THE DIFFICULT QUALIFICATION OF PERSECUTION IN THE TEXT OF THE CONVENTION The exhaustive list of grounds of persecution enabling a person to seek protection abroad prevents refugee status from being assigned to ­environmental or climate migrants (A). It remains difficult to envisage how the definition of persecution could be extended to include environmental factors of migration (B). A.  The Excluding Grounds Built Around the Non-protection of the State Article 1A(2) of the Geneva Convention defines the refugee as a person, ‘owing to well-founded fear of being persecuted for reasons of race, ­religion, nationality, membership of a particular social group or p ­ olitical opinion, is outside the country of his nationality and is unable or, owing to

57

  Ibid., art. 1:

The purpose of this Directive is to establish minimum standards for giving temporary protection in the event of a mass influx of displaced persons from third countries who are unable to return to their country of origin and to promote a balance of effort between Member States in receiving and bearing the consequences of receiving such persons.

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The inadequacy of international refugee law  ­99 such fear, is unwilling to avail himself of the protection of that country’. There is no explicit reference to the victims of natural disasters or to any environmental motives. To our knowledge, no State has granted refugee status in the sense of the Geneva Convention based exclusively on ­environmental factors of migration, even if these factors have sometimes been discussed by courts as evidence of a context in which persecution took place. Sudden disasters or gradual environmental changes cannot be qualified as persecution per se even if they affect the life or the living conditions of fleeing populations. Some justify this exclusion on the basis of the intensity of the damage; the consequences of most environmental changes are not within the threshold needed to qualify as persecution. Others think that the concept of persecution requires the existence of an ‘agent of persecution’, which is difficult to envisage when it is the ­‘environment’ that is causing the displacement. The lack of persecution in the context of environmental migration has been considered as a ground to exclude the protection provided by the Geneva Convention58 by the State representatives,59 by the doctrine60 and by the courts for instance in Ioane Teitiota v The Chief Executive of the Ministry of Business, Innovation and Employment.61   See Mayer, supra note 6.   Mr Robinson, Israel, at the 22nd meeting of the UN Conference of Plenipotentiaries on the Status of Refugees and Stateless Persons (A/CONF.2/ SR.22, 1951), noting that the draft under negotiation: 58 59

did not refer to refugees from natural disasters, for it was difficult to imagine that fires, floods, earthquakes or volcanic eruptions, for instance, differentiated between their victims on the ground of race, religion or political opinion. Nor did that text cover all man-made events. There was no provision, for example, for refugees fleeing from hostilities. 60   Jane McAdam, ‘The Relevance of the International Refugee Law’, in J.  McAdam (ed.) Climate Change, Forced Migration, and International Law (Oxford University Press, 2012), at 39–51. 61   [2013] NZHC 3125, para. 11: ‘it is abundantly clear that the displacement of such refugees has not been caused by persecution. Nor, importantly, have they become refugees because of persecution on one of the five stipulated Refugee Convention grounds; 0907346 [2009] 1168 (10 December 2009), para. 51:

the Tribunal does not believe that the element of an attitude or motivation can be identified, such that the conduct feared can be properly considered persecution for reasons of a Convention characteristic as required. . . . There is simply no basis for concluding that countries which can be said to have been historically high emitters of carbon dioxide or other greenhouse gases, have any element of motivation to have any impact on residents of low lying countries such as Kiribati, either for their race, religion, nationality, membership of any

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100  Research handbook on climate change, migration and the law In his contribution to this volume, François Gemenne argues for the use of the term ‘climate refugee’ on the ground that climate change is caused by human activities.62 Persecution, however, requires more than a causal relation between a wrongful conduct and a harm. Persecution suggests a specific intention of an agent of persecution to cause the harm to another person or group of persons. In the context of climate change, it would be far-fetched to consider that greenhouse gas-emitted activities are being carried out with the specific intention of causing harm to other populations. Some have however questioned the broad interpretation of the ‘catch-all’ motive of membership of a ‘particular social group’. While this c­ riterion has enabled the integration of persecution that was not ­envisaged at the time of drafting the Geneva Convention (violence against ­homosexuals, transsexuals or women, etc.), it seems difficult to apply this criterion to the demands of groups that are victims of environmental damage. This might be problematic. In France, for instance, the Refugee Appeals Board and the Council of State63 noted that the victims of the Chernobyl nuclear disaster did not constitute a ‘particular social group’ under the Geneva Convention. But even if a category of people could be considered as belonging to the same social category when they are victims of drought and the progressive degradation of natural resources (pasture), the damage caused by drought does not seem to constitute persecution under the Geneva Convention. Faced with the failure of the Geneva Convention, some authors have proposed the addition of an environmental motive through a revision of this Convention.64 The UNHCR has clearly positioned itself against such a revision of the Geneva Convention because of fears that re-opening the

particular social group or political opinion. Those who continue to contribute to global warming may be accused of having an indifference to the plight of those affected by it once the consequences of their actions are known, but this does not overcome the problem that there exists no evidence that any harms which flow are motivated by one of more of the Convention grounds.   See François Gemenne, Chapter 18 in this volume.   Conseil d’État (State Council), 15 March 2000, Mme Drannikova, No. 185837. 64   Jessica B. Cooper, ‘Environmental Refugees: Meeting the Requirements of the Refugee Definition’ (1998) 6 New York University Environmental Law Journal 480; Gaim Kibreab, ‘Climate Change and Human Migration: A Tenuous Relationship?’ (2010) 20 Fordham Environmental Law Review 357, 401; David S. Lazarus, ‘Environmental Refugees: New Strangers at the Door’ (1990) 2 Our Planet 12, at 14. 62 63

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The inadequacy of international refugee law  ­101 Convention to negotiations in current political circumstances could lead to narrowing down rather than expanding the protection regime.65 As many commentators have demonstrated,66 the Geneva Convention does not apply to the populations displaced in the context of climate change67 and any extension of the scope of the Convention would risk devaluating the protection that it provides, currently, to a relatively narrow population of migrants.68 Some authors have nevertheless argued for the recognition of an extensive interpretation of environmental persecution, as will be discussed in next subsection. B.  Recognizing ‘Environmental Persecution’? As mentioned before, the notion of persecution is an essential element of the definition of a refugee under the regime created by the Geneva Convention. Yet, this notion is abstract and general, subject to many interpretations, and there is no universally accepted definition of persecution. Part of the ‘well-founded fear of persecution’ to which the Geneva Convention alludes involves a subjective assessment, almost within the psychological reaction of an individual to events surrounding him or her, for different people do not react in the same way to external events. ‘Wellfounded’, however, invokes an objective test. The Geneva Convention does not provide much clarity on how to determine whether an individual experiences such well-founded fear of persecution. There are varying ­ degrees and types of persecution, but persecution is generally understood to be the intentional infliction of unfair and cruel treatment affecting the core of an individual’s fundamental rights. Some authors advocate a change in the interpretation of persecution to extend it to displacements triggered by environmental factors. The UNHCR

65   Antonio Guterres, ‘Climate Change, Natural Disasters and Human Displacement: a UNHCR perspective’ (UNHCR, 23 October 2008), at 7. 66   For a recent discussion of different viewpoints, see Warren, supra note 22. 67   Heather Alexander and Jonathan Simon, ‘Unable to Return’ in the 1951 Refugee Convention: Stateless Refugees and Climate Change’ (2014) 26 Florida Journal of International Law 531. 68   Breanne Compton, ‘The Rising Tide of Environmental Migrants: Our National Responsibilities’ (2014) 25 Colorado Natural Resources, Energy and Environmental Law Review 358, at 371–2; Sumudu Atapattu, ‘Climate Change, Human Rights, and Forced Migration: Implications for International Law’ (2009) 27 Wisconsin International Law Journal 607, at 622; David Keane, ‘Graduate Note, The Environmental Causes and Consequences of Migration: A Search for the Meaning of “Environmental Refugees”’ (2004) 16 Georgetown International Environmental Law Review 209, at 215.

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102  Research handbook on climate change, migration and the law has already encouraged a limited evolution in this sense by granting more prominence to economic measures in assessing the existence of persecution, but on the condition that these discriminatory economic measures are drastic policy measures designed to compromise economic survival.69 Some authors have also attempted to argue for a possibility of ­identifying ‘environmental persecution’70 through a progressive reading of the Geneva Convention, for example in the case of indigenous peoples and the v­iolation of their vital natural resources. The fact that these ethnic or cultural groups have been the victims of serious discrimination and ­‘environmental racism’ has been raised to justify a renewed reading of persecution. Laura Westra thus estimated that in cases of serious ­environmental damage, the ­fundamental rights71 of indigenous populations and communities are affected to a level that may fulfil the requirements of the concept of persecution. Similarly, when multinational corporations deprive a village or thousands of people from a vital natural resource, such an action could be considered as persecution. Yet another example could include governments that persecute through the denial of assistance to specific groups of people affected by an environmental disaster. However, although environmental changes may affect certain groups of people more than others, the Geneva Convention applies only in cases of discriminatory intent and not simply discriminatory effect. This was affirmed for instance by the New Zealand judge in the case of Ioane Teitiota v The Chief Executive of the Ministry of Business, Innovation and Employment: there is a complex inter-relationship between natural disasters, ­environmental degradation and human vulnerability. Sometimes a tenable pathway to ­international protection under the Refugee Convention can result. Environmental issues sometimes lead to armed conflict. There may be ensuing violence towards or direct repression of an entire section of a population. Humanitarian relief can become politicised, particularly in situations where some group inside a disadvantaged country is the target of direct discrimination.72

Jane McAdam studied more than 20 cases between 2010 and 2015 in  Australia and New Zealand where citizens of Tuvalu and Kiribati

  UNHCR, Handbook on Procedures and Criteria for Determining Refugee Status (2011), para. 63. 70   C. Kozoll, ‘Poisoning the Well: Persecution, the Environment, Refugee Status’ (2004) 15(2) Colorado Journal of Environmental International Law 271. 71   Laura Westra, Environmental Justice and the Rights of Ecological Refugees, (Earthscan 2009), at 14 and 178. 72   Ioane Teitiota, supra note 61, para. 27. 69

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The inadequacy of international refugee law  ­103 sought asylum due to the impacts of climate change. None of them succeeded.73 Some authors have argued that the consequences of climate change could be characterized as ‘environmental persecution’.74 Of course, while we know today that human activities have contributed to global warming, it does not mean that these activities were voluntarily carried out with the intention of causing damage and personal harm to victims. The criterion of the intention to persecute is lacking. In any event, it is unlikely that the competent authorities ­(including European ones) would engage in any extensive interpretation of ­environmental persecution. The interpretation of the Convention’s ­criteria by States that host refugees (including European States) is generally restrictive and the European so-called ‘qualification’ Directive confirms the rigour with which European States collectively interpret the text of the Convention.

IV.  THE CONDITION OF BORDER-CROSSING The international protection of refugee requires that the refugee has crossed an international border (A), which is (still) rarely the case for ­environmentally or climatically displaced people, the majority of whom remain within the territory of their country of origin (B). A.  International Protection for Those Who Cross the Border The Geneva Convention is confined to the situation of individuals moving from one State to another; it does not apply to purely domestic ­circumstances of forced migration.75 A host State shall grant international protection only to those who have left their country. Refugees within the scope of the Geneva Convention are protected by this Convention because and inasmuch as they cannot benefit from the international protection of their

  Jane McAdam, ‘Building International Approaches to Climate Change, Disasters and Displacement’ (2016) 33 Windsor Yearbook of Access to Justice 1. 74   Fabienne Quillere-Majzoub, ‘Le droit international des réfugiés et les changements climatiques: vers une acceptation de l’ecoprofugus?’ (2009) 86(4) Revue de droit international et de droit comparé 629. 75   The Guiding Principles on Internal Displacement were adopted in 1998 by the Human Rights Council in order to codify the law, mostly international human rights law, applicable to circumstances of forced internal migration. See Elizabeth Ferris, Chapter 6 in this volume. 73

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104  Research handbook on climate change, migration and the law State of origin. For environmentally or climatically displaced people, the legal link with their State is not necessarily broken, but rather ­temporarily ­inoperative, unlike for the refugee. While refugees need ­international protection because there is no domestic substitute, ­environmentally displaced persons who remain within their State of origin remain within the concern of the same State. That State may need international support to provide ­effective protection, but this is a question of ­international development rather than a question of individual protection.76 Empirical studies have shown that there is still very little cross-border or international environmental displacement. People fleeing environmental disasters only travel short distances; they very rarely leave their country.77 Most people displaced by weather-related catastrophes and ­environmental changes, even those that unfold gradually, remain in their country of origin or near the border. The populations most affected by environmental changes are often the poorest, often dependent on natural resources and are typically unable to fund long-distance international travel. Therefore, they are outside the scope of the Geneva Convention, not just in its specific modalities but also outside its general rationale of protecting people in a third State in circumstances where protection cannot be provided in the State of origin. When they do occur, international displacements triggered at least in part by climate change impacts would more readily be classified as ­‘voluntary’ economic migrations rather than as forced migration because there might be some internal flight alternatives. Individuals might be forced to move because of a disaster and they may move abroad, but their ­decision to move abroad (rather than to another part of the same country) is likely to be voluntary in most cases. Ultimately, the Geneva Convention clearly has structural limitations for addressing most cases of e­ nvironmental or climatic displacements. B.  Internal Displacement and State Responsibility People who are displaced within their country of origin because of a catastrophe are excluded from the scope of the Geneva Convention. ­ Internal displacements fall under the responsibility of the displaced 76   Véronique Magnigny, ‘Les réfugiés de l’environnement : hypothèse juridique à propos d’une menace écologique’ (Doctoral thesis, University Paris 1 Panthéon Sorbonne, 1999), at 462. 77   Alice Thomas, ‘Rising Waters, Broken Lives’ in Susan F Martin, Sanjula Weerasinghe and Abbie Taylor (eds.) Humanitarian Crises and Migration: Causes, Consequences and Responses (Routledge, 2014), at 53 and 65.

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The inadequacy of international refugee law  ­105 ­ erson’s State of origin. Therefore, international protection is not ­necessary p and not justified. Following the end of the Cold War, specific protection was envisaged for internally-displaced persons because it appeared that many States did not ensure their adequate protection. Francis Deng, then the Special Rapporteur on the Human Rights of Internally Displaced Persons, drafted the Guiding Principles on Internal Displacement with substantial m ­ aterial support from the Brookings Institution and other experts. The Guiding Principles on Internal Displacement were adopted by the Human Rights Council in 1998.78 This international soft law document, which codifies existing international law, has fostered a more effective protection of internally-displaced persons throughout the world. Many countries have integrated the Guiding Principles into their national law or were significantly influenced by them. In 2006, the Protocol on the Protection and Assistance to Internally Displaced Persons, annexed to the Pact on Security, Stability and Development in the Great Lakes Region, introduced a set of standards into the legislation, largely inspired by the Guiding Principles. The Kampala Convention for the Protection and Assistance of Internally Displaced Persons in Africa, which was adopted in the framework of the African Union in 2009, came into force in 2012. Article 5(4) provides unprecedented protection for any ‘persons who have been internally displaced due to natural or human made disasters, i­ ncluding climate change’. Compared with the text of the Geneva Convention, there is a real innovative nature to the Kampala Convention’s provisions in terms of forced internal displacement due to natural disasters. Article 4(2) of the Convention requires State parties to create and implement earlywarning systems, disaster-risk reduction strategies, emergency and disaster ­preparedness and management measures, and, where necessary, to provide immediate protection and assistance to internally-displaced persons. Following the development of an international refugee law, it now seems that the establishment of a law for people who have been internally displaced by natural disasters is underway. Some authors consider that only the adoption of a binding international legal text, like that of the Kampala Convention for the African continent, could strengthen the protection of all IDPs, including those whose forced displacement is caused by a natural catastrophe.79   Guiding Principles on Internal Displacement, U.N. Doc. E/CN.4/1998/53/ Add.2 (11 February 1998). See generally Chapter 6 in this volume, by Elizabeth Ferris. 79   Stéphanie Millan, ‘Construction du droit des personnes déplacées internes, victimes de catastrophes naturelles’, in Cournil and Vlassopoulos, supra note 13, at 78

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106  Research handbook on climate change, migration and the law IDP protection extends to some environmental migrants, particularly those forced to leave their homes because of a natural disaster. The focus, however, remains on sudden, forced collective displacement, even though environmental changes can also cause individual migration or so-called ‘voluntary’ migration, particularly related to the economic consequences of gradual environmental changes. For this latter category of migrants, there is no legal provision provided by the Geneva Convention or by soft law on internal displacement. Similarly, the focus on improving the protection of refugees and IDPs leaves aside other issues such as the fate of those ‘trapped in place’ where they reside, who cannot migrate even though their environment has become hostile.

V. CONCLUSION As François Crépeau wrote in 1995, the increasing complexity of international collective action and the growing flows of displaced populations call for a serious reconsideration of the foundations and purpose of international refugee law.80 Environmental mobility highlights the structural crisis faced by the international governance of migration. When forced migrants are protected at all, it is predominantly through an individualistic focus on the needs of displaced persons, which fails to grasp the new challenges of human mobility and in particular to respond to massive population flows triggered by sudden environmental disasters.81 The international protection of refugees is constructed around an individual assessment to determine, case by case, the credibility of the essentially political reasons of vulnerability. However, the vulnerability of a migrant is not necessarily linked to the cause of migration. Rather than creating new protection for environmentally displaced people, some suggest that there should be an extension of the existing protection to include a category of people who share the same form of vulnerability. Alexander Betts proposed that the needs for protection should be met in cases of ‘survival migration’. This broad concept would include every person displaced by environmental factors (as well as by poverty or 49–68. 80  Crépeau, supra note 32, 318. 81   Benoît Mayer, ‘Pour en finir avec la notion de “réfugiés environnementaux”: critique d’une approche individualiste et universaliste des déplacements causés par les changements environnementaux’ (2011) 7(1) McGill International Journal of Sustainable Development 37, at 43–9.

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The inadequacy of international refugee law  ­107 g­ eneralized violence) provided that migration appears as ‘necessary’ for the survival or a minimum level of dignity of this person.82 A similar approach focuses on the concept of ‘crisis migration’, but with a greater domestic focus.83 However, while such approaches seem politically unlikely given the reluctance of States to limit their right to control their own borders, ­specific protection for the environmentally displaced nevertheless receives a large amount of support. Should we then consider the idea of a ­universal protection along the same lines as the Geneva Convention, a regional (continental), national, cross-border, intra-state (federal state) or local sui generis form of protection? Will we end up with a single instrument that is able to systematize and categorize all types of emigration and migrant destinations? In any case, this protection should be conceived outside the framework of the 1951 Convention that is inadequate and too narrow. The protection of refugees has developed following the Second World War in the same way as the protection of stateless persons and the mechanisms for the protection of migrant workers and IDPs developed at the end of the Cold War as part of a new momentum. The context of climate change could spur new debates. The linkage between climate change and ­migration presents a real opportunity to position the protection of displaced people at the forefront of the international political arena. The framework ­provided by the UNFCCC currently appears to be the most suitable place for the introduction into environmental governance of this issue of the protection of human mobility.

  Alexander Betts, Survival Migration: Failed Governance and the Crisis of Displacement (Cornell University Press 2013). 83   Martin, Weerasinghe and Taylor, supra note 77. 82

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6.  The relevance of the Guiding Principles on Internal Displacement for the climate change-migration nexus The Guiding Principles on Internal Displacement

Elizabeth Ferris

INTRODUCTION The Guiding Principles on Internal Displacement (Guiding Principles), presented to the UN Human Rights Commission in 1998 and endorsed by the Global Summit in 2005, provide a widely accepted normative framework for protecting the rights of internally displaced persons (IDPs).1 Given the definition of IDPs used in the Guiding Principles, those displaced by the effects of climate change who remain within the borders of their countries are considered as IDPs and the Guiding Principles are thus applicable to them. After a brief overview of the Guiding Principles, this chapter considers the ways in which they have been used to uphold the rights of those displaced by sudden-onset ­disasters and then turns to the more difficult issue of their relevance to those displaced by other forms of environmental change associated with climate change. A particularly difficult issue is the case of individuals who leave their communities because of loss of livelihoods due to the effects of climate change. This difficulty stems from the broader question of determining causality – which affects other forms of the climate-changemigration nexus as well. While it is argued here that the Guiding Principles are and should be the primary normative framework in upholding the rights of those displaced internally by the effects of climate change, there are two areas where further elaboration is needed in order to apply to the specific characteristics of climate change-induced displacement. First, durable ­ solutions, particularly when return is not an option because of the effects of climate change. Secondly, issues around accountability, given the fact that responsibility for greenhouse gas emissions can be determined. These questions are further discussed in the following sections.

 1

  Guiding Principles on Internal Displacement (1998).

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The Guiding Principles on Internal Displacement  ­109

I. THE GUIDING PRINCIPLES ON INTERNAL DISPLACEMENT The Guiding Principles were developed in the mid-1990s in response to growing concerns about the protection needs of large numbers of people who were displaced within the borders of their countries. Advocacy by non-governmental organizations (NGOs) and research institutes led to a decision by the then-UN Human Rights Commission to appoint a Representative of the Secretary-General (RSG) on IDPs, Francis Deng, to investigate the specific needs of internally displaced persons.2 At the request of the Commission, in 1993, RSG Deng prepared his first study of existing international law to determine its applicability to this group of persons,3 followed by a more extensive two-volume study from 1996 to 1998.4 In carrying out this review, RSG Deng convened a group of legal experts to review existing law and to determine where gaps might exist. Rather than developing a new legally-binding instrument, the legal experts recommended that applicable existing law be restated to apply to IDPs. This was done and in 1998 RSG Deng presented the Guiding Principles on Internal Displacement to the Human Rights Commission. The 30 principles were based on existing international human rights law, international humanitarian law and, by analogy, refugee law. Given the political sensitivities around measures perceived as intruding on national sovereignty, it is not surprising that the Commission and later the UN General Assembly did not adopt the principles, but merely took note of them. Over the next few years, the Guiding Principles were widely disseminated and were endorsed by humanitarian agencies and a number of regional o ­ rganizations. They were promoted through an extensive process of consultations and were used by the RSG in his missions and working visits to countries with large numbers of IDPs. In 2005, the World Summit unanimously recognized the Principles in their Outcome document as an ‘important institutional framework for the protection of IDPs.’5  2   UN Commission on Human Rights Resolution 1992/73, Internally Displaced Persons.  3   Francis Deng, ‘Comprehensive study on the human rights issues related to internally displaced persons pursuant to Commission on Human Rights resolution 1992/73’, E/CN.4/1993/35 (21 January 1993).  4   Francis Deng, ‘Report submitted pursuant to Commission on Human Rights resolution 1995/57: Compilation and analysis of legal norms’, E/CN.4/1996/52/ Add.2 (5 December 1995), and ‘Report submitted pursuant to Commission on Human Rights resolution 1997/39: Compilation and Analysis of Legal Norms, Part II: Legal Aspects Relating to the Protection against Arbitrary Displacement’, E/ CN.4/1998/53/Add.1 (11 February 1998).  5   For more on the history of the development of the Guiding Principles,  see

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110  Research handbook on climate change, migration and the law The Guiding Principles define IDPs as: Persons or groups of persons who have been forced or obliged to flee or to leave their homes or places of habitual residence, in particular as a result of or in order to avoid the effects of armed conflict, situations of generalized violence, violations of human rights or natural or human-made disasters, and who have not crossed an internationally recognized state border.6

Unlike the definition of refugees included in the 1951 Refugee Convention, the definition of IDPs did not establish a legal status or category of IDP, but was rather intended for descriptive purposes. Although the Guiding Principles provide a non-exhaustive list of causes, the d ­ efining characteristics of internal displacement are: (1) that the movement is ­ coerced or forced; and (2) that such movement occurs within national borders. The Guiding Principles are based on recognition that it is the ­fundamental responsibility of states to provide protection and assistance for their ­citizens (and habitual residents) when they are displaced. They call for competent national authorities to take measures to prevent displacement, to provide protection and assistance to those who are displaced and to support solutions to displacement. In the first section, the Guiding Principles affirm that national authorities are obliged to prevent and avoid conditions that might lead to displacement (principle 5) and to avoid ­arbitrary displacement (principle 6). Principle 25 in Section IV of the Guiding Principles affirms the primary duty and responsibility of national authorities to provide humanitarian assistance to their displaced populations. While offers by humanitarian organizations to provide additional assistance should not be considered by national authorities as interference in their affairs, such consent should not be withheld for arbitrary reasons. The last section of the Guiding Principles deals with post-displacement phase, including return, resettlement and reintegration. Principle 28(1) establishes the primary duty and responsibility of competent ­authorities to establish conditions and to provide the means by which IDPs may return voluntarily, in safety and dignity, to their homes or habitual places of residence or to resettle voluntarily in another part of the country. The Thomas G. Weiss and David A. Korn, Internal Displacement: Conceptualization and its Consequences (Routledge 2012) and Roberta Cohen, ‘Lessons Learned from the Development of the Guiding Principles on Internal Displacement’ Georgetown UniversityWorkingPaperOctober2013,https://www.brookings.edu/research/lessonslearned-from-the-development-of-the guiding-principles-on-internal-displacement/.  6   Guiding Principles, supra note 1, introduction.

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The Guiding Principles on Internal Displacement  ­111 Guiding Principles call for the full participation of IDPs in the planning and management of their solutions and sets out the principle that IDPs should not be discriminated against and should have the right to fully and equally participate in public affairs and have equal access to public services. IDPs who return to their communities or who settle elsewhere should be able to recover their property or possessions; when this is not possible, they should be entitled to compensation. Over the course of a decade (a remarkably short time period for the development of legal standards), the Guiding Principles acquired ­recognition as the authoritative normative framework applicable to IDPs.7 Over 20 governments have adopted national laws and policies on ­internal displacement, many (though not all) of which incorporate at least a portion of the Guiding Principles.8 Interpretive and training materials had been disseminated, research undertaken, and regional consultations have been held in most regions of the world. Roberta Cohen, one of the original founders together with RSG Deng of the Brookings Project on Internal Displacement, has analysed the reasons for the success of the Guiding Principles. Initial efforts by advocates to raise awareness of the need for guidance for this particular group of people was followed by efforts to mobilize support from key governments – p ­ articularly Austria and Norway – who served as ­champions on IDP issues. This was particularly important given the fact that experts – not ­governments  – drafted the Guiding Principles. The fact that a UN-appointed expert led the process enhanced the credibility of the Guiding Principles as did the broad-based consultative process which engaged governments, regional and international organizations, civil society actors, and academics on every continent.9 In comparison with normal treaty-making process, where governments negotiate each phrase of draft text, the legal experts were able to formulate the Guiding Principles quickly. The consultative process with states which regularly brought the issue into UN fora served to overcome at least some of the suspicion by states at a process that they did not lead. The role of the Brookings Project on Internal Displacement, as a respected academic institution which could serve as a point of contact and with the resources to mobilize support, was key to the process – and set this initiative apart from other expert-led efforts to develop normative frameworks on other issues. The Project oversaw the translation of the Guiding   See Forced Migration Review: Ten Years of the Guiding Principles (2008), http://www.fmreview.org/GuidingPrinciples10.html.  8   For an overview of national laws and policies, see http://www.internal-dis​ placement.org/law-and-policy.  9  Cohen, supra note 5, at 3–4.  7

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112  Research handbook on climate change, migration and the law Principles into over 60 languages, developed a broad range of resources,10 conducted research, carried out training, and provided follow-up to the RSG’s missions and working visits. These resources enabled the RSG to do far more than would otherwise have been possible, given the limited human and financial resources available through the Office of the High Commissioner for Human Rights. The fact that the Guiding Principles themselves were based on existing international human rights law, international humanitarian law and, by analogy, refugee law made them more acceptable to governments which have generally expressed reluctance to take on new legal obligations and even less likely to affirm normative guidance related to their treatment of their own citizens. Although the Guiding Principles are not in themselves legally binding, the fact that each of the principles had its foundation in accepted international law proved to be a compelling argument on a ­sensitive issue with governments. Although the focus of the expert drafters of the Guiding Principles was on those individuals displaced by conflicts and human rights ­violations, the definition adopted was broad enough to be applied to those displaced by other factors. After the 2004 Indian Ocean tsunami, RSG Walter Kälin used the Guiding Principles to raise awareness with ­governments, ­international agencies and others on the importance of upholding the  human rights of those displaced by the disaster. An initial focus on the rights of those displaced by a natural hazard led to consideration of the broader human rights concerns of those affected by disaster – whether ­displaced or not. This led RSG Kälin to initiate a process in 2006 which culminated in the adoption of the ‘Operational Guidelines on the Protection of Persons in Situations of Natural Disasters’ in 2011. While the Guiding Principles were not legally binding, they led directly to the developing of binding international law at the regional level. The 2006 ‘Great Lakes Protocol on the Protection and Assistance to Internally Displaced Persons’ and the 2009 ‘African Union Convention for the Protection and Assistance of Internally Displaced Persons in Africa’ (Kampala Convention), are both legally binding for state parties. Like the Guiding Principles, they both cover those displaced by disasters as well as by conflict. In addition, article 5, paragraph 4 of the Kampala Convention provides that: ‘States Parties shall take measures to protect and assist   See for example: Addressing Internal Displacement: A Framework for National Responsibility (Brookings 2005); IASC Framework for Durable Solutions (Brookings, 2010); the IASC Operational Guidelines on the Protection of Persons in Situations of Natural Disasters (2011); and the IASC Handbook for the Protection of Internally Displaced Persons (2010). 10

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The Guiding Principles on Internal Displacement  ­113 persons who have been internally displaced due to natural or human made disasters, including climate change.’11 Normative frameworks provide important guidance to governments, but their implementation has been uneven. Some governments, such as Colombia, have fully incorporated the Guiding Principles into national laws and policies while other governments, such as Uganda, Georgia and Kenya, have implemented some of the Guiding Principles, others have done very little in this regard.12 National level implementation of the Kampala Convention has similarly been uneven. Before looking at some of the issues related to the application of the Guiding Principles to those displaced by the effects of climate change, it is important to underscore some of the general difficulties of applying any legal frameworks in the context of the climate change/displacement nexus.

II. THE PARTICULAR DIFFICULTIES IN GETTING A GRIP ON CLIMATE CHANGE-INDUCED MOBILITY Since the very first report of the Intergovernmental Panel on Climate Change in 1990,13 there has been a recognition that one of the most ­dramatic consequences of the effects of climate change is likely to be the movement of people. However, determining the scale, timing, and ­dynamics of that movement has proven to be elusive. There is ­presently no consensus in the field about the appropriate terms to use about those moving because of the effects of climate change. Climate change ­refugees, climate change-induced displacement, environmental migrants, environment-induced migrants, eco-migrants, distressed migrants, and ­ crisis migrants are some of the terms currently in use. While the term ‘climate refugee’ has been rejected by refugee advocates and others, it conveys a meaning that alternative formulations struggle to address.14 For example, Mary Robinson and the Environmental Justice Foundation

  African Union Convention for the Protection and Assistance of Internally Displaced Persons in Africa (2009). 12   Elizabeth Ferris, Erin Mooney and Chareen Stark, From Responsibility to Response: Assessing National Approaches to Internal Displacement (Brookings-LSE Project on Internal Displacement, 2012), https://www.brookings.edu/wp-content/ uploads/2012/04/From-Responsibility-to-Response-Nov-2011doc.pdf. 13   Inter-governmental Panel on Climate Change, Climate Change: The IPCC Scientific Assessment (IPCC 1990). 14   See François Gemenne, this volume, Chapter 18. 11

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114  Research handbook on climate change, migration and the law (EJF) use the term ‘climate refugee’ although acknowledging that refugee law does and should not apply because: EJF believes that the term ‘climate refugee’ underscores the human rights dimension of climate change and also successfully reflects the reality that a form of refugeehood – the experience of involuntarily leaving one’s home due to persecution – is an inherent feature of the globally unequal distribution of responsibility for climate change, which has systematically marginalized the world’s most vulnerable communities.15

The most difficult issues, however, stem from the recognition of the multi-causal nature of population movements and the difficulties in determining the balance between voluntary and forced movement in the context of climate change. As Benoît Mayer has eloquently argued, in order to make the case that climate change is causing human movements, two causal links must be demonstrated: first, a link between climate change and a particular environmental phenomenon, and second, between the environmental phenomenon and the decision of a particular individual to migrate.16 Thus, while climate change may act as a force multiplier in ­intensifying the effects of natural disasters, it is presently impossible to say that a particular storm was the result of climate change. And particularly in the case of slow-onset consequences of climate change, it is difficult to determine the role that environmental factors play in an individual decision to move, given the range of economic, social, cultural, family and other contextual factors. Individuals have different levels of risk ­tolerance, past experiences with migration, family considerations and different resources, opportunities and restrictions on mobility. Given the ­complexities of ­decision-making at individual and household level, it is particularly ­difficult to categorize the motivation for movement as either forced, on the one hand, or voluntary on the other. And yet, the present international system on mobility is built around two factors: whether movement is voluntary or forced and whether people cross an international border or remain within the borders of their own homes.17 Those who are forced to move are refugees or IDPs. Those who move voluntarily are considered to be either international or internal migrants. Although international human rights law applies to all, there are 15   Environmental Justice Foundation, Falling Through The Cracks: A Briefing On Climate Change, Displacement and International Governance Frameworks (2014), at 5. 16   Benoît Mayer, The Concept of Climate Migration: Advocacy and its Prospects (Edward Elgar, 2016), Chapter 1. 17   François Gemenne, ‘From the Guiding Principles to the Nansen Initiative’ (2015) 27 International Journal of Refugee Law 245.

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The Guiding Principles on Internal Displacement  ­115 different legal regimes for international and forced movement. Those who cross an international border because they do not enjoy the protection of their government and have a well-founded fear of persecution for one of the reasons specified in the 1951 Refugee Convention can claim refugee status. Those who cross an international border for other reasons, even if they are compelled to do so for reasons other than those specified in the Convention, are generally not considered to be refugees but to be international migrants and fall under international migration law. International migration law is based on international human rights law with relatively few widely ratified, legally binding, migration-specific treaties and a larger number of soft law instruments. As an example, there are a number of legally binding agreements on the treatment of migrant workers developed under the auspices of the International Labour Organization, but few states have ratified them.18 The 1990 ‘Convention on the Rights of All Migrant Workers and their Families’ (CMW) also stipulates a range of rights for cross-border migrant workers and has been described by some as a viable option to deal with practical challenges of migration as adaptation.19 That said, it focuses only on international movement, does not address irregular movement, and has currently fewer than 50 state parties,20 none of which is a major destination country. Nor do treaties on migrant workers always apply to those who move because of the effects of climate change. Those who move within the borders of their country (or the country in which they reside) – whether they do so voluntarily or are compelled to do so – fall within the responsibility of the state. In spite of the difficulties in determining how displacement will play out in the context of climate change – will it be temporary, cyclical or permanent? forced, voluntary or anticipatory? – there seems to be a ­ ­consensus that ‘the vast majority of displacement from climate changerelated effects will be internal’21 and that the Guiding Principles are the   This includes ILO Convention 97 on Migration for Employment (1949); Convention 143 on Migrant Workers (1975); and ILO Convention 189 on Domestic Workers (2011), as well as the Protocols on Smuggling and Trafficking to the UN Convention on Transnational Organized Crime (2000). 19   Jeanette Schade, Thomas Faist and Robert A. McLeman, ‘Conclusion: Inequality and Migration as Adaptation – Where do we go from here?’ in Robert A. McLeman, Jeanette Schade and Thomas Faist (eds.), Environmental Migration and Social Inequality (Springer, 2016), at 203. 20   International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families (OHCHR, 1990). 21   Alice Thomas, ‘Protecting People Displaced by Weather-related Disasters and Climate Change: Experience from the Field’ (2013–14) 15 Vermont Journal of Environmental Law 804. 18

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116  Research handbook on climate change, migration and the law applicable legal framework. For example, the Nansen Principles, adopted in 2011, state: The Guiding Principles on Internal Displacement provide a sound legal framework to address protection concerns arising from climate- and other ­environmentally-related internal displacement. States are encouraged to ensure the adequate implementation and operationalization of these principles through national legislation, policies and institutions.22

Others have made similar arguments, suggesting that new legal frameworks are not needed for those displaced internally by the effects of climate change because they are covered by the Guiding Principles. Roger Zetter hints that perhaps they might not cover all aspects when he says, ‘the 1998 Guiding Principles on Internal Displacement offer a sound ­normative framework to protect the rights of those internally displaced by ­environmental factors, but they require adaptation and refinement’.23 There seems to be a consensus that people will be displaced as a result of an increase in the frequency, intensity and unpredictability of suddenonset, weather-related disasters. But there is also a consensus that people will be displaced – particularly by drought  – and by other longer-term effects of climate change, notably: sea-level rise; ocean acidification; bleaching of coral reefs; increasing temperature with its effects on agriculture, disease, fishing and other livelihoods. Yet, it has proved to be much more difficult to apply normative frameworks to those displaced by such slow-onset phenomena because of difficulties in identifying the relative weight of climate change in individual decisions to migrate as well as the lack of political urgency in slow-onset decisions.

III. THE ‘EASY’ CASE: INTERNAL DISPLACEMENT RESULTING FROM SUDDEN-ONSET DISASTERS As Walter Kälin explains, the definition of IDP in the Guiding Principles is not a legal definition but rather a description based on needs, a ‘descriptive identification of the category of persons whose needs are the concern of the Guiding Principles’.24 The definition explicitly includes those ­displaced   The Nansen Principles (2011), principle 9.   Roger Zetter, Protecting Environmentally Displaced People: Developing the Capacity of Legal and Normative Frameworks (Refugee Studies Centre, 2011) 5. 24   Walter Kälin, Guiding Principles on Internal Displacement – Annotations (2nd ed, American Society of International Law, Brookings-Bern Project on Internal Displacement, 2008), at 3–5. 22 23

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The Guiding Principles on Internal Displacement  ­117 by natural and human-made disasters and, as it refers to displacement ‘as a result of or in order to avoid the effects of’ disasters, it also includes those who move pre-emptively, for example those who leave or are evacuated before the approach of a storm or in order to avoid the effects of flooding. Looking at internal displacement caused by sudden-onset disasters has been a relatively easy piece of the climate-change/migration nexus. While it is impossible to attribute responsibility for a single natural hazard to the effects of climate change, the patterns are clear that climate change is increasing the frequency, severity, and unpredictability of extreme weather events.25 Some efforts, such as the Nansen Initiative, have finessed the question of climate change’s causal role in disasters by referring to ­ ‘disasters in the context of climate change’.26 Most, including the ‘Operational Guidelines on the Protection of Persons in Situations of Natural Disasters’, have included d ­ isasters not directly affected by climate such as volcanoes and earthquakes in their guidance. Susan Martin, for example, has argued that those displaced by hazards such as earthquakes should not receive less protection than those displaced by a hurricane.27 This raises the ethical issue of whether those displaced by the effects of climate change have a preferential claim on state response in comparison with those displaced by other factors. The plight of those displaced by sudden-onset disasters has been a clear piece of the puzzle and one that has attracted considerable a­ ttention, perhaps because it is relatively straightforward. The definition of d ­ isasters is r­ easonably clear, the scale of displacement can be measured, the Guiding Principles clearly apply to those displaced by sudden-onset disasters – indeed there are already tools and operational guidelines to apply to this group of people. As Jane McAdam has pointed out, a framework on ­disaster-displacement rather than climate change avoids some of the c­ onceptual difficulties such as the multitude of interacting displacement drivers.28 The Internal Displacement Monitoring Centre (IDMC) has collected an impressive array of statistics on disaster-induced displacement,29 finding   See Special Report of the IPCC, Managing the Risks of Extreme Events and Disasters to Advance Climate Change Adaptation (IPCC, 2012). 26   Retrieved from the website of the Nansen Initiative at http://www.nansenini​ tiative.org. 27   Susan Martin, Sanjula Weerasinghe and Abbie Taylor (eds.), Humanitarian Crises and Migration: Causes, Consequences and Responses (Routledge, 2014). 28   Jane McAdam, Climate Change, Forced Migration and International Law (Oxford University Press, 2012), at 247. 29  IDMC, Global Estimates of People Displaced by Disasters (IDMC, 2015). From 2016 onwards, IDMC’s statistics on disaster displacement are included in its Global Report on Internal Displacement (IDMC, 2016). 25

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118  Research handbook on climate change, migration and the law that on average over 26 million people were displaced annually by disasters from 2008–14. There is a growing body of research on internal displacement in the context of sudden-onset disasters,30 although, given the scale of displacement, much more needs to be done. The Guiding Principles are fairly easily applied to sudden-onset ­disasters. The needs of those displaced by such disasters are surprisingly similar to those displaced by conflict: shelter, food, water and sanitation, medical care, education, replacement of documentation, and protection from ­violence.31 The Operational Guidelines on Protection of Persons in Situations of Natural Disasters builds on the Guiding Principles and is based on the following principles: ●●

●●

●● ●●

persons affected by natural disasters should enjoy the same rights and freedoms under human rights law as others in their country and not be discriminated against; states have the primary duty and responsibility to provide assistance to persons affected by natural disasters and to protect their human right; organizations providing protection and assistance accept that human rights underpin all humanitarian action; and all communities affected by the disaster should be entitled to easily accessible information concerning the nature of the disaster they’re facing, possible mitigation measures that can be taken, early warning information, and information about ongoing humanitarian assistance.32

Specific guidance for operational agencies is formulated on the basis of human rights principles. Like the Guiding Principles, the Operational Guidelines include guidance on protecting the rights of affected c­ ommunities by preventing displacement, responding to those who are displaced, and supporting solutions. Like the Guiding Principles, they are stronger in both   See Angela Sherwood et al., Supporting Durable Solutions to Urban, PostDisaster Displacement: Challenges and Opportunities in Haiti (Brookings 2014); Angela Sherwood et al., Resolving Post-Disaster Displacement: Insights from the Philippines after Typhoon Haiyan (Yolanda) (Brookings, 2015). 31   See Elizabeth Ferris, ‘Displacement, Natural Disasters and Human Rights’ (Brookings, 2008) at http://www.brookings.edu/research/speeches/2008/10/17-nat​ ural-disasters-ferris; Elizabeth Ferris, ‘Natural Disasters, Conflict and Human Rights: Tracing the Connections’ (Brookings, 2010) at http://www.brookings.edu/ research/speeches/2010/03/03-natural-disasters-ferris. 32   IASC Operational Guidelines on Protection of Persons in Situations of Natural Disasters (2011) 57. 30

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The Guiding Principles on Internal Displacement  ­119 their prescription and their implementation in r­ esponding to displacement. Prevention in the context of sudden-onset disasters means engaging in disaster risk reduction, including by ­extension climate change adaptation measures. But as both sets of guidance were developed in the context of human rights and humanitarian operations – rather than development principles – they do not go far enough in providing g­ uidance on preventing the risk of disasters and their consequences, including displacement. In terms of solutions to displacement, those displaced by disasters seem more likely to return to their homes relatively quickly than those displaced by conflicts, although, as IDMC has pointed out, protracted displacement resulting from disasters has received little attention and is likely to be far more prevalent than the existing understanding.33 In at least some cases of sudden-onset, disaster-induced displacement, such as the volcanic ­eruption in Montserrat in 1995, the scale of destruction precludes the option of return. Although not extensively explored, the possibility of resettlement to another country as a solution to disaster-induced displacement should perhaps be considered – something that may be even more important in the context of slow-onset disasters and other effects of climate change. Interestingly, governments and legal scholars alike jumped on the gap in international law to examine the rights and needs of those displaced across borders by disasters – even while recognizing that this is likely to be a small percentage of those displaced. The Nansen Initiative – which is now being followed through the Platform on Disaster Displacement – worked for three years in a state-led, bottom-up consultative process to develop guidance on how to respond to international displacement for those ­ displaced across international borders by the effects of natural disasters related to climate change.34

IV. THE MUCH MORE DIFFICULT CASE OF SLOWONSET DISASTERS Both slow-onset disasters, such as drought and riverbank erosion, and the effects of climate change, such as rising sea levels, melting permafrost and coastal erosion, occur over time, sometimes months, years, or even decades in the case of climate change. This makes it more difficult to identify what displacement is forced or coerced, and, therefore, whether the Guiding Principles apply.

 IDMC, Global Estimates 2015, supra note 29.   Website of the Nansen Initiative, http://www.nanseninitiative.org.

33 34

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120  Research handbook on climate change, migration and the law A.  The Case of Drought and Displacement Droughts are the classic slow-onset disaster. They develop slowly, cover a large geographic area and tend to last a long time, furthermore, it is ­difficult to determine exactly when a particular drought begins and ends. The International Disaster Database EM-DAT compiled by the Centre for Research on the Epidemiology of Disasters,35 the principal source of ­statistics related to disasters, only reports the occurrence of a drought in the first year it takes place; subsequent years do not acknowledge the drought even though its effects may actually be far worse later.36 Droughts kill more people than any other type of disaster. Below and co-authors reviewed drought disasters from 1900 to 2004 and found that more than half of the 22 million deaths associated with natural hazards were due to drought.37 While floods affect far more people than droughts, droughts kill proportionally more people. A drought is defined as, ‘a period of abnormally dry weather ­sufficiently prolonged for the lack of water to cause serious hydrologic ­imbalance in the affected area’.38 Droughts are likely to occur in arid areas, known as drylands, which cover about 41 per cent of the global landmass and are home to one-third of the world’s population, making the potential impact of drought catastrophic.39 While aridity is a long-term climatic phenomenon, droughts are episodic. The likelihood that arid lands ­ will experience drought is exacerbated by population growth and land ­degradation – human factors – as well as by climate change. Causes of land degradation include overgrazing, deforestation, agricultural ­mismanagement, fuel wood overconsumption, development of industry and urbanization. There is a high correlation between extreme poverty and land degradation.40 With global warming, it is likely that droughts

  Accessible at http://www.emdat.be/.   Elizabeth Ferris and Daniel Petz, A Year of Living Dangerously: Review of Natural Disasters in 2010 (Brookings, 2011). 37   Regina Below, Emily Grover-Kopec and Max Dilley, ‘Documenting Drought-related Disasters: A Global Reassessment’ (2007) 16 The Journal of Environment and Development 332. 38   NOAA, ‘What is meant by the term drought?’ (n.d.), http://www.wrh.noaa. gov/fgz/science/drought.php. 39   Pierre Marc Johnson, Karel Mayer and Marc Paquin, ‘The United Nations Convention to Combat Desertification in Global Sustainable Development Governance,’ in Pierre Marc Johnson, Karel Mayer and Marc Paquin (eds.), Governing Global Desertification: Linking Environmental Degradation, Poverty and Participation (Ashgate 2006) 14. 40   Ibid., at 2. 35 36

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The Guiding Principles on Internal Displacement  ­121 will intensify in parts of the world and that rainfall patterns will become more variable. IDMC’s Global Estimates on Disaster Displacement do not include drought or other forms of slow-environmental degradation41 although offering some reflections that slower environmental degradation may mean that people are displaced over longer periods of time. The fact that displacement may occur incrementally rather than the large-scale movements associated with sudden-onset disasters, makes it difficult to estimate their numbers and making it difficult to directly attribute the cause of their displacement exclusively to drought.42 In the case of drought – and other slow-onset disasters possibly related to the effects of climate change – displacement seems always to be the result of the intersection of economic factors and the natural hazard. This creates difficulties in applying the definition of IDPs in the Guiding Principles. While the words ‘in particular’ seem to imply that those ­displaced by ­environmental change could be included, it is clear that the Guiding Principles do not apply to persons who move voluntarily from one place to another solely in order to improve their economic circumstances.43 The intersection between natural hazards and economic factors has been extensively studied in the context of food insecurity and famine. Distress migration has long been recognized as a response to environmental and economic insecurity. Back in the mid-1980s, Fred Cuny, for example, identified different patterns of distress migration as indicating the extent of food insecurity. When some family members move to cities because they cannot support themselves at home, he said, that is an indication of impending famine. The famine itself is characterized by the wholesale movement of families.44 The question of whether mobility associated with drought is forced or voluntary is also complicated by the fact that, traditionally, many families use migration as a way, not only of responding to environmental shocks, but also as coping mechanisms. Thomas cites the example of Niger where in the 2005 food crisis, 80–90 per cent of people in some hard-hit areas were forced to leave their villages to survive.45 Warner and co-authors found that migration in response to increasing rainfall variability may not always prove to be an effective adaptation strategy, demonstrating that   IDMC, Global Estimates 2015, supra note 29.   Ibid., at 8, 14, 79. 43  Kälin, Annotations, supra note 24, at 4. 44   Frederick Cuny, Famine, Conflict and Response: A Basic Guide (Kumarian, 1999). 45  Thomas, supra note 21, at 829. 41 42

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122  Research handbook on climate change, migration and the law households with diverse assets and livelihood diversification are able to use migration in ways that enhance resilience. However, those with the least access to such options – few or no livelihood diversification opportunities, no land, little education – see internal migration during the hunger season as a survival strategy which ends up leaving them worse off.46 In 2016, IDMC considered drought-induced displacement as ‘off the grid’ in that those displaced by drought are not usually included in estimates of the number of IDPs because of the multi-causal nature of displacement. It is hard to attribute drought as the sole cause of movement, particularly when people may be displaced months after a drought47 and when people move at different times, reflecting their different economic circumstances, family situations, and risk tolerance. Unlike a flood or a cyclone, in which both rich and poor often must move, economic factors are more important causal factors in slow-onset settings. While ­recognizing the continuum in droughts between displacement and ­migration, IDMC suggests that considering them as displaced highlights their need for a­ ssistance and can signal their vulnerability and the urgency of their needs.48 There are cases where drought and environmental factors generally contribute to communal conflicts over resources and both the conflict and the drought displace people. In Darfur, for example, complex interactions between drought, traditional communal conflicts, and political factors led to the displacement of hundreds of thousands of people. And their displacement accelerated environmental degradation in the area, making prospects of return less likely.49 Further complicating the situation is the fact that political and governance factors always influence the extent to which a natural hazard – such as drought – contributes to food insecurity and hence to ­displacement. Those who are displaced because of conflict and human rights violations clearly fall within the definition of IDPs. And indeed UNHCR has taken the ­position of assisting many of those displaced by a combination of drought, conflict and lack of good governance – e.g. considering as ­refugees those Ethiopians and Eritreans who came to Sudan and elsewhere in the mid1980s and Somalis who entered Kenya following the 2011 famine.

46   Koko Warner et al., Where the Rain Falls: Climate Change, Food and Livelihood Security, and Migration (UNU, 2012). 47  IDMC, Global Report, supra note 29, at 50. 48   Ibid., at 53. 49   Brendan Bromwich, Environmental Degradation and Conflict in Darfur: Implications for Peace and Recovery (Humanitarian Practice Network, 2008), http:// odihpn.org/magazine/environmental-degradation-and-conflict-in-darfur-implica​ tions-for-peace-and-recovery/.

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The Guiding Principles on Internal Displacement  ­123 B.  Slow-onset Effects of Climate Change It is clear that the Guiding Principles apply to those displaced by suddenonset disasters and the case can be made that, as a form of disasters, those displaced by drought may be considered as IDPs. Yet, the situation is a little murkier when it comes to other long-term effects of climate change, such as riverbank and coastal erosion, sea-level rise, melting of ­permafrost, bleaching of coral reefs, ocean acidification, and the effects of global warming on complex ecosystems. These effects are likely to make parts of the planet uninhabitable and thus lead to displacement. But there are several problems in applying the Guiding Principles in these s­ ituations, beginning with difficulties in determining when an area becomes ­uninhabitable. There are likely to be cases, for example, where a particular habitat becomes uninhabitable because of the effects of climate change but could perhaps sustain a lower population. It is even more likely to be the case that, as conditions deteriorate, people will see the writing on the wall and leave their communities in anticipation of the longer-term effects. This anticipatory displacement is covered in the Guiding Principles, but what is not covered is the fact that much of this movement is likely to occur through existing migration channels. As conditions become more difficult, for example, people will look for jobs in other parts of the country or will decide to up stakes and move elsewhere. Those with means will likely be able to plan their moves and cover their expenses in ways that make it possible for them to move. Those without the means are more likely to remain where they are until conditions become completely intolerable in which case they will either be displaced or will be relocated by governmental authorities.50 Walter Kälin and Nina Schrepfer note that in the context of slow-onset environmental degradation: such deterioration may not necessarily cause displacement, but it may prompt people to consider migration as a way to adapt to the changing e­ nvironment, and explain why people move to regions with better living conditions and income opportunities. However, if areas become uninhabitable over time because of further deterioration, finally leading to complete desertification, permanent flooding of coastal zones or similar situations, population movements will amount to forced displacement and become permanent.51

50   See Elizabeth Ferris, ‘Planned Relocations, Disasters and Climate Change: Consolidating Good Practices and Preparing for the Future’ (2014), http://www. brookings.edu/about/projects/idp/planned-relocations. 51   Walter Kälin and Nina Schrepfer, ‘Protecting people crossing borders in the context of climate change: normative gaps and possible approaches’ (UNHCR, 2012), at 22.

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124  Research handbook on climate change, migration and the law In other words, they seem to make the case that once an area becomes uninhabitable, people leaving are considered to be displaced while those who migrate in advance of this un-inhabitability are migrants. And yet the border between voluntary and involuntary mobility is a blurred one. In the case of small-island states affected by sea-level rise, it is likely that people will be compelled long before the islands are submerged because of the salinization of water supplies and arable land and destruction of infrastructure. If people move because they no longer have access to potable water – or if purchasing imported water becomes prohibitively expensive – it is difficult to see such movement as voluntary, even if they are using regular migration pathways. A related difficulty in applying the Guiding Principles is the vexing ­question of livelihoods. When people lose their livelihoods because of the effects of trade or agricultural policies or because of technological development and consequently leave their communities, they are generally considered to be economic migrants. In the case of displacement caused by conflict, people move not only because they are directly threatened by the fighting but also because the conflict destroys livelihoods and are ­considered to be IDPs. When the effects of climate change make it ­impossible to continue one’s livelihood – and hence to survive – people inevitably move. It is difficult to determine, under present legal frameworks if they are migrants or IDPs. Thus, the complex ­intersection of environmental and economic drivers of population movements makes ­ it difficult to apply the Guiding Principles which are based on the ­fundamental distinction between ­voluntary and involuntary movement. The definition of IDPs in the Guiding Principles requires that movement be forced or coerced. As Thomas noted, ‘[h]owever, in ­ the context of climate-change related movement, there are no widely accepted guidelines for determining at what point such movement is voluntary or forced’.52 It is particularly difficult to determine when climate change leads to loss of livelihoods and people move in order to find other jobs. The Environmental Justice Foundation considers the Guiding Principles to be an inadequate framework to deal with climate ­change-induced displacement precisely because they exclude movement for particular economic reasons, whereas there is a strong economic component to many displacements occurring as a c­onsequence of climate change.53 Displacement in these cases is likely to be slow  – ­occurring over weeks, months, and perhaps even years. It is likely to

52 53

 Thomas, supra note 21, at 813.   Environmental Justice Foundation, supra note 15, at 9.

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The Guiding Principles on Internal Displacement  ­125 occur in stages with part of the family moving first, supporting family members back home until conditions deteriorate to the point where the family itself cannot survive. To complicate matters further, such displacement is likely to occur in places where seasonal migration has long been used as a l­ivelihoods ­strategy. Jane McAdam, for example, notes that in Bangladesh, as elsewhere, there are long-standing patterns of seasonal labour migration and temporary displacement because of disasters; this movement includes rural-rural, rural-urban, and cyclical migration. After cyclones, for example, when household assets are diminished, seasonal movements increase.54 In these contexts where migration is traditionally used as a livelihood strategy, it is difficult to distinguish it from displacement. When seasonal ­migration increases in the aftermath of a disaster, does it become (forced) d ­ isplacement, or just an intensification of long-standing ­adaptation/survival strategies? While the scope of application of the Guiding Principles is broader than that of the 1951 Refugee Convention, including in particular armed conflict, situations of generalized violence, violations of human rights and natural or human-made disasters, the experts drafting the Guiding Principles deliberately stayed away from economic migrants as the degree of coercion was not so clear. It was felt that expanding the definition to include economic migrants could undermine the consensus around the issue of internal displacement and risk losing the focus on a group with distinct protection and assistance needs.55 However, the use of the words ‘in particular’ were intended to make the definition more flexible and not to exclude other groups, and thus the definition is not necessarily ­inapplicable to those displaced by slow-onset disasters. Moreover, if we consider the two defining characteristics of internal displacement – coercion and movement within the borders of a state – when climate change-induced movement is coercive in nature and when it occurs within the borders of a country, those displaced by the effects of climate change – including those whose livelihoods have been destroyed and those who move in anticipation of such changes – could be c­ onsidered as IDPs under the Guiding Principles. This should apply whether the proximate cause is economic or the time period over which such displacement occurs is a long one or whether people are displaced in small or large

 McAdam, Climate Change, supra note 28, at 167–9.   Erin Mooney, ‘The Concept of Internal Displacement and the Case for Internally Displaced Persons as a Category of Concern’ (2005) 24 Refugee Survey Quarterly 9. 54 55

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126  Research handbook on climate change, migration and the law numbers. Rather the fact that they were forced to leave their communities and they remained within the border of their country provides a case for ­considering them as IDPs. C.  What Difference Does It Make? The Guiding Principles call on governments to take measures to prevent displacement, to uphold the rights of those who are displaced and to support durable solutions. All three of these need further interpretation to apply to those who are displaced by slow-onset disasters and the effects of climate change. Preventing displacement in the context of climate change does not only mean preparing for disasters through enhanced early warning and early-response mechanisms. It also means legal preparedness, support for ­livelihood diversification, and other measures generally ­comprehended within the notion of climate-change adaptation. It may also mean governmental efforts to support communities to relocate so that they ­ will not be displaced later. This is perhaps clearest in the case of suddenonset disasters such as moving people from areas subject to flooding or to ­volcanic eruption, but governments may also be called on to begin planning to move people away from areas subject to coastal erosion ­ resulting from sea-level rise or other long-term effects of climate change. Supporting livelihood diversification can be a concrete way of preventing displacement and is a strong argument for the involvement of development actors as well as humanitarian and human rights organizations.56 Human rights protection involves ensuring that those displaced because of the effects of climate change – whether sudden-onset or occurring over time – have access to the same rights as all citizens in terms of access to services, shelter, documentation, and protection. It is the responsibility of governments to support durable solutions for those displaced within their borders and to request international assistance when needed. The Guiding Principles provide for three durable solutions: return to the place of origin, local integration or settlement in another part of the country. The IASC Framework for Durable Solutions for Internally Displaced Persons57 provides guidance on understanding both the ­conditions and the process by which durable solutions may be attained. The right of IDPs to return to their place of residence has been upheld by

  Report of the Special Rapporteur on the Human Rights of IDPs to the General Assembly (OHCHR 2011), at 15. 57  IASC, Framework for Durable Solutions, supra note 10. 56

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The Guiding Principles on Internal Displacement  ­127 the UN Security Council on several occasions and the voluntary nature of return has been upheld in a number of legal precedents.58 But climate change holds out the prospect that return may not be possible when the habitat is no longer suitable for human life. This also occurs, it should be noted, in sudden-onset disasters – for example, when a village is destroyed by a landslide. When return is not possible, then IDPs are likely to need support to settle in another part of the country. A particular issue which is always problematic in the case of IDPs – and which is likely to become more so in the context of climate change – regards compensation for loss of housing, land and property. While this has been extensively studied in the context of IDPs in conflict situations, there is much less research on what this means in the context of climate change. Kälin notes a progressive trend in international law to a right to ­compensation59 and there is helpful guidance from the World Bank in the case of involuntary resettlement,60 but this is largely uncharted ­territory in the case of displacement resulting from the effects of climate change, particularly given contentious issues of attributing responsibility for global warming and thorny discussions in the framework of climatechange mechanisms over consequent loss and damage. This is an area where it would be helpful to sort out responsibilities and processes for ­compensation before displacement becomes widespread. When return is possible, humanitarian and development ­cooperation is often needed to ensure post-disaster recovery. As noted above, the expertise of development actors is particularly useful in re-creating ­ ­livelihoods and developing adequate infrastructure to prevent further coastal erosion, for instance, or assistance in retrofitting homes to withstand more powerful storm surges or in dykes to prevent more ­ ­devastating coastal flooding. The Guiding Principles and the IASC Framework for Durable Solutions both insist on the voluntary nature of decisions and the importance of IDPs having a choice between the three solutions. In the context of climate change, there may be a more pressing need to consider other durable ­solutions, including migration or resettlement to other countries. Finally, it is important to consider the implications of d ­ isplacement at national level. From the very beginning of work to develop the Guiding Principles, there has been a recognition that, in order to be useful in upholding the rights of IDPs, the Guiding Principles needed to be

 Kälin, supra note 24, at 127–30.  Ibid., at 132–42. 60   World Bank, Operational Policy 4.12: Involuntary Resettlement (2013). 58 59

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128  Research handbook on climate change, migration and the law i­ ncorporated into national laws and policies and that those ­policies needed to be i­mplemented. Although over 20 governments have i­ncorporated at least part of the Guiding Principles into national laws and policies, there is still a major gap in their implementation. Moreover, very few states have incorporated the Guiding Principles into national disaster laws, much less into plans for climate-change adaptation. At the international levels, ­humanitarian and development actors alike have struggled to respond to the needs of IDPs. The 2005 reform of the humanitarian system was intended in large measure to address the needs of IDPs through development of the cluster system. While international attention to IDPs has certainly increased over the past decade, progress has been uneven and much remains to be done.61 While it is important to continue work on refining the international ­normative framework (and with supporting regional frameworks), it is even more important that national governments consider what changes to their own laws and policies are needed to be prepared to meet the needs of those who may be displaced by the effects of climate change in the future.

V. CONCLUSION The Guiding Principles on Internal Displacement have provided a useful framework for upholding the rights of those displaced by conflict, although much remains to be done in their implementation at the national level. The Guiding Principles serve as a useful normative framework for those displaced by sudden-onset disasters but it is more difficult to apply them to slow-onset disasters resulting from environmental change, some of which are occurring now due to climate change. As Zetter concludes, a: normative protection gap exists: current existing instruments and norms are insufficient to address protection concerns for the environmentally displaced . . . of currently available instruments to protect the rights of displaced persons, the 1998 Guiding Principles on Internal Displacement offer the most adequate normative framework to protect the rights of those displaced by environmental factors: but the Guidelines require review and refinement to overcome their current limitations.62   Elizabeth Ferris, Ten Years after Humanitarian Reform: How have Internally Displaced Persons Fared? (Brookings-LSE Project on Internal Displacement 2015), https://www.brookings.edu/research/ten-years-after-humanitarian-reform-howhave-internally-displaced-persons-fared/. 62  Zetter, supra note 24, at 24. 61

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The Guiding Principles on Internal Displacement  ­129 Or as Alice Thomas notes: [p]roblematically, the character of human movement linked to climate-related events does not always fit well within current legal and institutional frameworks, leaving open the question of when, and under what circumstances, people who move in the context of climate change are entitled to unique rights and protection.63

Beyond the question of normative frameworks is the question of which international agency should take the lead in developing or at least ­ ­interpreting such guidance. While occurring within the context of climate change, it is argued here that the climate change legal framework is not the appropriate place for the formulation or refinement of this guidance. Rather, as McAdam puts forward, the mandate of the UNHCR for the prevention of statelessness and IDPs may as well be relevant in the climate change displacement context.64 There is also a role for human rights actors. Indeed, the Human Rights Council has affirmed on many occasions that human rights instruments should be used to address the consequences of climate change.65 Those who move because of the effects of climate change and who cannot be considered to be IDPs are still subject to all human rights treaties, as this was recognized in the Paris Agreement.66 This chapter has concluded that – yes, the Guiding Principles on Internal Displacement are relevant to those displaced by the effects of climate change – but that additional work is needed by legal experts to refine certain aspects, especially questions of definition and ­causality, ­prevention, solutions, property and responsibility. It would be ­particularly useful for the UNHCR to convene a meeting of legal experts – i­ncluding those with expertise in development, climate change, human rights, migration, and humanitarian response – to consider developing an ­ addendum ­ ­ spelling out some of the particular issues related to the ­application of the Guiding Principles to those displaced by the effects of climate change. Such a meeting could benefit from legal experts who have worked on cross-border disaster displacement in the context of the Nansen Initiative/Platform on Disaster Displacement. The involvement of states in the discussion – particularly those likely to be most affected by the effects  Thomas, supra note 21, at 810.  McAdam, supra note 28, at 226. 65   For an overview of the UN Human Rights Council’s work with climate change, see UNCHR, ‘Human Rights and Climate Change’ (n.d.), http://www. ohchr.org/EN/Issues/HRAndClimateChange/Pages/HRClimateChangeIndex. aspx. 66   Paris Agreement (2015), recital 12. 63 64

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130  Research handbook on climate change, migration and the law of climate change – would increase the credibility of such an expert-led process. Such a ‘Climate Change Addendum to the Guiding Principles’ should be ­developed now – before many people are displaced – to provide guidance to both states and international organizations. This guidance would be enormously useful not only in responding to future population ­movements, but, more importantly, in upholding the rights of those who are likely to be displaced in the future.

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7.  Climate change, human rights and migration: a legal analysis of challenges and opportunities Climate change, human rights and migration

Siobhán McInerney-Lankford*

INTRODUCTION Neither human rights law nor international refugee law1 currently ­contains direct protection for persons or groups made vulnerable by climate change.2 This chapter acknowledges the legal protection gaps3 that exist vis-à-vis climate migrants4 but argues that ‘human rights obligations provide important protection to the individuals whose rights are affected by climate

*  The author thanks the following for invaluable inputs and comments on an earlier draft of this chapter: Bonnie Docherty, John Knox, Dan Magraw and Kirsteen Shields. Responsibility for errors or omissions remains with the author; the views expressed herein are those of the author and should not be attributed to the World Bank or its Board of Executive Directors.  1   While it is recognized that the 1951 Refugee Convention is a human rights instrument, the analysis in this chapter looks primarily at the two covenants (ICCPR and ICESCR).  2   The 1951 Refugee Convention protects refugees which it defines as ­‘individuals who are outside of their country of origin and have a well-founded fear of persecution for reasons of their race, religion, nationality, political opinion or membership in a particular social group’. The definition of a protected person is therefore very narrow and not generally viewed as extended to those who move in anticipation of or because of environmental or climate-related causes see e.g. B. Docherty and T. Giannini, ‘Confronting a Rising Tide: A Proposal for a Convention on Climate Change Refugees’ (2009) 33 Harvard Environmental Law Review 349, at 372; see also W. Kälin and N. Schrepfer, Protecting People Crossing Borders in the Context of Climate Change: Normative Gaps and Possible Approaches (UNHCR Legal Protection Policy Research Series, February 2012), at 31–33.  3   For an important proposal for a new instrument to address the plight of climate refugees, see Docherty and Giannini, supra note 2.  4   See M. Klein Solomon and K. Warner, ‘Protection of Persons Displaced as a Result of Climate Change: Existing Tools and Emerging Frameworks’ in M. Gerrard and G. Wannier (eds.), Threatened Island Nations: Legal Implications of Rising Seas and A Changing Climate (Cambridge University Press, 2013) 294.  

131

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132  Research handbook on climate change, migration and the law change’.5 Conversely, it contends that more systematic ­compliance with existing human rights obligations would go some way towards reducing climate displacement and minimizing its harms where it does occur,6 and that States should uphold their human rights obligations so as to prevent conditions that may lead to climate migration.7 Thus, notwithstanding legal gaps,8 this chapter argues for ‘clear analyses and insistence on enforcing and monitoring norms’9 of existing human rights law since these already bind States parties and may already provide substantive protection for climate migrants.10 The chapter argues that human rights law can be interpreted to protect climate migrants,11 and that there are real advantages to seeking protection under international human rights law.12 It analyses how the obligations to respect, protect

  Report of the Office of the United Nations High Commissioner for Human Rights on the relationship between climate change and human rights A/HRC/10/61 15 January 2009 (hereafter OHCHR Study), para. 71.  6   See 2013 Peninsula Principles on Climate Displacement within States which provide a comprehensive normative framework, based on principles of ­international law, human rights obligations and good practice, within which the rights of climate displaced persons can be addressed, available at http://displacementsolutions.org/ peninsula-principles/.  7   UNHCR Guiding Principles on IDPs, Principle 5.  8   In this way, the gaps in both the normative or legal frameworks, as well as in their enforcement is acknowledged. See Oxford Centre for Refugee Studies, Protecting Environmentally Displaced People. Developing the Capacity of Legal and Normative Frameworks: Research Report (2011), at 7.  9   M. Satterthwaite in ‘Crossing Borders, Claiming Rights: Using Human Rights Law to Empower Women Migrants’ (2005) 8 Yale Human Rights and Development Law Journal 1. 10   The UN human rights treaty bodies have significantly clarified states’ human rights obligations related to the environment and climate change. See ‘Report of the Report of the Special Rapporteur on the issue of human rights ­obligations relating to the enjoyment of a safe, clean, healthy and sustainable environment’, A/HCR/31/53 of 28 December 2015, paras 34–36. 11   Migration usually occurs due to a complex combination of factors which often go beyond climate alone, the term ‘climate migrants’ is used as a shorthand to encompass two distinct categories of persons made vulnerable by climate change – first, persons forced to leave their homes, but who remain within their home countries, rendering them climate IDPs, and those forced to flee their countries, rendering them climate refugees. See Oxford Centre for Refugee Studies, supra note 8, at 16: ‘As such there is a need to assess the extent to which existing instruments may be reapplied, reinterpreted and reformed to protect environmentally displaced persons.’ 12   J. Knox, ‘Diagonal Environmental Rights’ in S. Skogly and M. Gibney (eds.), Universal Human Rights and Extraterritorial Obligations (University of Pennsylvania Press, 2010), at 85.  5

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Climate change, human rights and migration  ­133 and fulfil human rights can be interpreted to respond to the plight of climate migrants, and it argues for international policy coherence and against the fragmentation of international law or its ‘counterproductive compartmentalization’.13 The plight of groups and individuals made vulnerable by climate change has been researched from a range of perspectives. This chapter analyses climate vulnerability and migration through the lens of international human rights law. It argues that climate migration is not ‘human rights neutral’ in that its impacts are borne disproportionately by ‘those segments of the population who are already in a vulnerable situation’14 and by groups and individuals who already suffer discrimination.15 In this vein, the analysis draws also on non-discrimination and equality16 to further ground protection for climate migrants by relying on analyses of ‘intersectionality’17 of climate migrants’ disadvantage and multiple forms of discrimination. While new international standards of protection are necessary,18 this chapter examines existing provisions of human rights law to assess how they protect climate migrants, whether displaced internally or throughout international borders.19 Non-discrimination is central to this analysis since the plight and condition of climate migrants have important equality dimensions. If one begins by inquiring who becomes a climate migrant and who is most at risk once they migrate, the answers point to people already at risk of discrimination. Climate impacts are most felt ‘in the world’s poorest countries where rights protections are too often weak [. . .] a vicious circle links precarious access to natural resources,  Satterthwaite, supra note 9, at 2.   UN Human Rights Council Resolution 10/4, Human Rights and Climate Change (March 2009). 15   In HR Council Resolution (10/4) decision to hold a panel discussion on the relationship between climate change and human rights to contribute to the Bali Action Plan. 16   UDHR, art. 7 and central to several human rights treaties including CEDAW, ICCPR, ICESCR and CERD. 17   K. Crenshaw, ‘Mapping the Margins: Intersectionality, Identity Politics, and Violence Against Women of Color’ (1991) 43(6) Stanford Law Review 1241; ‘Demarginalizing the Intersection of Race and Sex: A Black Feminist Critique of Antidiscrimination Doctrine, Feminist Theory and Antiracist Politics’ (1989) 43(6) University of Chicago Legal Forum 139. 18   See e.g. some initiatives propose new legal standards, see e.g. Docherty and Giannini, supra note 2; other initiatives do not e.g. Nansen Initiative which works towards a protection agenda for people displaced across borders in the context of natural disasters and climate change. https://www.nanseninitiative.org/ secretariat/. 19   See Satterthwaite, supra note 9. 13 14

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134  Research handbook on climate change, migration and the law poor physical infrastructure, weak rights protections, and vulnerability to climate-related harms’.20 Climate migrants are also likely to be members of disadvantaged and discriminated groups, including minorities, women, indigenous people and poorer people. They are often vulnerable separate and apart from the effects of climate change, both in terms of the countries they come from and the groups or regions within those countries. Relatedly, such climate migrants will be susceptible to far greater harm once they migrate: women, minorities, children, older people and persons with ­disabilities will be at risk of further human rights violations as they move and when they settle in new places.21 As such, the status of ‘climate migrant’ may not be the only relevant variable for these groups: multiple variables apply and these can compound their vulnerability. As Margaret Satterthwaite has observed, ‘the traditional single-variable human rights analysis’ fails to articulate the ways in which rights standards can be enlisted to provide strong protections for individuals whose experience crosses the pre-set institutional lines.22 The present analysis goes beyond a single variable analysis and relies on anti-discrimination principles to ground human rights law obligations that may protect those groups and individuals whose disadvantage is compounded by climate change,23 such that the effect is ‘causal and mutually reinforcing’.24 Finally, an anti-discrimination argument can be used to ground a general ­principle that climate migrants are entitled to the full range of rights owed to all  other  rights-holders and that they not be the subject of discrimination.25

  S. Humphreys, ‘Introduction: Human Rights and Climate Change’ in S.  Humphreys (ed.), Human Rights and Climate Change (Cambridge University Press, 2010) 1, at 2. 21   See Principle 3 of the Peninsula Principles. 22  Satterthwaite, supra note 9, at 3. 23   Independent Expert on Human Rights and the Environment, Report of the Independent Expert, John H. Knox, ‘Compilation of good practices – Obligations relating to members of groups in vulnerable situations’ para 93-102. A/HRC/28/61 3 February 2015; and Report of the Independent Expert on the issue of human rights obligations relating to the enjoyment of a safe, clean, healthy and sustainable environment, John H. Knox, ‘Mapping Report’ A/HRC/25/53 (30 December 2013), paras 69–78 (hereafter ‘Mapping Report’); Rio Declaration on Environment and Development (1992), Principle 21; Universal Declaration of Human Rights, art. 19; International Covenant on Civil and Political Rights (1966), art. 19. 24  Humphreys, supra note 20. 25   See e.g. for climate IDPs, one may draw upon UNHCR, Guiding Principles on IDPs Principle 1. 20

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Climate change, human rights and migration  ­135

I.  HUMAN RIGHTS LAW AND CLIMATE CHANGE The social and human impacts of accelerating climate change are well evidenced.26 According to the Fourth and Fifth Assessment Reports of the Intergovernmental Panel on Climate Change (2007)27 and (2013),28 global warming is causing rising sea levels, warmer sea temperatures and acidification, shrinking of snow-covered areas and sea ice and more tropical cyclones and droughts. The impacts of climate change can also be understood in human rights terms29 and with some even going so far as to characterize them in terms of violations of human rights law.30 The rights potentially impacted include the rights to life, self-determination, food, water, health and housing.31 As noted above, the special impacts of climate change on marginal, vulnerable or minority groups, or individuals belonging to such groups, also potentially raise equality claims, 32 ­including through their disparate impacts on protected groups such as women,33 minorities, children,34 and indigenous people.35 Climate change will be felt   See World Bank analytical work on the Social Impacts of Climate Change at http://go.worldbank.org/SD8MH5HLU0. 27  IPCC, Climate Change 2007: Synthesis Report, An Assessment of the Intergovernmental Panel on Climate Change (Cambridge University Press, 2007) (hereafter IPCC AR4). 28  IPCC, Climate Change 2013: The Physical Science Basis (Cambridge University Press, 2013) (hereafter IPCC fifth assessment). 29   S. Atapattu, ‘Global Climate Change: Can Human Rights (and Human Beings) Survive This Onslaught?’ (2008) 20 Colorado Journal of International Environmental Law and Policy 35; S. Kass, ‘Integrated Justice: Human Rights, Climate Change & Poverty’ (2009) 18 Transnational Law & Contemporary Problems 115; OHCHR Study supra note 5, at 8–16. 30   OHCHR Study supra note 5, at 8. 31   J. Hohmann, ‘Igloo as Icon: A Human Rights Approach to Climate Change for the Inuit? (2009) 18 Transnational Law & Contemporary Problems 295. 32   Human Rights Council Resolution A/HRC/RES/16/11 on Human Rights and the Environment (12 April 2011) notes that environmental damage can have negative implications, both direct and indirect, for the effective enjoyment of human rights and recognizes that environmental damage is most acutely felt by those segments of the population already in vulnerable situations. 33   IBA Climate Change Justice and Human Rights Task Force Report, Achieving Justice and Human Rights in an Era of Climate Disruption (July 2014) (hereafter IBA report) 43. 34  Ibid. 35   OHCHR Study supra note 5, at 15–18. See also E. Gerrard, ‘Climate Change and Human Rights: Issues and Opportunities for Indigenous Peoples’ (2008) 31(3) University of New South Wales Law Journal 941; M. Middaugh, ‘Linking Global Warming to Inuit Human Rights’ (2006) 8 San Diego International Law Journal 179. See also IBA Report supra note 33, at 43. 26

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136  Research handbook on climate change, migration and the law most acutely by groups who are already in vulnerable situations and whose vulnerability is likely to be exacerbated by it. As the 2015 Human Rights Council resolution affirmed: ‘the adverse effects of climate change are felt most acutely by individuals or segments of the population that are already in vulnerable situations owing to factors such as geography, poverty, gender, age, indigenous or minority status, national or social origin, birth or other status and disability’.36 Prominent efforts to link human rights and climate change37 include legal strategies such as the 2005 Inuit38 petition before the Inter-American Commission on Human Rights for violations of Inuit rights protected under the Inter-American Declaration on Human Rights resulting from acts and omissions related to climate policy.39 Political strategies such as that led by Maldives have resulted in the Malé Declaration on the Human Dimension of Global Climate Change40 and in five UN Human Rights   UN Human Rights Council Resolution on Human Rights and Climate Change, 30 June 2015, A/HRC/29/L.21. See also J. Knox (2010), supra note 12, on the obligations relating to members of groups in vulnerable situations. 37   A well-developed literature exists connecting human rights and the ­environment: D. Shelton ‘Human Rights, Environmental Rights and the Right to Environment’ (1991) 28 Stanford Journal of International Law 103; W. Gormley ‘The Legal Obligation of the International Community to Guarantee a Pure and Decent Environment: The Expansion of Human Rights Norms’ (1991) 3 Georgetown International Environmental Law Review 85; I. Hodkova, ‘Is There a Right to a Healthy Environment in the International Legal Order?’ (1991) 7 Connecticut Journal of International Law 65; A. Boyle, ‘The Role of International Human Rights Law in the Protection of the Environmental’ in A. Boyle and M. Anderson (eds.), Human Rights Approaches to Environmental Protection (Oxford University Press, 1996) 43; D. Shelton, ‘Environmental Rights’ in P. Alston (ed.) People’s Rights (Oxford University Press, 2001). See also, 1968 UN GA Resolution 2398 (XXIII) on Problems of the Human Environment noting the link between the impairment of the environment and the enjoyment of human rights; 1992 Rio Declaration on Environment and Development, Principle 1 and 1972 Stockholm Declaration on the Human Environment, Principle 1. 38   The NGO that brought the petition is the Inuit Circumpolar Conference (ICC) representing the Inuit people of Alaska, Canada, Greenland and Russia. See H. Osofsky, ‘Inuit Petition as a Bridge – Beyond Dialectics of Climate Change and Indigenous Peoples’ Rights’ (2007) 31 American Indian Law Review 675; J. Harrington, ‘Climate Change, Human Rights and the Right to be Cold’ (2007) 18 Fordham Environmental Law Review 513. 39   The Commission declined to process the petition on the basis that the ­information provided did not enable it to determine whether the alleged facts would tend to characterize a violation of rights protected by the American Declaration. 40  AOSIS, Malé Declaration on the Human Dimension of Global Climate Change (2007), available at http://www.ciel.org/Publications/Male_Declaration_ Nov07.pdf. 36

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Climate change, human rights and migration  ­137 Council resolutions.41 Finally, the Paris Agreement outcome document of COP 21 in December 2015 is significant in its recognition of the linkage between human rights and climate change.42

II.  CLIMATE MIGRANTS As Kälin and Schrepfer conclude, ‘[a]lthough there is no “direct and exclusive causality” between environmental events caused by climate ­ change and most forms of displacement, the connection between the two is well-established.’43 François Crépeau, the Special Rapporteur on the human rights of migrants, has also noted: ‘The effects of climate change will likely play a significant and increasingly determinative role in international migration.’44 The issue is complex: people rarely migrate solely for ­environmental reasons and the impacts of climate change often contribute to a cluster of causes that lead to migration,45 rendering the measurement of the phenomenon extremely difficult.46 The First Assessment Report of the IPCC (1990) asserted that the greatest single impact of climate change might be on human migration, noting that by 2050, 150 million people could be displaced by climate change-related phenomena, such as ­desertification. Later studies offer estimates of 200 million47 and 250

41   The Human Rights Council has issued five resolutions on human rights and climate change: which called upon the OHCHR to conduct an analytical study on the relationship between climate change and human rights. See Resolution 7/23 (2008) on Human Rights and Climate Change Resolution 10/4 (2009); Resolution 18/22 (2011); Resolution 26/27 (2014); Resolution 29/15 (2015) and Resolution 26/27. 42   See, e.g. Outcome document CoP 21, 12 December 2015: draft text at http:// unfccc.int/resource/docs/2015/cop21/eng/l09.pdf. 43   Kälin and Schrepfer, supra note 2; UNHCR ‘Forced Displacement in the Context of Climate Change: Challenges for States under International Law’, Submission to the 6th session of the Ad Hoc Working Group on long-term Cooperative Action under the Convention AWG-LCA 6, at 2 (19 May 2009). 44   Report of the Special Rapporteur on the human rights of migrants to the General Assembly 13 August 2012 UN Doc A/67/299, para. 17. 45  Ibid. 46   S. Atapattu, ‘Climate Change, Human Rights and Forced Migration: Implications for International Law’ (2009–10) 27(3) Wisconsin International Law Journal 607, at 610. 47   N. Myers, Environmental Refugees: An Emergent Security Issue (13th Economic Forum, May 2005), at http://www.osce.org/eea/14851?download5true; Stern Review on the Economics of Climate Change (2006) at http://www.hm-treas​ ury.gov.uk/sternreview_ index.htm.

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138  Research handbook on climate change, migration and the law million.48 According to the IDMC in 2013 alone almost 22 million people were displaced by disasters in at least 119 countries, almost three times as many as the number of people newly displaced by conflict and violence.49 Although measuring such numbers is both difficult and controversial some estimates put the number of climate-displaced people between 25–30 million people while others put it near 50 million.50 The principal impacts of climate change resulting in migration are sea-level rise, extreme weather events and drought and water scarcity.51 According to the OHCHR: [s]ea level rise and storm surges will have a direct impact on many coastal settlements. In the Arctic region and in low-lying island States such impacts have already led to the relocation of peoples and communities. Settlements in low-lying mega-deltas are also particularly at risk, as evidenced by the ­millions of people and homes affected by flooding in recent years. The erosion of l­ivelihoods, partly caused by climate change, is a main ‘push’ factor for increasing rural to urban migration. Many will move to urban slums and informal settlements where they are often forced to build shelters in h ­ azardous areas. Already today, an estimated 1 billion people live in urban slums on fragile hillsides or flood-prone riverbanks and face acute vulnerability to extreme climate events.52

As climate change contributes to forced human migration and ­displacement, a first and most direct impact will be on the right to adequate housing, but the resulting crises will also threaten health and subsistence.53 The OHCHR has distinguished between four main climate changerelated displacement scenarios caused by: (i) weather-related disasters, such as hurricanes and flooding; (ii) gradual environmental deterioration and slow-onset disasters, such as desertification, sinking of coastal zones and possible total submersion of low-lying island States;   ‘Human tide: the real migration crisis’, Christian Aid, 2007. See also IPCC AR4 WGII Report, p. 365 and Vikram Odedra Kolmannskog, Future floods of refugees: A comment on climate change, conflict and forced migration (Norwegian Refugee Council, 2008). 49   Internal Displacement Monitoring Center and the Norwegian Refugee Council, Global Estimate 2014: People Displaced by Disaster (2014), 14. 50  Atapattu, supra note 46, at 610. 51   F. Biermann and I. Boas, Preparing for a Warmer World: Towards a Global Governance System to Protect Climate Refugees (Global Governance Working Paper No. 33, November 2007), at 10. 52   OHCHR Study, supra note 5, para. 37. 53   IBA Report, supra note 33, at 42 citing UN High Commissioner for Refugees, Climate Change, Natural Disasters and Human Displacement (2009), at 3–6. 48

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Climate change, human rights and migration  ­139 (iii) increased disaster risks resulting in relocation of people from highrisk zones; (iv) social upheaval and violence attributable to climate change-related factors.54 Who are the climate migrants and why are they migrating? The term ‘climate migrants’55 will be used as a shorthand to encompass two ­distinct categories of persons made vulnerable by climate change – first, persons forced to leave their homes, but who remain within their home countries, rendering them climate IDPs, and second those forced to flee their countries, rendering them climate refugees.56 The terms ‘climate migrant’, ‘climate IDP’ and ‘climate refugee’ 57 are used out of necessity even though it is acknowledged that such groups defy precise definition and that such categorizations are contested. In attempting to understand the varied profiles of ‘climate migrants,’ critical distinctions can be drawn between forced and voluntary migration and between ­temporary and permanent migration, although, in practice, these ­distinctions are extremely difficult to make.58 Docherty and Giannini have i­dentified the following six cumulative conditions to identify a climate refugee: (i) forced migration; (ii) temporary or permanent relocation; (iii) movement across national borders; (iv) disruption consistent with climate change; (v) sudden or gradual environmental disruption; and (vi) a ‘more likely than not’ standard for human contribution to the disruption.59 A critical and crosscutting feature of ‘climate migrants’ is that they will likely also be members of poor and vulnerable groups, as well as members of minority and discriminated groups.  OHCHR supra note 5, para. 56.   Oxford Centre for Refugee Studies, supra note 8, dismisses the use of this term on the basis that it potentially overlooks the involuntary nature of the move, opting instead for use of the term ‘displacement’. 56   Persons forcibly displaced across borders for environmental reasons have been referred to as ‘climate refugees’ or ‘environmental refugees’. UNHCR, IOM and other humanitarian organizations have advised that these terms have no legal basis in international refugee law and should be avoided in order not to undermine the international legal regime for the protection of refugees. 57   On terminology, see Atapattu, supra note 46, at 619–22. 58   Oxford Centre for Refugee Studies, supra note 8, at 4. 59   Docherty and Giannini, supra note 2, at 372. 54 55

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140  Research handbook on climate change, migration and the law

III. HUMAN RIGHTS LAW: SOURCES OF PROTECTION FOR CLIMATE MIGRANTS A.  Value Added of Human Rights Law What is the significance of characterizing a problem in human rights terms? What is the value added of invoking human rights?60 The single most important qualitative difference of characterizing something as a human right is that it introduces the concept of duty.61 Rights imply correlative duties62 and legal rights rely on their ­correlative legal o ­ bligations. Rights establish both claimants and duty-bearers giving agency to both.63 As Jack Donnelly observed, quoting Feinberg, ‘claiming a right can “make things happen”’.64 Crucially, rights support a­ ccountability by ­providing concrete baselines against which to assess processes and outcomes: Along with the human factor, human rights also introduce an accountability framework that is an essential element of the promotion and protection of human rights itself, by holding governments, the duty-bearers accountable to reducing the vulnerability of their citizens to global warming and assisting them in adapting to the consequences. [. . .] International human rights law imposes several obligations on States that are relevant to addressing human ­vulnerabilities to climate change.65

Thus, the accountability introduced by human rights is based upon the legal obligations underpinning all of human rights law, which are classified along three vectors of obligations to respect, protect and fulfil. 60   See J.G. Merrills, ‘Environmental Rights’ in D. Bodansky, J.Brunnée and E. Hey (eds.) The Oxford Handbook of International Environmental Law (Oxford University Press, 2007) 666. 61   S. Caney, ‘Climate Change, Human Rights and Moral Thresholds’ in S.  Humphreys (ed.), Human Rights and Climate Change (Cambridge University Press, 2009) 69. 62   On the ‘correlativity of rights and duties’, see B. Mayo, ‘What Are Human Rights?’ in D.D. Raphael, Political Theory and the Rights of Man (9th ed., Indiana University Press, 1967) 68, at 72; A. Eide, ‘Economic, Social and Cultural Rights as Human Rights’ in A. Eide, C. Krause and A. Rosas (eds.) Economic, Social and Cultural Rights (Martinus Nijhoff, 2001) 22. 63   T. Murphy, ‘An Argument for Method’ in T. Murphy (ed.), Health and Human Rights (Hart, 2013) 10. 64   J. Donnelly, The Concept of Human Rights (Palgrave Macmillan, 1985) at 8, citing J. Feinberg, Rights, Justice and the Bound of Liberty: Essays in Social Philosophy (Princeton University Press, 1980), at 150. 65   Deputy High Commissioner for Human Rights, Kyung-wha Kang, 2007 Bali Conference of Parties (COP 13).

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Climate change, human rights and migration  ­141 B.  Applicability of International Human Rights Law to Climate Migrants Human rights law generates relevant obligations, irrespective of whether climate change violates human rights, and regardless of whether a country has contributed to climate change. The human rights law providing protection is triggered because rights are affected: ‘Human rights obligations provide important protection to the individuals whose rights are affected by climate change.’66 Moreover, ‘human rights obligations and commitments have the potential to inform and strengthen international and national ­policy-making in the area of climate change’.67 They may operate as ­substantive standards or thresholds to provide guidance on the ‘levels of protection for individual rights that can be regarded as the minimum acceptable outcome under a given policy scenario’.68 They also mandate a minimum standard of ‘do no harm’, such that the acts and omissions of States in respect of climate change must at least not lower the standard of human rights enjoyment that c­ urrently prevails. More positively, these treaty obligations require that States act to protect their citizens (and in some cases non-citizens) from the impacts of climate change, regardless of whether the harms of climate change result from their acts or ­omissions. As John Knox has written: ‘Whether a state causes climate change is a ­separate question from whether it has a duty to address the effects of climate change on human rights.’69 A human rights perspective on climate change locates the analysis in entitlements and protections that are the subject of human rights treaties and the object of legal obligations,70 voluntarily assumed by States and binding under international law.71 The analysis focuses primarily on human

  OHCHR Study, supra note 5, para. 71.   UN Human Rights Council Resolution 10/4 (2009). 68  ICHRP, Climate Change and Human Rights: A Rough Guide (2008), available at http://www.ohchr.org/Documents/Issues/ClimateChange/Submissions/136_ report.pdf, at 18. 69   J. Knox, ‘Linking Human Rights and Climate Change at the United Nations’ (2009) 33 Harvard Environmental Law Review 477, at 491. 70   For an exhaustive analysis of the procedural and substantive human rights obligations relating to the environment, including climate change, see Report of the Independent Expert on the issue of human rights obligations relating to the enjoyment of a safe, clean, healthy and sustainable environment, A/HRC/25/53, 30 December 2013. 71   OHCHR Study supra note 5, para. 23. See generally S. McInerney-Lankford, ‘Climate Change and Human Rights: An Introduction to Legal Issues’ (2009) 33 Harvard Environmental Law Review 437. See also UNEP, Climate Change and Human Rights (10 December 2015). 66 67

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142  Research handbook on climate change, migration and the law rights protected under universal treaties72 – particularly the ICCPR and the ICESCR – although soft law may also provide some relevant protection.73 Applying the foregoing insights to migration, human rights law protection is triggered by the fact of migration, without inquiring into the causes or contributing factors for that migration; indeed once migration has occurred the protection of international human rights law is crucial.74 As such: [a]ll displaced persons, whether internal or international, are entitled to fundamental human rights. It is immaterial to this entitlement whether the displacement is caused by drought, rising sea level or disaster, or indeed, any other ‘migration drivers’. They are owed equally to every human being by states parties to the treaties protecting them.75

C.  Distinguishing IDPs from Cross-border Migrants There are two dimensions to the application of human rights law to the plight of climate migrants: the first is the traditional ‘vertical axis’ of the human rights, governing the relationship between States and their ­citizens76 – which primarily concerns the plight of climate IDPs, although it potentially applies to climate refugees who are within a State’s territory or effective control. Second, is the ‘horizontal dimension’ of human right obligations, potentially owed by one government to another in respect of the latter’s climate refugees; this has insightfully been termed the ‘diagonal’ application of rights,77 since in effect it invokes government obligations ­vis-à-vis citizens of another State. Within the vertical application of human rights law, ‘[p]ersons affected by displacement within national borders are entitled to the full range of human rights guarantees by a given State, including protection against arbitrary or forced displacement and rights related to housing and 72   Customary law may also be relevant see J. Lee ‘The Underlying Legal Theory to Support a Well-Defined Human Right to Healthy Environment as a Principle of Customary International Law’ (2000) 25 Columbia Law Journal 285. 73   The Guiding Principles have gained wide acceptance recognized in the 2005 World Summit Outcome (A/RES/60/1) ‘as an important international framework for the protection of internally displaced persons’. See also Klein Solomon and Warner, supra note 4, at 267–71. 74   Docherty and Giannini, supra note 2, at 378; D. Hodgkinson and L. Young, ‘In the Face of Looming Catastrophe: A Convention for Climate-ChangeDisplaced Persons’ in Gerrard and Wannier (eds.), supra note 4, 299. 75   Protecting Environmentally Displaced People, Oxford Centre for Refugee Studies, supra note 8 at 16. 76   Knox (2010), supra note 12, at 82. 77  Ibid.

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Climate change, human rights and migration  ­143 ­ roperty restitution for displaced persons’.78 The application of human p rights law in this scenario is, at least in theory, relatively settled.79 The case of the climate refugee is more complex since by definition it relates to cross-border scenarios and invokes obligations owed to non-citizens as well as the dimension of extraterritorial application of human rights obligations.80 As the OHCHR has noted: ‘persons moving voluntarily or forcibly across an international border due to environmental factors would be entitled to general human rights guarantees in a receiving State, but would often not have a right of entry to that State’.81 While receiving States may owe a range of obligations to climate migrants who seek to reach their borders under different international law instruments (such as the Refugees Convention), the clearest human rights obligations will be owed once the immigrants have reached their soil,82 including  under the  ICESCR with respect to health, housing and employment.83 The principles of equality and non-discrimination ground the ­application of human rights law here in two ways, first, by providing climate migrants with the same protections as any other person: The existing international legal framework endows every human being with fundamental human rights. Environmental and climate change migrants ­ and ­ displaced persons are thereby entitled to enjoy, equally and without ­discrimination, the same human rights and freedoms under international and national laws as every other person (emphasis added).84

Moreover, the notion of intersectionality,85 and the disparate impact of climate impacts on already vulnerable groups reinforces the ­argument in support of the applicability of human rights law to the plight of climate   OHCHR Study, supra note 5, para. 57. See also UNHCR, Guiding Principles on IDPs Principle 1. 79   Oxford Centre for Refugee Studies, supra note 8, at 5. 80   R. Fatima, A. Jawadurovna Wadud and S. Coelho, ‘Human Rights, Climate Change, Environmental Degradation and Migration: A New Paradigm’ (IOM and MRI, Issue in Brief #8, March 2014) 3. 81  OHCHR, The Rights of Non-Citizens (2006) para. 58. 82   V. Blake, ‘Mass African Migration into Europe: Human Rights and State Obligations’ (2010–11) 32 Journal of Public Law and Policy 135, at 163. 83   Ibid., at 166. 84   Fatima et al., supra note 80. 85   Intersectionality is a term used to describe the compounding effects of multiple forms of discrimination, such as gender and race. See e.g. K. Crenshaw, ‘Mapping the Margins: Intersectionality, Identity Politics, and Violence Against Women of Color’ in M. Albertson Fineman and R. Mykitiuk (eds.), The Public Nature of Private Violence (Routledge, 1994) 93. See also UNHCR, Guiding Principles on Internal Displacement (1998), Principle 1. 78

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144  Research handbook on climate change, migration and the law migrants and points to provisions offering protection in a range of instruments. Second, equality and non-discrimination can be invoked to protect the climate refugee. Thus, a government’s obligations are not automatically extinguished because of a distinction based on nationality or country of origin. International human rights law mandates that all persons, by virtue of their essential humanity, should enjoy all human rights without discrimination unless exceptional distinctions – for example between ­ citizens and non-citizens – serve a legitimate State objective and are proportional to the achievement of that objective.86 While human rights law permits some distinctions, it requires a proportionality style analysis to justify such distinctions, the presumption being that human rights ­obligations are owed to all and this is supported by the terms of Article 2(1) of the ICCPR,87 and confirmed by the Human Rights Committee such that the general rule requires the rights of the Covenant to be ­guaranteed without discrimination between citizens and aliens. ICERD also permits States to make distinctions between citizens and non-citizens, but it requires all non-citizens to be treated similarly,88 and States’ obligation to guarantee equality between citizens and non-citizens is reaffirmed in the CERD Committee’s General Recommendation XXX on discrimination against non-citizens.89 The Committee has confirmed that this requirement ‘must not be interpreted to detract in any way from the rights and freedoms recognized and enunciated in other instruments, especially the UDHR, the ICCPR and the ICESCR’.90 The Committee called upon States parties to focus on the problems faced by non-citizens with regard to economic, social and cultural rights, notably in areas such as housing, education and employment and called upon states to use all ­available means, including international cooperation, to address the ­situation of refugees and displaced persons. With respect to climate migrants the UN Human Rights Council has recognized: the particular vulnerabilities of non-nationals who may face challenges a­ ssociated with implementing appropriate responses in extreme weather c­ onditions owing

 OHCHR, supra note 81, at 5.   This is further buttressed by article 26 of the International Covenant on Civil and Political Rights (1966). 88  OHCHR, supra note 81, at 8. 89   CERD General Recommendation XXX on Discrimination Against NonCitizens (1 October 2002). 90   CERD Committee General Recommendation XI (19 March 1993). 86 87

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Climate change, human rights and migration  ­145 to their status and who may have limited access to information and services, resulting in barriers to the full enjoyment of their human rights.91

However, although they are persuasive such resolutions do not create legal obligations and the pronouncements of the human rights monitoring bodies are not legally binding. A number of legal questions still remain. Under what conditions can one argue for a legal obligation on the part of other ­governments to allow climate refugees of another country to enter their territory since no clear legal obligation to do so exists: ‘Normative gaps exist for those moving across international borders and where there is a total loss of territory’92 and distinctions based on nationality are ­permitted in most human rights regimes with respect to the enjoyment of human rights within a state’s territory or e­ ffective control. Beyond legal ­obligations, it has been argued that: a person who cannot be reasonably expected to return (e.g. if assistance and protection provided by the country of origin is far below international ­standards) should be considered a victim of forced displacement and be granted at least a temporary stay.93

Nevertheless, it may still be argued that existing human rights law can provide protections to each category of climate migrant, even if the more established and expansive protection exists for climate IDPs than for climate refugees. D. Specifying Obligations Owed to Climate Migrants under Human Rights Law Employed by UN ESCR Committee on ESCR,94 the primary frame of reference for the analysis of obligations is ‘protect, respect, and fulfil’.95 While   UN Human Rights Counsel Resolution 2A/HRC/32/L.34, Human Rights and Climate Change (28 June 2016), preamble. 92   Oxford Centre for Refugee Studies, supra note 8, at 5. See also Knox (2010), supra note 12, at 81. 93  OHCHR, supra note 81. 94   The Committee on ESCR has relied on this typology since 1999, see General Comment No. 12, The right to adequate food (art.11), E/C.12/1999/5 (12 May 1999); General Comment No. 14, The right to the highest attainable standard of health (art. 12), E/C.12/2000/4.14 (11 August 2000); and General Comment No.15, The right to water, E/C.12/2002/11 (20 January 2000). For a thoughtful critique of the t­ypology in relation to economic, social and cultural rights, see I.  Koch, ‘Dichotomies, Trichotomies or Waves of Duties’ (2005) 5(1) Human Rights Law Review 81. 95  OHCHR, Frequently Asked Questions on a Human Rights Based Approach to Development (United Nations, 2006), at 9. See also new UNEP, supra note 71, at 91

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146  Research handbook on climate change, migration and the law these obligations potentially attach to all rights, the analysis will consider how certain rights and their correlative obligations96 can be brought to bear to protect climate migrants since displacement ‘can undermine basic needs like housing, access to public services and security’.97 Another potential conceptualization may be made according to types of rights (rather than types of obligations):98 (i) procedural rights, such as access to information, public participation, access to administrative and judicial remedies; (ii) substantive rights, such as the right to adequate healthcare, to life and dignity, protection from arbitrary eviction, to land and rights in land, to property and the peaceful enjoyment of possessions, to privacy and respect for the home, to security of the person, freedom of movement and choice of residence, and to housing land and ­property restitution and /or compensation following displacement;99 (iii) rights of protected groups such as women, children and indigenous people; and (iv) obligations generating preventative measures from those generating remedial ones on the part of duty-bearers. 1.  The obligation to respect The obligation to respect requires that States not engage in behaviour that deprives people of human rights enjoyment,100 or diminishes a reasonable level of enjoyment attained;101 as such it embodies a duty to ‘do no harm’.102 According to the Human Rights Committee: ‘a State must respect and ensure the rights laid down in the Covenant to anyone within the power or effective control of that State Party, even if not situated within the ter15, which provides a comprehensive study of the links between human rights law and climate change.  96   S. Fredman, Human Rights Transformed: Positive Rights and Positive Duties (Oxford University Press, 2008), at 68.  97   UN Special Rapporteur on IDPs ‘Protection of and Assistance to internally displaced persons’, UN Doc A/68/225 (31 July 2013), at 15–16.  98   UNEP Report conceptualizes the tripartite distinction as procedural obligations, substantive obligations and obligations, UNEP report, supra note 71, at 15–28.  99   S. Leckie, ‘Human Rights Implications’ (2008) 31 Forced Migration Review 18. 100   S. Skogly, Beyond National Borders: States’ Human Rights Obligations in Development Cooperation (Intersentia, 2006) 68. 101   R. Künnermann, ‘A Coherent Approach to Human Rights’ (1995) 17 Human Rights Quarterly 323, at 328. 102   ICCPR, art. 2(1) provides that: ‘Each State Party to the present Covenant undertakes to respect and to ensure to all individuals within its territory and subject to its jurisdiction the rights recognized in the present Covenant.’

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Climate change, human rights and migration  ­147 ritory of the State Party’.103 However, this obligation may also apply to the ICESCR, particularly with respect to non-­discrimination, which constitutes an obligation of immediate effect under both the ICESCR104 and the ICCPR,105 and is a central tenet of the ICCPR, CEDAW and CERD. It targets ‘violations through acts of commission’,106 requiring that a State refrains from actions that result in direct or indirect violations of the rights within the treaty’s coverage,107 or undermining the level of enjoyment of rights.108 In this context, the obligation to respect requires that a State’s actions not accelerate climate change which undermines the existing access to rights or that creates situations in which people are forced to migrate.109 Given the documented links between State action and climate change and given how many rights are potentially impacted by climate change (often connected with migration), the obligation to respect can be argued to have relevance for mitigation policies and may support constraining State action that contributes to climate change, such as emitting pollutants and emissions of CO2 and other greenhouse gases,110 overexploitation of natural resources, unsustainable fossil fuel extraction or deforestation.

103   Human Rights Committee, General Comment No. 31 ‘Nature of the General Legal Obligation Imposed on States Parties to the Covenant’ (26 May 2004), para. 10. CCPR/C/21/Rev.1/Add.13. 104   ESCR Committee on ESCR, General Comment No 3. ‘The Nature of States Parties Obligations’ UN Doc. E/1991/23 (14 December 1990). But in respect of the ICCPR, see also Human Rights Committee General Comment No. 31 ‘Nature of the General Legal Obligation Imposed on States Parties to the Covenant’ CCPR/C/21/Rev.1/Add.13 (26 May 2004), para. 5 states that: ‘The article 2, paragraph 1, obligation to respect and ensure the rights recognized by in the Covenant has immediate effect for all States parties.’ 105   Human Rights Committee, General Comment No. 18 ‘Non-discrimination’ (11 October 1989). 106   Maastricht Guidelines on Violations of Economic, Social and Cultural Rights (1997), para. 6. 107   Human Rights Committee, General Comment No. 31 ‘The Nature of the General Legal Obligation Imposed on States Parties to the Covenant’, UN Doc, CCPR/C/21Rev.1/Add13, para 6; F. Mégret and F. Hoffmann, ‘The UN as a Human Rights Violator? Some Reflections on the United Nations Changing Human Rights Responsibilities’ (2003) 25 Human Rights Quarterly 314, at 319 citing the Vienna Declaration, Part I, 23. 108  Satterthwaite, supra note 9, at 12. 109   Some support for such an obligation may be drawn from environmental human rights jurisprudence under the ECHR, see Lopez-Ostra v Spain (no. 16798/90) Judgment of 9 December 1994. 110   Rights-based approaches to mitigation already exist, for a GHG mitigation model based on the right to development see P. Baer, T. Athanasiou and

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148  Research handbook on climate change, migration and the law According to the ESCR Committee, the obligation to respect can also apply extraterritorially,111 citing the obligation to ‘refrain from interfering with the enjoyment of human rights in other countries’ along with the obligation to ensure that international agreements do not adversely affect human rights.112 Such an extraterritorial application of the obligation to respect in the context of climate-change mitigation would require States to refrain from causing harm to human rights enjoyed outside the State territory,113 and neither interfere with the enjoyment of rights in another State nor undermine another State’s ability to fulfil its human rights ­obligations.114 Furthermore, this obligation would bind states not to create situations in other countries that force people to migrate as a result of climate change. The jurisprudence of the International Court of Justice115 and a number of human rights bodies116 supports the e­ xistence of ­extraterritorial ­responsibility for violations of human rights law and humanitarian law in circumstances where the State exercises effective control,117 thereby disaggregating the notions of territory and jurisdiction under Article 2(1) of S.  Kartha, The Right to Development in a Climate Constrained World (Heinrich Böll Foundation, 2007). 111   This is bolstered also by ICESCR, art. 2(1). 112   Committee on ESCR, cited in OHCHR, supra note 81, para. 86. See generally, M. Milanovic Extraterritorial Application of Human Rights Treaties: Law, Principles, and Policy (Oxford University Press, 2011). 113   This would be so, even where the State’s level of control falls short of that of an occupying power. J. Cerone, ‘Jurisdiction and Power: The Intersection of Human Rights Law and the Law of Non-International Armed Conflict’ (2007) 40 Israel Law Review 369, at 423–4. 114   Skogly (2006), supra note 100, at 68–9. See more generally, T. Meron, ‘Extraterritoriality of Human Rights Treaties’ (1995) 89 American Journal of International Law 78, at 82. For a thorough discussion of the extraterritorial application of the ECHR, M. Kearney, ‘Extraterritorial Jurisdiction of the European Convention on Human Rights’ (2002) 5 Trinity College Law Review 126. 115   See, e.g., Case concerning Armed Activities on the Territory of the Congo (DRC v Uganda) 2005 ICJ 116 (19 Dec.), 220; Advisory Opinion Legal Consequences of the Construction of a Wall in Occupied Palestinian Territory ICJ Reports 2004 ICJ 163 (9 July), para. 111. 116   Sergio Euben Lopez Burgos v Uruguay, Communication No. R.12/52, UN Doc. Supp. No. 40 (A/36/40), 176 (1981) (UN Human Rights Committee); Coard et al. v United States, Case 10.951, Report No. 109/99, 29 September 1999, InterAmCHR (InterAmerican Commission on Human Rights). 117   The Human Rights Committee stated, ‘a State party must respect and ensure the rights laid down in the Covenant to anyone within the power or ­effective control of that State Party, even if not situation within the territory of the State Party’. Human Rights Committee, General Comment No. 31, Nature of the General Legal Obligation Imposed on States Parties to the Covenant, CCPR/C/21/ Rev.1/Add.13 (26 May 2004).

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Climate change, human rights and migration  ­149 the ICCPR. Independently of establishing e­ ffective control, there may be a potential to argue for a general obligation to respect rights in other States, notwithstanding the limitations on ­extraterritorial application of human rights treaties. Both the 1938 Trail Smelter Arbitration118 and the ICJ’s 1996 Nuclear Weapons cases recognize the existence of an environmental and transboundary duty to ‘do no harm’ as ‘part of the corpus of ­international law relating to the environment’.119 In a similar vein, the ICJ judgment in Pulp Mills120 confirmed the existence of a ‘duty of vigilance’ and a ­requirement under general international law to undertake an ­environmental impact assessment where there is a risk that the proposed industrial a­ ctivity may have a significant adverse impact in a transboundary context. The duty is also manifest in the Rio Declaration121 and in Principle 21 of the Stockholm Declaration of the United Nations Conference on the Human Environment.122 According to Craven, ‘while a state’s primary ­responsibility is to the local populace, each state is also required to ensure that it does not undermine the enjoyment of rights of those in foreign territory’.123 The OHCHR has similarly argued that States have obligations to refrain from interference with the enjoyment of rights in other countries and to ensure that human rights are given due attention in international agreements and that such agreements do not adversely impact human rights.124 In the current context, such an obligation could require that international cooperation under the UNFCCC and the Paris Agreement125 not undermine the enjoyment of human rights.

118   (US and Canada) where the tribunal established a general duty of care on the part of a State to protect other States from injurious acts by individuals within its jurisdiction. 119  See The Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion, 1996 ICJ REP. 241, para. 29. The Court held: ‘[t]he existence of the general obligation of States to ensure that activities within their jurisdiction and control respect the environment of other States or of areas beyond national control is now part of the corpus of international law relating to the environment’. 120   Case concerning Pulp Mills on the River Uruguay (Argentina v Uruguay) (Judgment) (2010) ICJ Rep (20 April 2010). 121   Rio Declaration on Environment and Development (12 Aug. 1992), Principle 21. 122   Stockholm Declaration on the Human Environment (June 1972), Principle 21. 123   M. Craven, ‘The Violence of Dispossession: Extraterritoriality and Eco­ nomic, Social and Cultural Rights’ in M. Baderin and R. McCorquodale (eds.) Economic, Social and Cultural Rights in Action (Oxford University Press, 2007) 253. 124   OHCHR Study supra note 5, at para. 86. 125   E.g. Outcome document CoP 21, 12 December 2015: draft text at http:// unfccc.int/resource/docs/2015/cop21/eng/l09.pdf.

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150  Research handbook on climate change, migration and the law The obligation to respect may reinforce a general argument to refrain from actions that accelerate climate change which creates or exacerbates the conditions that force people to leave their homes or countries. Nevertheless, it remains a generally applicable obligation that applies to all vulnerable groups and individuals; it provides no additional protection to climate migrants – whether climate IDPs or climate refugees. A further limitation on its applicability arises in the context of States whose greenhouse gas emissions have been minimal: these are countries that have neither contributed to nor benefited from climate change inducing emission, raising concerns around equity and fairness since human rights law potentially raises accountability arising out of situations that are not a States party’s proximate or even indirect responsibility. That is not to say that developing countries or smaller States do not have an obligation to respect the rights of climate migrants or refrain from actions that ­contribute to climate change, but rather that this obligation attaches more readily to large emitters, potentially generating greater responsibility for remedial action in favour of climate migrants generally, or climate refugees coming from smaller net emitting States in particular. A more tangible application of the obligation to respect in the context of climate migrants emerges in adaptation policies: governments should take into account climate migration in the full range of policies they adopt to manage the social impacts of climate change and safeguards should be adopted to prevent and reduce the displacement of populations.126 The obligation to respect governs all such policies, including those that relate to migration, and it exists for all States where the effects of climate change are felt, regardless of that State’s emission levels. In this it targets action undertaken in response to climate change that is potentially harmful to climate migrants: put differently, a State cannot commit a human rights violation against climate migrants ‘as a by-product of a given mitigation or adaptation policy’.127 In some instances, migration itself is part of an adaption strategy within States,128 although so far these have only taken the form of in-country resettlement schemes,129 such as those being ­implemented in

  UNHCR, ‘Human Mobility in the Context of Climate Change’ UNFCCC Paris 21 Recommendations from the Advisory Group on Climate Change and Human Mobility (November 2015), at 4. 127  ICHRP, supra note 68, at 18. 128   Some contend that migration is an extreme form of adaption though in some instances this may be the only viable option; others contend that migration is a failure of adaption strategies. See Atapattu, supra note 46, at 613. 129  OHCHR supra note 81 and Fourth Assessment Report of the Inter­ governmental Panel on Climate Change, at 708. 126

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Climate change, human rights and migration  ­151 low-lying island States, like Kiribati, the Maldives, and Tuvalu, or certain immigration policies130 like those adopted by the US to assist climate refugees under special circumstances131or the policies of certain Nordic countries granting temporary protection.132 Where any such strategy is being implemented, the State has the obligation to respect all of the human rights of those migrating.133 The obligation to respect therefore requires that any climate-induced migration not result in a lower level of human rights enjoyment by the migrant(s). A State may not institute rights-violating policies towards climate migrants as it responds to climate change, nor may it carry out arbitrary, discriminatory or forced displacement in its responses to climate change. The right to adequate housing could be violated134 where a ­government adaptation policy requires moving individuals from a high-risk zone due to climate impacts, but it is carried out through forced evictions or in moving people from situations where they enjoyed adequate shelter to places where they no longer do or where they become homeless.135

  K. Wyman, ‘The National Immigration Policy Option: Limits and Potential’ in Gerrard and Wannier (eds.), supra note 4, 337; L. Stein, ‘Domestic Law for Resettlement of Displaced Persons by Climate Change’ in ibid., 369. 131   Under US law, persons can be granted ‘temporary protected status’ as a form of safe haven where they do not qualify for refugee status but meet certain other criteria such as: (i) an environmental disaster resulting in substantial but temporary disruption of living conditions; (ii) the foreign State is unable to handle the return of its nations; and (iii) the foreign State has officially requested this designation. 132   UNHCR, ‘Forced Displacement in the Context of Climate Change: Challenges for States under International Law’, Submission to the 6th session of the Ad Hoc Working Group on long-term Cooperative Action under the Convention AWG-LCA 6, 2 (19 May 2009), 12–13. 133   See also Peninsula Principles on Climate Displacement within Countries, principle 3 related to non-discrimination. 134   ICESCR, art. 11 and UDHR, art. 25(1). 135   In each case, the obligation can be argued to have special relevance to vulnerable groups who are especially dependent on the natural environment or whose livelihoods, culture or identity are inextricably bound to natural resources. See e.g., UNPFII Report, ‘Highlights Increased Vulnerability to Climate Change Among Indigenous Communities’ (Jan. 2010); See also ‘Climate Change: An Overview Paper’ prepared by the Secretariat of the United Nations Permanent Forum on Indigenous Issues (Nov. 2007) at http://www.un.org/esa/socdev/unpfii/en/climate_ change.html. M. Janki, Indigenous Peoples Rights and the Environment: Issues and the Future Draft paper (2009) at http://www.unep.org/environmentalgovernance/ LinkClick.aspx?fileticket5gUAoSyFdNG8%3d&tabid52046&language5en-US November 2007. 130

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152  Research handbook on climate change, migration and the law Recalling intersectionality and disparate impact, the obligation to respect would also draw attention to equality concerns, requiring that the burdens of relocation within a country are not borne disproportionately by members of discriminated, marginalized or poorer groups. Moreover, it is widely noted that ‘vulnerable groups like women, the elderly and the displaced are often “especially at risk” of human rights violations during periods of internal displacement’.136 As the OHCHR has observed, States are ‘legally bound to address [climate-related] vulnerabilities in accordance with the principle of equality and non-discrimination.’137 Operationally, it could be understood to require States to carry out assessments to predict and evaluate the effects of actions that might degrade the environment and thereby harm individuals’ rights.138 Allowing them to identify certain groups’ ‘differential vulnerability’ ex ante,139 including through human rights impact assessments (HRIA)140 to uphold a type of ­‘precautionary principle’141 with respect to groups already suffering discrimination and disparate impacts.142 Crucially, it could help governments to develop ­effective and human rights-sensitive climate-migration policies, allow them to minimize or mitigate negative impacts and make these policies more

  UN Special Rapporteur on IDPs, ‘Report of the SR on the Human Rights of IDPs’ (18 March 2013) UN Doc A/HRC/23/44, at 7–8. 137   OHCHR Study, supra note 5, at 42. 138   Social and Economic Rights Action Center v Nigeria (Ogoniland case) Comm. No 155/96 53 African Commission on Human and Peoples’ Rights (2001); Taşkin v Turkey 2004-X ECtHR 179 2006-07; Saramaka People v Suriname (2007) InterAmCtHR (Ser. C) No 172 (Nov 28, 2007). See generally, The Aarhus Convention on Access to Information, Public Participation in Decision-making and Access to Justice in Environmental Matters (1998) UNECE, entered into force 30 October 2001. 2161 UNTS 450 (No. 37770), 38 ILM 515 (1999). 139   A. Fisher, A Human Rights-Based Approach to the Environment and Climate Change (GI-ESCR Practitioner’s Guide 2014), at 11. 140   While human rights impact assessments (HRIA) are a relatively new tool in human rights practice with no accepted definition, which fulfil a broad range of functions, they are recognized to have evolved from social impact assessments (SIAs) and environmental impact assessments (EIAs), and they draw on social science analysis to respond to specific human rights-related needs and concerns. 141   The precautionary principle is now integral to international environmental policy and embodied in Principle 15 of the Rio Declaration; See D. Freestone and E. Hay, The Precautionary Principle and International Law, the Challenge of Implementation (Kluwer International 1996); see also H. Veinla ‘Precautionary Environmental Protection and Human Rights’ (2007) XII Juridica International 91–9. 142   See Knox (2013), supra note 23, paras 30–35, on the duties to assess environmental impacts and make information public. 136

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Climate change, human rights and migration  ­153 proactive than solely reactive143 and provide procedural safeguards that could inform adaptation measures, including the right of equal access to information, public participation144 and freedom of speech and association connected with climate adaptation.145 2.  The obligation to protect The obligation to protect requires States to prevent human rights ­violations146 and third-party interference human rights.147 This obligation entails a range of State actions, 148 including preventing, ­investigating, ­punishing violations caused by abuses of human rights by State i­nstrumentalities or third parties – private individuals, commercial ­enterprises or other nonstate actors.149 The State may discharge this obligation through appropriate policies, regulation and administrative and judicial enforcement action. The obligation to protect requires State parties to take action against infringements by third parties and constitutes an obligation of conduct (as well as result).150

143   Oxford Centre for Refugee Studies, supra note 8, at 6 ‘migration and displacement are highly sensitive issues which are marginalised in political discourse; policies to tackle internal migration and displacement are poorly developed and largely reactive’; see also UNHCR Guiding Principles on IDPs, Principles 7 and 8. 144   Knox (2013), supra note 23, paras 36–40, drawing on UDHR, art. 21; ICCPR, art. 25. 145   Knox (2013), supra note 23, paras 69–78; Rio Declaration, Principle 21; UDHR, art. 19; ICCPR, art. 19. 146  Künnermann, supra note 101. 147   Knox (2013), supra note 23, at 491. 148   In the humanitarian context, see the responsibility to protect (so called ‘R2P’) debate, see International Commission on Intervention and State Sovereignty, The Responsibility to Protect (Government of Canada 2001). Other duties flowing directly from the terms of art. 2 are the duties to promote and fulfil, which is confirmed by the interpretations of the Human Rights Committee General Comment No. 31 ‘Nature of the General Legal Obligation Imposed on States Parties to the Covenant’, CCPR/C/21/Rev.1/Add.13 (26 May 2004), para. 7. 149   Discussing art. 2(2) of the ICCPR, the UN Human Rights Committee has observed that:

the positive obligations on States Parties to ensure Covenant rights will only be fully discharged if individuals are protected by the State, not just against violations of Covenant rights by its agents, but also against acts committed by private persons or entities that would impair the enjoyment of Covenant rights in so far as they are amenable to application between private persons or entities. The obligation to protect also targets harm that may result from State omission, i.e. harm resulting from a State failure to act. 150   Committee on ESCR Committee, ‘General Comment No 3’, para. 1.

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154  Research handbook on climate change, migration and the law A number of human rights bodies have confirmed that the obligation to protect applies in the context of environmental degradation that harms human rights.151 These have also confirmed that ‘although most of the cases involve the obligation to protect against private actions that infringe a human right, states also have such duties vis-à-vis other threats beyond their control such as natural disasters’.152 In the context of climate ­migration, the obligation to protect means that States cannot ‘do nothing’, irrespective of whether they have caused or contributed to the source of the problem. The responsibility to act therefore lies primarily with States: ‘States as primary duty bearers are bound by human rights law to protect the rights of those affected.’153 As such, the obligation to protect has two dimensions. First, it implies that States take preventative action to stop or prevent third-party causes of climate change that force individuals or groups to migrate. Second, it has a remedial dimension, requiring States to respond to migration when it occurs.154 At a general level, the obligation to protect would entail elaborating a coherent and comprehensive legal and policy framework to effectively regulate emissions, including those of the private sector.155 At the global level this might form part of the rationale for taking steps towards r­ eaching ­international agreements on climate change, such as through under the

  Knox (2013), supra note 23, at 491 citing Human Rights Committee General Comment 31 ‘The Nature of the General Legal Obligations Imposed on States Parties to the Covenant’, para. 8, CCPR/C/21/Rev.1/add.13 (2004). 152   Knox (2013), supra note 23, citing the Committee on Economic, Social and Cultural Rights General Comment 14 on the Right to the Highest Attainable Standard of Health, para. 40. 153   UNHCR ‘Forced Displacement in the Context of Climate Change: Challenges for States under International Law’, Submission to the 6th session of the Ad Hoc Working Group on long-term Cooperative Action under the Convention AWG-LCA 6 at 2 (19 May 2009), 5, describing the three levels of action required of States – addressing the cause: mitigating climate change; addressing the effects: reducing risks created by climate change and vulnerabilities caused by it and addressing the consequences: protecting individuals displaced by the effects of climate change. 154   From the environmental human rights jurisprudence, one may again draw useful analogies to the climate change context. See e.g. Social and Economic Rights Action Center v Nigeria (Ogoniland case) Comm. No 155/96 53 African Commission on Human and Peoples’ Rights (2001) where the Commission underscored Nigeria’s obligations to both refrain from violations of human rights and protect its citizens from damaging acts that may be perpetrated by private parties (in this case Shell Oil). 155   See e.g. Massachusetts v EPA, (2007) 549 US 497; 127 S Ct 1438, 167 L Ed 2d 248. 151

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Climate change, human rights and migration  ­155 UNFCCC, and agreements on climate migration,156 as well as developing and implementing adequate mitigation plans at the national level which would ensure the protection of the rights of those made (more) v­ ulnerable by climate change, such as climate IDPs. HRIAs could be employed to gauge the extent of the impacts of third-party actions or natural d ­ isasters on the enjoyment of human rights of vulnerable communities, and to understand the degree to which they are migrating or likely to have to move due to the impacts of climate change. Such HRIAs could inform ­government policies on climate migration and highlight the relevant human rights obligations at issue. They could bring climate migration to the centre of climate d ­ iscussions in order to raise awareness157 including identifying any discriminatory ­dimension to the migration or relocation policies.158 HRIAs could also facilitate the fulfilment of a second, remedial dimension of the obligation, entailing the development of policy frameworks and actions plans to protect socioeconomic rights of climate migrants, including rights to housing, food, and health. As the Special Rapporteur on Human Rights and the Environment has noted: The human rights obligations relating to the environment also include ­substantive obligations to adopt legal and institutional frameworks that protect against environmental harm that interferes with the enjoyment of human rights, including harm caused by private actors. The obligation to protect human rights from environmental harm does not require States to prohibit all activities that may cause any environmental degradation; states have discretion to strike a balance between environmental protection and other legitimate societal ­interest. But the balance cannot be unreasonable, or result in unjustified, foreseeable ­infringements of human rights.159

The obligation to protect may also entail providing climate migrants with certain minimum procedural safeguards once they have been forced to move because of climate impacts resulting from the actions of private actors and third parties. The obligation to protect requires States to also protect climate migrants from further human rights abuses by third parties during or following mobility, since ‘[i]ncreasing internal political tensions created by environmental displacement reinforce the need to strengthen human rights protection’.160 Already vulnerable or minority groups are

156   See UNHCHR on role of international cooperation in addressing climate change related migration, infra at note 153. 157   Oxford Centre for Refugee Studies, supra note 8, 7. 158  Ibid. 159   Knox (2013), supra note 23, para. 69. 160   Oxford Centre for Refugee Studies, supra note 8, at 6.

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156  Research handbook on climate change, migration and the law most likely to have to migrate, but such groups are also more susceptible to human rights violations during periods of internal displacement and once they reach their destinations.161 Similar to the obligation to respect, the obligation does not distinguish between whether the State has contributed to the root causes of that migration: ‘States have duties to protect their people from threats to human rights even when the states are not directly responsible for those threats.’162 According to the Committee on ESCR, the obligation to protect may also have extraterritorial application,163 although this dimension remains ­contested and while164 ‘[h]uman rights obligations requiring the a­ doption of affirmative measures may be more limited in an extraterritorial context’.165 The reasons for this limitation include that the State ‘may not ordinarily exercise authority in the territory of another state, there is no obligation upon it to act to ensure respect for rights there whether by the government of the state or by private individuals’.166 In addition, ‘positive obligations are also limited by considerations of fairness and the ­effectiveness p ­ rinciple itself’.167 A concept that may be relevant by analogy is the responsibility to protect as a duty of care in international law and practice in the prevention of genocide.168 Grounding the responsibility in the humanitarian context, Louise Arbour describes it as: a notion of due diligence, a concept well understood in international human rights law in relation to the positive obligation of a State to act in response to threats to human rights, notably to the life and security of the person within its own jurisdiction.169

Arbour opines that because of their pre-eminence, global reach and capabilities, certain States may also be in a position to act in furtherance   UN Special Rapporteur on IDPs, supra note 136, at 7–8.   Knox (2009), supra note 69, at 491. 163   See ESCR Committee, cited by the OHCHR, supra note 81, para. 86. 164   The obligation may nevertheless be more limited where the effects of a State’s action impact the human rights of people located physically outside the State’s territory. 165  Cerone, supra note 113, at 441. 166   L. Henkin, The Age of Rights (Columbia University Press, 1990) 45. 167   D. Kamchibekova, ‘State Responsibility for Extraterritorial Human Rights Violations’ (2007) 13 Buffalo Human Rights Law Review 87. 168   L. Arbour, ‘The Responsibility to Protect as a Duty of Care in International Law and Practice’ (2008) 34(3) Review of International Studies 448, at 450. Despite some points of similarity, such as that sovereignty is not an absolute bar to ­intervention, this is a responsibility to be distinguished from doctrines of ­humanitarian intervention. 169   Ibid., at 452. 161 162

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Climate change, human rights and migration  ­157 of the responsibility to protect, identifying three elements may ground that responsibility: influence, proximity and information. Thus it may be argued by analogy that climate refugees are owed a general duty of care by States meeting those criteria, where the threat they face is existential and where they risk death and annihilation, including the loss of their homes and even their entire country. Moreover, despite the well-known objections to applying human rights jurisprudence to transboundary environmental harm,170 the Trail Smelter Arbitration171 or Pulp Mills case may once again be relied upon to argue for a general duty of care on the part of a State to protect other States and their citizens from injurious acts related to climate change carried out by individuals within its jurisdiction.172 These could be relied upon to argue for an obligation on the part of emitting States to take action to protect persons forced to leave their countries of origin due to the inaction of such of emitting States to curb actions of third parties under their jurisdiction or control, whether such third parties are operating occurring within or outside their territory.173 The third-party actions in question could include emitting greenhouse gas or the overexploitation of natural resources or the destruction of the natural environment upon which individuals or communities depend for the homes, shelter or culture. Bolstered by analogy from ­humanitarian law and international environmental law, human rights law offers at least some normative basis for such an obligation. A range of complex operational and political questions would have to be tackled to delineate any such obligation in a coherent way, such as which States should welcome which climate ­refugees from which threatened States, in what numbers and under what

  Knox (2010), supra note 12, at 200–210.   Report of International Arbitral Awards, Trail Smelter Case (United States, Canada) 16 April 1938 and 11 March 1941 Vol. III, p.1905, 1965. The case is widely recognized as the source of ‘do no harm’ as a principle of customary international environmental law. 172   The arbitral agreement recognized the responsibility of a State for the acts of non-State actors in addition to those of the State and its organs. Understood in this way, the duty can be seen to be related to a general international law duty not to harm foreign nationals and to make reparations for breaches. 173   Skogly (2006), supra note 100, at 70. See also General Comment No. 14, The Right to the Highest Attainable Standard of Health (11 August 2000), para. 39: ‘States parties have to respect the enjoyment of the right to health in other countries, and to prevent third parties from violating the right in other countries, if they are able to influence these third parties by way of legal or political means’. See also the similar language in General Comment No. 15, The Right to Water (20 January 2003); and General Comment No. 19, The Right to Social Security (art. 9 of the Covenant) (4 February 2008). 170 171

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158  Research handbook on climate change, migration and the law terms, whether permanently or t­ emporarily and subject to what conditions, and the problem of causality remains moreover a vexing one.174 3.  The obligation to fulfil The obligation to fulfil is potentially the most onerous obligation175 since it requires States to create enabling conditions for individuals to fully enjoy their rights;176 and to ‘secure the existential status for human beings in situations where that status has not been attained (i.e. situations of deprivation)’.177 Article 2(1) of the ICESCR provides that: [e]ach State Party to the present Covenant undertakes to take steps, ­individually and through international assistance and co-operation, especially economic and technical, to the maximum of its available resources, with a view to ­achieving progressively the full realization of the rights recognized in the present Covenant by all appropriate means, including particularly the adoption of ­legislative measures.

States are therefore under an immediate obligation to take ‘deliberate, ­concrete and targeted steps’178 towards the full realization of human rights: the obligation to fulfil is one of conduct and result.179 States are under a ‘minimum core obligation to ensure the satisfaction of, at the very least, minimum essential levels of each of the rights’.180 According to the ESCR Committee, ‘even where the available resources are 174   See Docherty and Giannini, supra note 2 and the six criteria they delineate in identifying climate refugees. 175   P. Alston and G. Quinn, ‘The Nature and Scope of States Parties’ Obligations under the International Covenant on Economic, Social and Cultural Rights’ (1987) 9 Human Rights Quarterly 156, at 186, noting that the obligation to guarantee represents ‘the highest rung of state obligation under the Covenant’. 176  Satterwaithe, supra note 9. 177  Künnermann, supra note 101. 178   ESCR Committee, General Comment No. 3, Nature of States parties ­obligations (Article 2(1)), UN Doc. E/1991/23 (14 December 1990), para. 9. 179   Ibid., para. 1. 180  Ibid., para. 9 (noting inter alia, that at a minimum, States are required to provide for the basic needs of the population). For arguments that even the ‘minimum core’ socioeconomic rights require sensitivity to national resource ­constraints see A. Eide ‘Economic, Social and Cultural Rights as Human Rights’ in A. Eide, C. Krause and A. Rosas (eds.), Economic, Social and Cultural Rights: A Textbook. 27 (2nd ed., Brill, 2001); A. Eide, ‘Realization of Social and Economic Rights and the Minimum Threshold Approach’ (1989) 10 Human Rights Law Journal 35–51; C. Scott and P. Alston, ‘Adjudicating Constitutional Priorities in a Transnational Context: A Comment on Soobramoney’s Legacy and Grootboom’s Promise’ (2000) 16 South African Journal of Human Rights 206, at 250, ­positing a distinction between absolute core minimums (applicable to all States) and

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Climate change, human rights and migration  ­159 demonstrably inadequate, the obligation remains for a State party to strive to ensure the widest possible enjoyment of the relevant rights under the prevailing circumstances’.181 Perhaps even more pronouncedly than the obligation to protect, the obligation to fulfil could be seen to support action in relation to both climate mitigation and adaptation relating to the conditions necessary for the realization of rights.182 The affirmative nature of the obligation to fulfil is inherently suited to informing the range of collective action required to address the negative social and human impacts, including the compounded harms suffered by vulnerable groups or individuals and the special ­accommodations they may require.183 For socioeconomic rights, the obligation is also a programmatic one, under which states must take steps individually and collectively and move as expeditiously and effectively as possible towards the goal of progressive realization.184 In the context of climate migration, it might require states to negotiate an international agreement to curb climate change that takes into account states’ human rights obligations and develop a global cooperative solution for climate migration.185 Conversely, it may also prohibit actions or omissions related to climate change that reduce the attained level of enjoyment of rights and that any deliberately retrogressive measures connected with climate change be justified by reference to the totality of rights protected under the human rights treaty commitments of the State in question.186 In the particular context of climate migrants, it would require States to desist from deliberately retrogressive actions that infringe on people’s rights and that states work to mitigate climate change to help fulfil rights threatened by its effects. The obligation to fulfil applies more directly to States’ responses to climate change and policies aimed at responding to the social and human impacts of climate change, particularly the disparate impact on marginal, vulnerable or discriminated groups or individuals. As noted in the 2015 Paris Agreement adopted at COP 21:

relative (State-specific) core minimums in which some degree of differentiation is warranted. 181  Ibid. 182   See Peninsula Principles on Climate Displacement Within States, p ­ rinciple 6 on adaptation assistance and principle 8 on international cooperation and ­assistance. See also UNHCR, ‘Guiding Principles on IDPs’, Principle 18. 183   General Comment No. 3, supra note 178, para. 9. 184  Ibid. 185   ICHRP, supra note 68, at 13. 186   General Comment No. 3 supra note 178, para. 9.

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160  Research handbook on climate change, migration and the law Parties should, when taking action to address climate change, respect, promote and consider their respective obligations on human rights, the right to health, the rights of indigenous peoples, local communities, migrants, children, persons with disabilities and people in vulnerable situations and the right to development, as well as gender equality, empowerment of women and intergenerational equity.187

In terms of substantive rights, a State’s obligation to fulfil would be especially relevant to ensuring a range of socioeconomic rights for climate migrants,188 such as the rights to health, food, education, social security and adequate housing.189 Taking the example of the right to housing, it is clear that a number of elements would need to be met in fulfilling socioeconomic rights for climate migrants. Core elements of the right to adequate housing include security of tenure and protection against forced evictions, harassment and other threats;190 availability of services; affordability; habitability; accessibility and cultural adequacy.191 The right to adequate housing has further been defined as comprising both freedoms and entitlements.192 In the context of climate change, the OHCHR has confirmed the range of freedoms and elements underpinning the right to adequate housing, including: (a) adequate protection of housing from weather hazards (habitability of housing); (b) access to housing away from hazardous zones; (c) access to shelter and disaster preparedness in cases of displacement caused by extreme weather events; (d) protection of communities that are relocated away from h ­ azardous zones, including protection against forced evictions without ­appropriate forms of legal or other protection, including adequate ­consultation with affected persons.193   Paris Agreement (2015), preamble.   In respect of IDPs, see UNHCR Guiding Principles on IDPs (1998), Principle 3. 189   Enshrined in several international human rights instruments including the UDHR (art. 25(1)) and most comprehensively under art. 11(1) of the ICESCR as part of the right to an adequate standard of living which provides: See also ESCR Committee, General Comment No. 4 on the right to adequate housing (13 December 1991). 190   Such other threats would presumably cover environmental threats and those resulting from climate change. 191   General Comment No. 4, supra note 189. 192   Ibid., and General Comment No. 7, The right to adequate housing (Art.11.1): forced evictions (20 May 1997). 193   OHCHR/UN Habitat, The Right to Adequate Housing (Factsheet #21, n.d.), http://www.ohchr.org/Documents/Publications/FS21_rev_1_Housing_en.pdf. 187 188

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Climate change, human rights and migration  ­161 This elaboration of the right to housing and its application in the context of climate change illustrates the range of actions that would be required on the part of states to fulfil the rights of climate migrants with respect to socioeconomic rights. For climate migrants, the obligation to fulfil can be argued to include a number of procedural rights,194 including the right to recognition before the law,195 the right to information, the right to participate in decisionmaking and the right to redress, would require governments to make ­information available to groups or individuals forced to abandon their homes and territory because of climate change.196 In addition, the obligation to fulfil key civil and political rights would have special importance for groups that are already marginal or those that are especially vulnerable due to their dependence on the natural environment, such as certain groups of indigenous peoples, whose move from a particular territory would have a far more detrimental impact on their lives and culture compared with certain other groups.197 Finally, the obligation to fulfil can also be argued to have an ­extraterritorial dimension. The ESCR Committee has argued that States have an obligation to ‘take step through aid and cooperation to facilitate fulfilment of rights abroad’.198 Key to this line of reasoning is the mention of ‘international assistance and co-operation’ in addition to individual action as a way for States to fulfil their obligations under the ICESCR.199 The Committee has emphasized that this refers to resources existing within a State and those available from the international community through international cooperation and assistance,200 underscoring the essential ­

194   Certainly the UNHCR Guiding Principles on IDPs support the expansion of process rights to IDPs moving internally and those moving across international borders, although clearly the human rights law argument is on more solid ground for the former, with the latter overlapping with spheres governed by international refugee law which is well known not to cover climate refugees: See Principle 15. 195   Guiding Principles on Internal Displacement (1998), Principle 20. 196   Ibid., Principle 7. 197   Ibid., Principle 9. 198   Ibid., citing OHCHR, supra note 81, para. 86. 199   International Covenant on Economic, Social and Cultural Rights (1966), art. 2.1. Sigrun Skogly also views the provision on international cooperation and assistance as part of the obligation to fulfil, see Skogly (2006), supra note 100, at 71. 200   See e.g. International Covenant on Economic, Social and Cultural Rights (1966), Articles 22 and 23. See also CESCR, General comment 2, International technical assistance measures (Art. 22) (2 February 1990).

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162  Research handbook on climate change, migration and the law role of such cooperation in facilitating the full realization of the relevant rights.201 In successive General Comments,202 the Committee on ESCR has relied on this provision to argue for extraterritorial obligations under the ICESCR203 although opinions diverge on this point,204 and developed countries have traditionally resisted the idea that the Covenant generates a legal obligation for them to provide international financial assistance to other States.205 Nevertheless, the obligations of international c­ ooperation and assistance have been interpreted to apply to both developed and developing countries: for the latter, the obligation has been understood to include a requirement to ‘actively seek assistance’ where needed and to identify technical cooperation needs, ensure that assistance programmes are monitored, to refrain from obstructing these and ensure assistance prioritizes the minimum core entitlement of rights, and the rights of the most vulnerable.206 201   CESCR General Comment No. 3, supra note 178, paras 13 and 14. In this connection the Committee highlighted the 1986 Declaration on the Right to Development (GA resolution 41/128 of 4 December 1986). 202   See generally ESCR Committee, General Comment No. 3, supra note 178, para. 13. See also General Comment No. 2 (1990), supra note 200, para. 38; General Comment No. 14, supra note 94, para. 40; and General Comment No. 15, supra note 94, para. 34. 203   E.g. International Covenant on Economic, Social and Cultural Rights (1966), arts 11, 15(4), 22 and 23. 204   S. Skogly, ‘The Obligations of International Assistance and Cooperation in the International Covenant on Economic, Social and Cultural Rights’ in M. Bergsmo (ed.) Human Rights and Criminal Justice for the Downtrodden: Essays in Honour of Asbjorn Eide (Kluwer Law, 2003) 403; Skogly (2006), supra note 100; S. Skogly, ‘Global Responsibility for Human Rights’ (2009) 29 Oxford Journal of Legal Studies 827; M. Sepúlveda, ‘Obligations of International Assistance and Cooperation under the International Covenant on Economic, Social and Cultural Rights: A Possible Entry Point to a Human Rights Based Approach to Millennium Development Goal’ (2009) 13(1) The International Journal of Human Rights 86. 205   UN Commission on Human Rights, Working Group to Consider Options Regarding the Elaboration of an Optional Protocol to the ICESCR, ‘Report on Economic, Social and Cultural Rights’, UN Doc E/CN.4/2005/52 (10 Feb. 2005), para. 76. See also P. Alston, ‘Ships Passing in the Night: The Current State of the Human Rights and Development Debate as Seen Through the Lens of the Millennium Development Goals’ (2005) 27 Human Rights Quarterly 755, at 777. 206   See also M. Sepúlveda, ‘Obligations of “International Assistance and Cooperation” in an Optional Protocol to the International Covenant on Economic, Social and Cultural Rights’ (2006) 45(2) Netherlands Quarterly of Human Rights 287. More generally, see M. Salomon, A. Tostensen and W.  Vanderhole (eds.)

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Climate change, human rights and migration  ­163 Effective international cooperation207 is essential to support national efforts for the realization of the human rights of climate migrants.208 According to the UNHCR: The primary, albeit non-exclusive duty and responsibility of states is to prevent and protect people from displacement, mitigate its consequences, provide protection and humanitarian assistance and find durable solutions. [. . .] As climate change is a global phenomenon and climate related displacement will affect many countries, collaborative approaches and partnership based on principles of international cooperation and burden and responsibility sharing are called for.209

Identifying an international and extraterritorial application of the obligation to fulfil is supported in by the analysis of the OHCHR which contends that States have obligations to take steps through international assistance and cooperation, depending on the availability of resources, to facilitate fulfilment of human rights in other countries, including disaster relief, emergency assistance and assistance to refugees and displaced persons.210 However, arguments about extraterritorial dimensions of the obligation to fulfil with respect to climate refugees remain controversial since they rely on linking the human rights of the citizens of one State with the ­obligations of another State; they are made more complicated by the fact that most human rights treaties permit distinctions based on nationality.211

Casting the Net Wider: Human Rights, Development and New Duty Bearers (Intersentia, 2007) which aims to identify (new) duty bearers in relation to development and world poverty, and clarify their various obligations in that regard. For an argument about global responsibility for world poverty from a moral and political philosophy perspective, T. Pogge, World Poverty and Human Rights: Cosmopolitan Responsibilities and Reforms (Polity Press, 2002). 207   The OHCHR’s use of the term ‘cooperation’ rather than ‘assistance’ has been noted as significant by some commentators, suggesting it may be a strategy to avoid the debate on whether international development assistance is a legal obligation, see Knox (2009), supra note 69, at 494. 208   Human Rights Council Resolution 16/11, ‘Human Rights and the Environment’ (12 April 2011). 209  ICHRP, supra note 68, 6, citing the UNHCR. 210   OHCHR Study, supra note 5, para. 86. 211   This is so even though under domestic and international law states may owe duties to non-citizens under a range of circumstances.

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164  Research handbook on climate change, migration and the law

IV. SOME CAUTIONARY NOTES ON THE APPLICATION OF HUMAN RIGHTS OBLIGATIONS TO CLIMATE MIGRATION Despite the potential relevance of human rights obligations to climate migrants, certain challenges persist because of features inherent to international human rights law212 and its relationship to the regimes governing climate change and the environment.213 The fact that international human rights law does not contain specific provisions for climate migrants presents a fundamental constraint, but the limits are structural too. There exists a historical divergence between the ‘treaty-based sub-systems’ that govern human rights on the one hand and the international agreements governing climate change on the other.214 Each represents a technically specialized network with global scope,215 whose specialized rules and systems216 have no clear relationship to the other,217 and reflect compartmentalization.218 The international bill of rights219 is a product of the post-war era220 and oriented towards preventing certain grave moral harms and preserving a set of substantive and procedural entitlements

212   See e.g. Knox (2010), supra note 12; S. Adelman, ‘Rethinking Human Rights: The Impact of Climate Change on the Dominant Discourse’ in Humphreys (ed.), supra note 20, at 159. 213   See generally, P. Sands, Principles of International Environmental Law (2nd ed., Oxford University Press, 2003) 297. 214   Knox (2010), supra note 12, at 9. 215   International Law Commission, Fragmentation of International Law: Difficulties Arising from the Diversification and Expansion of International Law, Report of the Study Group of the International Law Commission finalized by M. Koskenniemi, A/CN.4/L.682 (13 April 2006), para. 481 (hereafter ‘Fragmentation Report’). 216   The limitations identified here resemble the disconnects between human rights law and development policy which co-exist in parallel legal and policy spheres, despite connecting and overlapping in a range of ways, S. McInerneyLankford, ‘Human Rights and Development. Some Institutional Perspectives’ (2007) 23(3) Netherlands Quarterly of Human Rights 459. But beyond analogies, they can be seen as connected since tackling climate change raises questions about access to and use of resources, which have direct bearing on human rights. This links also to the fact that public international law possesses no clear means for evaluating development activities in explicit and comprehensive human rights terms or upholding clear human rights accountability in development policy and activities. 217   Fragmentation Report, supra note 215, para. 483. 218  Satterthwaite, supra note 9. 219   Collectively the UDHR, the ICESCR and the ICCPR. 220   H. Lauterpacht, An International Bill of Rights of Man (Columbia University Press, 1945); L. Henkin (ed.), The International Bill of Rights (Columbia University

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Climate change, human rights and migration  ­165 for all. The climate change regime emerged later,221 the outcome of different movements and aimed at tackling harms that were not c­ ontemplated in the design of human rights frameworks, leaving the latter ill-equipped to tackle them. The climate regime employs more opaque ­concepts like equity, common but differentiated responsibilities,222 in ­contrast to the human rights terminology of equality, rights, ­violation and redress. Climate change frameworks are more forward-looking, designed to collectively address projected harms of a more general and diffuse sort, while human rights frameworks and methodologies tend to look ­retrospectively on specific infringements and violations of the rights of identifiable individuals and the obligations (primarily) owed to them by their States.223 In formal terms, climate change frameworks such as the UNFCCC are more ‘horizontal’ in nature, particularly with respect to mitigation,224 concluded between States to regulate the equitable distribution of global burdens with respect to emissions and promote cooperation to address a ­collective problem. Human rights treaties reflect more ­‘vertical’ ­commitment between a State and its citizens, establishing formal and ­substantive norms to govern the behaviour of duty bearers and c­onstrain their exercise of power. Climate change remains a collective global problem225 with ­aggregate causes and disparate impacts, while the i­nternational human rights law framework is structured primarily to address direct entitlements and violations, most often individual, even if some group or collective rights are recognized.226 A related problem is the limited jurisdictional reach of international human rights treaty frameworks, which are primarily State-centric ­reflecting Press, 1981); B. Simpson, ‘Hersch Lauterpach and the Genesis of the Age of Human Rights’ (2004) 120 Law Quarterly Review 49. 221   Including the UN Framework Convention on Climate Change (1992), the Kyoto Protocol (1998) and the Paris Agreement (2015). 222   See S. Humphreys, ‘Competing Claims: Human Rights and Climate Harms’ in Humphreys, supra note 20, at 47, discussing equity and common but ­differentiated responsibilities. 223   That is not to discount the more forward-looking, programmatic approaches which can be derived from human rights law. 224   Adaptation can be argued to appear more ‘diagonal’ since it may involve financial support or technology transfer from one State for the benefit of another. 225   This has sometimes generated the argument that such generalized harms or injuries are best addressed by political rather than legal branches. 226   Such limitations have led some commentators to argue in favour of a freestanding right to a sustainable environment or a universal environmental right, see S. Adelman, supra note 212, at 172. However, on the risks of declaring new human rights, P. Alston, ‘Conjuring Up New Human Rights: A Proposal for Quality Control’ (1984) 78(3) American Journal of International Law 607.

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166  Research handbook on climate change, migration and the law the ‘vertical’ obligations between a government and its ­citizens, whereas climate change results from aggregative actions of public and private actors alike throughout the world.227 Despite the potential for ­extraterritorial application of human rights law obligations, such ­application is limited at best228 and widely contested,229 creating very real limitations to its potential to address the plight of climate migrants, and particularly climate refugees.230 Even a duty to refrain from causing (transboundary) harm within human rights law would still ‘treat climate change as a series of individual transboundary harms, rather than as a global threat to human rights’.231 Such an obligation would still not approximate an obligation to provide adaptation resources or asylum to climate refugees.

V. CONCLUSIONS: OPPORTUNITIES FOR MUTUAL REINFORCEMENT AND POLICY RELEVANCE Climate migrants today do not avail of effective protection under international law due to the absence of specific legal provisions,232 but also because of the fragmentation of international law and the lack of international policy coherence.233 The plight of climate refugees illustrates how fragmentation ­threatens ‘the quality and coherence of international law as a whole and result[s] in serious 227   J. Knox, ‘Climate Change and Human Rights Law’ (2009) 50(1) Virginia Journal of International Law 163, at 210–11. 228   The ICCPR and IACHR limit their application to persons within their jurisdiction: this limits the clear and direct application to territorial jurisdiction leaving in doubt what form of protection could lie beyond that. F. Coomans and M. Kamminga (eds.) Extraterritorial Application of Human Rights Treaties (Intersentia 2004) 2. In the case of the ECHR, extraterritorial application is considered exceptional, M. Gondek, ‘Extraterritorial Application of The European Convention on Human Rights: Territorial Focus in the Age of Globalization?’ (2005) 52(3) Netherlands International Law Review 349. 229   While the ICESCR would appear to envisage extraterritorial application in its provision on international assistance and cooperation under Article 2(1), this also remains contested and politically divisive. Nevertheless, almost every General Comment adopted by the ESCR Committee has relied this provision to set forth extraterritorial obligations. 230  ICHRP, supra note 68, at 4. 231  Knox, supra note 227. 232   See e.g. the protection agenda of the Nansen initiative, https://www.nansen​ initiative.org/. 233   Satterthwaite notes that the human rights system is sufficiently flexible to allow for alternative interpretative methodologies; Satterthwaite, supra note 9, at 8.

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Climate change, human rights and migration  ­167 conflicts and tensions between programmes and p ­ rinciples’.234 Beyond the risk of duplication and possible ­contradiction, such ­fragmentation and compartmentalization leaves certain already d ­ iscriminated groups or ­individuals facing additional vulnerabilities, and new harms and challenges without effective protection.235 Fragmentation diminishes legal security and ‘puts legal subjects in an unequal p ­ osition ­vis-à-vis each other since the rights they enjoy depend on which ­jurisdiction is seized to enforce them’.236 This disparity in the enjoyment of rights is evident between climate migrants compared with majority groups who do not have to move; it is also evident within the category of ‘climate migrant’, when comparing the protection potentially available to climate IDPs vis-à-vis climate refugees. All States parties to core human rights instruments have human rights obligations which are relevant to responses to climate change, from global level initiatives aimed at forging international agreement on ­mitigation to adaptation policies of various sorts. The presumption against n ­ ormative conflict237 could be drawn upon to support coherent and mutually ­reinforcing interpretations of the relevant norms from d ­ ifferent bodies of law. In particular, the human rights obligations to respect, protect and fulfil may inform legal responses to respond to climate change, including in addressing the plight of climate migrants.238 Of particular relevance is how human rights approaches may help tackle inequalities faced by climate migrants,239 including by highlighting ­existing forms of discrimination, which may themselves be concurrent and ­mutually reinforcing.240   I. Brownlie, ‘The Rights of Peoples in Modern International Law’ in J. Crawford (ed.) The Rights of Peoples (Clarendon Press 1988) 1, at 15. 235   Similar arguments can be made about fragmentation and gaps between international human rights law and international humanitarian law in respect of particular groups or issues such as IDPs, internal conflicts or non-state actors. See R. Arnold and N. Quénivet (eds.) International Humanitarian Law and Human Rights Law: Towards a New Merger in International Law (Brill, 2008). 236   Fragmentation Report, supra note 215, para. 52. 237   Ibid., para. 37. 238   See e.g., ‘systematic integration’ discussion in Fragmentation Report, ibid., paras 410–80; see further, C. McLachlan, ‘The Principle of Systematic Integration and Article 31(3)(c) of the Vienna Convention on the Law of Treaties’ (2005) 54 International and Comparative Law Quarterly 279. 239   A. Sinden, ‘Climate Change and Human Rights’ (2007) 27 Journal of Land Resources and Environmental Law 255. 240   J. Salick and A. Byg, Indigenous Peoples and Climate Change (May 2007), http://www.ecdgroup.com/docs/lib_004630823.pdf; F. Seymour, Forests, Climate Change and Human Rights: Managing Risk and Trade-offs (CIFOR 2008), http:// www2.forestsclimatechange.org/downloads/seymour_humanrights.pdf. 234

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168  Research handbook on climate change, migration and the law Without some account of international human rights obligations, i­nternational climate law and policy is incomplete, and no more so than in strategies designed to address climate migration, whether ­domestically or internationally. Climate migration is not a ‘human rights neutral’ ­phenomenon and a more coherent approach to international law may highlight the ways in which existing human rights law can protect climate migrants. In strict legal terms, human rights treaty obligations are part of the legal landscape that governs the actions and omissions of states – whether they have contributed to climate change or not – and these obligations should inform the global response to the problem of climate migration both within and between States.

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8.  Indigenous peoples, climate migration and international human rights law in Africa, with reflections on the relevance of the Kampala Convention International human rights law in Africa

Ademola Oluborode Jegede

INTRODUCTION Indigenous peoples are particularly vulnerable to adverse impacts of climate change. This is due to their lifestyle which is largely d ­ ependent on land and its resources. The negative effects of climate change on ­indigenous peoples include forced migration or displacement from their traditional lands. There are human rights instruments developed under the aegis of the United Nations (UN) specifically focusing on ­indigenous peoples, but the efficacy of these instruments in addressing forced migration linked to climate change is questioned. Under the auspices of the African Union (AU), a sui generis instrument, the African Union Convention for the Protection and Assistance of Internally Displaced Persons in Africa (Kampala Convention), was adopted in 20091 and came into effect in 2012.2 This chapter explores the implication of the Kampala Convention and its possible relevance beyond its State Parties, for responses to climate change and migration affecting in particular indigenous peoples. Following this introduction, the first section describes the identity of indigenous peoples and presents the problem of migration as an outcome of adverse reality of climate change on indigenous peoples’ lands. Section II examines human rights instruments developed under the UN for the protection of indigenous peoples and demonstrates the gaps in applying these existing instruments to address the problem. Section III explores the provisions in Kampala Convention of the AU that can shape any global or

  African Union Convention for the Protection and Assistance of Internally Displaced Persons in Africa (Kampala Convention), adopted by the Special Summit of the Union held in Kampala, Uganda, 23 October 2009.  2   African Union, ‘OAU/AU Treaties, Conventions, Protocols & Charters’, available at http://www.au.int/en/treaties.  1

169

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170  Research handbook on climate change, migration and the law regional instrument for addressing the climate change/migration nexus in relation to the protection of indigenous peoples.

I. INDIGENOUS PEOPLES AND THE CLIMATE CHANGE/MIGRATION NEXUS Talking about ‘indigenous peoples’ requires some preliminary consideration about who these peoples really are.3 It also calls for a brief discussion about their rights regime, which, according to Swepston and Alfreðsson, have for long existed in a state of flux due to continuous disputes and changes in the use of the term.4 In some jurisdictions, the term ‘­ indigenous peoples’ emerged from the conquests which resulted from the European discovery of the New World in the late fifteenth century. The victims of this drive were known as ‘savage’, ‘natives’, ‘aboriginal’ or ‘indigenous people’.5 In the historical context, ‘indigenous peoples’ are viewed as ­communities who were the original inhabitants of territories which today are under the domination of ‘descendants of European settler populations’ in South and Central America.6 This understanding, however, is questioned by experiences in Africa and Asia where the dichotomy between ‘first’ peoples and ‘second peoples’ (or ‘settlers’) lacks historical basis.7 With particular reference to Africa, there is no independent state of Africa still being ruled or dominated by ­ ‘descendants of European settler populations’. Hence, there is a more ­pragmatic approach in these regions, particularly in Africa where the African Commission’s Working Group on Indigenous Populations/   UN Sub-Commission on Prevention of Discrimination and Protection of Minorities, ‘Study of the Problems of Discrimination against Indigenous Population’, UNESCO, 1986, UN Doc E/CN4 Sub2 1986/7/Adds 1–4 (Cobo’s Report), para. 379.  4   L. Swepston and G. Alfreðsson, ‘The Rights of Indigenous Peoples and the Contribution by Erica Daes’ in G. Alfreðsson and M. Stavropoulou (eds.), Justice Pending: Indigenous Peoples and other Good Causes: Essays in Honour of EricaIrene Daes (Martinus Nijhoff, 2000) 70.  5   J. Anaya, ‘The Evolution of the Concept of Indigenous Peoples and its Contemporary Dimension’ in S. Dersso (ed.), Perspectives on the Rights of Minorities and Indigenous Peoples in Africa (Pretoria University Law Press, 2010), at 23–42.  6   P. Thornberry, Indigenous Peoples and Human Rights (Manchester University Press, 2002), at 33–60.  7   B. Kingsbury, ‘“Indigenous Peoples” in International Law: A Constructivist Approach to the Asian Controversy’ (1998) 92 American Journal of International Law 414.  3

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International human rights law in Africa  ­171 Communities (Working Group) has recommended approaches which focus: on self-identification as indigenous and distinctly different from other groups within a state; on a special attachment to and use of their traditional land whereby their ancestral land and territory has a fundamental importance for their collective physical and cultural survival as peoples; on an experience of subjugation, marginalisation, dispossession, exclusion or discrimination because these peoples have different cultures, ways of life or modes of production than the national hegemonic and dominant model.8

From the above, self-identification, distinct difference, particularly, special attachment to and use of ancestral land and experience of subjugation or marginalisation as a result of their different way of life are key criteria in adjudging a group as indigenous.9 The Working Group Report also identifies the pastoralists and hunter-gatherers communities in Africa as fulfilling the above criteria.10 The plight of pastoralists and hunter-gatherers in the light of climate change has been a focus of interest. In terms of adverse effects of climate change on these communities, Watt-Cloutier, former head of the Inuit Circumpolar Council, describes indigenous peoples as ‘the mercury in the barometer’.11 Further buttressing this position is the report of the Office of the High Commissioner for Human Rights (OHCHR) which explains that the impact of climate change will be seriously felt by populations living in acutely vulnerable situations such as indigenous peoples.12 Indigenous peoples, according to a report of the OHCHR, will be ­disproportionately  8   ‘Advisory Opinion of the Africa Commission on Human and Peoples’ Rights on the United Nations Declaration on the Rights of Indigenous Peoples’, adopted in Accra, Ghana, by the African Commission on Human and Peoples’ Rights at its 41st ordinary session held in May 2007 (Advisory Opinion), paras 9–13; Report of the African Commission’s Working Group of Experts on Indigenous Populations/ Communities (IWGIA, 2005) (Working Group Report), adopted by the African Commission at its 28th Ordinary Session 93.  9   G. Alfreðsson, ‘Minorities, Indigenous and Tribal Peoples, and Peoples: Definitions of Terms as a Matter of International Law’ in N. Ghanea and A. Xanthaki (eds.), Minorities, Peoples and Self-determination. Essays in Honor of Patrick Thornberry (Martinus Nijhoff, 2005) 163. 10   Working Group Report, supra note 8, at 15. 11   S. Watt-Cloutier, cited in S.C. Aminzadeh, ‘A Moral Imperative: The Human Rights Implications of Climate Change’ (2007) 39 Hastings Int’l & Comp. L. Rev. 234. 12   Human Rights Council, ‘Report of the Office of the United Nations High Commissioner for Human Rights on the Relationship between Climate Change and Human Rights’, A/HRC/10/61, 15 January 2009 (OHCHR Report), para. 44.

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172  Research handbook on climate change, migration and the law impacted because they often live in ‘marginal lands and fragile ­ecosystems which are particularly sensitive to alterations in the physical environment’.13 However, the question as to whether m ­ igration can arise due to adverse effects of climate change is not discussed in the report. This section, using Africa as a focus, deals with migration as the consequence of land degradation and of the execution of projects a­ssociated with climate ­ change on indigenous peoples’ lands. A.  Migration as a Consequence of Land Degradation Migration of pastoralists and hunter-gatherers may result from land ­degradation associated with climate change in Africa.14 Among the Bororo and Tuaregs, destruction of grazing lands, drought, loss of livestock and declining traditional fishing activities are reported evidence of climate change which underlie their movement away from traditional lands.15 In Nigeria, for instance, the general trend in the migratory drifts of the Mbororo has been from northwest to southeast due to unbearable weather conditions.16 Among the Maasai, Ogiek, Endorois, and Yaaku in Eastern Africa, drought, ­disappearing grazing land, famine, and temperature increase are climatic presentation underlying migration.17 In an article referring to research ­commissioned by Christian Aid in Northern Kenya, Beaumont depicts pastoralists in that region as ‘climate canaries’, fated to become the first victims of global climate change as a result of its impacts on their land.18 Adverse ­experiences, including a lengthy dry season, are affecting the ­agricultural calendar and bringing about a scarcity of forest products, such as fruits and tubers of plants such as potatoes and yam, thereby disturbing their cultural lifestyle and increasing mobility among the Batwa in Rwanda, Burundi, Uganda and the Democratic Republic of Congo (DRC) known as Baka in Central African Republic (CAR) and Gabon, Baka and Bagyeli in Cameroon.19   Ibid., para. 51.   EcoNexus, ‘Agrofuels and the Myth of the Marginal Lands’ (September 2008), http://www.econexus.info/publication/agrofuels-and-myth-marginal-lands. 15   Indigenous Peoples of Africa Coordinating Committee (IPACC), ‘West Africa’, http://www.ipacc.org.za/en/where-we-work/west-africa.html. 16  Ibid. 17   Tebtebba Foundation, ‘Indigenous Peoples, Forests & REDD Plus: State of Forests, Policy Environment & Way Forward’ (Tebtebba Foundation, 2010) 440. 18   P. Beaumont, ‘African Nomads to be First People wiped out by Climate Change’ The Observer (12 November 2006). 19   Working Group Report, supra note 8,16; Tebtebba Foundation, supra note 17, at 481. 13 14

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International human rights law in Africa  ­173 The migration of the Amazigh (or Imazighn) known as the Berbers in North Africa20 has been linked to extreme scarcity of water, degradation of palm trees in South-western Morocco, and salinization traceable to a changing climate.21 The spread of Kalahari dunes in Botswana, Angola, Zimbabwe and Western Zambia has been linked to climate change,22 a development that does not only threaten the survival and lifestyle of the Sans and Basarwa of the Kalahari basin but is altering migration in that region.23 The concern has been expressed that the spread of Kalahari dunes will affect huge tracts of land in Botswana, Angola, Zimbabwe and Western Zambia where indigenous peoples live,24 which will arguably affect movement of indigenous peoples occupying the Kalahari. There are findings indicating that climatic threat to land use is an ­emerging reason for the movement of pastoralists around Uganda, Eritrea, Ethiopia, Somalia and Eastern Sudan.25 Pastoralists from the South-West of Uganda have moved across the border into Northern Tanzania.26 Similarly, pastoralists from Ethiopia were reported to have crossed the border into Kenya and other regions in Ethiopia due to a prolonged drought.27 Although it can be traced to other factors, severe climatic ­variations are the triggers for displacement in Northern Kenya.28 There are also reported findings that migration can arise as a consequence of ­ineffectively implemented projects in response to climate change.

  Working Group Report, supra note 8, at 18–19.   IISD, ‘Climate Change in Three Maghreb Countries: Special Report on Selected Side Events at UNFCCC COP-7’ (2001), http://www.iisd.ca/climate/cop7/ enbots/nov1.html. 22   World Nomads, ‘Shifting Sands: Climate Change in the Kalahari’ (17 December 2009), http://journals.worldnomads.com/shrummer16/story/52708/ South-Africa/Shifting-Sands-Climate-Change-in-the-Kalahari. 23   R. Mwebaza, ‘Is Climate Change Creating more Environmental Refugees than War in Africa?’ (ISS, 3 August 2010), http://www.issafrica.org/iss-today/ is-climate-change-creating-more-environmental-refugees-than-war-in-africa. 24  Ibid. 25   T. Afifi, R. Govil, P. Sakdapolrak and K. Warner, ‘Climate Change, Vulnerability and Human Mobility: Perspectives of Refugees from the East and Horn of Africa’ (June 2012) UNHCR Report No.1, http://reliefweb.int/sites/reliefweb.int/ files/resources/East%20and%20Horn%20of%20Africa_final_web.pdf. 26   Ibid., at 41. 27  Ibid. 28   N.M. Sheekh, A. Atta-Asamoah and R.D. Sharamo, ‘Kenya’s neglected IPDs, internal displacement and vulnerability of pastoralist communities in northern Kenya’ (ISS, 8 October 2012), https://www.issafrica.org/publications/ situation-reports/kenyas-neglected-idps-internal-displacement-and-vulnerabilityof-pastoralist-communities-in-northern-kenya. 20 21

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174  Research handbook on climate change, migration and the law B. Migration as the Consequence of the Implementation of Climaterelated Projects Under the aegis of the UN Framework Convention on Climate Change (UNFCCC), of the Kyoto Protocol and of the Paris Agreement, climate change response projects are projects contributing to global climate change mitigation or advancing local adaptation to the impacts of climate change.29 Migration of indigenous peoples features in the implementation of projects in Africa. For instance, projects promoting renewable source of energy under article 2, paragraph 1(a)(iv) of the Kyoto Protocol are a driver of movement away from their traditional lands.30 These include biofuel plantations in States with indigenous peoples’ presence such as Kenya, Tanzania, Namibia and Ethiopia.31 The projects have led to ­involuntary re-settlement and loss of traditional culture and livelihood of indigenous communities such as the Bodi, Daasanach, Kara (Karo), Muguji (Kwegu), Mursi and Nyangatom, who live in the Omo Valley in Ethiopia,32 and the Maasai in Tanzania.33 Movement away from traditional lands as a result of forceful eviction or voluntary decision results from the ineffective implementation of landrelated initiatives under the Clean Development Mechanism (CDM)34 and REDD+.35 With respect to initiatives under the CDM in DRC, a scholarly   UNFCCC, arts 3(4) and 4(1)(d); Kyoto Protocol, art 10(b); Paris Agreement, arts 4, 5 and 6. 30   V. Tauli-Corpuz and A. Lynge, ‘Impact of Climate Change Mitigation Measures on the Territories and Lands of Indigenous Peoples’ (14–25 May 2007), UN Doc. E/2007/43 E/C.19/2007/12, para. 52. 31   S. Vermeulen and L. Cotula, ‘Over the Heads of Local People: Consultation, Consent, and Recompense in Large-scale Land Deals for Biofuels Projects in Africa’ (2010) 37 J. Peasant Stud. 899. 32   Oakland Institute, ‘Understanding Land Investment Deals in Africa: Half a Million Lives Threatened by Land Development for Sugar Plantations in Ethiopia’s Lower Omo Valley’ (September 2011), http://www.oaklandinstitute.org/ sites/oaklandinstitute.org/files/Land_Deal_Brief_Ethiopia_Omo_Valley.pdf. 33   E. Laltaika, ‘Biofuels in Tanzania: Legal Challenges and Recommendations for Change’ in R. Mwebaza and L. Kotzé (eds.), Environmental Governance and Climate Change in Africa: Legal perspectives (Institute for Security Studies, 2009) 117. 34   Kyoto Protocol, art. 12. 35   In climate mitigation discourse, REDD+ stands not only for Reducing Emissions from Deforestation and Forest Degradation, but also incentivising conservation, sustainable management of forests and enhancement of forests as stock of carbons in developing countries, see J.W. den Besten, B. Arts, and P. Verkooijen, ‘The Evolution of REDD+: An analysis of Discursive-Institutional Dynamics’ (2014) 35 Environ. Sci. Policy 40. 29

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International human rights law in Africa  ­175 study by Makelo shows that the Batwa people have been exploited, excluded and expelled from their lands.36 Outside Africa, projects under the CDM have similar implications. On the potential harm in i­mplementing CDM project on land rights, Filzmoser and co-authors assess the CDM project titled ‘Greenhouse Gas Emission Reductions Through Super-Critical Technology-Sasan Power Ltd’ in India, and ­conclude that the implementation of a CDM project without regard for rights of local populations can occasion their displacement and ­undermine human rights.37 With respect to REDD+, of particular application in Africa are forestrelated initiatives under the UN Reduced Emissions from Deforestation and forest Degradation (UN-REDD) programme which supports n ­ ationally-led REDD+.38 Many of the forests envisaged for these projects are in territories that historically belong to indigenous peoples.39 In Africa, States participating in the UN-REDD National programme for REDD+ include DRC, Nigeria, the United Republic of Tanzania, Zambia, and targeted efforts are also supported in Benin, Cameroon, the Central African Republic, Côte d’Ivoire, Ethiopia, Ghana, Kenya, Madagascar, Morocco, South Sudan, the Sudan, Tunisia and Uganda.40 Although in its p ­ reparatory stage, the concern is being expressed by ­indigenous c­ ommunities that the implementation of REDD+ in Central and Eastern Africa will occasion land alienation, reward States for practices of ­dispossession and not benefit indigenous communities.41 In Tanzania, a study shows that indigenous

  S. Makelo, ‘DRC Case Study: The Impacts of the Carbon Sinks of IbiBatéké Project on the Indigenous Pygmies of the Democratic Republic of the Congo’ (2006) (on file with the author). 37   E. Filzmoser, J. Voigt, U. Trunk, K.H. Olsen, and A.O. Jegede, ‘The Need for a Rights-Based Approach to the Clean Development Mechanism’ (Public Participation and Climate Governance Working Paper Series, Centre for International Sustainable Development Law, 2015) at 13. For the project’s details, see UNFCCC, ‘Project 3690: Greenhouse Gas Emission Reductions through Super-Critical Technology – Sasan Power Ltd’, https://cdm.unfccc.int/Projects/ DB/RWTUV1273484238.56/view. 38   UN-REDD Programme, ‘Frequently Asked Questions and Answers’, http:// un-redd.org/FAQs/tabid/586/Default.aspx. 39   R.S. Abate and E.A. Kronk, ‘Commonality Among Unique Indigenous Communities: An Introduction to Climate Change and its Impacts on Indigenous Peoples’ in R.S. Abate and E.A. Kronk (eds.), Climate Change and Indigenous Peoples: The Search for Legal Remedies (Edward Elgar, 2013) 10. 40   UN-REDD Programme, ‘Partner Countries’, http://www.unredd.net/index. php?option5com_unregions&view5overview&Itemid5495. 41   IPACC, ‘Dialogue between the World Bank and Indigenous Peoples in Central and East Africa on the Forest Carbon Partnership Facility’ (Bujumbura, 13–14 March 2008), http://www.ipacc.org.za/en/2008/19-dialogue-between-the36

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176  Research handbook on climate change, migration and the law communities are rarely consulted in REDD matters.42 Also the criminalisation of activities of indigenous populations such as hunting and gathering by the law ­regulating the implementation of climate-related projects is a major tool of the State in effecting displacement of indigenous peoples.43 Considering the foregoing, it is not surprising that authors argue that in addressing climate change and its impacts, international law and cooperation have a role to play.44 It remains to be seen whether, as a branch of international law, the existing international human rights instruments and treaty-monitoring bodies developed under the auspices of international institutions can respond to the plight of indigenous peoples exacerbated by the impacts of climate change.

II. PROTECTION OF INDIGENOUS PEOPLES UNDER THE UN: NORMATIVE BASIS AND DEFICIT The historical marginalisation and subjugation of indigenous peoples have attracted efforts under the aegis of multilateral institutions. Specific human rights instruments were adopted for the protection of these populations. Early efforts to address the issues of indigenous peoples can be traced back to the International Labour Organization (ILO), an international body linked to the UN predecessor, the League of Nations.45 ILO Convention No. 107 concerning the Protection and Integration of Indigenous and Other Tribal and Semi-Tribal Popula­tions in Independent Countries in 1957 (Convention No. 107).46 This Convention was revised in

world-bank-and-indigenous-peoples-in-central-and-east-africa-on-the-forest-car​ bon-partnership-facility-fcfp/file.html. 42   E. Laltaika, ‘Indigenous Peoples’ Recent Engagement in the REDD Process, Tanzania’ in IWGIA (ed.), REDD and indigenous peoples (IWGIA, 2009) 28. 43   See for instance Tanzania Wildlife Conservation Act 2009, s. 31(6). 44   B. Mayer, ‘Climate Change and International Law in the Grim Days’ (2013) 24(3) European Journal of International Law 947, at 949; F. Biermann and I.B. Biermann, ‘Preparing for a Warmer World: Towards a Global Governance System to Protect Climate Refugees’ (2010) 10 Global Env’l Politics 60. 45   OHCHR, ‘Indigenous Peoples and the United Nations Human Rights System’ (2013) Fact Sheet No. 9/Rev.2, at 18; F. MacKay, ‘A Guide to Indigenous Peoples’ Rights in the International Labour Organization’ (Forest Peoples Programme, 2003). 46   The Indigenous and Tribal Populations Conventions: l957 No. 107, adopted by the International Labour Conference at its 40th session at Geneva on 26 June 1957 (ILO Convention 107).

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International human rights law in Africa  ­177 1989 through the adoption of Convention No. 169 concerning Indigenous and Tribal Peoples in Independent Countries (ILO Convention 169), which breaks away from the assimilationist and paternalist provisions of Convention No. 107.47 The provisions of ILO Convention 169 extend over a range of human rights, including economic, as well as civil and political rights of indigenous peoples. For instance, article 13(1) of the Convention requires governments to recognise and respect the special spiritual, ­ ­ cultural and economic relationship that indigenous peoples have with their lands and territories. Indigenous peoples’ lands include the notion of ­environment, based on article 13(2) of ILO Convention 169 which defines the term ‘lands’ to include ‘the concept of territories, which covers the total environment of the areas’ inhabited by indigenous peoples. Article 15(1) provides that indigenous peoples have the right to enjoy natural resources particularly through their participation in ‘the use, management and conservation of these resources’. In relation to projects on their lands, ILO Convention 169 stipulates that relocation must be done only when it is inevitable, and with the consent of indigenous peoples.48 However, these basic instruments are widely not ratified. For instance, only one African State has ratified the ILO Convention 169.49 The adoption of the UN Declaration on the Rights of Indigenous Peoples (UNDRIP) in 2007 was a watershed in terms of its provisions for the protection of indigenous peoples.50 Article 25, UNDRIP affirms that i­ndigenous peoples have the right to maintain and strengthen their d ­ istinctive spiritual relationship with ‘their traditionally owned or otherwise occupied and used lands, territories, waters and coastal seas and other resources’. According to article 26(1), they have the rights to the lands, territories and resources which they have traditionally owned, occupied or otherwise used or occupied, while article 26(2) provides that States’ duty to guarantee the right to land must be realised in respect of ­tradition and the land tenure systems of indigenous peoples. The UNDRIP g­uarantees other rights, such as ­environmental rights,51 benefit-sharing,52 participation,53 access to   Convention concerning Indigenous and Tribal Peoples in Independent Countries Convention: C169, adopted 27 June 1989 at Geneva (ILO Convention 169). 48   Ibid., art. 16(2). 49   Only Central African Republic has ratified ILO Convention 169. It did so on 30 August 2010, see http://www.ilo.org/dyn/normlex/en/f?p51000:11300:0::NO:11 300:P11300_INSTRUMENT_ID:312314. 50   UNDRIP adopted by the UN General Assembly on 13 September 2007. 51   Ibid., arts 24 and 29. 52   Ibid., arts 10, 11(2) and 28(1). 53   Ibid., arts 5, 18, 27 and 41. 47

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178  Research handbook on climate change, migration and the law justice,54 and co-operation.55 Article 40 deals with access to effective r­ emedies for all infringements of their i­ndividual and collective rights, which should be protected with due c­ onsideration for the customs, traditions, rules and legal systems of the indigenous peoples ­concerned and international human rights.56 The redress to which ­indigenous peoples are entitled may include restitution or where i­mpossible, ‘just, fair, and equitable compensation’ where their lands have been ‘­confiscated taken, occupied, used or damaged without their free, prior and informed consent’.57 The provisions in the above instruments are complemented by other relevant, although non-specific, human rights instruments and processes. These include the International Covenant on Civil and Political Rights (ICCPR),58 International Covenant on Economic, Social and Cultural Rights (ICESCR),59 Convention on the rights of the Child,60 Convention against Torture,61 and the Convention on the Elimination of all Forms of Racial Discrimination (CERD)62 as well as the activities in the treaty monitoring bodies for these institutions. Even though these instruments have no specific reference to indigenous peoples, the position is different with the work of the treaty bodies established under the instruments. The treaty bodies fulfil their role by reviewing states’ reports and providing observations, reviewing communications from individuals, and through general comments which explain the meaning of specific human rights.63 The treaty-monitoring body of the ICCPR, the Human Rights Committee (HRC) has rendered decisions and issued concluding observations under both its individual complaints and States’ reporting procedures that elaborate on indigenous peoples’ rights. For instance, in Hopu and Bessert v France, the HRC in interpreting the right to family states that cultural traditions should be taken into account when defining the term ‘family’, hence ‘family’ was interpreted to include the relationship between

  Ibid., art. 40.   Ibid., arts 38 and 39. 56   Ibid., art. 40. 57   Ibid., art. 28. 58   International Covenant on Civil and Political Rights (ICCPR), 16 December 1966, arts 2(1), 3, 4(1) and 26. 59   International Covenant on Economic, Social and Cultural Rights (ICESCR), 16 December 1966, art. 2(2) and (3). 60   Convention on the Rights of the Child, 20 November 1989. 61   Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, 10 December 1984. 62   Convention on the Elimination of All Forms of Racial Discrimination, 21 December 1965. 63   OHCHR Fact Sheet 30: The United Nations Human Rights Treaty System. 54 55

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International human rights law in Africa  ­179 the indigenous complainants and their ancestral burial grounds.64 While applying article 1 of the ICCPR in relation to aboriginal rights, in one of its concluding remarks, the HRC calls for the greater involvement of ­indigenous peoples in decision-making over their natural environment, means of subsistence and culture.65 The Committee on Economic, Social and Cultural Rights (CESCR), the monitoring body under the ICESCR has considered indigenous peoples in its general comments. The General Comment No. 7 on the right to a­ dequate housing recognises that indigenous peoples suffer ­disproportionately from forced eviction.66 Its General Comment No. 21 on the right of everyone to take part in cultural life includes a section devoted to indigenous ­peoples’ cultural rights and emphasises the communal aspects of indigenous peoples’ cultural lives, the significance of their ancestral lands and the need for State Parties to take measures ensuring that indigenous peoples own, develop, control and use their communal lands, territories and resources.67 This position is also reinforced by the Committee on the Elimination of Racial Discrimination (CERD) in its general recommendation XXIII on indigenous peoples.68 In its recommendations on indigenous children, the Committee on the Rights of the Child (CRC) drew from the Indigenous Declaration and ILO Convention No. 169, and declared that the right to enjoy one’s culture ‘may consist of a way of life which is closely associated with territory and the use of its resources’.69 In its General Comment No. 11 on indigenous children and their rights under the Convention, the CRC urges states to adopt a ‘rights-based approach’ to the protection of indigenous children.70 The Committee against Torture (CAT) in its General Comment No. 2   Communication No. 549/1993, Hopu and Bessert v France (29 July 1997), para. 10.3.20. 65   Concluding Observations of the Human Rights Committee, United States of America, UN. Doc. CCPR/C/USA/CO/3 (2006). 66   Committee on Economic, Social and Cultural Rights, General Comment No. 7, ‘Forced Evictions, and the Right to Adequate Housing’, UN Doc. E/1998/22, annex IV at 113 (1997), at para 11. 67   Committee on Economic, Social and Cultural Rights, General Comment No. 21, ‘Right of Everyone to take part in Cultural Life’ (art. 15, para. 1(a) of the ICESCR), UN Doc. E/C.12/GC/21, 21 December 2009, paras 36 and 37. 68   Committee on the Elimination of Racial Discrimination General Recom­ mendations XXIII (51) Concerning Indigenous Peoples, UN Doc CERD/C/51/ Misc.13/Rev.4. 18 August 1997, General Recommendations XXIII, para. 3. 69   Ibid., para. 5. 70   Committee on the Rights of the Child, General Comment No. 11, ‘Indigenous Children and their Rights under the Convention’, UN Doc CRC/C/ GC/11 2009, para. 82. 64

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180  Research handbook on climate change, migration and the law calls for the protection of vulnerable groups at risk of torture regardless of circumstances, including indigenous status.71 The preamble of the Paris Agreement also calls upon States to take into consideration their human rights obligations towards indigenous peoples while implementing climate actions. Although these examples highlight promising opportunities for ­extensive interpretations, these instruments are unlikely to make a great difference for indigenous peoples coping with the impacts of climate change and of response measures. As will be made manifest in the following section, there are three reasons for scepticism: the lack of a specific recognition of the link between climate change and the migration of indigenous peoples; the lack of concrete obligations of international agencies; and the ­unavailability of effective mechanisms for remedies. A. No Specific Recognition of the Link Between Climate Change and the Migration of Indigenous Peoples The human rights instruments and the functioning of treaty bodies ­developed under the auspices of the UN which specifically and generally deal with the protection of indigenous peoples’ rights are yet to affirm that climate change is impacting the migration of indigenous peoples. The evident link of climate change to human rights in the functioning of treaty bodies is in the CESCR consideration of General Comment 15 on the right to water,72 General Comment 12 on the right the right to food,73 and General Comment No 4 on the right to housing,74 all of which lacks a focus on indigenous peoples’ plight in a climate change context. That said, the protection of indigenous peoples is more pronounced in the working of the United Nations Human Rights Council (UNHRC).75

71   Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, ‘General Comment No. 2: Implementation of article 2 by States Parties’, CAT/C/GC/2/CRP.1/Rev.4 23 November 2007, para. 21. 72   UN Economic and Social Council, ‘General Comment No. 15: The Right to Water’ (CESCR, 2003) para. 28; M.A. Orellana, M. Kothari, and S. Chaudhry, Climate Change in the Work of the Committee on Economic, Social and Cultural Rights (CIEL, 2010) 21. 73   CECR, ‘The Right to Adequate Food (art.11)’ (12 May 1999), UN Doc. E/C.12/1999/5. 74   CESCR, General Comment No. 4, ‘The Right to Adequate Housing’, UN Doc. E/1992/23, annex III at 114 (1991), para. 18. 75   It is a charter-based mechanism established to replace the former United Nations Commission for Human Rights, see UN Doc.A/RES/60/251, 3 April 2006, para. 13, which recommended to ECOSOC to abolish UNCHR, see g­ enerally

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International human rights law in Africa  ­181 In its deliberation linking human rights to climate change under the aegis of UNHCR, through the adoption of Resolution 7/23 in 2008,76 it was affirmed that climate change and response measures will adversely affect vulnerable groups including indigenous peoples.77 The position was stressed by Resolution 10/4 in 2009,78 and subsequently, by Resolution 18/22 of 2011, the latter highlighting the vulnerability of indigenous peoples,79 as well as emphasizing the necessity for including human rights obligations, standards and principles in all domestic and international regulatory frameworks dealing with the subject.80 A report pursuant to the seminar suggested by Resolution 18/22 urged appropriate consideration of human rights in ‘all stages of domestic and international mitigation and adaptation instruments’,81 a position that was further affirmed by Resolution 26 L/33 of 2014.82 Despite the foregoing, there is no evident recognition of the link of migration to indigenous peoples affected by climate change, let alone the possible approach to addressing the situation. The lack of evident recognition at that level affords no clarification on the existing accounts on the dilemma in relation to whether such linkage is possible or not. This signifies that the development in international human rights law on the subject offers no position, hence, no clarification of the two school of thoughts on the issue: the maximalist and ­ minimalist schools.83 Drawing no distinction between indigenous

F.  Viljoen, International Human Rights Law in Africa (Oxford University Press, 2012) 59. 76   UNHRC, Resolution 7/23, ‘Human Rights and Climate Change’ (28 March 2008). 77   Ibid., para. 1. 78   UNHRC, Resolution 10/4, ‘Human Rights and Climate Change’ (25 March 2009); see also J. Knox, ‘Linking Human Rights and Climate Change at the United Nations’ (2009) 33 Harvard Environmental Law Review 483. 79   UNHRC, Resolution 18/22, ‘Human Rights and Climate Change’ (30 September 2011). 80   Ibid., preamble. 81   UNHRC, Report of the United Nations High Commissioner for Human Rights on the Outcome of the Seminar Addressing the Adverse Impacts of Climate Change on the Full Enjoyment of Human Rights, UN Doc A/HRC/20/7 (23–24 February 2012), para. 67. 82   UNHRC, Resolution 26 L/33, ‘Human Rights and Climate Change’, A/ HRC/26/L.33 (23 June 2014). 83   W. Kälin, ‘Conceptualising Climate-Induced Displacement’ in J. McAdam (ed.), Climate Change and Displacement: Multidisciplinary Perspective (Hart Publishing, 2010) 81; J. Morrisey, ‘Environmental Change and Forced Migration: A State of the Art Review’ (Refugee Studies Centre, January 2009), http://www.rsc. ox.ac.uk/files/publications/other/dp-environmental-change-forced-migration-2009.

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182  Research handbook on climate change, migration and the law peoples and the broader population and between displacement caused by climate change and other factors linked with it, the maximalists hold that displacement results from climate change,84 while the minimalists posit that displacement due to strict causal link with climate change is rare and indeterminate.85 B.  Lack of Concrete Obligations of International Institutions There are provisions in human rights instruments under the aegis of the UN which call for international co-operation and support in relation to the realisation of indigenous peoples’ rights. In particular, article 39 of UNDRIP guarantees to indigenous peoples access to financial and ­technical assistance from States and through international co-operation, to enable them to enjoy the rights enshrined in the instrument. Like article 2(1) of the ICESCR which supports international assistance,86 the ­provision under the UNDRIP is weak at least for certain reasons. First, being only a declaration, UNDRIP is not binding,87 and therefore, its provision on international co-operation imposes no binding obligation. Secondly, even if the provision under the ICESCR is binding, the articulation or the operationalisation of such obligations, given the ­ current state of international human rights laws is unclear. Some authors, ­particularly from the North, while examining similar provisions in the context of the right to development,88 argue that the provisions merely create a moral obligation unequal with the status of a right,89 while others, particularly from the South view such provisions as constituting a right

pdf; A. Suhrke, ‘Environmental Degradation and Population Flows’ (1994) 47 J Intl Aff. 474. 84   Morrisey, ibid., at 4; Suhrke, ibid., at 478. 85   A. Baldwin, ’Racialisation and the Figure of the Climate-Change Migrant’ (2013)  45 Env. Plan. 1474; Morrisey, ibid.; R. Black, ‘Environmental Refugees: Myth or Reality?’ (New Issues in Refugee Research Working Paper No. 34, 2001), http://www.unhcr.org/3ae6a0d00.html. 86  ICESCR, supra note 59, art. 2(1). 87   K. Engle, ‘On Fragile Architecture: The UN Declaration on the Rights of Indigenous Peoples in the Context of Human Rights’ (2011) 22 European Journal of International Law 141. 88   UN General Assembly Resolution 41/128, Declaration on the Right to Development (4 December 1986), art. 4(2). 89   R.L. Barsh, ‘The Right to Development as a Human Right: Results of the Global Consultation’ (1991) 13 Hum. Rts. Q. 322; J. Donnelly, ‘In Search of the Unicorn: The Jurisprudence and Politics of the Right to Development’ (1985) 15 Cal. W. Int’l Int’l L.J. 475.

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International human rights law in Africa  ­183 to development which populations in developing States are entitled.90 The lack of clear ­articulation of how the financial and technical assistance can be realised casts doubt on the efficacy of these provisions in a­ ddressing issues connected with migration of indigenous peoples due to climate change. C.  Unavailability of Complaint Mechanisms for Remedies There is little doubt, as has been shown, that UNDRIP provides for access of indigenous peoples to remedies, but it does not create any special ­mechanism for that purpose. As indigenous rights are largely defined as collective rights, the options of accessing remedies using ­complaint ­mechanisms such as the CESCR and the HRC are limited. First, the instruments under which these treaty bodies are established do not ­ ­guarantee the collective rights to lands, which means that it is difficult, if not impossible, to sustain a claim in relation to migration resulting from adverse effects of climate change on indigenous peoples’ lands. While the CESCR allows for group complaints,91 the HRC only allows individual complaints.92 Reinforcing the above position is that cases handled so far based on existing instruments under the UN treaty bodies are neither initiated nor examined with climate change and migration nexus as a focus. In fact, they do not have climate change and protection of human rights in focus. The difficulty of instituting an action on climate change without supportive law is demonstrated by the petition lodged by the Inuit ­ before a regional mechanism, the Inter-American Commission on Human Rights in December 2005. Faced with the tragic consequences of climate change, the Inuit alleged that the United States’ climate change policy is ­destroying the Arctic environment and, thereby, violating a number of their rights, including the right to health, life and property.93 In response, 90   M.A. Tadeg, ‘Reflections on the Right to Development: Challenges and Prospects’ (2010) 10 AHRLJ 325; A. Sengupta, ‘Implementing the Right to Development’ in N. Schrijver and F. Weiss (eds.), International Law and Sustainable Development: Principles and Practices (Martinus Nijhoff, 2004) 341. 91   Optional Protocol to the International Covenant on Economic, Social and Cultural Rights A/RES/63/117 (10 December 2008), art. 2. 92   Optional Protocol to the International Covenant on Civil and Political Rights (16 December 1966), art. 12(3) and (5). 93   Petition to the Inter-American Commission on Human Rights Seeking Relief from Violations resulting from global warming caused by acts and o ­ missions of the United States on behalf of all Inuit of the Arctic Regions of the United States and Canada http://www.ciel.org/Publications/ICC_Petition_7Dec05.pdf.

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184  Research handbook on climate change, migration and the law the ­Inter-American Commission stated that the information supplied in the communication was not sufficient to ‘characterise a violation of the rights protected by the American Declaration’.94 Hari Osofsky argued that, although unsuccessful, the petition questions the traditional approach towards environmental protection by extending human rights beyond the confines of US law.95 However, the direct inference that can be made of the decision is that in the absence of a clear linkage of human rights protection to the transboundary nature of climate change in a binding instrument, it is difficult to formulate a claim and to seek remedies based on the adverse effects of climate change, be they in the form of migration or not. Nonetheless, although still largely untested, at the regional level in Africa, there exists an instrument which addresses in considerable details the challenges raised in relation to the effectiveness of the existing human rights regime under the UN to address the plight of indigenous peoples facing climate related migration.

III. KAMPALA CONVENTION: NORMATIVE IMPROVEMENTS AS LESSONS The Kampala Convention is a regional instrument that specifically aims at protecting and assisting internally displaced persons (IDPs) in Africa. Although largely devoted to displacement within national boundaries, when read with the African Charter on Human and Peoples’ Rights (African Charter),96 a number of its provisions signify innovative possibilities for protecting the collective rights of indigenous communities displaced by climate change in Africa, a development which represents a shift from the normative status quo under the aegis of UN. Owing to the opportunities it opens for new developments, the Kampala Convention serves as an important regional bridge over the weakness in international human rights instruments in addressing the plight of indigenous peoples.   Letter from Ariel E Dulitzky, Assistant Executive Secretary, Organisation of American States, to Paul Crowley, Legal Rep. (16 November, 2006), http://graph​ ics8.nytimes.com/packages/pdf/science/16commissionletter.pdf. 95   H.M. Osofsky, ‘Is Climate Change “international”? Litigation’s Diagonal Regulatory Role’ (2009) 49 Va. J. Int’l L. 585; H.M. Osofsky, ‘The Inuit Petition as a Bridge? Beyond Dialectics of Climate Change and Indigenous Peoples’ Rights’ (2007) 31 Am. Indian L. Rev. 675; H.M. Osofsky ‘The Geography of Climate Change Litigation: Implications for Transnational Regulatory Governance’ (2005) 83 Washington U. L.Q 789. 96   African (Banjul) Charter on Human and Peoples’ Rights (27 June 1981), OAU Doc. CAB/LEG/67/3 rev. 5 (African Charter). 94

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International human rights law in Africa  ­185 Being a relatively new instrument, its provisions are yet to be tested, and its implementation may be challenging in African States with limited rights enforcement mechanisms and limited resources. However, its potentials are discussed in terms of comprehensive provisions at the regional level which respond considerably to the gaps identified in international human rights developed under the UN system. These potentials are discussed below. A. Specific Link of Climate Change with Migration of Indigenous Peoples The Kampala Convention clearly acknowledges the relationship of climate change with migration. It defines IDPs as: [p]ersons or groups of persons who have been forced or obliged to flee or to leave their homes or places of habitual residence, in particular as a result of or in order to avoid the effects of . . . natural or human-made disasters, and who have not crossed an internationally recognised State border.97

By virtue of the above definition, the Kampala Convention leaves no one in doubt as to whether climate change is accommodated under ‘natural or human-made disasters’ as its article 5(4) requires States to ‘take measures to protect and assist persons who have been internally displaced due to natural or human-made disasters, including climate change’. Although the term ‘indigenous peoples’ is not used anywhere in the Kampala Convention, that the instrument anticipates that persons adversely affected by climate change may include indigenous communities is not difficult to conclude from its provisions. Article 4(5) of the Kampala Convention enjoins parties to the Convention to ‘protect communities with special attachment to, and dependency, on land due to their particular culture and spiritual values’. The Kampala Convention further provides that parties should ensure that such communities are not displaced from their lands, except for compelling and overriding public interests.98 In similar vein, article 9(2)(i) affirms the need to protect the collective and cultural properties, safeguarding them against environmental degradation.99 Article 11(5) requires States to take measures to ‘restore the lands of communities with special dependency and attachment to such lands upon return’. The logical conclusion from the foregoing provisions is that these specifications speak to the identity of indigenous peoples.   Kampala Convention, supra note 1, art. 1(k).   Ibid., art. 4(5). 99   Ibid., art. 9(2)(i) and (j). 97 98

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186  Research handbook on climate change, migration and the law B.  Concrete and Explicit Obligations of International Actors Unlike the arrangements in the human rights instruments developed under the UN, the Kampala Convention provides concrete and explicit obligations for international organisations. The obligations can be helpful in tackling migration associated with climate change involving State Parties to the Convention. These international actors include international ­organisations or humanitarian agencies, civil society organisations and other relevant actors.100 By contrast to the UN instruments, the provisions in relation to financial assistance and aid under the Kampala Convention appear more concrete, requiring specific obligations on the part of these stakeholders. In prescribing the general obligations of State Parties under the instrument, article 3(2)(b) requires States to designate an authority or body to co-ordinate activities aimed at protecting or assisting IDPs. It demands the assignment of responsibilities to appropriate organs for protection and assistance, and co-operation with international organisations or agencies, and civil society organisations. Designating an appropriate authority is useful in climate-related migration as it introduces to indigenous peoples and other stakeholders the official channel to approach. This is useful, at least, for the purpose of putting focus and pressure when it matters in the event of impacts of climate change, including forced migration. Article 5(3) of the Kampala Convention creates an important legal basis of intervention for intergovernmental organisations. It urges States to respect the mandates of AU and of the UN in providing needed a­ ssistance and protection. This provision avails indigenous peoples facing the c­ hallenge of migration due to climate change of a legal basis to approach these organisations for assistance and protection. Considering that assessment of needs is important for intervention in the plight of populations such as indigenous peoples, the provision of article 5(5) and (6) which requires States to co-operate with international agencies and organisations is useful. More importantly, if effectively implemented, the provision according to which States should allow ‘unimpeded passage of all relief consignments, equipment and personnel to internally displaced persons’101 would ensure that appropriate resources get to the populations in need. But the Kampala Convention goes further than facilitating the action of international institutions: it also creates obligations for these institutions. According to the Kampala Convention, human rights are to guide the

  Ibid., art. 4(3).   Ibid., art. 5(7).

100 101

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International human rights law in Africa  ­187 action of international organisations and humanitarian agencies. These institutions are required to respect the human rights of affected populations. Also, actors are required to respect principles, including the principle of humanity, neutrality, impartiality and relevant international standards and codes of conduct.102 These principles are important in terms of the protection of indigenous peoples who are often extremely marginalised in the society. Where for instance a State is unwilling to admit the existence of indigenous peoples, on the basis of these principles, the international organisations can be guided by standards set at international level in ­intervening in migration induced by climate change. Specific obligations of collaboration and cooperation placed on the AU in dealing with international organisations, humanitarian agencies and civil society are another unique aspect of the Kampala Convention to protect and assist IDPs.103 Other than the role of affected States, these provisions empower the AU to initiate efforts including through entering in relation with international organisations for the purpose of assistance. Effectively, these provisions create additional points of intervention for addressing human rights issues. For instance, the AU as a regional institution can use the provisions as a legal basis to mobilise international resources required to address climate-related displacement of indigenous peoples. Also, it can generate additional funds on its own and through interaction with other intergovernmental organisations to assist indigenous peoples experiencing migration occasioned by climate change. The provision of article 10 of the Kampala Convention dealing with displacement induced by projects is particularly relevant in addressing the migration of indigenous peoples arising from the implementation of ­projects under CDM and REDD+. It requires State Parties to prevent their territories from being used by public or private actors to implement projects that will lead to displacement. Hence, it requires that appropriate information and consultation be made available to stakeholders involved in projects and ensure that they carry out socio-economic and ­environmental impact assessments of a proposed development project prior to ­undertaking projects.104 Where relocation is necessary, State Parties are urged to work with international organisations to explore and provide solutions including sustainable return, local integration or ­relocation and long-term reconstruction.105 This provision is essential for indigenous

    104   105   102 103

Ibid., art. 6(2). Ibid., art. 8(3)(c) and (d). Ibid., art. 10(1),(2) and (3). Ibid., art. 11(3).

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188  Research handbook on climate change, migration and the law peoples who are traditionally strongly attached to their lands and is consistent with article 10 of UNDRIP which forbids forcible removal of indigenous peoples from their land without the free, prior and informed consent and agreement on just and fair compensation, where possible with the option of return. The provision on consent under UNDRIP seems stronger than consultation prescribed under the Kampala Convention but it can be argued that if consultation is properly carried out, consent may be a given. C.  Availability of Complaint Mechanisms for Remedies Article 20(3) of the Kampala Convention allows for complaints by IDPs before the African Commission on Human and Peoples’ Rights (the Commission) and the African Court of Justice and Human Rights (the Court).106 This means that affected groups are able to lodge complaints at regional level. This contrasts with the uncertain possibilities for groups to access mechanisms for remedies particularly under the auspices of the UNFCCC. This provision is significant in the sense that indigenous peoples affected by the impacts of climate change or of response measures can approach the regional mechanisms in relation to obligations enshrined under the Kampala Convention. They can base their claims on the African Charter applicable to the Kampala Convention by virtue of its article 20(2), which allows the application of human rights of displaced persons guaranteed under African Charter and other relevant instruments of international human rights law or international humanitarian law. The operationalisation of Kampala Convention can also benefit from article 62 of the African Charter which enjoins each party to the Charter to file a State report every two years on the legislative or other measures taken to realise the rights guaranteed under the African Charter. This ­provision is an enabler of the documentation of human rights issues associated with migration of indigenous peoples due to climate change. It serves as a useful tool for addressing human rights issues arising from

  Ibid., art. 20(3); Protocol on the Statute of the African Court of Justice and Human Rights 2008. A further development emerged at the Assembly of the Union 23rd ordinary session, 26–27 June 2014, Malabo, Equatorial Guinea. At the session, the AU Assembly adopted a protocol on amendments to the Protocol on the Statute of the African Court of Justice and Human Rights. The new Protocol creates in the African Court on Human and Peoples’ Rights three sections: General Affairs Section, Human and Peoples’ Rights Section and International Criminal Law Section. See ‘Decision on the Draft Legal Instruments’, Doc. Assembly/AU/8(XXIII). 106

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International human rights law in Africa  ­189 adverse impacts of climate change on vulnerable populations, such as indigenous peoples in Africa. The process of State reporting can assist not only in generating solutions or best practices on policy gaps on climate change and effects on vulnerable groups, but also in aiding advocacy and awareness raising meant to address the situations. Similarly, it offers states and other participants the opportunity not only to share their challenges, but, more importantly to explore regional solutions.

IV. CONCLUSION Indigenous peoples experience migration due to the adverse effects of climate change on their lands. The adverse effects of climate change are in the form of non-viability lands and the implementation of climate response projects such as REDD+ and CDM on their lands. This ­contribution ­suggests that unlike the international instruments ­developed under the aegis of the UN, the Kampala Convention of the AU has ­promising provisions which speaks to the gaps identifiable in the international ­ instruments. These gaps are mainly in the relation to a lack of a s­ pecific ­affirmation of the link of climate change to migration of i­ndigenous peoples, concrete obligations of international agencies and availability of complaint mechanisms for remedies to indigenous peoples. The Kampala Convention clearly links migration to the adverse effects of climate change on indigenous peoples through the combined reading of its provisions, particularly, articles 1(k), 4(5), 5(4)(a), 9(2)(i) and 11(5). It provides concrete obligations for international actors through its articles 5(3), (5) (6) and (7), 6(2), 8(3)(c) and (d), 10(1)(2) and (3), 11(3) and 13 while its article 20(2) and (3) speaks to mechanisms that can be used in a­ ccessing remedies. The Kampala Convention thus contains useful ­provisions that can serve as important normative lessons to any development for the protection of indigenous and other peoples facing the impacts of climate change and response measures.

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9.  International climate change law perspectives International climate change law perspectives

Maxine Burkett

INTRODUCTION The law on climate-related migration and displacement1 is notable for its paucity. Despite the Intergovernmental Panel on Climate Change’s (IPCC’s) early and repeated2 statements regarding climate change impacts on human migration, once qualifying it as the ‘greatest single impact of climate change,’3 the last quarter of a century of climate change law- and policy-making has not fostered robust governance of the emerging phenomenon. In fact, it was not until two decades after the IPCC’s initial statement that the parties to the United Nations Framework Convention on Climate Change (UNFCCC) addressed this kind of migration formally in its Cancún Decision.4 While most of the climate-induced migration and displacement forecasted will spur internal displacement, cross-border migration will occur and present ­   ‘Migration’ is a process of population movement across either an i­nternational border or within a state. Migration includes ‘migration of refugees, displaced persons, economic migrants, and persons moving for other purposes, including family reunification’. ‘Displacement’ refers to persons or groups of persons who have been forced or obliged to leave their places of habitual residence, ‘in particular as a result of or to avoid the effects of armed conflict, situations of generalized violence, violations of human rights or natural or human-made ­disasters’. International Organization for Migration, Key Migration Terms, http:// www.iom.int/key-migration-terms#Migration.  2   See, e.g., IPCC, Climate Change 2014: Impacts, Adaptation, and Vulnerability – Summary for Policy Makers (Working Group II Contribution to the Fifth Assessment Report of the IPCC) 11, 20, 27 (2014), https://www.ipcc.ch/ pdf/assessment-report/ar5/wg2/ar5_wgII_spm_en.pdf.  3   IPCC, First Assessment Report – Working Group II: Impacts Assessment of Climate Change 5–9 (1990) https://www.ipcc.ch/ipccreports/far/wg_II/ipcc_far_ wg_II_chapter_05.pdf.  4   See Conference of the Parties (‘COP’) to the UNFCCC Dec. 1/CP.16, Cancún Agreement, 16th Sess., 29 November–10 December 2010, UN Doc. FCCC/CP/2010/7/Add.1, para. 14(f) (11 December 2010) [hereinafter ‘Cancún Agreement’]. See also, Sewell Chan, ‘Paris Accord Considers Climate Change as a Factor in Mass Migration’, New York Times (12 December 2015).  1

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International climate change law perspectives  ­191 some of the most confounding challenges for migration and displacement management. This chapter introduces the international law related to cross-border migration—and to a lesser extent internal displacement—as it ­currently stands. Because existing law that directly addresses climate-related ­migration is quite sparse, the chapter explores some of the laws that jurists and practitioners might apply creatively to those who may cross borders to avoid climate change impacts. This includes those who migrate because of total loss of their habitable territory resulting from sea-level rise and saltwater inundation. Although it is outside of the scope of this chapter, it is important to note that the creative use of existing laws may provide a foundation for careful expansion of existing legal instruments or serve as an important stopgap while new legal regimes develop. The chapter discusses first the extant and relevant laws on cross-­ border migration. It then looks at the treatment of climate-change-related ­migration and displacement in the UNFCCC process, with a particular focus on the Cancún Agreements and the most recent developments emerging from the Paris Outcome. Finally, it surveys the other legal instruments, particularly human rights related instruments, that are relevant to the circumstance of climate-related population movement and might support sound management and law-making at the international level.

I.  THE LAW OF CROSS-BORDER MIGRATION Cross-border migration related to climate change is without a clear body of law precisely because it does not generally involve persecution or conflicts. There are numerous norms in international human rights and humanitarian law that address forced displacement resulting from ­persecution and conflict.5 Indeed, among the most contentious elements of the climate-migration debate thus far are arguments for the application

 5   See UN Convention Relating to the Status of Refugees, July 28, 1951, 189 UNTS 137; See Protocol Relating to the Status of Refugees, 31 January 1967, 606 UNTS 267; UN High Commissioner for Refugees, Guiding Principles on Internal Displacement, UN Doc. PR00/98/109 (July 22 1998). See also, Roger Zetter, ‘The Role of Legal and Normative Frameworks for the Protection of Environmentally Displaced People,’ in Frank Laczko and Christine Aghazam (eds.) Migration, Environment and Climate Change: Assessing the Evidence (International Organization for Migration, 2009), noting that all are elaborated in regional and especially national instruments where main protection responsibilities principally lie.

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192  Research handbook on climate change, migration and the law of refugee instruments, and accompanying legally recognized appellation, to the circumstances of climate-change-related migration. Although there are political and sociological definitions of a refugee that might apply,6 the legal definition as stipulated in national and international law does not persuasively cover the still-commonly deployed term ‘climate refugee’. Notions of coercion and vital movement, as well as fears of persecution, are foundational for other migration and displacement categories.7 The diversity of movement that climate change triggers also raises multiple challenges. Walter Kälin and Nina Schrepfer have identified five displacement-triggering scenarios, all of which implicate disparate and diverse instruments, agencies, and policy paradigms. These are: (i) displacement due to increased and/or more severe hydro-meteorological disasters; (ii) government initiated, planned evacuation or condemnation of areas at high-risk of disaster; (iii) displacement resulting from slowonset disaster; (iv) the complete loss of habitability for low-lying small island states; and, (v) displacement owing to increased risk of conflict over dwindling essential resources.8 Further, the type of migration that accompanies each scenario varies as well: it can be short-term or longterm and seasonal or permanent. The migrant may travel alone or with the entire family. As the scenarios and types of cross-border migration vary, so do the applicable governance regimes. Jane McAdam identifies four traditional and, at least obliquely relevant, ‘spheres of governance’: migration and asylum law, environmental law, the law of development, and human rights and humanitarian law.9 Additional spheres include those that relate to the rights of indigenous peoples and cultural rights, among others. Each sphere involves numerous institutions. While many agencies and institutions have jurisdiction over particular aspects of the climate-displacement

 6   See Astri Suhrke, ‘Global Refugee Movements and Strategies of Response,’ in Mary M. Kriz (ed.) U.S. Immigration Policy: Global and Domestic Issues (Lexington Books, 1983) 157–62. See also, discussion by François Gemenne in Chapter 18 in this volume.  7   See discussions by Christel Cournil, in Chapter 5 of this volume.  8   See, e.g., Legal and Protection Research Series, Protecting People Crossing Borders in the Context of Climate Change Normative Gaps and Possible Approaches, UN High Commissioner for Refugees, UN Doc. PPLA/2012/1 2 (February 2012) (by Walter Kälin and Nina Schrepfer) (hereinafter Kälin and Schrepfer).  9   See generally, Jane McAdam, Environmental Migration Governance (University of New South Wales Faculty of Law Research Series, 2009). As it is discussed elsewhere in the volume, I do not discuss the law and policy related to internally displaced persons. For further discussion, see Kälin and Schrepfer, ibid., 22.

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International climate change law perspectives  ­193 phenomenon, none have a comprehensive approach that can, writ-large manage climate-induced migration. The related instruments are legion, perhaps making the elusiveness of a clear governance regime more surprising. Many principles and guidelines are relevant to climate-induced displacement, including the Pinheiro Principles on Housing and Property Restitution,10 the Operational Guidelines on Human Rights and Natural Disasters,11 and the Human Rights Council Resolution on Human Rights and Climate Change.12 The instrument to which many have appealed is the Refugee Convention. This is because international refugee law provides protection, at least in theory if not always in practice, for those urgently fleeing persecution.13 Further, the status rights afforded cross-border migrants and prohibitions against refoulement in situations in which safe return is not possible would greatly benefit the climate ‘refugee’. For reasons discussed at length by numerous scholars14 and in other chapters of this volume,15 the definition included in the 1951 ‘Geneva’ Convention relating to the status of refugees does not include the many scenarios for migration and displacement that climate change presents. Further, one fundamental distinction is the typical absence of persecution by the refugee’s origin state or any other institution, and the lack of territorial limitation of that persecution to the border of the state of origin in which, in a typical refugee’s situation, the migrant can no longer seek protection from his or her own government and must seek, instead, protection from the international community, generally, and a country of asylum, specifically.   UN Principles on Housing and Property Restitution for Refugees and Displaced Persons, UN Doc. E/CN.4/Sub.2/2005/17 (28 June 2005). 11   IASC Operational Guidelines on the Protection of Persons in Situations of Natural Disasters (The Brookings – Bern Project on Internal Displacement, January 2011), http://www.ohchr.org/Documents/Issues/IDPersons/OperationalGuidelines_ IDP.pdf. 12   UNGA HRC, Human Rights and Climate Change, UN Doc. A/HRC/31/52 (30 June 2015). 13   The Convention defines a refugee as any person: 10

owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country. 1951 Refugee Convention, supra note 5, art. 1.A.2. 14   See generally, McAdam, supra note 9. See generally, Kälin and Schrepfer, supra note 8. 15   See in particular the discussion by Christel Cournil in Chapter 5 of this volume.

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194  Research handbook on climate change, migration and the law It is however plausible that certain climate-migration scenarios are similar to elements of the refugee definition, namely: (i) sudden or slowonset disasters exacerbated by authorities’ denial of any kind of assistance or protection based on race, religion, nationality, membership of a particular social group or political opinion resulting in treatment tantamount to persecution; and (ii) situations marked by violence, serious violation of human rights or armed conflict that shrinking natural resources, resulting from climate change triggers.16 For the latter, again, persecution based on race, religion, nationality and membership of a particular social group or political opinion is necessary.17 There are regional c­ onventions that are more expansive and, as such, are more directly relevant to the climate-related phenomenon, namely the Organization of African Unity Convention Governing the Specific Aspects of Refugee Problems in Africa, and the Cartagena Declaration on Refugees.18 These are more precise articulations of general human rights violations that migration and displacement might present—notably, violations of duties to protect people against dangers resulting from disasters. To date, however, neither has been tested as to the relevance to and efficacy in managing the climatechange-displacement phenomenon.

II.  THE LAW OF STATELESSNESS The ‘sinking’ or ‘threatened islands’ phenomenon introduces an a­ dditional and singularly unique legal problem. It is forecast that for some lowlying atoll nations, sea-level rise and saltwater inundation will render ­currently populated islands uninhabitable. Indeed, livelihoods on the most ­vulnerable islands may be unviable because of lack of freshwater resources and heat, coupled with land use stresses and other vulnerabilities in human systems.19 The legal issues that arise as a result resemble, but are altogether distinct from, the scenarios of ‘stateless persons’ as defined by ­existing law. This is the fourth scenario that Kälin and Schrepfer present.20 In short, climate change is set to compromise a critical element of the   Kälin and Schrepfer, supra note 8, at 31–2.   Ibid., 32. 18   Ibid., 33. 19   See, e.g., Davor Vidas, David Freestone and Jane McAdam, ‘International Law and Sea Level Rise: The New ILA Committee’ (2015) 21 ILSA J. Int’l & Comp. L. 397, at 404. 20   See Kälin and Schrepfer, supra note 8. 16 17

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International climate change law perspectives  ­195 determination of statehood in international law—a defined territory.21 Indeed, even though there is some dissent regarding the constituent elements of a state, territory inhabited by a permanent population and ‘under the control of and effective government’22 appear indispensable. In the permanent absence of that territory, former inhabitants will be in the unprecedented scenario in which their predecessor country has effectively vanished and a successor country or territory is not readily identifiable. Even with a broader interpretation of existing law, the residents of sinking states appear to have very few existing hard law protections. The current legal framework imagines scenarios in which reconstitution as another state through extinction or merger follows the dissolution of a state.23 ‘Statelessness’ is meant to describe an interim state of being. Further, Article 1 of the 1954 Convention Relating to the Status of Stateless Persons defines a stateless person as one ‘who is not considered as a national by any state under the operation of its law’.24 The 1951 Refugee Convention ideally provides protection for stateless refugees. The treaties on Statelessness are in any case poorly ratified and implemented rendering them ineffective even if interpreted broadly.25 Other legal regimes are similarly unhelpful. To address the possibility of deterritorialization, appeals to Article 5 of the 1982 UN Convention on the Law of the Sea are insufficient as those appeals are not primarily about baselines, specifically, or the law of the sea, generally. Loss of territory is, as Vidas and coauthors note, a much broader concern of ‘statehood’,   Ibid., 38. The other widely recognized ‘essential criteria’ for statehood are a permanent population, a functioning government, and a capacity to enter into relations with other states. See generally, Maxine Burkett, ‘The Nation Ex-Situ: On climate change, deterritorialized nationhood and the post-climate era’ (2011) 2 Climate Law 345. 22   UN High Commissioner for Refugees (UNHCR) supported by IOM and NRC to the UNFCCC, Climate Change and Statelessness: An Overview, 15 May 2009, http://www.unhcr.org/refworld/docid/4a2d189d3.html. 23   In this case, the laws of succession will apply. McAdam, supra note 9, at 16. 24   UN Convention Relating to the Status of Stateless Persons, 28 September 1954, UN Doc. E/CONF.17/5/Rev.1, 360 UNTS 117. See also, UN Convention on the Reduction of Statelessness, 30 August 1961, 989 UNTS 175, providing mechanisms for reducing (50) the number of stateless, including detailed grounds for granting nationality to stateless persons and for ensuring that individuals do not lose nationality without gaining another; Carl Söderbergh, Human Rights in a Warmer World: The Case of Climate Change Displacement (Lund University Publications, Working Paper No. 2011-01-28), http://lup.lub.lu.se/ record/1774900. 25  McAdam, supra note 9, at 17. 21

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196  Research handbook on climate change, migration and the law national identity, refugee status, state responsibility, access to resources, and international peace and security’.26 Human rights law is also relevant, though with similar ambiguity as to its effectiveness. For example, the right to a nationality, articulated in Article 15 of the UN Declaration on Human Rights and mentioned in a number of other instruments,27 suggests that the international community will not tolerate the deprivation of nationality. The vagueness of Article 15 of the UN Declaration on Human Rights and the lack of a specific corresponding obligation on states to confer nationality render the article somewhat impotent.28 Further, it is unclear how the circumstances of small island states can ensure enduring and effective legal status in the event of total loss of territory. There are persuasive interpretations of the law that suggest that the strong presumption against dissolution of a state will work in the favour of small islands. Kälin and Schrepfer argue that small island states might continue to exist as legal entities as long as they possess a government and a population maintaining citizenship, despite loss of territory.29 For them the key issue is not the legal question of statelessness but, instead, the guarantee of admission to other countries on a permanent—as well as fair and equitable—basis. To prevent marginalization and disenfranchisement in the countries of refuge for the displaced, new law appears necessary.30

III. THE UNITED NATIONS FRAMEWORK CONVENTION AND MIGRATION AND DISPLACEMENT The most likely source of new international law will spring from the UNFCCC. While there are other UN agencies, international ­organizations, and sophisticated cross-sectoral initiatives relevant to the climate-­migration   Vidas, Freestone and McAdam, supra note 19, at 401.   The right to nationality is enumerated in the International Covenant on Civil and Political Rights, the Convention on the Elimination of All Forms of Discrimination Against Women, CRC and Convention on Elimination of Racial Discrimination. Söderbergh, supra note 24. See also, the International Law Commission, Draft Articles on Nationality of Natural Persons in Relation to the Succession of States, 8 March 1999, UN Doc. A/CN.4/497. 28   See Jeffrey L. Blackman, ‘State Successions and Statelessness: The Emerging Right to An Effective Nationality Under International Law’ (1998) 19 Mich. J. Int’l L. 1141. 29   Kälin and Schrepfer, supra note 8, at 39. 30  Ibid. 26 27

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International climate change law perspectives  ­197 nexus,31 the UNFCCC’s purpose—to prevent dangerous anthropogenic interference with the climate system—and its elaborate infrastructure make it a likely source of new governance methods to address climate related migration and displacement. Until 2010, however, there had been no meaningful mention of migration and displacement in the UNFCCC decisions or agreements.32 Some have speculated that this is the case because of the Framework Convention’s ‘non-remedial purpose’ among other things.33 Appeals from small island states and other, larger ­developing countries with low-lying coastal areas propelled migration and ­displacement into the climate negotiations in Cancún—a progression that has accelerated in recent years. Paragraph 14(f) of the 2010 Cancún Agreements is the product of those appeals. This development has served as the foundation of enhanced adaptation action related to migration and displacement, among other concerns, including loss and damage.34 The provision in question invites states to enhance adaptation action by undertaking ‘[m]easures to enhance understanding coordination and cooperation with regard to climate change induced displacement, migration and the planned relocation, where ­appropriate, at national, regional and international levels’.35 While this was an important advance in the UNFCCC’s engagement with ­migration, displacement, and relocation, it did not prescribe any p ­ articular response nor did it bind states to protect displaced people or otherwise

  Notable entities include the UN High Commissioner for Refugees (UNHCR); the International Organization for Migration (IOM), and the Nansen Initiative. For further discussion, see Jessica Wentz and Michael Burger, Designing a Climate Change Displacement Coordination Facility: Key Issues for COP 21 (Columbia Law School Sabin Center for Climate Change Law, September 2015), http:// columbiaclimatelaw.com/files/2016/06/Wentz-and-Burger-2015-09-DisplacementCoordination-Facility.pdf. 32   There were prior mentions in 2007 and 2008 within the Ad Hoc Working Group on Long-Term Cooperative Action and as part of the UNFCCC assembly text, respectively. See, e.g., Benoît Mayer, ‘Migration in the UNFCCC Workstream on “Loss and Damage”: An Assessment of Alternative Framings and Conceivable Responses’ (2017) 6(1) Transnational Environmental Law 107. 33   See Bonnie Docherty and Tyler Giannini, ‘Confronting A Rising Tide: A Proposal for a Convention on Climate Change Refugees’ (2010) 33 Harv. Envtl. L. Rev. 349. 34   ‘Loss’ refers to climate related impacts for which restoration is not possible, such as total destruction of coastal infrastructure due to sea-level rise, or a total collapse of a fishery due to lower ocean pH would constitute a loss. ‘Damage’ refers to the negative climate related impacts for which restoration is possible. Maxine Burkett, ‘Loss and Damage’ (2014) 4 Climate Law 119, at 120–21. 35   Cancún Agreement supra note 4, para. 14(f). 31

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198  Research handbook on climate change, migration and the law impose ­obligations on states to execute successful relocation of at-risk communities or nation-states.36 The language was carefully drafted not to impose specific obligations. It did, however, allow for amplification of migration and displacement alongside other adaptation actions and, consequently, facilitated their inclusion in national adaptation plans among other things. Notably the international community’s first formal recognition of the humanitarian consequences of climate-related population movements, the Cancún Agreement promoted discourses on migration and displacement in the agendas of national, regional, and international institutions, as well as within the Framework Convention itself.37 Inclusion of migration and displacement in the Framework Convention outputs has occurred in relatively rapid succession since the Cancún Agreements. The Doha Decision, which followed in 2012, included Paragraph 7(a)(vi) encouraging ‘further work to advance the ­understanding of and expertise on loss and damage, which includes [. . .] enhancing the understanding of [. . .] how impacts of climate change are affecting ­patterns of migration, displacement and human mobility’.38 The Doha Decision 3/CP.18 was a significant advance as it recognized the need to build on ­comprehensive climate risk management approaches and called for advanced understanding of non-economic loss and damage, patterns of migration and displacement, and identification and development of approaches to rehabilitation.39 The Doha Decision mandated the formation of an institutional arrangement to conduct the above. From that mandate, the Warsaw International Mechanism (WIM) emerged one year later.40 Migration and displacement have to date been archetypal non-­economic losses from the perspective of international agencies. The WIM would, in some respects, cement that understanding under the Framework Convention. The parties approved a two-year workplan to implement its mandate and, notably, included an action area on migration, displace  See generally, Jane McAdam, ‘Refusing “Refuge” in the Pacific: (De)­ constructing Climate-induced Displacement in international law’, in Étienne Piguet, Antoine Pécoud and Paul De Guchteneire (eds.) Migration and Climate Change (Cambridge University Press, 2011) 102. 37   See, e.g., Kälin and Schrepfer, supra note 8, at 50. 38   COP to the UNFCCC, Dec. 3/CP.18, Doha Amendment, 18th Sess., 26 November–8 December 2012, UN Doc. FCCC/CP/2012/8/Add.1, para. 7(a)(2)(vi) (7 December 2012). 39   See Burkett, supra note 34, at 127. 40   Maxine Burkett, ‘Reading Between Two Red Lines: Loss and Damage and the Paris Outcome’ (2016) 6 Climate Law 118. 36

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International climate change law perspectives  ­199 ment, and mobility.41 Specifically, the workplan called for ‘enhanc[ing] the understanding of and expertise on how the impacts of climate change are ­affecting patterns of migration, displacement and human mobility; and the application of such understanding and expertise’.42 As crafted, the WIM was an interim measure, though later cemented in the Paris Agreement. It did not have any long-term institutional grounding; in other words, it was a mechanism with a confined period of operation, with the ­possibility of renewal. Further, it did not identify a clear funding stream. Also ­noteworthy, despite efforts by non-parties to have the loss and damage ­provision reflect the ‘beyond adaptation’43 impacts it was ostensibly meant to address, the WIM was not created as a stand-alone mechanism, but rather a mechanism under the Cancún Adaptation Framework.44 The intermingling of adaptation and loss and damage, inclusive of climate migration and displacement, was a major point of contention leading up to COP21 meetings in Paris. On migration and displacement ­specifically, earlier drafts of the negotiating text on loss and damage included ­provisions that called for the creation of a ‘climate change d ­ isplacement coordination facility’.45 While there was little public ­information on the design and function of the facility, the drafts s­uggested that it might assist in developing emergency relief arrangements and assist in p ­ roviding organized migration and planned relocation, among other things. The G77 argued for inclusion of the facility in the Paris Agreement.46 Others opposed its creation. Australia, for example, decried it as a less ­effective and less efficient way to advance meaningful i­nternational action vis-à-vis migration and displacement. Other i­nfluential parties—­including the US, 41   COP to the UNFCCC, Dec. 2/CP.19, Warsaw International Mechanism for Loss and Damage associated with Climate Change Impacts, UN Doc. FCCC/ CP/2013/10/Add.1 (23 November 2013) (‘WIM’). 42   Report of the Executive Committee of the WIM for Loss and Damage associated with Climate Change Impacts, UN Doc. FCCC/SB/2014/4, Annex II, 11 (24 October 2014). 43   See generally, WIM, supra note 41. See also, e.g., Gabriele Messori, Beyond Adaptation: Loss and Damage Negotiation at the United Nations (Imperial College London, 18 December 2013), https://wwwf.imperial.ac.uk/ blog/climate-at-imperial/2013/12/18/beyond-adaptation-loss-and-damage-negotia​ tion-at-the-united-nations/. 44  Burkett, supra note 40. 45   For discussion of drafts of the negotiating text and the proposed facility, see, Wentz and Burger, supra note 31. See also, the discussions by Millar and Wilson in Chapter 20 of this volume. 46   See Wil Burns, ‘Loss and Damage and the 21st Conference of the Parties to the United Nations Framework Convention on Climate Change’ (2016) 22 ILSA J. Int’l & Comp.L. 415, at 427.

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200  Research handbook on climate change, migration and the law the UK, and France—were open to its ­inclusion, which is, perhaps, why it reemerged as a component of later drafts of the Agreement after a brief absence from the immediately preceding drafts. Ultimately, Paragraph 50 of the Paris Decision47 included only a request that the Executive Committee of the WIM ‘establish’ a task force: to complement, draw upon the work of and involve, as appropriate, ­existing bodies and expert groups under the Convention . . . as well as ­ relevant organizations and expert bodies outside the Convention, to develop ­ ­recommendations for integrated approaches to avert, minimize and address displacement related to the adverse impacts of climate change.48

IV.  IMPLEMENTATION OF PARAGRAPH 50 The prospect of a climate change displacement coordination facility and the eventual creation of a task force has allowed for early ­speculation on how to implement a task force and its possible outcomes. This section reviews the suggestions of other scholars in climate policy on how to manage climate change migration and displacement, which provide ­relevant guidelines for effective implementation of Paragraph 50. The section first details specific functions that the Executive Committee of the WIM may adopt and fulfil and concludes with a discussion of other international frameworks that may be useful models. The Executive Committee’s initial two-year workplan contained nine action areas to enhance the Committee’s understanding of loss and damage, including displacement due to climate change, and to develop a five-year plan that negotiators would consider at COP 22.49 There has been initial progress on many objectives including working with a wide range of relevant organizations and experts from various communities of practice.50 Some specific achievements of the Executive Committee include inter alia, the establishment of expert groups on risk ­management, ­establishment of a task force on displacement, a technical meeting on migration, draft

  COP to the UNFCCC, Dec. 1/CP.21, Adoption of the Paris Agreement, UN Doc. FCCC/CP/2015/L.9./Rev.1, para. 50 (12 December 2015). 48  Ibid. 49   UNFCCC, Initial two-year workplan of the Executive Committee of the Warsaw International Mechanism for Loss and Damage, http://unfccc.int/adapta​ tion/workstreams/loss_and_damage/items/8805.php. 50   Report of the Executive Committee of the WIM for Loss and Damage associated with Climate Change Impacts, UN Doc. FCCC/SB/2016/3, para. 26 (14 October 2016). 47

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International climate change law perspectives  ­201 r­ecommendations for loss and damage solutions, and a preliminary set of draft recommendations on migration, displacement, and human ­mobility.51 The framework developed for the five-year workplan also includes migration, displacement and human mobility (and the task force on displacement) as a strategic workstream.52 Additional functions and outcomes to implement Paragraph 50 may be appropriate. Depending on the actual efficacy and efficiency of the ­existing measures, outsourcing the actions items currently within the WIM to a new organization, facility, or framework specifically for the protection and assistance of displaced persons, similar to the UNHCR, may be necessary. Michael Burger and Jessica Wentz have explored possible functions for the climate change displacement coordination facility that could be relevant to the Task Force or could be created as a ­supplementary organ of the task force. Burger and Wentz highlighted four important functions for the proposed facility to properly address displacement resulting from climate change caused loss and damage—(i) the creation of a funding m ­ echanism; (ii) data collection and assessment to provide technical a­ ssistance; (iii) ­providing direct assistance to national g­ overnments and other entities; and (iv) matching internally displaced persons with host countries.53 The ­existing task force includes data collection and ­recommendations to ­relevant organizations and parties. Areas for expansion might include ­provision of direct assistance, matching displaced peoples in host c­ ountries, and funding for those activities. To help provide direct assistance to national governments and other ­entities, the task force or a subsidiary or successor facility could help design and implement programmes to prevent displacement, ­administer ­resettlement programmes, and provide funding and guidance for ­existing National Adaptation Plans of Action.54 To accomplish a m ­ atching programme for internationally displaced persons, the task force or ­ ­successor could find or create a tracking system to identify displaced persons, ­ identify appropriate locations for resettlement, seek out and accept pledges from national governments willing to accept displaced persons, and implement a system to assign (or allow self-choice of) ­displaced persons to a resettlement location.55 If a funding mechanism is developed, the task force or successor will have to ‘define its relationship

    53   54   55   51 52

Ibid., para. 8. Ibid., Annex 1. Wentz and Burger, supra note 31, at 8–11. Ibid., at 10. Ibid., 11.

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202  Research handbook on climate change, migration and the law with existing funds’56 and to establish criteria for the management of the funds.57 Burger and Wentz also recommend the establishment of guiding principles for managing climate-induced displacement and migration that could draw upon existing publications58 and standards for internal and international climate migration, including climate displacement.59 Recognizing the imminent threat of climate change and the l­imitations of the existing loss and damage mechanism under the Paris Decision, scholar Wil Burns recommends additional and largely compatible ­considerations for the parties to adopt. The first recommendation is for the parties to develop a substantial framework to address climate displacement that would: (i) facilitate national acceptance of displaced persons; (ii) develop guidelines for providing financial assistance to ­developing states to ameliorate displacement and facilitate r­esettlement of displaced people; and (iii) develop a proposal for international ­recognition of ‘climate refugees’.60 The WIM Task Force would usher in the international recognition of ‘climate refugees,’ and that recognition would be included in existing regimes, a new convention, or voluntary guiding principles.61 If the task force actually develops a new convention or framework to deal specifically with displacement and migration, such an effort will likely face substantial obstacles including the extensive time and resources needed to negotiate such a framework, political opposition, and the need to account for the complicated relationship and differences between this new ­ framework and existing international laws for refugees. Further, determining an appropriate and accurate way to determine whether ­ someone is actually displaced due to climate change will be a formidable task,62 although one with great merit.

  Such existing funds include the Global Environment Facility (GEF), the Green Climate Fund (GCF), the Special Climate Change Fund (SCCF), the Least Developed Countries Fund (LDCF), and the Adaptation Fund (AF). Ibid., 8. 57  Ibid. 58   These might include the Nansen Principles on Climate Change and Displacement; The Peninsula Principles on Climate Displacement within States; UN Guiding Principles on Internal Displacement; and Recommendations from the Advisory Group on Climate Change and Human Mobility. Ibid., 12–13. 59   Ibid., 14–15. 60  Burns, supra note 46, at 426–28. 61  Ibid., 429. 62   See Benjamin Schachter, ‘What Do The Climate Displaced Really Need?’ in Environmental Refugees Debate 59 (Environmental Law Institute Environmental Forum, November 2016), http://www.eli.org/sites/default/files/ forum/Environmental%20Refugees%20Debate.pdf. 56

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International climate change law perspectives  ­203 Currently, there is no agreed method to relocate displaced people to other nations besides nations voluntarily opening their borders.63 Therefore, any framework, organization, or other structure that amends the existing WIM may face difficulty if there is no migrant allocation method or enforcement method. Another consideration would be whether the next steps in terms of providing relief for climate-displaced migrants could apply preemptively to protect future generations if inundation is projected for the decades ahead.64 Finally, considering the foreseeable threats that climate change poses on vulnerable nations and the pace of multilateral international negotiations, it may be prudent for the task force to focus on producing reference material and guidance for nations to account for and protect their own vulnerable populations, and to negotiate bilateral negotiations proactively.65 In sum, and setting aside for the moment that COP decisions g­ enerally are not binding on member states66 and that Paragraph 50 does not include mandatory language, migration and displacement remains an important subject of the emerging legal infrastructure of ­contemporary international climate law. Its deepening presence is evinced in the ­ ­increasing inclusion of migration in National Adaptation Plans.67 Of note, Bolivia, Peru, Brazil and Colombia are either planning to or have already incorporated efforts to address migration in the development of their adaptation plans.68

  Michael B. Gerrard, ‘Sadly, the Paris Agreement Isn’t Enough’, in Environmental Refugees Debate 57 (Environmental Law Institute Environmental Forum, November 2016), http://www.eli.org/sites/default/files/forum/ Environmental%20Refugees%20Debate.pdf. See also, Burns, supra note 46, at 431–3, recommending revisiting the issue of liability and compensation in the future, precisely to ensure an equitable way to assess responsibility, but a­ cknowledges the significant challenges such an undertaking would entail. 64   See Carl Bruch, ‘A Toolbox for Environmentally Displaced Persons’ 55 (Environmental Law Institute Environmental Forum, Nov/Dec. 2016), http:// www.eli.org/sites/default/files/forum/Environmental%20Refugees%20Debate. pdf. 65  Ibid. 66   See generally, Dan Bodansky, ‘The Legal Character of the Paris Agreement’ (2016) 25 R. of European, Comp. and Int’l Envtl. L. 142. 67   See generally, Elizabeth Warn, ‘Adaptation, Adaptation, Adaptation; Migration, Climate Change and National Adaptation Plans in South America’ (IOM, 13 November 2013) https://weblog.iom.int/adaptation-adaptation-adapta​ tion-migration-climate-change-and-national-adaptation-plans-south. 68  Ibid. 63

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204  Research handbook on climate change, migration and the law

V. CONCLUSION While the Framework Convention is an obvious wellspring of laws and policy frameworks that might effectively address migration and r­ elocation, the patchwork approach might work just as well. Though beyond the scope of this chapter, it is worth noting that a number of existing laws and special or bilateral agreements can work in concert and support a larger ­protection agenda for those that climate-change-related impacts displace. The current body of law specifically relevant to climate and displacement is minimal. It is likely, however, that it will continue to develop with ­increasing ­rapidity— and, if it does, it might keep pace with climate change and the novel impacts it introduces.

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10.  Displacement due to responses to climate change: the role of a rights-based approach Displacement due to responses to climate change

Sébastien Jodoin, Kathryn Hansen and Caylee Hong

INTRODUCTION The adverse implications of climate change for the protection of human rights have gained increasing recognition in international law and policy over the last decade.1 A watershed resolution adopted by the United Nations (UN) Human Rights Council in March 20092 and referenced in a decision of the Conference of the Parties to the United Nations Framework Convention on Climate Change (UNFCCC) in December 20103 most notably affirms that: climate change-related impacts have a range of implications, both direct and indirect, for the effective enjoyment of human rights including, inter alia, the right to life, the right to adequate food, the right to the highest ­attainable ­standard of health, the right to adequate housing, the right to self-­ determination and human rights obligations related to access to safe drinking water and sanitation, and recalling that in no case may a people be deprived of its own means of subsistence.4

Identifying and addressing the human dimensions of climate change has become an important priority of climate governance, which underlies the issues discussed in other chapters in this book with respect to

 1   See generally S. Atapattu, Human Rights Approaches to Climate Change: Challenges and Opportunities (Routledge, 2015).  2   UN Human Rights Council, Resolution 10/4, 41st meeting (25 March 2009), UN Doc. A/HRC/10/L.11 (UNHCR Resolution 10/4).  3   UNFCCC Decision 1/CP.16, ‘The Cancún Agreements: Outcome of the work of the Ad Hoc Working Group on Long-term Cooperative Action under the Convention’ (15 March 2011), in Report of the Conference of the Parties on its 16th session, Addendum, Part Two: Action taken by the Conference of the Parties, FCCC/CP/2010/7/Add.1, preamble.  4   UNHRC Resolution 10/4, supra note 2.

205

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206  Research handbook on climate change, migration and the law climate-induced displacement and migration. In this chapter, we focus instead on the potential role that responses to climate change may play in ­displacing individuals and communities and in infringing on their human rights. Although this topic has received comparatively less attention from scholars,5 the nature and scale of initiatives pursued to mitigate or adapt to climate change make it necessary to consider the intended and unintended ways in which such initiatives may engender displacement and threaten the human rights of affected individuals and communities. In this regard, the Paris Agreement acknowledges that: Parties should, when taking action to address climate change, respect, promote and consider their respective obligations on human rights, the right to health, the rights of indigenous peoples, local communities, migrants, children, persons with disabilities and people in vulnerable situations and the right to development, as well as gender equality, empowerment of women and ­intergenerational equity.6

Recently, the largest group of rights experts in the UN system emphasized, more generally, that sustainable development, including responses to climate change, cannot come at the expense of human rights. They stressed that the 2030 Agenda for Sustainable Development should not become ‘the perfect excuse’ for Member States to deprioritize their human rights obligations. The experts pointed out that: for example, it would be inconsistent with human rights to interpret the call for clean energy, or the upgrading of slums, without due and consistent protection against displacement of Indigenous peoples and forced evictions of millions of urban dwellers, that can occur if policies are divorced from human rights standards.7

  Although advocacy groups do focus extensively on these issues (see for example AIDA and Carbon Market), for a rare scholarly exception, see N. ­Roht-Arriaza, ‘“First, Do No Harm”: Human Rights and Efforts to Combat Climate Change’ (2010) 38 Georgia Journal of International & Comparative Law 593.  6   Paris Agreement, in UNFCCC Decision 1/CP.21, ‘Adoption of the Paris Agreement’ (29 January 2016), in Report of the Conference of the Parties on its 21st session, held in Paris from 30 November to 13 December 2015, UN Doc. FCCC/CP/2015/10/Add.1, preamble.  7   ‘Warning against “cherry-picking” among Global Goals, UN experts say human rights cannot be ignored’, UN News Centre (12 July 2016), http://www. un.org/apps/news/story.asp?NewsID554439#.V5kd8dJ0zcs. The experts included the Special Rapporteur on adequate housing, the Special Rapporteur on extreme poverty, the Special Rapporteur on food, the Independent Expert on foreign debt and human rights, the Special Rapporteur on health, the Special Rapporteur  5

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Displacement due to responses to climate change  ­207 Moreover, there have been some attempts to integrate these human rights concerns within the international climate regime. This is illustrated for example, by the current negotiation stream on the impact of the implementation of response measures. In accordance with the UNFCCC, Parties are committed to giving full consideration to what actions are ­necessary under the Convention to meet the specific needs and concerns of ­developing country Parties, arising from the impact of the implementation of response measures.8 The Paris Agreement further institutionalized the discussion, stating that Parties shall take into consideration, in the implementation of the agreement, the concerns of Parties with economies most affected by the impacts of response measures, particularly developing country Parties.9 Lastly, response measures are also being addressed with the framework of the Bali Roadmap process, the Cancún Agreements and the Durban Outcome.10 Our chapter adopts a rights-based approach to analyse responses to climate change. Such approach seeks to ensure that responses protect, respect, and fulfil human rights obligations and apply throughout the various stages of climate responses, including planning, funding, implementation, monitoring, and evaluation.11 A rights-based approach to climate governance also seeks to ensure that international and national policies and initiatives on climate change are consistent with international human rights obligations and principles, thereby avoiding conflicts between these two areas of law and minimizing the risk that responses to climate change could lead to human rights violations. Regrettably, the central importance of ensuring that responses to climate change are on indigenous peoples, the Special Rapporteur on water and sanitation, the Independent Expert on international solidarity, the Special Rapporteur on violence against women, and the Working Group on Business and Human Rights.  8   UNFCCC, United Nations Framework Convention on Climate Change (1992), FCCC/INFORMAL/84 GE.05-62220 (E) 200705, art. 4.8.  9   Paris Agreement, supra note 6, art. 4(15). 10   See respectively UNFCCC Decision 1/CP.13, ‘Bali Action Plan’ (14–15 December 2007), in Report of the Conference of the Parties on its 13th session, held in Bali 3–15 December 2007, 14 March 2008, para. 1(b)(vi); ‘Cancún Agreements’, supra note 3, paras 88–94; Decision 11/CP.21, ‘Forum and work programme on the impact of the implementation of response measures’ (13 December 2015), in Report of the Conference of the Parties on its 21st session, held in Paris 30 November–13 December 2015, UN Doc. FCCC/CP/2015/10/Add.2. 11   For an overview of rights-based approaches see: M. Janki, ‘A Rights-based Approach to Climate Change Mitigation’ in T. Greiber (ed.), Conservation with Justice: A Rights-based Approach (IUCN, Gland, Switzerland); S. Jodoin, ‘Can Rights-based Approaches Enhance Legitimacy and Cooperation in Conservation? A Relational Account’ (2014) 15 Human Rights Review 283.

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208  Research handbook on climate change, migration and the law supported by and consistent with existing human rights obligations and principles has not always featured prominently in current climate change negotiations. In section 1, all concrete illustrations, we review the risks of displacement associated with three diverse types of responses to climate change: first, displacement due to the Site C Clean Energy Project, a dam and hydroelectric generating station in northern British Columbia (BC), Canada; second, forced evictions in the Cherangani Hills, Kenya resulting from the implementation of REDD+ initiatives; and third, planned relocation programmes in the Republic of Maldives (Maldives) developed to adapt to extreme weather events like tsunamis. As such, this chapter will chiefly examine issues of internal displacement and forced evictions, to be distinguished from the larger concern of climate induced migration and debates about a possible concept of climate ‘refugees.’ In section 2, we discuss the legal parameters of forced evictions in international human rights law and, in the last section, we conclude by setting out how a rightsbased approach may assist in creating responses to climate change that are rooted in international human rights norms.

I. THE RISKS OF DISPLACEMENT AND HUMAN RIGHTS VIOLATIONS IN CLIMATE ACTIONS A. Displacement and Human Rights Issues in the Context of Renewable Energy Initiatives In the global fight against climate change, renewable energy initiatives have been increasingly important as mitigation strategies, helping countries meet their energy needs while simultaneously contributing to a reduction in their greenhouse gas emissions. The role for renewable energy initiatives as a climate mitigation effort is predicted to grow in both developed and developing countries over the next decades,12 and while the 2015 UNFCCC 21st Conference of the Parties (COP21) in Paris was notable for renewable energy commitments by Parties,13 past efforts have already led to an increase in such initiatives worldwide. It is estimated that renewable energy sources accounted for 19.2 per cent of the world’s energy   W. Moomaw et al., ‘Introduction’ in O. Edenhofer, et al. (eds.), IPCC Special Report on Renewable Energy Sources and Climate Change Mitigation (Cambridge University Press, 2011) 173. 13   REN21, Renewables 2016: Global Status Report (2016), http://www.ren21. net/wp-content/uploads/2016/06/GSR_2016_Full_Report.pdf. 12

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Displacement due to responses to climate change  ­209 consumption in 2014,14 and renewable energy capacity and generation is continuously developing, with the most rapid growth in power energy sources such as wind and hydropower.15 While renewable energy projects involving solar, wind or geothermal heat do not typically cause displacement, hydropower continues to be an important means to generate energy around the world despite its serious human rights implications, including mass forced relocation. The Site C Clean Energy Project, a planned hydroelectric facility on the Peace River in northeast BC, Canada, demonstrates the significant social, cultural and environmental impacts of renewable energy projects. The dam will be the third and largest of its kind on the river, aiming to provide approximately 5 100 Gigawatt hours (GWh) of energy every year and helping to meet British Columbia’s electricity needs which will increase by approximately 40 per cent over the next 20 years.16 The project was initiated by the British Columbia Hydro and Power Authority (BC Hydro), a crown corporation owned by the Province of British Columbia, and is estimated to avoid between 34–76 million tons of carbon dioxide emissions over a 100-year period when compared to alternative forms of electricity generation in the province.17 The project was granted environmental approval by both provincial and federal governments on 14 October 201418 following a joint provincial and federal government environmental assessment report published on 1 May 2014.19 In its May report, the Joint Federal and Provincial Review Panel outlined the benefits that the project will bring to

 Ibid.  Ibid. 16   Federal Minister of the Environment, Government of Canada and the BC Minister of Environment, Government of British Columbia, Report of the Joint Review Panel: Site C Clean Energy Project (1 May 2014), https://www.ceaa-acee. gc.ca/050/documents/p63919/99173E.pdf, 1; BC Hydro, ‘Site C Clean Energy Project’ (2016), https://www.sitecproject.com/why-site-c/project-need. 17   Federal Minister of the Environment, ibid., 241. 18   The BC Minister of Environment issued an environmental assessment certificate, approved by the Minister of Forests, Lands and Natural Resources Operations on 14 October 2014. See Environmental Assessment Office, Environmental Assessment Certificate #14-02 (14 October 2014); Decision of the Governor in Council finding that significant adverse environmental effect of the Project identified in the decision statement of the Federal Minister of the Environment were justified under the circumstances. See Canadian Environmental Assessment Agency, ‘Government of Canada’s Decision on the Environmental Assessment of the Site C Clean Energy Project’ (14 October 2014), http://www. ceaa.gc.ca/050/document-eng.cfm?document5100283. 19   Federal Minister of the Environment, supra note 16. 14 15

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210  Research handbook on climate change, migration and the law clean energy production in British Columbia, namely helping to mitigate the province’s greenhouse gas emissions.20 The Site C Clean Energy Project, however, is also expected to yield many negative results, such as widespread flooding of the Peace River Valley,21 resulting in severe adverse environmental effects,22 inundating 83 km of treaty lands held by First Nation communities and agricultural lands held by local farmers.23 It will significantly affect First Nations’ land use, resource use for traditional purposes and the cultural heritage of the area.24 Many ‘valuable paleontological, archaeological, and historic’ First Nation sites are also expected to be lost as a result of the project.25 The consequence of such effects on Aboriginal rights and treaty rights, the report notes, need to be taken into consideration by government officials when making its decision.26 The project is also expected to deeply impact local farmers by inundating agricultural lands in the Peace Valley.27 The decision to grant an environmental certificate for the project, despite its expected impacts, rested with provincial and federal governments who approved it on 14 October 2014.28 Consequently, First Nation communities and other affected landowners initiated legal actions in the Federal Court of Canada and the Supreme Court of British Columbia challenging the decision to issue the ­certificate.29 In 2015, the Prophet River First Nation and West Moberly First Nation challenged the decision on both constitutional and administrative grounds before the BC Supreme Court.30 Both groups are expected to lose land protected under Treaty 8, a treaty made between the Crown,   Ibid., iv.   Ibid., 19. 22   Ibid., iv. 23   Ibid., see also the discussion on potential health risks for expropriated residents in ibid., 137. 24   Federal Minister of the Environment, supra note 16, v. 25   Ibid., iv. 26   Federal Minister of the Environment, supra note 16, iv. 27  Ibid. 28   Environmental Assessment Office, supra note 18; Canadian Environmental Assessment Agency, supra note 18. 29   Prophet River First Nation v Canada (Attorney General), 2015 FC 1030 [Prophet River First Nation v Canada]; Prophet River First Nation v British Columbia (Environment), 2015 BCSC 1682 [Prophet River First Nation v BC]; Peace Valley Landowner Association v Canada (Attorney General), 2015 FC 1027 [Peace Valley Landowner Association v Canada]; Peace Valley Landowner Association v British Columbia (Environment), 2015 BCSC 1129 [Peace Valley Landowner Association v BC]. 30   Peace Valley Landowner Association v BC, supra note 29. 20 21

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Displacement due to responses to climate change  ­211 represented by Canada, and eight First Nation communities in 1899.31 Maintaining that the project infringes their rights under Treaty 8, First Nation communities argued the Ministers were under the obligation to justify the project by inquiring into whether or not the project ­constituted an infringement of such rights.32 The court found that the Ministers were under no such ­obligation; acting under the Canadian Environment Assessment Act,33 they derive no power or responsibility to ‘determine the rights of the parties interested in the project’ when making their policy decision.34 First Nation communities further claimed that the Ministers failed to satisfy their obligation under the Canadian constitution to consult and accommodate their interests.35 The court nevertheless found that this obligation was met.36 Although the First Nation communities concluded that there was no acceptable accommodation for the effects of the project, the government’s approval was based on its assessment that the project was ‘in the best interests of the province’, having taken into account the multiplicity of factors at play,37 which, according to the court, qualified as ‘a satisfactory, reasoned explanation’.38 Thus, although a different conclusion by the Ministers may have been more consistent with the ­environmental assessment, the decision did not qualify as ‘unreasonable’.39 The court noted that the Ministers were ‘exercising a very wide discretion’ and that their decision would be entitled to a ‘high degree of deference by the court’.40 Similar actions brought by First Nations communities and affected landowners before the Federal Court against the ‘Justification Decision’ of the Governor in Council, whereby it was determined that the project’s negative environmental effects were justified, were equally unsuccessful.41 First Nation communities and other groups continue to call on the Federal Government to halt the project, in order to hear a legal action   Indigenous and Northern Affairs Canada, ‘Treaty Guide to Treaty No.8 1899’ (10 September 2016). 32   Peace Valley Landowner Association v BC, supra note 29, para. 130. 33   Canadian Environmental Assessment Act [2012] (S.C. 2012, c. 19, s. 52). 34   Peace Valley Landowner Association v BC, supra note 29 at para. 130. 35   Ibid., para. 89. 36   Ibid., para. 157. 37   Ibid., para. 160. 38   Ibid., para. 163. 39   Ibid., para. 187. 40  Ibid. 41   Prophet River First Nation v Canada, supra note 29; Peace Valley Landowner Association v Canada, supra note 29. 31

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212  Research handbook on climate change, migration and the law by the West Moberly and Prophet First Nations pending appeal in the Federal Court. In November 2015, Amnesty International condemned the  project moving forward pending the legal challenges brought forth by the First Nation communities, calling it a ‘violation of Indigenous peoples’ human rights’.42 The organization also released a full report on the project in August 2016, advocating that the project proceed only once the Federal Government had granted free, prior and informed consent to all affected indigenous peoples.43 In May 2016, the Royal Society of Canada and over 200 leading scholars also raised doubts about the project’s approval process and recommended halting the project, which they say violated First Nation treaty rights and would have ‘unprecedented’ ­environmental impacts.44 At international level, non-governmental ­organizations (NGOs) made submissions to the UNESCO World Heritage Committee and the Committee on Economic, Social and Cultural Rights (CESCR) on the dam’s impacts on Indigenous rights, food security and the Peace-Athabasca Delta, a UNESCO World Heritage Site.45 Despite ongoing opposition, the project is moving forward at the time of conclusion of this chapter. In July 2016, the newly elected Federal Government issued authorizations under the Fisheries Act to begin main construction work that will result in flooding of the valley, just months after its official adoption of the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP).46 The Site C Clean Energy Project demonstrates that prior to constructing hydroelectric dams, states must address the serious human rights impacts relating to the forced displacement or relocation of local and Indigenous 42   T. Schultz-Jagow for S. Shetty, Open letter to PM Canada and Premier of BC, REF: TG AMR 20/2902/2015 (18 November 2015). 43   Amnesty International Ltd, The Point of No Return: The Human Rights of Indigenous Peoples in Canada Threatened by the Site C dam, AMR 20/4281/2016 (2016), https://www.amnesty.ca/sites/amnesty/files/Canada%20Site%20C%20Re​ port.pdf. 44   M. Lassonde, Letter to the Prime Minister Justin Trudeau (19 May 2016), https://rsc-src.ca/sites/default/files/pdf/PM_Trudeau_19.05.2016.pdf, accessed 23 May 2016; Site C: Statement by Concerned Scholars, ‘Statement of Concerned Scholars on the Site C dam project, Peace River, British Columbia’, https://sitec​ statement.org/, accessed on 23 May 2016. 45   Sierra Club BC, ‘NGO Submission to UN Highlights Impacts of Site C Dam on Indigenous Rights, Food Security’, http://sierraclub.bc.ca/ngo-submis​sion-toun-highlights-impacts-of-site-c-dam-on-indigenous-rights-food-security/, accessed on 23 May 2016. 46   M. Hume, ‘Liberal Authorizations for Site C Dam Draw Criticism’ (30 July 2016), http://www.theglobeandmail.com/news/british-columbia/liberal-authoriza​ tions-for-site-c-dam-draw-criticism/article31213012/, accessed 9 Sept 2016.

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Displacement due to responses to climate change  ­213 communities and the subsequent loss of land, cultural heritage, access to food and water, traditional livelihoods and means of subsistence. Even in democratic, industrialized countries like Canada where there is established rule of law, participatory public impact assessments and a robust civil society, hydropower projects continue to be extremely controversial. While the CESCR has called upon international agencies to ­‘scrupulously avoid involvement in projects which [. . .] involve large-scale evictions or displacement of persons without the provision of all appropriate protection and compensation’,47 there are serious concerns that international mechanisms, most notably through the Clean Development Mechanisms (CDM) set up by the Kyoto Protocol, have supported—and will ­continue to support—the construction of large hydroelectric dams where proper human rights safeguards have not been implemented.48 The Kyoto ­protocol

47   CESCR, General Comment No. 2, UN ESCOR, Supp. (No. 3), 86, UN Doc. E/1990/23 (1990), para. 6. 48   For example, in Panama, the Barro Blanco Hydroelectric Power Plant Project was registered under the Clean Development Mechanism in 2011 and is touted as ‘[aligning] with the government’s efforts to diversify the country’s energy mix and create a new source of sustainable and renewable energy to meet Panama’s growing energy needs’. However, the dam is expected to flood Indigenous t­erritories held by the Ngäbe and Buglé peoples, covering homes, schools and cultural sites. In 2014 a Panamanian Indigenous organization filed the first ever complaint to the Independent Complaints Mechanism (ICM) of the Dutch and German development banks, FMO and DEG, alleging that lenders failed to ensure free, prior and informed consent prior to financing. The ICM concluded that the banks violated their own policies by not adequately assessing the risks to Indigenous peoples’ rights and the environment. Although the Panamanian environmental agency fined the company developing the project and the main contractor for failing to comply with its resettlement and compensation obligations, the reservoir was completed and began being filled in May 2016. In June 2016 the President of Panama said that halting the project now was ‘inconceivable’ given that it is 96 per cent finished. See Eli Cain, ‘Cementing Its Legacy: The Panamanian Government’s Damning of the Ngäbe-Buglé’ (Council on Hemispheric Affairs, 14 June 2016), http://www. coha.org/cementing-its-legacy-the-panamanian-­governments-damning-of-thengabe-bugle/; Carbon Market Watch, ‘Human Rights Implications of Climate Change Mitigation Actions’ (2015) http://carbonmarketwatch.org/wp-content/ uploads/2015/11/HUMAN-RIGHTS-IMPLICATIONS-OF-CLIMATECHANGE-MITIGATION-ACTIONS_WEB-final.pdf, 11; The Business Year, ‘Powerful Momentum’ (2016), https://www.thebusinessyear.com/panama-2016/ powerful-momentum/focus. CDMs have also been accused of exacerbating forced evictions by promoting the development of large-scale land leases and acquisitions. See also UN-Habitat and OHCHRC, Forced Evictions Fact Sheet No.25/Rev.1 (2014), http://www.ohchr.org/Documents/Publications/FS25. Rev.1.pdf, at 38.

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214  Research handbook on climate change, migration and the law does require that the CDM advance sustainable development along with delivering climate mitigation benefits,49 which could be interpreted as requiring some restraint in financing large hydro projects with little or no sustainable benefits. However, the CDM has been criticized as largely failing to deliver on this part of its mandate, due in part to a failure to establish an international sustainability assessment process in developing countries, leaving host countries to determine their own sustainability ­criteria, which often lacks specificity, transparency and stringency.50 To address such concerns, multilateral institutions and NGOs including the CDM and the World Commission on Dams have developed numerous standards and safeguards to prevent and alleviate the negative impacts of dam projects. One innovative non-governmental standard is the Gold Standard Rules and Procedures for CDM. Launched in 2003, the Gold Standard provides a robust methodology for ensuring that CDM projects lead to real and verifiable reductions in emissions and actually contribute to sustainable development in developing countries. In terms of human rights, version 2.1 of the Gold Standard most notably includes safeguards providing that projects should respect international human rights and labour standards and not be involved in or support human rights abuses, involuntary resettlement or the alteration, damage or removal of any critical cultural heritage.51 However, challenges remain with respect to the implementation and validation of standards,52 and concerns that human rights and the environment are being sacrificed in the development of dams persist.53 B.  Displacement and Human Rights Issues in the Context of REDD+ Climate-smart agriculture and land-based, carbon-mitigation initiatives such as the mechanism ‘Reducing Emissions from Deforestation and forest Degradation’ (REDD, and REDD+ to include forest conservation, ­sustainable management of forests and enhancement of forest carbon stocks) play a significant role in generating climate-mitigation benefits. According to the Intergovernmental Panel on Climate Change (IPCC),

49   Kyoto Protocol to the United Nations Framework convention on Climate Change (1998), art. 12.2. 50   Carbon Market Watch, ‘Sustainable Development in the CDM’, http://car​ bonmarketwatch.org/category/sustainable-development/, accessed on 8 Sept 2016. 51   Gold Standard, Gold Standard Requirements Version 2.1, http://www. goldstandard.org/sites/default/files/gsv2.1_requirements-11.pdf. 52  Roht-Arriaza, supra note 5, at 219 and 232. 53   Ibid., at 215–19.

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Displacement due to responses to climate change  ­215 REDD+ initiatives and others aimed at reducing and/or preventing ­deforestation and forest degradation, provide the most important immediate annual, and per hectare, short-term carbon stock impact by preventing carbon emissions from being released into the atmosphere.54 Similarly, ­climate-smart agriculture initiatives, which aim to increase agricultural productivity, resilience and capacity, contribute to a reduction in d ­ eforestation as well as protect natural ecosystems from agricultural encroachment.55 As such, these systems are able to generate m ­ itigation benefits both by ­reducing per unit carbon emissions of agricultural product and by ­increasing carbon sinks, thereby simultaneously ­contributing to climate mitigation as well as food security.56 The Natural Resource Management Project (NRMP) is a Specific Investment Loan (SIL) of approximately US $68.5 million57 provided by the World Bank to the Kenyan Government to support the country’s REDD+ Program by providing technical assistance for REDD+ Readiness.58 The original project objectives included enhancing ‘the institutional capacity to manage water and forest resources’, reducing ‘the incidence and severity of water shocks such as drought, floods and water shortage in river catchments’ as well as improving ‘the livelihoods of communities participating in the co-management of water and forest ­resources’.59 The project was approved by the World Bank’s Executive Directors in March 2007 and implemented in April 2008,60 restructured

  UNFCC, ‘Reducing emissions from deforestation and forest degradation and the role of conservation, sustainable management of forests and enhancement of forest carbon stocks in developing countries (REDD-plus)’, http://unfccc.int/ land_use_and_climate_change/redd/items/7377.php. 55   Food and Agriculture Organization of the United Nations (FAO), Climate Smart Agriculture: Policies, Practices and Financing for Food Security, Adaptation and Mitigation (2010), http://www.fao.org/docrep/013/i1881e/i1881e00.pdf, at 1. 56   Ibid., at iii. 57   The World Bank, Project Appraisal Document, Report No: 37982-KE (26 February 2007), http://documents.worldbank.org/curated/en/584531468285619738/ pdf/37982.pdf; The Inspection Panel, Report and Recommendation: Kenya Natural Resource Management Project (P095050), Report no. 77959-KE (29 May 2013), http://documents.worldbank.org/curated/en/305841468276357879/pdf/779590IPR 0P09500lPN0REQUEST0RQ01302.pdf, para. 12. 58   Activities underway by 2013 include for example: ‘Identification of Grazing Systems as a REDD+ Strategy Option [. . .] Assessment of Benefit Sharing Options [and] Development of a Methodology for Monitoring Community Engagement in Forest Management and REDD+’, see The Inspection Panel, Report no. 77959KE, supra note 57, para. 100. 59   The World Bank, supra note 57, at ii. 60   The Inspection Panel, Report no. 77959-KE, supra note 57, para. 6. 54

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216  Research handbook on climate change, migration and the law in 2011 and, as planned, closed in June 2013.61 It was implemented in the western highlands of Kenya, with the Kenyan Ministries responsible for forestry and irrigation acting as the implementing agents.62 The project area included the Cherangani Hills, home to the Cherangany and Sengwer Indigenous people.63 Before and during the project implementation, the Sengwer people and other land occupants were forcibly evicted from lands on which they had lived for generations and from forests they depended on economically and culturally.64 The World Bank has been accused of facilitating these evictions through the failure of its safeguards to adequately foresee and mitigate such effects.65 As a result, this experience demonstrates the challenges inherent in implementing safeguards in areas characterized by historical land conflicts, and the potential for REDD+ Readiness activities to infringe the rights of Indigenous peoples and local communities. The Sengwer people and others residing in the gazetted Embobut Forest have experienced multiple forced evictions since the 1980s as a result of being deemed illegal settlers by the Kenyan Government.66 During the NRMP project’s implementation, the Sengwer denounced multiple ­evictions carried out by the Kenya Forest Service (KFS) between 2007 and 2013, which led to the displacement of over 400 families and the destruction of their homes, belongings and crops.67 In 2011, the World Bank obtained a moratorium on evictions in an agreement with the Kenyan Government; however, the Sengwer people allege that the e­ victions ­continued.68 In 2014, the Eldoret High Court issued an injunction ­prohibiting further evictions   Ibid. See also The Inspection Panel, Kenya: Natural Resource Management Project. Investigation Report, Report no. 88065-KE (22 May 2014), http:// ewebapps.worldbank.org/apps/ip/PanelCases/84%20-%20Investigation%20Rep​ ort%20(English).pdf, para. 5. 62   The World Bank, ‘Kenya – Natural Resource Management Project: details’, http://www.worldbank.org/projects/P095050/kenya-natural-resource-manage​ ment-project?lang5en&tab5details, accessed on 14 May 2016. 63   The Cherangani Hills were not originally planned as a project area, see The Inspection Panel, Report no. 88065-KE, supra note 61, para. 11. 64   The World Bank Group, ‘Kenya – Natural Resource Management Project: Case-84’, http://ewebapps.worldbank.org/apps/ip/Pages/ViewCase.aspx?CaseId5​ 89; The Inspection Panel, Report no. 88065-KE, supra note 61, para. 71. 65   See for example: World Rainforest Movement, ‘Forced Relocation of Sengwer People Proves Urgency of Canceling REDD’ (25 February 2014), http:// wrm.org.uy/other-relevant-information/forced-relocation-of-sengwer-peopleproves-urgency-of-cance​ling-redd/. 66   The Inspection Panel, Report no. 88065-KE, supra note 61, para. 72. 67  Ibid. 68   Ibid., paras 80–81. 61

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Displacement due to responses to climate change  ­217 until 6 February 2014 at the earliest.69 Despite the court order, illegal ­evictions by the KFS allegedly continued and were even expanded to other areas in the Cherangany Hills.70 In January 2013, prior to the injunction order, representatives of the Sengwer people also made a formal complaint to the World Bank Inspection Panel, an independent accountability mechanism charged with reviewing the impacts of projects funded by the World Bank.71 The Sengwer people claimed that they were forcibly evicted from their a­ ncestral lands, and were neither properly consulted nor adequately provided with oppor­ aintained tunities for resettlement.72 The World Bank project managers m that the evictions were not a result of the project and that, when they became aware of such incidents they responded promptly by securing a moratorium on evictions from the Kenyan Government.73 Outdated conservation strategies employed by Kenyan officials, ­including views that only the state can manage protected areas and that forests must be devoid of people to be preserved, were also blamed. The managers acknowledged, however, that the project was implemented in a c­ hallenging environment, in a time of ‘institutional and legislative uncertainty’ f­ollowing the 2002 and 2007 Kenyan elections,74 and that the original project design was ‘overly ambitious with respect to solving land issues’.75 As a result, the project was restructured in 2011 to achieve a more ‘realistic achievable set of ­objectives’.76 To this end, certain goals were removed, including ­securing land title for occupants and establishing a strategy to rehabilitate livelihoods of people evicted up until December 2002.77 The Inspection Panel undertook a full investigation of the Sengwer People’s complaint and its findings were reported in 2014.78 The panel found that although the project’s aspirations to resolve land claims were commendable, they were not properly supported by an adequate

  Ibid., para. 88.   Forest Peoples Programme, ‘Kenya Defies its own Courts: Torching Homes and Forcefully Evicting the Sengwer from Their Ancestral Lands, Threatening Their Cultural Survival’ (22 January 2014), http://www.forestpeoples.org/topics/ legal-human-rights/news/2014/01/kenya-defies-its-own-courts-torching-homesand-force​fully-evi. 71   The Inspection Panel, Report no. 77959-KE, supra note 57, para. 3. 72   The Inspection Panel, Report no. 88065-KE, supra note 61, para. 7. 73   Ibid., para. 8. 74   Ibid., paras 3 and 8. 75   Ibid., para. 8. 76   Ibid., para. 5. 77  Ibid. 78  Ibid. 69 70

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218  Research handbook on climate change, migration and the law i­nvestigation into the potential risks and resource allocation needs of the situation.79 Even though the project management was not directly involved in the evictions and took proper steps to respond,80 they failed to foresee and mitigate potential risks at the outset of the project. 81 Prior to implementation, the project design was assessed in accordance with the World Bank guidelines and had triggered various operational policy safeguards including Physical Cultural Resources, Indigenous Peoples and Involuntary Resettlement.82 Although the original project design included a Resettlement Policy and frameworks regarding Indigenous Peoples (such as for participatory forest management and community engagement),83 their implementation was never planned for and no settlement plan was ever prepared. 84 The expectation that the project would lead to land allocation and help to solve long-standing land issues was therefore not met.85 The Inspection Panel’s report also found that the project failed to conduct a proper institutional analysis of the KFS’s capacities, given the historic mission and evictions that its predecessor, the Forestry Department, had carried out.86 Therefore, large-scale institutional and cultural reforms within the KFS would have been needed to guarantee successful implementation practices of forest co-management.87 Although some capacity-building goals were achieved, they were insufficient to address the problem.88 In 2014–15, as a response to the panel’s recommendations and proposed action plan, the World Bank implemented safeguard training sessions and a colloquium hosted by various stakeholders to allocate responsibility to various agencies and create a timeline for resolution.89 Today, questions of displacement, forest ownership recognition and proper compensation   Ibid., para. 25.   Ibid., para. 15. 81   Ibid., para. 26. 82   These represent the World Bank operational policies: 4.10, 4.11 and 4.12; see The World Bank, supra note 57, ii. 83   The Inspection Panel, Report no. 88065-KE, supra note 61, para. 19. 84   Ibid., para. 10. 85   Ibid., para. 30. 86   Ibid., paras 13 and 14. 87   Ibid., para. 27. 88  Ibid. 89   International Bank for Reconstruction and Development Association, Progress Report to the Board of Executive directors on the implementation of management’s action plan in response to the inspection panel investigation report to the Kenya Natural Resource Management Project (17 September 2015), http:// ewebapps.worldbank.org/apps/ip/PanelCases/84-First%20Management%20 Progress%20Report%20(English).pdf, para. 22. 79 80

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Displacement due to responses to climate change  ­219 remain to be resolved,90 leaving many people displaced without either land titles or proper compensation. In recognizing that climate change responses should not compromise other social or environmental considerations, parties to the UNFCCC agreed in 2010 in Cancún to seven substantive and procedural safeguards.91 The Cancún Safeguards, as they are commonly known, include transparency, respect for the knowledge and rights of Indigenous peoples and local communications, full and effective participation of stakeholders, and biodiversity and enhancement of other social and environmental benefits. In Durban, the following year, an additional agreement was reached, providing that parties undertaking REDD+ activities ‘should provide a summary of information on how the [. . .] safeguards are being addressed and respected.’92 As a result, REDD+ host countries must comply with the Cancún Safeguards and the procedures outlined by the UNFCCC COP decisions in order to qualify for the results-based financing under the UNFCCC.93 A number of other safeguards have been developed by ­organizations funding REDD+ developments such as the World Bank’s Forest Carbon Partnership Facility (FCPF) and the UN-REDD Programme. Additionally, civil society has developed numerous voluntary forest and carbon ­certification programmes, which aim to promote the sustainable ­management of forests, poverty alleviation, quantification of emission reductions and other objectives.94 The International Union for Conservation of Nature’s (IUCN) recent review of over 30 standards for REDD+ and forest carbon initiatives highlights existing safeguards that specifically target displacement. For example,   These issues are under various resolution timelines, ranging from one to two years following the Colloquium. See International Bank for Reconstruction and Development Association (17 September 2015) annex 1: Integrated Matrix of Key Issues and Inputs from the National Forum for Indigenous Forest Communities (held in Nakuru) and the Colloquium (held in Eldoret). 91   Decision 1/CP.16, supra note 3, Appendix 1. 92   UNFCCC Decision 12/CP.17, Guidance on systems for providing ­information on how safeguards are addressed and respected and modalities relating to forest reference emission levels and forest reference levels as referred to in decision 1/CP.16 (9 December 2011). 93   S. Roe et al., ‘Safeguards in REDD+ and Forest Carbon Standards: A Review of Social, Environmental and Procedural Concepts and Application’ (2013), Climate Focus, at 3. 94   See, for example, E. Merger, M. Dutschke and L. Verchot, ‘Options for REDD+ Voluntary Certification to Ensure Net GHG Benefits, Poverty Alleviation, Sustainable Management of Forests and Biodiversity Conservation’ (2011) 2 Forests 550. 90

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220  Research handbook on climate change, migration and the law the World Bank’s FCPF requires that involuntary settlement is avoided or minimized, and where unfeasible, assistance is given to displaced persons to improve or restore their livelihoods.95 The Global Environment Facility, one of the largest funders of environmental projects world-wide, requires that involuntary settlement must be avoided or minimized, and in cases where this may not be feasible, partner agencies are required to assist displaced persons in improving or restoring their livelihoods and standards of living.96 REDD+ Social and Environmental Safeguards boast of a stronger requirement, that any relocation or displacement necessitates a prior agreement on the provision of alternative lands and/or fair compensation.97 C. Displacement and Human Rights Issues in the Context of Disaster Risk and Relocation Initiatives Climate change may also impact the right to housing in many significant ways. A 2009 report by the Office of the United Nations High Commissioner for Human Rights (OHCHR) observes that rising sea levels and storm surges have had, and will continue to have, a direct impact on numerous coastal settlements, leading to the relocation of communities.98 The report also notes that settlements in low-lying mega-deltas are particularly at risk, ‘as evidenced by the millions of people and homes affected by flooding in recent years’,99 and that: [t]he erosion of livelihoods, partly caused by climate change, is a main ‘push’ factor for increasing rural to urban migration. Many will move to urban slums and informal settlements where they are often forced to build shelters in ­hazardous areas. Already today, an estimated one billion people live in urban slums on fragile hillsides or flood-prone river banks and face acute vulnerability to extreme climate events.100

Similarly, the IPCC observes that climate change may generate a series of phenomena provoking population migrations, including the d ­ isruption   The Forest Carbon Partnership Facility, OP4.12. See Roe et al. supra note 93, at 37. See also V. Mosoti, World Bank Safeguard Policies: An Overview (Forest Carbon Partnership Facility, 2012) http://www.forestcarbonpartnership. org/sites/fcp/files/Documents/tagged/4a%20WB%20Safeguards%20Overview.pdf.  96   Global Environment Facility, Safeguard 3. See Roe et al., supra note 93, 42.  97   REDD+ Social and Environmental Safeguards, Principle 1, Criterion 1.3. See Roe et al., supra note 93, at 49.  98   OHCHR, Report on the relationship between climate change and human rights (15 January 2009), A/HRC/10/61, para. 36.  99  Ibid. 100   Ibid., para. 37.  95

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Displacement due to responses to climate change  ­221 of settlements, commerce, transport and societies due to flooding, pressures on urban and rural infrastructure, loss of property, decreased freshwater availability due to saltwater intrusion, power outages causing the disruption of public water supply, contamination of water supply, and withdrawal of risk coverage in vulnerable areas by private insurers.101 As a growing number of communities are living in areas threatened by the effects of climate change, efforts to reduce disaster risks are becoming increasingly important. State governments are tasked with the primary responsibility of protecting the people within their jurisdictions from climate-induced changes.102 As the OHCHR emphasizes, ‘the State is [. . .] responsible for ensuring that adequate plans are in place to safeguard all residents before, during and after a disaster’.103 Disaster risk management engages strategies and policies to minimize the adverse effect of climate change through ‘reduced exposure to hazards, lessened vulnerability of people and property, wise management of land and the environment, and improved preparedness for adverse events’.104 Strategies designed to deal with disaster-risk reduction are concerned with both the exposure and vulnerability of communities in predicting potential impacts, as lesser extreme weather events in areas of high vulnerability can still produce severe impacts.105 According to the IPCC, national disaster reduction systems are the most important indicator of a country’s ability to cope with the projected increase in adverse events as well as community exposure and vulnerability.106 The most effective of such initiatives produce development benefits in the short term while reducing vulnerability over time, and allow for a synergy between national frameworks and local risk management practices.107 Following predictions that a significant number of communities globally will be unable to live sustainably in their present location ­ in the future, planned relocation has emerged as a possible strategy.   IPCC, ‘Summary for Policymakers’ in M.L. Parry et al. (eds.), Climate Change 2007: Impacts, Adaptation and Vulnerability. Contribution of Working Group II to the Fourth Assessment Report of the Intergovernmental Panel on Climate Change (Cambridge University Press, 2007) 18. 102   R. Bronen, ‘Climate-Induced Community Relocations: Using Integrated Social-Ecological Assessments to Foster Adaptation and Resilience’ (2015) 20 Ecology and Society 36, at 36. 103   UN-Habitat and OHCHRC, supra note 48, at ix. 104   UNISDR, ‘Terminology: Disaster risk reduction’, https://www.unisdr.org/ we/inform/terminology#letter-d. 105   IPCC, ‘Summary for Policymakers’, supra note 101, at 4. 106   Ibid., at 9. 107   Ibid., at 18. 101

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222  Research handbook on climate change, migration and the law Among those forecasted to require relocation are people living in areas ­susceptible to sudden-onset effects such as flooding, in regions expected to be destroyed by the effects of climate change, including many small island states, or those whose livelihoods are threatened by slower-onset effects such as an increased frequency of droughts.108 As such, planned relocation initiatives are expected to increase in both developing and developed countries over the next decade.109 Planned relocations can be viewed either as a disaster-risk reduction strategy or as climate-change ­adaption strategy, depending on whether the initiative was undertaken prior to, or following, a climate-related disaster.110 The Maldives, the Carteret Islands near Papua New Guinea, Tuvalu, Kiribati, Bangladesh, Fiji, Sri Lanka and the United States are already pursuing planned relocations.111 Recognizing that ‘[a]s more and more people live in locations highly vulnerable to disasters and other climate change impacts, planned relocation will be one response States may take to protect affected areas’, the United Nations Refugee Agency (UNHCR) published a report in 2014 on best practices for relocations.112 A central guiding principle behind planned relocation initiatives is that such strategies should only be used as a last resort when alternative means of adaptation will not allow communities to remain in place.113 Although planned relocations can be a key tool to ‘save lives and offer long term protection’,114 it continues to be resisted by some who fear that it will lead to a decrease in mitigation measures that aim to prevent community displacement altogether.115 This may in part explain why the 2014 UNHCR report on planned relocation efforts found that few governments (with the exception of the Maldives and Solomon Islands) have produced publicly available plans for relocation efforts,116 despite the agency’s view that such initiatives will be important as a future climate-

108   UNHCR, Planned Relocations, Disasters and Climate Change: Consolidating Good Practices and Preparing for the Future, Background document: Sanremo Consultation (12–14 March 2014), http://www.unhcr.org/53c4d6f99.pdf, at 7. 109   Ibid., at 14. 110   Ibid., at 6. 111   Forced Evictions: Global Crisis, Global Solutions (UN Habitat, 2011) 55. See also J. Koppel Maldonado et al., ‘The Impact of Climate Change on Tribal Communities in the US: Displacement, Relocation and Human Rights’ (2013) 120 Climatic Change 601. 112  UNHCR, supra note 108, at 6. 113   Ibid., at 20. 114  Bronen, supra note 102, at 36. 115  UNHCR, supra note 108, at 6. 116   Ibid., at 14.

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Displacement due to responses to climate change  ­223 change adaptation strategy.117 Given that planned relocation is predicted to occur primarily within state borders,118 the UNHCR believes governments should be increasing their efforts to adequately plan relocation initiatives through legislation, and public policy, by determining coordination efforts and funding allocation.119 Given the existing challenges that many developing and developed states face in respecting the right to adequate housing and the prohibition against forced evictions, the risk that programmes of relocation and resettlement may lead to human rights violations is significant. The recent experience of the Maldives in managing tsunami risk is illustrative. The effects of climate change, such as rising sea levels, the increased frequency of storms and floods, and the acceleration of coastal erosion, pose a severe threat to the Maldives and its Atolls. The effects of overcrowding in the dispersed island country have already negatively impacted the Maldivian’s right to adequate housing. The country’s vulnerability to climate change had been recognized by the government since the 1980s and prompted the development of a national climate-change adaptation strategy prior to the 2004 Indian Ocean Tsunami.120 In the wake of the tsunami, the Maldivian Government focused on reconstruction as well as adaptation to respond to the threat of long-term impacts of climate change. The adaptation ­strategies adopted by the government centred on the relocation of communities from smaller islands to larger ones, in an effort to consolidate individuals away from vulnerable islands to more resilient ones. Individuals were incentivized to move to these islands to access better services. The resettlement programme, according to the policy, has been voluntary and based on demand.121 In July 2011, the UN Special Rapporteur on the human rights of internally displaced persons (IDPs) made an official visit to the Maldives. In his report, the Special Rapporteur notes that some relocation efforts appear to have been undertaken for the sole purpose of implementing the ­government’s population consolidation policy, originally developed to save on service and infrastructure costs, and may not have been a

  Ibid., at 7.   Ibid., at 6. 119   Ibid., at 7. 120   The plan was later revised in 2006. See Republic of Maldives, National Adaptation Programme of Action (NAPA) (2006). 121   V. Rawa et al., Tsunami Displacement: Lessons for Climate Change Adaptation Programming: Findings on Shelter Reconstruction (USAID 2010), http://transition.usaid.gov/locations/asia/documents/tsunami_displacement_ study/Synthesis_Report_AnnexIV.pdf, 5–9. 117 118

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224  Research handbook on climate change, migration and the law ­ecessary response to climate-change impacts or other environmental n ­circumstances.122 Moreover, the visit highlighted complaints that many of those involved in the relocation initiatives had not been fully informed prior to the process.123 These observations followed an earlier report in 2009 by the UN Special Rapporteur on the right to adequate housing, which noted ‘a lack of participation in the decision making process ­concerning relocation, the design of the new houses, and the infrastructure, which resulted in new structures that were not always compatible with the livelihood of the communities’.124 Further, both reports have equally outlined the serious conflicts between those displaced and host communities during the relocation phase.125 These disagreements, which delayed housing construction, centred on the reconstruction process, namely, whether or not homes should be restored on their original plots or be consolidated.126 As such, although housing restoration and resettlement were government priorities following the tsunami, seven years later there were still 1 600 persons living in temporary shelters.127 Moreover, even though it was estimated that housing ­reconstruction would be finalized by 2012, during his visit in 2009, the Special Rapporteur found that living conditions on the island generally had already depreciated, as infrastructures such as sanitation facilities— built for temporary relief—had drastically deteriorated.128 The Special Rapporteur on the right to adequate housing recommended that the state and international organizations work to increase transparency and public participation in decision-making processes through enhanced awareness at the local level.129 The Special Rapporteur on the human rights of IDPs found that the Maldivian Government had   OHCHR, Report of the Special Rapporteur on the human rights of internally displaced persons: Mission to the Maldives, UN Doc. A/HRC/19/54/Add.1 (30 January 2012), para. 58. 123  Ibid. 124   Raquel Rolnik, Report of the Special Rapporteur on adequate housing as a component of the right to an adequate standard of living, and on the right to non-discrimination in this context, Preliminary note on the mission to Maldives, UN Doc A/HRC/10/7Add.4, (March 3, 2009); UN, ‘Press Release: Lessons of the Post Tsunami Reconstruction in Maldives are Crucial to Design International Strategies for Climate Change Adaptation’ (26 February 2009). 125   Special Rapporteur on the human rights of internally displaced persons, supra note 122, para. 50; Rolnik, supra note 124. 126   Special Rapporteur on the human rights of internally displaced persons, supra note 122, para. 47. 127   Ibid., para. 16. 128   Ibid., para. 48. 129  Rolnik, supra note 124, at 3–4. 122

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Displacement due to responses to climate change  ­225 ­ isproportionately focused on risk reduction and adaptation strategies. As d these will ultimately be insufficient to prevent future displacement, he recommended that the country implement a national framework on internally displaced persons.130

II. THE PROHIBITION ON FORCED EVICTIONS AND THE JUSTIFICATION OF RELOCATION UNDER INTERNATIONAL HUMAN RIGHTS LAW The previous section highlighted the significant probability that many policy responses adopted to fight climate change may in and of themselves lead to human rights violations or have significant implications for the enjoyment of human rights. Although responding to climate change should be an urgent and serious concern, it should not be used as a ­justification for violating binding obligations in international human rights law. As shown in the three diverse case studies discussed above, displacement and forced evictions are key human rights concerns emerging from climate change responses. In 1993, the Commission on Human Rights opined that the ‘practice of forced eviction constitutes a gross violation of human rights, in particular the right to adequate housing’.131 Similarly, the Special Rapporteur on adequate housing emphasizes that ‘[a]s recognized by several human rights bodies, forced evictions constitute prima facie violations of a wide range of internationally recognized human rights and can only be carried out under exceptional circumstances and in full accordance with international human rights law’.132 Numerous international legal instruments provide that states are obliged to refrain from, and protect their populations against, forced evictions.133 The CESCR has paid particular attention to the protection against forced

130   Special Rapporteur on the human rights of internally displaced persons, supra note 122, para. 37. 131   UN Commission on Human Rights, Forced Evictions, Res 1993/77, UN Doc E/CN.4/1993/L.11/Add.8 (10 March 1993). 132   OHCHR, Report of the Special Rapporteur on adequate housing as a component of the right to an adequate standard of living, UN Doc A/HRC/4/18, https://documents-dds-ny.un.org/doc/UNDOC/GEN/G07/106/28/PDF/G0710628. pdf?OpenElement, para. 21. 133   OHCHR, ‘Forced Evictions’ (n.d.), http://www.ohchr.org/en/Issues/Housing/ Pages/ForcedEvictions.aspx.

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226  Research handbook on climate change, migration and the law evictions which it defines as ‘the permanent or temporary removal against their will of individuals, families and/or communities from the homes and/or land which they occupy, without the provision of, and access to, appropriate forms of legal or other protection’.134 In interpreting article 11 of the International Covenant on Economic, Social and Cultural Rights (ICESCR), the right to an adequate standard of living, the CESCR affirmed in its General Comment No. 4 that ‘instances of forced eviction are prima facie incompatible with the requirements of the Covenant’.135 The CESCR added in its General Comment No. 7 that: while manifestly breaching the rights enshrined in the [ICESCR], the practice of forced evictions may also result in violations of civil and political rights, such as the right to life, the right to security of the person, the right to non-interference with privacy, family and home and the right to the peaceful enjoyment of possessions.136

The ICESCR is not alone in prohibiting forced evictions and other actions that violate the right to adequate housing. The Universal Declaration of Human Rights provides that ‘[e]veryone has the right to a standard of living adequate for the health and well-being of himself and of his family, including food, clothing, housing and medical care and necessary social services.’137 The Convention on the Rights of the Child further provides that, ‘States Parties recognize the right of every child to a standard of living adequate for the child’s physical, mental, spiritual, moral and social development’ and that they ‘shall take appropriate measures to assist parents [. . .] to implement this right and shall in case of need provide material assistance and support programmes, particularly with regard to nutrition, clothing and housing.’138 Conventions such as the Convention on the Elimination of All Forms of Discrimination Against Women139 and the International Convention on the   CESCR, General Comment No 7: The right to adequate housing (art.11.1): forced evictions, UN Doc E/1998/22 (20 May 1997), para. 3. 135   CESCR, General Comment No 4: The right to adequate housing, UN Doc E/1992/23 (13 December 1991), art. 11.1. 136   CESCR, General Comment No 7, supra note 134, para. 4. 137   Universal Declaration of Human Rights, 10 December 1948, art. 25, para. 1. 138   Convention on the Rights of the Child, 20 November 1989, 1577 UNTS 3, art. 27, paras 1 and 3. 139   See Convention on the Elimination of All Forms of Discrimination Against Women (18 December 1979) 1249 UNTS 13, art. 14, para. 2(b), requiring states to eliminate discrimination against women in rural areas, including in their enjoyment of the right to ‘enjoy adequate living conditions, particularly in relation to housing, sanitation, electricity and water supply, transport and communications’. 134

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Displacement due to responses to climate change  ­227 Elimination of All Forms of Racial Discrimination,140 as well as the UN Declaration on the Rights of Indigenous Peoples141 also specifically require that people are not discriminated against in their right to housing. These anti-discrimination provisions are particularly important in the context of forced evictions, where women, minorities and Indigenous peoples experience the effects of climate change—and ill-planned responses to climate change—most acutely. As Julie Kokkel Maldonado and co-authors observed, ‘communities facing the likelihood of relocation are also often those that have experienced systemic impoverishment and injustice’.142 Forced evictions often exacerbate pre-existing inequalities. The UN Declaration on the Rights of Indigenous Peoples provides specifically that: Indigenous peoples have the right to determine and develop priorities and ­strategies for exercising their right to development. In particular, indigenous peoples have the right to be actively involved in developing and determining health, housing and other economic and social programmes affecting them.143

Moreover, the African Commission on Human and Peoples’ Rights has even gone so far to rule that, in some particular circumstances, ‘forced evictions and destruction of housing [. . .] amounts to cruel, inhuman and degrading treatment or punishment’ under article 5 of the Banjul Charter.144 At the national level, constitutions such as those of Colombia145 and South Africa146 have enshrined a right to housing, the respect of which is manifestly incompatible with forced evictions. In addition, as UN-Habitat points out, a number of other national Constitutions ‘suggest a general 140   See International Convention on the Elimination of All Forms of Racial Discrimination (21 December 1965), 660 UNTS 195, art. 5(e), in application of which states Parties must prohibit and eliminate racial discrimination in the ­enjoyment of the right to housing. 141   See UNGA Resolution 61/295, ‘United Nations Declaration on the Rights of Indigenous Peoples’ (13 December 2007), art. 21: ‘Indigenous peoples have the right, without discrimination, to the improvement of their economic and social conditions, including, inter alia, in the areas of education, employment, vocational training and retraining, housing, sanitation, health and social security.’ 142   Kokkel Maldonado et al., supra note 111. 143   United Nations Declaration on the Rights of Indigenous Peoples, supra note 141, art. 23. 144   Centre on Housing Rights and Evictions v The Sudan (Decisions on Merits), Communications Nos. 279/03 & 296/05, African Commission on Human and Peoples’ Rights (27 May 2009), para. 159. 145   Political Constitution of the Republic of Colombia (6 July 1991), art. 51. 146   Constitution of the Republic of South Africa, No. 108 of 1996 (18 December 1996), art. 26.

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228  Research handbook on climate change, migration and the law responsibility of the State for ensuring adequate housing and living conditions for all’,147 in application of international human rights law. This general prohibition of forced evictions admits however some ­exceptions whereby states may relocate people against their will under certain limited circumstances. As the Special Rapporteur on adequate housing notes, ‘the prohibition against forced evictions does not apply to evictions carried out both in accordance with the law and in c­ onformity with the provisions of international human rights treaties’.148 Yet, in ­relocating individuals vulnerable to the effects of climate change, states are obliged to abide by the safeguards set out in the prohibition against forced evictions in international human rights law. Therefore, the CESCR has also specified that states must ensure that such relocation programmes are carried out in a manner warranted by the law, which is c­ ompatible with applicable human rights standards, including the following ­procedural protections: (a) an opportunity for genuine consultation with those affected; (b) adequate and reasonable notice for all affected persons prior to the ­scheduled date of eviction; (c) information on the proposed evictions, and, where applicable, on the ­alternative purpose for which the land or housing is to be used, to be made available in reasonable time to all those affected; (d) especially where groups of people are involved, government officials or their representatives to be present during an eviction; (e) all persons carrying out the eviction to be properly identified; (f) evictions not to take place in particularly bad weather or at night unless the affected persons consent otherwise; (g) provision of legal remedies; and (h) provision, where possible, of legal aid to persons who are in need of it to seek redress from the courts.149

The Special Rapporteur on adequate housing developed in 2007 a set of ‘basic principles and guidelines on development-based evictions and ­displacement’ which aim to assist states in developing laws and policies to prevent forced evictions.150 The guidelines emphasized that evictions must 147   UN-Habitat, ‘The Right to Adequate Housing’ Fact Sheet No.21/Rev.1 (2009), http://www.ohchr.org/Documents/Publications/FS21_rev_1_Housing_en.​ pdf, at 14, identifying Argentina, Bangladesh, Brazil, Burkina Faso, Colombia, Costa Rica, Dominican Republic, El Salvador, Finland, Guatemala, Nepal, Netherlands, Nigeria, Pakistan, Philippines, Poland, Republic of Korea, Sri Lanka, Sweden, Switzerland, Turkey, Venezuela and Viet Nam. 148   OHCHR, ‘Report of the Special Rapporteur on adequate housing’, supra note 132, at 14. 149   CESCR, General Comment no 7, supra note 134, para. 15. 150   OHCHR, Special Rapporteur on adequate housing, supra note 132.

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Displacement due to responses to climate change  ­229 also be undertaken solely for the purpose of promoting general welfare, be reasonable and proportional, and be regulated so as to ensure full and fair compensation and rehabilitation.151 Beyond recognizing that the prohibition against forced evictions does not apply in every circumstance where people are forcibly removed from their homes, human rights treaties defines exceptional circumstances under which limitations can be imposed by states on the exercise of some human rights. Such limitations are only allowed if and inasmuch as they are determined by the law and are necessary in a democratic society to ensure respect for the rights and freedoms of others or to meet the just requirements of public order, public health or morals, national security or public safety.152 In such cases, these limitations must be prescribed by law, address a specific legitimate purpose allowed by international law, and be demonstrably necessary and proportionate.153 Human rights treaties also allow for temporary suspension of some human rights; for example, as specified in article 4 of the International Covenant on Civil and Political Rights, ‘in time of public emergency of which threatens the life of the nation and the existence of which is officially proclaimed’.154 During the drafting of this provision, derogations as a result of natural disasters, along with political, social or economic disasters, were envisaged.155 Given that climate change is resulting in more frequent extreme weather and serious natural disasters such as hurricanes, tsunamis and droughts, we may see states increasingly relying on derogations to deal with such events. Some NGOs, such as the now defunct International Council on Human Rights Policy, are ­concerned that articulating climate change and its effects as ‘emergencies’ may ‘remove climate change impacts from the ordinary reach of human rights law’, leading to derogations at the expense of individuals’ rights.156

 Ibid., para. 21.   See, e.g., International Covenant on Economic, Social and Cultural Rights (16 December 1966), 993 UNTS 3, art. 4. 153   See, e.g., United Nations Economic and Social Council UN Sub-Commission on Prevention of Discrimination and Protection of Minorities: The Siracusa Principles on the Limitation and Derogation Provisions in the International Covenant on Civil and Political Rights, Annex (1985). UN Doc. E/CN.4/1985/4. 154   See, e.g., ICCPR, art. 4(1). 155   D. McGoldrick, ‘The Interface Between Public Emergency Powers and International Law’ (2004) 2 International Journal of Constitutional Law 380, 396. See also UN General Assembly, Draft International Covenants on Human Rights, UN Doc. A/2929. 156   International Council on Human Rights Policy, Climate Change and Human Rights: A Rough Guide (2008), http://www.ohchr.org/Documents/Issues/ ClimateChange/Submissions/136_report.pdf, at 5. 151 152

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230  Research handbook on climate change, migration and the law There are reasons to doubt, however, that climate change can be a legitimate basis for a derogation to human rights. As Bridget Lewis argues, ‘it is difficult to establish whether climate change presents circumstances which justify derogation from human rights obligations’ on the basis of an ‘exceptional and actual or imminent danger which threatens the life of a nation’.157 In any case, derogations are limited. They must be strictly required by the exigencies of the situation, must not be inconsistent with other obligations under international law and may not be discriminatory. In addition, there are a number of rights from which derogation is never allowed: the rights to be free from arbitrary deprivation of life, torture and other ill-treatment, slavery; imprisonment for debt, retroactive penalty, non-recognition of the law, and infringement of freedom of thought, conscience, and religion.158 In addition, developed states have an obligation to assist developing states to ensure that such violations do not take place or are mitigated as much as possible through the provision of international cooperation, assistance, and funding.159 Ultimately though, the surest way of ensuring that responses to climate change do not undermine human rights is to adopt a proactive rights-based approach to climate change policy and governance.

III. CONCLUSION: THE ROLE OF A RIGHTSBASED APPROACH IN PREVENTING AND ADDRESSING DISPLACEMENT INDUCED BY RESPONSES TO CLIMATE CHANGE Over the last decade, many states, scholars, and advocates have sought to call attention to the importance of human rights obligations, principles, and approaches for addressing climate change. Although much of the focus has remained on the consequences of climate change for human rights, it is important to recognize that a rights-based approach not only justifies efforts to address climate change, but it can also guide and bolster such efforts.   B. Lewis, ‘Balancing Human Rights in Climate Policies’ in Ottavio Quirico and Mouloud Boumghar (eds.), Climate Change and Human Rights: An International and Comparative Law (Oxon: Routledge, 2016) 51. 158   See, e.g., ICCPR, art. 4(2). See also Human Rights Committee, General Comment No. 29, UN Doc. CCPR/C/21/Rev.1/Add.11 (2001). 159   CESCR, General Comment No. 3, 14 December 1990, UN Doc. E/1991/23, para. 14. 157

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Displacement due to responses to climate change  ­231 According to the OHCHR, a human rights-based approach is a ‘­conceptual framework for the process of human development that is ­normatively based on international human rights standards and operationally directed to promoting and protecting human rights’.160 This approach thus recognizes that human rights can form the basis for d ­esigning equitable and effective policies for responding to climate change. While rights-based approaches vary, they generally define issues in terms of right-holders’ human rights, underscore duty-bearers’ legal obligations in regards to such rights and promote solutions emphasizing agency, ­empowerment and social change.161 In pursuing a rights-based approach to combating climate change, states, at a minimum, should be guided by the ‘Do No Harm’ approach, which reflects the concept that activities should not cause unjustified harm to people or ecosystems. Increasingly, states, NGOs and donors are also underscoring the need for ‘Do Good’ principles, a more demanding test requiring activities to promote broader long-term environmental and social benefits beyond mitigating risks and reducing net greenhouse gas emissions.162 States should thus seek not to only avoid potential conflicts between the human rights and climate-change regimes, but also to pursue m ­ utually supportive policy options that enhance the respect for human rights ­ and the efficiency of responses to climate change. As pointed out by the OHCHR, ‘human rights standards and principles should inform and strengthen policy measures in the area of climate change’.163 Further, human rights do not simply warn policy-makers about policy measures that might violate human rights, they also point them towards good policy measures that focus on the realization of rights and the empowerment of rights-holders in synergy with climate-related objectives, thus building on our shared, global responsibility for human rights. In addition to the OHCHR, a number of other organizations and scholars have championed rights-based approaches to conservation, ­climate-change mitigation, climate-change finance and disaster response. The UNHCR, for example, has specifically called for the integration of a human rights-based approach to planned relocation whereby such ­‘relocation should be carried out with a human-rights based framework that safeguards civil, political, cultural, social, and economic rights of 160   OHCHR, Frequently Asked Questions on a Human Rights-Based Approach to Development Cooperation (2006), http://www.ohchr.org/Documents/ Publications/FAQen.pdf, 15. 161  Jodoin, supra note 11, at 290. 162   Roe et al., supra note 93, at 9. 163   Ibid., para. 95.

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232  Research handbook on climate change, migration and the law individuals and ­communities’.164 A decade ago, the Inter-Agency Standing Committee, which acts as the primary mechanism for inter-agency ­humanitarian assistance at the UN, adopted the Operational Guidelines on Protecting Persons in Natural Disasters, as well as an accompanying Pilot Manual, ‘to promote and facilitate a rights-based approach to disaster relief’.165 More recently, the IUCN has created a step-wise framework for the implementation of a rights-based approach to conservation.166 Moreover, at the request of the OHCHR, the Expert Mechanism on the Rights of Indigenous Peoples recently prepared a study on the ­‘promotion and protection of the rights of indigenous peoples in natural disaster risk reduction and prevention and preparedness initiatives’, exploring the link between human rights and disaster-risk reduction and offering advice to States, indigenous people as well as global and regional disaster-risk reduction communities on ways to increase the participation of indigenous peoples in such initiatives.167 Human rights-based approaches are especially important in the context of displacement and forced evictions given their potentially devastating impact on a range of rights. As the OHCHR points out, ‘to be persistently threatened or actually victimized by the act of forced eviction from one’s home or land is surely one of the most supreme injustices any individual, family, household or community can face’.168 Forced evictions combine perpetual insecurity with the frequent use of physical violence and ­harassment, dismantling ‘what people have built over months, years and sometimes decades, [and] destroying the livelihood, culture, communities, families and homes’.169 While this chapter does not undertake a full human rights-based analysis of a particular case study, it flags several key elements of human

164  UNHCR, Planned Relocation, Disasters and Climate Change: Consolidating Good Practices and Preparing for the Future, Report: Sanremo, Italy (12–14 March 2014), http://www.unhcr.org/54082cc69.pdf, 23. 165   Brookings-Bern Project on Internal Displacement, Human Rights and Natural Disasters: Operational Guidelines and Field Manual on Human Rights Protection in Situations of Natural Disaster (Washington, DC. March 2008), https://www.brookings.edu/wp-content/uploads/2016/06/spring_natural_disasters. pdf, at iv. 166   T. Greiber et al., ‘Conservation with Justice: A Rights-based Approach’ (2009), IUCN Environmental Law and Policy Paper No. 71. 167   OHCHR, Promotion and protection of the rights of indigenous peoples in disaster risk reduction, prevention and preparedness initiatives, A/HRC/27/66 (7 August 2016). 168   OHCHR, ‘Forced Evictions and Human Rights’ Fact Sheet No.25 (May 1996) 2. 169  Ibid.

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Displacement due to responses to climate change  ­233 rights-based approaches that only help guarantee that human rights are front and central to climate-change responses, but which c­ onsequentially also help ensure that such responses are effective policy choices. First, a human rights-based approach engenders a normative shift towards human rights and human dignity. Most basically, it dismantles assumptions that human rights are not relevant to climate-change-response measures. As the Brookings-Bern Project on Internal Displacement notes, ‘[m]issions and evaluations by the Representative of the UN SecretaryGeneral on the human rights of internally displaced persons show [. . .] [that] national authorities are often unaware of the relevance of human rights norms in the context of natural disasters’.170 It also means challenging the view that human rights obligations are barriers to effective responses, especially in emergencies. This approach entails avoiding narrow legal and policy analyses that only seek to determine whether a particular response would violate human rights rather than developing responses that are rooted in agency, empowerment and social change. Asserting derogations from international human rights obligations, in particular, pits responses to climate change against such rights. Second, human rights, particularly participatory rights, can do much to strengthen the design and the application of climate actions insomuch as their effectiveness will often depend on the consent and cooperation of individuals and communities. As emphasized by the OHCHR, a human rights framework ‘underlines the critical importance of effective participation of individuals and communities in decision-making processes ­affecting their lives’ and ‘stresses the importance of accountability mechanisms in the implementation of measures and policies in the area of climate change,’ requiring ‘access to administrative and judicial remedies in cases of human rights violations’.171 In particular, by providing meaningful opportunities for the participation and empowerment of individuals and communities in climate mechanisms and programmes, policy-makers can provide legitimacy, stability and security to projects and initiatives, thereby avoiding delays and other difficulties caused by the conflict and litigation that often results from less collaborative approaches. For instance, respecting the right to free, prior and informed consent (FPIC) in the context of REDD+ projects is not only necessary for ensuring its coherence with evolving standards of international human rights, it is also likely to have a number of advantages for

  Brookings-Bern Project on Internal Displacement, supra note 165, at 2.   OHCHR, ‘Report on the relationship between climate change and human rights’, supra note 98, paras 81–83. 170 171

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234  Research handbook on climate change, migration and the law strengthening the overall effectiveness of REDD framework. First, FPIC would enable REDD programmes to benefit from the full and ­inclusive participation of Indigenous peoples. As a study cited by the IPCC in its Fourth Assessment Report observes, ‘[i]ncorporating i­ndigenous knowledge into climate change policies can lead to the development of effective adaptation strategies that are cost-effective, ­ participatory and sustainable’.172 Moreover, adhering to FPIC in the architecture of REDD+ projects would significantly reduce the risks of conflicts in REDD project areas and the risks of litigation. The development of REDD projects based on FPIC would thus provide the REDD framework with the requisite certainty and stability to operate effectively, by building relations of trust between the private sector, government and Indigenous communities. Third, human rights can also serve as guidelines and benchmarks in developing adaptation policies and programmes. In particular, economic, social and cultural rights are key indicators for identifying the ways in which climate change will affect the health, safety and livelihood of ­individuals and the means of enhancing the resilience of a community adapting to these effects. For example, the right to housing could be instrumental in assisting states in strengthening existing housing options or providing alternative housing for vulnerable individuals and communities. As such, any policies addressing housing issues would need to take into account the broad notion of the adequacy of housing set out by the CESCR.173 For countries pursuing planned relocation, like the Maldives, looking to the CESCR and other legal instruments, discussed above, outlines the basic rights of communities and individuals as well as the state’s responsibilities for relocation initiatives. Despite their potential, human rights standards and principles have yet to be fully integrated, and operationalized, into international and national policy-making on climate change. At the level of international law and policy, the human rights/climate-change policy nexus should be ­reconfigured in a way that enables climate-change policy to be shaped by existing human rights principles and obligations rather than the other way around. In particular, the key challenge for the future governance of responses to climate change involves the integration of these best practices and other relevant human rights standards into international and national policies and mechanisms for climate action. There is also a growing body of literature and practice on the use of rights-based approaches

  IPCC, AR4 WGII Report (citing Robinson and Herbert, 2001) 865.   CESCR, General Comment no 7, supra note 134, para. 8.

172 173

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Displacement due to responses to climate change  ­235 to climate response measures,174 while a number of CDM projects and REDD ­demonstration projects that have sought to implement rightsbased approaches.175 The challenge moving forward for the first initiatives is to operationalize rights-based principles at the project level while the challenge for the following initiatives is one of replication. Both the Brookings-Bern Project on Internal Displacement and the IUCN recognize that operationalizing a rights-based approach is the major challenge. As the Brookings-Bern Project notes, international ­agencies and NGOs ‘are also at a loss as to how to incorporate a human rights-based approach into emergency relief and response, even though many of the laws and codes of conduct applicable in situations of natural disasters include such guarantees’.176 At the national level, much of the innovation regarding rights-based approaches to climate action lies in non-­ governmental certification schemes and national demonstration projects. While projects and programmes making use of a rights-based approach to development could be of critical use to integrating human rights into climate adaptation development aid, this field faces similar implementation challenges.177 To address the operational gap, IUCN has created a step-wise framework for implementing human rights-based approaches by ‘[clarifying] and [operationalizing] the role, responsibility, and burdens of duty-holders to respect the procedural and substantive rights of local communities—from situation analysis to enforcement’.178 However, we have yet to see how this methodology will help address some of the most controversial impacts of climate change, such as widespread displacement and forced relocation. In other words, how does a rights-based approach help alleviate the seemingly intractable tension between certain responses to climate change and human rights? For example, at first glance, the Site C Clean Energy Project has engaged a human rights-based approach to some extent. Decision-makers have encouraged participation of stakeholders through public hearings and consultations, undertaken social and environmental assessments, provided   See T. Greiber, et al. (eds.), ‘Conservation with Justice’ (2009) IUCN Environmental Law and Policy Paper 71; J. Campese, et al. (eds.), (2009) Rightsbased approaches: Exploring Issues and Opportunities for Conservation (Bogor, Indonesia: CIFOR and IUCN). 175  Ibid. 176   Brookings-Bern Project on Internal Displacement, supra note 165, at 38. 177   S. Hickey and D. Mitlin. (eds.), Rights-based Approaches to Development: Exploring the Potential and Pitfalls (Kumarian Press, 2009); E. Harris-Curtis, O.  Marleyn, and O. Bakewell, (2005) ‘The implications for Northern NGOs of adopting rights-based approaches,’ INTRAC Occasional Papers Series 41. 178  Jodoin, supra note 11, at 292. 174

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236  Research handbook on climate change, migration and the law access to justice to participants as demonstrated by the ongoing lawsuits, and, according to the Federal Court, have taken a reasoned decision. Canada has also pledged to establish a compensation fund for lost land and strategies to mitigate effects on cultural resources and maximize opportunities for Aboriginal business leaders.179 Yet, as discussed above, numerous NGOs, scholars and First Nations argue that the federal and provincial governments have failed to resolve the conflicts on the basis of human rights standards and principles, including Canada’s own constitutional obligations and those pursuant to international treaties such as the UN Declaration on the Rights of Indigenous Peoples which provides that Indigenous peoples have the right to maintain their cultures and identities and practice their traditional livelihoods and religions.180 While Canada recently ‘fully endorsed’ the UN Declaration on the Rights of Indigenous Peoples by lifting its permanent objector status to the Declaration, many states—including Canada, as has been seen—do not embrace the ­principle that proposed projects require affected Indigenous communities’ free, prior, and informed consent. The lack of state consensus on the requirement of free, prior and informed consent for Indigenous peoples, as well as other affected communities, makes advocacy for a human rights-based approach more crucial. At a minimum, a human rights-based approach reframes the decision-making process by defining problems in terms of human rights. Thus, the potential impacts of a climate-change response on human rights and human dignity are not only consequences that must be evaluated and weighed, but protecting and supporting those rights are part and parcel of the initiative itself. In this way, the tension between responses to climate change—such as the need for clean energy—and human rights—like the right of Indigenous people to self-determination—are not conceptualized as mutually exclusive interests. Rather, meeting society’s need for clean energy also necessarily means respecting Indigenous people’s rights. This normative shift towards human rights also impacts participation. A human rights-based approach helps ensure that stakeholders, including developers and state actors, are invested in such consultation and participation since it is not merely a box that they must tick off to secure approval. The human rights regime’s overall purpose of protecting human dignity is of critical relevance to combating climate change. Its first challenge in

179   ‘Site C Project Granted Environmental Assessment Approval’, BC Gov News, available at https://news.gov.bc.ca/stories/site-c-project-granted-environ​ mental-assess​ment-approval. 180  Schultz-Jagow, supra note 42.

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Displacement due to responses to climate change  ­237 the short term is to ensure that individuals are protected from harm caused by government actions motivated by a desire to mitigate or adapt to the consequences of climate change. As the experience of counter-terrorism has shown, there are strong grounds for believing that respect for human rights may indeed be challenged by the urgency of addressing complex issues facing the world, whether a threat of politically-motivated violence or the impacts of natural disasters and slow-onset environmental changes. In this context, it should therefore be of overriding importance for policymakers to ensure that adequate safeguards are built into climate change law and policy at the international level. Its second, and perhaps more difficult, challenge in the long term is to ensure that international cooperation effectively avoids dangerous levels of climate change and protects the fundamental rights of humans in a changing climate.

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11.  Climate change, migration and the law of state responsibility Climate change, migration and the law of state responsibility

Benoît Mayer

INTRODUCTION Discussions relating to the climate-migration nexus have received an increasing amount of attention in recent years, culminating in the mention of climate change-related displacements in four decisions of the Conference of the Parties to the UNFCCC between 2010 and 20161 and the initiation of consideration for possible mechanisms to provide complementary protection.2 Part of the attention that such discussions received has to do with unfulfilled protection needs. It is no mystery that existing international institutions fail dramatically to provide decent living opportunities for all. Many lose their lives or live in abominable conditions, including when their situation could be drastically improved were they only able to migrate with dignity. Many who do migrate face discriminations and abuses at places of transit and destination. Strong and convincing ethical arguments have been made, if not for open borders,3 at least for fulfilling the need for international protection of all those who flee for survival,4 especially when the benefits are without any common measures with the possible costs of hosting such refugees.5

  UNFCCC Decisions 1/CP.16, The Cancun Agreements: Outcome of the work of the Ad Hoc Working Group on Long-term Cooperative Action under the Convention (2010), para. 14(f); 3/CP.18, Approaches to Address Loss and Damage Associated with Climate Change Impacts in Developing Countries that are Particularly Vulnerable to the Adverse Effects of Climate Change to Enhance Adaptive Capacity (2012), para. 7(a)(vi); 1/CP.21, Adoption of the Paris Agreement (2015), para. 49; and -/CP.22, Warsaw International Mechanism for Loss and Damage associated with Climate Change Impacts (2016), para. 9.  2   See in particular: Nansen Initiative, Agenda for the Protection of CrossBorder Displaced Persons in the Context of Disasters and Climate Change (2015), available at http://www.nanseninitiative.org, discussed by Susan Martin in Chapter 21 of this volume.  3   See Joseph Carens, ‘Aliens and Citizens: The Case for Open Borders’ (1987) 49 The Review of Politics 251.  4   See Alexander Betts, Survival Migration: Failed Governance and the Crisis of Displacement (Cornell University Press, 2013).  5   See Peter and Renata Singer, ‘The Ethics of Refugee Policy’ in Mark  1

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Climate change, migration and the law of state responsibility  ­239 Thus, what international, regional or domestic laws and institutions call ‘refugee’ is only the tip of the iceberg of migrants in dire need of ­international protection6 – and yet, even among those States which did ratify the 1951 Convention relating to the Status of Refugees and its protocol, many, most perhaps, are in patent breach of their obligation.7 The international climate regime appears more and more to conform to its depiction by James Hathaway in the 1990s as an attempt by sovereign States ‘to govern disruptions of regulated international migration in accordance with the interests of states’,8 rather than as a humanitarian project of sorts. The ­recognition of a relatively tiny population of refugees has made it more legitimate for States to repress many other forced migrants on arbitrary bases. It remains however that such strong arguments for a revision and extension of international protection do not justify a particular focus on climate change. Migrants can be forced to seek asylum abroad or to move within a State for a host of different reasons. While advocates of a protection of ‘climate migrants’ point to the arbitrary limitation of the international refugee regime to persecution, a limitation to the impacts of climate change would be equally arbitrary.9 Rather, human rights protection should extend to all individuals with similar protection needs, notwithstanding the origin of these protection needs. Whether the cyclone or the drought that causes someone’s displacement is causally related to anthropogenic greenhouse gas emissions is not only difficult to ascertain10 – it is also irrelevant to determining the rights of the individual and what needs to be done to fulfil them. The protection gap in global migration governance prominent in the debate on climate change and migration is not confined to the impacts of climate change and it should not be addressed in isolation from other scenarios.

Gibney, ed., Open Borders? Closed Societies? The Ethical and Political Issues (Greenwood, 1988) 111.  6   I agree on this aspect of the arguments that François Gemenne develops in Chapter 18 of this volume. For a complete analysis of the limits of international refugee law, see the contribution of Christel Cournil in Chapter 5 of this volume.  7   Australia is certainly an obvious example. See for instance ‘Australia Doubles Down on Cruel Refugee Policy’ New York Times (5 November 2016).  8   James Hathaway, ‘A Reconsideration of the Underlying Premise of Refugee Law’ (1990) 31 Harv. Int’l L.J. 129, at 133.  9   This argument is more extensively developed in Benoît Mayer, The Concept of Climate Migration: Advocacy and its Prospects (Edward Elgar, 2016), Chapter 1. 10   See, e.g., Pardeep Pall et al., ‘Anthropogenic Greenhouse Gas Contribution to Flood Risk in England and Wales in Autumn 2000’ (2011) 470(7334) Nature 382; Mike Hulme, ‘Attributing Weather Extremes to “Climate Change”: A Review’ (2014) 38 Progress in Physical Geography 499.

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240  Research handbook on climate change, migration and the law In addition to a protection gap in global migration governance, however, the debate on climate change and migration also points to the responsibilities of those whose conduct is affecting our climate system.11 Proposals for a protection of ‘climate migrants’12 or concerns for ‘climate refugees’13 relate the unfulfilled rights of particular populations of migrants to the remedial obligations of particular actors responsible for greenhouse gas emissions. Rather than a general duty to care for the human rights of strangers, these proposals seek stronger foundations by reference to remedial obligations. More specifically, these arguments call developed States, responsible for the largest share of historical and current greenhouse gas emissions, to address the plight of individuals displaced because of climate change. Such arguments assume that individual migrants can somehow be ­attributed to climate change. This assumption goes against a growing consensus among climate scientists that attributing weather events to ­ climate change is by nature problematic,14 and against a growing c­ onsensus among migration scholars that ‘it will rarely be possible to ­distinguish ­individuals for whom environmental factors are the sole driver’.15 Despite this, an arbitrary definition of ‘climate migrants’ could in principle be adopted or a diffuse support could be provided to public policies r­ esponding to migration in particular areas where climate change seems to have more impact on climate change. Beside such definitional and conceptual issues, however, a responsibility narrative on the climate-migration nexus relies on a section of an issue – migration – in isolation from other social consequences of climate change. Climate change impacts societies in multiple ways and changes in mobility patterns are not its most tragic consequence. Beyond migration, climate change has for instance an impact on health and fatalities, as well as on the living conditions of the populations ‘trapped in place’ and unable to migrate.16 Issues of migration and what could be called ‘non-migration’ are tightly interconnected, deeply anchored in national development

11   For an analysis of the different narratives at play, see Benoît Mayer, ‘“Environmental Migration” as Advocacy: Is It Going to Work?’ (2014) 29(2) Refuge: Canada’s Journal on Refugees 27. 12   See in particular the arguments by Frank Biermann and Ingrid Boas in Chapter 19 of this volume. 13   See François Gemenne, Chapter 18 in this volume. 14   See Hulme, supra note 10. 15  Foresight, Migration and Global Environmental Change: Final Project Report (UK Government Office for Science, 2011) 9. 16  Ibid.

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Climate change, migration and the law of state responsibility  ­241 processes. The decision of individuals to migrate has a lot to do with the costs and benefits associated with non-migration decisions. This inherent link between migration and other issues of national development makes it relatively perilous to seek one-size-fits-all ‘solutions’ to ‘climate ­migration’ in isolation from careful consideration for development in particular contexts. This chapter explores the responsibility narrative on the climate-­ migration nexus from a doctrinal and critical international law perspective. Under international law, a State is internationally responsible if a breach of an international obligation is attributable to that State under international law.17 Section I discusses different grounds on which States could be held responsible in relation to climate change and the ensuing migration, including conventional instruments as well as customary ­obligations. Section II then turns to the consequences of State responsibility, namely, the obligation of the responsible State to ‘make full reparation for the injury caused by the internationally wrongful act’.18 It shows that the law of State responsibility is unlikely to be construed as imposing particular obligations regarding the treatment of migrants in the State of origin. There appears to be a great discrepancy between the law of State responsibility and the normative arguments that are being made for ­possible ‘solutions’ to ‘climate migration’. Such discrepancy calls into question the orientations of the normative debate relating to climate change and migration. There is, in particular, a risk that well-intended advocacies could pave the way to a neocolonialist trend of political interference in the development processes of the States most affected by climate change, thus in fact adding harm to the loss and damage already inflicted as a consequence of climate change.

I.  PRIMARY OBLIGATIONS State responsibility in relation to climate change could in principle be invoked on the basis of a breach of different obligations. Subsection A considers conventional sources, while subsection B turns to obligations contained in general international law.

  See ILC, Articles on the Responsibility of States for Internationally Wrongful Acts (2001), arts 1–2. 18   Ibid., art. 31(1). 17

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242  Research handbook on climate change, migration and the law A.  Conventional Sources A State’s responsibility for climate change and the ensuing migration could follow from a breach of a relevant treaty-based obligation. In particular, responsibility could arise from the failure of a State to respect its obligations to limit or reduce greenhouse gas emissions as contained in specific international agreements. The UN Framework Convention on Climate Change (UNFCCC) thus defines an obligation for developed States to ‘adopt national policies and take corresponding measures on the ­mitigation of climate change’,19 and for other States to ‘formulate, implement, publish and regularly update . . . programmes containing measures to mitigate climate change’.20 Without introducing new commitments for developing States,21 the Kyoto Protocol defined a particular ‘quantified emission limitation or reduction commitment’ that each developed State party should respect for a first commitment period ranging from 2008 to 2012.22 The Doha Amendment, pending its entry into force, will define similar commitments applicable to the developed State parties for a second commitment period from 2013 to 2020.23 The Cancún Pledges, adopted through a decision of the Conference of the Parties to the UNFCCC, defines ‘quantified economy-wide emission reduction targets’ to be implemented by developed States and ‘nationally appropriate mitigation actions’ to be implemented by developing States over the same period of time.24 Finally, the Paris Agreement requires that States – whether developed or developing – ‘prepare, communicate and maintain successive nationally determined contributions’ and ‘pursue domestic mitigation measures, with the aim of achieving the objectives of such contributions’.25 Relevant conventional obligations can also be found outside dedicated climate change agreements. The Montreal Protocol on Substances that Deplete the Ozone Layer defines obligations for States to reduce production and consumption of substances that have also a potent greenhouse effect.26 The ‘Kigali’ Amendment to the Montreal Protocol was adopted in 2016 in order to reduce emissions in hydrofluorocarbons (HFCs),

  UNFCCC, art. 4(2)(a).   Ibid., art. 4(1)(b). 21   UNFCCC decision 1/CP.1, The Berlin Mandate (1995), para. 2(b). 22   Kyoto Protocol (1997) art. 3(1) and annex B. 23   Doha Amendment, in annex of KP Decision 1/CMP.8, Amendment to the Kyoto Protocol pursuant to its art. 3, para. 9 (2012). 24   Decision 1/CP.16, supra note 1, paras 36 and 49. 25   Paris Agreement (2015), art. 4(2). 26   Montreal Protocol on Substances that Deplete the Ozone Layer (1987). 19 20

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Climate change, migration and the law of state responsibility  ­243 s­ubstitutes to ozone-depleting substances which themselves have no significant effect on the ozone layer but are also very potent greenhouse gases. Other treaties address greenhouse gas emissions in particular sectors. Thus, the 1973 International Convention for the Prevention of Pollution from Ships (MARPOL) was modified in 2011 in order to include regulations on the intensity of greenhouse gas emissions from ships.27 In 2016, strenuous diplomatic efforts led the Assembly of the International Civil Aviation Organization to adopt a resolution providing a global marketbased measure scheme on international aviation emissions applicable to all States from 2027 onwards.28 Diverse multilateral environmental ­agreements29 as well as the UN Convention on the Law of the Seas30 or even the Convention concerning the Protection of the World Cultural and Natural Heritage31 could be construed as implying an obligation for States to mitigate climate change. A breach of conventional obligations might not be easy to establish. Obligations contained in the UNFCCC and the Paris Agreement boil down to little more than an obligation to do something, not ­necessarily to make substantial efforts. The Kyoto Protocol was more specific, though limited to only a handful of developed States (with the United States refusing to participate). Canada, which was not on a pathway of ­compliance with its quantified emission limitation or reduction commitment, withdrew from the Kyoto Protocol with effect two weeks before the end of the first commitment period, thus preventing the Kyoto Protocol’s compliance committee from finding it in breach of its obligation.32 The Paris Agreement involves obligations of means (‘pursue . . . measures, with the aim of achieving’) rather than obligations of result.33 Moreover, the mitigation commitments to which States agree are unlikely to be very ambitious. In cases of non-compliance, responsibility for the breach of such treaty-based mitigation commitments would only be incurred for the difference between actual emissions and the relevant national mitigation commitment.   Resolution MEPC.203(62).   ICAO, Assembly Resolution 39-3, Consolidated statement of continuing ICAO policies and practices related to environmental protection – Global Marketbased Measure (MBM) scheme (2016). 29   For instance, Convention on Biological Diversity (1992), art. 3. 30   UN Convention on the Law of the Seas (1982), arts 192–237. 31   Convention concerning the Protection of the World Cultural and Natural Heritage (1972), for instance art. 4. 32   UNFCCC, ‘Compliance Committee Facilitative Branch, twelfth meeting’ (Bonn, Germany, 22–23 October 2012), 8. 33   Paris Agreement (2015), art. 4(2). 27 28

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244  Research handbook on climate change, migration and the law It remains however that, even when climate change agreement requires States to achieve particular emission limitation or reduction, it does not authorize any particular level of emissions. The Parties to the UNFCCC clearly acknowledged, for instance, that the Kyoto Protocol ‘ha[d] not created or bestowed any right, title or entitlement to emissions of any kind’ on developed States.34 Every climate change agreement has embodied a notion of progression towards more demanding obligations until the ultimate objective of preventing a dangerous anthropogenic interference with the climate system would be reached.35 Therefore, climate change agreements can be understood as a transitory regime of collective emulation and collaboration, but not as the definitive determination of States’ rights and obligations with regard to their usage of the atmosphere. Several States have repeatedly stated their understanding that successive climate change agreements could not ‘be interpreted as derogating from principles of general international law or any claims or rights concerning compensation due to the impacts of climate change’.36 Multilateral environmental agreements and other treaties such as the UN Convention on the Law of the Seas or the Convention concerning the Protection of the World Cultural and Natural Heritage can be construed as the illustrations of a principle of general international law according to which a State must not allow the use of its territory in such ways as to cause serious damages beyond its national borders. B.  General International Law Sources of international law include not only agreements to which States have formally consented, but also customs that have emerged on the basis of a general State practice recognized as law (opinio juris).37 Customary international law includes in particular a series of ‘axiomatic premises of the international legal order’38 such as the principle of sovereign equality. A necessary corollary of sovereign equality is that the rights of a State are

34   UNFCCC decision 15/CP.7, Principles, nature and scope of the mechanisms pursuant to Articles 6, 12 and 17 of the Kyoto Protocol (2001), recital 7. 35   UNFCCC art. 2. See, e.g., UNFCCC art. 4(2)(d); KP art. 3(9); PA art. 3. 36   Declaration of the Government of Tuvalu upon signature and ratification of the Paris Agreement (22 April 2016). Similar declarations on the Paris Agreement were made by Nauru and the Marshall Islands, and by multiple States at the ­occasion of the signature or ratification of the UNFCCC and the Kyoto Protocol. 37   See Statute of the ICJ, art. 38(1). 38   Christian Tomuschat, What is General International Law? (2015) http:// legal.un.org/avl/ls/Tomuschat.html#.

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Climate change, migration and the law of state responsibility  ­245 limited by the rights of other States: no armed aggression can be permitted and serious transboundary environmental harms need to be restrained. Thus, it is widely recognized that, under customary international law, States have a negative obligation to refrain from causing serious transboundary environmental harm (no-harm principle) and a due diligence obligation to prevent activities taking place within their jurisdiction from causing such harm (preventive principle). These principles were first ­recognized in a 1941 arbitral award in the Trail Smelter case between the United States and Canada, where the Tribunal concluded that, [u]nder the principles of international law . . . no state has the right to use or permit the use of territory in such a manner as to cause injury by fumes in or to the territory of another of the properties or persons therein, when the case is of serious consequence an the injury is established by clear and convincing evidence.39

Since 1941, these principles have been refined and progressively recognized as – in the words of Philippe Sands and Jacqueline Peel – ‘the cornerstone of international environmental law’.40 The 1972 Stockholm Declaration on the Human Environment proclaimed that States have ‘the r­esponsibility to ensure that activities within their jurisdiction or control do not cause damage to the environment of other States or of areas beyond the limits of national jurisdiction’.41 The no-harm/preventive principle was ­reaffirmed in numerous documents, including the 1992 Rio Declaration on Environment and Development42 and the preamble of the UNFCCC.43 In its Advisory Opinion on the Legality of the Threat or Use of Nuclear Weapons, the International Court of Justice unequivocally qualified this principle as customary international law.44 Whether and how the no-harm/preventive principle applies to climate change has recently been debated.45 The no-harm/preventive principle   Trail Smelter arbitral award (United States v Canada), (1941) 3 RIAA 1907.   Philippe Sands and Jacqueline Peel, Principles of International Environmental Law (Cambridge University Press, 2012), at 191. 41   Declaration of the United Nations Conference on the Human Environment (1972) principle 21. 42   Rio Declaration on Environment and Development (1992) principle 2. 43  UNFCCC, supra note 1, recital 9. 44   Advisory Opinion on the Legality of the Threat or Use of Nuclear Weapons, ICJ Reports 1996, p. 226, at para. 29. 45   See, e.g., International Law Association, Declaration of Legal Principles relating to Climate Change (2014); Alexander Zahar, ‘Mediated versus Cumulative Environmental Damage and the International Law Association’s Legal Principles on Climate Change’ (2014) 4 Climate Law 217; Benoît Mayer, ‘The Applicability 39 40

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246  Research handbook on climate change, migration and the law has generally been applied to cases where a pollutant was produced in State A and directly affected State B, typically a confined area just across a border between States A and B. The damages caused through ­anthropogenic greenhouse gas emissions, by contrast, occur very indirectly, as a ­consequence of the progressive accumulation of emissions by multiple States, and they unfold only over a long period of time. Moreover, because of the probabilistic nature of the concept of climate, it is difficult to pinpoint any particular concrete phenomenon of which it could conclusively be asserted that it would not have occurred if anthropogenic greenhouse gas emissions had not taken place. These, however, do not necessarily affect the relevance of the no-harm principle in its most fundamental form as a corollary of the principle of sovereign equality. If sovereign equality precludes a State from causing harms affecting a small part of the territory of another State, it does a fortiori prohibit the conduct of a State which interferes with multiple planetary systems in ways that not only affect the prosperity of many States and the very physical existence of some, but also possibly our survival as a civilization, if not as a species.46 It remains that climate change differs in important ways from typical cases of transboundary environmental harms in relation to which the no-harm/ preventive principle has generally been applied. Thorny questions appear when trying to determine the modalities of application of the no-harm/ preventive principle in relation to climate change.47 One particular question of practical importance regards the possible existence of a t­hreshold of ‘minor’ harms, to which most of the enunciations of the no-harm/ preventive principle allude by referring to the prohibited harms as ‘serious’ or ‘significant’. While climate change as a whole is obviously serious and significant, the conduct of a particular State, when taken in isolation, may not always reach this de minimis threshold. However, it is unlikely that the conduct of the major greenhouse gas emitters – with about half of current greenhouse gas emissions originating from China, the United States and the EU only – would fall under this de minimis threshold.

of the Principle of Prevention to Climate Change: A Response to Zahar’ (2015) 5 Climate Law 1; Alexander Zahar, ‘Methodological Issues in Climate Law’ (2015) 5 Climate Law 25. 46   See Dissenting Opinion of Judge Koroma in the Legality of the Threat or Use of Nuclear Weapons, ICJ Reports 1996, p. 580. 47   These questions are further developed in Benoît Mayer, ‘State Responsibility and Climate Change Governance: A Light through the Storm’ (2014) 13 Chinese Journal of Environmental Law 539; Benoît Mayer, ‘The Relevance of the No-Harm Principle to Climate Change Law and Politics’ (2016) 19 Asia Pacific Journal of Environmental Law 79.

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Climate change, migration and the law of state responsibility  ­247 A possible objection to this line of argument relates to the existence of conventional obligations. The principle lex specialis derogat lege generali suggests that a specific rule should prevail over general ones. Accordingly, one could think that international climate change agreements – treaties adopted to address issues related to climate change – would prevail over general international law. Yet, the lex specialis principle is not an absolute principle according to which general norms should be totally eclipsed as soon as a special norm enters the room. It is rather part of a set of principles of interpretation that have developed to reconcile norms. The study of the International Law Commission (ILC) on the fragmentation of international law, led by Martti Koskenniemi as its special rapporteur, insisted that coexisting rules of international law ‘should, to the extent possible, be interpreted so as to give rise to a single set of compatible obligations’.48 More specifically, in its study of the law of State responsibility, the ILC asserted that, ‘[f]or the lex specialis principle to apply it is not enough that the same subject matter is dealt with by two provisions; there must be some actual inconsistency between them, or else a discernible intention that one provision is to exclude the other’. It is all but clear, however, that international treaties on climate change display either an ‘actual inconsistency’ with the no-harm/preventive principle or a ‘discernible intention’ to exclude its application. The discernible intention would need to be consensual, or at least to have been agreed by all the parties to a given dispute, as one sovereign State cannot unilaterally forfeit the rights of another sovereign State. Yet, although some States were surely keen to put general international law obligations aside, others were explicitly opposed to this idea and made repeated statements r­eserving their right to seek reparations on the basis of general international law, including the no-harm/preventive principle.49 As to actual inconsistency, as was noted before, climate change agreements were never consensually 48   International Law Commission, ‘Conclusions of the work of the Study Group on the Fragmentation of International Law: Difficulties arising from the Diversification and Expansion of International Law’ in Yearbook of the International Law Commission (2006), vol. II, part two, at para. 4. See also Martti Koskenniemi et al., Fragmentation of International Law: Difficulties Arising from the Diversification and Expansion of International Law, Report of the Study Group of the International Law Commission (13 April 2006), A/CN.4/L.682, at para. 88, noting that ‘the lex specialis principle is assumed to apply if “harmonious interpretation” turns out to be impossible, that is, to overrule a general standard by a conflicting special one’. 49   See for instance Declaration of the Government of Tuvalu upon signature and ratification of the Paris Agreement (22 April 2016).

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248  Research handbook on climate change, migration and the law understood as bestowing any right or entitlement to any State – to the contrary, the Parties to the UNFCCC decided by consensus to recognize that the Kyoto Protocol ‘ha[d] not created or bestowed any right, title or entitlement to emissions of any kind’.50 In their attempt to emulate States’ commitment to limit and reduce their respective greenhouse gas e­ missions, climate change agreements are perhaps most convincingly construed as a way to promote compliance with general international law through ­socialization and cooperation.

II.  SECONDARY OBLIGATIONS As discussed above, States have agreed to specific obligations with regard to the mitigation of climate change, but they are also bound by general international law obligations under the no-harm/preventive principle. A breach of any of these obligations entails the international responsibility of the State unless particular circumstances preclude the wrongfulness of the act. With regard to greenhouse gas emissions, necessity could persuasively be involved to exclude the wrongfulness of certain anthropogenic greenhouse gas ­emissions. Necessary anthropogenic greenhouse gas emissions include most obviously those resulting from human breathing but also, arguably, the emissions that, in a particular technological and development context, are inevitably generated in order to reach a minimal level of human development.51 It would concededly be extremely difficult to determine how much greenhouse gas emissions are thus justified as necessary and from which threshold emissions would become excessive. A more gradual and innovative analysis of the relation between needs and consequences could be required.52 This section turns more directly to the significance of such arguments in relation to debates on the climate-migration nexus. A first ­subsection explores alternative conceptualizations of migration in relation to States’ responsibilities. A second subsection turns to discussing whether and if so how remedial obligations could relate to migration, putting an ­analysis of the law of State responsibility in parallel with developments that have taken place within the climate regime to promote adaptation and approaches to address loss and damage associated with climate change impacts in ­developing countries.

  UNFCCC decision 15/CP.7 (2001), supra note 34, recital 7.   See Henry Shue, ‘Subsistence Emissions and Luxury Emissions’ (1993) 15 Law & Policy 39. 52   See discussion in Mayer (2014), supra note 47. 50 51

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Climate change, migration and the law of state responsibility  ­249 A.  Migration and Injuries As part of an analysis of States’ responsibilities for climate change, human mobility can be approached in three alternative ways. First, migration can be a form of adaptation or an approach to avoid loss and damage associated with climate change impacts, namely as a way to mitigate ­ ­injuries. Secondly, migration may involve or reflect harms that migrants suffer as a consequence of climate change, that is to say, an injury suffered by the migrants. Thirdly, migration might also be viewed as a source of harms or costs for other communities, in particular host communities at places of transit and destination, for instance through the costs of ­providing assistance to large populations arriving at an unexpected time following a disaster.53 These three approaches are not mutually exclusive. As human mobility can take many different forms, particular approaches may be more relevant to particular migration scenarios than to others. 1.  Migration as a way to mitigate injuries First and foremost, migration can be viewed as a way to mitigate injuries caused by a wrongful act, namely, excessive greenhouse gas emissions in breach of the no-harm/preventive principle. Thus, migration is essentially approached as a form of adaptation or (without a clear distinction with the former) as a way to avoid loss and damage. A State affected by the wrongful act of another State is not under an obligation to take any measures to mitigate its injuries. However, the right of a State to make reparation for the wrongful act is limited to what could not reasonably have been avoided by taking appropriate measures to ­mitigate damages.54 Moreover, the injured State remains obligated to protect its population, in particular under the general provisions of international human rights law, and these obligations could require particular measures for instance in order to protect populations from imminent risks. At the same time, general protection obligations limit the measures that a State can take for instance to incentivize or prevent migration when such measures infringe the rights of the individuals concerned.   I identified these three approaches on the basis of the submissions of Parties and observers to the UNFCCC on the workstream on loss and damage. For a comprehensive analysis in this context, see Benoît Mayer, ‘Migration in the UNFCCC Workstream on Loss and Damage: An Assessment of Alternative Framings and Conceivable Responses’ (2017) 6(1) Transnational Environmental Law 107. 54   ILC (2001), supra note 17, Commentary under art. 31, para. 11. 53

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250  Research handbook on climate change, migration and the law National authorities must make the best of all their available means, including expertise, to design migration laws and policies which protect individual rights and promote national development as well as possible. There is no objective touchstone to determine the best decisions. While international human rights law prohibits extreme measures, it recognizes a wide margin of appreciation to national authorities. Often, there is no objectively ‘best solution’ to protect populations. Rather, value-loaded decisions are necessary, arbitrating for instance between the protection of different rights or between the protection of these rights and the promotion of national development. There are for instance inevitably subjective judgments involved in determining precisely how much financial resource a State is ready to invest in the protection of a community at risk or alternatively in its resettlement. Such intimately political questions are arguably best left to legitimate domestic processes, ideally based on democratic elections, rather than deferred to international organizations or foreign development partners which remain too often disconnected and unaccountable to local stakeholders. 2.  Migration as an injury for the migrants themselves Secondly, migration can be approached as a source of harm for the migrants themselves.55 For many, migration can be an opportunity to find new sources of livelihood and even to discover new horizons, but migration may also come at a cost, especially when it does not follow from a free choice but from direct compulsion. Uprooted populations may lack everything from food to shelter and from education to safety. Furthermore, ‘strangers’ are often denigrated at places of transit and destination, discriminated against and, for lack of social networks and linguistic knowledge, unable to claim their rights. To this vulnerability is often added an element of precariousness caused by laws and policies which, directly or indirectly, often fail to protect the rights of strangers just as well as ‘our’ rights. Exclusion from documented labour and from basic services or restriction to political rights are all frequent practices in many States around the world, although often in direct breach of international human rights law. There are many relevant precedents whereby migration, in particular forced migration, has been approached as a form of injury requiring ­reparation to be made by one State to another State. Thus, for long,

55   See, e.g., UNFCCC Secretariat, Technical Paper, ‘Non-Economic Losses in the Context of the Work Programme on Loss and Damage’, UN Doc. FCCC/ TP/2013/2, 9 Oct. 2013, para. 83, available at: http://unfccc.int/resource/docs/2013/ tp/02.pdf (UNFCCC Technical Paper).

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Climate change, migration and the law of state responsibility  ­251 States have recognized their obligation to provide reparation when foreign ­citizens were expelled in violation of international standards of protection.56 In a 1959 Agreement, Poland and Czechoslovakia addressed mutual claims for reparation for the expulsion of foreign nationals in the context of post-Second World War border disputes.57 Similarly, the Compensation Commission, established by the UN Security Council to address claims related to ‘any direct loss, damage . . . or injury’58 arising from Iraq’s invasion of Kuwait, provided compensation to those forced to leave or unable to return to these countries during the conflict.59 In each case, compensation for displacement per se was recognized as an additional element to compensation for any other loss or damage (such as loss of property) ­suffered as a result of displacement. In these precedents, reparation was typically paid as compensation to the State of citizenship of the migrant. A State is considered entitled to exercise diplomatic protection and seek compensation for the injuries ­ ­suffered by its citizens as if it was ‘asserting its own rights’.60 The ILC in its Articles on Diplomatic Protection recognized as a recommended practice – but not as a legal obligation – for a State to take into account, ‘when feasible, the views of injured persons with regard to resort to diplomatic protection and the reparation to be sought’, and to ‘[t]ransfer to the injured person any compensation obtained for the injury from the ­responsible State subject to any reasonable deductions’.61 In some cases, however, State practice has short-circuited the State of the migrant, providing reparation directly to the migrant him or herself. Compensation may help migrants to deal with economic losses a­ ssociated with migration such as transportation costs, loss of incomes and loss of

56   See, e.g., the many cases gathered in M. Whiteman, Damages in International Law I (US Government, 1937) 418–83. 57   Agreement between the Polish People’s Republic and the Czechoslovak Republic concerning the Settlement of Outstanding Property Matters, Prague (Czechoslovakia), 29 Mar. 1958, in force 9 Jan. 1959, art. 5(1), available at: https:// treaties.un.org/doc/Publication/UNTS/Volume%20340/v340.pdf. 58   UN SC Resolution 687, UN Doc. S/RES/687, 8 Apr. 1991, para. 16, available at: http://www.un.org/Depts/unmovic/documents/687.pdf. 59   Decision 7 of the Governing Council of the UN Compensation Commission taken during its Third Session, ‘Criteria for Additional Categories of Claims’, UN Doc. S/AC.26/1991/7/Rev.1, 17 March 1992, para. 6(b), available at: http://www. uncc.ch/sites/default/files/attachments/S-AC.26-DEC%207%20-%20Rev%201%20 %5B1992%5D.pdf. 60   PCIJ, Series A, No 2, Mavrommatis Palestine Concessions (Greece v UK), Objection to the Jurisdiction of the Court, 1924, 12. 61   ILC, Articles on Diplomatic Protection (2006), art. 19.

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252  Research handbook on climate change, migration and the law property. Alternatives to compensation have sometimes been considered, in particular in response to non-economic losses. On occasions, scholars argued that a State participating in refugee-generating conflicts overseas should bear particular obligations with regard to the resettlement of these refugees.62 While the US accepted resettling numerous Vietnamese refugees following the Vietnam War, this was not linked to an acknowledgment of a responsibility of the US for a wrongful act.63 Very similar arguments have been made in relation to ‘climate refugees’.64 This, naturally, would only concern individuals who have left, or desire and need to leave their country, for a reason which could be reasonably related to climate change  – it would not relate to the much greater impact of climate change on internal mobility. In those cases, it would appear somewhat problematic to consider ­individual migrants as if they were a form of ‘currency’ or ‘waste’ that could be ‘traded’ or ‘discharged’ at the will of sovereigns. Migrants are individual human beings, with rights and dignity; they are not pawns that can be thrown by one State to any other State on the basis of the latter’s share of responsibility for climate change. In practical terms, such policy proposals would dismantle societies of migrants in need for international resettlement, scattering uprooted individuals across continents, without any cultural sensitivity. What such proposals omit, in other terms, is the agency of migrants: their ability to decide for themselves, better than anything else, what is best for them based on their own values. Compensation – whether paid to individuals or perhaps more convincingly to States – would still remain the preferable form of reparation to allow populations in need

  See, e.g. James Souter, ‘Durable Solutions as Reparation for the Unjust Harms of Displacement: Who Owes What to Refugees?’ (2014) 27 J. Refugee Stud. 171, at 179; James Souter, ‘Towards a Theory of Asylum as Reparation for Past Injustice’ (2014) 62 Pol.Stud. 326, at 362; Ben Sanders and Merrill Smith, ‘The Iraqi Refugee Disaster’ (2007) 24 World Pol’y J. 23; Kevin Walsh, ‘Victims of a Growing Crisis: A Call for Reform of the United States Immigration Law and Policy Pertaining to Refugees of the Iraq War’ (2008) 53 Vill. L.Rev. 421; Bill Frelick, ‘Iraqis Denied Right to Asylum’ (2007) Forced Migrat. Rev. 24; Matthew Price, Rethinking Asylum: History, Purpose, and Limits (Cambridge University Press, 2009) at 3. 63   J. Carens, ‘Who Should Get In? The Ethics of Immigration Admissions’ (2003) 17(1) Ethics and International Affairs, 95, at 100. 64   See, e.g., Kara Moberg, ‘Extending Refugee Definitions to Cover Environmentally Displaced Persons Displaces Necessary Protection’ (2008) 94 Iowa L. Rev. 1107, suggesting that States which emit large quantities of greenhouse gases should issue visas to ‘environmentally-displaced persons’ in proportion to their emissions. 62

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Climate change, migration and the law of state responsibility  ­253 of international resettlement to negotiate mutually beneficial options with other States. 3.  Migration as a source of injury for other communities Thirdly, migration is often approached as a source of harm for ­surrounding communities, in particular the host communities at places of transit and destination. It must be kept in mind that certainly most ­migration scenarios unfold to the net benefit of host communities, given the ­ ­contribution of migrants to the economic, social and cultural life of these ­communities.65 Many countries and regions have thriven socially, ­culturally and ­economically in large part because of the diversity that migration ­generated.66 Yet, the sudden arrival of large numbers of ­individuals may cause loss and damage to host communities and other ­ stakeholders. Assistance and protection measures generate expenses and divert resources, possibly straining public services and environmental resources, especially within poor countries or communities. In extreme cases, mass ­arrivals may affect the availability of basic commodities and threaten public order or political institutions.67 Despite some international ­humanitarian ­assistance, most of the economic and non-economic costs of hosting large populations of migrants – refugees, in particular – has generally been ­sustained by host communities themselves. There is some recognition in international practice of the costs that may be associated with sudden and massive influx of refugees and migrants. Thus, the 1951 Convention relating to the Status of Refugees recognizes that ‘the grant of asylum may place unduly heavy burdens on certain countries’.68 States have attempted – though rarely with success – to make arrangements for a ‘burden-sharing’ or responsibility-sharing in such cases.69 Instead, large migrations have sometimes been constructed as a threat to the security of the destination states. Thus, since the end of   See, e.g., M. Clemens, ‘Economics and Emigration: Trillion-Dollar Bills on the Sidewalk?’ (2011) 25(3) Journal of Economic Perspectives 83. 66   Hong Kong, where the author is based, is a prime example. 67   See, e.g., M. Czaika, ‘A Refugee Burden Index: Methodology and its Application’ (2005) 2(2) Migration Letters 101; M. Barutciski and A. Suhrke, ‘Lessons from the Kosovo Refugee Crisis: Innovations in Protection and BurdenSharing’ (2001) 14(2) Journal of Refugee Studies 95; J. Alix-Garcian and D. Saah, ‘The Effect of Refugee Inflows on Host Communities: Evidence from Tanzania’ (2010) 24(1) The World Bank Economic Review 148. 68   Convention relating to the Status of Refugees (1951), recital 5. 69   See generally M. Gottwald, ‘Burden Sharing and Refugee Protection’ in E. Fiddian-Qasmiyey et al. (eds.), The Oxford Handbook of Refugee and Forced Migration Studies (Oxford University Press, 2014) 525. 65

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254  Research handbook on climate change, migration and the law the Cold War, the UN Security Council has repeatedly considered that a ‘massive flow of refugees towards and across international frontiers’ could constitute a threat to international peace and security.70 Likewise, the Secretary General of the North Atlantic Treaty Organization (NATO) tried to justify armed intervention in Kosovo by presenting refugees from Kosovo as a threat to regional stability.71 The distinction between the injuries suffered by the migrants themselves and those suffered by the host community is not always clear, especially when reparation is paid retrospectively to a society composed of the original host community and the settlers. Through the 1953 Luxembourg Agreement, the Federal Republic of Germany accepted that it would make recompense to Israel for ‘the heavy burden of resettling so great a number of uprooted and destitute Jewish refugees from Germany and from ­territories formerly under German rule’.72 Diplomatic protection could not be invoked as a basis for compensation as Israel, which was created in 1948, had no personal jurisdiction during the flight of many Jews from Europe. A reference to the ‘burden of resettling’ refugees was an alternative way of justifying a similar scheme of reparation, not directly in relation to the loss and damage suffered by Jewish refugees but to the costs encountered by the State of Israel in resettling them. In the same sense, academic arguments have sometimes been made in relation to States which, through their wrongful conduct, cause large movements of populations out of their own territory.73 Alarmist discourses on possible flows of millions of ‘climate ­refugees’ towards ‘us’ have sometimes been developed to promote more ­sustainable development in Western countries. This strategy of communication insists, precisely, on the costs of immigration. Although well intended, such discourses are scientifically unfounded and politically dangerous. Scientifically, they fail to make any distinction between flows and stocks   UN SC Resolution 688 (1991), UN Doc. S/RES/0688 (1991), 5 April 1991 available at: http://fas.org/news/un/iraq/sres/sres0688.htm. See generally E. Mogire, Victims as Security Threats: Refugee Impact on Host State Security in Africa (Ashgate, 2013) at 24. 71   Lord Robertson of Port Ellen, Secretary General of NATO, ‘Kosovo One Year On: Achievement and Challenge’, NATO, 2000, 5, available at: http://www. nato.int/kosovo/repo2000/report-en.pdf. 72   Luxembourg Agreement between Germany and Israel, Luxembourg, 10 September 1952, in force 27 March 1953, recital 3, available at: https://treaties. un.org/doc/Publication/UNTS/Volume%20162/volume-162-I-2137-English.pdf. 73   See, e.g., F.Z. Giustiniani, ‘The Obligations of the State of Origin of Refugees: An Appraisal of a Traditionally Neglected Issue’ (2015) 30 Connecticut Journal of International Law, 171, at 173–6. 70

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Climate change, migration and the law of state responsibility  ­255 of migrants, or between internal or international migrants and forced or ­voluntary migrants. Politically, they promote a vision of migrants that hinder the protection of their rights. It is difficult not to relate the construction of migration as fundamentally detrimental to the host c­ ommunities and the construction of migrants as a threat to national security to unfounded xenophobic fears of the ‘stranger’. If not downright racist, discourses on migration as injurious to the host communities r­ einforce the idea that migration is something to be controlled and managed for the best economic and security interests of Western countries through attracting ‘productive’ migrants and keeping ‘dangerous’ ones at bay.74 This approach of global migration governance as realpolitik in a zero-sum game is likely to come at the expense of the rights of populations living in the States that are politically weaker and, often, are also those most affected by the impacts of climate change. B.  Nature of Remedial Obligations The first section of this chapter has sought to establish that the law of State responsibility is applicable to at least some States, either because they fail to fulfil their mitigation commitment under climate change agreements or because their excessive greenhouse gas emissions cause d ­ isproportionate harms to the global atmospheric system, in breach of the no-harm/­preventive principle. The previous subsection explored different possible framings of migration in relation to the law of State ­responsibility, as ­alternatively a way to mitigate the injury by promoting migration as a form of ­adaptation, or by approaching migration as an injury or a cause of ­injuries suffered either by the migrants themselves or by other c­ ommunities, in particular the host communities at places of transit and destination. This section, finally, assesses the nature of remedial obligations owned by States r­ esponsible for a breach of primary obligations, whether in relation to migration or not. It also compares such remedial obligations under general international law with efforts that States have already been carried out through the climate regime, in particular with regard to adaptation and approaches to address loss and damage associated with climate change impacts. Under the law of State responsibility, the international responsibility of a State which is entailed by an internationally wrongful act involves in particular an obligation to cease the wrongful act, if it is continuing, and to make full reparation for the injury caused by the ­internationally

74   See, in particular, B. S. Chimni, ‘The Birth of a “Discipline”: From Refugee to Forced Migration Studies’ (2009) 22(1) Journal of Refugee Studies 11.

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256  Research handbook on climate change, migration and the law ­ rongful act.75 This applies not only in situations where a State has w failed to comply with an obligation defined by a treaty such as a national ­mitigation ­commitment, but also in relation to States’ obligations under general ­international law such as obligations deriving from the no-harm/ preventive principle. As many historical greenhouse gas emitters continue to produce large amounts of greenhouse gas emissions in breach of the no-harm/preventive principle, they must accordingly take immediate and ­sufficiently expansive measures to quickly curb their emissions.76 While each State responsible for an internationally wrongful act is under a distinct ­individual obligation to cease its wrongful act, if it is ­continuing, States may also seek to comply through international cooperation. Successive climate change agreements that seek, inter alia, to emulate national action on climate change mitigation can be construed as a way to promote State compliance with general international law.77 The following focuses on the other secondary obligation, namely, the obligation for States that have breached their primary obligations, in ­particular by emitting excessive greenhouse gas emissions in breach of the no-harm/preventive principle, to provide reparation.78 Classically, reparation for an internationally wrongful act can take three forms – ­restitution, compensation and satisfaction – either singly or in combination,79 with compensation being the most common remedy for injuries that are financially assessable. There has however been an increasing practice of ­transnational reparations where injured persons are directly compensated by the responsible State, without the intermediary of the injured State.80 A particular difficulty regards the characterization of the injury caused by the wrongful act. Excessive greenhouse gas emissions do not cause directly any concrete impacts. Rather, they affect the probability of particular weather patterns (i.e., the climate). They indirectly affect social systems in diffuse and amplifying ways with consequences which, like the concentric circles that an impact produces on a water surface, extend ad infinitum and at absurdum in time and space. In the Anthropocene – a   ILC (2001), supra note 17, art. 31.   See Mayer (2014), supra note 47, and Mayer (2016), supra note 47. 77   See Benoît Mayer, ‘Construing International Climate Change Law as a Compliance Regime’ Transnational Environmental Law (forthcoming). 78   While the ILC has qualified remedial obligations as an obligation to make ‘full’ reparation, relevant State practice suggests the less demanding standard of adequate reparation. See discussion in Benoît Mayer, ‘Climate Change Reparations and the Law and Practice of State Responsibility’ (2016) 7(1) Asian Journal of International Law 185. 79   See ILC (2001), supra note 17, art. 34. 80   See for instance UN SC Resolution 688 (1991), supra note 70. 75 76

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Climate change, migration and the law of state responsibility  ­257 geological era dominated by the influence of human societies – it is hardly an exaggeration to say that just about anything that happens anywhere in the world can somehow be related to the impacts of human societies on the environment, in particular greenhouse gas emissions and climate change. There is no requirement in the law of State responsibility that the injury be the direct consequence of the wrongful act. If directness is one of the criteria that have often been used to assess the injury caused by a wrongful act, others include proximity and foreseeability.81 The arbitral award in the Trail Smelter case excluded damages which are ‘too indirect, remote, and uncertain to be appraised’ from the scope of the injury caused by the wrongful act.82 Based on the discussion in the previous subsection, migration can be considered within or outside the scope of the injury caused by a breach of the no-harm/preventive principle. It may be situated outside the scope of the injury when migration is approached as a way to respond to the impacts of climate change and to mitigate the harms that they cause to societies and individuals. It may also be viewed as within the scope of the injury inasmuch as reparations could be sought for the harms suffered by migrants themselves or by surrounding communities. Yet, it is far from obvious that the harms suffered by migrants themselves and, a fortiori, the harms suffered by surrounding communities as a consequence of migration can be considered as, if not a direct consequence of excessive greenhouse gas emissions, at least a proximate and foreseeable effect of this wrongful act. The vulnerability and precariousness of migrants are not inherent to the migration experience, but largely depend on how relevant laws and policies assist and protect the rights of migrants. Likewise, the interactions between migrants and the surrounding communities depend on multiple factors, including the maturity of political organizations and the courage of political leaders to resist to the temptation of populist and xenophobic discourses. Except in the most extreme circumstances, a host of circumstantial ­elements determine whether migration occurs as a consequence of climate change impacts as well as how it unfolds and how much harms, if any, are suffered by migrants themselves and by surrounding communities. Valueloaded decisions are needed to determine whether migration is p ­ referable and, if so, which form of migration, supported by which political resources. Human and political agencies are thus essential to determining migration decisions. Some individuals and communities are more attached to the land

  ILC (2001), supra note 17, commentary under art. 31, para. 10.   Trail Smelter, supra note 39, 1931.

81 82

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258  Research handbook on climate change, migration and the law where they live than others. Within each society, genders, generational, social and ethnic categories are likely to influence intimate migration ­preferences. These circumstantial elements make it particularly difficult to consider the migration of particular individuals or communities as part of the proximate injury caused by the internationally wrongful act. Therefore, from a responsibility perspective, the injury caused by the internationally wrongful act would most convincingly be analysed at the original impact of the wrongful act on the latter State – the first entry point where climate change ‘injures’ a State – which is through changes in weather patterns or slow-onset changes in environmental systems (e.g., sea-level rise or ocean acidification). A valuation of the injury could be based on an abstract estimate of the scope of harm that would most likely follow if reasonable measures were taken to mitigate the injury, rather than through an assessment of the harms actually suffered following multiple and complex adaptation decisions. In practice, however, such arguments face formidable political obstacles. Reparations for the injuries caused by excessive greenhouse gas emissions have long been claimed but proper reparation has never been granted.83 Instead, one-quarter of international negotiations on climate change have led to little more than a constructive ambiguity on the meaning of ‘common but differentiated responsibilities’84 and to the adoption of elusive provisions on adaptation and more recently on approaches to address loss and damage associated with climate change impacts. While some guidance has been provided on how (mostly) developing States ought to adapt to climate change or address loss and damage a­ ssociated with climate change impacts, international support has remained piecemeal, unsystematic, and, because mostly conveyed through bilateral institution, subjected to multiple formal or informal conditions imposed by ‘donor’ States. Developed States remained strongly opposed to any ­negotiations relating to compensation or reparation. The existence of an article on approaches to address loss and damage in the Paris Agreement, for instance, was only possible politically because it was accompanied by a provision in the Decision of the Conference of the Parties g­ uaranteeing that this article ‘does not involve or provide a basis for any liability or compensation’.85 Outside dedicated negotiations on climate change, 83   For a review of historical claims, see Benoît Mayer, ‘Conceiving the Rationale for International Climate Law’ (2015) 130(3) Climatic Change 371. 84   See UNFCCC, supra note 21, art. 3(1); Christopher Stone, ‘Common but Differentiated Responsibilities in International Law’ (2004) 98 American Journal of International Law 276. 85   Decision 1/CP.21 (2015), supra note 1, para. 51.

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Climate change, migration and the law of state responsibility  ­259 similar obstacles have been met by those claiming for climate justice. Attempts by Palau to request an ­advisory opinion of the International Court of Justice on States’ obligations and responsibilities in relation to climate change were crushed by political pressures from development-aid donor States,86 while the project of the ILC to study the law relating to the protection of the atmosphere was only allowed to proceed at the expense of a political compromise excluding, among others, any discussion on the no-harm/­preventive principle and any questions of State responsibility.87 The difference between measures taken to support adaptation or address loss and damage and remedial obligations under the law of State ­responsibility is not just a question of scope or ambit. Therefore, an increase in support provided to developing States to adapt to climate change or address loss and damage would not suffice to fulfil the r­ emedial obligations of responsible States. This is because support to adaptation and approaches to address loss and damage are by nature different from remedies. Climate finance and transfer of technologies come with policy guidance and oversight. At the very least, the receiving State must justify that the funds it receives are being used to adapt to climate change or to address loss and damage rather than more generally to promote human development or protect the human rights of its populations. But ­‘guidance’ on the use of international ‘support’ goes further. It includes, in p ­ articular, an emphasis on migration imposed by the international community in the adaptation policies of developing States,88 as well as conditionality ­negotiated by bilateral diplomatic relations. As an observer noted, ‘national governments in developed countries are at the center of the emerging ­governance of adaptation’.89 By contrast, compensation (or other forms of reparation under international law or, indeed, most other legal regimes) imposes no specific obligation on the injured party. The injured State is under no obligation to use the funds received from compensation, for instance, to address the particular damages suffered as a consequence of 86   Stuart Beck and Elizabeth Burleson, ‘Inside the System, Outside the Box: Palau’s Pursuit of Climate Justice and Security at the United Nations’ (2014) 3 Transnat’l Envtl. L. 17, 26; ‘Press Conference on Request for International Court of Justice Advisory Opinion on Climate Change,’ UN Meetings Coverage and Press Releases (3 February 2012). 87   Shinya Murase, First Report on the Protection of the Atmosphere, A/ CN.4/667, 2014, para. 5. 88   See in particular decision 1/CP.16 (2010), supra note 1, para. 14(f); decision -/CP.22 (2016), supra note 1, para. 9. 89   Geoff Cockfield, ‘Governing Adaptation Policies and Programmes’ in Timothy Cadman, ed., Climate Change and Global Policy Regimes: Towards Institutional Legitimacy (Macmillan 2013) 60, at 70.

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260  Research handbook on climate change, migration and the law the wrongful act. As mentioned, a State exercising diplomatic protection is not even under a strict obligation to convey the reparation injured to the individuals affected by the wrongful act.90 Orientations imposed on developing States as a condition of access to much-needed financial and technical support have become an entry point for Western States (as ‘donors’) to interfere with the domestic policies of developing States (as ‘recipients’). International action on adaptation ­transfers political powers from sovereign States already affected by the wrongful acts of other States, to the responsible States, as if the response to an interference with the rights of the States (i.e., excessive greenhouse gas emissions) could justify yet another wrong (interference instead of r­eparation). This contributes to a self-justifying scheme of ­political subordination disturbingly reminiscent of the history of European ­ ­colonialism, whereby political interference hindered development while lack of capacities was considered a justification for the characterization of Southern countries as unfit for self-governance. The current emphasis on migration within international action on adaptation and approaches to address loss and damage reflects at best the sensibilities and at worst the priorities of the donors. This emphasis focuses political resources on ­‘managing’ those populations who move or could move, of more direct concern to the donors, rather than on those who die and suffer the most, often trapped in place and unable to migrate. The Western agenda of migration control and non-entrée Strategy is thus progressively extended beyond Western borders by creating an incentive for developing States to contain their population within their borders.91 This focus on migration, in other words, is likely to do little for the protection of the migrants but much for ‘our’ protection against potential migration.

III. CONCLUSION Climate change entails important questions of responsibilities that have remained largely unaddressed despite a quarter of a century of intense international negotiations. Relevant primary obligations include not only treaty-based mitigation commitments, but also norms of customary international law, in particular obligations arising from the no-harm/preventive principle. Migration could be considered as a way to mitigate the injuries

  See ILC (2006), supra note 61, art. 19.   See Benoît Mayer, ‘Environmental Migration in the Asia-Pacific Region: Could We Hang Out Sometime?’ (2013) 3 Asian Journal of International Law 101. 90 91

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Climate change, migration and the law of state responsibility  ­261 suffered by developing States as a consequence of climate change, but also, perhaps, as a form of injury itself. Yet, the injury caused by the wrongful acts in question is best analysed by reference to the physical impacts of climate change within a particular country and the consequences that such physical impacts are likely to have, rather than by reference to actual loss and damage whose nature and ambit depend on multiple other factors. In this perspective, there is little justification for international g­ overnance on climate change migration. Reparation should be paid by responsible States to injured ones (or arguably to individuals) whether they migrate or not. Conditioning such payments to particular migration policies, as results of the Cancún Adaptation Framework,92 paves the way to undue interference in the development priorities of developing States. One can no longer ignore that international support to adaptation and to approaches to address loss and damage comes from States which often construe their interest as controlling international migration as a matter of economic interests and national security at their borders and beyond in ‘buffer’ regions.93 Bringing the ill-defined concept of ‘climate migration’ to international scrutiny will facilitate the imposition of these interests – a control of internal migration as a first step towards international migration – above the interest of a balanced protection of everyone within the jurisdiction of the States in question.

  See decision 1/CP.16 (2010), supra note 1, para. 14(f).   Chris Methmann and Delf Rothe, ‘Tracing the Spectre that Haunts Europe: the Visual Construction of Climate-Induced Migration in the MENA Region’ (2014) 2 Journal of Critical Study for Securities 162. 92 93

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12.  Regional responses to climate change and migration in Latin America Regional responses to climate change and migration

Erika Pires Ramos and Fernanda de Salles Cavedon-Capdeville

INTRODUCTION Latin America is a diverse region in human, social and environmental terms. It has a diverse biodiversity in multiple preserved and endangered natural areas, large urban centres, many vulnerable groups (e.g., indigenous peoples and other traditional peoples and communities),1 large development projects, socioeconomic and environmental vulnerabilities, and a high ­ ­exposure to disaster risk and the adverse effects of climate change. Climate change exacerbate the frequency and intensity of disasters2 and also the availability and quality of natural resources. Risks and vulnerabilities are intensified and ecosystems that are crucial to the ­ maintenance of regional ecological balance are affected, such as the ­

  According to Brazilian legislation (Decree n. 6040/2007), Traditional Peoples and Communities (PCT) are those ‘culturally differentiated groups and that recognize themselves as such, who have their own ways of social organization, who occupy and use territories and natural resources as a condition for their cultural, social, religious, ancestral and economic reproduction, using knowledge, innovations and practices generated and passed on through tradition’. (Free translation). They are: agro-extractivists from the Amazon, caiçara, fundo de pasto communities (Northeastern herdsman), terreiro communities (Afro-Brazilian descendant), quilombolas, faxinais (Southern herdsman and agriculturalists), geraizeiros (Southeastern inhabitants of the Cerrado biome, São Francisco River), pantaneiros, artisanal fishermen, Pomeranians (descendant from Pomerania), gipsy peoples, indigenous peoples, babaçu coconut breakers, retireiros (herdsmen and agriculturalists from Araguaia River, Mid-Western and Northern) and rubber tappers. PCT are also known internationally as local communities. For more information, see Calegare et al., ‘Traditional Peoples and Communities: from protected areas to the political visibility of social groups having ethnical and collective identity’ (2014), Ambiente & Sociedade 3, XVII, 115–34.  2   Rede de Conhecimento de Clima e Desenvolvimento, ‘Gerenciando extremos climáticos e desastres na América Latina e no Caribe: Lições do relatório SREX IPCC’ (CDKN, 2012), http://www.fapesp.br/ipccsrex/upload/SEX-LessonsPortuguese-LAC.pdf.  1

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Regional responses to climate change and migration  ­263 Andes3 and Amazon Forest.4 Such impacts influence human mobility in the region, generating emergency and long-term displacement in response to the sudden and slow-onset changes in the environment. Regional cooperation has been encouraged as a strategy for tackling human mobility related to climate change,5 in the absence of efficient international, regional or bilateral mechanisms. Cross-border movements occur primarily at the intraregional level,6 demanding parameters and minimum standards of protection, as well as an integrated response between ­countries of origin, transit and destination. Regional m ­ echanisms ­implemented domestically are considered more appropriate due to States’ ­resistance to the ­adoption of international instruments at a global level. In Latin America like elsewhere, regional forums have often shown an ability to overcome political obstacles to cooperation at a global scale. This chapter seeks to identify trends, challenges and perspectives for ­integrated legal treatment of policies, strategies and regional action plans, as well as national mechanisms to deal with environmental m ­ igration, based on the work of regional and sub-regional organizations on m ­ igration, climate change and disaster risk management in Latin America. In order to achieve these goals, the chapter is organized in three parts. The first one aims to draw a scenario of the impacts of climate change on human mobility in Latin America. Initiatives of the regional and subregional organizations concerning climate change, disaster risk reduction and environmental migration issues and the relationship between them are presented in the second part. National responses and practices in the continent to deal with migration in the context of climate change and disasters are mapped in the third part.

 3   The melting and decreased surface of Andean glaciers, responsible for water supply and electricity to approximately 50 million people. Asociación Interamericana para la Defensa del Ambiente (AIDA), ‘Cambio climático y derechos humanos en América Latina: una crisis humana’ (AIDA, 2011), http://www. aida-americas.org/sites/default/files/ccdh_aida_esp.pdf.  4   In the Amazon region significant changes in the hydrological cycle and climate extremes are registered, represented by droughts and major flooding. Severe droughts hit the region particularly in 2005, 2010 and 2016 and the flooding of the Madeira River in 2014 reached historic proportions.  5   For instance, the Agenda for the Protection of Cross-Border Displaced Persons in the Context of Disasters and Climate Change recognize the role of regional and sub-regional organizations and its importance for developing integrated responses. The Nansen Initiative, ‘Agenda for the Protection of CrossBorder Displaced Persons in the Context of Disasters and Climate Change’ (2015), https://www.nanseninitiative.org/global-consultations/.  6   As indicated in the Protection Agenda, ibid.

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264  Research handbook on climate change, migration and the law In conclusion, a better integration of climate change, disaster risk reduction and migration issues in the regional context could be achieved with the development of a legal framework on environmental migration, coherent with national legal responses, existent regional and sub-regional initiatives and organisms on these issues. This could be an option to overcome ­normative and institutional gaps and lack of legal recognition and protection for environmental migrants.

I. CLIMATE CHANGE IMPACTS IN LATIN AMERICA AND ITS CONSEQUENCES ON HUMAN MOBILITY In Latin America, climate-change impacts generate in particular a loss of natural resources (for example, reduction of Andean glaciers), droughts, extreme rainfall and floods, sea-level rise and destruction of marine ­ecosystems, an increase in bushfires, heatwaves and diseases. In Panama, for example, the Guna indigenous people from the San Blas archipelago that border the Gunayala region are already affected by the sea level rise. It is estimated that approximately 28 000 people will eventually have to ­relocate from the islands to the mainland as a result of rising sea levels and climate-related events.7 Climate change exacerbates pre-existing risks and ­vulnerabilities. High level of vulnerability and exposure to extreme meteorological and climate conditions can hamper life and labour in ­ certain regions of Latin America, often resulting in human mobility.8 Migration can be an adaptation strategy, but it can also be a last-resort survival option in face of adverse environmental conditions that become more frequent due to climate change. Extreme weather events exacerbate the frequency and intensity of ­disasters in Latin America. As informed by UNISDR, AECID and OSSO concerning the impacts of disasters in Latin America and Caribbean, 97 per cent of the disasters registered in the period 1990–2013 were triggered by hydro-meteorological and climate events. Such events have produced the most of disaster-related loss and damage in this period in the region.9   Displacement Solutions, ‘The Peninsula Principles in action: climate change and displacement in the Autonomous Region of Gunayala, Panama – Mission Report’ (2014).  8  CDKN, supra note 2.  9   United Nations Office for Disaster Risk Reduction (UNISDR); Agencia Española de Cooperación Internacional para el Desarrollo (AECID); Corporación OSSO, ‘Impacto de los desastres en América Latina y el Caribe, 1990-2013 –  7

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Regional responses to climate change and migration  ­265 Two types of population movements are identified in the Americas in consequence of disasters. First, early migration, usually temporary, through a land border, of people who seek to avoid the consequences of disasters. Secondly, long-term migration over longer distances, caused by long-term disaster damages.10 Cross-border displacement induced by climate events in the region were for instance documented, for example, as a consequence of El Niño in Peru in the biennium 1972–73 and 1982–83. The affected fishing communities migrated to Bolivia and Ecuador, or to other areas in Peru, to perform informal activities.11 Natural disasters that recurrently trigger cross-border displacement in Central and South America include hurricanes, floods and earthquakes.12 In South America, 88 per cent of disasters in the last five decades were climate-induced.13 According to IDMC, in 2016, climate and weatherrelated disasters were responsible for 97 per cent of all disaster-related displacement.14 Among the ten largest weather-related disaster displacement events in 2016 figures Hurricane Matthew in Cuba and, related to population size, in Haiti. Belize, Haiti and Cuba in the Caribbean accounted for five of the 10 countries with the largest per capita disaster displacement in 2016.15 Among the weather events with higher relative number of displacement in 2015 are tropical storm Erika in the Dominican Republic and floods in Paraguay.16 Brazil stands within the ten countries with the largest number of people affected during the last 20 years.17

t­ endencias y estadísticas para 22 países’ (2013), http://www.unisdr.org/files/48578_ impactodesastresamericalatinacaribe.pdf. 10   David James Cantor, ‘Disasters, displacement and a new framework in the Americas’ (2015) 49 Forced Migration Review 37. 11   Comisión Económica para América Latina y el Caribe (CEPAL), ‘Manual para la Evaluación de Desastres’ (2014), http://repositorio.cepal.org/bitstream/ handle/11362/35894/S2013806_es.pdf?sequence51. 12   The Nansen Initiative, supra note 5. 13   Marcos Pivetta, ‘50 Anos de Calamidades na América do Sul’ (2016) 241 Pesquisa FAPESP 62, 63. 14   Internal Displacement Monitoring Centre (IDMC); Norwegian Refugee Council (NRC), ‘Global Report on Internal Displacement’ (2017), http://www. internal-displacement.org/assets/publications/2017/20170522-GRID.pdf, accessed 30 May 2016. 15  Ibid. 16   Internal Displacement Monitoring Centre (IDMC); Norwegian Refugee Council (NRC), ‘Global Report on Internal Displacement’ (2016), http://www. internal-displacement.org/assets/publications/2016/2016-global-report-internaldisplacement-IDMC.pdf. 17   Centre for Research on the Epidemiology of Disasters (CRED); United Nations Office for Disaster Risk Reduction (UNISDR), ‘The Human Cost of

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266  Research handbook on climate change, migration and the law From 2008 to 2014, an annual average of 2.6 million people were displaced by disasters in the continent.18 In 2015, 1.5 million people were displaced by disasters in Latin America and the Caribbean, with more displacement than the other continents, without considering displacement caused by droughts and dry seasons.19 Among the countries with the highest number of disaster-induced displacement in 2015 figures Chile, Paraguay, Mexico, Brazil, Venezuela and Dominican Republic.20 The 2015–16 El Niño affected rainfall patterns and droughts regimes in Central America, the Caribbean and South America, with serious consequences throughout the continent. In El Salvador, Guatemala, Honduras and Nicaragua, 3.5 million people were exposed to food insecurity due to the droughts.21 In addition to sudden natural disasters, displacements are also occurring in Latin America as a result of sea-level rise and impacts on agriculture and other means of subsistence (water scarcity, salinization of agricultural lands, droughts).22 Displacement due to these reasons often generate rootlessness in communities whose cultures are centred on territory, a process that increases their exposure to exploitation and discrimination, as well as identity and cultural loss.23

II.  REGIONAL RESPONSES In the American continent, there are no regional or sub-regional binding rules that recognize the status of ‘environmental migrant’. However, the impacts of climate change and disasters on human mobility have been ­recognized in declarations, strategies, policies and sectoral action plans, ­creating a favourable context to develop more specific responses which could integrate disaster risk management (DRM), climate change and migration. Weather Related Disasters 1995–2015’ (2015), http://www.unisdr.org/2015/docs/ climatechange/COP21_WeatherDisastersReport_2015_FINAL.pdf. 18   Internal Displacement Monitoring Centre (IDMC); Norwegian Refugee Council (NRC), ‘Global Estimates 2015: people displaced by disasters’ (2015), http:// www.internal-displacement.org/assets/library/Media/201507-globalEstimates2015/20150713-global- estimates-2015- en-v1.pdf. 19   Internal Displacement Monitoring Centre (IDMC); Norwegian Refugee Council (NRC), supra note 16. 20  Ibid. 21  Ibid. 22   For more information about cases in South America, see: ‘Migración, Medio Ambiente y Cambio Climático: una introducción’ (OIM, 2014). 23  AIDA, supra note 3.

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Regional responses to climate change and migration  ­267 A. Addressing the Relationship Between Climate Change, Disasters and Migration The Inter-American Commission on Human Rights (IACHR/OAS) ­recognizes that the consequences of climate change generate displacement, demonstrating its concern for those who will be forced to migrate as well as for those who will not be able to migrate, remaining trapped in situations of environmental risk.24 The Brazil Declaration, adopted in 2014 at the occasion of the 30th Anniversary of the Cartagena Declaration on Refugees, r­ecognized the challenges of cross-border displacement caused by climate change and natural disasters and the need for more studies and attention on this subject.  Brazil Plan of Action stipulates that the program ‘Solidarity Resettlement’ must demonstrate solidarity with international ­humanitarian crisis, through humanitarian visas and resettlement quotas, which could be applied to those crises caused by climate change and disasters. The Plan requires the UNHCR to carry out studies on displacement induced by climate change and natural ­ disasters and support the adoption of national and regional guidelines, including response strategies, contingency plans, integrated responses in d ­ isasters risk ­ management and humanitarian visas programs.25 Mercosur’s sub-regional consultation in the Cartagena+30 process r­ecommended ­evaluate the adoption of protection mechanisms within the scope of migration law to respond to cross-border displacements caused by climate change and natural disasters.26 The South American Conference on Migration (CSM) recognizes the new challenges imposed by natural disasters to the protection and

  Inter-American Commission on Human Rights, ‘IACHR expresses concern regarding effects of climate change on human rights’ (IACHR, 2015), http://www. oas.org/en/iachr/media_center/PReleases/2015/140.asp. 25   Cartagena+30, ‘Declaração do Brasil: um marco de cooperação e solidari­ edade regional para fortalecer a proteção internacional das pessoas refugiadas, deslocadas e apátridas na América Latina e no Caribe’ (2014); Cartagena + 30, ‘Plano do Brasil: Um roteiro comum para fortalecer a proteção e promover soluções duradouras para as pessoas refugiadas, deslocadas e apátridas na América Latina e no Caribe em um marco de cooperação e solidariedade’ (2014), http://www.acnur. org/t3/fileadmin/scripts/doc.php?file5t3/fileadmin/Documentos/BDL/2014/9866. 26   Alto Comisionado de las Naciones Unidas para los Refugiados (ACNUR), ‘Proceso Conmemorativo del 30 Aniversario de la Declaración de Cartagena sobre los Refugiados “Cartagena+30”, Consulta Subregional del Mercosur: Resumen de Conclusiones y Recomendaciones’ (Buenos Aires, 18–19 marzo 2014), http://www. acnur.org/t3/fileadmin/Documentos/BDL/2014/9557.pdf?view51. 24

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268  Research handbook on climate change, migration and the law a­ ssistance to migrants in the region.27 The Santiago Declaration adopted by member states in 2015 commits to update the Conference’s mandates to include the topic of migration, climate change and environment, and to elaborate a report about the initiatives of member countries related to migration and climate change.28 This report was elaborated by the South American Network for Environmental Migrations (RESAMA) for the XVI South American Conference on Migration in 2016.29 The final Declaration of the Conference takes note of the report recommendations and proposals for its inclusion in the CSM’s agenda.30 The Economic Commission for Latin America and the Caribbean (CELAC), in its evaluation of direct and indirect impacts of disasters, considers migration, temporary population displacement and mid-term effects that can generate migration in consequence of economic impacts of disaster.31 In Central America and the Caribbean, the Regional Strategy on Climate Change, adopted by the Central American Commission on Environment and Development (CCAD) and the Central American Integration System (SICA) approach human mobility triggered by climate change under the ‘extreme climate and risk management’ strategic area, foreseeing the development of national temporary evacuation strategies, permanent ­relocation and immigration of affected people due to the intensification and reoccurrence of climate extremes.32 The Bolivarian Alliance for Peoples of our America (ALBA), in the

  XVIII Conferencia Regional Sobre Migración (CRM), ‘Migraciones e Integración Social: por una migración con rostro humano’ (2013), http://www. crmsv.org/ReunionesCRM_GRCM.htm, accessed 23 May 2016. 28   XV Conferencia Suramericana Sobre Migraciones (CSM), ‘Declaración de Santiago – Con justicia e igualdad hacia una gobernanza migratoria’ (2015). 29   Red Sudamericana para las Migraciones Ambientales (RESAMA); Conferencia Suramericana Sobre Migraciones (CSM); Organización Internacional para las Migraciones (OIM), ‘Migración, medio ambiente y cambio climático: Agenda 2030, buenas prácticas y desafíos para la región suramericana’ (2016), http://csm-osumi.org/Archivos/ConfCSM/Documento%20de%20referen​cia%​20​-​ %​20Migraci%C3%B3n,%20medio%20ambiente%20y%20cambio%20cl​i​m​%​C​3​%​ A1tico.pdf, accessed 30 May 2017. 30   XVI Conferencia Suramericana Sobre Migraciones (CSM), ‘Declaración de Asunción – Hacia el libre tránsito’ (2016), http://csm-osumi.org/Archivos/ ConfCSM/1%20Declar%20ASUNCION%202016%20escan.pdf, accessed 30 May 2017. 31  CEPAL, supra note 11. 32   Comisión Centroamericana de Ambiente y Desarrollo (CCAD); Sistema de la Integración Centroamericana (SICA), ‘Regional Strategy on Climate Change  – Executive Document’ (2010), http://www.uncsd2012.org/content/documents/region​ alstrategyelsalvador.pdf. 27

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Regional responses to climate change and migration  ­269 Special Declaration on Climate Change adopted in 2010, considers that developing countries should take over responsibilities for climate migrants, including the need to host them and ensure the protection of their fundamental rights.33 The Regional Conference on Migration (RCM or Puebla Process),34 an intergovernmental forum of North and Central American States which ­promotes regional dialogue on migration issues, decided in the Declaration of its XIX Meeting to hold a Regional Workshop on Temporary Protection Status and/or Humanitarian Visas in Situations of Disaster, funded by the Nansen Initiative.35 The event took place in Costa Rica in February 2015 and the RCM governments requested the development of an effective practices guide about the admission and accommodation of cross-border displacement in disaster context.36 The document ‘Protection for persons moving across borders in the context of disasters: A Guide to Effective Practices for RCM Member Countries’ was adopted during the XXI Regional Conference on Migration in Honduras in November 2016.37 This guide will be an important step towards a regional policy for r­ ecognition and protection of persons displaced in disaster situations and guideline to national initiatives. More recently, the Organization of American States (OAS)38 reinforced the recognition of the links between migration and climate change by the adoption of the Declaration on Climate Change, Food Security and

33   X Cumbre de la Alianza Bolivariana para los Pueblos de Nuestra América (ALBA), ‘Declaración Especial Sobre Cambio Climático’ (2010), http://www. portalalba.org/index.php?option5com_content&view5article&id51299:201006-25-x-cumbre-otavalo-ecuador-declaracion-especial-sobre-cambio-climatico&​ catid5130&Itemid5146. 34   RCM member states are: Belize, Canada, Costa Rica, El Salvador, United States, Guatemala, Honduras, Mexico, Nicaragua, Panama and Dominican Republic. RCM also includes countries that have observer status: Argentina, Colombia, Ecuador, Jamaica and Peru. For more information about RCM, see http://www.rcmvs.org/Descripcion.htm. 35   XIX Regional Conference on Migration, ‘Declaration for a region free of trafficking of persons’ (2014), https://www.iom.int/files/live/sites/iom/files/WhatWe-Do/docs/Declaration-XIX-RCM.pdf. 36  Cantor, supra note 10. 37   For more information about the Guide to Effective Practices, see http://disaster​ displacement.org/platform-on-disaster-displacement-mission-to-central-america/. 38   Member states: Antigua and Barbuda, Argentina, Barbados, Belize, Bolivia, Brazil, Canada, Chile, Colombia, Costa Rica, Cuba, Dominica (Commonwealth of), Dominican Republic, Ecuador, El Salvador, Grenada, Guatemala, Guyana, Haití, Honduras, Jamaica, Mexico, Nicaragua, Panama, Paraguay, Peru, Saint Kitts and Nevis, Saint Lucia, Saint Vincent and the Grenadines, Suriname, The Bahamas, Trinidad and Tobago, United States of America, Uruguay, Venezuela.

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270  Research handbook on climate change, migration and the law Migration in the Americas, by the OAS’s General Assembly on 14 June 2016. Some of the main provisions in this Declaration seek to: (i) raise awareness on the effects of climate change on displacement and increasing migration flows; (ii) recognize the need for action in response to ­humanitarian crises; (iii) emphasize the relevance of coordinated actions from regional, multilateral and specialized organizations to analyse the links between climate change, food security and its effects on the increase of migration flows; and (iv) encourage States to develop adaptation capacity, reduce vulnerabilities and enhance resilience and to organize an exchange of experiences on relevant migration and climate change policies as well as regarding disaster risk reduction.39 In 2009, the OAS’s Committee of Migratory Issues had already presented a document r­ egarding migrants in disaster-related situations, highlighting the connection between ­disasters and migration, the special vulnerability and the legal framework of migrants in those cases. However, this document did not include concrete measures to develop or strengthen this legal framework.40 Despite these initiatives, other opportunities could have been used to address the issue. For example, the update of the Inter-American Program for the Promotion and Protection of the Human Rights of Migrants in 2016 could have been an opportunity to integrate environmental migration in regional migration plans and policies.41 Likewise, the final document of the 2015 Summit of the Americas addresses specific items regarding environmental protection and also regarding migration, but it does not establish the relationship between these topics. The document highlights consequences and challenges of climate change in the region, requests an intensification of adaptation efforts for vulnerable communities and ­territorial planning and zoning processes for the prevention of natural disasters and environmental risks, mitigation, adaptation and resilience.42

39   Comisión de Asuntos Migratorios (CAM), ‘Draft Declaration: Migration, Food Security and Climate Change in the Americas’ (2016), CIDI/CAM/doc.26/16, http://www.oas.org/es/cidi/cidi_cam_docs_16.asp. 40   Comisión Especial de Asuntos Migratorios, ‘Migrantes en situaciones de desastres’ (2009) CE/AM-69/08, http://www.oas.org/consejo/sp/comisionesespe​ ciales/Comision%20Especial%20Asusntos%20Migratorios.asp#Situaciones%20 de%20desastres. 41   Comisión de Asuntos Migratorios (CAM) de la OEA, ‘Draft Resolution: Inter-American Program for the Promotion and Protection of the Human Rights of Migrants, Including Migrant Workers and their Families’ (2016) CIDI/CAM/ doc.27/16 rev.1, http://www.oas.org/es/cidi/cidi_cam_docs_16.asp. 42   Seventh Summit of the Americas, ‘Prosperity with Equity: The Challenge of Cooperation in the Americas – Mandates for Action’ (Panama City, 10–11 April 2015), http://www.summit-americas.org/vii/docs/mandates_en.pdf.

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Regional responses to climate change and migration  ­271 B.  Fragmented Responses and the Lack of Coordination and Coherence Even if some progress were identified on the recognition of the linkages between climate change, disasters and migration, these issues are generally treated by regional and sub-regional organizations in fragmented policies, programmes and initiatives that do communicate with each other. 1.  Organization of American States In the broader context of OAS, the General Assembly adopted a series of resolutions on climate change,43 disasters,44 migration45 and internal 43   AG/RES. 1674 (XXIX-O/99) Los Cambios Climáticos en las Américas 1999; AG/RES. 1736 5XXX-O/00 Los efectos socioeconómicos y ambientales del cambio climático en los países del hemisferio 2000; AG/RES. 1821 (XXXI-O/01) Los efectos socioeconómicos y ambientales del cambio climático en los países del hemisferio 2001; AG/RES. 1864 (XXXII-O/02 Los efectos socioeconómicos y ambientales del cambio climático en los países del hemisferio 2002; AG/RES. 2429 (XXXVIII-O/08) 2008; AG/RES. 2588 (XL-O/10) El cambio climático en los países del hemisferio 2010; AG/RES. 2649 (XLI-O/11) El cambio climático en los países del hemisferio 2011; AG/RES. 2818 (XLIV-O/14) El cambio climático en el marco del desarrollo sostenible en el Hemisferio 2014, http://www.oas.org/es/sla/ resoluciones_asamblea_general.asp. 44   AG/RES. 1682 (XXIX-O/99) Mecanismos de la OEA para la reducción de los desastres naturales 1999; AG/RES. 1755 (XXX-O/00) Mecanismos de la OEA para la reducción de los desastres naturales; AG/RES. 1803 5XXXI-O/01) Mecanismos de la OEA para la reducción de desastres naturales 2001; AG/RES. 1885 (XXXII-O/02) Reducción de los desastres naturales 2002; AG/RES. 1955 (XXXIII-O/03) Reducción de desastres naturales 2003; AG/RES. 2024 5XXXIXO/04 Mecanismos de la OEA para la reducción de los desastres naturales 2004; AG/RES. 2114 (XXXV-O/05) Reducción de los desastres naturales 2005; AG/ RES. 2184 (XXXVI-O/06) Reducción de desastres naturales, gestión de riesgos y asistencia en casos de desastres naturales y otros desastres 2006; AG/RES. 2314 (XXXVII-O/07) Reducción de desastres naturales, gestión de riesgos y asistencia en casos de desastres naturales y otros desastres; AG/RES.(XL-O/10) Los mecanismos existentes sobre prevención, atención de los desastres y asistencia humanitaria entre los Estados Miembros 2010; AG/RES. (2647 (XLI-O/11) Los mecanismos existentes sobre prevención, atención de los desastres y asistencia humanitaria entre los Estados Miembros 2011; AG/RES. 2750 (XLII-O/12) Los mecanismos existentes sobre prevención, atención de los desastres y asistencia humanitaria entre los Estados Miembros 2012, http://www.oas.org/es/sla/resolu​ ciones_asamblea_general.asp. 45   For example, AG/RES. 2608 (XL-O/10) Poblaciones migratorias y flujos de migración en las Américas 2010; AG/RES. 2738 (XLII-O/12) Fortalecimiento del tema migratorio en la OEA: Constitución de la Comisión de Asuntos Migratorios 2012; AG/RES. 2777 (XLIII-O/13) Fortalecimiento del tema migratorio en la OEA 2013 AG/RES. 2790 (XLIII-O/13) Los derechos humanos de las personas migrantes, incluidos los trabajadores migratorios y sus familias 2013;

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272  Research handbook on climate change, migration and the law displacement.46 The protection of Internally Displaced Persons (IDPs) has been receiving OAS’s attention since the mid-80s.47 The OAS adopts the concept of internal displacement defined in the UN Guiding Principles on Internal Displacement, which includes displacement caused by disasters, and encourages States to use these principles as a basis for their plans, policies and programmes related to internal displacement. This topic has been addressed through successive resolutions of the General Assembly. The most recent resolution, adopted in 2014, brings contributions to the prevention of internal displacement caused by disasters and to the protection of individuals and populations who are victims of these displacements. Some contributions: (i) emphasize the importance of implementing measures to prevent and avoid internal displacement and its causes through the development of national legal framework; (ii) requests States to include the needs of IDPs in disaster risk-reduction plans, policies and programmes; (iii) urges States to satisfactorily meet the needs of IDPs in case of natural disasters and to adopt measures of risk prevention, reduction and mitigation; and (iv) requests that States should establish a dialogue with IDPs and communities affected by these population movements. Internal ­environmental displacement count on a more established basis at regional level, leaving environmental cross-border migration as a topic to be develo­ ped in a more objective way in the context of the OAS. The OAS has relevant institutional and documentary capacities regarding migration and disaster management. The Committee on Migration Issues and the Migration and Development Program both contribute to promote and develop public policies to improve migration m ­ anagement in the Americas, in addition to the Inter-American Program for the Promotion and Protection of the Human Rights of Migrants,48 the Special Rapporteur on the Rights of Migrants, the Continuous Reporting System on International Migration in the Americas (SICREMI) and actions CIDI/CAM/doc.10/13 rev. 5 Migración y desarrollo en las Américas (2014); AG/ RES.2839 (XLIV-O/14) Protección de los solicitantes de la condición de refugiado y de los refugiados en las américas (2011). 46   For example, AG/RES. 2578 (XL-O/10); AG/RES. 2716 (XLII-O/12); AG/ RES. 2716 (XLII-O/12); AG/RES. 2850 (XLIV-O/14), http://www.oas.org/es/sla/ resoluciones_asamblea_general.asp. 47   AG/RES. 774 (XV-O/85) Legal status of asylees, refugees, and displaced persons in the American hemisphere (1985), https://www.oas.org/dil/esp/ AG-RES_774_XV-O-85_spa.pdf. 48   General Assembly OEA, ‘Inter-American Program for the Promotion and Protection of the Human Rights of Migrants, Including Migrant Workers and Their Families’ (2005) AG/RES. 2141 (XXXV-O/05), https://www.oas.org/dil/ AG-RES_2141_XXV-O-95_eng.doc.

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Regional responses to climate change and migration  ­273 from the Department of Public Security and from the Committee on Hemispheric Security regarding human trafficking. In terms of disasters, the OAS acts through the work of the following institutions: the InterAmerican Committee on Natural Disaster Reduction (IACNDR); the joint Working Group of the Permanent Council on existing m ­ echanisms of prevention (PECCIDI); attention to disasters and humanitarian ­technical assistance, the Inter-American Network for Disaster Mitigation (INDM); the General Secretariat on Disaster Risk Management and the Inter-American Plan for Disaster Prevention and Response and the Coordination of Humanitarian Assistance. The Inter American Program for the Sustainable Development 2016–2021 adopts disaster risk ­management as a strategic area. Nevertheless, the plans and actions of these institutions are not coordinated. Reference to climate change and disasters as drivers of migration processes is generally lacking and human displacement induced by disasters are not addressed in DRM. Beyond the OAS, other regional and sub-regional organizations are also active on migration, DRM and climate change, but they have made little progress towards integrating these different policies. 2.  Southern Common Market: MERCOSUR In the MERCOSUR,49 Disaster Risk Management has emerged as a priority field with the creation of the Specialized Meeting on  SocioNatural  Disaster  Risk Reduction, Civil Defense, Civil Protection and Humanitarian Assistance (REHU) in 2009,50 the recognition of the principle of humanitarian asylum in the region,51 and an acknowledgement of the links between disasters and climate change in its Draft Declaration on Climate Change.52 An indication of clearer links between disaster policies and migration is the Humanitarian Cooperation Project developed by the Institute for Public Policy on Human Rights of   Member states: Argentina, Bolivia, Brazil, Paraguay, Uruguay and Venezuela. 50   MERCOSUR, ‘Reunión ordinaria de la reunión especializada de reducción de riesgos de desastres socionaturales, la defensa civil, la protección civil y la asistencia humanitaria (REHU)’ (2009) MERCOSUR/CMC/DEC. N° 03/09, http://www.mercosur.int/innovaportal/file/7394/1/dec_003-2009_es_creacionreunion-rehu.pdf. 51   MERCOSUR/REHU/ACTA N° 01/2013, http://www.mercosur.int/innova​ portal/v/629/3/innova.front/estrutura-institucional-do-mercosul, accessed 30 May 2016. 52   MERCOSUR/REHU/ACTA N° 2/2015; MERCOSUR/REHU/ACTA N° 3/2015, http://www.mercosur.int/innovaportal/v/629/3/innova.front/estrutura-ins​ titucional-do-mercosul, accessed 30 May 2016. 49

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274  Research handbook on climate change, migration and the law Mercosur (IPPDH).53 In 2015 REHU requested support from IPPDH on the dialogue about international humanitarian cooperation and exchange of experiences and good practices regarding human mobility and the rights of migrants.54 This project could become a platform for the development  of guidelines and recommendations on disasters, human mobility and human rights. The REHU was replaced in 2015 by the Meeting of Ministers and High Integral Management Authorities Disaster Risks (RMAGIR).55 This was followed in 2016 by joint work with IPPDH on the elaboration of a technical proposal of an interregional dialogue on the human rights of migrants.56 RMAGIR and the High Level Working Group for Comprehensive Management of Disaster Risk (GTANGRD) of the Union of South American Nations (UNASUR) held a joint meeting on the topic of the human rights of migrants – a relevant initiative for the construction of a regional dialogue.57 In terms of migration policies, the Specialized Forum on Migration of MERCOSUR (FEM) is responsible for the study of the migration impacts for the development of draft norms and agreements. Mercosur’s Migratory Principles, established in the Declaration of Santiago in 2004, emphasize the need to strengthen initiatives that facilitate and regulate migration flows between countries in the region.58 This forum would be adequate to analyse the impacts of climate change and disasters on human mobility and

  The Project develops actions on technical cooperation, based on the construction of specific methodologies and applied research on migration, stateless persons, refugees and victims of trafficking from the perspective of human rights and exchange of good practices among Member-States and associated States of Mercosur, http://www.ippdh.mercosur.int/el-proyecto-de-cooperacion-human​ itaria-internacional-para-migrantes-apatridas-refugiados-y-victimas-de-trata-depersonas/, accessed 30 May 2016. 54   MERCOSUR/REHU/ACTA N° 4/2015, http://www.mercosur.int/innova​ portal/v/629/3/innova.front/estrutura-institucional-do-mercosul, accessed 30 May 2016. 55   MERCOSUR, ‘Reunión de Ministros y Altas Autoridades de Gestión Integral de Riesgo de Desastres del Mercosur (RMAGIR)’ (2015) MERCOSUR/ CMC/DEC, 47/15, http://www.mercosur.int/innovaportal/file/7404/1/dec_0472015_pt_reunion-ministerial.pdf, accessed 30 May 2016. 56   MERCOSUR/RMAGIR/ACTA N° 01/2016, http://www.mercosur.int/in​ novaportal/v/629/3/innova.front/estrutura-institucional-do-mercosul, accessed 30 May 2016. 57   For more information about this meeting, see http://www.ippdh.mercosur. int/mercosur-y-unasur-buscan-aportar-soluciones-a-crisis-humanitaria/. 58   MERCOSUR, ‘Declaración de Santiago sobre Principios Migratorios’, http://www.acnur.org/t3/fileadmin/Documentos/BDL/2013/9083.pdf?view51. 53

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Regional responses to climate change and migration  ­275 normative proposals in this regard. Cooperation with RMAGIR would be strategic for the development of guidelines on m ­ igration induced by environmental factors. The Commission on Migration and Refuge of the Mercosur Social Summit held in 2012 a call to action for the MERCOSUR and UNASUR’s59 member states to recognize e­ nvironmental migrants and refugees, requesting the creation of a protocol for those who migrate for environmental reasons.60 3.  Union of South American Nations: UNASUR DRM, climate change and migration are priority areas of action in UNASUR. Its Constitutive Treaty adopts as an objective the c­ ooperation on disaster prevention and climate change in terms of migration and harmonization of policies, as well as the goal of building a South ­ American citizenship from the migratory dimension.61 A Working Group on South American Citizenship was created and this issue will be driven by UNASUR with the formulation of a Comprehensive Action Plan for the South American Citizenship.62 Among the strategic lines are the facilitation of migratory regularization, the abolishing of measures that hinder human mobility in the region and special attention to people in vulnerable ­condition.63 A South American citizenship could contribute to tackling the challenges raised by cross-border displacement situations and f­ acilitate acceptance among member states of people displaced by disasters and climate change. The High Level Working Group for Comprehensive

59   Organization created in 2008 by Argentina, Bolivia, Brazil, Chile, Colombia, Ecuador, Guyana, Paraguay, Peru, Suriname, Uruguay and Venezuela. 60   MERCOSUR, ‘Las Cumbres Sociales del Mercosur II: Declaraciones y Documentos de Trabajo’ (2015) 170, http://www.mercosur.int/innovaportal/ file/7117/1/las-cumbres-sociales-del-mercosur-ii-declaraciones-y-documentos-detrabajo.pdf. 61   UNASUR, ‘Decisión por la cual el Consejo de jefas y jefes de Estado y de Gobierno de la Unión de Naciones Suramericanas, decide iniciar el proceso de construcción de la ciudadanía suramericana, dando prioridad a la dimensión migratoria’ (2012) UNASUR/CJEG/DECISION/N°8/2012, http://sedici.unlp. edu.ar/bitstream/handle/10915/49248/Decisi%C3%B3n_n%C2%BA_8_2012._ Inicio_del_proceso_de_construcci%C3%B3n_de_la_ciudadan%C3%ADa_suram ericana__2_p._.pdf?sequence57, accessed 1 June 2016. 62   UNASUR, ‘Declaración de la Reunión Ordinaria del Consejo de Ministras y Ministros de Relaciones Exteriores de Unasur’ (2016), http://www.unas​ ursg.org/sites/default/files/DECLARACION%2023%20DE%20ABRIL%20 CANCILLERES%20%281%29.pdf. 63   Grupo de Trabajo sobre Ciudadanía Suramericana, ‘Informe Conceptual sobre Ciudadanía Suramericana’ (2014), http://www.amerindiaenlared.org/ download/6639/informe-conceptual-sobre-ciudadania-suramericana.

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276  Research handbook on climate change, migration and the law Disaster Risk Management (GTANGRD)64 promotes the mainstreaming of DRM considerations in other organs of UNASUR, which could lead to an integration of this dimension in migration policies. Its 2015–19 Action Plan aims to develop guidelines for public policies that raise awareness and promote consideration of social populations in situation of vulnerability in context of disasters, including migrants.65 UNASUR has developed a Manual for Cooperation for Joint Assistance against Disasters which fails however to mention displacement.66 4.  Andean Community67 The Andean Migratory Statute for the consolidation of the Andean and South American citizenship and the codification and development of the regional law in terms of circulation and residence is under development by CAN.68 The Andean Committee of Immigration Authorities (CAAM) and the Andean Migration Forum are the main bodies of the Community in the field of migration. CAN is also carrying out operations in relation to disasters through the Andean Committee for the Prevention and Attention of Disasters (CPARADE)69 and the Andean Strategy for the Prevention

  UNASUR, ‘Resolución por la cual el Consejo de Ministras y Ministros de Relaciones Exteriores de la Unión de Naciones Suramericanas resuelve crear el Grupo de Trabajo de Alto Nivel para la Gestión Integral del Riesgo de Desastres’ (2013) UNASUR/CMRE/RESOLUCION/N°4/2013, http://www.eird. org/wikiesp/images/RESOLUCION_GESTION_DE_RIESGOS_DESASTRES_ UNASUR.pdf. 65   UNASUR, ‘Resolución por la cual el Consejo de Ministras y Ministros de Relaciones Exteriores de la Unión de Naciones Suramericanas resuelve aprobar el Plan de Acción del Grupo de Trabajo de Alto Nivel para la Gestión Integral del Riesgo de Desastres (GTANGRD)’ (2015) UNASUR/CMRE/RESOLUCION N° 022/2015, http://www.itamaraty.gov.br/images/ed_integracao/docs_UNASUL/ Res22-2015.pdf. 66   UNASUR, ‘Resolución por la cual el Consejo de Ministras y Ministros de Relaciones Exteriores de la Unión de Naciones Suramericanas resuelve aprobar el Manual de Cooperación para Asistencia Mutua Frente a Desastres en Países Miembros de UNASUR’ (2015) UNASUR/CMRE/RESOLUCION N° 023/2015, http://www.itamaraty.gov.br/images/ed_integracao/docs_UNASUL/Res23-2015. pdf. 67   Member states: Bolivia, Colombia, Ecuador and Peru. 68   Information available from http://www.comunidadandina.org/Prensa.aspx ?id53705&accion5detalle&cat5AF&title5paises-de-la-comunidad-andina-avan​ zan-en-elaboracion-de-propuesta-de-estatuto-migratorio-andino. 69   Consejo Andino de Ministros de Relaciones Exteriores, ‘Decisión 529  – Creación del Comité Andino para la Prevención y Atención de Desastres CAPRADE’ (2002), http://www.ifrc.org/docs/idrl/N531ES.pdf. 64

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Regional responses to climate change and migration  ­277 and Attention of Disasters (EAPAD).70 The EAPAD, in particular, has a program that articulates actions on adaptation and mitigation to climate change and DRR, but does not consider the link with human mobility. 5.  Community of Latin American and Caribbean States The Community of Latin American and Caribbean States71 also adopts climate change, disasters and migration as priorities, as reflected in its 2016 Action Plan, in the Political Declaration of Quito and in the Special Declaration on the Migration in Latin America and the Caribbean,72 adopted at the IV CELAC Summit, without establishing a connection between the topics. The 2016 Action Plan calls for action on climate change, international humanitarian assistance in cases of disasters and migration.73 The Declaration of Quito is engaged to promote and protect the rights of people in situations of vulnerability, such as migrants, while also working towards the Sustainable Development Goals (SDGs) and enhancing regional cooperation to respond to the impacts of extreme events related to climate and disasters. CELAC recognizes the need to strengthen actions to increase climate resilience and respond to the impacts of disasters.74 6.  Pacific Alliance Climate change and migration integrate the agenda of the Alliance, but this agenda does not establish clear nexus between these issues.75 Both issues

  Consejo Andino de Ministros de Relaciones Exteriores, ‘Decisión 591 – Estrategia Andina para la Prevención y Atención de Desastres’ (2004), http://www. sice.oas.org/trade/junac/decisiones/Dec591_anx.pdf; Consejo Andino de Ministros de Relaciones Exteriores, ‘Decisión 713 – Estrategia Andina para la Prevención y Atención de Desastres’ (2009), http://www.preventionweb.net/files/12324_estrate​ giaandina.pdf. 71   Member states: Antigua and Barbuda, Argentina, Bahamas, Barbados, Belize, Bolivia, Brazil, Chile, Colombia, Costa Rica, Cuba, Dominica, Ecuador, El Salvador, Guatemala, Guyana, Honduras, Jamaica, Mexico, Nicaragua, Panama, Paraguay, Peru, Dominican Republic, St. Lucia, St. Kitts and Nevis, St. Vincent and Grenadines, Trinidad and Tobago, Uruguay and Venezuela. 72   CELAC, ‘Declaración Especial 9 Sobre la Protección de Migrantes en la América Latina y el Caribe’ (2016), http://celac.cubaminrex.cu/articulos/declara​ cion-especial-9-sobre-la-proteccion-de-migrantes-en-la-america-latina-y-el-caribe, accessed 2 June 2016. 73   CELAC, ‘Plan de Acción’ (2016), http://www.sela.org/media/2088262/ivcumbre-celac-plan-accion-2016.pdf. 74   CELAC, ‘Declaración Política de Quito – Mitad del Mundo’ (2016), http:// www.sela.org/media/2088261/iv-cumbre-celac-declaracion-politica.pdf. 75   The Pacific Alliance is a Latin America trade bloc. Member States: Chile, Colombia, Mexico and Peru. 70

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278  Research handbook on climate change, migration and the law were addressed separately, for instance, in a specific declaration on climate change of 201476 and in the Paracas Declaration of 2015.77 The Alliance also aims to facilitate transit migration and free transit of people.78 7.  Central America and Caribbean Organizations There are DRM’s policies and institutions, such as the Central American Policy for Integrated Risk Management  (PCGIR) adopted by the Central American Integration System (SICA),79 the Central American Coordination Center for Natural Disaster Prevention (CEPREDENAC), the Consultative Forum of the Central American Policy for Integrated Risk Management and the Regional Mechanism of Mutual Aid  in the Event of  Disasters  (MECREG). In the Caribbean, the Caribbean Disaster Emergency Management Agency (CDEMA) plays a similar role. The Central American Policy for Integrated Risk Management (PCGIR) is advocating for harmonization of policies and strategies on ­disasters, climate change and environment, and incorporation of risk m ­ anagement approach in the context of climate change. The relationship between migration, disasters and climate change was established in the Declaration of San Salvador adopted by the Third Regional Consultative Forum of the Central American Policy on Disaster Risk Integrated Management in 2015, foreseeing a coordinated or joint agenda on environment, climate change and risk management at the national level which would focus  on  public policies regarding humanitarian issues such as migration.80

  Alianza del Pacifico, ‘Declaración de los Presidentes de la Alianza del Pacifico en Materia de Cambio Climático en la COP 20 /CMP 10’ (2014), https:// alianzapacifico.net/declaracion-de-los-ministros-de-ambiente-de-la-alianza-delpacifico-hacia-una-plataforma-de-crecimiento-verde/. 77   Alianza del Pacifico, ‘Declaración de Paracas’ (2015), https://alianzapa​ cifico.net/?wpdmdl54078. 78   Information from https://alianzapacifico.net/temas-de-trabajo/, accessed on 1 June 2016. 79   Centro de Coordinación para la Prevención de los Desastres Naturales en América Central, ‘Política Centroamericana de Gestión Integral de Riesgo de Desastres’ (2011), http://conred.gob.gt/www/documentos/base_legal/PCGIR. pdf. 80   III Foro Consultivo Regional de la Política Centroamericana de Gestión Integral de Riesgo de Desastres (PCGIR), ‘Declaración de San Salvador’ (2015), http://www.ifrc.org/PageFiles/206538/Declaracion%20de%20San%20Salvador%20 %20III%20Foro%20Consultivo%20Regional%20de%20la%20Politica%20Cen​tro​ americana%20de%20Gestion%20Integral%20de.pdf. 76

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Regional responses to climate change and migration  ­279 8. Humanitarian assistance and DRM coordination in Latin America and the Caribbean In the field of humanitarian assistance, the VII Regional Meeting on International Humanitarian Assistance Mechanisms (MIAH) e­ ncourages governments to promote mechanisms for admission and protection ­refugees and people seeking asylum for humanitarian reasons and the ­protection of the human rights of migrants.81 Given the profusion of regional and sub-regional organizations that have specific DRM departments, the Forum for Coordination and Cooperation of Sub-regional Risk Management Mechanisms of the Americas was created to promote coordination, cooperation and unification of their performance. C. Protection of People Displaced by Disasters and the Refugee Definition in the Americas A broader question has been raised82 regarding cross-border displacement as a consequence of disasters in the Americas through an extension of refugee protection. The 1984 Cartagena Declaration on Refugees adopted one of the most extensive definitions of refugee in any international instrument to date.83 It provided protection to people forced to leave their country 81   VII Reunión Regional Sobre Mecanismos Internacionales de Asistencia Humanitaria en América Latina y el Caribe (MIAH), ‘Fortaleciendo la Agenda Humanitaria Internacional’ (2015), http://redhum.org/uploads/documentos/pdf/ Redhum-GT-DECLARACION-VII-MIAH-20150513-20150511-BE-16419.pdf. 82   See, for example: Vikram Kolmannskog and Lisetta Trebbi, ‘Climate Change, Natural Disasters and Displacement: A Multi-Track Approach to Filling the Protection Gaps’ (2010) 879 (92) International Review of the Red Cross 713, 719; David James Cantor, ‘Migrants and Natural Disasters: National Law, Policy and Practice in the Americas’ (2016) 2(2) Migration, Environment and Climate Change: IOM Policy Brief Series, 3; Nicolás Rodríguez Serna, Human Mobility in the Context of Natural Hazard-related Disasters in South America – Background Paper (The Nansen Initiative, 2015); David James Cantor, ‘Leyes, Políticas y Prácticas en Materia de Protección Temporal Humanitaria de Extranjeros en el Contexto de Desastres, Estados Miembros de la Conferencia Regional sobre Migración y Otros Estados de las Américas: Estudio de Antecedentes para el Taller Regional en Materia de Protección Temporal y/o Visa Humanitaria en Situaciones de Desastres (San José, Costa Rica, 10 y 11 de febrero, 2015)’ (2015). 83   ‘[P]ersons who have fled their country because their lives, safety or freedom have been threatened by generalized violence, foreign aggression, internal conflicts, massive violation of human rights or other circumstances which have seriously disturbed public order.’ Cartagena Declaration on Refugees (adopted by the ‘Colloquium on the International Protection of Refugees in Central America, Mexico and Panama’ held in Cartagena, Colombia, 19–22 November 1984). Argentina, Belize, Bolivia, Brazil, Chile, Colombia, Costa Rica, Ecuador, El

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280  Research handbook on climate change, migration and the law as a result of circumstances seriously disturbing public order – a situation which could hypothetically include disasters, ­especially when a disaster exacerbates situations of insecurity, human rights v­ iolations, d ­ iscrimination and persecution of ethnic or racial minorities and ­opponents, including in the access to humanitarian aid. Peru, Ecuador and Mexico applied the refugee definition of the Cartagena Declaration to recognize the refugee status to Haitians who left their country after the 2010 earthquake, given the increased political instability and insecurity caused by the disaster.84 However, the prevailing understanding is that this extended definition do not apply or it is not the most appropriate. American States prefer to use national migration law instead of the refugee law. The Summary of the Expert Meeting’s Conclusions on the interpretation of the extended refugee definition of the Cartagena Declaration85 considers that people displaced by disasters are not strictly protected by the refugee definition of the Cartagena Declaration, but States have the autonomy to decide to apply this definition to disaster victims. The i­ ndirect effects of the events that give rise to refugee status are considered by experts as integrating the concept of refugee. Some of these indirect effects referred to by the experts, such as food insecurity, economic ­deterioration and poverty and diseases, could emerge from disasters or climate change. There are some recommendations concerning the application of the refugee status in the context of disasters that can be considered in a Latin American context. The Effective Practices Guide that resulted from the Regional Workshop on Temporary Protection Status and/or Humanitarian Visas in Situations of Disaster mentions the use of refugees laws to solve questions of entry, deportation and permanence of migrants due to disasters.86 Also the Protection Agenda’s conclusions recommended the revision of asylum requests and the granting of the protection to people displaced in the context of disasters, possibly through regional governance.87 The Salvador, Guatemala, Honduras, Mexico, Nicaragua, Paraguay and Uruguay adopted the extended refugee definition of the Cartagena Declaration. 84  Serna, supra note 82; Juan Pablo Terminiello, ‘Los desastres naturales, el cambio climático y la protección de los derechos humanos: Realidades y desafíos frente al desplazamiento forzado’ in Martin Lettieri (ed.) Protección internacional de refugiados en el sur de Sudamérica (Universidad Nacional de Lanús 2012) 131; 161; David James Cantor, supra note 10. 85   Alto Comisionado de las Naciones Unidas para los Refugiados (ACNUR), ‘Resumen de las conclusiones sobre la interpretación de la definición ampliada de refugiado de la Declaración de Cartagena de 1984’ (2014), http://www.acnur.org/ t3/fileadmin/Documentos/BDL/2014/9651.pdf?view51. 86  Cantor, supra note 10. 87   The Nansen Initiative, supra note 5.

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Regional responses to climate change and migration  ­281 application of refugee status in the context of disasters in Latin America requires further discussion and clarification for the standardization of agreements and practices, considering the opportunity to develop these recommendations at the regional and national level.88

III.  NATIONAL RESPONSES In the absence of international and regional norms or guidelines to guide countries on the measures and procedures to be adopted concerning people displaced by disasters and climate change, many Latin American countries adopted national responses. Most of them integrate people displaced by disasters within pre-existing migration categories, such as humanitarian protection, refuge or complementary protection. These measures were recognized as good practices by the UNHCR.89 In particular, Argentina classified the victims of natural disasters as ­temporary residents under the ‘special’ subcategory. Temporary protection is established by Article 24(h) of Decree No 616 of 2010,90 which implements Law No 25.871 on migration, and applies to people who are ­ temporarily unable to return to their home countries due to the ­consequences of natural or environmental disasters of human origin. Cuba is one of the few countries to consider people displaced by natural disasters as refugees. Article 80 of the Regulation of the Migration Act, Decree No 26/78, amended by the Decree No 305 of 11 October 2012,91 includes within the sub-category of refugees persons who left their ­countries due to natural disasters and are in need of protection abroad.   The Protection Agenda was endorsed by 109 governmental delegations during a Global Consultation in 2015. As a follow-up and to implement the Protection Agenda, the Platform on Disaster Displacement was launched in May 2016 during the World Humanitarian Summit in Istanbul, Turkey. Brazil, Costa Rica and Mexico are among the Founding Members of this Platform. See more at http://disasterdisplacement.org/. 89   Alto Comisionado de las Naciones Unidas para los Refugiados (ACNUR), ‘Cuadro 40 Opciones migratorias para víctimas de desastres naturales y medioambientales’, http://www.acnur.org/t3/fileadmin/Documentos/Proteccion/Buenas_ Practicas/9264.pdf?view51. 90   Argentina Decreto n° 616/2010 de 6 de mayo de 2010. Reglamentación de la Ley de Migraciones n° 25 971 y sus modificaciones. Boletín Oficial n° 31.898, Primera Sección, 6 mayo 2010, http://www.migraciones.gov.ar/pdf_varios/residencias/Decreto_616_2010.pdf. 91   Cuba Decreto n° 26 Reglamento de la Ley de Migración actualizado, Gaceta Oficial Extraordinaria n° 41, 18 deciembre 2015, http://juriscuba.com/wp-content/ uploads/2015/12/Ley-migracion.reglamento-actualizada-2012.pdf. 88

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282  Research handbook on climate change, migration and the law Other States have included citizens from disaster-stricken countries in more general migrant categories permitting the grant of humanitarian visas. In Peru, Decree No. 1.236 of 2015 provides a humanitarian protection to individuals who have migrated due to disasters.92 Likewise, in Venezuela, humanitarian visas have been granted to Haitians since the earthquake that struck Haiti in 2010.93 The former president Hugo Chávez, as a matter of humanitarian aid, authorized the ­migratory regularization to Haitians in Venezuela by granting ‘social visas’.94 Other reference concerning the victims of disasters is Decree No. 8.00195 adopted in 2011 aims at the construction, habilitation, conditions, full attention and management of shelters to protect the population in cases of ­emergencies or disasters. Humanitarian visas were also granted by Brazil following the 2010 earthquake in Haiti. Law Nº 6.815 of 1980 defined the legal status of foreigners in Brazil without addressing humanitarian protection, but the National Immigration Council adopted the ‘Normative Resolution’ Nº 97 in 2012,96 amended by Normative Resolution Nº 102 in 2013,97 establishing the issuance of a five-year visa for humanitarian reasons. Resolution Nº 97

92   Peru Decreto Legislativo n° 1.236 de 2015. Article 59. Diario Oficial El Peruano, 26 septiembre 2015, http://www.acnur.org/t3/fileadmin/scripts/doc. php?file5t3/fileadmin/Documentos/BDL/2015/10203. 93   Information about humanitarian visas for Haitians in Venezuela are available in Patricia Weiss Fagen, ‘Receiving Haitian Migrants in the Context of the 2010 Earthquake – Discussion Paper’ (The Nansen Initiative, 2013). 94   This category of visas was supposedly based on the ‘Agreement in solidarity with the people and government of the Republic of Haiti following the earthquake that devastated the country’ adopted by the National Assembly in 25 January 2010. Venezuela Acuerdo en Solidaridad con el Pueblo y el Gobierno de la República de Haití Luego del Terremoto que devastó ese País. Gaceta Oficial de la República Bolivariana de Venezuela nº 39.347, 15 enero 2010. 95   Venezuela Decreto n° 8.001 de 18 de janeiro de 2011 Refúgios Dignos. Gaceta Oficial de la Republica Bolivariana de Venezuela n° 39 599, 21 enero 2011, http://mundotributariovzla.blogspot.fr/2011/01/publican-ley-de-refugios-dignosgo-nro.html. 96   Brazil Conselho Nacional de Imigração Resolução Normativa n° 97 (CNIg, 12 jan 2012) Diário Oficial da União, Seção 1, 13 janeiro 2013, http://acesso.mte. gov.br/data/files/FF8080814F05451F014F413CB5A61180/RN%2097%20-%20 consolidada%20pelas%20RNs%20102%20-%20106%20-%20113%20%20e%20 117.pdf. The validity of this Normative Resolution was constantly extended, the Normative Resolution n° 117 12 August 2015, extended the validity of the Normative Resolution n° 97 until 30 October 2016. 97   Brazil Conselho Nacional de Imigração Resolução Normativa n° 102 (CNIg, 26 abril 2013) Diário Oficial da União, Seção 1, 29 abril 2013, https://www. legisweb.com.br/legislacao/?id5253792.

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Regional responses to climate change and migration  ­283 considers as humanitarian grounds those resulting from the ­aggravation of life conditions of the Haitian population as a c­onsequence of the earthquake. At the start of 2016, it was estimated that a total of 58 000 Haitians in Brazil benefited from the humanitarian visa since the 2010 earthquake.98 The new Brazilian Migration Law – Law n. 13.445 of 2017  –, recently approved, provides, for example, in its article 14, third paragraph, the granting of temporary visa for humanitarian reception to the stateless person or national of any country in situation of calamity or ­environmental disaster.99 In the same way, Ecuador promoted a special regularization for Haitian victims of the 2010 earthquake based on Presidential Decree n. 248 of 2010.100 Article 2 of the Decree provides that Haitian citizens who entered Ecuador until 31 January 2010 could be granted with a non-immigrant visa valid for five years. Other countries in Latin America provide similar visa programmes on humanitarian grounds.101 Other Latin American States provide for the possibility of hosting for   Organization for Migration (OIM), ‘La OIM y el PNUD apoyan la consolidación de la política migratoria y de refúgio de Brasil’ (IOM, 2 February 2016), http://www.iom.int/es/news/la-oim-y-el-pnud-apoyan-la-consolidacion-de-la-polit​ ica-migratoria-y-de-refugio-de-brasil.  99   Brazil Lei n° 13.445 de 24 de maio de 2017. Diário Oficial da União, 25 de maio de 2017, http://www.planalto.gov.br/ccivil_03/_ato2015-2018/2017/lei/ L13445.htm, accessed 2 June 2017. 100   Ecuador Decreto Presidencial n° 248 de 9 de febrero de 2010, http://www. migrantsoutremer.org/IMG/pdf/decreto_248_2010-02-9_equateur.pdf. 101   Argentina Ley de Migraciones n° 25.871 de 17 de diciembre de 2003. Boletín Oficial n° 30 322, 21 enero 2004, http://www.migraciones.gov.ar/pdf_ varios/campana_grafica/pdf/Libro_Ley_25.871.pdf; Bolivia Ley de Migración n° 370 de 8 de mayo de 2013. Gaceta Oficial n° 0523, 8 mayo 2013, http://www.acnur. org/t3/fileadmin/scripts/doc.php?file5t3/fileadmin/Documentos/BDL/2014/9556; Costa Rica Ley General de Migración y Extranjería n° 8764 de 4 de agosto de 2009. La Gaceta n° 170, 1° setiembre 2009, http://www.acnur.org/t3/fileadmin/ scripts/doc.php?file5t3/fileadmin/Documentos/BDL/2009/7261; Honduras Ley de Migración y Extranjería Decreto n° 208-2003 de 3 de marzo de 2004. La Gaceta n° 30 331, 03 marzo 2004, http://www.acnur.org/t3/fileadmin/scripts/doc.php?file5t3/ fileadmin/Documentos/BDL/2004/2528; Jamaica Refugee Policy 11 March 2009, http://www.acnur.org/t3/fileadmin/scripts/doc.php?file5t3/fileadmin/Documentos/ BDL/2009/7277; Mexico Ley de Migración de 25 de mayo de 2011. Diario Oficial de la Federación, 25 mayo 2011, http://dof.gob.mx/nota_detalle.php?codigo55190 774&fecha525/05/2011; Panamá Decreto Ley n° 3 de 22 de febrero de 2008. Gaceta Oficial n° 25986, 26 febrero 2008, http://www.acnur.org/t3/fileadmin/scripts/doc. php?file5t3/fileadmin/Documentos/BDL/2008/6077; Uruguay Ley de Migración n° 18 250 de 06 de enero de 2008. Diario Oficial n° 27 407, 17 enero 2008, http:// www.acnur.org/t3/fileadmin/Documentos/Proteccion/Buenas_Practicas/9234. pdf?view51.  98

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284  Research handbook on climate change, migration and the law humanitarian reasons while not directly mentioning disasters, such as Argentina,102 Bolivia,103 Costa Rica,104 Honduras,105 Jamaica,106 Mexico,107 Panama108 and Uruguay.109 Bolivia is the only country of Latin America that treats migration specifically caused by climate change110 in two ways: (i) the protection of Bolivian citizens affected by climate change; (ii) the admission into Bolivia of persons displaced by climate change and disasters. Migration Law No 370 of May 8, 2013111 addresses migration due to climate change in Article 65,112 providing that: (i) the National Migratory Council must promote the adoption of international agreements and conventions on climate change   Argentina Ley de Migraciones n° 25.871, ibid.   Bolivia Ley de Migración n° 370 de 8 mayo 2013, supra note 101. 104   Costa Rica Ley General de Migración y Extranjería n° 8 764 de 4 de agosto 2009, supra note 101. La Gaceta n° 170, 1° setiembre 2009, supra note 101. 105   Honduras Ley de Migración y Extranjería Decreto n° 208-2003 de 3 de marzo 2004, supra note 101. La Gaceta n° 30 331, 03 marzo 2004, supra note 101. 106   Jamaica Refugee Policy 11 March 2009, supra note 101. 107   Mexico Ley de Migración de 25 de mayo de 2011. Diario Oficial de la Federación, 25 mayo 2011, http://dof.gob.mx/nota_detalle.php?codigo55190774 &fecha525/05/2011. 108   Panamá Decreto Ley n° 3 de 22 de febrero de 2008, supra note 101. Gaceta Oficial n° 25986, 26 febrero 2008, supra note 101. 109   Uruguay Ley de Migración n° 18.250 de 06 de enero de 2008. Diario Oficial n° 27.407, 17 enero 2008, http://www.acnur.org/t3/fileadmin/Documentos/ Proteccion/Buenas_Practicas/9234.pdf?view51. 110   Outside Latin America, two other countries adopted in their domestic ­migratory law provisions to grant subsidiary protection for environmental migrants providing this protection for those whom, ‘by reason of an environmental catastrophe, cannot return to his home country’. See: Swedish 2005 Aliens Act, SFS 2005:716, Ch. 4, s. 2, para. 3, http://www.sweden.gov.se/content/1/c6/06/61/22/ bfb61014.pdf; Finnish Aliens Act, 301/2004, s. 88a(1), http://www.finlex.fi/en/ laki/kaannok​set/2004/en20040301.pdf. Information available from: Benoît Mayer, International Law and Climate Migrants: a Human Rights Perspective (IDLO, 2011), http://cisdl.org/public/docs/legal/Mayer%20Benoit_International%20Law%20 and%20Climate%20Migrants.pdf. 111   Bolivia Ley de Migración n° 370 de 8 mayo 2013. Gaceta Oficial de Bolivia n° 523NEC, 8 mayo 2013, https://app.vlex.com/#undefined/sources/12034/ issues/2013-05-08, accessed 19 September 2016. 112   Ibid., art. 65: ‘(Migración por cambio climático). El Consejo Nacional de Migración promoverá la suscripción de convenios y acuerdos internacionales en temas de cambio climático y medioambiental con los diferentes Estados, para la protección de bolivianas y bolivianos afectados; asimismo, coordinará las políticas públicas que viabilicen, de ser necesario, la admisión de poblaciones desplazadas por efectos climáticos, cuando exista riesgo o amenaza a la vida, y sean por causas naturales o desastres medioambientales, nucleares, químicos o hambruna.’ 102 103

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Regional responses to climate change and migration  ­285 and environmental matters; (ii) the admission of displaced populations due to climate effects, in the case of risks or threats to life, or e­ nvironmental disasters in general. It also contains the definition of climate migrant, considered as: ‘groups of persons forced to move from one state to another due to climate effects, when there are risks or threats to life, whether by natural causes, environmental, nuclear or chemical disasters or famine’.113 Otherwise, Migration Law and its regulation (Supreme Decree Nº 1923 of March 13, 2014) do not specify the regime provided to climate migrants and the conditions to grant the status of climate migrant. These norms provide humanitarian visas, but the humanitarian reasons114 that enable this visa do not specifically address migration in the context of climate change and disasters. Beyond the visas, the norms also provide t­ emporary permanence of one year in Bolivian territory, extendable for similar periods, for the same humanitarian reasons of the humanitarian visa.115 However, a governmental informational guide116 about the Migration Law informs that the humanitarian temporary permanence is granted in cases of force majeure. The case described in this definition could apply to the situation of the climate migrants. Some countries have also advanced in terms of the recognition and protection to IDPs due to disasters. Peru, for instance, adopted the Law on Internal Displacement that, even though it omits displacement caused by disaster, foresees the possibility of including other causes of displacement beyond the explicitly mentioned. The Regulation of the Internally Displaced Law includes displacement and evacuation caused by natural or human-made disasters.117 In Mexico, the question was treated at the state level. Chiapas State   Bolivia Ley de Migración n° 370 de 8 mayo 2013, supra note 111, art. 4, 16.   As provided in art. 9º, d, of Supreme Decree nº 1923, humanitarian visas are granted for 30 days for the following humanitarian reasons: (i) need for international protection covered by the principle of non-refoulement; (ii) victims of trafficking of persons or other forms of exploitation; (iii) the companion of a sick person requiring medical treatment. Bolivia Decreto Supremo nº 1923 de 13 marzo 2014. 115   Ibid., art. 13, II, d. 116   Bolivia, Dirección General de Migración ‘Cartilla Informativa Ley nº 370 de Migración’, http://www.migracion.gob.bo/upload/cartillas/Cartilla_Ley.pdf, accessed 20 August 2016. 117   Peru Reglamento de la Ley sobre Desplazamientos Internos Decreto Supremo n° 004-2005-MIMDES de 23 febrero 2005. Diario Oficial El Peruano, 24 febrero 2005, http://www.acnur.org/t3/fileadmin/Documentos/BDL/2012/8853. pdf?view51; Ley sobre los Desplazamientos Internos n° 28.223 de 28 abril 2004. Diario Oficial El Peruano, 20 mayo 2004, http://www.mimp.gob.pe/files/direcci​ ones/dgpd/ddcp/normas/Ley_28223.pdf. 113 114

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286  Research handbook on climate change, migration and the law adopted in 2012 the Law for Prevention and Assistance to Internal Displacement and Guerrero State adopted in 2014 the Law for Prevention and Assistance to Internal Displacement.118 Both laws consider as IDPs or people group those who have been forced to abandon, escape or flee from their regular place of residence as a result of or to avoid the effects of natural and human induced catastrophes that do not overtake the ­territorial limits of the State. Despite the OAS resolutions on internal displacement that have systematically required the incorporation of the Guiding Principles on Internal Displacement from the UN in national level, there are very few initiatives in this direction. The mapping of national responses shows that, excepting Bolivia, there is no specific response to migration and displacement in the context of climate change and disasters that take into consideration the special needs of these categories. Most States adopt the humanitarian protection without recognizing a specific category of environmental/climate migrants. Even if there are efforts in pursuit of a legal solution to this issue, it is ­necessary the harmonization of these national initiatives and guidelines for the development of norms and policies to cope with environmental ­migration in the regional context.

IV. CONCLUSION Documents, policies and laws analysed indicate that there is a scenario to reinforce the link between climate change and human mobility and to adopt specific measures to recognize, protect and assist environmental migrants, based on some evidences. First, the recognition of the impacts of climate change and disasters on human mobility and the need of ­advancing and deepening this question. The institutional context r­ epresented by regional and sub-regional organizations in the continent, adopting climate change, disasters and migration as priority areas of action, and the p ­ resence of specific institutions and forums in these topics is a second evidence. Finally, ongoing projects could result in specific guidelines and action plans regarding migration in the context of climate change, disasters and humanitarian assistance.   Mexico Ley para la Prevención y Atención del Desplazamiento Interno en el Estado de Chiapas de 14 febrero 2012. Diario Oficial del Estado n° 355, 22 febrero 2012; Ley n° 487 para Prevenir y Atender el Desplazamiento Interno en el Estado de Guerrero de 3 julio 2014. Periódico Oficial del Gobierno del Estado n° 58, 22 julio 2014. 118

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Regional responses to climate change and migration  ­287 However, the absence of regional and sub-regional specific norms, formal recognition and action guidelines on environmental migration in Latin America still remains obstacles. Furthermore, the lack of c­ oherence, ­articulation and coordination between actions, policies and measures of a multiplicity of regional and sub-regional organizations in terms of climate change, migration and disasters could affect the efficiency of their initiatives in these matters. Existing plans and policies of disaster risk ­management and climate change, for example, do not integrate the impacts on human mobility, so as the prevention and management of cross-border displacement. Some measures could contribute to fill the gaps, reduce weaknesses and advance on the treatment of environmental migration in the continent, making use of the governance structures and the pre-existing norms. A better and larger integration between actions from different regional and sub-regional organizations in terms of climate change, disasters and migration, communication, coherence and coordination between policies and actions in these matters, which individually are already well advanced, but are not always articulated and synchronized, must be improved. This would allow the integration of migration in disaster-risk ­management and climate change policies and, at the same time, add the environmental dimension in migration policies. Another measure required is the adjustment of different initiatives and agreements that aim to ensure free human mobility between member states of regional and sub-regional organizations, and the development of sub-regional citizenship (Andean, South American) to facilitate human mobility in case of disaster and other impacts of climate change. Despite the existing legal practices at national level and initiatives to develop and improve the linkages between climate change, disasters and human mobility at regional and sub-regional level, the normative gap at the regional level remains. Practices and measures at both levels are complementary and could be harmonized and strengthened by a specific regional instrument which could establish minimum standards of protection for environmental migrants. To fill this gap, an effort to complement the regional framework is necessary, in order to integrate the recognition of the environmental ­ migrant status and establish clear procedures that allow its identification, host and protection, besides the cooperation and solidarity between states of origin, transit and destination of migrants in the region. To complete these measures, an adequacy of policies and migration agreements must be done to include, for example, migration as an adaptation strategy to climate change, ensuring the right to migrate in the face of threats and ­environmental risks.

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13.  Organizational perspectives: International Organization for Migration’s role and perspectives on climate change, migration and the law

Gervais Appave, Alice Sironi, Mariam Traore Chazalnoël, Dina Ionesco and Daria Mokhnacheva

INTRODUCTION In 1990, the initial Assessment Report of the Intergovernmental Panel on Climate Change warned the international community about the significant impacts climate change could have on the displacement of people.1 This publication brought what was a little known issue to the fore and since then, the legal, normative and operational questions around climate ­migration and displacement have been hotly debated. Two key questions have emerged. The first is about the appropriate terminology to be used to identify people forced to or deciding to migrate as a consequence of environmental and climate-change factors. The second is about the legal solutions that are available or that should be developed to protect these persons. In the absence of an international instrument clearly defining and naming the categories of persons affected by climate change, and specifying their protection needs, these two questions continue to be the subject of much controversy.2 The evolution of the debate on ­terminology is, in some ways, related as well to the progression of discussions around the possible added value of a specific Convention, which would cover migrants and displaced persons affected by climate change. The most recent developments on the use of terminology also reflect new approaches to the protection of persons migrating or displaced in the context of climate change.  1   W.J. McG. Tegart, G.W. Sheldon and D.C. Griffiths (eds.). Report prepared for Intergovernmental Panel on Climate Change (IPCC) by Working Group II, Impact Assessment (Australian Government Publishing Service 1990), 5–6, 5–7, 5–10, 5–11.  2  IOM, IOM Outlook on Migration, Environment and Climate Change (IOM 2014), http://publications.iom.int/system/files/pdf/mecc_outlook.pdf.

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Organizational perspectives  ­289 The International Organization for Migration (IOM), established in 1951, is a UN-related organization, mandated to deal with migration. IOM works to help ensure the orderly and humane management of ­migration, to promote international cooperation on migration issues, to assist in the search for practical solutions to migration problems and to provide humanitarian assistance to all migrants in need, including refugees and internally displaced people.3 IOM has been working on migration and displacement in connection with environmental and climatic changes since the early 1990s. It has established a comprehensive programme of work at the legal, policy, and operational levels.4 The extensive and comprehensive nature of IOM’s work on climate and environmental migration and displacement, spanning 25 years, has given IOM a global leading voice on policy and legal questions related to climate migration and displacement. IOM’s three institutional objectives are: (1) to prevent forms of forced migration linked to environmental and climate change; (2) to assist, protect and reduce vulnerabilities of migrants; and (3) to facilitate migration as an adaptation strategy. In carrying out activities aimed at achieving these objectives, the Organization supports both migrants and its Member States facing increasing challenges in developing solutions to climate migration and displacement, including in the search for appropriate legal solutions. The chapter is divided in three main parts, framed by an introduction and a conclusion. It first outlines the current state of discussions on terminology and explains how, in our analysis, they reflect changes in perspective on the protection of climate-change migrants. This section also explores the role played by IOM in this debate. The second section analyses the parallel unfolding of the discussions on the legal framework to protect those moving in the context of climate change. It highlights an emerging inclination to focus on ‘soft law’ rather than ‘hard law’. This has given rise to a number of State-led consensus-building initiatives that IOM has supported together with other partners. The chapter ends by framing IOM’s role and perspectives in responding to, but also in moving beyond, the legal debates around climate migration. It points to some of the recent

  IOM website, http://www.iom.int/about-iom, accessed 16 December 2016.   For a detailed historical outline of the development of climate migration work within IOM, refer to D. Ionesco and M. Traore Chazalnoël, ‘The Role of the International Organization for Migration in the International Governance of Environmental Migration’, in Kerstin Rosenow-Williams, François Gemenne (eds.), Organizational Perspectives on Environmental Migration (Routledge 2015), and D. Ionesco, ‘L’OIM et la gouvernance des migrations environnementales’, in Christel Cournil, Chloé Vlassopoulos (eds.), Mobilité humaine et environnement (Quæ 2015).  3  4

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290  Research handbook on climate change, migration and the law developments in the Organization’s place and role within the international community, and discusses the impact that these developments may have on the Organization’s work on migration and climate change.

I. THE TERMINOLOGICAL DEBATE AND IOM’S POSITIONING: CHOOSING THE RIGHT ARRAY OF TERMS TO REFLECT A COMPLEX REALITY The terms initially chosen to describe the increasing numbers of people fleeing coastal cities, islands and lands becoming uninhabitable or ­threatened by recurrent natural disasters and seeking refuge elsewhere, were somewhat alarmist in nature. Thus, the term that was first used to describe people escaping disasters, sea-level rise and coastal erosion was ‘environmental refugees’.5 While the expression was quickly picked up by the media and used to draw public attention to the issue, it clearly lacks any legal foundation for a number of reasons that have been largely discussed by both scholars and practitioners.6 Because of the attention given to climate change at the turn of the century and, especially, due to the activism of some Island States ­threatened by sea-level rise, the expression ‘climate refugees’ or ‘climate change refugees’ was common at some time.7 Since then, the ­association between the term ‘refugee’ and environmental causes has weakened, particularly after the United Nations High Commissioner for Refugees  5   According to Black, the term was first introduced by Lester Brown of the Worldwatch Institute in the 1970s. Richard Black, ‘Environmental Refugees: myth or reality?’, In New Issues in Refugee Research, Working Paper No. 34 (UNHCR 2001), http://www.unhcr.org/research/RESEARCH/3ae6a0d00.pdf. See also Essam El-Hinnawi, Environmental Refugees, United Nations Environmental Programme (UNEP 1985), 4; IPCC, Impact Assessment, 5–10 (footnote 1 above), quoting Jodi I. Jacobsen, ‘Abandoning Homelands’, in State of the World (Worldwatch Institute 1989); Sir Crispin Tickell, ‘Environmental Refugees’, National Environment Research Council Annual Lecture, at the Royal Society, London, UK (5 June 1989); Christine Debrah Lt. Col. (Ret’d), ‘Address to the Conference on Implications of Climate Change for Africa’, Howard University, Washington, DC, USA (5 May 1989).  6   M. Traore Chazalnoël and D. Mokhnacheva, ‘Environmental Migration: Human Rights and Legal Issues’ (Spring 2014), 14(3) Insights on Law & Society 26.  7   Bonnie Docherty and Tyler Giannini, ‘Confronting a Rising Tide: A Proposal for a Convention on Climate Change Refugees’ (2009) 33 Harv. Envtl. L. Rev. 349; A. Williams, ‘Turning the Tide: Recognizing Climate Change Refugees in International Law’ (2008), 30 L. & Pol’Y 502.

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Organizational perspectives  ­291 (UNHCR), the c­ ustodian of the Refugee Convention, moved to discourage its use to protect the term ‘refugee’ from dilution. The more general notion of displacement was offered instead to describe all forms of forced migration whether within a country or across international borders.8 This shift in terminology was supported by IOM. Today the term ‘climate refugee’ is used almost exclusively by the media and some civil society activists.9 Over time, it became clear that, in any case, the diversity of the types of movements occurring in the context of climate and e­nvironmental impacts could not be reduced to one single category. Drawing on new theories and research, IOM began to argue that not all climate- or ­environment-related movements can be considered as forced and that any legal approach needed to take that critical factor into account. Most of the movements happen in a continuum between fully forced and entirely voluntary ­migratory movements and, in practice, it is difficult to determine the exact level of ­compulsion or voluntariness in any given migration.10 Recognizing this continuum between forced and voluntary migration is critical. Intervention – whether normative or operational – aimed at protecting those affected by climate or environmental change (whether moving across or within national borders) must take account of the varying and complex legal, policy and practical implications which come into play at particular points along the forced-voluntary continuum. As early as 2007,11 IOM tried to capture these intricacies by d ­ eveloping a descriptive definition of ‘environmental migrants’. According to this definition, environmental migrants are considered as:

 António Guterres, ‘Statement for the Nansen Conference on Climate Change and Displacement’ (UNHCR, 6 June 2011), http://www.unhcr.org/admin/ hcspeeches/4def7ffb9/nansen-conference-climate-change-displacement-statementantonio-guterres.html.  9   Michelle Kuepper, ‘Are We Prepared For Climate Change Refugees?’ Discussion between Frank Biermann and Dawn Chatty, Huffington Post (US Edition, 19 April 2016), http://www.huffingtonpost.com/researchgate/are-we-prepared-forclima_b_9728044.html; Amy Lieberman, ‘Where will the climate refugees go?’, Al Jazeera (22 December 2015), http://www.aljazeera.com/indepth/features/2015/11/cli​ mate-refugees-151125093146088.html. Coral Davenport and Campbell Robertson, ‘Resettling the First American “Climate Refugees”’, New York Times (3 May 2016), http://www.nytimes.com/2016/05/03/us/resettling-the-first-american-climaterefugees.html?_r50. 10   IOM, ‘IOM Outlook on Migration, Environment and Climate Change’ (IOM 2014), http://publications.iom.int/system/files/pdf/mecc_outlook.pdf. 11   IOM Council (MC/INF/288) 2007 ‘Discussion Note: Migration and the Environment’.  8

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292  Research handbook on climate change, migration and the law Persons or groups of persons who, predominantly for reasons of sudden or progressive changes in the environment that adversely affect their lives or living conditions, are forced to leave their places of habitual residence, or choose to do so, either temporarily or permanently, and who move within their country or abroad.12

The purpose here is to look beyond the unproductive and factious search for a single all-encompassing label and to describe instead the complexity of the range of phenomena that can take place as a consequence of climate change and have an impact on human mobility. This definition draws on two decades of IOM’s programmes and projects supporting migrants and States caught in a changing climate and seeking to capture the wide variety of movements observed by the Organization in its operational work. This ‘descriptive’ definition has been widely used in the literature since its inception. However, it has not brought to an end efforts to classify and ­categorize those affected on the basis of their needs and vulnerabilities. Some authors have, for instance, attempted to create categories based on the perceived degree of compulsion with the intention of better targeting modes of assistance. Renaud and coauthors found justification for three broad categories: ●● ●●

●●

‘environmentally motivated migrants’, being those who may leave to pre-empt the worse; ‘environmentally forced migrants’ who are those who have to leave in order to avoid the worst, often on a permanent basis, but who may decide to leave or not or, at least, when to leave; and ‘environmental refugees’ who are essentially those who flee a suddenonset disaster.13

Based on this categorization, the authors attempted to define the type of assistance needed.14 Likewise, El-Hinnawi, in its early definition of the environmental refugee categories, focused not only on the voluntariness or forcefulness of the movement but also on its duration, which may require diametrically different responses.15 Some scholars16 and international   IOM 2014, footnote 10 above.   Fabrice Renaud, Janos J. Bogardi, Olivia Dun and Koko Warner, ‘Control, Adapt or Flee: How to face Environmental Migration’, Interdisciplinary Security Connections (Publication Series of the UNU-EHS No. 5, 2007). 14   Ibid., table 2, at 29. 15   Essam El-Hinnawi, Environmental Refugees (footnote 5 above), 4. 16   See Olivia Dun and François Gemenne, ‘Defining “environmental migration”’ (2008), FMR 31, at 10, http://www.fmreview.org/en/FMRpdfs/FMR31/10-11.pdf. 12 13

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Organizational perspectives  ­293 institutions17 have expressed a preference for a clear-cut dichotomy between environmental migrants and environmentally displaced persons. In the absence of a legal instrument to validate their use, these attempts to formulate an adequate terminological framework have not left a lasting imprint on the international debate. Two problems continue to bedevil the terminological debate: the i­ nability to deal satisfactorily with the ‘in-between’ situations where movement is neither clearly forced nor fully voluntary, and the difficulty of making the link between movement and the environment or the changing climate (which for the latter is in turn magnified by the additional challenge of linking the environmental factor to climate change). Terms assuming a strict causal relation such as ‘environmental’ or ‘climate-induced displacement’18 or ­‘climate-change induced displacement’19 have lost currency in recent years in favour of terms reflecting a weaker causal link such as ‘persons displaced in the context of climate change’,20 ‘climate change-related displacement and migration’,21 ‘climate migration’,22 or more recently, in the Paris Agreement, ‘displacement related to the adverse impact of climate change’.23 The variety of types of movement that can take place in the context of climate change was formally introduced in the Agreements adopted by  UNHCR, ‘Summary of Deliberations on Climate Change and Displacement’, Expert Consultation held in Bellaggio from 22 to 25 February 2011 (UNHCR April 2011), http://www.unhcr.org/4da2b5e19.pdf. 18   OHCHR, ‘Report of the Office of the United Nations High Commissioner for Human Rights on the relationship between climate change and human rights’, UN Doc. A/HRC/10/61 (15 January 2009). 19   UNFCCC, Conference of the Parties, ‘The Cancún Agreements: Outcome of the work of the Ad Hoc Working Group on Long-term Cooperative Action under the Convention’, Decision 1/CP.16 (15 March 2011), FCCC/CP/2010/7/ Add.1, para. 14 f. 20   Nansen Initiative, ‘Agenda for the protection of cross-border displaced persons in the context of disasters and climate change’, Final Draft (6 October 2015). 21   Advisory Group on Climate Change and Human Mobility, ‘Human Mobility in the Context of Climate Change UNFCCC’, Paris – COP 21 (November 2015), http://environmentalmigration.iom.int/sites/default/files/Research%20Database/ Paris_COP21-Human_Mobility-AdvisoryGroup.pdf; OHCHR, ‘Understanding Human Rights and Climate Change’, Submission of the OHCHR to the COP 21’ (26 November 2015), http://www.ohchr.org/Documents/Issues/ClimateChange/ COP21.pdf, at 3. 22   Mariam Traore Chazalnoël and Dina Ionesco, ‘Defining Climate Migrants – Beyond Semantics’ (IOM weblog, 6 June 2016), https://weblog.iom.int/ defining-climate-migrants-%E2%80%93-beyond-semantics. 23   UNFCCC, Conference of the Parties, 21 session, decision 1/CP.21 ‘Adoption of the Paris Agreement’ (12 December 2015), FCCC/CP/2015/L.9/Rev.1, para. 50. 17

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294  Research handbook on climate change, migration and the law the Conference of the Parties (COP) to the UN Framework Convention on Climate Change (UNFCCC). The Cancún Adaptation Framework referred to ‘climate change induced displacement, migration and planned relocation’.24 However, the three forms of movement were not reiterated in the Paris Agreement, which, in its Preamble, acknowledges the obligation for States to ‘respect, promote and consider their respective obligations’ related to the rights of ‘migrants’ ‘when taking action to address climate change’ and refers to ‘displacement’ of people in the Decision on the adoption of the Agreement.25 The Agreement makes no reference to planned relocation, an issue which is gaining momentum within the international community.26 IOM’s advocacy efforts were instrumental in bringing the migration terminology within the UNFCCC, at a time when such linkages were little recognized, notably through its awareness raising efforts and its technical submissions to the UNFCCC.27 In line with its mandate covering all forms of migration and with the aim of drawing attention to the wide range of migratory movements (from forced to voluntary and anything in between) taking place s­pecifically in the context of climate change, IOM has crafted a definition of ‘climate ­migration’, which largely reflects its definition of environmental ­migration.28 Climate migration is defined by the Organization as: 24   UNFCCC, Conference of the Parties, 16 session, ‘The Cancún Agreements’, Decision 1/CP.16 (footnote 19 above), FCCC/CP/2010/7/Add.1, para. 14 f. Specifically on planned relocation see also the recent Guidance on Protecting people from disasters and environmental change through planned relocation, ‘Guidance on Planned Relocation’ (Brookings, Georgetown University and UNHCR 7 October 2015), http://www.unhcr.org/protection/environment/562f798d9/plannedrelocation-guidance-october-2015.html. 25   UNFCCC, Conference of the Parties, 21 session, decision 1/CP.21 ‘Adoption of the Paris Agreement’ (12 December 2015), FCCC/CP/2015/L.9/Rev.1, para. 50. 26   Planned relocation is usually considered as placed along the continuum between forced and voluntary movements, given that people may freely choose to participate in a relocation programme, albeit relocation is usually explored as a last resort solution in the absence of any viable alternative. Nansen Initiative, ‘Agenda for the protection of cross-border displaced persons in the context of disasters and climate change’ (footnote 20 above), para. 21. See also the definition of planned relocation in Guidance on Protecting people from disasters and environmental change through planned relocation (footnote 24 above), at 5; and the definitions of ‘relocation’, ‘planned relocation’ and ‘force resettlement/relocation’ in IOM, ‘Glossary, Migration, Environment and Climate Change: Evidence for Policy’ (MECLEP, July 2014), https://publications.iom.int/system/files/pdf/ meclep_glossary_en.pdf. 27   A list of IOM’s technical submissions to the UNFCCC (from 2009 onwards) are available from https://environmentalmigration.iom.int/human-mobility-unfccc. 28  IOM, Glossary on Migration (IOM 2016).

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Organizational perspectives  ­295 The movement, within a State or across an international border, of a person or groups of persons, who are obliged to leave their habitual place of residence, or choose to do so, either temporarily or permanently, predominantly for reasons of sudden or progressive change in the environment due to climate change.29

This working definition draws on analytical and advocacy rationales, but is not meant to create new legal categories. It is rather aimed at ­reminding States, as well as all other actors concerned, of the various forms of movement associated to climate change. Its formulation also reflects an acknowledgement of the difficulty of establishing a direct causality link between climate change and the movement of people, which is why the adverb ‘predominantly’ is used. This complexity needs to be factored into any policy and legal solution aimed at regulating climate migration, notably those legal solutions seeking to provide protection to affected ­populations. It is important to note that both the ‘environmental ­migration’ and the ‘climate migration’ are working definitions that have also an advocacy objective: to attract attention to the importance of environmental and climate factors that have long been ignored. Indeed, the ‘environmental migration’ definition has been crafted to give visibility to migration in the context of e­ nvironmental change for COP15 in Copenhagen and the ‘climate migration’ definition was crafted in the context of COP21 in Paris. Both working definitions have been developed in relations to two major climate change-focused conferences to support advocacy work undertaken by IOM to integrate migration in climate change negotiations.

II.  THE QUEST FOR A LEGAL FRAMEWORK A.  From Legal Prescriptiveness to Consensus-building The variety of movements occurring in the context of climate change that has spurred the terminological debate also explains, at least in part, why the adoption of a specific legal instrument to address this issue at the universal level is not likely to become a reality in the near future, nor is it necessarily the most suitable solution.30 The debate over the best legal framework to address climate migration is even thornier than the terminological debate outlined in the previous section. Many proposals look specifically at an instrument to address the   Chazalnoël and Ionesco (footnote 22 above).   McAdam, ‘Swimming Against the Tide: Why a Climate Change Displacement Treaty is not the Answer’ (2011), 23(1) IJRL 2. 29 30

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296  Research handbook on climate change, migration and the law plight of those who are forced to move because of the impact of climate change. Within these proposals, some advocate an expansion of the scope of the refugee definition contained in the 1951 ‘Geneva’ Convention relating to the status of refugees. However, it has been argued persuasively that it is impracticable to adapt the Convention to address displacement caused by climate change.31 UNHCR along with many other actors, including IOM, has also expressed concerns about the risk of diluting the protection afforded by the Refugee Convention.32 The proposal of annexing a Protocol to the Convention has not been received with much favour either.33 Some authors have chosen instead to explore the possibility of housing the protection of people displaced by climate change within the UNFCCC.34 Proposals for a sui generis instrument addressing forced movements within States or across borders have yet to be followed by a concrete engagement by States.35 One proposal even attempts to define an innovative governance and financial mechanism to implement the instrument.36 These proposals seek to build on principles derived from human rights, refugee, and humanitarian and environmental law regimes.37 All the proposals promoting the adoption of an instrument to protect those moving in the context of climate change have not gathered much momentum so far, mainly because of States’ lack of political will to adopt a new binding document, at least at global level, in an area which combines two very sensitive issues: migration and climate change. Furthermore, a new Convention to protect people moving in the context of climate change would require defining its personal scope of application: who would be considered as a climate migrant or climate-displaced person and who would benefit from the Convention’s protection? The boundaries of the phenomenon of climate migration are blurred.

  See the relevant references on the doctrinal debate above (footnote 4 above). 32   Discussion Forum on Climate Change (Berlin, 17 June 2014); Remarks by Volker Türk, Director of International Protection, UNHCR, Geneva. 33   D. Hodgkinson et al., ‘Towards a Convention for Persons Displaced by Climate Change Key Issues and Preliminary Responses’ (2008) 8 New Critics. 34   Frank Biermann and Ingrid Boas, ‘Preparing for a Warmer World: Towards a Global Governance System to Protect Climate Refugees’ (2010) 10(1) Global Environmental Politics 60, 76–8. 35   Docherty and Giannini (footnote 7 above); Biermann and Boas ibid.; Michel Prieur  et al., ‘Projet de Convention relative au statut international des déplacés environnementaux’ (2008), 39 RDUS 9, 451. 36   Biermann and Boas footnote 34 above, 79. 37   See in particular the contribution of Frank Biermann and Ingrid Boas in Chapter 19 of this volume. 31

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Organizational perspectives  ­297 The difficulty of agreeing on the definition of a specific legal category is compounded by a number of complexities that have already been mentioned above (such as multi-causality of migration, difficulty in establishing the causal link between climate change and the movement, great variety in the types of movements that would need to be captured, etc.). Definitions establishing new legal categories can be double-edged swords. A new binding instrument addressing climate migration would need, inevitably, to define who falls within its scope of application and who is excluded – this is especially problematic considering the difficulty of establishing whether the migratory movement is forced or voluntary. Some have even argued that a group specific protection for environmental migrants would risk weakening the protection provided to migrants who move for reasons not related to the environment or to those who do not move.38 However, the opposite argument could, in our view, also be valid. One could argue that the articulation of a specific protection for the broad category of environmental migrants, whose movements may happen in a great variety of situations and contexts, could help advance the interpretation of States’ protection obligations for migrants in general. This argument is also supported by the consideration that, generally, human rights group-specific conventions, mainly do not add new obligations onto States but help tailor the scope of the obligations that States already have under general human rights conventions towards specific categories of people. The history of the 1951 Refugee Convention also shows how definitions sometimes fail to adapt to new realities, and how they risk becoming quickly too narrow to protect new groups of people who find themselves in situations that are nonetheless comparable. An additional risk is that, in the absence of a sufficient State impetus, at least at the universal level, any new convention would end up being poorly ratified and would not play any significant role in achieving migrants’ protection.39 The debate over a new legal instrument is overwhelmingly focused on forced movements due to climate change. Such a narrow focus is clearly too limited to respond to a far more complex reality. Some authors have warned against this partial approach when looking for effective legal

38   B. Mayer and C. Cournil, ‘Climate Change, Migration and Human Rights: Towards a Group-Specific Protection?’ in Ottavio Quirico and Mouloud Boumghar (eds.),  Climate Change and Human Rights: An International Law Perspective (Routledge, 2015), 173–88, 186. 39   An example is the International Convention on the Right of All Migrant Workers and the Members of Their Families, adopted in 1990 and which, at the time of writing, has only been ratified by 49 States. See also McAdam (footnote 30 above), 15–18.

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298  Research handbook on climate change, migration and the law solutions.40 There has also been a tendency, particularly among ‘climate refugee’ proponents, to address the needs of affected populations from a charitable perspective. Climate refugees are often depicted as seeking help and assistance, as opposed to being considered as key actors capable of agency, able to work towards the most adapted durable solutions. The broader policy debate shows a more comprehensive understanding of the phenomenon,41 which could inspire the formulation of effective legal solutions. There is no doubt that migration should be a choice and all forms of forced movements should be avoided as much as possible, unless moving out of harm is the only way to ensure peoples’ safety. In cases where displacement is inevitable, displaced persons should be protected in all phases of the movement until a durable solution is achieved. In ­designing relevant policies, States should consider that with early planning and preparation, forced movements can be either minimized or assisted with a view to ensuring that they take place in the best conditions.42 In the context of disasters, including those due to climate change, well-planned evacuations can be life-saving, last for the limited period required for the evacuees to return home safely, and have only a marginal impact on people’s livelihood and well-being.43 Additionally, it would also be i­mportant to consider that the facilitation of pre-emptive movements, notably through labour migration schemes, along normal or newly created migration routes, within a country or across borders, can also have the positive effect of expediting access to new forms of livelihood for the migrants and their households, while also decreasing the pressure on already overstretched resources.44 Some of the recent legal developments outlined in the previous section show an increasing awareness in international fora of the various forms of migration taking place in the context of climate change. It has been remarked above that the Cancún Adaptation Framework acknowledges   Ibid., 8 and 13–15.   Cecilia Tacoli, ‘Crisis or Adaptation? Migration and Climate Change in a Context of High Mobility’ (2009) 21(2) Environment and Urbanization 513. 42   ‘Guidance on Planned Relocation’ (footnote 24 above). 43   For some guidance on well-planned evacuation see the CCCM Cluster, ‘The MEND Guide: Comprehensive Guide for Planning Mass Evacuations in Natural Disasters’, Pilot document (2015), http://www.globalcccmcluster.org/system/files/ publications/MEND_download.pdf>. The Guide will also include an annex providing guidance to States on what to include in a sound legislation on addressing evacuations in the context of disasters. 44   D. Ionesco and M. Traore Chazalnoël, ‘Migration as an Adaptation Strategy to Climate Change’ https://weblog.iom.int/migration-adaptation-strat​ egy-cli​mate-change. 40 41

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Organizational perspectives  ­299 various forms of human mobility (not only displacement, but also m ­ igration and planned relocation), which should be factored into better coordinated national, regional and international responses to climate change.45 Some states have even started to refer to various forms of human mobility in their national adaptation plans, including those developed independently from the UNFCCC.46 In other cases, they have included references to various forms of movements in their Intended Nationally Determined Contributions to the UNFCCC,47 reflecting increasing national interest in tackling questions related to climate migration in general. Even though states are increasingly conscious of the importance of addressing climate migration, they are still generally reluctant to be bound by new international obligations in this area. Yet, they seem better disposed to engage in consensus-building approaches. Although not ­ ­formally binding, such approaches have often proven capable of p ­ roviding policy guidance to states and, through exchanges of experience, have ­contributed to distill and disseminate positive practices. Contours of ‘soft law’ can emerge from such processes. A number of state-led initiatives have been launched with the specific intention of building consensus among states on the best practices that can be adopted to address the issue of climate migration rather than ­prescribing obligations for states. The Nansen Initiative, which was created and led by the Governments of Norway and Switzerland, in October 2012, following a three-year consultative process, adopted an ‘Agenda for the Protection of Cross-border Displaced Persons in the Context of Disasters and Climate Change’.48 Despite the narrow title, the Agenda is quite comprehensive and addresses the protection of persons displaced both across borders and internally (parts three and four of the Agenda), as well the various measures that can be adopted to avoid displacement (disasterrisk reduction, climate-change adaptation and facilitation of voluntary migration – part two of the Agenda). IOM supported the work of the Initiative throughout its three years, as a Standing invitee on the Steering Group and as a member of the Consultative Committee, contributing to all Regional consultations, civil society consultation, expert groups and research undertaken by the Initiative. The Nansen Initiative’s follow up,   See footnote 24 above.   See generally D. Ionesco, D. Mokhnacheva, F. Gemenne, ‘Atlas des ­migrations environnementales’ (Presses de Sciences Po 2016). 47   M. Traore Chazalnoël and E. Mach, ‘Migration in INDCs/NDCs’ (IOM, Environmental Migration Portal 2016), https://environmentalmigration.iom.int/ migration-indcsndcs. 48   See footnote 20 above. 45 46

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300  Research handbook on climate change, migration and the law the Platform on Disaster Displacement, established in July 2016, focuses on the ­implementation of the Protection Agenda. The Government of Germany, Chair of the Platform on Disaster Displacement, has formally requested that IOM support the work of the platform through activities aimed at implementing the Protection Agenda.49 Another recent state-led process, the Migrants in Countries in Crisis Initiative (MICIC Initiative) – for which IOM served as Secretariat – has developed a set of principles, guidelines, and practices for states and other stakeholders aimed at improving the protection afforded to migrants when they are in a foreign country that experiences a conflict or a natural ­disaster. While the Guidelines to Protect Migrants in Countries Experiencing Conflict or Natural Disaster (MICIC Initiative Guidelines) do not explicitly refer to climate change, natural disasters include those disasters influenced by the effects of the changing climate.50 Following the launch of its guidelines in June 2016, the Initiative entered a new phase focusing on dissemination and implementation to promote the use of the Guidelines at local, national, and regional levels.51 Another interesting initiative, bringing human rights into climate change discussions was the signature in 2015 of the Geneva Pledge on Human Rights and Climate Action52 by 18 states, after the Climate Justice Dialogue was hosted by OHCHR and The Mary Robinson Foundation – Climate Justice. The pledge is a voluntary initiative undertaken by c­ountries to facilitate the sharing of best practice and knowledge between human rights and climate experts at a national level. Displacement has been discussed in the margins of the Pledge without being directly included in the Pledge’s main text.53   For more on IOM’s role within the Platform on Disaster Displacement see Part III.B.iv below. 50   ‘MICIC Initiative Guidelines to Protect Migrants in Countries Experiencing Conflict or Natural Disaster’ (June 2016), https://micicinitiative.iom.int/. 51   For more on the MICIC implementation phase see Part III.B.iv below. 52   ‘Geneva Pledge on Human Rights and Climate Action’ (Mary Robinson Foundation, Climate Justice, 15 February 2015), http://www.mrfcj.org/resources/ geneva-pledge-human-rights/. 53   http://www.ohchr.org/EN/Issues/HRAndClimateChange/Pages/Clim​a​te​ Change.aspx, accessed 16 December 2016. See also the discussion paper prepared by Mary Robinson Foundation – Climate Justice in consultation with the core drafting group, Discussion Paper on Human rights, migration, and displacement related to the adverse impacts of climate change (30 September 2016), http://www.ohchr.org/ Documents/Issues/ClimateChange/EM2016/HumanRightsMigra​tionDisplacement. pdf, accessed 16 December 2016. See also the Summary of Recommended Actions on Human Rights and Climate Change from OHCHR Expert Meeting of 6–7 October (OHCHR, 2016). 49

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Organizational perspectives  ­301 At the level of the civil society, Displacement Solution (a non-profit international initiative) developed the Peninsula Principles on climate displacement within states through a consultative process with a number of actors concerned with these issues.54 These principles propose an innovative approach as they look at a broader time-frame, defining the best policy solutions that should be adopted to prevent displacement in the longer term or to plan relocation of part of the population when it is the last resort. The text also fully recognizes the active role that the populations concerned should play (Principle 10). The principles build upon the Guiding Principles on Internal Displacement and adapt them to the specific situations arising in the context of climate change displacement. Although the process of adoption of the Peninsula principles was not led by State actors, the ­principles have already been informally endorsed by a number of states.55 The principles distilled in the context of these various initiatives rely upon relevant international law standards that are binding upon states. These standards are enshrined in a number of legal regimes, encompassing humanitarian and refugee law, environmental and climate change law, the emerging regime of disaster response law, and most of all human rights law. The above-mentioned instruments can thus provide some guidance on how to interpret and implement hard-law obligations set by the relevant treaties when States have to tackle climate migration. B. The Role of the Human Rights Bodies at Universal and Regional Levels Considering the large variety of situations in which people move in the context of a changing climate, human rights law, due to its all-inclusive approach, is certainly a framework which is particularly well-adapted to deal with the issue of climate change migration. Furthermore, a­ pproaching this issue from a human rights perspective allows putting the situation and needs of the climate change migrants, irrespective of the type of m ­ ovement or of the various causes that have spurred the decision to move, at the centre of our concerns.

54   Displacement Solutions, ‘The Peninsula Principles on Climate Displacement Within States’ (19 August 2013), http://displacementsolutions.org/peninsula-prin​ ciples/. The principles are only applicable to internal movements, which will represent the most significant share of people moving in the context of climate change. 55   The principles were presented at an event held in Victoria, Australia, in 2013, in which the following States took part: Australia, New Zealand, Bangladesh, the Netherlands, Switzerland, the United Kingdom, Germany, Egypt, Tunisia and the United States.

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302  Research handbook on climate change, migration and the law Lastly, looking at the issue through the lens of human rights law can ensure that a fair balance is struck among the many competing interests at stake. For example, in many cases disasters or high levels of ­environmental degradation, caused by climate change, will have a greater impact on ­populations that are unable to move than on those who have the means and resources to leave. In addition, the rights of those who move would also have to be balanced against the interests of the communities of origin as well as of destination. The balancing of rights based on the level of individual vulnerability as well as the consideration of the general interests of the population is a key feature of the human rights protection system and a routine task for those called upon to verify the application of these rights (domestic or international judicial or quasijudicial bodies). Therefore, the important role that the initiatives mentioned in the ­previous section are playing in guiding states to adopt the best policy solutions should be completed by a long-term interpretative effort by UN human rights bodies, both treaty bodies and special procedures.56 While the Special Rapporteurs on the human rights of migrants, on the rights of internally displaced persons and on human rights and the environment have been quite active on this issue from the perspective of their respective mandates,57 there is scope for the Human Rights Treaty Bodies to develop   The important role that human rights can play to address climate migration is increasingly acknowledged in relevant international fora. OHCHR hosted an expert meeting on human rights and climate change one of the session of which was consecrated to climate migration and displacement, http://www.ohchr.org/EN/Issues/ HRAndClimateChange/Pages/ClimateChange.aspx, accessed 16 December 2016. See also the discussion paper prepared by Mary Robinson Foundation – Climate Justice in consultation with the core drafting group, Discussion Paper on Human rights, migration, and displacement related to the adverse impacts of climate change (30 September 2016), http://www.ohchr.org/Documents/Issues/ClimateChange/ EM2016/HumanRightsMigrationDisplacement.pdf, accessed 16 December 2016. At the time of writing, the governments of Bangladesh, Philippines and Viet Nam are proposing to the Human Rights Council (at its 35th session) the adoption of a resolution on Climate Change and Human Rights. 57   François Crépeau, ‘Report by the Special Rapporteur on the human rights of migrants: Climate change and migration’ (13 August 2012), UN Doc. A/67/299; Chaloka Beyani, ‘Report by the Special Rapporteur on the rights of internally displaced persons: Climate change and internal displacement’ (9 August 2011), UN Doc. A/66/285; John Knox, ‘Report of the Special Rapporteur on the issue of human rights obligations relating to the enjoyment of a safe, clean, healthy and sustainable environment: Climate change’ (1 February 2016), UN Doc. A/ HRC/31/52, para. 28. See also Raquel Rolnik, ‘Report on the Special Rapporteur on adequate housing as a component of the right to an adequate standard of living’ (9 August 2010), UN Doc. A/65/261, paras 22–28. 56

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Organizational perspectives  ­303 further their jurisprudence on how human rights obligations apply to climate migration. In a few cases the Committees have already addressed displacement due to various environmental hazards. The Committee on the Elimination of Discrimination Against Women, in 2009, recommended that the Government of Tuvalu ‘develop disaster management and mitigation plans in response to the potential displacement and/or statelessness arising from environmental and climatic change’.58 The same recommendation was also reiterated in its more recent concluding observations, where the Committee also expressed concerns about the increasing number of Tuvaluan citizens emigrating to neighbouring countries.59 Likewise, the Committee on the Elimination of Racial Discrimination encouraged the US Government to increase its ‘efforts in order to facilitate the return of persons displaced by Hurricane Katrina to their homes, if feasible, or to guarantee access to adequate and affordable housing, where possible in their place of habitual residence’. It further suggested ‘to ensure genuine consultation and participation of persons displaced [. . .] in the design and implementation of all decisions affecting them’.60 The Committee on the Rights of the Child (CRC) also made specific recommendations to the Nigerian authorities to address children displaced due to various causes, including floods, which in Nigeria seems at least to some extent to be attributable to climate change.61 The Committee recommended to the Government to adopt a comprehensive national policy on IDPs which should, inter alia, identify ‘the agency responsible for the ­registration, monitoring and protection of IDPs, including children’.62 In addition, regional human rights courts can contribute to ­advancing the understanding of the obligations that states have under relevant ­conventions. Although the Budayeva case was not necessarily related to

58   Committee on the Elimination of Discrimination against Women (CEDAW), ‘Concluding Observations Tuvalu’ (7 August 2009) UN Doc CEDAW/C/TUV/ CO/2, paras 55–56. 59   CEDAW, ‘Concluding Observations: Tuvalu’ (11 March 2015) UN Doc CEDAW/C/TUV/CO/3-4, paras 31 (a) and 32 (a). 60   UN Committee on the Elimination of Racial Discrimination, ‘Concluding observations: United States of America’, 8 May 2008, UN Doc. CERD/C/USA/ CO/6 (2008), para. 31. 61   It is the case for example for the intensification of the recurrent flooding of the Niger Delta region, see Luke Amadi, C. U. Mac Ogonor, ‘Climate change, environmental security and displacement in Nigeria: Experience from the Niger Delta Flood Disaster, 2012’ (2015) 9(1) Afr. J. Environ. Sci. Technol, 53–64. 62   CRC, ‘Concluding Observations: Nigeria’ (21 June 2010), UN Doc CRC/C/ NGA/CO/3-4, paras 75 and 76 (a).

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304  Research handbook on climate change, migration and the law a hazard caused by climate change, its treatment by the European Court of Human Rights helped to elucidate the positive obligations of States with regard to individuals affected by a disaster.63 The case concerned a mudslide that hit the town of Tyrnauz in Russia, in July 2000, resulting in ­population displacement and in a number of casualties. According to the Court, States are responsible for protecting the right to life and p ­ reventing the risk of casualties deriving from disasters, inter alia through the ­establishment of regulatory frameworks, land-planning policies, s­pecific safety measures, information to persons at risk, but equally through advanced ­ arrangements for emergency evacuations and early warning systems.64 A few decisions of the European Court of Human Rights have dealt with States’ obligation to relocate65 persons affected by environmental degradation as a measure of last resort.66 Decisions on indigenous people in the context of the Inter-American Court of Human Rights and the African Commission on Human and Peoples’ Rights have also addressed the issue of displacement in the context of man-made e­nvironmental ­degradation, highlighting the impact of displacement on peoples who have a particular attachment to their ancestral lands.67 63   Budayeva and Others v Russia App. no. 15339/02 (ECtHR 20 March 2008), paras 129, 131, 156. See also Kolyadenko & Others v Russia App. nos 17423/05 and others (ECtHR 28 February 2012), para. 187. See also Council of Europe, Manual on Human Rights and the Environment (Council of Europe Publishing 2012), 37. 64   Budayeva and Others v Russia, ibid., paras 147–160. 65   The term used by the court here is resettlement, however the term that seems to be emerging in other international fora is ‘relocation’, UNHCR and Georgetown University, Guidance on Protecting People from Disasters and Environmental Change Through Planned Relocation (Brookings, 2015) where planned relocation is defined as:

a planned process in which persons or groups of persons move or are assisted to move away from their homes or places of temporary residence, are settled in a new location, and provided with the conditions for rebuilding their lives. Planned Relocation is carried out under the authority of the State, takes place within national borders, and is undertaken to protect people from risks and impacts related to disasters and environmental change, including the effects of climate change. Such Planned Relocation may be carried out at the individual, household, and/or community levels.   See for instance Fadeyeva v Russia App. no. 55723/00 (ECtHR 9 June 2005) paras 122, 123; Dubetska & Others v Ukraine App. no. 30499/03 (ECtHR 11 February 2001) para. 155. 67   On the link between displacement and human rights violations, see, in particular, the concurring opinion of Judge A.A. Cançado Trindade under the Sawoyamaxa case, Sawoyamaxa Indigenous Community v Paraguay, Series C No 146 (IACHR 29 March 2006), paras 161–166. See also the SERAC case outlining 66

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Organizational perspectives  ­305 In the absence of an international convention addressing the protection of persons from the negative effects of climate change, universal human rights bodies and regional courts can certainly play a role in clarifying which general human rights are the most relevant in this context and what the exact scope of these rights is, from both a substantial and a procedural viewpoint. Conversely, the role that UN treaty bodies and regional human rights courts can play in elucidating the content of States obligations (i.e., of the specific measures States are required to adopt to ensure the respect and protection of these rights) is likely to be more limited. Given the highly technical nature of environmental issues, and even more so of climate change, human rights bodies have constantly allowed a wide margin of appreciation to States in this area.68 Consequently, they tend to leave to States the choice of the best policy solutions or regulatory frameworks to be adopted. The courts’ or quasi-judicial bodies’ review in such cases will be limited to verifying whether the measures adopted by the respondent State were appropriate to avert the risk of violations of rights. The more serious the violation (i.e., it involves a threat to life), the more thorough will be the review.69 The development of human rights jurisprudence and initiatives that are more based on ­consensus ­building approaches or are aimed at collecting and disseminating good ­practices are then complementary tools that should be taken into account by international organizations, such as IOM, which are called upon to assist States to cope with the challenge of addressing climate migration.

III.  IOM’S ROLE AND PERSPECTIVES The provision of a broader support to States in developing nationally appropriate policy and legal solutions to climate migration is crucial to

an obligation to provide resettlement assistance to victims, Social and Economic Rights Action Centre (SERAC) and the Center for Economic and Social Rights v Nigeria Comm. No. 155/96 (ACHPR 27 October 2001). 68   For example, Dubetska and others v Ukraine App no 30499/03 (ECtHR, 10 February 2011), para. 141. For relevant literature see, ex multis, Hana Müllerová, ‘Environment Playing Short-handed: Margin of Appreciation in Environmental Jurisprudence of the European Court of Human Rights’ (2015), 24(1) RECIEL 83. On the use of the margin of appreciation in the human rights case-law, Andrew Legg, The Margin of Appreciation in International Human Rights Law (Oxford University Press, 2012). 69   Council of Europe, Manual on Human Rights and The Environment (first published 2006, Council of Europe Publisher 2012). See also Alice Sironi, ‘A Legal Appraisal of the Migration, Environment, and Climate Change Nexus’, IML Series (IOM 2016).

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306  Research handbook on climate change, migration and the law moving beyond – and moving along – the terminology and legal debates. Regardless of which appellation they are labelled under, persons forced to or deciding to migrate because of climate change need protection and assistance now – the international community cannot wait for the legal and semantic issues to be settled before taking action. The multiplication of soft law instruments and initiatives for exchanging and disseminating good practices is an indication that States are eager to receive more guidance in developing and applying regulatory frameworks on these complex and technical issues. Analysing how environmental migration and related terminology and legal issues have been incorporated into IOM’s own institutional strategy and structure provides useful insights on how the international community has viewed this topic throughout the years. A.  IOM Institutional Developments Reflecting Emerging State Priorities Initially, the environmental drivers were almost absent or rather invisible in the institutional research, publications, policy dialogue and operations until the early 90s. The increase in focus on these factors is related to IOM’s Member States’ interest in the topic and their requests to IOM to enhance visibility and expertise on this subject in line with IOM’s mandate on ­providing a forum for dialogue on emerging migration issues. Natural ­disasters and environmental degradation, as well as the impacts of ­migration on the environment, started to be formally discussed and included in activities at the beginning of the years 2000, pushed on also by the importance of displacement due to natural disasters. Subsequently, since 2007, IOM Member States have regularly asked to be updated on developments on migration, environment, climate change and natural ­disasters.70 Views and analysis on the terminology, definitions, and legal frameworks were being incorporated in the institutional reports and publications as soon as environmental migration started emerging as a standalone thematic area. However, IOM begun to formally refer to the more specific climate change impacts on human mobility after 2010, and in particular subsequent to the UNFCCC recognition of human ­mobility through the Cancún Agreements (2010) and after Member States discussed these issues at the IOM International Dialogue on Migration   IOM, ‘Outlook on Migration, Environment and climate change Brief 2: IOM Institutional Engagement on Migration, Environment and Climate Change’ (IOM 2014), and IOM, Standing Committee for Programmes and Finance, ‘Migration and the environment’ (IOM 2008), http://www.environmentalmigration.iom.int/ iom-and-migration-environment-and-climate-change-mecc. 70

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Organizational perspectives  ­307 (2011).71 Yet it was only in 2015 – 64 years after the creation of the Organization – that, pursuant to the Member States’ request to give greater visibility to ­environmental migration, the Migration, Environment and Climate Change Division was created. The Division is the first institutional structure in an intergovernmental organization to be fully devoted to questions of human mobility in relation to climate and the environment. It speaks to IOM’s commitment to support the efforts of its Member States – many of which are e­ xperiencing the adverse effects of climate change – to understand and tackle new challenges linked to climate-related migration. It equally speaks to the ­recognition of environmental migration in our contemporary world. B. The Support Provided by the Organization to its Member States and Other Stakeholders Drawing on its extensive experience in advocating the protection of climate migrants and its first-hand knowledge, collected through its operational activities, IOM provides multi-pronged support to its Member States. The type of support that the Organization can provide includes: (i) capacity building for States on climate change and migration both at the policy and legal levels; (ii) national and regional level support to analyse existing legal frameworks and develop new policies and legislation72 addressing human mobility and climate change; (iii) contribution to the implementation of the Paris Agreement on climate change and specifically on the Warsaw International Mechanism (WIM) on loss and damage and through the participation of the organization in the WIM climate displacement task force;73 and (iv) contribution to the development and implementation of guidelines, principles and soft law that deal with human mobility in the context of disasters and climate change.

71   IOM, ‘Climate Change, Environmental Degradation and Migration’, in International Dialogue on Migration N°18 (IOM 2012). 72   IOM, upon request from governments, already reviews national legislation and assists States to develop laws that are compliant with international standards. This activity of assistance with legislation development in the future could be increasingly oriented towards incorporating comprehensive legal solutions to deal with persons migrating in the context of climate change into national or regional legal frameworks. 73   Technical Meeting on Migration, Displacement and Human Mobility, http:// www.environmentalmigration.iom.int/technical-meeting, accessed on 13 June 2017, and http://unfccc.int/adaptation/groups_committees/loss_and_damage_executive_ committee/items/9978.php, accessed on 13 June 2017.

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308  Research handbook on climate change, migration and the law 1.  Capacity building activities On the one hand, IOM provides support to States to meet the ­challenges of environmental migration; on the other hand, it assists migrants and their communities in addressing their specific vulnerabilities and ­leveraging their strengths. Based on this approach the Organization considers ­capacity-building activities for States, people on the move and ­communities as a key approach to facilitate activity development at national and regional levels, in cooperation with partners across policy areas and with a number of relevant stakeholders. Often authorities have difficulties in assessing the many challenges posed by climate change in terms of human mobility and identifying solutions that can respond to these challenges. Building the capacity of its Member States in r­elation to the best policy solutions to address climate migration as well as on the international legal instruments that can protect climate migrants has emerged as a key area of work. The Organization has therefore developed capacity building and training tools and has organized workshops and trainings for practitioners and decisionmakers on migration, e­ nvironment and climate change,74 including a legal module focused on ensuring the protection of climate migrants. 2. Support in the development of policies and legislation in the area of climate migration A focus on national situations and needs and the alleviation of s­ uffering for the local population is generally the first priority for governments affected by climate change. Upon state requests, IOM provides support to develop national legislation, including in the areas of environmental or climate change displacement, human mobility in the context of disaster risk management, and promotion of bilateral agreements establishing mobility schemes that can positively contribute to responding to the changing climate. Some States particularly affected by climate change may need to have a specific law addressing migration generated by climate and environmental factors, including accompanying protection measures. However, most States will only have to mainstream these issues within existing legislation on immigration, emigration, displacement or laws regulating asylum or other forms of complementary protection. Laws on disaster risk reduction and management may also have to be adjusted to incorporate provisions covering evacuations or displacement in the context of disasters, also integrating non-nationals (such as migrant workers). The support for States to develop their national policies and legislation

74   IOM, ‘Migration, Environment and Climate Change: Training Manual (Facilitators’ Guide)’ (IOM 2016).

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Organizational perspectives  ­309 does not negate the need to promote new legal standards also at regional and global levels. Successful national experiences and good practices can inform overarching regional and global frameworks as they foster better understanding of what works and what could be done better or differently and provide impetus for replication. Thus, international organizations can be the bridge between the national and international levels, to ensure that positive national practices are known at the regional and international levels and can contribute to the development of common international standards. In parallel, technical assistance activities carried out at the national level should be informed and underpinned by action priorities, understandings and commitments on climate change and the protection of climate migrants that have emerged at the international level. 3. Technical assistance with the establishment of the Warsaw International Mechanism displacement task force Technical assistance in the context of the Loss and Damage programme of work of the WIM75 under the UNFCCC – including a work stream on climate migration and displacement – is another key entry point for the future work of international organizations such as IOM on these issues. This work will be embedded in the recommendations issued by the WIM, which has been tasked by the Paris Climate Agreement to ‘develop ­recommendations for integrated approaches to avert, minimize and address displacement related to the adverse impacts of climate change’.76 A first expert workshop has already been organized to contribute to the work of the WIM by gathering good practices of policies and programmes dealing with displacement in the context of climate change.77 4. Contributing to the adoption of guidelines and collection of good practices IOM’s research work on migration, environment and climate change since the early 1990s has helped to provide insights into existing good practices

75   IOM already supports the work of the WIM, notably through the joint organization of the WIM’s first Technical Meeting on Migration, Displacement and Human Mobility in the context of the adverse effects of climate change: Report of a technical meeting available at https://environmentalmigration.iom.int/ technical-meeting. 76   Decision 1/CP.21, Adoption of the Paris Agreement (2015), para. 50 (footnote 23 above). 77   Report of a Technical Meeting held on 27–29 July 2016 in Casablanca, available at http://unfccc.int/files/adaptation/groups_committees/loss_and_damage_ex​ ecutive_committee/application/pdf/technical_meeting_recommendations.pdf.

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310  Research handbook on climate change, migration and the law of climate change, disaster and migration management implemented by governments at the national and regional levels, which can serve as useful examples of policies and programmes for other governments and stakeholders wishing to develop solutions to address climate migration.78 In parallel, building on its operational experience, the Organization has provided technical support to several collective efforts to develop guidelines on issues related to climate change, disaster and mobility management, including the MEND Guide for Planning Mass Evacuations in Natural Disasters developed by the CCCM Cluster, the Guidance on Protecting People from Disasters and Environmental Change through Planned Relocation led by Georgetown University’s Institute for the Study of International Migration, the Brookings Institute and UNHCR, and the resulting work on the development of concrete guidelines for the implementation of planned relocations in the context of disasters and climate change.79 Furthermore, as mentioned above,80 IOM has taken on the responsibility to support the implementation of the Nansen Protection Agenda through its collaboration with its successor initiative, the Platform on Disaster Displacement. One key element of the implementation of the Protection Agenda is the search for concrete solutions, at national or regional level, to support people who cross borders due to natural d ­ isasters, including climate-induced disasters. This work entails mapping and dissemination of existing practices around humanitarian protection and assistance to people displaced across borders following disasters, drawing from existing effective measures undertaken by States, often on an ad hoc basis. It also involves capacity building at national and regional levels to support the implementation of such practices and measures, and to assist States in the development of relevant legal and policy frameworks. The Organization will also be a key implementing partner in the follow-up to the MICIC Initiative, which has already been mentioned in the previous section as a key example of a State-led initiative adopting a non-binding approach to policy and normative development.81 The activities carried out in the implementation phase include the development of an online repository of

  IOM publications on this topic are available online: http://environmentalmi​ gration.iom.int/iom-publications. 79   A Toolbox with guidelines on Planning Relocations to Protect People from Disasters and Environmental Change is currently being finalized by Georgetown University following several consultations with experts and stakeholders that took place in 2017. More information is available here: https://isim.georgetown.edu/ Planned-Relocations, accessed 9 June 2017. 80   Part II.A. 81   See Part II.A above. 78

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Organizational perspectives  ­311 practices and a number of capacity building initiatives, aimed at supporting states and other stakeholders translating the guidelines into practice. A capacity building project was initiated during the consultations’ phase and a series of trainings for both countries of destination and countries of origin has been piloted to reduce the vulnerability of migrants living and working abroad to the impacts of crises and disasters, including when they are due to climate change. C. The Rapidly Evolving Role of the Organization and a Stronger Commitment to the Protection of Migrants’ Rights The role that IOM will play in all the above-mentioned fora will surely be influenced by the mutation the Organization is going through at the time of writing. On 19 September 2016 at the UN General Assembly HighLevel Summit to Address Large Movements of Refugees and Migrants,82 the UN Member States adopted a resolution approving an agreement to make the IOM part of the UN system as an UN related-organization with a global leading role in the field of migration.83 As a consequence of this major institutional development, the Organization is rapidly evolving and adapting its strategy and priorities to fully reflect its commitment to the principles of the UN Charter. The Organization’s constituent Member States have recently endorsed a Migration and Governance Framework (MiGOF),84 which is a broad, comprehensive framework defining the objectives and outcomes for good migration governance. On the one hand, the framework is meant to ­systematize the various areas of work of the IOM by setting overarching objectives and priorities. On the other hand, it has been designed to be a tool to support States in achieving planned and well-managed ­migration. The MiGOF will then be the framework within which any technical cooperation activities of the Organization in relation to the protection of persons migrating in the context of climate change will be embedded. It will also be a useful reference in the Organization’s effort to promote the

  New York Declaration, 19 September 2016, available at http://refugeesmi​ grants.un.org/declaration. 83   Article 2 of the Agreement concerning the Relationship between the United Nations and the International Organization for Migration (General Assembly 8 July 2016) UN Doc. A/70/976, http://www.un.org/ga/search/view_doc. asp?symbol5A/70/976. 84   IOM, ‘Migration and Governance Framework’, IOM Council 106th Session (4 November 2015), C/106/40, https://governingbodies.iom.int/system/ files/en/council/106/C-106-40-Migration-Governance-Framework.pdf. 82

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312  Research handbook on climate change, migration and the law understanding of the complexity of migration governance, including with regard to climate migration, which may then inform the global processes in this area. With the entry into the UN system, the Organization has also strengthened its engagement in the promotion of the protection of migrants’ rights. Principle 1 of the MiGOF recognizes that migration is well managed when its governance system ‘adheres to international standards and fulfills migrant’s rights’. Moreover, in 2015, the Organization has also adopted a Protection Policy showing its commitment to respecting and upholding the rights of migrants, through the incorporation of a rights-based approach in its policies, strategies, projects and activities.85 The implementation of this new, stronger commitment to migrants’ protection will be achieved through the encouragement of the adoption of a rights-based approach to programming in the area of migration within and outside the Organization,86 including with regard to its climate migration portfolio. These developments provide to IOM a solid basis to promote more vigorously the protection of the rights of migrants, including within all the processes related to climate migration, as well as in its technical cooperation activities. IOM’s commitment to the protection of migrants’ rights has also been reiterated in the Organization’s new framework for addressing internal displacement, which will be presented to IOM’s Member States during the next session of the Standard Committee on Programmes and Finance in June 2017. The framework, the aim of which is to clarify and strengthen IOM’s role in support of states and within the collective response to internal displacement, acknowledges climate change among the rising risks causing internal displacement, and one on which the Organization is also focusing its operations.

IV. CONCLUSION This chapter has shown that interlinkages between climate change and migration are multifaceted and complex. This complexity is also compounded by the effect that migration can have on the environment, in some cases worsening the impacts of climate change that are felt by host communities. Inflows of migrants, particularly when involving a significant   IOM, ‘IOM Policy on Protection’, IOM Council 106th Session (7 September 2015), C/106/INF/9, https://governingbodies.iom.int/system/files/en/council/106/C106-INF-9-IOM-Policy-on-Protection.pdf. 86   IOM, ‘Rights-based approach to programming’ (IOM 2016), https://publica​ tions.iom.int/books/rights-based- approach-programming?language5en. 85

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Organizational perspectives  ­313 number of people, must be adequately prepared. Managing migration in the areas of destination would, for example, call for measures to ensure and improve access, for both migrant and host populations, to key health and social protection services, to employment and education opportunities and to safe living conditions, particularly in areas exposed to hazards. At the same time, migration can be beneficial for both the environment and the level of resilience of the communities affected by climate change: outmigration can help alleviate pressure on scarce environmental resources (water, fertile land) and fragile environments; it can also help reduce the population density in crowded settlements exposed to hazards, thus also reducing levels of disaster risk and exposure. Very importantly, migration can constitute an essential resilience and adaptation strategy by providing alternative opportunities to vulnerable and poor households, who can diversify their livelihoods and incomes, for example through seasonal or temporary employment in other parts of their country or abroad. Many studies have also demonstrated the key role that remittances and other types of support provided by diaspora communities can play in disaster risk reduction and climate change adaptation activities.87 The analysis of both the legal and terminological debate, as well as its appraisal by the human rights bodies at both the universal and regional levels, shows that the main focus has so far been placed on managing forced movements taking place in the context of climate change and ­ensuring the protection of the affected persons. This partial approach is particularly problematic in light of the far more complex reality we are confronted with. The multiplicity of mobility scenarios and outcomes in the context of climate change should be better considered because it can have direct implications for the development of legal solutions: legal and policy frameworks will need to look beyond response to crises and to promote a more positive approach to migration management through appropriate frameworks aiming not only at reducing forms of forced migration, but also facilitating movements out-of-the-danger for short periods of time, including for the most vulnerable who often find themselves trapped in unbearable situations, or pro-active adaptive forms of mobility. Finally, the impacts of migration on host communities should also be considered. Given its broad mandate on migration, and of its newly recognized leading role on migration at the global level, IOM is in a unique position to promote a comprehensive understanding of climate migration,

87   Dina Ionesco, Daria Mokhnacheva and François Gemenne, Atlas of Environmental Migration (Routledge 2017).

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314  Research handbook on climate change, migration and the law and to support the development of legal and policy solutions taking into account the complexity of the relations between climate change and human mobility. The New York Declaration for Refugees and Migrants adopted by the UN General Assembly on 19 September 2016 constitutes an additional acknowledgement of the importance of migration, environment and climate change issues and could be a key forum to reflect a more comprehensive understanding of how to address all the components of the nexus between the three phenomena.88 The ‘action plan’ included in the Declaration calls for starting ‘negotiations leading to an international conference and the adoption of a global compact for safe, orderly and regular migration’ and establishing ‘set of common principles and approaches’, which cannot ignore environmental and climatic factors. The adoption of the Global Compact for Migration will certainly represent another important momentum to confirm IOM’s role in working with governments, migrants, civil society, the private sector and other relevant actors to address environmental migration. Regarding the migration, environment and climate change nexus, IOM views the Compact as a central opportunity to offer cooperation tools and showcase political will to address the challenges posed by climatic and environmental factors in terms of human mobility in a more holistic manner.89 Therefore the organization instils climate change and environmental awareness throughout the process whenever relevant for instance when discussions focus on migrants’ vulnerabilities or the governance of international migration.90 The second informal thematic session that took place in May 2017 as part of the consultative process towards the Global Compact for Migration focused on the drivers of migration, including the adverse effects of climate change and natural disasters.91 The recommendations from that session will serve to inform the development of the Global Compact for Migration, increasing the chances for climate change and environmental factors to be recognized and addressed within the future migration governance framework. IOM will take this additional opportunity to

 See footnote 69 above.   Migrants and migration policy in the context of the adverse effects of climate change and environmental degradation: http://www.iom.int/sites/default/files/our_ work/ODG/GCM/IOM-Thematic-Paper-Climate-Change-and-EnvironmentalDegradation.pdf. 90  http://www.environmentalmigration.iom.int/environment-and-climate-cha​ nge-gcm. 91   IOM, Thematic Consultations, https://www.iom.int/thematic-consultations, accessed 9 June 2017. 88 89

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Organizational perspectives  ­315 pursue its mission to serve migrants, communities and States to specifically address the different facets of environmental and climate migration and instils these dimensions throughout the Process leading to the Global Compact for Migration.

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14.  Organizational perspective from the International Labour Organization Organizational perspective from the ILO

Sophia Kagan, Meredith Byrne and Michelle Leighton

INTRODUCTION As global climate change intensifies and diminishes economic opportunities, people may consider migration as a coping strategy.1 Many workers are already seeking decent work and income security abroad due to poor economic opportunities at home, conflict or disaster.2 As migrants and displaced persons are pushed to move across international borders, most will eventually enter the labour market to support themselves and their families. The growing gap between the opportunities for prosperity in home countries and the opportunities available abroad, compounded with an increase in incidents of extreme weather events, suggest that human mobility and climate change will continue to be linked for years to come. As the lead United Nations specialized agency promoting social justice in the world of work, the International Labour Organization (ILO) is uniquely placed to support Member States, and particularly the most vulnerable segments of society, to cope with the labour market impacts of climate change. While the consequences of environmental degradation on labour markets are well-researched – particularly as they relate to core economic sectors such as agriculture and tourism3 – much less is known on how climate variability or other environmental change in the future  1   M. Leighton, ‘Drought, Desertification, and Migration: Past Experiences, Predicted Impacts, and Human Rights’ in E. Piquet, A. Pécoud, and P. de Guchteneire (eds.), Migration and Climate Change (Cambridge University Press, 2011).  2   L. Jordan, C. Raleigh and I. Salehyan, ‘Assessing the Impact of Climate Change on Migration and Conflict. Social Dimensions of Climate Change’ (The World Bank Group, 2011), https://environmentalmigration.iom.int/assessingimpact-climate-change-migra​tion-and-conflict.  3   See for example, ILO, ‘Employment and labour market implications of climate change’ (Committee on Employment and Social Policy, for consideration by the Governing Body, GB.303/ESP/4, 2008); see also, Asian Development Bank, ‘The Economics of Climate Change in the Pacific’ (2013).

316

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Organizational perspective from the ILO  ­317 will affect workers and drive some to migrate in search of new livelihoods. The importance of the question was recognized by States in the Paris Agreement, whose Preamble notes the ‘imperatives of a just transition of the workforce’ and the need for ‘the creation of decent work and quality jobs’.4 The ILO has worked with governments, unions and employers for many years on the low-carbon economy, yet its role in helping its constituents address climate change impacts on labour migration is relatively new. Migration is, of course, a global phenomenon and workers migrating due to factors related to climate change will join the already existing 150 million migrant workers that the ILO estimates are in the world of work today.5 Given the vulnerability of these new migrants, the ILO’s role in ­fostering greater awareness of the positive contributions that migrant workers make to host countries and ensuring the protection and decent work conditions will be more important than ever. In this regard, the ILO has begun to explore the circumstances under which labour migration can more positively contribute to climate adaptation strategies through enabling policies and programmes that strengthen community resilience.6 This complements the work already undertaken by the ILO in addressing root causes of economic and development failures.7 Making migration a choice can help to change the prevailing discourse on climate change-impacted migration, which tends to see movement of people only as a failure of adaptation. This chapter explores the perspective of the organization on issues relating to the climate-migration nexus, particularly in terms of its ­ ­implications for policy, research, global discussions and technical cooperation support. It also provides a summary of the possible future directions of work for the ILO in this area.

I. THE IMPACT OF CLIMATE CHANGE ON LABOUR MARKETS Environmental issues, and particularly climate change, have long been core strands of the ILO’s work on social justice as well as its engagement at an   Paris Agreement (2016), at recital (11).   ILO, ‘ILO Global Estimates on Migrant Workers: Results and Methodology’ (ILO, 2011).  6   For example, the ILO has co-authored a chapter of the forthcoming International Bar Association’s Legal Aspect of Climate Change Adaptation.  7   See ILO, ‘The Global Crisis: Causes, Reponses and Challenges’ (ILO, 2011).  4  5

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318  Research handbook on climate change, migration and the law international, regional and national level.8 The ILO was an active participant in the UN Conference on Environment and Development in 19929 and in the ‘Rio + 10’ Summit in Johannesburg in 200210 where it developed a portfolio of technical programs supporting member countries to m ­ inimize the labour market impacts of environmental degradation. This is in line with the ILO’s mandate to promote social justice in the world of work. Nearly a decade ago, the Director-General’s Report titled ‘Decent work for sustainable development’, focused on a proposal to promote a ‘socially just transition’ to a low-carbon economy and became part of ILO’s policy framework to achieve social justice in the context of climate change.11 The increased focus on climate change has been the result of ongoing recognition, both inside and outside the organization, that: climate change itself, the adaptation to it and efforts to mitigate further change will lead to major transformations of production and consumption patterns. This will cause profound shifts and transitions in labour markets and in the way people earn a living. Employment impacts will be significant, including major opportunities for green jobs.12

This view on climate change as a driver of major economic and societal shifts, broadened the discourse around its importance to the world of work in a fundamental way. ‘It is difficult to find a precedent in the history of the ILO for an issue of this magnitude to move so rapidly from being ­relatively peripheral to having a central importance in its activities’, noted the Director General in 2017.13  8   See e.g., M. Harsdoff, M. Lieuw-Kie-Song and M. Tsukamoto, ‘Towards an ILO Approach to Climate Change Adaptation’ (2011) Employment Sector Working Paper No 104; ILO, ‘Working towards Sustainable Development: Opportunities for decent work and social inclusion in a green economy’ (ILO, 2012); ILO, ‘Sustainable Development, Decent Work and Green Jobs’ (Report to the International Labour Conference, ILO, 2013); ILO, ‘Climate Change and Labour: Impacts of Heat in the Workplace’ (ILO, 2016).  9   ILO, ‘ILO activities for environment and the world of work’ (Tripartite Advi­ sory Meeting on Environment and the World of Work, ILO, 2–4 November 1992). 10   ILO, ‘The ILO’s contribution to the World Summit on Sustainable Development (Rio+10)’ (Committee on Employment and Social Policy, Governing Body, ILO, 283rd Session, March 2002). 11   ILO, ‘Decent work for sustainable development, Director-General’s Report I(A)’ (2007). 12   ILO, ‘Decent work for sustainable development – The challenge of climate change’ (Governing Body Working Party on the Social Dimension of Globalization, 2007), 8. 13   ILO, ‘Working in a changing climate: The Green Initiative’: Report of the Director General to the International Labour Conference, 106th Session (ILO, 2017), at 1.

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Organizational perspective from the ILO  ­319 Until 2008 the International Labour Standards14 and other guidance tools, developed and adopted by the tripartite constituents of the ILO, contained few direct references to climate change. The few standards that directly addressed climate change were limited in scope and mainly related to occupational safety and health, primarily related to protecting human health but also the environment.15 These included ILO Convention No 148 on the Working Environment (Air Pollution, Noise and Vibration), the Chemicals Convention No 170 and the Prevention of Major Industrial Accidents Convention (No 174).16 Looking beyond the precautionary measures that could be taken to minimize environmental degradation, the ILO constituents began to debate how climate change mitigation and ­adaptation could drive a process of ‘economic restructuring towards a more environmental and social sustainable economy’.17 This meant that it was not only labour standards related to the environment that were relevant, but standards around employment policy, social security, and education and training.18 Thus a myriad of other topics and international labour standards were also drawn into the debate including the ILO Convention No 102 on Minimum Standards of Social Security and Convention No 142 on Human Resources Development. Central to the ILO’s focus on a ‘just transition’ and the social dimension of climate change mitigation and adaptation was the consideration for how countries could create new jobs (‘green jobs’) that could provide an engine for economic growth, and substitute for jobs that would be lost as a result of a shift to a global, low-carbon economy. Broadly defined by the ILO (as well as UNEP), green jobs are ‘jobs that contribute to protecting the ­environment and reducing the harmful effects human activity has on it (­ mitigation), or to helping to better cope with current climate change conditions (adaptation)’,19 ultimately leading to sustainable enterprises and economies. Established in 2008, the Green Jobs Programme is now a m ­ ulti-disciplinary   Developed by the ILO and ratified by Member States, standards aim to promote opportunities for women and men to obtain decent and productive work, in conditions of freedom, equity, security and dignity. See: ILO, Roles of the Game: a brief introduction to International Labour Standards (2014). 15   L. Olsen, ‘The Employment Effects of Climate Change And Climate Change Responses: A Role for International Labour Standards’ (2009) GURN Discussion Paper No.12. 16  Ibid. 17  ILO, supra note 12. 18  Olsen, supra note 15. 19   C. Martinez-Fernandez, C. Hinojosa and G. Miranda, ‘Greening Jobs and Skills: Labour Market Implications of Addressing Climate Change’ (2010) OECD Local Economic and Employment Development (LEED) Working Papers, 2010/02. 14

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320  Research handbook on climate change, migration and the law program within the ILO which provides policy guidance through active participation in international high-level policy debates on climate change and sustainable development; global analysis and country ­assessment of the potential of green jobs; direct technical assistance; and capacity building for ILO constituents in global and regional training courses. Some of ILO’s activities include: ●● ●●

●●

Green business training developed for hotels in Thailand to make their operations more environmentally-friendly. Green business services made available for entrepreneurs in Zambia which include a market-driven mix of financial, non-financial and value chain development services, facilitated through various and differentiated financial services providers and business development services providers. Technical and vocational education and training programmes (TVET) adapted to include training in eight green occupations in Central America.

In 2013, the International Labour Conference adopted a resolution and a set of conclusions concerning sustainable development, decent work and green jobs putting forward a policy framework for a just ­transition. The conclusions contained measures in nine key policy areas to address ­environmental, economic and social sustainability, with the aim of ­minimizing and managing possible job losses and maximizing new decent work opportunities. The policy areas identified were: (a) (b) (c) (d) (e) (f) (g) (h) (i)

macroeconomic and growth policies; industrial and sectoral policies; enterprise policies; skills development; occupational safety and health; social protection; active labour market policies; rights; and social dialogue and tripartism (ILO 2013).20

In 2015, these were translated into a set of guidelines for the ILO’s ­constituents on ‘a just transition towards environmentally sustainable

20   ILO, ‘Guidelines for a Just Transition Towards Environmentally Sustainable Economies and Societies for All’ (ILO, 2015).

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Organizational perspective from the ILO  ­321 economies and societies for all’.21 The Guidelines have been piloted at the country level in the Philippines, Ghana and Uruguay, offering valuable lessons learned for increased adoption and implementation among ILO member States. The Director General’s 2017 report to the International Labour Conference, ‘Work in a changing climate: The Green Initiative,’ signals the organisation’s continued commitment to address climate change impacts on the world of work and ensure that any transition is just for all.22

II.  MIGRATION AND CLIMATE CHANGE The momentum of research on the impacts of climate change on livelihoods and labour markets has increasingly drawn attention (and sometimes alarm) to the prospects of cross-border human displacement. Ensuring that movement across borders is a voluntary and positive ­experience is a goal intrinsically tied to the foundation and history of the ILO. While this Chapter cannot provide a full analysis of the nexus between displacement and migration within the work and priorities of the ILO, this section will briefly examine the ILO’s agenda on migration and focus on the most recent work to ensure that the development benefits of migration can apply in the context of climate change. Since its foundation in 1919, the ILO has recognized the ­importance of protecting the rights of migrant workers as essential to social justice in the world of work,23 and has adopted a fairly large number of Conventions and Recommendations on, or affecting, migrant ­workers.24 The two goals behind the adoption of these instruments have been: to regulate the conditions in which the migration process takes place; and to provide specific protection for a very vulnerable category of workers.25 The specific Conventions on migrants – the Migration for Employment Convention (No. 97), adopted in 1949 and Migrant Workers (Supplementary Provisions) Convention (No. 143) adopted in 1974 are

 Ibid.   ILO, ‘Working in a changing climate: The Green Initiative’: Report of the Director General to the International Labour Conference, 106th Session (ILO, 2017). 23   Constitution of the International Labour Organization, as modified by the Instrument of Amendment of 1972. 24   G. Rodgers, E. Lee, L. Swepston and J. Van Daele, The International Labour Organization and the Quest for Social Justice, 1919–2009 (ILO, 2009). 25  Ibid. 21 22

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322  Research handbook on climate change, migration and the law supplemented by a plethora of other relevant standards, which include the Domestic Workers Convention (No. 189), as well as the ILO Multilateral Framework on Labour Migration (non-binding principles and guidelines for a rights-based approach to labour migration) and General Principles and Operational Guidelines for Fair Recruitment. The view that orderly migration can be not only a coping strategy but also a means of achieving social justice was first debated by the ILO after the Second World War, though many of the arguments remain ­relevant today. Suggesting then that orderly migration could ‘not only solve the dislocation of population distribution, [but] it would also contribute to the realization of peace and social justice in the post war world’,26 ILO emphasized a rights-based approach to migration, p ­ redicated on the idea that migration had potential to be a proactive strategy to development and avert the destabilizing effects of mass resettlement. Migration and displacement in the context of climate change presents new and different issues to debate. And yet, the concept of migration as more than a coping strategy but an adaptive response that, if managed properly and aligned with ILO standards, can facilitate development is very much part of the ILO’s approach to migration. Promoting the ­establishment of more regular channels for people forced to move can help avoid abuse and exploitation and ensure decent employment opportunities and treatment. Fair and rights-based migration has been a core component of the ILO’s work. As the links between climate change and slow-onset environmental change become better understood, regular migration will have a larger ­recognized role to play. It is already a well-known survival and insurance strategy; a household might send an individual to seek work, which benefits the household by reducing the number of people to support, and ­diversifying income through remittances.27 In many cases, the costs of migration, particularly recruitment fees, are high and can place high debt burdens on migrants and their families. By reducing the cost of migration and enabling skills and knowledge transfers, the benefits of migration can be maximized and could ‘form part of an adaptation response to

26   R. Karatani, ‘How History Separated Refugee and Migrant Regimes: In Search of their Institutional Origins’ (2005) 17(3) International Journal of Refugee Law 517, 517, quoted in K. Long, ‘When Refugees Stopped Being Migrants: Movement, Labour and Humanitarian Protection’ (2013) 1(1) Migration Studies 4. 27   K. Ober, Migration as Adaptation: Exploring Mobility as a Coping Strategy for Climate Change (World Bank, Washington, DC, 2014); R. Black, S. Bennet, S. Thomas and J. Beddington, ‘Migration as Adaptation’ (2011) 478 Nature 477.

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Organizational perspective from the ILO  ­323 climate change impacts on natural resource conditions and ­environmental ­hazards’.28 Where some degree of permanent migration is required, a gradual and managed process of labour mobility which enables households to slowly move away from an environmentally vulnerable area, can be a far less destabilizing process than mass relocation. The ILO decided to more fully explore migration as a resilience strategy to climate change adaptation in the Pacific by leading the development of a technical-capacity building project in the Pacific Island region, ­focusing on how labour migration could play a positive role in strengthening adaptation to climate change. The Pacific Climate Change and Migration Project, jointly implemented by the ILO, ESCAP and the UNDP was a threeyear project (2013–16), developed in part under this rubric of ‘­migration as adaptation’. It aimed at assisting Pacific Island countries  – some of the most vulnerable in the world to the impacts of climate change  – to strengthen their capacity to address the labour market implications of climate change, in part through well-managed, rights-based migration schemes and policies. The project particularly prioritized support to the atoll countries of Kiribati, Tuvalu and Nauru, which – due to their low elevation, poor agricultural capacity, and groundwater at risk of climate change-induced salinization – are at a particular risk of population displacement as sea levels continue to rise. Displacement due to climate change was not merely a future risk, but an existing issue. A study by the project which was carried out by UN University as a partner, interviewed 852 households in Kiribati, Tuvalu and Nauru ­covering nearly 7 000 individuals, and found that most households in all three countries have been impacted by climate change over the past 10 years. The proportion of households reporting that they had been affected by climate change ranged from 74 per cent in Nauru to 97 per cent in Tuvalu. The findings demonstrated that climate change was motivating some people to search for new homes – either to ensure a source of income or to find land on which to live. Climate change is already impacting migration patterns in Kiribati and Tuvalu.29 According to the study, 23 per cent of migrants in Kiribati and 8 per cent in Tuvalu mentioned climate change as a reason for migration decisions. Yet the potential for Pacific households to use international migration to manage the risks of climate 28   D. Bardsley and G. Hugo, ‘Migration and Climate Change: Examining Thresholds of Change to Guide Effective Adaptation Decision-Making’ (2010) 32(2–3) Population and Environment 238, at 238. 29   UN University, ‘Factsheet: Climate Change and migration in the Pacific: Links, attitudes and future scenarios in Nauru, Tuvalu and Kiribati’ (n.d.), https://i. unu.edu/media/ehs.unu.edu/news/11747/RZ_Pacific_EHS_ESCAP_151201.pdf.

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324  Research handbook on climate change, migration and the law stressors is limited by lack of access to international migration opportunities.30 The international migration opportunities for Kiribati, Nauru, and Tuvalu are primarily limited within a number of programs: seasonal worker schemes in Australia and New Zealand; a new semi-skilled visa in Australia; and skilled or educational migration to Australia, Fiji, and New Zealand. Kiribati and Tuvalu have long-term migration access to New Zealand for 75 people per year. Most people who were able to move generally did so from the ‘outer’ islands to the capital, increasing overpopulation on already fragile islands of South Tarawa (capital of Kiribati) and Funafuti (capital of Tuvalu).31 The ILO’s technical support to the project was developed on an emerging understanding among policymakers in the Pacific that if ­ ­international migration channels were not expanded for these countries, a significant proportion of the population could be ‘trapped’ by worsening ­environmental conditions, declining local well-being and few opportunities to either migrate or generate income necessary for adapting. The ILO supported national discussions on how well-managed migration could increase the adaptive capacity to cope including through increasing ­resilience to crises, building capacity to cope with future impacts of climate change, and fostering economic diversification.32 The support of the ILO was instrumental to the development of national labour migration policies in Kiribati and Tuvalu which could articulate the link between climate change and migration and to the development of a national consensus on the strategic approach to expanding migration channels. Such changes were urgently needed, as particularly Kiribati and Tuvalu, extremely remote and with relatively low standards of education, struggled to compete in global labour markets, including in accessing the temporary and permanent skilled pathways to countries such as Australia and New Zealand. The ILO worked with the Ministries of Labour to identify and explore the most strategic avenues for increasing migration options as part of a larger development strategies, including identifying sectors with likely labour shortages, and expanding opportunities to internationally recognized qualifications in these sectors. The ILO’s support,

 Ibid.   The number of people who migrated internally in Kiribati was more than five times the number who migrated internationally, exceeding what was seen to be the ‘carrying capacity’ of the capital South Tarawa, as spelled out in the National Framework for Climate Change and Climate Change Adaptation (2013). 32   ILO, ‘Enhancing the Capacity of Pacific Island Countries to Address the Impacts of Climate Change to Migration’ http://www.ilo.org/global/topics/labourmigration/projects/WCMS_226212/lang--en/index.htm. 30 31

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Organizational perspective from the ILO  ­325 combined with increasing media attention on the vulnerability of Kiribati, Tuvalu and Nauru, prompted the Australian Government to introduce a new pilot programme for low-skilled migrants from these three countries, for employment in aged care and other sectors experiencing shortages in the country.33 The connection between voluntary migration and climate change ­resilience is becoming clearer in the Pacific, and changing the way in which migration is perceived in the region. However, the context of the Pacific has also helped to show that migration is an option for a relatively small proportion of the population who may be suffering from climate change impacts.34 The option is only available for those that have the social and financial resources required. This is consistent with other literature showing that the poor generally have the fewest resources that would enable them to move and benefit from the positive aspects for migration.35 To make labour migration a just option for climate-affected communities, it will be important to reduce the high cost of movement. Though not an entrenched problem in the recruitment of Pacific Islanders, m ­ igration from other areas, particularly in Asia, is associated with exploitative and expensive recruitment practices. The ILO has adopted a global Fair Recruitment Initiative and General Principles for Fair Recruitment to help constituents address these issues.36 Information and support to people in climate-vulnerable communities can help them to understand how to access legal and regular migration pathways from where they live. Reducing the financial and social costs associated with legal migration will provide an opportunity to multiply earnings sent back home to build ­resilience among migrants families and their communities.

III.  FUTURE DIRECTIONS FOR THE ILO’S WORK Recently, the ILO has been involved in research to better understand how migration can contribute to development objectives and decent work outcomes, while also reducing the pressure on local labour markets in areas   Australian Government, Northern Australian Policy (2015).   ESCAP, ILO and UNDP, ‘A case study of climate change and migration in Kiribati’ (draft) (2015), final report to be published in December 2016. 35  Leighton, supra note 1. 36   See http://www.ilo.ch/global/topics/fair-recruitment/lang--en/index.htm. See also ILO guidelines, available at http://www.ilo.ch/global/topics/fair-recruitment/ WCMS_536755/lang--en/index.htm. 33 34

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326  Research handbook on climate change, migration and the law prone to drought or desertification.37 It has begun to identify good policies, models and mechanisms that allow people to move through regular migration channels where decent work opportunities exist. It is further considering how decent work opportunities can be enhanced, skills developed and technology spread to prevent the displacement of people in the first place. Capitalizing on migration’s adaptive potential can begin by enhancing vocational training, skills and opportunities for more regular channels of migration from climate-affected communities and regions. These opportunities should be linked to sectors where adequate decent work opportunities exist to support both national and migrant workers. Engaging employers’ and workers’ organizations in both host and sending countries could help to ensure that labour migration meets real labour market needs, and that all workers, including migrant workers, are protected. If labour mobility is governed in a manner that meets international standards, fills genuine labour market shortages, and protects the rights of migrant workers, there is greater potential for human mobility to help families adapt to the consequences of environmental degradation and extreme weather events, and contribute to economic development. In addition to the field work already begun in the Pacific to link labour migration and climate change, further complementary actions are being explored as part of the ILO’s work. In particular, regional cooperation can help to create a more enabling environment for productive labour m ­ obility pathways and decent job creation in the context of climate change and environmental disaster. For instance, at the regional level, reliable labour market information can be collected and shared to identify genuine needs and trends, including those that climate change may exacerbate or affect otherwise. In many countries however, labour market information systems remain weak, while cross-border data sharing arrangements are limited. Likewise, while regional migration policies, labour policies and climate adaptation strategies often touch on the same development issues, they are too often developed in isolation. Future work should seek to link the three through an exchange of views and expertise under the umbrella of decent job creation. Through decades of experience promoting decent work opportunities, the ILO has amassed a robust set of tools and mechanisms that can be adapted in future work to enhance the resilience of regions severely affected by the impacts of climate change, through adaptation planning and considering appropriate management of labour mobility schemes.

  ILO, IOM, ECA and AUC, ‘Labour Migration Governance for Develop­ ment and Integration in Africa’ (2015) http://www.ilo.org/wcmsp5/groups/pub​ lic/---ed_norm/---relconf/documents/publication/wcms_431598.pdf. 37

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Organizational perspective from the ILO  ­327 For instance, ILO employment-intensive Public Employment Programmes (PEPs)38 combine environmental and economic objectives of employment generation, income support, and asset creation and through the restoration of the natural resource base, reduce the local impacts of climate change and extreme weather events.39 In the aftermath of Typhoon Pablo, community infrastructure projects were employed to construct rural road repair and maintenance and provide a stable source of decent work for climate-affected communities.40 If employment-intensive projects in neighbouring countries can incorporate workers from climate-affected communities and provide job opportunities in the development of green works, countries with labour shortages could receive the labour required to boost adaptive capacity while migrant workers could gain practical skills in green construction and support resilience at home. ILO has used labour-based approaches over the years as a response to natural disasters or post-conflict crisis, for instance through projects in Haiti, Indonesia, Nepal and the Philippines. Large-scale national PEPs like the Mahatma Gandhi National Rural Employment Guarantee Programme in India41 and the Expanded Public Works Programme42 in South Africa have also employed labour-based approaches to protect biodiversity and water, and contribute to natural resource management. Other ILO tools and technical inputs have been active in addressing climate change and provide a complementary set of lessons learned and good practices that can be drawn on to formulate a comprehensive response. These include: ●●

Financial safety nets set up to help corn and rice farmers in the Philippines diversify their livelihood base.43

38   PEPs refer to any direct employment creation by government through an employment programme – rather than through the expansion of the civil service. 39   ILO, ‘Green Works and Climate Change Adaptation’ http://www.ilo.ch/ global/topics/employment-intensive-investment/themes/green-works/lang--en/ index.htm. 40   ILO, ‘Typhoon Pablo: Sustainable Livelihoods for Affected Communities. Australia’s Support to Help the Philippines Build Back Better’ (2012) http://www. ilo.org/wcmsp5/groups/public/---asia/---ro-bangkok/---ilo-manila/documents/pub​ lication/wcms_324770.pdf. 41   Mahatma Gandhi National Rural Employment Guarantee Act 2005 (India). 42   South African Government, ‘Expanded Public Workers Programme’ http:// www.epwp.gov.za/. 43   ILO, ‘MDG-F 1656 Joint Programme on Climate Change Adaptation: Outcome 3.4 Climate Resilient Farming Communities in Agusan del Norte through Innovative Risk Transfer Mechanisms’ (2010).

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328  Research handbook on climate change, migration and the law ●●

●● ●●

Emergency employment programmes deployed in the Philippines after Typhoon Haiyan to promote a labour-based rehabilitation of community assets.44 Job opportunities created for youth in Egypt through the development of composting and renewable energy services.45 Green Jobs assessments conducted in Namibia, Mauritius, Tunisia, Senegal and Kenya.46

As these examples demonstrate, various dimensions of the ILO’s work stand to be linked to labour migration to enhance the contributions labour mobility can make to adaptation to climate change at the national, regional and sub-regional levels. Increased focus is being placed on the development of regional dialogue around migration, particularly through regional economic communities (RECs) and intergovernmental regional consultative processes (RCPs)47 and the emergence of labour protection in international trade agreements. Regional groups have the advantage of shared legislative constructs and multilateral agreements on different areas of mutual interest including labour, migration and climate adaptation. For example, the Southern Africa Development Community (SADC)48 and the Economic Community of West African States (ECOWAS)49 are among the few that have set out protocols on the free movement of people. Work opportunities in neighbouring countries have the advantage of providing a stable source of income close to home when livelihoods are compromised by climate variables. Working within geographically defined groups that share common development objectives and economic characteristics has also permitted national actors to collaborate and coordinate more efficiently. Although there has been little dialogue at the regional level on the climate dimensions of migration to date, regional groupings have three   ILO, ‘Philippines: Typhoon Haiyan Aftermath’ (2013) http://www.ilo.org/ manila/typhoon-haiyan/lang--en/index.htm. 45   ILO, ‘Decent Jobs for Egypt’s Young People: Tackling the Challenge Together’ (2011). 46   A. Jarvis, A. Varma and J. Ram, ‘Assessing Green Jobs Potential in Developing Countries: A Practitioner’s Guide’ (ILO, 2011). 47   See C. Harns, ‘Regional Inter-State Consultation Mechanisms: Approaches, Recent Activities and Implications for Global Governance on Migration’ (2013) IOM Migration Research Series No. 45, 19. 48   In 2005, SADC proposed a protocol on Free Mobility Movement although it is not yet operational due to ratification issues in Member States. 49   The ECOWAS Protocol A/P.1/5/79 Relating to Free Movement of Persons, Residence and Establishment was signed in 1979. 44

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Organizational perspective from the ILO  ­329 distinct advantages in pursuing collective objectives on labour migration more generally. First, they understand the social, economic and cultural contexts better than international actors. These contexts will dictate local opportunities, constraints and barriers for labour migration. Second, there are more cultural, linguistic and economic ties within regional groups, making labour market integration an easier process for migrant workers (though certainly not without its challenges). Third, regional groups have pre-existing bilateral relations and multilateral agreements that can be built upon and strengthened to support climate dimensions. Regional fora may therefore serve as an appropriate space to discuss and develop regional labour mobility arrangements that can target climate vulnerable areas.50 To ensure that work opportunities are in line with international labour standards and human rights standards the ILO will need to strengthen its standing as the lead institution to address the current and future implications of climate change and the transition to a greener economy to the world of work. The ILO is actively engaging with outside agencies and organizations to establish how it can best contribute its expertise to complement the national and regional work already underway.51 Future joint efforts will focus on generating new knowledge, integrating different approaches and promoting ILO’s standards and social protections in the transition to greener economies. ILO will continue to help its Members realize and maximize the b ­ enefits of labour mobility in the context of climate change and in line with International Labour Standards. Drawing on past experiences, some of which are described above, the ILO is exploring how labour mobility can support regional development and national adaptation in diverse contexts. Future work will focus on generating knowledge, strengthening strategic partnerships and engaging tripartite constituents in the development of a framework to operationalize labour mobility as an adaptation strategy.

IV. CONCLUSION Harnessing the adaptive capacity of labour migration will require linking existing labour policies, migration agreements and climate adaptation strategies. Coordinated and collective efforts on the topic of labour

50   International Bar Association, Legal Aspects of Climate Change Adaptation (forthcoming). 51   ILO is also on the expert advisory board of the Platform on Disaster Displacement and on the UNFCCC Taskforce on Displacement.

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330  Research handbook on climate change, migration and the law ­ igration can help to bring fairness and social justice to adaptation. The m ILO can continue to play an important role through the mobilization of its constituents amongst governments, unions and employers in the 187 countries which are members of the Organization. Migration, although not traditionally linked to the ILO’s work in relation to environmental degradation and climate change, is increasingly being seen as both a consequence of the global shift in weather patterns, as well as an important adaptation strategy which, if managed well, can diversify household income, reduce resource pressure on areas vulnerable to climate change and eventually provide opportunities for households and communities forced to move away from affected areas in a less destabilizing process than mass relocation. The ILO’s technical support to atoll countries in the Pacific has shown the importance of articulating the link between climate change and ­ migration, and developing a national consensus on the strategic approach to expanding migration channels. Many of the communities most ­vulnerable to climate change also have the least access to migration channels for decent work abroad, and it is thus important for national and international support to develop safe migration channels. One example of this is the Australian Government’s introduction of a new pilot programme for low-skilled migrants from Kiribati, Tuvalu and Nauru for employment in aged care and other sectors experiencing labour shortages in Australia. Further complementary work is also being pursued by the ILO at international and regional level to explore the potential for improved governance around these issues. While discussions of climate-related ­ migration are still limited in these forums, the ILO’s research, policy advice and technical work will continue to bring this dimension of migration to the table for discussion.

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15.  Engaging the media on climate-linked migration Engaging the media on climate-linked migration

Alex Randall

INTRODUCTION The number of news stories about climate-linked migration has increased dramatically over the last decade. Media stories reporting on climatelinked migration have therefore become a key way in which the public are engaged on a complex and pressing scientific issue. As a small NGO working in this field we take a keen interest in this media coverage. A huge amount of our time is spent engaging with the media on this issue. Partly to raise the profile of the issue amongst the wider public, but also in an attempt to change the way the media reports this topic. For example, to encourage journalists to write about the issue with a level of nuance that is often lacking in the sensationalist coverage of the issue. As we embarked on this project of media engagement, it became clear that there was little information about the existing media landscape. We concluded that we would have to make our own analysis of the representation of climate-linked migration in the press. We needed a picture of who was talking about this issue and what they were saying. We also felt that this assessment needed to be done objectively. Of course we had our own intuitive assessments of the nature of media landscape, but inevitably these were shaped by our own reading habits and the fact that we were actively seeking out news stories about climate-linked migration. We needed something more objective. To this end we began a thorough analysis of 12 years of UK media coverage on climate-linked migration. Our primary goal was to find out where journalists were turning to for information on this issue. Who were their sources of both factual information and human stories? We used a media database and textual analysis software to build up a picture of the UK-based coverage on this topic between 2004 and 2015. Crucially we were able to identify the key actors and sources and make an assessment of how each of them talks about the issue when speaking to the media. Our assessment concludes that journalists have primarily sought out both real examples of people migrating due to climate impacts, and expert 331

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332  Research handbook on climate change, migration and the law scientific sources. However, when writing about these scientific sources they often badly misrepresent the expert’s conclusions. This, combined with a fixation on a small number of high-profile cases of climate-linked migration, means that readers have not been presented with a view of this issue that reflects the current state of research and evidence.

I. BACKGROUND The idea of people being displaced by global environmental forces first entered the public debate in the 1970s.1 It began to catch the public attention as early attempts were made to estimate the numbers of people who might move.2 Many of these figures, although now highly contested,3 are still quoted in current news stories. In spite of the d ­ ifficulty of e­ stimating the number of people who might be affected, and who and where such people are, interest in the issue has grown. The UK Government ­commissioned a comprehensive review of the field in 2011.4 International relief and humanitarian organisations such as the UN Refugee Agency5 and the International Organization for Migration have become key ­institutions speaking about the issue to the press. The Intergovernmental Panel on Climate Change has consistently looked at climate-linked migration and displacement, and it has become one of the most quoted media sources. In its most recent assessment it carried out one of the most ­thorough reviews of the literature on the topic.6 More recently a number

 1   L. Brown, P. McGrath and B. Stokes, ‘Twenty-two Dimensions of the Population Problem’ World Watch papers series (World Watch Institute, 1976), http://www.worldwatch.org/bookstore/publication/worldwatch-paper-5-twentytwo-dimen​sions-population-problem.  2   N. Myers, ‘Environmental Refugees: A Growing Phenomenon of the 21st century’ (2002) 357(1420) Philosophical Transactions of the Royal Society of London B: Biological Sciences 609.  3   F. Gemenne, ‘Why the Numbers Don’t Add Up: A Review of Estimates and Predictions of People Displaced by Environmental Changes’ (2011) 21 Global Environmental Change 41.  4   R. Black, ‘Foresight: Migration and Global Environmental Change, Final Project Report’ (Government Office of Science, London, 2011).  5   UNHCR, ‘Human mobility in the context of climate change’ (submission to the UNFCCC, 2015), http://www.unhcr.org/565b21bd9.html.  6   N. Adger et al., ‘Human Security’ in Climate Change 2014: Impacts, Adaptation, and Vulnerability. Part A: Global and Sectoral Aspects. Contribution of Working Group II to the Fifth Assessment Report of the Intergovernmental Panel on Climate Change (Cambridge University Press, Cambridge, 2014).

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Engaging the media on climate-linked migration  ­333 100

Number of news stories

75

50

25

0 2004 2005 2006 2007 2008 2009 2010 2011 2012 2013 2014 2015 Years

Figure 15.1  Climate-linked migration in UK newspapers of military and security institutions have become active in the public debate.7 As this chapter shows, climate-linked migration has become an increasingly popular way for journalists to engage their readers on the topic of climate change. Figure 15.1 shows the level of media interest in the UK press between 2004 and 2015. There is a clear increase in interest in 2013 when a number of news stories about climate-linked displacement hit the news. Because of this increased level of media interest in the issue it becomes important to examine where journalists are turning to for information, and who they are interviewing to create these stories. To begin answering these questions we started by looking at how this issue is represented in the UK media. This provides a snapshot into some of the issues, and pointers towards some of the key trends. This study is limited in the sense that it focuses only on UK print media, however the insights are helpful to anyone trying to communicate these issues.   See e.g. Centre for Naval Analyses, ‘National Security and the Threat of Climate Change’ (CNA, Washington, 2007), https://www.cna.org/cna_files/pdf/ national%20security%20and%20the%20threat%20of%20climate%20change.pdf; Department of Defense, ‘Quadrillenial Defense Review’ (Department of Defense, Washington, 2014).  7

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334  Research handbook on climate change, migration and the law

II. METHODOLOGY This chapter builds on existing methods of examining actors in media reporting such as Wahl-Jorgensen et al’s analysis of political sources used by the BBC8 and Cushion et al’s analysis of media representation of young black people in the UK media.9 It also draws on Crawley’s methodology for analysing sources and frames in media reporting on biotechnology.10 1. Identifying relevant news stories. The LexisNexis database was used to search print editions of UK newspapers between 2004 and 2015. A search string was created to identify relevant stories. The requirement for inclusion was that the headline of the article contained the word ‘climate’ and at least one of the following words: ‘migration’; ‘migrant’; ‘immigration’; ‘immigrant’; ‘refugee’; ‘displacement’; ‘relocation’. 2. Refining search results. The articles were reviewed and irrelevant results removed. For example, articles about climate change altering the migration of birds and fish were removed during the initial review. 3. Coding process. The articles were all imported in qualitative data analysis software package MaxQDA for coding. 4. Organisations and people. When an individual member of the public is a source the individual is recorded. When someone is mentioned and the news story states an organisational affiliation, the organisation and not the individual is recorded. 5. Identifying actors in the articles. Each article was read and when a source appeared in the text this was coded using the QDA software. The name of this organisation was then entered as a search term and the entire corpus of articles scanned. These results were then checked individually to confirm whether the mention was as a source or not. A phrase like ‘A new report from European Union officials today claims. . .’ represents the EU as a source. A phrase like ‘New arrivals into the European Union are expected to increase. . .’ refers to the EU,   K. Wahl-Jorgensen et al., ‘BBC Breadth of Opinion Review’ (BBC and Cardiff School of Journalism, Media and Cultural Studies, London and Cardiff, 2013), http://downloads.bbc.co.uk/bbctrust/assets/files/pdf/our_work/ breadth_opinion/content_analysis.pdf.  9   S. Cushion, J. Jewell and K. Moore, ‘Media representations of black young men and boys: Report of the REACH media monitoring project. [Project Report]’ (Department for Communities and Local Government / Cardiff University, London and Cardiff, 2011), http://orca.cf.ac.uk/28559/. 10   C. Crawley, ‘Localized Debates of Agricultural Biotechnology in Community Newspapers: A Quantitative Content Analysis of Media Frames and Sources’ (2007) 28(3) Science Communication 314.  8

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Engaging the media on climate-linked migration  ­335 Table 15.1  Methodology results Rank Organisation

Stories citing

Rank

Organisation

Stories citing

1 1

17 17

8 8

The Pentagon University of Columbia

5 5

12

8

State Government of  Alaska

5

3 4

Ioane Teitiota Intergovernmental Panel   on Climate Change New Zealand,  Immigration Tribunal Court US Government United Nations

10  9

9 9

4 4

5 6 7

UK Government University of Exeter UN Refugee Agency

 8  7  6

9 9 9

8 8

Michael Kidd (Lawyer) Government of Kiribati

 5  5

9 9

European Union Army Corps of  Engineers Radio New Zealand European Commission UK Climate Change and   Migration Coalition US Democrat Party Government of Australia

2

4 4 4 4 4

but is not citing or referencing it. Only instances of citation and reference were coded. 6. Counting stories, not mentions. This process shows the number of stories a source is cited in, not the number of times the source is cited across the entire corpus. For example if the UN Refugee Agency is mentioned seven times in one news story this counts once. This produces an indication of the dominance of the sources across the UK media. Using this method 120 news stories were analysed and 159 separate organisations and people were identified as sources in the coverage. The number of news stories is relatively small, telling us something about the general lack of media coverage of this topic. However, even from this small number of stories we can still examine who are dominant sources of information and comments.

III.  OBSERVATIONS ABOUT THE RESULTS A. The Teitiota Case The most prominent source cited across the entire collection of news stories was Ioane Teitiota. He was dubbed the world’s first ‘would-be

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336  Research handbook on climate change, migration and the law climate refugee’11 after he sought asylum in New Zealand arguing climate change had made his return to Kiribati impossible. The case hit the headlines twice. First in 2013 when the initial part of the trial took place, and again in 2015 when the case was finally rejected.12 Several other sources frequently cited by the UK media were also part of the same case. The immigration tribunal that heard his case is the joint second most-cited source. Teitiota’s lawyer, Michael Kidd, is the eighth most cited. It is perhaps understandable that the media have sought out a humaninterest story. The fact that Teitiota was making a legal case for refugee status – rather than any other type of status that might have given him the right to remain – meant the story fitted easily into the media’s existing ‘climate refugee’ narrative. However, even among people who strongly support both action on climate change and new legal protection for people forced to move by climate impacts, the case was still controversial. There is an ongoing debate about how best to protect the rights of people who might move due to climate change impacts.13 However, altering the Refugee Convention, or altering a country’s interpretation of the Convention through case law, is not an option that enjoys support amongst legal scholars.14 The case also may have interested journalists in the UK as it encapsulated the idea of climate-linked movement from a developing country (Kiribati) to a developed, English-speaking country (New Zealand). However, much current evidence points to this kind of movement being one of the less likely patterns of mobility that might result from climate change impacts. Rather than being cross-border it is more likely to be internal. If the movement is cross-border it is more likely to be between   Agence France-Presse, ‘New Zealand deports would-be first ever “climate change refugee”.’ The Telegraph (London, 24 September 2015), http://www.tel​ egraph.co.uk/news/worldnews/australiaandthepacific/newzealand/11887139/NewZealand-deports-would-be-first-ever-climate-change-refugee.html. 12   Teitiota v Ministry of Business Innovation and Employment (2015) NZSC 107. 13   B. Saul and J. McAdam, ‘An Insecure Climate for Human Security? Climateinduced Displacement and International Law’ in A. Edwards and C.  Ferstman (eds.), Human Security and Non-Citizens (Cambridge University Press, Cambridge, 2009), http://papers.ssrn.com/sol3/papers.cfm?abstract_id51292605. 14   See e.g. J. McAdam, ‘Swimming Against the Tide: Why a Climate Change Displacement Treaty is Not the Answer’ (2011) 23(1) International Journal of Refugee Law 2; W. Kälin, and N. Schrepfer, ‘Protecting People Crossing Borders in the Context of Climate Change: Normative gaps and possible approaches’, Legal and Protection Policy Research Series (UN High Commissioner for Refugees, Geneva, 2012), http://www.unhcr.org/refworld/pdfid/4f38a9422. pdf. 11

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Engaging the media on climate-linked migration  ­337 neighbouring developing countries than from developing to developed countries.15 Even within the Pacific region the idea of ‘climate refugees’ remains ­controversial. Representatives of Pacific island nations and Pacific-based civil society groups often decry the phrase. Their justification is that they have no desire to move as refugees, but would prefer to migrate with dignity or participate in organised relocations.16 People from the Pacific also have a long history of mobility – including episodes of forced and voluntary movement. Many Pacific Island people have migrated legally on existing visa schemes to work in Australia and New Zealand.17 This pattern of movement involving voluntary, legal labour migration and remittances does not fit with the image of the ‘climate refugee’ described by the UK media while reporting this case. While the Teitiota case provided a human-interest story for the UK media, the case itself does not represent the most likely pattern of human movement that might be created by climate change. B.  The Intergovernmental Panel on Climate Change The second most cited source after Teitiota is the Intergovernmental Panel on Climate Change (IPCC). The majority of the coverage in the news stories analysed appears in 2013 and 2014 when the IPCC released its fifth assessment reports.18 The report contained an extensive analysis of research on the impacts of climate change on human migration, led by Neil Adger at Exeter University, who is himself the seventh most cited source across all the news stories. Closer examination of the coverage also shows that the

15   See e.g. F. Laczko, C. Aghazarm, and others, ‘Migration, environment and climate change: Assessing the evidence’ (International Organization for Migration, Geneva, 2009), http://www.cefeb.org/jahia/webdav/site/afd/shared/PORTAILS/ PAYS/MEDITERRANEE/Migration-MENA/3-Lazcko.pdf, at 379; E. Ferris, ‘Climate Change and Internal Displacement: A Contribution to the Discussion’ (The Brookings Institution – University of Bern Project on Internal Displacement, Washington and Bern, 2011), http://www.brookings.edu/~/media/research/files/ papers/2011/2/28%20cc%20displacement%20ferris/0228_cc_displacement_ferris. pdf. 16   Government of Kiribati, ‘Relocation, climate change’ (Government of Kiribati website, 2012), http://www.climate.gov.ki/category/action/relocation/. 17   J. McAdam, ‘Refusing “Refuge” in the Pacific: (De) Constructing ClimateInduced Displacement in International Law’ in E. Piguet, A. Pécoud and P. de Guchteneire (eds.), Migration, Environment and Climate Change (UNESCO, Paris, 2010), http://papers.ssrn.com/sol3/papers.cfm?abstract_id51636187. 18   Adger et al., supra note 6.

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338  Research handbook on climate change, migration and the law majority of references to the United Nations are also ­actually references to the IPCC. Many stories referred to the IPCC as ‘a UN body.’ In its assessment the IPCC does make the case for important connections between climate change impacts and the movement of people.19 However, migration linked to climate change is not discussed in a ­consistent way across the entire report. This is with good reason, as climate change is likely to create many different kinds of migration.20 Sometimes migration is viewed as wholly negative consequence of climate change.21 In other contexts migration is presented as a legitimate form of adaptation to climate change.22 But the media reporting tended to present the IPCC’s findings without any of this nuance. The varying and different ways in which the IPCC presented migration linked to climate change were not reflected in the UK media coverage. When reporting on the IPCC’s findings the media tended to present migration as being large scale, a threat, and across international borders. It frequently referred to ‘climate refugees’ and ‘climate migrants’ and often stated that such people might number in the millions or even hundreds of millions. However the IPCC’s report does not make the case for widespread migration across borders from developing to developed countries, but rather for internal migration and displacement.23 It does not state an estimated figure for the number of ‘climate refugees’ or indeed use this phrase as several news stories suggested. It does state various figures for the number of people who are currently affected in different ways. But the report does not demarcate a distinct group of people who are ‘climate migrants’ or attempt to estimate their numbers.24 This is one of the key points of divergence between the current academic literature and media reporting. The news stories examined here usually imply that ‘climate migrants’ or ‘climate refugees’ can be separated out from other types of migrants into a distinct category of people. The academic consensus tends

  Ibid., 766.   K. Ober, ‘How the IPCC views migration’ (Translocal Resilience Project, University of Bonn, Bonn, 2014), http://www.transre.org/files/7514/1407/5090/ TransRe_Fact_Sheet_No1_How_the_IPCC_views_migration.pdf. 21   IPCC, ‘Climate Change 2014: Synthesis Report. Contribution of Working Groups I, II and III to the Fifth Assessment Report of the Intergovernmental Panel on Climate Change’ (Cambridge University Press, 2014), https://www.ipcc. ch/pdf/assessment-report/ar5/syr/SYR_AR5_FINAL_full_wcover.pdf, at 71. 22   Adger et al., supra note 6, 770. 23   Ibid., 767. 24   Ibid., 771, box 12-4. 19 20

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Engaging the media on climate-linked migration  ­339 towards the idea that climate change will alter existing patterns of migration rather than creating a new and distinct group of migrants. When reporting on the IPCC’s finding a number of news outlets quoted figures that were not part of the IPCC report. Several stories referenced Myers’s estimates of 250 million people forced to move.25 These estimates were not included in the IPCC’s most recent conclusions, and are widely believed by current experts to not accurately capture the different kinds of movement that will result from climate change.26 To this extent the readers of UK newspapers would not have gained an accurate representation of the IPCC’s conclusions on migration linked to climate change. C.  The US Government The US government is the fourth most cited organisation. In stories where the US Government is a source, the content is divided between two issues: the conflict in Syria and the relocation of several villages in Alaska. Several other institutions that are also part of the US Government fall near the top of the ranking: The Pentagon, The Army Corps of Engineers and the State Government of Alaska are all in the top 20. The institutions were divided between the same two issues with the Pentagon cited in ­articles about Syria (and to some extent wider connections between climate change and armed violence). The Army Corps of Engineers and Alaskan Government were sources in stories about the Alaskan relocations. 1.  Alaskan relocations Starting in 2013 the UK media began to pick up on a series of stories about small Alaskan communities who were facing relocation as a result of climate change. Rising sea levels, erosion and shifting patterns of sea ice began making life in these remote communities almost impossible and relocation plans started to be formulated. The communities facing relocation were – like their Pacific counterparts  – labelled the world’s first ‘climate refugees’ by the media.27 The

 Myers, supra note 2.  Gemenne, supra note 3. 27   See for example, A. Bond, ‘America’s First Climate Change Refugees: Hundreds Forced to Flee their Alaskan Village before it Disappears Underwater within a Decade’ Daily Mail (London, 16 August 2013), http://www.dailymail.co.​ uk/news/article-2381218/Kivalina-Americas-climate-change-refugees-Hundredsforced-flee-Alaskan-village-disappears-underwater-decade.html; S. Goldenberg, ‘America’s Climate Refugees’ The Guardian (London, 2013). 25 26

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340  Research handbook on climate change, migration and the law majority of the communities facing relocation are also populated by indigenous Arctic people. The media reporting focused not just on the ­difficulties created by relocating, but also on culture, heritage and connection to the natural environment of the people concerned. 2.  Syria and conflict The Pentagon and John Kerry (speaking in his role as US Secretary of State) emphasised the role that climate change could play in creating instability and violent conflict, specifically in Syria. They point to the movement of people caused by climate change as a cause of armed violence. These sources also argue that climate change could more directly lead to conflict, which then leads to new flows of refugees. This analysis also finds several other military and security-focused sources such as the UK’s Royal Navy and think tanks The Centre for Naval Analyses and Global Military Advisory Council On Climate Change. These sources emphasise the potential for climate-induced migration to spark new episodes of armed violence, that would then require military interventions from US or UK armed forces, or for countries to secure and militarise their borders. In general these sources did not accurately represent the existing ­evidence connecting climate change and conflict. There is some evidence linking climate change to armed violence. A meta study both found a relationship between altered weather patterns and increases in violence of various kinds.28 However the study and some of its critics agree that while climate change impacts could play a role in patterns of violence, other political forces are still the primary drivers of conflict.29 There is little ­evidence suggesting that migrants are a ‘vector’ for this violence, in fact the research has not yet been able to determine the causal mechanism behind the climate-conflict relationship. To this extent the military and security sources cited in the UK media do little to help the public understand the complex relationship linking climate, migration and armed violence. D.  Absence of Sceptical Sources Some media outlets, especially the tabloid and right-leaning publications present climate change science as either contested and uncertain, 28   S. M. Hsiang, M. Burke and E. Miguel, ‘Quantifying the Influence of Climate on Human Conflict’ (2013) 341(6151) Science, http://doi.org/10.1126/ science.1235367. 29   H. Buhaug et al., ‘One Effect to Rule Them All? A Comment on Climate and Conflict’ (2014) 127(3–4) Climatic Change 391, http://doi.org/10.1007/s10​ 584-014-1266-1.

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Engaging the media on climate-linked migration  ­341 or as corrupt.30 This is true of the UK media with papers like the Daily Mail, Daily Express and The Sun often presenting climate change in this way, and employing writers and commentators with sceptical stances.31 However only two of 159 sources identified in this analysis held openly climate sceptic or contrarian views.32 Papers that usually take a climatesceptic stance suspended that position while reporting on climate-linked migration and cite few climate-sceptic sources. The issue of climate-linked migration presents these newspapers with a dilemma. On the one hand climate-linked migration can be twisted into a new immigration scare story. They reported on climate-linked migration by fitting it into their existing narratives about ­immigration. Their reporting suggested that millions of people may try to enter the UK from Africa and the Middle East, causing chaos and unrest. In order for these stories to make sense they had to present a view of climate change science that accorded with the scientific consensus, rather than their usual sceptical position. If they had presented climate science as contested, then it would have made no sense to then claim that climate change would create a new immigration crisis. This means that sceptical sources are almost entirely absent from the coverage of climate-linked migration. When reporting on the IPCC’s fifth assessment report the Daily Mail ran the headline ‘UK warned of “climate change flood of refugees”: Droughts and heatwaves could force millions to flee their country.’33 Richard Tol withdrawing his name from the final IPCC document – which had ­previously generated headlines in the Daily Mail – was mentioned only briefly near the very end of the article. The Sun ran the headline ‘Refugees: vision of UK under siege as Third World flees climate change.’34

30   M. T. Boykoff, ‘Public Enemy No. 1? Understanding Media Representations of Outlier Views on Climate Change’ (2013) 57(6) American Behavioral Scientist 796, http://doi.org/10.1177/0002764213476846. 31   J. Painter and T. Ashe, ‘Cross-national Comparison of the Presence of Climate Scepticism in the Print Media in Six Countries, 2007–10’ (2012) 7(4) Environmental Research Letters 8, http://doi.org/10.1088/1748-9326/7/4/044005. 32   The US Republican Party, cited in one article and Richard Tol of Sussex University cited in two. 33   B. Spencer, ‘UK Warned of “Climate Change Flood of Refugees”: Droughts and Heatwaves Could Force Millions to Flee Their Country’ Daily Mail (1 April 2014), http://www.dailymail.co.uk/news/article-2593851/UK-warned-climatechange-flood-refugees-Droughts-heatwaves-force-millions-flee-country.html. 34   B. Jackson, ‘Refugees: Vision of UK Under Siege as Third World Flees Climate Change’ The Sun (2010).

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IV. CONCLUSION Using affected individuals as sources has allowed journalists to create stories about climate change in a way that may have engaged their readers more deeply than the presentation of research findings alone. Such people are used as sources in 40 of the 120 news stories. However the almost exclusive focus on Kiribati and Alaska means that readers have been presented with a narrow range experiences of migration linked to climate change. The absence of sceptical sources meant that readers of these ­articles have been presented with a more accurate view of physical climate science. However this sceptic-free reporting was coupled with inaccurate ­reporting of the relationship between climate change and migration, and with reporting that added to existing inaccurate reporting of wider issues around immigration. For us, these conclusions help direct our engagement with the media. The analysis has allowed us to formulate some priorities when speaking to journalists. Others working in the field should also consider these if they have the opportunity to speak to the press. ●●

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Diversity of location. Try to represent the diversity of human movement linked to climate change. Talk to journalists about locations that are not covered as frequently. If possible, convey the idea that climate-linked migration is not confined to a small number of locations. To people working in this field, this might seem obvious. But this idea has clearly not filtered through to the mainstream media, as our analysis clearly shows. Diversity of movement type. Convey to journalists that different types of mobility may result from changes in the climate. There was a tendency in the media to focus exclusively on cross-border ­migration and planned relocation. Little coverage was given to the sudden displacement of people within their own country, or to the idea that people might migrate as a result of slow-onset events. As two of the key forms of mobility linked to climate change, these were neglected by the media. Talk about solutions. The coverage we analysed rarely mentioned solutions – either legal or political. If possible, talk to the media about the kinds of legal and policy responses that are being proposed, rather than exclusively about who might move and where too. Migration as a solution. For many people facing the impacts of climate change, migration may become their preferred solution. It could become an adaptive response to some of the worst impacts.

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Engaging the media on climate-linked migration  ­343 The forces that shape the media coverage on the climate-linked m ­ igration are powerful. Journalists are pressed for time and have to produce a huge amount of content, they often simply do not have time for ­complexity. They need human stories and drama. They are often constrained by the political leanings of the publication. For all these reasons we should not pretend that changing the way the media reports on climate-linked ­migration will be easy. However, understanding the current landscape and talking to the media about the issues that are not being covered is a good first step.

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PART III WAYS FORWARD?

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16.  Ethical duties to climate migrants Katrina M. Wyman

INTRODUCTION There is an emerging literature which seeks to address ethical issues raised by the fact that climate change is increasingly influencing human mobility.1 The central preoccupation of much of this literature is to establish that countries are ethically obligated to admit and resettle the citizens of developing countries who have to move to a new country in response to climate change.2 Some of the literature argues that all countries owe obligations to climate migrants, but the literature tends to maintain that developed countries should take most of the responsibility for such migration. The core case of concern in the literature is the inhabitants of the small island states, such as Kiribati, the Maldives, the Marshall Islands and Tuvalu, who may have to relocate en masse because their islands may become uninhabitable, and perhaps even submerged under rising seas. Even the literature that discusses the responsibilities owed to ‘environmental refugees’, ‘climate refugees’ and ‘climate migrants’ in general tends to focus on whether other states are obligated to assist the inhabitants of these island states.3 This   This chapter uses the term climate migrant to refer to people who will move due to climate change. I use the term ‘migrant’ to refer to people who are forcibly displaced, for example due to a flood, and people who choose to move, for example in anticipation of rising seas, because it is often difficult to distinguish forcible and voluntary moves. I use the term ‘climate’ migrant while recognizing that it may be difficult in practice to identify people moving due to climate change, because decisions to migrate are often the product of multiple considerations.  2   See, e.g., Mathias Risse, ‘The Right to Relocation: Disappearing Island Nations and Common Ownership of the Earth’ (2009) 23 Ethics & International Affairs 281, ‘the concern here is to explore one particular way to offer philosophical foundations for’ ‘a human right to relocation’.  3   Sujatha Byravan and Sudhir Chella Rajan, ‘The Ethical Implications of Sea-Level Rise Due to Climate Change’ (2010) 24 Ethics & International Affairs 239; Megan Bradley, ‘“Migrants in a Feberland”: State Obligations Towards the Environmentally Displaced’ (2012) 8 Journal of International Political Theory 147, at 149, ‘focus[ing] on those expected to be displaced from small island states’; Derek Bell, ‘Environmental Refugees: What Rights? Which Duties?’ (2004) 10 Res Publica 135, at 135, beginning by referring to ‘[t]he plight of the  1

347

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348  Research handbook on climate change, migration and the law focus reflects the gravity of the harm that the inhabitants of these states face because their existence is threatened; the intuitive ease of attributing the harm to these states to climate change; and the lack of blameworthiness of these states for climate change, given the paucity of their greenhouse gas emissions.4 In addition to addressing the ethical obligations owed to climate migrants, this philosophical literature also considers two second-order issues. It first seeks to assess the scope of the rights that climate migrants have against other countries. Then, the existing literature is often concerned with determining how the corresponding duties owed to climate migrants should be allocated among countries.5 Responses to the central question concerning the ethical foundations of countries’ obligations necessarily influence the responses to the second and third questions about the scope of the claims and the proper allocation of responsibilities among countries for meeting the claims. This chapter surveys the literature on these three questions. It concludes by discussing the focus of the existing literature and identifying directions for future research.

Tuvaluans’; Robyn Eckersley, ‘The Common but Differentiated Responsibilities of States to Assist and Receive “Climate Refugees”’ (2015) 14 European Journal of Political Theory 481, at 482. There are exceptions. See, e.g., Raphael Nawrotzki, ‘Climate Migration and Moral Responsibility’ (2014) 17 Ethics, Policy & Environment 69, discussing Mexico as central example.  4   See, e.g., Byravan and Rajan, supra note 3, at 252, explaining why they focus on the victims of sea level rise; Alexa Zellentin, ‘Climate Justice, Small Island Developing States and Cultural Loss’ (2015) 133 Climatic Change 491, at 491–2, explaining the focus on ‘disappearing’ ‘Small Island Developing States’. Perhaps because the philosophical literature often focuses on the ethical duties owed to citizens of the existentially threatened small island states, there is not much discussion of what is a climate migrant or refugee, or an environmental refugee. For exceptions, see Peter Penz, ‘International Ethical Responsibilities to “Climate Change Refugees”’ in Jane McAdam (ed.), Climate Change and Displacement: Multidisciplinary Perspectives (Hart Publishing 2010); Byravan and Rajan, supra note 3; Bradley, supra note 3, at 148–9; and Bell, supra note 3, at 137–9, but all these sources discuss this definitional point only briefly.  5   Frank Dietrich and Joachim Wündisch, ‘Territory Lost – Climate Change and the Violation of Self-Determination Rights’ (2014) Moral Philosophy and Politics 83, at 91 implicitly allude to the three issues in their critique of Risse, supra note 2.

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Ethical duties to climate migrants  ­349

I. ETHICAL FOUNDATIONS FOR DUTIES TO CLIMATE MIGRANTS A.  Corrective Justice Much of the literature on the ethical responsibilities of countries to climate migrants draws on themes already developed in the more evolved ­philosophical literature about the ethical responsibilities of countries for mitigating and adapting to climate change.6 This is not surprising because migration is a specific form of adaptation with a long lineage in human history.7 A cosmopolitan version of corrective justice is often invoked to argue that countries should contribute to both climate change mitigation and adaptation because they allowed greenhouse gas emissions in the past and continue to allow them in the present.8 Similarly, countries are said to be obligated to assist climate migrants because countries have authorized the greenhouse gas emissions that are causing – or will cause – migrants to move.9 In practice, such arguments would allocate a considerable share of

 6  Eckersley, supra note 3, at 482 explicitly ‘draws on [the] . . . debates’ about responsibility for ‘mitigation, adaptation and climate finance’ in addressing the responsibilities owed to climate refugees. See also Bradley, supra note 3, at 153; Nawrotzki, supra note 3, at 72.  7   Mahmuda Khatun and Leif Jensen, ‘Reintroducing Moral Community: A New Beginning to Promote Justice for Environmental Refugees’ (2014) 2 Malaysian Journal of Research 45, at 45–6.  8   See, e.g, Michelle Hayner and David Weisbach, ‘Two Theories of Responsibility for Past Emissions of Carbon Dioxide,’ University of Chicago Public Law and Legal Theory Working Paper No. 582, http://papers.ssrn.com/ sol3/papers.cfm?abstract_id52783390, at 1–2, highlighting the prominence of the arguments that countries should be responsible for their past greenhouse gas emissions. Penz, supra note 4, at 162, highlights the fact that arguing that one country has obligations to inhabitants of other countries based on the harm principle is a cosmopolitan version of corrective justice.  9   Norbert Campagna, ‘Climate Migration and the State’s Duty to Protect’ (2014) 1 De Ethica De Ethica. A Journal of Philosophical, Theological and Applied Ethics 19, at 22, ‘work[ing] with the presupposition that the group of countries most contributing to the emission of gases provoking climatic changes should be held collectively responsible’; Dietrich and Wündisch, supra note 5, at 85, 89, 91, 96; Nawrotzki, supra note 3, at 73–6, using Peter Singer’s ‘historical principle’ as the basis for assigning responsibility to ‘more developed countries’ such as the US; Eckersley, supra note 3, at 494, all states are obligated to resettle climate refugees because ‘all states are causally implicated in the plight of climate refugees by authorising or allowing activities within their territory that generates greenhouse gas emissions’. Eckersley would have states pay for resettlement based on their

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350  Research handbook on climate change, migration and the law the costs of mitigation and adaptation, including migration, to ­developed countries because these countries are responsible for large shares of ­historical greenhouse gas emissions.10 But in their purest form, corrective justice arguments generate obligations on the part of all countries to address climate migration, since all countries have allowed at least some level of greenhouse gas emissions.11 Corrective justice arguments are backward-looking, or historical, arguments that insist that actors have duties to rectify the harms that these actors caused by their past actions, in this instance allowing greenhouse gas emissions.12 Some authors ground the duty to assist climate migrants not only in corrective justice arguments appealing to historical greenhouse gas emissions, but in a combination of corrective justice and other more presentist principles. Penz appears to offer one such ‘hybrid’ argument.13 Penz argues that countries are obligated to assist climate migrants as a matter of corrective justice based on having allowed greenhouse gas

ability to pay (ibid., at 495–6). This means that developed countries likely would pay many of the costs of resettlement, even if climate migrants did not settle in developed countries. James Souter, ‘Towards a Theory of Asylum as Reparation for Past Injustice’ (2014) 62 Political Studies 326 offers a general analysis of how asylum can perform the ‘moral function . . . of reparation for past injustice’. Souter captures the role of resettlement in much of the literature arguing that countries have obligations to resettle climate migrants because of countries’ historical greenhouse gas emissions. Although Souter does not apply his analysis in detail to climate refugees, he suggests that ‘the world’s largest polluters’ might be ‘assign[ed] . . . responsibility’ for a share of the refugees generated by climate change (340). 10   Hayner and Weisbach, supra note 8, at 1. 11   Among the scholars cited supra note 9, only Eckersley may offer a pure corrective justice argument that imposes a duty on all countries in respect of climate migration. As mentioned in note 9, Eckersley envisages that all countries would have a duty to resettle climate migrants, but separates the cost of paying for migration from resettlement, and allocates the cost among countries based on ability to pay. 12   Hayner and Weisbach, supra note 8, usefully discuss and categorize corrective justice arguments for countries’ mitigation responsibilities. David Miller offers a useful typology of different understandings of responsibility. David Miller, ‘Distributing Responsibilities’ (2001) 9 J Polit Philos 453, at 455–60. 13   I borrow the term ‘hybrid’ argument from Caney who uses it to describe his own pluralistic approach to allocating responsibility for mitigating and a­ dapting to climate change based on the ‘polluter-pays’ principle and ‘ability to pay.’ Simon Caney, ‘Cosmopolitan Justice, Responsibility, and Global Climate Change’ (2005) 18 Leiden Journal of International Law 747, at 769. The polluter-pays principle is similar to corrective justice in that both allocate responsibility based on past actions (ibid., at 752).

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Ethical duties to climate migrants  ­351 e­ missions.14 He maintains that countries are strictly liable based on having allowed greenhouse gas emissions, and thereby rejects the idea that a ­country’s emissions must have been wrongful in some sense to generate a duty to climate migrants.15 Yet Penz does not say that countries must help to address the costs of climate migration solely because they have contributed to migration by allowing greenhouse gas emissions.16 He insists to the contrary that a country only owes a duty to contribute to addressing the impacts of climate change when, in addition to causal responsibility, the  country has benefited from its historical greenhouse gas emissions.17 Penz acknowledges that benefits from greenhouse gas emissions will be difficult to measure, and require making suppositions about levels of ‘economic growth’ in the absence of ‘relatively unrestrained’ greenhouse gas emissions.18 In adding the requirement for a benefit, Penz seems to blur the distinction between the corrective justice and beneficiary-pays principles. The beneficiary-pays principle is a distinct principle for assigning responsibility that theoretically could result in people who had no role in causing climate change contributing to the cost of adapting to climate change. It makes benefits from greenhouse gas emissions the criterion of responsibility, rather than emitting greenhouse gas emissions as under corrective justice.19 14  Penz, supra note 4, at 165. I use the term ‘assist’ advisedly. Penz does not focus extensively on establishing duties to resettle climate migrants. He is mainly concerned with establishing that there is an obligation to assist in financing a form of social insurance to help compensate for the impacts of climate change, including migration. 15   Ibid., at 165. 16   In requiring something more than having allowed greenhouse gas e­ missions to impose obligations on countries, Penz departs from the idea of causal responsibility with which strict liability usually is associated. See, e.g., John C.P. Goldberg and Benjamin C. Zipursky, The Oxford Introductions to U.S. Law: Torts (Oxford University Press, 2010), at 90 ‘Under a regime of strict liability, an actor who causes harm to another is held liable simply by virtue of having caused harm. There is no further inquiry into whether the actor behaved with ordinary care; that issue is irrelevant.’ 17  Penz, supra note 4, at 165–6, some countries ‘have been and continue to be net beneficiaries’ of greenhouse gas emissions; see also ibid., at 168, proposing that benefits from greenhouse gas emissions be counted in determining contributions. For discussion of the ‘beneficiary-pays’ and ‘polluter-pays’ principles within the literature on climate migration, see Eckersley, supra note 3, at 484–8. For discussion of these principles within the wider ethical literature on climate change, see, e.g., Caney, supra note 13, at 757. As noted above, both the polluter-pays principle and corrective justice make parties responsible based on their past actions. 18  Penz, supra note 4, at 166, 168. 19  Caney, supra note 13, at 757. Penz notes the potential difficulty of reconciling the corrective justice and beneficiary-pays arguments, but does not seek to

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352  Research handbook on climate change, migration and the law Byravan and Rajan offer another hybrid argument for assisting climate migrants. They argue that countries have a duty to resettle ‘climate exiles’ based on a combination of corrective justice, benefit, and ability to pay.20 Without using the term corrective justice, they argue that countries have obligations to resettle ‘climate exiles’ based on countries’ ‘past actions’ of allowing greenhouse gas emissions.21 In line with many others, they regard developed countries as having the main responsibility to resettle ‘climate exiles,’ at least as of now, although Byravan and Rajan contemplate that large developing country emitters such as India and China eventually might ­ eveloped have to resettle climate exiles.22 Byravan and Rajan argue that d countries have the greater responsibility not only because they have cumulatively emitted large quantities of greenhouse gases, but also because they have acted wrongfully in doing so. Thus unlike Penz, they do not suggest that developed countries are strictly liable merely based on having allowed the emission of large quantities of greenhouse gases. Implicitly assuming that each person is entitled to emit the same amount of greenhouse gas emissions, Byravan and Rajan fault the ­developed countries for per capita emissions that are many multiples of the per capita emissions in ­developing countries.23 In addition, Byravan and Rajan ground the obligation of developed countries in ‘the benefit criterion’ to which Penz alludes, arguing that developed countries ‘benefited ­disproportionately’ from their past

reconcile his invocation of the two principles because he seems to think that his recourse to proposing ‘global climate change insurance’ avoids the need for him to do so. Penz, supra note 4, at 166 and footnote 42. 20   Byravan and Rajan use the term ‘climate exile’ to refer to the sub-category of climate migrant ‘who will have lost their ability to remain well-functioning members of political societies in their countries, often through no fault of their own’ and who ‘will be forced to become permanently stateless in the absence of other remedies’. Byravan and Rajan, supra note 3, at 242–3. 21   Ibid., at 241, 242 (referring to ‘the basic principle of shared responsibility based on each country’s contribution to climate change’), 254. 22   Ibid., at 253. See also Clare Heyward and Jorgen Ödalen, ‘A New Nansen Passport for the Territorially Dispossessed’ (2013) Uppsala University, Department of Government, Working Paper 2013:3, 7, interpreting Byravan and Rajan as ‘argu[ing] . . . that over time, [developing] . . . countries must admit a proportionate number of climate exiles’. 23   Byravan and Rajan, supra note 3, at 244, referring to ‘disproportionate accumulation’. See also ibid., at 245, 246; Sujatha Byravan and Sudhir Chella Rajan, ‘Sea Level Rise and Climate Change Exiles: A Possible Solution,’ (2015) 71 Bulletin of the Atomic Scientists 21, at 26, referring to ‘the responsibility that rich countries have toward poor countries for occupying their global development space and causing them harm through the effects of global warming’. Thus Byravan and Rajan make what Hayner and Weisbach, supra note 8, call ‘an equality claim’.

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Ethical duties to climate migrants  ­353 greenhouse gas emissions.24 They also invoke the present-day ­‘capability’ of developed countries to resettle climate exiles as a basis of responsibility.25 However, the primary basis on which Byravan and Rajan require countries to accept climate exiles is historical emissions: they regard ability to pay and benefits as flowing from greenhouse gas emissions. They suggest that the developed countries that allowed greater emissions consequently enjoy greater benefits and ability to pay.26 Notwithstanding the prominence of corrective justice arguments for resettlement obligations, there are difficulties with such arguments. Some of these difficulties apply to any effort to use historical emissions as a basis of responsibility for mitigation and adaptation. For example, invoking corrective justice requires explaining why the future citizens of a country should be responsible for harms caused by the greenhouse gases emitted decades or hundreds of years ago by earlier citizens of that country. The future citizens may be the descendants of people who immigrated to the country and have no personal connection to the earlier emitters, and in any event the earlier emitters may not have been in a position to know that their emissions would be harmful.27 Other difficulties are specific to the efforts to use corrective justice to establish a duty to assist climate migrants. These include the complexity of establishing that a specific ­country’s emissions caused the displacement of specific people.28 The need to establish a link between specific countries’ emissions and specific ­decisions to migrate

  Byravan & Rajani, supra note 3, at 247. See also ibid., at 254.   Ibid., at 248. See also ibid., at 254. 26   Ibid., at 247–8, 254. See also Heyward & Ödalen, supra note 22, at 7, indicating that under Byravan and Rajan’s approach, ‘historical responsibility will generally track ability’. 27   See, e.g., Caney, supra note 13, at 756, identifying difficulties with ‘­applying the “polluter pays” principle to climate change’; Hayner and Weisbach, supra note 8, at 2. For discussion of these generic difficulties within the climate migration literature, see, e.g., Matthew Lister, ‘Climate Change Refugees’ (2014) 17 Critical Review of International Social and Political Philosophy, 618, at 628; Eckersley, supra note 3, at 485; Jörgen Ödalen, ‘Climate Refugees: Normative Problems and Institutional Solutions,’ in Hagiwara Yoshihisa (ed.) Democracy and Governance for Civil Society (Fuko Press 2010) 134; Craig A. Johnson, ‘Governing Climate Displacement: The Ethics and Politics of Human Resettlement’ (2012) 21 Environmental Politics 308, at 320; Byravan and Rajan, supra note 3, at 247–8. I do not mean to suggest that the objections to using corrective justice ­arguments are insurmountable. See, e.g., Daniel A. Farber, ‘The Case For Climate Compensation: Justice For Climate Change Victims in a Complex World’ (2008) Utah Law Review 377. 28  Bradley, supra note 3, at 153; Katrina Wyman, ‘Responses to Climate Migration’ (2013) 37 Harvard Environmental Law Review 167, at 192–4. 24 25

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354  Research handbook on climate change, migration and the law arises because corrective justice is agent-specific.29 Partly because of the difficulties of using corrective justice to ground obligations to climate migrants, a number of scholars have turned to other arguments that do not rely on historical emissions to support the idea that countries have obligations to climate migrants.30 The political difficulty of persuading developed countries to act based on their historical emissions has also prompted some scholars to seek other bases of responsibility.31 B.  Alternative Arguments In searching for an alternative to corrective justice to ground obligations to assist climate migrants, some scholars have canvassed theories of free movement or open borders, and cosmopolitan versions of liberal ­egalitarian theories of justice and utilitarianism.32 However, there is a general sense that these theories are too controversial to be politically effective arguments for persuading countries to assist climate migrants, and some of these theories also would require further specification to be used in this way.33 There are two particularly intriguing alternatives to corrective justice in the current literature: the rescue principle, and the right of necessity or proviso. 1.  The rescue principle The argument that ‘the rescue principle’34 obligates countries to assist climate migrants is rooted in the needs of the migrants and the limited   Jules Coleman, ‘The Practice of Corrective Justice’ (1995) 37 Arizona Law Review 15, at 18. 30  Bell, supra note 3, at 140; Bradley, supra note 3, at 153–4; Eckersley, supra note 3, at 485, 487–8; Risse, supra note 2, at 282; Ödalen, supra note 27, at 134. While Penz, supra note 4, at 167–69 acknowledges difficulties with the corrective justice argument, these difficulties prompt him to advocate insurance as a means of implementing corrective justice, not to abandon the argument entirely. 31   See Eckersley, supra note 3, at 485–7. But see Penz, supra note 4, at 162. 32   For references to theories of free movement or open borders, see Bradley, supra note 3, at 150; Penz, supra note 4. For references to cosmopolitan versions of liberal egalitarian theories, see Bell, supra note 3; Penz, supra note 4; Katrina Wyman, ‘Sinking States’ in Daniel H. Cole and Elinor Ostrom (eds.), Property in Land and Other Resources (Lincoln Institute 2012) 450. On utilitarianism, see ibid., 451–3. 33   See, e.g., Bell, supra note 3; Bradley, supra note 3, at 150; Wyman, ibid., at 450–53. 34  Wyman, supra note 32, at 453–6; Bradley, supra note 3. I borrow the term ‘the Rescue Principle’ from Thomas Scanlon, What We Owe to Each Other (Belknap Press, 1998) at 225. 29

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Ethical duties to climate migrants  ­355 costs to countries of providing this assistance. As applied to individuals, the rescue principle holds that each of us is obligated to assist other persons who are in immediate need, and who we can help at little cost to ourselves.35 Walzer, who uses the term ‘the principle of mutual aid’ to refer to essentially the same idea,36 argues that not only individuals but also political communities are obligated to assist persons urgently in need when they can do so at little cost. Bradley argues that Walzer’s principle of mutual aid establishes an ethical argument for states to admit climate migrants from existentially threatened island states.37 They are (or will be) in urgent need, and the developed countries that Bradley envisages will resettle them can accept them at little cost, given the relatively small populations of the existentially threatened island states.38 As she emphasizes, Walzer’s principle of mutual aid provides a ‘relatively narrow’ basis for arguing that developed countries are ethically obligated to these island states.39 The principle does not fundamentally undermine the wellestablished sovereign right of a state to control membership in its political community through immigration laws generally, but only in the (limited) circumstance when there are people in urgent need who countries can admit at relatively little cost.40 Thus the argument from mutual aid that  Scanlon, supra note 34, at 225.   Michael Walzer, Spheres of Justice: a Defense of Pluralism and Equality (Basic Books, 1983) at 33. Walzer borrows the concept from Rawls. 37  Bradley, supra note 3, at 150. Others also suggest that the duty to rescue might obligate countries to resettle climate migrants. For example, Kolers suggests in passing that ‘[i]individualistic solutions to the problem of sinking islands and desertification are easily accommodated . . . through a humanitarian duty to rescue’. Avery Kolers, ‘Floating Provisos and Sinking Islands’ (2012) 29(4) Journal of Applied Philosophy, 333, at 335. Vaha suggests that the plight of the existentially threatened island states raises a question about whether other states have a duty analogous to the duty to rescue to assist the threatened island states. M.E. Vaha, ‘Drowning under: Small Island States and the Right to Exist’ (2015) 11 Journal of International Political Theory 206, at 207, 209, 218. 38  Bradley, supra note 3, at 152, referring to ‘large, wealthy countries’; ibid., 155, referring to ‘wealthy states that have benefitted from emitting high levels of greenhouse gases’. 39   Ibid., at 149. 40  Kolers, supra note 37, at 333, 335; Walzer, supra note 36, at 33 and 51. How limited an incursion the principle of mutual aid represents on national control over immigration depends on how expansively we interpret the situations where people are in urgent need, and how often we think that states can absorb people at little cost to national interests. In 2016, François Crépeau, the United Nations Special Rapporteur on the Human Rights of Migrants, argued that the European Union ‘should resettle three million Syrian migrants’. He used the language of need and cost in making the case, arguing that existing 35 36

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356  Research handbook on climate change, migration and the law developed countries are obligated to the small island states is much less threatening to developed states than arguments rooted in cosmopolitan theories of egalitarian justice or open borders. The flipside of the argument being non-threatening to developed countries is that it may leave migrants who are not from the small island states unprotected, because developed countries can avoid obligations under ‘mutual aid’ by arguing that their resettlement obligations are limited to what developed countries can undertake at little cost to themselves. 2.  The right of necessity/proviso Some scholars argue that countries are ethically obligated to cede territory to citizens of the small island states whose territorial existence is threatened based on a ‘right of necessity’ or Lockean type proviso.41 These arguments are rooted in two main ideas. First, the exclusive allocation to actors of a scarce good, such as land, is justified because it promotes the interests of humankind. Second, existing allocations are subject to a constraint, called the right of necessity or Lockean type proviso. The proviso in this context refers to Locke’s ‘“sufficiency” proviso. . . that appropriators must leave “enough and as good”’.42 The constraint, which might be analogized to an easement, is intended to ensure that the allocation of land does not undermine the very purpose of serving humankind that the allocation is intended to promote.43 When circumstances change such that the allocation of land no longer serves humankind, the constraint – or easement – is

‘EU policy has responded “neither to the need to leave nor the need to hire”’, and that ‘the Global North has jobs for migrants’. Queen Mary, University of London, ‘EU Should Resettle Three Million Syrian Refugees, Says UN Rapporteur’ (18 February 2016), http://www.law.qmul.ac.uk/news/2016/171027. html> accessed 4 January 2017. 41   Cara Nine, ‘Ecological Refugees, States Borders, and the Lockean Proviso’ (2010) 27 Journal of Applied Philosophy 359; Risse, supra note 2; Kolers, supra note 37. Jörgen Ödalen, The Collective Rights of Environmental Refugees (First Draft) 5 helpfully notes the ‘structural . . . similar[ity]’ between arguments based on a right of necessity and the Lockean proviso, referring to Risse and Nine. Blake and Risse also refer to the similarity between Risse’s approach, which as discussed below relies on collective ownership of the earth and a right of necessity, and an approach grounded in the Lockean proviso, of which Nine and Kolers offer examples. Michael Blake and Mathias Risse, ‘Immigration and Original Ownership of the Earth’ (2009) Notre Dame Journal of Law, Ethics & Public Policy 133, at 145, ‘In a manner parallel to the Lockean proviso, Common Ownership gives individuals a claim to have exclusion justified to them’. 42  Kolers, supra note 37, at 335. 43  Wyman, supra note 32, uses the term ‘easement’.

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Ethical duties to climate migrants  ­357 activated, and the rights of the holders of the allotted goods are reduced to protect those fundamental human interests.44 Risse develops this line of argument with individuals as the focus. He begins with the idea present in the work of Grotius and others that humans collectively own the earth.45 Grotius maintained that God had given the earth collectively to humankind ‘for the use of human beings’.46 Risse secularizes this argument and argues that ‘originally’, we owned the earth ‘collectively’ ‘because . . . the earth’s resources and spaces are the accomplishment of no one, whereas they are needed by everyone’.47 The earth’s resources currently are allocated among states, and within states among individual owners, because allocation is thought to benefit humankind by providing everyone with ‘an equal opportunity to satisfy [their] basic needs’.48 The allocation is subject to a right of necessity to ensure that the allocation does not undercut the very purpose for which it exists  – ­providing each person with ‘an equal opportunity to satisfy [their] basic needs’.49 When ‘a co-owner . . . [is] unable to exercise ownership rights in his or her native location’, as in the case of the existentially threatened small island states, the affected individuals have a ‘human right to relocation’ and states lose their right to exclude the people who need to move.50 As Risse emphasizes, the moral idea that humankind owns the earth collectively has potentially broad implications for states. For example, other people, in addition to the citizens of the small island states existentially threatened by climate change, may claim a right to relocate because they lack access to resources to enable them to realize their basic needs. Thus states may lose more control over their immigration policies under Risse’s approach than under the rescue principle.51

44  Nine, supra note 41, at 373, nicely captures the role of the proviso (in her framework) or the right of necessity (in Risse’s) when she states ‘that the Lockean proviso is an abstract mechanism that maintains consistency between principle and practice in the case of systems of exclusive rights over goods.’ 45  Risse, supra note 2, at 282–3. 46   Ibid., at 285. 47   Ibid., at 286. Risse stresses that original collective ownership ‘is a moral status’, and ‘does not grant each and every individual claims to each and every object’. 48   Ibid., at 285, 288, 290. 49   Ibid., at 288. 50   Ibid., at 293. Risse emphasizes that the people who have to relocate have a right to citizenship, not merely to be admitted to a new country; ibid., 294. 51   See Blake and Risse, supra note 41, at 164–5. In addition, the notion of ‘collective ownership of the earth’ may obligate states to respect other human rights in addition to a right to relocate; Risse, supra note 2, at 283, 291.

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358  Research handbook on climate change, migration and the law Nine applies a similar reasoning to states rather than individuals. She focuses on states whose territorial existence is threatened by climate change, which she calls ‘ecological refugee states’.52 Nine ‘assume[s] . . . that (1) the people of currently existing, legitimate states have a collective right of self-determination, and (2) that the loss of existing territorial domain due to ecological disaster does not eliminate this right of selfdetermination’.53 She sees the exclusive allocation of territory to states as justified on the basis that it enables groups to exercise their right to selfdetermination and to thereby pursue ‘justice’.54 States’ territorial rights are subject to a proviso akin to the Lockean proviso to ensure that ‘the values (to protect and promote self-determination of groups . . .) that justify the system as a whole’ are not undermined by the existence of territorial rights.55 This proviso ‘is triggered when the self-determination of a group is threatened because of the territorial dispositions of other groups’.56 When it comes into force the proviso requires the redrawing of state borders, and some states giving up or sharing territory with others, to enable existing states that have lost territory to continue to exercise their right of selfdetermination. Thus Nine indicates that ‘ecological refugee states’, like the small island states, that stand to lose their territory, have rights to receive territory from other existing states to ensure that the refugee states can continue to exercise their right of self-determination.57 Kolers builds on Nine’s argument using the Lockean proviso, again focusing on states.58 Similar to Nine, he assumes that territory is allocated

52  Nine, supra note 41, at 359. Nine refers to ‘Tuvalu, the Maldives, and to a certain extent Bangladesh’ as ecological refugee states. She defines such states as ‘states whose entire (or close to it) geographical territory is predicted to be lost to rising sea levels; the collective body of the people itself will become an ecological refugee’. 53  Ibid. 54   Ibid., at 362. 55   Ibid., at 373. The proviso that Nine applies to territorial rights is similar to the proviso that Locke applies to property because Nine’s proviso insists that territorial rights hold only if other states also have territorial rights. But Nine’s proviso is not the same as the Lockean proviso because Nine is applying the proviso to existing territorial rights, while Locke applies to the proviso at the point of ‘acquisition’, supra note 41, at 369. Thus Nine’s proviso constrains existing holdings, while Locke’s constrains the acquisition of property, ibid., 360–61, 369; see also Kolers, supra note 37, at 336–7. 56  Nine, supra note 41, at 365. 57   Ibid., at 359. 58   Dietrich and Wündisch, supra note 5, at 90–94 offer an interesting critique of Risse, supra note 2, Nine, supra note 41, and Kolers, supra note 37, that helpfully identifies similarities and differences between them.

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Ethical duties to climate migrants  ­359 to states to enable them to pursue ‘public aims’ such as ‘justice’, ‘through self-determination’.59 Kolers, however, has a distinct understanding of territory.60 While Nine follows the convention of thinking of territory as land, Kolers understands territory as ‘not merely a given volume of geographical space’.61 Instead of a tangible thing, Kolers considers territory to be a ‘normative concept’: ‘roughly, the ratio of achieved public aims (such as justice) to a given land base’.62 Under this understanding, ‘it is possible to make more territories’, even though the supply of land is fixed, by ‘increas[ing] [the] ratio’ of public aims to land mass.63 This can be done by either reducing the amount of land required to achieve the same amount of public aims, or achieving more public aims using the same land mass.64 Within Kolers’s extension of Nine’s framework, the role of the proviso is to incite countries to continually improve their ratio of public aims to land mass – in other words, to incentivize states to purvey more public goods like justice, while using fewer environmental resources.65 The proviso does this by creating the possibility that countries will have to surrender some of their land if they do not meet a predetermined ratio of public aims to land mass. The existentially threatened small island states have a right to obtain territory from the industrialized states because the industrialized states have not been satisfying this threshold ratio: they have been over-using environmental resources relative to the amount of public goods that they are producing and so will have to give up some of their land to the states displaced by ‘the climate catastrophe’.66 Nine’s argument for existing states ceding territory to ecological refugee states rests on the idea that these states have a right to self-determination and need territory to realize it, not on the historical greenhouse gas emissions of existing states. In contrast, Kolers’s extension of her argument reintroduces these historical emissions as a basis of moral obligation.67 In his framework, developed countries will have to cede part of their territory to the island states because developed countries have exceeded the acceptable ratio embodied in the proviso through their emissions. Thus, while  Kolers, supra note 37, at 336.   Dietrich and Wündisch, supra note 5, at 93. 61  Kolers, supra note 37, at 336. See Nine, supra note 41, at 369. 62  Kolers, supra note 37, at 333, 336. 63   Ibid., at 337–8. 64   Ibid., at 341. 65   Kolers suggests that rather than measuring the public aims a state produces against its land mass, we might instead measure the public aims that a State produces as against the state’s ‘ecological footprint.’ Ibid., at 338. 66   Ibid., at 339. 67   See also Dietrich and Wündisch, supra note 5, at 92–3. 59 60

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360  Research handbook on climate change, migration and the law Kolers’s argument deploys the Lockean proviso, the ‘hybrid’ argument that he makes comes to resemble a corrective justice argument for obligating developed countries to redress the harms done to small island states.68 As mentioned above, Risse’s argument is far-reaching for states because the moral idea of collective ownership of the earth potentially provides a foundation for many people who lack access to resources to move. Nine’s and Kolers’s proposals are ‘rather radical’69 because they legitimize redrawing the borders of existing states, and requiring states to give up some of their territory or share it with other peoples.70 Kolers’s proposal is potentially the more destabilizing of the two to state territorial holdings because Kolers’s proviso subjects state holdings to an ongoing performance standard intended to promote continuous improvement in the ratio of public aims to land mass.71 Nine’s proviso would trigger a redrawing of state borders only in the extreme case of an existing state’s right to selfdetermination becoming ‘threatened’ by the loss of its territory.72

II. THE SCOPE OF THE DUTIES OWED TO CLIMATE MIGRANTS A great deal of the existing philosophical literature is concerned with articulating the reasons why countries are obligated to assist climate ­ migrants, especially the inhabitants of the small island states. However, the literature also addresses the character of the duty that countries owe. As a threshold matter, there is some discussion of whether the duty that climate migrants are owed is a duty to compensate them or a duty to ­resettle them. For example, Penz mentions that cross-border ­migration may not be the best option for implementing the obligations that countries owe to climate migrants. Other forms of adaptation may  Lister, supra note 27, at 627 also interprets Kolers’s argument that industrialized states have obligations to existentially threatened states as resting on ‘wrongdoing’. See also Dietrich and Wündisch, supra note 5, at 93. 69   Jörgen Ödalen, ‘Underwater Self-Determination: Sea-Level Rise and Deterritorialized Small Island States’ (2014) 17 Ethics, Policy & Environment 225, at 229, referring to Nine’s proposal. 70   As discussed below, Nine, supra note 41, at 372 and Kolers, supra note 37, at 340, would seem to allow existing states to meet their obligations under the proviso by nesting the threatened island states within existing state borders. In other words, they seek to contemplate that the obligation could be met by ­granting these states something less than full sovereignty within the borders of existing states. 71  Kolers, supra note 37, at 341–2. 72  Nine, supra note 41, at 365. 68

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Ethical duties to climate migrants  ­361 be preferable, such as in situ adaptation, or internal relocation within the migrant’s home country, because the migrant prefers such options or because they may be more efficient ‘from a global perspective’.73 Penz proposes a regime for monetarily compensating climate migrants or the governments that receive them, and funding other forms of adaptation, including in situ adaptation.74 This regime involves states establishing ‘[g]lobal climate change insurance’.75 States would pay premiums into the insurance fund taking into account their greenhouse gas emissions and benefits from these emissions.76 This means that the basis of state responsibility – historical emissions and benefits – would be reflected in the mode of reparation for the injustice. As just discussed, ‘payouts’ would be ‘for various kinds of adaptation’, not just cross-border migration.77 However, the general tendency in the philosophical literature is to assume that resettlement rather than monetary compensation is the appropriate remedy for climate migrants. This focus on resettlement likely reflects a point made earlier: that the literature is centrally concerned with the duties owed to inhabitants of the existentially threatened small island states. For the inhabitants of these states, monetary compensation will be insufficient and resettlement in other countries will be necessary. The literature generally recognizes, however, that resettlement would likely be eased if accompanied by monetary compensation.78 But establishing the right to resettle is primary, because without a state to accept them, the citizens of these states could be stateless, with all the repercussions that  Penz, supra note 4, at 160; see also ibid., at 154–5.   Ibid., at 168, 170. The idea that climate migration requires compensation presupposes that migration generates damage, but migration may not be harmful. Benoît Mayer emphasizes that there are multiple framings of human mobility in ‘the UNFCCC Workstream on Loss and Damage’. It is discussed as ‘a way to reduce loss and damage or as a source of loss and damage, either for migrants themselves or for other concerned communities’. Benoît Mayer, ‘Migration in the UNFCCC Workstream on Loss and Damage: An Assessment of Alternative Framings and Conceivable Responses’ (2016) 6 Transnational Environmental Law 107. Where migration is harmful, it will be necessary to identify mechanisms for valuing the harms from migration, which may not be straightforward, especially in the case of non-economic losses. Ibid., at 20. 75  Penz, supra note 4, 167. 76   Ibid., at 168, 171. 77   Ibid., at 168. Souter (supra note 9)’s general discussion of asylum as reparation for injustices includes an interesting discussion of alternative remedies than asylum for addressing injustices (336–8). See also David Miller, ‘Justice in Immigration’ (2015) 14 European Journal of Political Theory 391, at 402–3. 78   See, e.g., Eckersley, supra note 3, at 495. 73 74

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362  Research handbook on climate change, migration and the law that status holds.79 The obligation to resettle does not necessarily have to encompass the obligation to pay for the costs of resettlement, however, and the two can be distinguished, with some countries resettling migrants and other countries paying the costs of resettlement.80 The scope of the right to resettle is the subject of debate within the philosophical literature.81 Broadly speaking, there are two polar positions on this issue, as well as scholarship taking an intermediate view. Some insist that the right to resettle is an individual right, according the migrant the right to immigrate to another country.82 Others contend, however, that the right is a collective right to resettle, meaning that the population of a small island state has a right to move as a group to territory that currently is within the borders of another state and to reconstitute itself as a state there.83 As for those in between, Risse and Bradley cast the right as an individual right to immigrate but refer to the potential for collective resettlement on the territory of another state under certain conditions.84 Ödalen primarily conceives of the right as an individual right to immigrate but recognizes that an individual right would not fully address the harm experienced by the citizens of the existentially threatened small island states. He searches for ways of addressing that group harm while acknowledging the practical obstacles to implementing a collective right to resettle.85 There are various arguments that the right should be understood as a collective right to resettle. The principal proponents of a collective right emphasize that providing the inhabitants of the small island states with an individual right to immigrate will not address their losses.86 Territory, the proponents maintain, is a ‘vital’ requirement for groups to exercise their right to self-determination ‘because it allows their members to freely shape their political future’.87 The loss of territory means that groups lose their rights to self-govern in the pursuit of justice or other public aims. Thus it is necessary to provide the island states with a new territory, from within the borders of existing states since all territory currently is allocated, in   Heyward and Ödalen, supra note 22, at 2 and 6–7.   Ibid.; and Eckersley, supra note 3, at 495. 81  Eckersley, supra note 3, at 498 refers to the debate on this issue, while indicating it is beyond the scope of Eckersley’s paper. 82  Lister, supra note 27, at 627. 83  Nine, supra note 41; Kolers, supra note 37; Dietrich and Wündisch, supra note 5. 84  Risse, supra note 2, at 294; Bradley, supra note 3, at 151, 156, and 157 footnote 1. See also Campagna, supra note 9, at 28 footnote 28, 31. 85  Ödalen, supra note 27, at 135. 86   Dietrich and Wündisch, supra note 5, at 87. 87  Ibid. 79 80

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Ethical duties to climate migrants  ­363 order to allow the island states to pursue their right to self-determination. Kolers explains: ‘When the state as a whole disappears, the individual’s political identity, political community, status in that community, ­currency, civil-society institutions, and perhaps even her language of political ­participation and culture disappear as well.’88 A second argument in favour of the idea that resettlement is a collective right emphasizes the centrality of land to culture rather than political selfdetermination. The idea is that in losing their territory, the small island states will lose a source of their culture. Granting them a new territory will not enable them to fully replicate the culture that they developed on their old territory, but it could provide a basis for maintaining a ‘common culture’.89 Ödalen explains: people use external resources for other things than for food, shelter and ­individual necessities of that sort. By using external resources in certain ways people also endow their national territory with symbolic significance. . .. Some ways of utilizing external resources transform them in ways that are of importance because it gives the territory a symbolic nature which becomes part of a peoples’ history and culture.90

In a related argument, de Shalit emphasizes the centrality of land to ­individual, rather than national, identity.91 He maintains that: place is vital to human identity because it bonds us to our values, history, ­personal and collective memory, language, natural surroundings, to things we are familiar with and at ease with. It provides a sense of belonging to something greater than ourselves individually. It offers a sense of home.92

De Shalit argues that other states have a duty to prevent the small island states from disappearing because neither money nor the grant of new land can compensate for their citizens losing their ‘sense of place’.93 While new land would provide ‘shelter,’ peoples’ ‘attachments, memories and identity’ will have been formed with ‘the original place.’94

 Kolers, supra note 37, at 334. See also Nine, supra note 41, at 367.  Ödalen, supra note 27, at 137. 90   Ibid., at 136. 91   Avner de Shalit, ‘Climate Change Refugees, Compensation, and Rectification’ (2011) 94 The Monist 310, at 317–20. 92   Ibid., at 318. 93   Ibid., at 310. 94   Ibid., at 323. See also ibid., at 325: ‘The bottom line, then, is that governments have a duty to prevent displacement and environmental injustice due to global warming, and not to assume that they can let global warming happen and 88 89

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364  Research handbook on climate change, migration and the law In response to the argumentation in favour of a collective right to r­ esettle, Lister strongly defends an ‘individualistic’ conception of the right to ­resettle as a right to immigrate.95 The main focus of his criticism is the idea that the right of self-determination requires upsetting the borders of existing states to provide the threatened island states with replacement territory. He argues that ‘[c]orporate accounts such as Nine’s and Kolers’s’ take an ‘extreme’ view of the right to self-determination because they require ‘not just the reorganization of an existing state among its current inhabitants, but the transfer of territory from one group to another, completely alien group’.96 Lister argues that ‘[w]hat is plausibly owed to those displaced by climate change is a right, held by individuals, to be able to be full members of a polity that respects them and allows them sufficient autonomy’.97 Under this ‘individual protection approach’, ‘each individual would be provided the same sort of self-determination rights that anyone anywhere has – the right to take part in a just society’.98 Implicitly ­recognizing that displaced islanders would face cultural as well as political loss, Lister indicates that their ‘right to take part in a just society’ ‘would’ entail ‘protection of language rights, and so on’.99 Ödalen similarly has proposed ‘immigration paired with cultural rights’.100 Another option would be to couple an individual right to immigrate with an international willingness to continue to recognize the migrant’s home island country

then rectify the disadvantage caused or compensate for it.’ For further discussion of the ‘cultural loss’ that the citizens of small island states will face if required to relocate, see Zellentin, supra note 4. de Shalit uses Sen’s capabilities approach to define the losses associated with forced migration due to climate change for the individuals who must move: de Shalit, supra note 91, at 310. Similarly, Johnson relies on Sen’s and Nussbaum’s work on capabilities to define the obligations owed to climate migrants: Johnson, supra note 27, at 311 and 316–19.  95  Lister, supra note 27, at 626. Lister argues that: refugee status, and with it the right to non-refoulement and a durable solution, is owed to the subset of those displaced by climate change or other environmental disruptions of expected indefinite duration, where international movement is necessitated, and where the threat is not just to a favored or traditional way of life, but to the possibility of a decent life at all. Ibid., 621. Lister indicates that his view could be supported by ‘something like Rawls’s “duty of assistance” or [Gibney’s] “duty of humanitarianism” or Risse’s “common ownership of the earth”’: ibid., at 623–4.  96  Lister, supra note 27, at 627.  97  Ibid.  98  Ibid.  99  Ibid. 100  Ödalen, supra note 41, at 8.

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Ethical duties to climate migrants  ­365 as a state, albeit a ‘deterritorialized state’, that could involve its displaced citizens in some form of collective decision-making and promote cultural affinity.101 Lister’s critique is not limited to arguing that the collective interpretation of the right to resettle takes the right to self-determination too far. He also warns that the collective account is politically problematic because existing states likely will resist assisting ‘climate change refugees’102 if they ‘believe that’ they must give up territory to fulfil their responsibilities.103 Moreover, he accurately observes that ‘neither Nine nor Kolers give any serious discussion to the situation of the current inhabitants of the ­territory to be redistributed’, whose own right to self-determination presumably would be undermined by the redistribution.104 In fairness to Nine and Kolers, the harm to current inhabitants might be reduced by the willingness of Nine and Kolers to allow existing states to meet their obligations to the threatened island states by giving these states a limited form of sovereignty within existing state borders. Nine and Kolers would seem to allow existing states to meet their obligations by ‘nest[ing]’ the threatened island states within existing state borders, given that there is no unallocated land available.105 Nested states presumably would enjoy less autonomy than existing, fully independent states but perhaps be less disruptive to the physical integrity of existing states than requirements that they completely give up territory to displaced states. In an article published after Lister’s, Dietrich and Wündisch insist that the right of the small island states to resettle is a collective right for similar reasons as Nine and Kolers, but they squarely address the rights of the prior inhabitants of the territory that would be redistributed to the island states.106 They creatively propose ‘a negative auction’ to determine which territory the island states would receive, and include a number of protections to safeguard the interests of the original inhabitants.107   Ödalen (supra note 69) critically evaluates proposals for recognizing threatened island states as ‘deterritorialized states’. Vaha, supra note 37, at 208 and 215–17, is more supportive of the idea of continuing to recognize the statehood of small island states that lose their territory. 102  Lister, supra note 27, at 627. 103  Ibid. 104   Ibid., at 628. 105  Nine, supra note 41, at 372. Nine states that ‘a case can be made for an arrangement of nested self-determination, where the Tuvaluans have rights to limited self-determination within another state’s territory’: ibid.; Kolers, supra note 37, at 340, refers to the option of ‘interstitial settlements’. 106   Dietrich and Wündisch, supra note 5, at 100 and 102. 107   Ibid., at 97. 101

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366  Research handbook on climate change, migration and the law The debate about whether the right to resettle is an individual or a c­ ollective right ultimately comes down to a debate about the importance to accord to continuing to being a member of the collectivity to which one has a longstanding attachment. The advocates of a collective right posit that the continuation of that attachment is vital for political and cultural reasons. While not denying the cultural and political losses that displaced persons would experience, the proponents of an individual right focus on the potential to enjoy self-determination and culture within a new society. It may also be the case that the proponents of an individual right are more inclined to emphasize that societies are continually evolving, and to think that a state that recreates itself within a new territory will be a very ­different state, even if the members remain the same and the new territory physically resembles the state’s prior territory. By itself, the experience of being displaced might fundamentally transform the politics and culture of the state.108 To my knowledge, no one has yet proposed that the citizens of the existentially threatened island states be given the opportunity to choose whether they prefer a collective or an individual right to resettle. Notably, Dietrich and Wündisch implicitly reject the option of allowing displaced persons themselves to weigh the respective benefits of a collective versus an individual right. They argue that the right must take the form of a collective right to resettle in territories provided by other communities, and that the inhabitants of small island states do not have an individual right to immigrate, because their loss is the loss of territory necessary to exercise the right of self-determination.109 To be sure, Dietrich and Wündisch emphasize that the exercise of a collective right to resettlement would not be ‘mandatory’ and the inhabitants of small island states could choose not to move as a group.110 But under Dietrich and Wündisch’s approach, citizens of these states would be at the mercy of the immigration policies of other states because these citizens lack an individual right to immigrate.

108   For general scepticism about ‘cultural rights’ see Jeremy Waldron, ‘Immigration: A Lockean Approach’ (2015) New York University School of Law Public Law & Legal Theory Research Paper Series Working Paper No. 15-37, at 19, http://papers.ssrn.com/sol3/papers.cfm?abstract_id52652710. 109   Dietrich and Wündisch, supra note 5, at 102–3 and foonote 25. 110  Ibid.

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Ethical duties to climate migrants  ­367

III. THE ALLOCATION OF RESPONSIBILITY FOR CLIMATE MIGRATION There are two main ways that the duty to assist climate migrants could be allocated among states. The first is a decentralized approach in which climate migrants choose where they resettle. The second is a centralized approach, in which states would be administratively allocated quotas based on one or more criteria that reflect the ethical basis on which they are judged to be responsible for climate migration. This administrative allocation might be supplemented with the use of market mechanisms to introduce greater flexibility. A.  Decentralized Choice by Climate Migrants Climate migrants themselves might be given responsibility for allocating the duty to resettle among states by allowing migrants to choose where they will resettle. The flipside of allowing climate migrants to choose where they resettle is that all states would be obligated to accept climate migrants. Heyward and Ödalen argue that the citizens of ‘territorially dispossessed’ states, by which they mean the threatened small island states, should have ‘a right to choose their new nationality’.111 Similarly, Eckersley argues that ‘climate refugees should have a right to choose their host [state]’.112 Notably, both Heyward and Ödalen and Eckersley cast the right to ­resettle as an individual right. They do not envisage collectives of climate migrants choosing territory in another state, which would presumably be more politically contentious than individuals choosing to migrate singly to other states. Also, both Heyward and Ödalen and Eckersley ­contemplate ­distinguishing the duty to resettle from who pays the economic costs ­resettlement.113 While all states would be obligated to resettle individuals, a small group of states might be obligated to finance resettlement based on their historical greenhouse gas emissions, ability to pay, or benefits from historical emissions. Other authors would ensure that the citizens of the small island states have an important role in choosing where they are ­resettled without recognizing them as having the complete freedom to choose.114   Heyward and Ödalen, supra note 22, at 3.  Eckersley, supra note 3, at 492. See also ibid., at 494–5. 113   Ibid., 495; Heyward and Ödalen, supra note 22, at 2, 18, 21. 114   Dietrich and Wündisch, supra note 5, at 97; Bradley, supra note 3, at 156–7. See also Souter, supra note 9, at 335–6, ‘“refugees” choice must be given considerable weight’. 111 112

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368  Research handbook on climate change, migration and the law There are several arguments for recognizing that climate migrants have the right to choose their host state.115 For example, the absence of choice is part of the ‘harm’ of ‘forced migration’ and allowing migrants to choose where they resettle might ‘restor[e] . . . to some extent their ability to make meaningful decisions’.116 It also would allocate the choice of host state to the persons ‘best’ positioned to make that choice in a way that takes into account the ‘fundamental interests’ of migrants, such as their interest in resettling where they already have family.117 But there also are counter-arguments.118 Allowing migrants to choose where they resettle may harm the interests of peoples living in the states where they choose to resettle, for example if a large number of migrants choose to resettle in a small, already densely populated place.119 Heyward and Ödalen’s response to this concern is that taking away the migrants’ right to choose where they resettle would ‘value the interests of the citizens of the receiving state over the interests of the territorially dispossessed’.120 This would be morally problematic given the harms that the migrants will have suffered. Moreover, as mentioned above, the responsibility for resettlement and the costs of resettlement could be divorced.121 Receiving states and their original inhabitants could be financially compensated by other states for the costs they experience from resettling climate migrants, for example if the receiving states are developing countries.122 This brings us to another potential ‘objection’ to allowing migrants to select their host state and thereby imposing a duty on all countries

115   Heyward and Ödalen, supra note 22, at 8–14 strongly defend allowing the ‘territorially dispossessed’ the right to choose. The text draws on their arguments. 116  Bradley, supra note 3, at 156–7. See also Heyward and Ödalen, supra note 22, at 9, ‘the territorially dispossessed’ ‘will have lost control and determination over many of the most important aspects of human well-being’ and ‘a scheme of redress should aim to restore to the territorially dispossessed as much control over their future as possible’; Eckersley, supra note 3, at 495, ‘[A] right to choose would provide a form of recognition of, and partial compensation for, the injustice and trauma of their loss and damage’. 117   Heyward and Ödalen, supra note 22, at 13 and 14. 118   Ibid., at 14–21 identifying and rejecting three possible objections to allowing the ‘territorially dispossessed’ to choose their host state. The discussion above draws on this helpful analysis. See also Eckersley, supra note 3, at 495–6, considering ‘obstacles’ to allowing climate refugees to choose their host state. 119   See Vaha, supra note 37, at 212, ‘one can find several reasons to argue, on Kantian grounds’, that ‘the sinking island state is actually guilty of moral wrongdoing’ ‘by claiming the land of others’. 120   Heyward and Ödalen, supra note 22, at 17. 121   Ibid., at 2; Eckersley, supra note 3, at 495. 122   Heyward and Ödalen, supra note 22, at 18.

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Ethical duties to climate migrants  ­369 to ­ resettle climate migrants.123 Such a ‘global duty’124 could result in developing countries that have little responsibility for climate change, ­ because they have limited cumulative greenhouse gas emissions, being required to ­resettle climate migrants if migrants choose these countries.125 But again, the interests of climate migrants likely should trump those of the ­receiving states, especially if the receiving states can be compensated by other countries with greater responsibility for climate change.126 As already mentioned, the duty to resettle climate migrants based on the choices of the migrants themselves can be separated from the duty to pay for the resettlement.127 Eckersley argues that the duty to pay should be based on the ability to pay to make it more likely that all states will accept a duty to resettle.128 To the extent that ability to pay reflects historical greenhouse gas emissions, then making countries pay based on their ability to do so could be reconciled with corrective justice. B.  Centralized Administrative Allocation The approach most commonly discussed in the existing literature allocates responsibility among states based on one or more ‘principles’, rather than the choices of climate migrants.129 To some extent, the proposed principle(s) reflects the author’s preferred moral basis for establishing a duty to climate migrants. Thus, Byravan and Rajan, who mostly make a corrective justice argument for responsibility based on past emissions, would allocate ‘quotas’ of climate migrants to all countries, potentially including developing countries, based on their cumulative emissions.130   Ibid., at 14.   Ibid., at 15. 125   Ibid., at 19–21. 126   Ibid., at 21; Eckersley, supra note 3, at 495. 127   Eckersley, ibid.; Heyward and Ödalen, ibid., at 2. 128   Eckersley, ibid. 129   Heyward and Ödalen, supra note 22, at 6 and 22. See ibid. for an excellent summary of the principles proposed by Byravan and Rajan, supra note 3; and Risse, supra note 2. 130   Heyward and Ödalen use the term quotas to refer to the proposals of Byravan and Rajan and others, ibid., 8. For Byravan and Rajan’s proposal, see Byravan and Rajan, supra note 3, at 253, 241 and footnote 6; Sujatha Byravan and Sudhir Chella Rajan, ‘Providing New Homes For Climate Change Exiles’ (2006) 6 Climate Policy 247, at 249. Byravan and Rajan, supra note 23, at 27 use the term ‘quotas’ in describing their proposal to give climate exiles the right to immigrate. For a similar proposal, see Michael B. Gerrard, ‘America is the Worst Polluter in the History of the World. We Should Let Climate Change Refugees Resettle Here’ Washington Post (25 June 2015), advocating that ‘industrialized countries ought 123 124

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370  Research handbook on climate change, migration and the law As mentioned above, Risse grounds the obligation to accept climate refugees in the right of each person to have an opportunity to realize their basic needs. Correspondingly, it seems that a country’s level of resource use will be relevant in deciding whether it must admit climate migrants and, if so, how many. Under Risse’s approach to immigration, it seems that no country is required to accept immigrants if the country’s per capita level of resource use is higher than the average level of per capita use of resources among countries.131 Assuming this threshold test measuring the availability of resources is satisfied, then Risse treats responsibility for resettlement as a subset of the overarching responsibility to contribute to mitigating and adapting to climate change. Risse would allocate this overarching responsibility for climate change based on cumulative greenhouse gas emissions and ‘ability to pay’.132 He indicates that ‘[a]ssessing which countries are best suited to discharge some of their climate change obligations by resettling climate refugees, from Kiribati and elsewhere, could be a matter of preexisting relations, cultural or linguistic ties, historical connections, or practical capacity’.133 Bradley, who grounds the duty to resettle in the principle of mutual aid, rejects both the idea that countries should be responsible based on being close and easily accessible to refugees (‘the proximity principle’), and the idea of historical responsibility.134 Instead, she draws on Miller’s pluralistic ‘conto pledge to take on a share of the displaced population equal to how much each nation has historically contributed to emissions of . . . greenhouse gases’. 131  Risse, supra note 2, at 290 and 294. I am following the interpretation of Risse’s approach in Heyward and Ödalen, supra note 22, at 7. Risse, supra note 2, does not make clear that a country does not have to admit new immigrants if its resources are being overused compared to the average level of per capita resource use by countries, but this point is made explicitly in Blake and Risse, supra note 41, at 151. Thus the interpretation of Risse’s view on the allocation of responsibilities among countries offered above reconciles Risse’s views in Risse, supra note 2, and Blake and Risse, supra note 41, and in so doing generally follows Heyward and Ödalen’s interpretation, supra note 22, at 7–8. As Blake and Risse acknowledge, it likely would be challenging to measure per capita levels of resource use across countries along a common metric, Blake and Risse, supra note 41, at 149, 154. 132  Risse, supra note 2, at 296; see also Heyward and Ödalen, supra note 22. 133  Risse, supra note 2, at 297. 134  Bradley, supra note 3, at 153–4. As Bradley mentions, in Walzer’s formulation of the principle of mutual aid, the presence of the refugee in the receiving state contributes to the duty to accept the refugee. See Walzer, supra note 36, at 33, ‘Groups of people ought to help necessitous strangers whom they somehow discover in their midst or on their path’; ibid., at 51: Why mark off the lucky or the aggressive, who have somehow managed to make their way across our borders, from all the others? . . .. We seem bound

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Ethical duties to climate migrants  ­371 nection theory’, which involves ‘balanc[ing] six principles – causal, outcome and moral responsibility, benefit, capacity and ­community ties’.135 Turning to the proponents of a collective right to resettle, Nine’s framework provides no ready-made formula for determining which countries must give up territory to the displaced states.136 This is because Nine bases the obligation to cede territory to the displaced state on that state’s loss of territory, rather than any acts committed by other states or the ability of other states to assist. Nine proposes selecting the countries required to give up territory by examining land ‘utilization’, a task she acknowledges would be culturally freighted.137 Countries judged to be under-utilizing their land would be vulnerable to losing territory.138 On the other hand, Kolers’s foundation for state responsibility provides a criterion for ­selecting which countries will be required to share territory.139 Since Kolers grounds responsibility in the failure of a state to satisfy a ratio of public aims to land base, the countries that would be required to give up land would be countries failing to satisfy this ratio. Countries might even be ranked based on their performance, leaving the worst performing countries most ­vulnerable to losing their land mass.140 As with Nine’s approach, the judgments that Kolers’s approach requires about the required ratio and the measurement of the extent to which a state is achieving ‘public aims’ and using its land mass could be very culturally laden and subject to considerable criticism. Some have proposed using market mechanisms as a supplement to the administrative allocation of responsibility among countries.141 Essentially, to grant asylum for two reasons: because its denial would require us to use force against helpless and desperate people, and because the numbers likely to be involved, except in unusual cases, are small and the people easily absorbed. Bradley, supra note 3, at 153. Proximity cannot be a basis for distributing the populations of the existentially threatened small island states because they are islands ‘which do not border any other state’, ibid., at 153. 135   Ibid., at 155; see Miller, supra note 12. 136   See also Kolers, supra note 37, at 339. 137  Nine, supra note 41, at 371. Nine invokes Locke’s spoilage proviso in arguing that land utilization would be used in determining which countries should share territory. 138   Ibid., at 371. 139  Kolers, supra note 37, at 335. 140   Ibid., at 338; see also ibid., at 341–2, ‘when states cease using land for the purpose of achieving justice or other public aims, we might carve out deterritorialized spaces, land areas claimed by no one and left to wild nature and possible new claimants’. 141   Heyward and Ödalen, supra note 22, at 11 also briefly consider and reject the idea of using a lottery to determine which countries are responsible for naturalizing people displaced from threatened island states.

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372  Research handbook on climate change, migration and the law the existing proposals rely on an administrative process, and then use the market to introduce greater flexibility. As mentioned above, Dietrich and Wündisch advocate a collective right to resettle, grounded in corrective justice, based on historical greenhouse gas emissions.142 To select the ­territory where displaced states would resettle, they would establish a fund that they hope would solicit proposals from communities to cede territory ‘for a . . . price’.143 The territory would have to meet certain criteria to be eligible as a site of relocation. The fund would select ‘the offer with the lowest price that meets all the specified criteria’.144 Consistent with the idea that the major emitting states must bear responsibility for climate ­migration, the fund would be established by ‘the culprit states’, but it would work with representatives of the displaced states.145 Envisaging the right to ­resettle as an individual right, Wyman applies Schuck’s controversial idea of tradable quotas for refugees to the allocation of responsibility.146 Initially, countries that satisfied certain criteria including a ‘commitment to refugee ­protection’ would be allocated quotas of migrants, which the countries then could trade with other eligible countries.147 As mentioned above, Penz proposes a ‘[g]lobal climate change insurance’ instrument, to which countries would contribute taking into account their greenhouse gas emissions and benefits from these emissions.148 Funding the insurance through contributions based on historical greenhouse gas emissions is consistent with Penz’s partial grounding of the obligation to assist climate migrants in the backward-looking idea of corrective justice. A major drawback of allocating responsibility for climate m ­ igration administratively or through a market mechanism is that it deprives climate migrants of the right to choose the state in which they resettle. Even if these   Dietrich and Wündisch, supra note 5.   Ibid., at 97. 144  Ibid. 145  Ibid. 146  Wyman, supra note 32; Peter Schuck, ‘Refugee Burden-Sharing: A Modest Proposal,’ (1997) 22 Yale Journal of International Law 243. Ideas for using quotas to distribute refugees among countries have been revived recently in light of the number of persons seeking refuge in Europe. See, e.g., Michael W. Doyle, ‘Overcoming the Refugee Obstacle Course’ The World Post (30 September 2015); James McAuley, ‘Central European Countries Resist New E.U. Refugee Quota Proposal’, Washington Post (4 May 2016). Amid the crisis, Jones and Teytelboym have proposed using a matching system to distribute refugees among countries based on the preferences of the refugees and host countries: Will Jones and Alexander Teytelboym, ‘Choices, Preferences and Priorities in a Matching System for Refugees’ (2016) 51 Forced Migration Review 80. 147  Wyman, supra note 32, at 464. 148  Penz, supra note 4, at 167. 142 143

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Ethical duties to climate migrants  ­373 approaches are structured to incorporate input from climate migrants, these approaches still fundamentally remove the final decision about where migrants will relocate from migrants themselves. Heyward and Ödalen make a compelling case that removing the choice from the ‘­territorially dispossessed’ is morally problematic. It ‘privileges the c­ onvenience of the receiving state over the more fundamental interests of’ climate migrants who will already have experienced a severe loss of autonomy.149 Although there is a strong rationale for recognizing that the citizens of the small island states have a right to choose their destination country, the argument may devolve into support for more open borders for others as well. As Heyward and Ödalen acknowledge, there are many migrants suffering from poverty and injustice who lack the effective protection of a state because their home states have ‘poorly functioning state institutions’.150 Heyward and Ödalen argue that ‘the territorially dispossessed are a special case’ because ‘they cannot even be potentially helped by their own state’.151 But the position of those who have a home state in name only may not differ much in practice from the citizens of the threatened island states. There is something formalistic about arguing that the c­ontinued legal ­existence of the state deprives people enduring weak states of the right to move. The logic of Heyward and Ödalen’s argument is towards allowing ‘the territorially dispossessed’ and the vulnerable who lack the effective protection of a state to resettle in other countries. Heyward and Ödalen insist that their proposal does not require accepting open borders, but it may create a basis for thinking that other vulnerable people, not just the territorially dispossessed, have a right to resettle in other countries.152

IV. CONCLUSION The philosophical literature on the ethical duties owed to climate migrants has grown since the 2000s, in line with the increased appreciation that climate change is happening and that its impacts have affected societies throughout the world. The literature draws on, and contributes to, a number of other literatures, such as those on climate ethics, immigration   Heyward and Ödalen, supra note 22, at 21; see also ibid., at 10, ‘any proposal which involves determining quotas puts the interests of more privileged states against those who have been rendered extremely vulnerable by the loss of their own state’. 150   Ibid., at 5. 151  Ibid. 152   Ibid., at 6, footnote 5. 149

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374  Research handbook on climate change, migration and the law theory, territorial rights, and global justice. Perhaps because the literature is sometimes oriented toward political theorists and seeking to make broad theoretical claims, for example about of the character of state territorial rights, the literature seems at times to be divorced from political realities about the issues surrounding climate migration and the feasible options for addressing these issues. As already mentioned, the existing literature tends to be preoccupied with the ethical obligations that countries owe to the small island states that are existentially threatened by climate change. The amount of discussion of this core case is understandable given the enormity of the loss that these countries face if the worst comes to pass. But it should be remembered that the population of these small island states is relatively small compared with the number of people who might move partly because of climate change. As Heyward and Ödalen note: ‘[t]he four states most ­commonly cited as being at risk of submersion, the Maldives, the Marshall Islands, Kiribati and Tuvalu have a combined population of approximately 576000 – less than 1 per cent of the UK’s population’.153 This underscores the need to broaden the focus of the literature to consider the ethical obligations of states to other developing countries that may experience ­migration due in part to climate change, and the citizens of these countries who may have to move. The ethical obligations of states become harder to address once one moves beyond the core case of the existentially threatened island states. It is likely to be more difficult to attribute migration in other developing countries to climate change because the singular existence of the state is not threatened by the effects of climate change like rising sea levels. The ­situation of other developing countries raises questions about whether states have special obligations to assist other states with migration that may be hard to distinguish from migration attributable to social, economic and political factors. Another complicating factor is that most of the migration to which climate change contributes outside the small island states likely will be internal migration with the migrant’s home state. Internal ­migration usually is regarded as within the jurisdiction of the state, although international law speaks to the issue as well, especially in terms of human rights.154 Thus, assessing the obligations of states to developing countries outside the small island states requires considering the responsibilities of states   Heyward and Ödalen, supra note 22, at 17.   See e.g., Guiding Principles on Internal Displacement, U.N. Doc. E/ CN.4/1998/53/Add.2 (11 Feb. 1998); African Union Convention for the Protection and Assistance of Internally Displaced Persons in Africa (Kampala Convention), available at http://www.unhcr.org/refworld/docid/4aes72d82.html. 153 154

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Ethical duties to climate migrants  ­375 for internal migration elsewhere, in particular regarding the obligation to cooperate for the protection of human rights.155 It is important for scholars to analyse the obligations owed for other types of migration that climate change is expected to affect, separate and apart from the migration pressures to which it will contribute in the existentially threatened small island states. In light of the factors highlighted in the paragraph above, are countries obligated to ­compensate ­developing countries that will experience climate change-related m ­ igration, even if the existence of the countries themselves is not at risk? If there is a ­ compensation obligation, what should be the relationship between that compensation and development assistance that developed countries already provide? Are countries obligated to resettle some or all of the migrants that will move in places other than the small island states? If there is a duty to resettle, is the corresponding right an ­individual right to immigrate, not a collective right to claim territory for use as a new ­political authority, because the home state of the migrants is not existentially threatened? How should obligations be distributed among countries? These and other questions would benefit from the same degree of analysis as the profound ethical quandaries raised by the plight of the existentially threatened island states.

155   Two sources that briefly discuss migration from other developing countries are Heyward and Ödalen, supra note 22, at 19 and Nawrotzki, supra note 3.

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17.  When climate-induced migration meets loss and damage: a weakening agendasetting process? When climate-induced migration meets loss and damage

Chloé Anne Vlassopoulos

INTRODUCTION Climate-induced migration can be considered as a sub-issue of environmental migration. The discussion about environmental migration was started by the scientific community in the 1970s but without getting into the policy agenda of international governmental organizations (IGOs). Climate ­migration came into debate on the international fora in the beginning of the twenty-first century, being framed as one of the consequences of global warming. For 40 years the agenda-setting process appeared as particularly turbulent and uncertain at least until the Cancún Agreements in 2010, which, for the first time, officially recognized displacement as a question for policy consideration. Since then, much hope has been expressed about improvement in decision-making during COP 21 in Paris. This chapter is based on a ‘definitional approach’1 that intends to trace the main definitional stages of the concept of environmental ­migration until the Paris Agreements in December 2015. The definition of a situation as a public problem and the agenda-setting process are political actions that involve the search for a compromise between multiple actors s­ upporting different positions.2 Different definitional scenarios (i.e. a causal construction of an issue) compete in the public arena, each one promoting its own distribution of authority and budget to political agencies and its own designation of persons to blame or protect. When a situation is recognized as a problem to be dealt with by the public authorities, certain causes (what is the problem?) and consequences (why this situation c­ onstitutes a problem?) are officially recognized for solutions to be put forward. This competition among scenarios stops, for a more or less long period, when

 1   M. Spector and J.I. Kistuse, Constructing Social Problems (2nd edn, Aldine de Gruyter 1987).  2   D. Stone, Policy Paradox. The Art of Political Decision Making (W.W. Norton and Company 1997), at 197.

376

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When climate-induced migration meets loss and damage  ­377 policy relevance is achieved, namely when a consensus is reached between competing actors on the way to frame and name the problem and thus on the way to deal with it.3 Indeed, over the last decades, a chaotic and often alarmist discourse on the nexus between environmental degradation and migration has been gradually replaced by a more consensual and restrictive definition of climate migration (I). COP 21 opens a new period where climate-induced migration is included in the new policy category of ‘loss and damage’ which, among numerous potential impacts, includes displacement (II). In the last decades, the concept of climate migration has been framed alternatively as a problem in itself, the cause of a problem, or the solution to a problem. A new definitional process is now replacing the initial confusion with the risk of diluting climate migration in the broad category of loss and damage.

I. FROM ENVIRONMENTAL TO CLIMATE MIGRANTS: PROBLEM, CONSEQUENCE OR SOLUTION? The effort to define environmental migration as a problem to be set on the international policy agenda passed through different stages in search of policy relevance. A first period between the late 1970s and the mid2000s was marked by a debate on whether the problem of environmental migration exists and, if so, in what it consists. The scientific community was the most active during this period while international agencies were hesitant to engage in the debate and proceed to problem recognition (A). This situation changed after the definition of climate change as a top global concern in the 2000s. Different expert bodies focused on the nexus between climate change and forced migration while neglecting other ­environmental causes of displacement. Climate induced migration was thus defined as first a consequence, then a possible solution to climate change (B).4

  M. Rein and D. Schön, ‘Policy discourse’ in F. Fischer and J. Forester (eds.), The Argumentative Turn in Policy Analysis and Planning (Duke University Press, 1993), 145, and C. Vlassopoulos, ‘Competing definition of climate change and the post-Kyoto negotiations’ (2012), International Journal in Climate Change Strategies and Management 4.  4   A more detailed analysis of this period, see C. Vlassopoulos, ‘Defining environmental migration in the climate change era. Problem, consequence or solution?’ in T. Faist and J. Schade (eds.) Disentangling Migration and Human Rights (Springer, 2013).  3

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378  Research handbook on climate change, migration and the law A. The Period of Inclusive Conflict: Environmental Migration as an Autonomous Multi-causal Problem Since the late 1970s, environmental migration was discussed essentially among a rather small scientific community divided in two camps: the maximalists and the minimalists.5 The maximalists consist in security and environmental specialists developing an alarmist discourse about millions of people at risk of being forced to migrate, victims of an environment becoming uninhabitable.6 They viewed environmental migration as a consequence of environmental degradation and asked for a more efficient protection of the environment to prevent destabilization. The minimalists were researchers working on migration issues7 who framed human migration as a multi-causal phenomenon, where environmental degradation was only one in a cluster of factors. In their view, the environment was not an independent factor for population displacement and no specific measures needed to be taken to deal with environmental migration as an ­autonomous political concern. During this period and until the 2000s, an extended perception of who should be considered as an ‘environmental migrant’ dominates. In his effort to synthesize existing literature, S. Lonergan suggests that human displacement by environmental factors could emerge either from natural disasters (such as floods, volcanoes and earthquakes), cumulative ­environmental changes (such as deforestation, land degradation, erosion, climate change considered as natural processes aggravated by human activities), industrial accidents, development projects (such as dams and

  A. Suhrke, ‘Environmental degradation and migration flows’ (1994) 47 Journal of International Affairs 473.  6   L. Brown, ‘Redefining national security’ (Worldwatch Paper No. 14, Worldwatch Institute, Washington, D.C., 1977) at 14; D. Pirages, Global Ecopolitics: The New Context for International Relations (North Scituate, MA: Duxbury Press, 1978); W. Ophuls, Ecology and the Politics of Scarcity (San Fancisco, Freeman, 1977); J.L. Jacobson, ‘Environmental Refugees: a Yardstick of Habitability’ (Worldwatch Paper No. 86, Worldwatch Institute, Washington, D.C., 1988); N. Myers, ‘Environmental refugees’ (1997) 2 Population and Environment 167.  7   For instance, M.M. Kritz, ‘Climate change and migration adaptations’ (Working paper series, Cornell University, 1990); G. Hugo, ‘Environmental concerns and international migration’ (1996) International Migration Review 105; G. Kibreab, ‘Environmental causes and impact of refugee movements: a critique of the current debate’ (1997) Disasters 20; R. Black, ‘Environmental refugees: myth or reality?’, New Issues in Refugee Research (UNHCR Working Paper No. 34, Geneva, 2001).  5

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When climate-induced migration meets loss and damage  ­379 Cause Climate change Industrial accidents Development projects Natural disasters, etc.

Problem Environmental migration

Consequences

Solutions

Homeland loss Sustainable development, Impoverishment Ad Hoc Convention Conflict, etc

Figure 17.1  Environmental migration as an autonomous problem irrigation projects), or degradation of the environment as a ‘weapon’8 (see Figure 17.1 above). Based on the alarmist discourse and without seeking to clarify the ­identity of environmental migrants, different advocates started to m ­ obilize in the 1990s to promote environmental migration as an autonomous problem on the agenda of IGOs and asking for ad hoc policy measures to protect displaced population. The effort to frame the concept of environmental migration as an autonomous problem was first observed during the Conference on ‘Migration and Environment’ organized by the International Organisation for Migration (IOM) and the Refugee Policy Group in 1992. The need for a special mechanism to assist environmental refugees was expressed but rejected as a policy option by the UNHCR, who feared that such a move would extend and hence possibly weaken the international protection of the refugees.9 Although IGOs did not further engage with this matter until the late 2000s, other advocates progressively took the lead to support the idea of formulating a specific international mechanism for the recognition and assistance of environmental migrants. The NGO ‘Living Space for Environmental Refugees’ (LISER) was created in order to promote the official recognition of environmental refugees. The New Economic Foundation argued for the recognition of ‘environment refugees’ by the updating of the Geneva Convention.10 A team of French jurists wrote the ‘Appel de Limoges’ for their recognition via an ad hoc international status.11 Two European Green   S. Lonergan, ‘The role of environmental degradation in population displacement. Environmental change and security’ (1998) 4 Project Report 5.  9   A. Suhrke, supra note 5, at 490. 10   M. Conisbee and A. Simms, Environmental Refugees: The Case for Recognition (NEF Pocketbook 2003). 11   C. Vlassopoulos, supra note 4, at 2; C. Cournil, ‘A la recherche d’une protection pour les “réfugiés environnementaux”: actions, obstacles, enjeux et propositions’ (2008) 6 Revue Asylon(s) 4, available at http://www.reseau-terra.eu/ rubrique154.html (last accessed 26 May 2016).  8

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380  Research handbook on climate change, migration and the law deputies proposed, in 2004, to the European Parliament the adoption of a declaration recognizing the status of ‘ecological refugees’. In 2006, the Belgian Senate adopted a resolution calling for the recognition of the status of environmental refugees and in 2008 the parliamentary assembly of the Council of Europe published a report on environmental migration which ‘calls for a further investigation of existing gaps in law and protection mechanisms with a view to an eventual elaboration of a specific framework for the protection of environmental migrants’.12 The definition of environmental migration as an autonomous multicausal problem has the advantage of claiming recognition and protection for all environmentally displaced persons. Yet, it did not gain official recognition because most international institutions (with the notable ­ exception of the IOM) and most states were rather reluctant. This is due to many reasons weakening the policy relevance of the issue. The deliberate effort to avoid weakening the system of the Geneva Convention on the status of refugees is one reason. Another contributing factor is the uncertainty of the scenarios relating to the number of displaced people in the years to come and the disagreement between scientists on whether the problem actually exists. The alarmist discourse that characterized this definitional effort also worked as a ‘push’ rather than a ‘pull’ factor for member states seeking to restrict immigration flows. Lastly, the way the problem of environmental migrants was defined offered very low adaptability to the institutions in question. It is difficult indeed to envisage a common policy response for all the causal attributions included in this definition (man-made environmental changes, natural disasters, strategic environmental deterioration). In other words, situated at the intersection of different policy sectors (environmental, humanitarian, security), the issue was maladapted to the institutional context and prevented the allocation of authority to one institution, which is necessary for policy-making.13 Agenda setting is a process where alternative definitions compete with one another until a consensus is reached. If an issue does not find its way into this process, stakeholders adapt their discourse and their definition of the problem in order to overcome oppositions, increase policy relevance and thus reach consensus. This evolves through a process of inclusion   Council of Europe, Parliamentary Assembly, ‘Environmentally induced migration and displacement: A 21st century challenge’, Report, Doc. 11785, 23 December (2008), available at http://assembly.coe.int/Main.asp?link5/Documents/ WorkingDocs/Doc08/EDOC11785.htm (last accessed 26 May 2016). 13   C. Vlassopoulos, ‘Institutional barriers to the recognition and assistance of environmentally forced migrants’ in T. Affi and J. Jäger (eds.), Environment, Forced Migration and Vulnerability (Springer, 2010) 19. 12

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When climate-induced migration meets loss and damage  ­381 Cause GHG emissions (human & natural)

Problem Climate Change

Consequences Drought/Floods Sea level rise Food security Impoverishment Climate migration, etc.

Solutions Mitigation Development/ adaptation measures

Figure 17.2  Environmental migration as a consequence of climate change and exclusion, which produces alternative perceptions of the causes and consequences of the problem and reallocate authority between policymakers. In the case of environmental / climate migration, a discursive emphasis shifted from environmental migrants or refugees perceived as an ­autonomous problem, to climate migrants or refugees perceived first as a consequence of climate change, then as a possible solution to climate change. This evolution put aside all other causes of environmental displacement but succeeded to place the issue on the international agenda. B. The Period of Exclusive Consensus: Climate Migration as a Consequence and Solution of Global Warming The emergence of climate change as a pressing global concern during the 2000s acted like a magnet attracting a range of issues that began to be discussed in their connection with climate change. Climate change also began to draw the attention of international institutions and NGOs, in charge of these issues, seeking to obtain new possibilities for action, recognition and/ or financing.14 Thus, organizations with no environmental competency have entered the debate. Their concern was not how to mitigate greenhouse gases but how to adapt to a changing climate in order not to aggravate under-development, to promote sustainable development, to prevent the emergence of conflict over scarce resources, to administer population displacement. Indeed, migration was one of the topics integrated into the climate debate. From ‘environmental migration’, the debate shifted then to ‘climate migration’ (see Figure 17.2). Although some efforts to define climate-induced migration as an ­autonomous problem are observable, the active mobilization of humanitarian IGOs, particularly those concerned with population displacement, framed the issue on the policy agenda as a consequence of the problem 14   T. Seybolt, ‘Harmonizing the humanitarian aid network: Adaptive change in a complex system’ (2009) 53 International Studies Quarterly 1031.

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382  Research handbook on climate change, migration and the law Cause Greenhouse Gas emissions (human & natural)

Problem Climate Change

Consequences

Solutions

Drought/Floods Sea level rise Food security Impoverishment, etc.

Mitigation Development/ adaptation Planned Migration

Figure 17.3  Environmental migration as a solution to climate change of climate change. Among them, the IOM was the most active. Not only has it produced political advocacy,15 but it has also actively participated, since 2008, at the Taskforce on Climate Change inside the InterAgency Standing Committee framework (IASC) and the ‘Climate Change, Environment, and Migration Alliance’ (CCEMA) and organized the first side-event on migration in 2008 during COP 14. The UNHCR is another active institution on the subject. It is also a member of the IASC sub-group and its High Commissioner. António Guterres publicly recognized, in a 2008 working paper, the linkages between climate change, natural disasters and human displacement, viewing migration as a consequence of global warming.16 The UNDP also recognized the links between global warming and displacement in a 2007 special report emphasizing the potential ­security threats and calling for development and adaptation action. The simultaneous mobilization of these actors initiated an agendasetting for climate migration rather than environmental migration. Climate migration succeeded where environmental migration failed (see Figure 17.3 above): to be set on the international policy agenda by the active engagement of UN and non-UN agencies and generate international ­

  ‘Climate Change and Migration: Improving Methodologies and Estimate Flows: A Complex Nexus’ (IOM) 2008 http://publications.iom.int/books/mrsndeg33-climate-change-and-migration-improving-methodologies-estimate-flows (last accessed 26 May 2016); ‘Migration, environment and climate change: Assessing the evidence’ (IOM) 2009 http://publications.iom.int/bookstore/free/ migration_and_environment.pdf (last accessed 26 May 2016); ‘Compendium of IOM’s Activities in Migration, Climate Change and the Environment’ (IOM) 2009 http://publications.iom.int/bookstore/free/Compendium_of_IOMs_Activities. pdf (last accessed 26 May 2016); ‘Climate change, environmental degradation and migration: Addressing vulnerabilities and harnessing opportunities’ (IOM) 2009 http://publications.iom.int/bookstore/free/HSN_Quadrilingual_Report.pdf (last accessed 26 May 2016). 16   A. Guterres, ‘Climate change, natural disasters and human displacement. A UNHCR perspective’, Paper (UNHCR) 2008 http://www.unhcr.org/refworld/ pdfid/492bb6b92.pdf (last accessed 26 May 2016). 15

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When climate-induced migration meets loss and damage  ­383 public debate. However, the shift from agenda-setting to policy-making did not take place at this stage. The persistence of an alarmist discourse insisting on supposed threatening large-scale climate-induced migratory flows and the perception of migration as an a priori recognition of the inefficiency of adaptation measures (the dominant hope that adaptation measures will be efficient in which case there will be no migratory problem) were two main impeding factors for policy-making. The question was, however, progressively redefined as a possible solution to the diverse consequences of climate change. The IOM has largely been at the origin of this reconceptualization. In its 2009 publication, it firmly supported the definition of migration ‘as an adaptation strategy [or] a possible way of enhancing adaptation to climate change’.17 It mentioned that: discussions of migration usually see migration as the result of a failure to adapt to the environment, rather than as a possible way of enhancing adaptation to climate change. Migration may itself be one of several adaptation strategies and a coping strategy.

The perception of migration as a policy option for combating the negative impacts of global warming was further accompanied by a more reassuring discourse for developed countries emphasizing the predominantly internal, or regional South-South dimension of climate migration and, thus, ­negating the risk of an invasion of the developed states by climate migrants. The conceptual shift facilitated the recognition of the issue as politically relevant. First, it comforted developed states about the risk of an invasion by climate migrants. Second, the discourse on planned migration gave the impression of a controlled process with potential benefits for receiving countries. Third, both the IOM and the UNHCR, the most active advocates of international engagement on the matter, could find in the new framing a legitimizing role as partners to climate policy-making (the IOM being competent for circular, planned migration and the UNHCR for IDPs). The inclusion of a paragraph in the Cancún Agreements of 2010 in support for international coordination and cooperation18 can 17   ‘Migration, environment and climate change. Assessing the evidence’ (IOM) 2009, 16 http://publications.iom.int/system/files/pdf/migration_and_environment. pdf (last accessed 19 December 2016). 18   Decision 1/CP.16, ‘The Cancún Agreements: Outcome of the work of the Ad Hoc Working Group on Long-term Cooperative Action under the Convention’ (2010), mentioning ‘[m]easures to enhance understanding, coordination and ­cooperation with regard to climate change induced displacement, migration and planned relocation, where appropriate, at national, regional and international levels’.

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384  Research handbook on climate change, migration and the law be ­considered as the outcome of this evolution and the first sign of an ­emerging policy-making process.

II. CLIMATE-INDUCED MIGRATION AS A COMPONENT OF ‘LOSS AND DAMAGE’ A large coalition of policy actors asking for a more human-oriented and not only environment-oriented global climate regime led to the recognition of various social impacts arising from global warming, such as public health, conflicts and security, as well as migration and displacement. The Cancún Agreements, putting mitigation and adaptation on the same footing, not only referred for the first time to climate-induced migration but also officially decided to undertake serious deliberations on ‘Loss and Damage’ (L&D) as a broad category where all these impacts could be assessed and treated in a coherent manner. New institutional structures have been suggested in order to make proposals to the Conference of the Parties. How L&D has been defined? How this evolution influenced the climate migration definitional process and the balance of power between policy actors? A.  A New Policy Category under the UNFCCC The concept ‘loss and damage’ was introduced by the Alliance of Small Island States (AOSIS) in 1991 when they proposed the establishment of an international insurance pool as a collective loss-sharing scheme to ­compensate the most vulnerable small-island and low-lying coastal ­developing countries for loss and damage arising from sea-level rise.19 Latterly, the Least-Developed Countries bloc (LDCs) and G 77 joined them under a common effort to impose this concept on the UNFCCC as a specific policy category20 including different risks of loss and damage to be dealt with under the Convention. L&D took many years before it began appearing in official ­documents.21 Time was needed to reach consensus on whether L&D should be c­ onsidered   Chukwumerije Okereke et al., ‘Options for Adaptation and Loss & Damage in a 2015 Climate Agreement’ (Working Paper, ACT, 2014), available at http://www.preventionweb.net/publications/view/41675. 20   We use the term ‘category’ to describe the creation of a vast policy unit within which are integrated different more specific policy ‘issues’. 21   K. Warner and S.A. Zakieldeen, ‘Loss and Damage due to Climate Change. An overview of the UNFCCC negotiations’, (non dated) ECBI, available at http:// 19

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When climate-induced migration meets loss and damage  ­385 as a question for international negotiations and on the way to frame its content. Based on the polluter-pays principle and the principle of state responsibility for transboundary harm, L&D advocates raised the need for compensation causing stiff opposition from the countries most responsible for GHG pollution.22 The term ‘L&D’ was inserted in the Bali Action Plan of 2007 and further mentioned in 2010 the Cancún Agreements. The latter recognized ‘the need to strengthen international cooperation and expertise in order to understand and reduce loss and damage associated with the adverse effects of climate change, including impacts related to extreme weather events and slow onset’.23 At COP 17 in Durban (2011), negotiators finally reached a consensus on elements of the SBI Work Program on Loss and Damage that should survey the topic.24 A technical paper by the UNFCCC Secretariat of May 2012 notes that, although there is no definition of the term ‘loss and damage’ the Cancún Agreements provide the boundaries by referencing impacts from extreme weather and slow-onset events, including sea-level rise, increasing temperatures, ocean acidification, glacial retreat and related impacts, salinization, land and forest degradation, loss of biodiversity and desertification.25 Impacts may concern the society, the economy or the environment and are divided into ‘direct’ and ‘indirect’. A further definitional clarification appears to the FCCC’s October 2013 technical paper on non-economic losses, which defines L&D in abstract terms as ‘the residual costs, which are not avoided through adaptation and mitigation’.26

www.oxfordclimatepolicy.org/publications/documents/LossandDamage.pdf (last accessed 26 May 2016). 22   M.J. Mace and M. Schaeffer, ‘Loss and Damage under the UNFCCC: what relationship to the Hyogo Framework?’ Report prepared by Climate Analytics, 10/2013, available at http://loss-and-damage.net/4941 (last accessed 19 December 2016). 23   Decision 1/CP.16, ‘The Cancún Agreements’, supra note 18, para. 25. 24   Ibid., para. 26: ‘Decides to hereby establish a work programme in order to consider, including through workshops and expert meetings, as appropriate, approaches to address loss and damage [. . .] Requests the Subsidiary Body for Implementation to agree on activities to be undertaken under the above-­ mentioned work programme.’ 25   FCCC/TP/2012/1, Technical paper, ‘Current knowledge on relevant methodologies and data requirements as well as lessons learned and gaps identified at different levels, in assessing the risk of loss and damage associated with the adverse effects of climate change’ (2012) at 9, available at http://unfccc.int/resource/ docs/2012/tp/01.pdf (last accessed 19 December 2016). 26   FCCC/TP/2013/2, Technical paper, ‘Non-economic losses in the context of the work programme on loss and damage’, para. C(6), available at http://unfccc. int/resource/docs/2013/tp/02.pdf (last accessed 26 May 2016).

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386  Research handbook on climate change, migration and the law Cause

Greenhouse Gas emissions

Problem

Consequences

Solutions

Avoidable

Mitigation-adaptation measures

Climate Change Non-avoidable L & D:

Unspecified ad hoc mechanisms

Figure 17.4 Loss and Damage defined as residual costs that have not been avoided The recognition of L&D as a specific climate policy-making field (see Figure 17.4 above) and the definition put forward imply that the ­international community agree to take over the possible failure of climate policy. Yet, the presentation of loss and damage in the Paris Agreement is not so clear: article 8 of the Agreement recognizes ‘the importance of averting, minimizing and addressing loss and damage associated with the adverse effects of climate change’. The use of the verbs ‘avert’ and ‘minimize’ is contradictory to the only official definition L&D proposed in the 2013 UNFCCC technical paper. If the negative impacts of climate change can be avoided, the concept of loss and damage becomes obsolete because it is supposed to refer to the residual costs, which are considered not avoided through adaptation and mitigation. Thus, indirectly, the Paris Agreement formulation suggests that adaptation and mitigation suffice. In other words, confusion remains in the way to perceive L&D which is probably due to the discomfort of Annex I countries to fully recognize a concept that refers to a claim for compensation. Climate migration appears for the first time as a component of L&D in 2012 and different unspecified terms are used (human mobility, territory, displacement). From a consequence of climate change that could be dealt with by mitigation and adaptation measures or by an ad hoc mechanism (planned migration) it becomes a fragment of the broader consequence of loss and damage to be addressed as a failure of mitigation and adaptation efforts. B.  Dismantling Climate Migration? The Cancún Agreements addressed migration and L&D separately, although both as components of enhanced action on adaptation–­migration under paragraph 14(f) and L&D under paragraphs 25–29 (see Figure 17.5). In the following years, however, migration was progressively introduced in

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When climate-induced migration meets loss and damage  ­387 Problem

Consequences

Solutions

Non-avoidable

Economic Climate change

L&D Direct or indirect

Non-economic:

Unspecified ad hoc mechanisms

Biodiversity Ecosystem services Life Health Climate migration, etc.

Figure 17.5  Migration defined as residual costs of L&D discussions on loss and damage. This resulted in a relative confusion as to the terms used and the treatment of migration under the UNFCCC. The progressive recognition of migration as a form of L&D is observable in a technical report produced by the UNFCCC Secretariat in May 2012 with a short reference to ‘forced migration’ as a data-requirement challenge: ‘Some of the impacts of climatic change, such as sea level rise, are not sufficiently represented in global loss databases since the corresponding slow onset impacts are rather difficult to capture (e.g. losses due salinization or forced migration).’27 This inclusion is confirmed in decision 3/CP.18 evoking indistinctively ‘migration’, ‘displacement’ and ‘human mobility’ as climate change impacts in developing countries that are particularly vulnerable, calling for research in ‘how impacts of climate change are affecting patterns of migration, displacement and human mobility’.28 A technical paper of the UNFCCC Secretariat in November 2012 ­reporting on slow-onset events noted that slow-onset events may produce ‘displacement’.29 This paper mentions the option of ‘planned migration’ as a potential response, in particular through ‘providing a trust

  FCCC/TP/2012/1, Technical paper, supra note 25, at 4.   Report of the Conference of the Parties in its 18th session, held in Doha from 26 November to 8 December 2012, at 23, available at http://unfccc.int/resource/ docs/2012/cop18/eng/08a01.pdf (last accessed 26 May 2016), http://unfccc.int/ meetings/doha_nov_2012/meeting/6815/php/view/decisions.php (last accessed 26 May 2016). 29   FCCC/TP/2012/7, Technical paper, ‘Slow on set events’ (2012), para. 30, available at http://unfccc.int/resource/docs/2012/tp/07.pdf (last accessed 26 May 2016). 27 28

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388  Research handbook on climate change, migration and the law fund and new territory for those displaced by slow onset processes’.30 Another technical paper of October 2013, on non-economic losses, ­characterizes ‘displacement’ and ‘human mobility’ (indistinctively) as noneconomic losses associated both to slow onset and extreme events. The consideration of migration as non-economic loss is problematic if it is regarded as a global issue requiring an international response. As stated pertinently by O. Serdeczny et al., non-economic L&D has two main characteristics: context-dependence and incommensurability of value. For the matter discussed here, context dependence is problematic in an international setting because actors need to rely on universal standards for the recognition of losses.31 In that sense, it becomes less obvious to expect a global policy response to forced migration. The 2013 technical paper on non-economic L&D suggests a first ­definition of the terms used by splitting climate-induced migration into two distinct sub-issues: ‘human mobility’ and ‘territory’. The former refers to ‘displacement as the clearest case of non-economic loss in the continuum of human mobility’.32 The latter refers to ‘loss of territory in the sense that territory provides sovereignty and a sense of place’.33 It is however clear that loss of territory is intimately linked to displacement as the most indisputable climate-change impact generating massive forced migration. It is no coincidence indeed that the High Commissioner on Refugees ­recognized, for the first time, loss of territory as a situation that triggers the definition of ‘refugee’ proposed by the Geneva Convention.34 This distinction carries the risk of differentiating between more or less forced displacement, leading to different regimes of recognition and assistance. ‘Human mobility’ refers to voluntary and planned migration as well as to displacement. The first two concern voluntary movements and forms of adaptation while the third refers to forced movements as a failure to adapt. However, as is asserted, ‘measurement of climate change related displacement suffers from a lack of standard concepts and methodologies as well as barriers to data collection [. . .] full quantification of loss and

  Ibid., para. 38.   Serdeczny et al., ‘Non-economic loss and damage: addressing the forgotten side of climate change impacts’ Briefing Paper, 10/13, German Development Institute, available at http://climateanalytics.org/files/neld_bp_final_1.pdf (last accessed 19 December 2016). 32   FCCC/TP/2013/2, Technical paper, ‘Non-economic losses in the context of the work programme on loss and damage’ (2013), at 27, available at http://unfccc. int/resource/docs/2013/tp/02.pdf (last accessed 26 May 2016). 33   Ibid., at 24. 34   A. Guterres, supra note 16, 6. 30 31

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When climate-induced migration meets loss and damage  ­389 damage is likely to be inaccurate if not impossible’.35 Since measurement of climate-related displacement is impossible, the distinction between voluntary and forced movements and the recognition of forced migrants become unlikely. Responsibility attribution is thus internalized to migrants themselves: ‘identifying and educating about the risk of displacement can allow people to determine their own valuations and bring this risk into their own decision-making’.36 Only the case of ‘loss of territory’, r­ esulting in the loss of sovereignty, is considered as a human rights violation (the right to self-determination), and as such no specific measurement is needed beyond the fact of the violation itself.37 It is consequently the only situation where recognition and assistance could be envisaged. The Warsaw International Mechanism for Loss and Damage associated with Climate Change Impacts (WIM) was established at COP19 in 2013 as the main vehicle under the Convention to promote the implementation of approaches to address loss and damage in a comprehensive, integrated and coherent manner. In its first annual report, the Executive Committee of the WIM does not pursue the distinction between human mobility and loss of territory. Nevertheless, definitions remain blurred. The initial twoyear workplan refers to ‘migration’, ‘displacement’ and ‘human mobility’ without specifying any distinction between these terms.38 Likewise, the second annual report of the Executive Committee in 2015 uses the terms ‘migration’ and ‘displacement’, with no further precision, considering them only as potential future climate-change impacts.39 A late draft of the Paris Agreement recognized ‘the importance of promoting, protecting and respecting the rights of migrants in climate vulnerable situations’.40 However, in its final version, the Paris Agreement does not contain any reference to climate-induced migration. The recognition in the preamble that: ‘Parties should, when taking action to address climate change, respect, promote and consider their respective obligations on human rights’ is a very general provision on human rights generally.  FCCC/TP/2013/2, supra note 26, para. 86.  Ibid. 37   Ibid., para. 89. 38   FCCC/SB/2014/4, ‘Report of the Executive Committee of the Warsaw International Mechanism for Loss and Damage associated with Climate Change Impacts’, Action Area 6, at 11, available at http://unfccc.int/resource/docs/2014/ sb/eng/04.pdf (last accessed 26 May 2016). 39   Ibid., at 6. 40   Information given by the Director General of the IOM at the side event on ‘Human mobility on a changing climate’ (2015), available at http://unfccc6. meta-fusion.com/cop21/events/2015-12-10-15-30-international-organization-formigration (last accessed 26 May 2016). 35 36

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390  Research handbook on climate change, migration and the law Reference to climate-induced migration is made only in the paragraph of the decision of the parties adopting the Agreement. At paragraph 50 of this Decision, a task force assisted by existing bodies and expert groups under and outside the Convention is invited to ‘develop recommendations for integrated approaches to avert, minimize and address displacement related to the adverse impacts of climate change’. The verbs ‘avert’ and ‘minimize’ express the same contradiction and confusion as the one commented on above for L&D: how a residual cost, which is not avoided through adaptation and mitigation, can be averted or minimized? The impression is that, although a new category is created (L&D) to address climate migration, what is said simply repeats what is being done as adaptation. The definitional developments the years 2010–15 show that there is still no consensus on the definition of climate migration. Forced migration is no longer perceived as a direct consequence of climate change but as a subissue to be dealt with in the broad consequence of L&D. Its consideration as a case of non-economic loss and damage renders the emergence of a global policy response less likely. In that sense, the optimism that arose after the first official recognition of forced migration as a specific impact of climate change in the Cancún Agreements seems to be vanishing. Several years of tense political debates were needed to obtain an acceptable framing of the issue for the actors involved. More debates will be needed for framing L&D in a policy-relevant way. A consensus will not easily be reached. First, L&D is a broad policy category including a considerable amount of ­specific and complex issues. Second, developing countries initially formulated L&D as a claim to recognize responsibility and obtain compensation from ­developed countries for the residual costs incurred after implementation of mitigation and adaptation efforts to address climate change. Developed countries are not ready for such recognition. Although paragraph 52 of the decisions accompanying the Paris Agreement makes clear that ‘Article 8 of the Agreement [concerning L&D] does not involve or provide a basis for any liability or compensation’, fundamental disagreements will persist on the subject between developed and developing countries. C.  Loss of Control by Former Policy Actors? A technical paper of the UNFCCC in November 2013 identifies different institutional arrangements within and outside the Convention to address loss and damage, including migration. It recognized in particular the role of the International Organisation for Migration, the UNHCR and the Norwegian Refugee Council, along with the Nansen Initiative, in sparking attention and addressing specific aspects of environmental migration. Despite this recognition, developments on loss and damage under the

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When climate-induced migration meets loss and damage  ­391 UNFCCC have given no specific role to these institutions. To the contrary, decision 2/CP.19 (2013) establishing the WIM arguably formalizes the consideration of all aspects of ‘Loss and Damage’ as part of the UNFCCC attributions by the creation of an ad hoc institution: ‘the Executive Committee of the Warsaw International Mechanism, which shall function under the guidance of, and be accountable to, the COP, to guide the implementation of functions of the Warsaw International Mechanism’. The criteria for the composition of the Executive Committee decided by the COP are that ‘the Executive Committee shall be composed of 20 members nominated by Parties in their respective groups or constituencies’. The need to open the Executive Committee to broader collaboration was recognized twice but with yet no tangible outcomes. According to its second report in 2015, the Executive Committee ‘initiated discussion in relation to engaging with and reaching out to. . . [r]elevant organizations and experts to provide scientific information on projected migration and displacement based on projected climate and non-climate related impacts in vulnerable populations’.41 Moreover, the Parties to the UNFCCC decided at COP 21 that the Executive Committee should: establish, according to its procedures and mandate, a task force to complement, draw upon the work of and involve, as appropriate, existing bodies and expert groups under the Convention [. . .] as well as relevant organizations and expert bodies outside the Convention, to develop recommendations for integrated approaches. . .42

However, the retreat from the process of expert bodies mobilized for a long time in the field became clear at the side event on ‘[h]uman mobility in a changing climate’ organized by the IOM during the COP 21. When a ­journalist asked what the negotiations on loss and damage were doing and how this mechanism would help people in displacement, none of the ­panelists (the IOM Director General, the Executive Secretary of the UNCCD, the UNHCR representative, the Norwegian Refugee Council secretary general) was able to respond. The only answer given by the Executive Secretary of the UNCCD was that ‘none of us is ready to answer because it is absolutely not clear yet how the mechanism of loss and damage will work’.43 The signs of marginalization of former bodies and expert groups can   FCCC/SB/2015/3, at 6.   FCCC/CP/2015/10/Add.1, ‘Report of the Conference of the Parties on its twenty-first session’, para. 50, available at http://unfccc.int/resource/docs/2015/ cop21/eng/10a01.pdf (last accessed 26 May 2016). 43   Side event on ‘Human mobility on a changing climate’, supra note 40, at 13. 41 42

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392  Research handbook on climate change, migration and the law be explained by the fact that their mobilization, particularly the IOM’s and the UNHCR’s, did not take place in a vacuum. Climate change resonates with a more or less structured policy community, reflecting a specific balance of power between policy actors as well as a specific policy ­orientation. Until the 90s, climate change was defined as an environmental problem to be dealt with by mitigation measures under the responsibility of the UNFCCC Secretariat. Progressively the discussion moved to global warming as a threat for humanity’s wellbeing. An implicit opposition started then between environment- and society-oriented policy actors. In April 2009, before the Copenhagen meeting, the humanitarian and development UN agencies (UNDP, UNHCR, FAO, OCHA, WFP, WHO, UNFPA, UNICEF, UNHABITAT) together with the IOM, the World Bank, and humanitarian NGOs (ICRC, ICVA, IFRC, InterAction), as parts of the Inter-Agency Standing Committee, addressed a letter to Yvo de Boer, Executive Secretary of the UNFCCC, asking for ‘the humanitarian implications of the climate change to be duly acknowledged and addressed in a successor agreement to the Kyoto Protocol’. They also claimed the establishment of ‘a joint action considered as the only way forward’ and affirmed their determination to ‘continue to engage with the climate change community and all other relevant stakeholders to identify and implement solution that address the growing challenge that climate change presents to humanity’.44 Although today it is entirely accepted that environmental and humanitarian considerations are the two pillars of climate policy, the institutional framework responsible for negotiations and policy-making, namely the UNFCCC Conference of the Parties and the Secretariat, remained unchanged. Instead of a process engaging the new actors brought on stage by this evolution they incorporated the humanitarian dimension into ­existing structures, confirming their leading position. As far as the contribution of humanitarian bodies and expert groups to the work of the Executive Committee is not specified, disagreements between policy actors will persist, cumulated knowledge and experience on different aspects of L&D risk to be underrated and decision-making will depend on the balance of power between Parties to the Convention.

44

  C. Vlassopoulos, supra note 3, at 1.

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When climate-induced migration meets loss and damage  ­393

III. CONCLUSION Nearly 40 years of more or less visible debate traces the definitional history of environmental and climate migration. Scientists, political actors, NGOs, IGOs, compete in the public arena, each one having a specific perception of what should be the problem and what should be done about it. Among all the candidates, only climate migration gained official recognition but, today, the agenda-setting process seems weakening. First, following its integration into the broad category of L&D, climate migration risks losing its recognition as a specific policy issue. Second, additional time will be needed to reach a consensus on how to perceive the new category of loss and damage and on possible policy measures. Third, most active policy advocates, like the IOM and the UNHCR, risk losing authority over the issue considered from now on as a risk to be dealt with under the Convention.

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18.  The refugees of the Anthropocene François Gemenne

INTRODUCTION In a volume intended primarily for legal scholars and students, and replete with legal contributions, I am aware that any contribution using the word ‘refugee’ in its title, like mine, is likely to draw away more than one reader. For those who are still reading, rest assured: I am also well aware that the term is improper and inappropriate in the context of climate change and other environmental disruptions, and that the simple fact of using it amounts to a scholarly suicide in the world of international refugee law. Not being a legal scholar comes with many inconveniences – people have an annoying tendency to take you less seriously at conferences, for example  – but there’s one perk: you can use the words ‘climate refugee’ and still have your job the next day. And I would like to use this to my ­advantage in this chapter, and present two good reasons to speak of ‘climate refugees’. I had already mentioned one of these reasons in a short paper published in May 2015 in the Forced Migration Review,1 and upon which the editors of this volume have kindly asked me to elaborate. The pathetic response that has been given to the European ‘refugee crisis’ that unfolded in recent years has prompted me to think of another one. But before I present this other reason to talk about ‘climate refugees’, let me just clarify one thing: I don’t ignore the frustration felt by legal ­scholars when they see an occurrence of the term ‘climate refugee’. I know they have campaigned hard for the term to be banned from scholarly papers on the matter. And this is a battle they have won, at least to some extent. The paradox seems that the more ‘climate refugee’ is gaining ground in the medias and public debates, the more it is repelled by academics. There are indeed plenty of good reasons to consider the term a ­misnomer, unfit to describe the situation of those displaced by the impacts of climate change or other environmental disruptions. So before anyone

  François Gemenne, ‘One good reason to speak of “climate refugees”’ (2015) Forced Migration Review 70. Many thanks to Benoît Mayer for reviewing an earlier version of this chapter.  1

394

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The refugees of the Anthropocene  ­395 comes in with a stick and lambasts my use of the term, I thought I would rather enumerate myself some of these reasons. The first one is obvious and well-known: the 1951 ‘Geneva’ Convention relating to the Status of Refugees does not consider environmental ­disruptions as a persecution opening up the right to a refugee status. I have never bought that explanation, I have to say. The term ‘refugee’ is not limited, in public debates, to its legal usage. Rather, it applies to ‘anyone seeking refuge’, whatever the reason and wherever the place – and thus seems perfectly fitting to designate those uprooted by environmental disruptions. But using the term ‘refugee’ might create false expectations for the ­observers, or for the displaced themselves: they might think that they would be entitled to an international legal protection if they crossed a border, which is evidently not the case. This is indeed a risk that should be avoided. There have been several proposals, over the past years, to create a specific status of ‘climate refugee’, or ‘environmental refugee,’ possibly through a new international convention.2 And many, in politics, continue to believe that such a new status would be a solution – and even a silver bullet, sometimes – to address the issue. Surprisingly, such proposals have often been met with staunch opposition from developing countries, in particular those that experienced (or are expected to experience) the most significant migration flows related to environmental degradation. A key reason for that opposition was that a refugee status would undermine the adaptation efforts that were already undertaken: what is the point of investing in adaptation, if the land was eventually to be abandoned? That argument was particularly present in the discourse of small island states: advocating a status for ‘climate refugee’ amounted to admitting defeat in the fight against sea-level rise. They insisted that they were champions of adaptation rather than victims of climate change, and that ‘climate refugee’ should not become consubstantial of their people’s identity.3 Another reason for developing countries to oppose that status was that they did not want to be associated with countries that produced ‘political’ refugees. Those countries were often failed states that persecuted their own population. Being associated with them, as countries producing refugees,  2   See for example what I consider as the most elaborate proposal in this direction: M. Prieur et al. ‘Projet de convention relative au statut international des déplacés environnementaux’ (2008) 4 Revue Européenne de Droit de l’Environnement 381.  3   C. Farbotko, ‘Wishful sinking: Disappearing islands, climate refugees and cosmopolitan experimentation’ (2010) 51(1) Asia Pacific Viewpoint 47.

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396  Research handbook on climate change, migration and the law was simply inconceivable. On the contrary, developing countries insisted that they were not failed states and were doing everything they could to assist their people: putting these under international protection would add insult to injury.4 Furthermore, in the eyes of developing countries, an international status was often perceived as an attempt by industrialised countries to impose a further obligation upon them. And indeed, it is likely that people displaced across borders by climate change would first seek refuge into the ­neighbouring countries – that is, developing countries. In this perspective, the creation of an international legal status was first and foremost a way for industrialised countries to dodge their responsibility and default on developing countries – without disbursing a cent.5 Finally, as pointed by Benoît Mayer – whom I thank – when reviewing this chapter, some of the key countries affected by climate impacts do not grant a specific protection to refugees: Bangladesh and India, for example, are not parties to the Geneva Convention. In these, countries, labelling someone a refugee might do more harm than good. The individual determination of the refugee status is another problem: most often, climate change will be difficult to identify as the main or lead cause of migration, as it intermingles with other migration drivers. Thus there are plenty of reasons, and not just legal reasons, to avoid using the term ‘climate refugee’. I am well aware of them. But there are other points to consider. The term ‘refugee’ is not just a legal term – in usual conversations, it conveys the sense of someone looking for a refuge. And that is exactly what many ‘climate refugees’ are doing: looking for a refuge. The legal definition of a term does not preclude its other m ­ eanings in usual language: our words would sound very bizarre if they were all taken in their legal meaning. And I feel we need to acknowledge that there are different contexts in which words take a different meaning. On these grounds, there are two considerations advocating for us to talk of ‘climate refugees’ again, despite the reasons not to. And that is not just a matter of semantics: we should talk of climate refugees because climate change is a form of political persecution, and because the term ‘migrant’ has sadly become a life-threatening label, in a world marred by populism and xenophobia.

  C. Farbotko and H. Lazrus, ‘The first climate refugees? Contesting global narratives of climate change in Tuvalu’ (2012) 22(2) Global Environmental Change 382, doi:http://dx.doi.org/10.1016/j.gloenvcha.2011.11.014.  5   B. Mayer, ‘Environmental migration in the Asia-Pacific region: could we hang out sometime?’ (2013) 3(1) Asian Journal of International Law 101.  4

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The refugees of the Anthropocene  ­397

I.  POLITICS IN THE ANTHROPOCENE The Anthropocene, according to many geologists, is a new geological epoch, succeeding the Holocene. Meeting at Cape Town in August 2016, the international Working Group on the Anthropocene recommended to the International Geological Congress that the Anthropocene should start in the early 1950s, when nuclear testing spread large quantities of radioactive particles in the atmosphere.6 This new epoch is characterised by the fact that humans have become the driving forces of transformation of the planet, surpassing other geological forces. For the first time in the history of the planet, its inhabitants have become the major drivers of its changes: we have entered the ‘age of humans’. What is remarkable about the Anthropocene is the way a concept derived from geology has entered the realm of social sciences. It is certainly not the first concept to cross the line from natural to social sciences: the concept of adaptation, so important in the climate negotiations, is derived from biology, after all. But what sets the Anthropocene apart is that it might well have a life of its own among social sciences. This is because the Anthropocene is probably now as much a political statement as a geological epoch. And it is a statement for social sciences: the world, which was traditionally conceived as the social and political organisation of the Earth, can no longer be thought of as separately from the Earth itself. Both the world and the Earth need to be thought as one truly ‘global’ system – a concept dear to James Lovelock and Gaia.7 For political science, this signals a new age of geopolitics, in the true meaning of the term: geopolitics is no longer about power over territories, about land and sea, but about the Earth as a whole. Geopolitics is transformed into Gaia-politics – the Politics of the Earth. But there is another way to see this. We also need to be aware that the Anthropocene could also be seen as an operation of de-politicisation of subjects. The Anthropocene, the ‘Age of Humans’, should indeed rather be described as the Oliganthropocene – the age of few men and even fewer women, to use an expression developed by Erik Swyngedouw.8 If the

  Damian Carrington, ‘The Anthropocene epoch: scientists declare dawn of human-influenced age’ The Guardian (29 August 2016), available at https://www. theguardian.com/environment/2016/aug/29/declare-anthropocene-epoch-expertsurge-geological-congress-human-impact-earth.  7   James Lovelock, ‘Gaia as seen through the atmosphere’ (1972) Atmospheric Environment 579.  8   Erik Swyngedouw, ‘Anthropocenic promises: the end of nature, climate change and the process of post-politicization,’ Lecture at the Center for International Studies and Research (CERI), Sciences Po, 2 June 2014.  6

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398  Research handbook on climate change, migration and the law humans have indeed become the principal agents of changes on this planet, overwhelming natural drivers of changes, most humans are actually the victims of these changes, and not their agents. Every year, sudden natural disasters force roughly 26 million people to flee from their homes – a figure that is higher than the flow of those displaced by violence and persecutions.9 This number does not include the many more who are displaced because of the slow, creeping and incremental impacts of climate change, and who are not accounted for in any kind of statistical database.10 Environmental changes – human-induced or not – have now become a major driver, if not the major driver, of migration and displacement on this planet. And when we speak of the Anthropocene as the epoch when humans have become the main drivers of changes on this planet, we often tend to forget that most humans on this planet are actually the victims of these changes.

II.  AGENCY IN MIGRATION Migration related to climate change is often perceived as a decision of last resort that people take when they have exhausted all possible options for adaptation in their place of origin, and are left with no other choice. Reports on climate-change impacts are indeed replete with the idea that climate-induced migration should be avoided at all cost, and would ­represent a failure of both mitigation and adaptation policies.11 Over time, ‘climate refugees’ have become the human face of global warming, being at the same time the first witnesses and the first victims of climate impacts such as sea-level rise or melting permafrost. This has been particularly true for populations from small-island states, portrayed as ‘canaries in the mine’, alerting the rest of the world to the dangers of climate change, and themselves left with no choice other than to relocate abroad.12  9   Michelle Yonetani, ‘Global Estimates 2015: People Displaced by Disasters’ (Internal Displacement Monitoring Centre & Norwegian Refugee Council, 2015), available at http://www.internal-displacement.org/assets/library/Media/201507-glo​ balEstimates-2015/20150713-global-estimates-2015-en-v1.pdf. 10   François Gemenne, ‘One good reason to speak of “climate refugees”’ (2015) Forced Migration Review 70. 11   Norman Myers, ‘Environmental refugees: a growing phenomenon of the 21st century’ (2002) Philosophical Transactions of the Royal Society B 609; Nicholas Stern, The Global Deal: Climate Change and the Creation of a New Era of Progress and Prosperity (Public Affairs, 2009). 12   Carol Farbotko, ‘“The global warming clock is ticking so see these places while you can”: Voyeuristic tourism and model environmental citizens on

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The refugees of the Anthropocene  ­399 Many scholars however, including myself, insisted that this depiction of the migrants did not match reality, and that migration was often a resource used by migrants to deal with environmental changes.13 We insisted that migrants should not be perceived as resourceless, expiatory victims of climate change, but rather as resourceful agents of their own adaptation. We argued that migration could indeed prove a powerful adaptation ­strategy: migrants could diversify their incomes, alleviate environmental pressures in the region of origin, send remittances, or simply put themselves and their families out of harm. And this view was soon embraced by many institutions and organisations, including the international ­negotiations on climate change. In 2010, the Cancún Adaptation Framework included, in its paragraph 14(f), the ‘measures to enhance understanding, coordination and cooperation with regard to climate change induced displacement, migration and planned relocation’.14 This was a Copernican revolution: migration in the context of climate change was no longer a disaster to avoid at all costs, but a strategy that ought to be encouraged and facilitated. This has led to a drift towards the climate negotiations as the best platform where to discuss the issue. The movement of people was no longer a matter of migration policies, but rather of environmental policies – an adaptation strategy. But what about those who were forced to flee as a result of e­ nvironmental disruptions, those who would have liked to stay but had no other choice? These displacements were now considered as some sort of a collateral damage, one that could be addressed through the loss and damage ­mechanism designed in the climate negotiations.15 Migration related to climate change became something that was no longer a scarecrow of climate change, but rather something we could enable, facilitate and manage. And this is something that we, as a research community, had pushed forward and wished for. Upon further thought, however, I am forced to realise that there is something that we had missed out in this process of ‘de-victimisation’

Tuvalu’s disappearing islands’ (2010) Singapore Journal of Tropical Geography 224. 13   D. Rain, Eaters of the Dry Season: Circular Labor Migration in the West African Sahel (New York: Westview Press, 1999); R. Black et al., ‘Migration as adaptation’ (2011) 478 Nature 447. 14   Decision 1/CP.16, The Cancun Agreements: Outcome of the work of the Ad Hoc Working Group on Long-term Cooperative Action under the Convention (2010). 15   Decision 3/CP.18, Approaches to address loss and damage associated with climate change impacts in developing countries that are particularly vulnerable to the adverse effects of climate change to enhance adaptive capacity (2012), para. 7(a)(vi).

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400  Research handbook on climate change, migration and the law of the migrants: we used environmental changes as a Trojan horse to ­‘de-politicise’ migration. In our quest to make research policy-relevant, we let policies take over politics; we let governance replace government. In a nutshell, we forgot what we were doing to the victims of the Anthropocene. In our attempt to stress the agency of the migrants, we forgot the responsibility that we had towards them. Because the Anthropocene is first and foremost a war – a war that we are waging against the most vulnerable populations of this planet. We, humans, have become the main agents of transformation of the Earth. And the result of this transformation has been to make the Earth increasingly uninhabitable for a growing number of people. A fundamental difficulty in the collective action against climate change is that those who need to undertake most of the effort to cut greenhouse gas emissions – the industrialised countries – are also those who will be comparatively the least affected by the impacts of global warming. From a rational, neo-liberal perspective, industrialised nations thus have little incentive to act: our agency is denied by our interest. Climate change, indeed, is rooted in the inequalities between rich and poor; and migration is the lens through which these inequalities ­materialise. Early theories on migration, such as those of Lee (1966),16 assumed that migration could be an adjustment between inequalities; yet they are the symptom rather than the cure.

III.  DE-POLITICISING MIGRATION Migration as an adaptation strategy also makes migration a matter of environmental policy, rather than of migration policy. It becomes an object of managerial governance, where people can be moved from one place to another, as if they were pieces on a global exchequer. In that regard, the dismissal of the term ‘climate refugee’ also contributes to this depoliticisation of migration. Legal scholars and international organisations have been very keen to dismiss the term, and most of the scholars have logically agreed not to use it. Instead, they turned to more clinical terms such as ‘climate-induced migrants’, ‘people on the move in the context of climate change’, etc. I was one of them, and I think I was wrong. By forgoing the term ‘climate refugee’, we have also ­depoliticised the reality of these migrations. A central element in the concept of ‘refugee’ is persecution: in order to qualify as a refugee, you need to flee a p ­ ersecution, 16

  Everett S. Lee, ‘A Theory of Migration’ (1966) 3(1) Demography 47.

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The refugees of the Anthropocene  ­401 or to fear a persecution. And forgoing the term ‘climate refugee’ is also, in a way, forgoing that climate change is a form of persecution against the most vulnerable. This is an idea that was developed by Conisbee and Simms in 2003,17 and I feel they understood then that climate-induced migration was a very political affair, rather than an ­environmental one. For this very reason, and contrary to what I might have thought and written in the past, and despite the legal difficulties, I think this is a very strong reason to use the term again: because it recognises that these migrations are first and foremost the result of a persecution that we are inflicting on the most vulnerable.

IV.  REFUGEES VS MIGRANTS The so-called ‘refugee crisis’ which has taken Europe by surprise since 2014 has plunged the continent into a deep political crisis, questioning its unity and common values – and I am not even talking about the tragedies that take place every day in the Mediterranean Sea. One of the appalling consequences of this political crisis has been the revival of the outdated dichotomy between refugees and migrants. This time, most international organisations and scholars insisted that those fleeing Syria and other conflicts were not migrants but refugees. And that they were entitled, as such, to international protection. Many insisted that using the right words was essential, and that the desperate souls fleeing Syria should not be confused with ‘economic migrants’. That was of course true. But drawing a thick line between refugees and migrants amounts, in this context, to pitting refugees against migrants. As if the only way to safeguard asylum was to set ­refugees and migrants apart: refugees should be welcomed to Europe, whereas migrants should be returned to where they came from. As if the protection of refugees could only be guaranteed at the expense of the rights of the migrants. In the mind of the public, there were now ‘good refugees’, whose migration motives were legitimate, and ‘bad migrants’, whose motives were not. The way we called them implied a judgement on the legitimacy of the presence. This judgement was materialised into actual policy: the deal struck between Europe and Turkey stipulates that Europe will accept resettling a refugee from Turkey18 in exchange for each migrant deported back to Turkey from Greece. The deal represents a climax in a

  Molly Conisbee and Andrew Simms, Environmental Refugees: The Case for Recognition (New Economics Foundation, 2003). 18   Up to a quota of 72,000. 17

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402  Research handbook on climate change, migration and the law managerial, depoliticised approach of migration: refugees in, migrants out. In many other countries, recent years have also been marked by a staunch anti-migrant rhetoric: xenophobia was a key element of Donald Trump’s platform for the presidential election, while the Brexit campaign, in the UK, was largely won on the promise to regain control of the national borders. Yet we know that the dichotomy between refugees and migrants makes little sense in reality: forced and voluntary movements represent two ends of a continuum, rather than two discrete categories (Hugo 1996).19 As a matter of fact, the refugee definition from the Geneva Convention is interpreted in a number of different ways, including within the European Union. Most migration flows today are mixed flows, with migrants from different backgrounds, itineraries, objectives and motivations. Migration drivers influence one another. Migration routes are complex and arduous, with different steps along the way, where different migration drivers intervene to determine migrants’ paths. One cannot set apart the political, economic and environmental drivers of m ­ igration. One cannot set apart refugees and migrants, as if the former were legitimate and the latter were not. All are individuals with human rights which must be protected. But in Western countries at least, ‘migrant’ represents nowadays a lifethreatening label. In almost each major democracy, populist and xenophobic platforms garner increasing support from voters. Donald Trump in the US or UKIP in England and Wales won electoral campaigns run on racist, anti-migrant propaganda. This means that when we insist that those displaced by climate change are migrants and not refugees, we are also putting them in harm’s way and denying them any future possibility of international protection. I know that was not the intention. But we would be foolish not to account for the political context, which is increasingly hostile to migrants. The more we will label those displaced by climate change as ‘migrants’, the less likely they are to attract solidarity and attention. A key challenge is therefore to move away from the dichotomy between migrants and refugees, so that the protection of refugees’ rights is not achieved at the expense of migrants’ rights.

19   Graeme Hugo, ‘Environmental Concerns and International Migration’ (1996) 30(1) International Migration Review 105.

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The refugees of the Anthropocene  ­403

V.  OUR RESPONSIBILITY AS SCHOLARS A specificity of the research field on environmental migration is the very close proximity between scholars and policy-makers. This is quite unique: migration scholars who study ‘economic’ or ‘political’ m ­ igration often complain that they have little influence on the policy-making process. Yet the situation is different when it comes to e­nvironmental migration: recent steps forward have been made thanks to a close cooperation between researchers and policy-makers, such as joint ­ ­advocacy efforts. Research on the topic is often policy-oriented, and very connected to on-going policy initiatives. And one cannot deny, indeed, the real progress that has been made over the past few years. The Cancún Framework on Adaptation, for example, has acknowledged the potential of migration as an adaptation strategy, and the Paris Agreement has created a task-force on migration and displacement – such headway has been possible thanks to a close cooperation between researchers and policy-makers, inter alia. But we need to be aware that such progress happens within a bubble – in many aspects, the international negotiations on climate change are ­disconnected from public debates on migration at large. To name only the most striking example, there is an obvious discrepancy between the vision of an adaptation strategy, which ought to be encouraged and facilitated, and the priority of most governments, which is to prevent immigration one way or another. We, researchers, have often contributed to this depoliticisation of migration. Yet we need to be aware that migration is a very political and contentious issue, outside the comfortable and consensual circle of forums on environmental migration. At the end of the day, migration will be dealt with by ministries of the interior rather than the international negotiations on climate change. The managerial approach to migration that is adopted in the climate talks is unlikely to be adopted by ministries of the interior and law enforcement agencies, and this is a fact we need not ignore. The de-politicisation of environmental migration has often set it apart from global migration dynamics, as if it could be addressed as an environmental policy. I am concerned that our past efforts might hit the wall of migration ­policies, and we need to be prepared for this. Forgoing the current political context, and assuming that the designed solutions will be taken on board without question by ministries of the interior or border agencies, would be a terrible mistake. By depoliticising environmental migration, by setting it apart from migration debates, we also have, in a way, let the migrants down.

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404  Research handbook on climate change, migration and the law

VI. CONCLUSION: KEEPING THE EARTH INHABITABLE In April 2013, Bangladesh was struck by the tragedy of the Rana Plaza, the collapse of a garment factory that resulted in the death of more than 1 000 workers. At that time, I was struck by the international reaction to the ­disaster: not only was there a wide-ranging outcry at the working ­conditions in these factories, but many people held clothing companies responsible for the disaster. Some stopped buying clothes from high-street retail chains and called for a boycott, or demanded better working conditions for the garment workers in Bangladesh – sometimes successfully.20 It was as if people had suddenly realised that their buying clothes had ­consequences for people at the other end of the planet. Bangladesh is also a country at the forefront of climate impacts, where displacements are already a common feature. Yet the connection between the action of some and the suffering of others, which was made on the occasion of the Rana Plaza disaster, has not yet been fully made in relation to climate change. And indeed, the biggest challenge of the Anthropocene is perhaps the challenge of cosmopolitism. The Anthropocene, as a concept, might produce the false impression of a unified humanity, where all humans would be agents of change on the planet. Yet the Anthropocene is also rooted in injustices, where the action of some causes the suffering of the others. In that regard, the Anthropocene can also lead to the de-politicisation of subjects, where the ‘environmentalisation’ of politics would actually end up in a de-politicisation of the environment. This is what has ­happened, to a certain extent, when we seized to call those displaced because of climate change ‘climate refugees’. The concept of Anthropocene is first and foremost a matter of raising awareness and keeping the Earth inhabitable. And this is also why there are two good reasons, at least, to speak of ‘climate refugees’.

20   Alannah Francis, ‘I boycotted Primark after the tragedy of Rana Plaza for a more ethical wardrobe’ The Guardian (24 April 2014), available at https://www. theguardian.com/commentisfree/2014/apr/24/boycotted-primark-rana-plaza-ethi​ cal-ward​robe.

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19.  Towards a global governance system to protect climate migrants: taking stock Frank Biermann and Ingrid Boas

INTRODUCTION The impacts of climate change are no longer some abstract narrative used by politicians and environmentalists to raise awareness of the need for our societies to become more sustainable. Instead, communities around the world are experiencing the effects of climate change through problems of food insecurity, water insecurity, energy insecurity and extreme storms that place additional pressure on communities’ livelihoods and resilience.1 Climate change is thus a reality of world politics in the twenty-first century. This has led academia and policy-makers to ask new types of questions: How can we build over the course of the next decades systems of global governance that can cope with the global impacts of climate change? What institutions are in need of redesign and strengthening? To what extent, and in what areas, do we need to create new institutions and governance mechanisms from scratch? One of the most crucial governance needs is, we argue, to address the plight of ‘climate-related migrants (in short, climate migrants)’. Climate change will fundamentally affect the lives of millions of people who may be forced over the next decades to leave their villages and cities to seek refuge in other areas. Although the exact numbers of climate migrants are unknowable and vary from assessment to assessment depending on underlying methods, scenarios, timeframes and assumptions,2 it is clear that many will be affected, which might result eventually in forced ­migration. For example, between 2008 and 2014, more than 25 million people per year

 1   See W. Neil Adger et al., ‘Human security’ in Christopher B. Field et al. (eds.), Climate Change 2014: Impacts, Adaptation, and Vulnerability. Part A: Global and Sectoral Aspects. Contribution of Working Group II to the Fifth Assessment Report of the Intergovernmental Panel on Climate Change (Cambridge University Press, 2014).  2   See François Gemenne, ‘Why the numbers don’t add up: A review of estimates and predictions of people displaced by environmental changes’ (2011) 21 Global Environmental Change 41.

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406  Research handbook on climate change, migration and the law were uprooted because of rapid-onset disasters such as floods and storms.3 Many climate migrants may seek refuge in their own countries; others with more resources or social networks abroad may cross borders to find a new home. Some local migration crises, in particular in the richer countries in the North, may be prevented through adaptation measures such as reinforced coastal protection or changes in agricultural production and watersupply management. Many poorer countries, however, are unlikely to be able to initiate sufficient adaptation programmes, and climate-induced migration might be the only option for many communities in the South. In these situations, climate migrants will need to rely on effective protection and support from the international community, regardless of whether climate migration will be internal or transnational. These systems of global governance for the recognition, protection and resettlement of climate migrants stand at the centre of this chapter, as a major building block of the emerging global governance architecture on adaptation towards climate change. In doing so, we build on our previous work,4 in which we defined the issue of climate-induced migration and proposed a global governance system aimed at protecting endangered communities. While acknowledging that the debate has significantly advanced since our earlier publications regarding the discursive and institutional landscape, we continue to support our central arguments, especially the core governance principles that we advanced as the basic outline of a future regime that would go beyond current institutional realities.

I. ‘CLIMATE MIGRANTS’ VERSUS ‘CLIMATE REFUGEES’ We define climate migrants as people who have to leave their homes, immediately or in the near future, because of sudden or gradual alterations in their natural environment due to sea-level rise, extreme weather events and drought and water scarcity.5 In our first published work on this subject,6

  See Internal Displacement Monitoring Centre, Global Estimates 2015: People Displaced by Disasters (Internal Displacement Monitoring Centre 2015).  4   See Frank Biermann and Ingrid Boas, ‘Preparing for a warmer world: Towards a global governance system to protect climate refugees’ (2010) 10 Global Environmental Politics 60.  5   Ibid.; Frank Biermann, Earth System Governance: World Politics in the Anthropocene (Cambridge, Mass., MIT Press, 2014).  6   See Frank Biermann and Ingrid Boas, ‘Protecting climate refugees: The case for a global protocol’ (2008) 50 Environment 8.  3

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Towards a global governance system  ­407 we used the term ‘climate refugees,’ drawing on the broader notion of environmental refugees that was popularized over twenty years ago by the UN Environment Programme (UNEP), which then included also displacement resulting from natural disasters and human-made constructions such as major dams.7 The notion of ‘climate refugees’ resonates well with popular discourse, and is a term often used by NGOs, the media or politicians to raise awareness of the societal implications of climate change.8 For example, US President Obama warned in April 2016 of ‘waves’ of ‘climate refugees’ due to Arctic warming,9 and so have many more politicians. Nonetheless, ‘climate refugees’ is also a term that has led to much debate and resentment among UN agencies and academics from industrialized countries. In the language of diplomats, international bureaucracies and Northern migration experts, the term ‘climate refugees’ is a sensitive one, and thus largely avoided. The International Organization for Migration (IOM) and the UN High Commissioner for Refugees (UNHCR), for instance, have come to reject the term completely. They do so because of the legal rights that the intergovernmental system currently bestows upon ‘refugees’, which is limited to cross-border flight and to protecting people who are fleeing persecution from their governments for reasons of political belief, religion, ethnicity, and so forth. Climate migrants do not generally meet these criteria to qualify as a ‘refugee’ under the Geneva refugee convention. We have argued in earlier work that it would not be effective to expand the Geneva Convention to include climate refugees – but instead to introduce the term ‘climate refugees’ under a new governance mechanism as a strong moral concept and redefined to also include people displaced within their home country.10 Many academics in the North nonetheless concur with the arguments of the IOM and the UNHCR and suggest, in addition, that the notion of ‘climate refugees’ has alarmist characteristics that fuels images of war, crisis and fear and tends to portray people affected by climate change as passive victims.11 They thus reject the  7   See Essam El-Hinnawi, Environmental Refugees (Nairobi: United Nations Environment Programme, 1985).  8   See Giovanni Bettini, ‘Climate barbarians at the gate? A critique of apocalyptic narratives on “climate refugees”’ (2013) 45 Geoforum 63; Ingrid Boas, Climate Migration and Security. Securitisation as a Strategy in Climate Change Politics (Routledge, 2015).  9   ‘Obama administration warns of “climate refugees” due to rapid Arctic warming’ Guardian (29 April 2016). 10   See Biermann and Boas, supra note 4. 11   See Bettini, supra note 8; Betsy Hartmann, ‘Policy arena. Rethinking climate refugees and climate conflict: rhetoric, reality and the process of policy discourse’ (2010) 22 Journal of International Development 233.

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408  Research handbook on climate change, migration and the law term. Furthermore, studies also suggest that affected populations do not ­necessarily want to be called a refugee as it provides an image of a passive victim.12 However, we see also strong political interests that discourage the notion of ‘climate refugees’, not the least because refugees can rely on legal rights to protection that migrants lack. Especially for powerful ­industrialized countries—that are also the main donors of most funding agencies in this domain—it is politically more attractive and opportune to frame the issue as a problem of ‘migration’ rather than as a ‘refugee crisis’, which might require a much costlier response.13 This debate suggests that while the term ‘climate refugees’ indeed may have alarmist connotations for some observers, it also has strong moral ones invoking stronger forms of societal protection —at least from the perspective of Western countries. Also, legally, there is no compelling reason to reserve the stronger term ‘refugee’ for a limited category of political refugees who stood at the centre of attention in 1951, when the Geneva Convention was agreed. Why should inhabitants of some atolls in Tuvalu who might require resettlement due to sea-level rise receive less protection than those fearing political persecution? Moreover, as the current European migration crisis suggests, the term ‘migration’ may even have negative connotations with populist Northern politicians who associate it with notions of fortune seekers and mass migration—and thus crisis as well. An alarmist discourse is also not solely dependent on the usage of a specific term but results from a whole lexicon of negative notions around the issue of climate-induced migration.14 It is thus not as simple as just blaming it all on the term ‘climate refugees’, but it is rather the negative discourse associated with notions as migration, displaced persons and also climate refugees, that requires careful attention and is in need of transformation. And yet, because we seek in our work to advance a governance regime to protect climate migrants rather than to impose a definition, we use in this chapter, the term ‘climate-related migrants (in short, climate migrants)’. Even though this term is not without its problems, as discussed above, it is more accepted among international bureaucracies, governments and migration experts. We thus use the term ‘climate migrants’ more for the sake of convention than out of conviction. We realize that the term still puts most emphasis on the driver of climate change in causing migration,

12   See Jane McAdam and Maryanne Loughry ‘Why we aren’t refugees’ Inside Story (30 June 2009). 13   See Biermann, supra note 5. 14   See Boas, supra note 8.

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Towards a global governance system  ­409 and thus does not well convey the multi-causal nature of the phenomenon. We nonetheless do so as climate impacts are becoming more frequent and extreme in affecting communities in coastal areas of for instance Bangladesh,15 thus also requiring a governance mechanism that provides a tailored form of protection to these communities. General migration mechanisms do not suffice as climate migration is also about prevention, adaptation and disaster-risk reduction. Our notion of ‘climate migrants’ covers people in both ­industrialized and developing countries. However, in practical terms only climate migrants in developing countries will be an issue of international concern, cooperation and assistance. It is people in developing countries who are most likely to be compelled to leave their places, owing to low adaptive capacities, their often vulnerable location vis-à-vis climate change events, often high ­population densities, already existing hunger and health problems, low level of GDP per capita, often weak governance structures, political instability and other factors.16

II. CURRENT GLOBAL GOVERNANCE OF CLIMATE MIGRANTS In recent years, many proposals have been made to ensure legal protection for climate migrants, some of them being discussed in this volume. Most, even though not all,17 authors agree that it seems unfeasible to provide this protection through the 1951 Geneva Convention Relating to the Status of Refugees and its 1967 Protocol Relating to the Status of Refugees. These institutions are restricted to individual political refugees who flee their countries because of state-led persecution and thus do not cover climate migrants.18 Given this rather restrictive definition of p ­olitical refugee under the Geneva Convention, the executive committee of the UNHCR and the UN General Assembly allowed the agency to gradually extend its activities towards other groups, such as former refugees who have returned

  See Displacement Solutions, Climate Displacement in Bangladesh. The Need for Urgent Housing, Land and Property (HLP) Rights Solutions (Displacement Solutions, 2012). 16   See Nicholas Stern, The Stern Review on the Economics of Climate Change (Cambridge, UK: Cambridge University Press, 2007). 17   For an exception see in particular Laura Westra, Environmental Justice and The Rights of Ecological Refugees (Earthscan, 2009). 18   See JoAnn McGregor, ‘Climate change and involuntary migration: implications for food security’ (1994) 19 Food Policy 120, at 126. 15

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410  Research handbook on climate change, migration and the law to their homeland, internally displaced people and people who are stateless or whose nationality is unrecognized or not established. However, such people still have a different legal status and are formally not referred to as ‘refugees’. In the current regime, most climate migrants could be conceptualized as internally displaced persons. The UNHCR has a variety of programmes for such people. Also, environmentally internally displaced persons fall under the Guiding Principles on Internal Displacement of the Office of the High Commissioner for Human Rights. However, the concept of ‘environmentally internally displaced person’ serves, as argued for instance by Keane, only ‘as a descriptive term, not as a status that confers obligations on states’.19 The Guiding Principles state for example that the primary duty to provide protection and humanitarian assistance lies with national authorities. Several initiatives have been put in place to strengthen such soft law mechanisms to protect those displaced due to natural disasters and climate change, such as the Nansen Initiative on cross-border displacement in the context of disasters and the effects of climate change20 and the Peninsula Principles on Climate Displacement within States. They seek to offer governments further guidance on how to support the specific category of climate migrants, as they may require other help than those displaced to economic or political reasons, such as permanent resettlement programmes or disaster relief. With all of these mechanisms the focus remains, however, on the role of national authorities and less on that of the international community. Some international principles may slowly emerge around discussions on ‘loss and damage’ in the UN Framework Convention on Climate Change (UNFCCC), specifically the Warsaw International Mechanism for Loss and Damage Associated with Climate Change Impacts.21 Nonetheless, the operational role of the Warsaw International Mechanism – if it eventually acquires one – remains unclear; it could be limited to recommendations and technical assistance. Considering also the sensitivity around compensation questions under the climate convention, these mechanisms are not likely to attract large funds. In sum, we do not suggest that no efforts should go into further strengthening the various soft law mechanisms, which might provide vital assistance in the short term and also serve an important function in norm   See David Keane, ‘The environmental causes and consequences of migration: A search for the meaning of “environmental refugees”’ (2004) 16 Georgetown International Environmental Law Review 209, at 217. 20   See https://www.nanseninitiative.org/secretariat/. 21   See Millar and Wilson, Chapter 20. 19

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Towards a global governance system  ­411 and institutional development over time. Yet, in the medium to long term, there remains an urgent need to ensure the protection of climate migrants in a fair and effective manner. This is the rationale and motivation for this chapter.

III. TOWARDS A SUI GENERIS REGIME FOR GOVERNING CLIMATE MIGRATION In a nutshell, we argue for a sui generis regime for the recognition, protection and resettlement of climate migrants that must be tailored to the needs of climate migrants and be appropriately financed and supported by the international community. This section lays out the central elements of such a regime. We address its core governing principles, its legal-­institutional character and its organizational setting. We later address questions of financial support and compensation. A. Principles First, we argue that a sui generis regime for the recognition, protection and resettlement of climate migrants must be built on a set of core principles tailored to the specific problem, including its political, legal and ethical dimensions. We suggest five principles to serve as a basis for the institutional development of the regime: 1. The Principle of Planned Re-location and Resettlement. Even though climate change impacts will eventually become manifest in unpredictable singular events—such as storms, floods or droughts—the increase in magnitude and frequency of such events can be predicted, and the consequential need for local populations to leave regions that suffer from increased risk can be foreseen. The governance of climate migrants can thus be better organized and planned than in the case of victims of political turmoil or war, and can be carried out in planned, voluntary relocation and resettlement programmes—sometimes over many years and decades—for certain populations, as opposed to spontaneous flights. At the core of a regime on climate migrants are thus not programmes on emergency response and disaster relief, but planned and voluntary resettlement over (much) longer periods of time. 2. The Principle of Resettlement Instead of Temporary Asylum. Climate migrants cannot return to their homes in case of severe climate impacts. Thus, the underlying assumption in current political refugee

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412  Research handbook on climate change, migration and the law governance that refugees may return once state-led persecution in their home countries has ended, needs to be replaced by an institutional design that conceives of climate migrants as permanent immigrants to the regions or countries that accept them. 3. The Principle of Collective Rights for Local Populations. The Refugee Convention protects people affected by persecution on an individual basis. This has included quasi-collective titles—for example when entire ethnic or religious groups in a country are judged as being persecuted—but essentially the regime is designed for individual statebased persecution. A climate migration regime, however, would need to be tailored for collectives of people, such as populations of certain villages, cities, regions, provinces or—as in the case of small-island states—of entire nations. 4. The Principle of International Assistance for Domestic Measures. Climate migrants enjoy in principle the protection of their own ­countries, and in many cases, serious climate change impacts will affect only parts of a country. Thus, an international regime for climate migrants will be less on the protection of persons outside their states but rather on the support of governments, local communities and support agencies to protect people within their own territory. The ­governance challenge of protecting and resettling climate migrants is thus essentially about international assistance and funding for the domestic support and resettlement programmes of affected countries that have requested such support. 5. The Principle of International Burden-sharing. Climate change is a global problem in causation and consequences, and the i­ndustrialized countries bear most of the moral responsibility for its victims. This suggests also concerning the protection of climate migrants the adoption of institutional elements from existing agreements on climate or from similar areas. These could include: the principle of common but differentiated responsibilities and respective capabilities (which suggests that richer countries have to bear higher costs for the protection of climate migrants); the principle of reimbursement of incremental costs of affected countries occurred through resettlement of climate migrants; and possibly the principle of double-weighted decision-making procedures, which would give developing countries a ­structurally larger clout in a new institution on climate migrants. B.  Institutional Setting These five principles are not linked to a specific institutional form or embedding. Theoretically, governments could agree on a new treaty on

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Towards a global governance system  ­413 climate migrants, such as the ‘cross-sectoral multilateral convention’ on climate migrants that was proposed a decade ago by the German Advisory Council on Global Change.22 Such an independent convention, however, could require a lengthy negotiation process on core principles and would weaken the link with the climate policy process and its particular provisions on equity, responsibility and international cooperation. Therefore, the five principles of a climate migrant regime rather suggest a Protocol on Recognition, Protection and Resettlement of Climate Migrants (‘Climate Migrant Protocol’) to the UNFCCC. Such a protocol could build on political support from almost all countries as parties to the climate convention. It could draw on widely agreed principles, such as common but differentiated responsibilities and the reimbursement of full incremental costs. It could support the protection of climate migrants by linking their protection with the overall climate regime, including progress in climate science that defines risks for people in certain regions. For ­developing countries, a protocol on climate migrants based on the principle of common but differentiated responsibilities and full incremental costs could become a major negotiation goal given the increasing pressure from the North to integrate advanced developing countries in a global mitigation regime. Concerning procedural operationalization, the protocol could provide for an executive committee on the recognition, protection and resettlement of climate migrants that would function under the authority of the conference of the parties to the climate convention serving as the meeting of the parties to the Climate Migrant Protocol. This executive committee would maintain a list of specified administrative areas (such as villages, islands, districts) under the jurisdiction of member states whose population is determined to be ‘in need of relocation due to climate change’ or ‘threatened by having to relocate due to climate change’. Any state party to the protocol—and in fact only state parties—would be entitled to propose areas under its jurisdiction for inclusion into the list of affected areas. In line with the principle of state sovereignty, inclusion of affected areas, as well as the type of support measures to be chosen, would be determined only upon formal proposal from the government of the affected country. While the composition and procedures of this executive committee will likely be contentious in negotiations, one option would be a system of qualified, or weighted, majority voting that takes account of the

  See German Advisory Council on Global Change, World in Transition: Climate Change as a Security Risk (Berlin: German Advisory Council on Global Change, 2007), at 129, also 205, 206–7. 22

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414  Research handbook on climate change, migration and the law special problem structure around this issue.23 An example could be the decision-making under the Montreal Protocol on Substances that Deplete the Ozone Layer. Accordingly, the executive committee of the Climate Migrant Protocol would consist of an equal number of affected countries and donor countries and be governed by double-weighted majority rule. This would allow both the affected developing countries and the donor countries to hold a collective veto right over the future evolution and implementation of the regime. In addition, both affected countries and the executive committee and meeting of the parties to the protocol will need to rely on regular and specific scientific advice, especially regarding estimates about regional climate change impacts. It will thus be vital that governments and the executive committee and meeting of the parties are supported by a specialized scientific body. This could be either a sub-group of the existing advisory committee under the climate convention, or a newly created body serving just the Climate Migrant Protocol. Likewise, the Intergovernmental Panel on Climate Change could support the process through timely, focused assessments. Inclusion in the list of populations ‘in need of relocation due to climate change’ or ‘threatened by having to relocate due to climate change’ would trigger specific rights and support mechanisms, including financial support, voluntary resettlement programmes over several years, together with the purchase of new land, and, especially in the case of small-island states, organized international migration. It is likely that these rights will be restricted to inhabitants of countries that are not listed in Annex I to the climate convention, that is, developing countries as defined in the climate regime. Within climate negotiations, a broader ‘adaptation protocol’ to the climate convention could also be a possibility. Here is not the place to discuss the disadvantages and advantages of such a broader legal instrument, which would address a much wider range of issues than covered in this chapter. However, core elements that we propose for a Climate Migrant Protocol could also be incorporated into a broader adaptation protocol as long as key elements of our proposal—such as the financial support mechanism and its principles—are preserved. Integration of the protection of climate migrants in a broader adaptation protocol could allow for a more holistic adaptation planning in regions at risk, which will include in many cases a combination of adaptation and voluntary resettlement programmes. However, such an integration of the climate 23

  See Biermann, supra note 5.

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Towards a global governance system  ­415 migrant problem in a larger context also puts migrants in competition with other interests in affected areas, including economic and particular ­political interests. This might endanger the effective protection and financial support of the people—often the poorest—for whom adaptation is no option and who have to leave their homes and to resettle somewhere else. These potential conflicts thus need to be prevented if a larger legal instrument is being negotiated. C.  Organizational Setting Dealing with the resettlement of millions of climate migrants over the course of the century will require not only a new legal regime, but also one or several international agencies dealing with this task. Given different causes of climate-related flight that range from extreme weather events to water scarcity and drought, it is unlikely that one single agency could be assigned the exclusive, or main, task of dealing with climate migrants. Instead, a more appropriate and likely model will be the designation of a network of agencies that serve as ‘implementing agencies’, under the authority of the meeting of the parties to the Climate Migrant Protocol, in their respective area of expertise and depending on type and circumstances of populations in need of assistance and relocation. A crucial role might lie with the UN Development Programme and the World Bank, both of which could serve as implementing agencies for the Climate Migrant Protocol in the planned voluntary resettlement of areas designed by the meeting of the parties to the protocol as being in need of relocation because of climatic change. The UN Environment Programme, even though it lacks a strong operational mandate, may provide invaluable further assistance in terms of scientific research and synthesis, information dissemination, strategic legal and political advice, and other core functions of this programme. A coordinating secretariat to the Climate Migrant Protocol would be needed, possibly as a subdivision of the secretariat of the climate convention, located in Bonn. In addition, the UN High Commissioner for Refugees and the International Organization for Migration will play a role, even though they might be unlikely to be the main agencies given the special, long-term characteristics of the climate migrant protection framework. Yet the expertise of these agencies in view of emergencies, as well as their legal and technical expertise, will be indispensable also for the protection of climate migrants. Active collaboration with local organizations and local civil society groups should also be established so that support for resettlement processes are sensitive to local contexts, situations and account for existing knowledge and establish knowledge transfer.

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416  Research handbook on climate change, migration and the law

IV.  FINANCIAL SUPPORT AND COMPENSATION The protection and resettlement of possibly millions of climate migrants over the course of this century will require substantial funds. Since climate migrants will often (though not exclusively) live in poorer developing countries and generally seek refuge in their own or neighbouring countries, the funds will largely have to come from the international community. From a global governance perspective, there are three types of financial mechanisms for climate migrants: general development funding agencies; environment-related funds; or a new funding agency to be created especially for climate migrants. Regarding development agencies, the World Bank group and the UN Development Programme are probably the most relevant at present, though others will have to play a role too (for example the World Health Organization or the UN Food and Agriculture Organization). These agencies will need to integrate climate change impacts into their work programmes, and most are in the process of so doing. In addition, there are a number of specialized environmental funds. Some climate programmes of developing countries are reimbursed through the Global Environment Facility. The climate regime provides for additional special funds to assist developing countries, including the Adaptation Fund, the Special Climate Change Fund, the Least Developed Countries Fund and the Green Climate Fund.24 Yet while the protection of climate migrants will in principle fall under the terms of these funds, it is questionable whether they are the most appropriate mechanisms for a specific financial support to the protection and resettlement of climate migrants. For one, the level of funding is not sufficient even for the current purposes of the funds. Most funds are based on the principle of voluntary contributions by governments. An increase in public funding from the governments of industrialized countries is unlikely or at least uncertain given other national priorities (including climaterelated other priorities). In addition, it is doubtful that climate migrants can be best protected through inclusion in these general funding mechanisms. This would put climate migrants in competition with other concerns, be it mitigation as in the case of GEF funding, be it overall adaptation as in the case of the adaptation funds, where adaptation measures might be motivated through additional concerns such as the protection of powerful economic interests. Integrating climate migrants into general environmental funding schemes might blur the specific moral link between climate migrants and the 24

  See Biermann, supra note 5.

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Towards a global governance system  ­417 ­ opulations in potential donor countries and hinder claims for compenp sation, liability and responsibility from industrialized countries. Thus, as in our previous discussion of the institutional setting that would govern the recognition, protection and resettlement of climate migrants, the best option appears to be the creation of an at least partially sui generis regime for the financing of the protection of climate migrants, such as a Climate Migrant Protection and Resettlement Fund.25 While the operational aspects of this fund could be linked with other financial mechanisms to increase efficiency, the governance of the fund should be independent and stand under the authority of the meeting of the parties to the Climate Migrant Protocol under the climate convention. A key question for this new facility specifically for climate migrants will be the amount of funding required by the international community and the funding principle underlying their protection. For mitigation programmes under the climate convention, industrialized countries have committed to reimburse developing countries the agreed full incremental costs, a concept originally developed in the 1990 London amendments of the ozone regime.26 Similar provisions apply to adaptation.27 In ­addition, the climate convention obliges industrialized countries to assist the most vulnerable countries in meeting adaptation costs28 and gives special c­ onsideration to least developed countries in providing financial a­ ssistance.29 This s­ uggests providing for the reimbursement of full incremental costs also to the protection and resettlement of climate migrants at least in those situations where attribution to climate change is broadly undisputed, namely sea-level rise. We thus suggest four principles that would govern the Climate Migrant Protection and Resettlement Fund. First, all funds provided are on a grant basis. To the extent that larger development projects financed through loans include the resettlement of climate migrants, the particular costs of the resettlement elements will be fully reimbursed as a grant. Second, all funds provided for the Climate Migrant Protection and Resettlement Fund are new and additional, to prevent competition with other ­sustainable development needs. Third, in the case of sea-level rise migrants, the Climate Migrant Protection and Resettlement Fund reimburses the full

25   See also German Advisory Council on Global Change, supra note 22, at 211 (proposing an Environmental Migration Fund). 26   See more detailed on the operation of the principle, Frank Biermann, ‘Financing environmental policies in the South. Experiences from the Multilateral Ozone Fund’ (1997) 9 International Environmental Affairs 179. 27   See UNFCCC, art. 4 para. 3. 28   UNFCCC, art. 4(4). 29   UNFCCC, art. 4(9).

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418  Research handbook on climate change, migration and the law agreed incremental costs of developing countries occurred in p ­ rotecting and relocating these migrants (no matter from which country they come), taking into account that a large part of the financial transfer will be ­channelled through international development agencies. In cases where climate change is only one cause of environmental degradation, the fund will pay for parts of the protection and relocation costs, the exact amount of which will be determined in intergovernmental negotiation. Fourth, the meeting of the parties to the Protocol on Recognition, Protection and Resettlement of Climate Migrants, or committees under its authority, would be competent to determine populations as ‘climate migrants in need of relocation,’ to ascribe financial resources and types of assistance, and to take all other measures related to the governance of the fund.

V.  CONSTRAINTS AND LIMITATIONS This blueprint of a governance system would ensure, we argue, the ­sufficient and timely recognition, protection and resettlement of climate migrants. Yet the question arises as to what extent this proposal would be acceptable to decision-makers. To begin with, the political process that we advance would need to face significant practical hurdles. How to deal, for example, with requests under this protocol from countries with autocratic governments or with a record of human-rights violations: ­ shall the ­executive committee under this protocol grant all financial and ­administrative support to these governments? Or, how to deal with ­possible rent-seeking behaviour by countries that seek to misuse the Climate Migrant Protocol to increase foreign funding for instance by triggering mass migration? Such problems are conceivable, yet are not different from existing mechanisms of international support, from World Bank loans to projects under the Global Environment Facility. We are confident that by a large measure, such problems can be dealt with in political processes, and that a carefully designed decision-making system would support ­compromise and creative, tailor-made solutions. More problematic is the fact that the system that we propose would pose a significant financial burden on donor countries. (Internal) resettlement and re-integration of millions of people from the low-lying coastal regions in Asia, Africa and Latin America will require additional financial support by the international community, and as such further add to the existing financial transfers under multilateral and bilateral development ­cooperation schemes. Are donor countries ready for it? At present, the indications are not promising. The protection of those who are especially vulnerable to climate change is effectively a fringe issue at climate

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Towards a global governance system  ­419 ­ egotiations, despite the discussions on ‘loss and damage’ and the new n adaptation funding mechanisms that have been set up in recent years. Yet climate change impacts are so far less visible. Current policies and perceptions simply cannot predict what governments will decide should scenarios of millions of climate migrants in coming decades hold to be true. It seems therefore important to further engage in policy explorations and to develop political solutions and institutional arrangements that might e­ventually help to protect climate migrants once their displacement becomes a reality.

VI. CONCLUSION Millions of people, largely in Asia, Africa and Latin America, might be forced to leave their homes to seek refuge in other places over the course of this century. However, the existing governance mechanisms and recent soft law initiatives, as we argue here, are not sufficiently equipped to provide a strong and fair international protection regime. The situation calls for new governance. We have hence outlined a blueprint for a global ­governance architecture on the protection and resettlement of climate migrants. We argue for a new legal instrument specifically tailored for the needs of climate migrants—a Protocol on Recognition, Protection and Resettlement of Climate Migrants under the United Nations Framework Convention on Climate Change—as well as a separate funding m ­ echanism, the Climate Migrant Protection and Resettlement Fund. The serious impacts of climate change are mostly predicted to unfold over the second half of this century, based on the current state of climate science. However, the broad predictability of the regions where major climate change impacts, such as sea-level rise, are likely to cause harm and dislocation allows for preparation and planning. We have thus framed our proposal deliberatively not in terms of emergency response and disaster relief, but of planned and organized voluntary resettlement programmes. In particular when it comes to sea-level rise, there is no need to wait for extreme weather events to strike and islands and coastal regions to be flooded. All areas that cannot be protected through increased coastal defences for practical or economic reasons need to be included early in long-term resettlement and reintegration programmes that make the process acceptable and endurable for the affected people. This, however, calls for early action in terms of setting up effective and appropriate ­governance mechanisms. The planning for a climate migrant protocol and the related institutional settings cannot wait until 2050 when it might be too late for orderly, organized and above all justice-based responses. It must begin now.

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20.  Towards a climate change displacement facility Towards a climate change displacement facility

Ilona Millar and Kylie Wilson

INTRODUCTION During the twenty-first century, climate change is projected to increase the displacement of people.1 Although the Intergovernmental Panel on Climate Change (IPCC) has said there is low confidence in quantitative projections of changes in human mobility due to its complex, multi-causal nature, an estimated 325 million people are likely to be already seriously affected by climate change every year, either by weather-related disasters or through gradual environmental degradation that may be attributed to climate change.2 By the year 2030, the number of people seriously affected by climate change is expected to more than double to an estimated 660 million people.3 Migration is a longstanding response to environmental change and it will likely be one of the ways that humans adapt to the changed environment caused by anthropogenic climate change.4 Accordingly, if it has not done so already, in the very near future human displacement attributable to climate change is likely to dwarf the current number of people displaced by other causes, with many estimates pointing to more than 100 million people facing potential displacement in the coming decades.5  1   Intergovernmental Panel on Climate Change, Climate Change 2014: Impacts Adaptation and Vulnerability, Summary for Policy Makers, Working Group II Contribution to the Fifth Assessment Report of the Intergovernmental Panel on Climate Change (Cambridge University Press 2014) 20 (IPCC Working Group II, Summary for Policy Makers).  2   IPCC Working Group II, Summary for Policy Makers, ibid., 20. The estimate of numbers of people seriously affected by climate change is derived by attributing a 40 per cent proportion of the increase in the number of weather-related disasters from 1980 to current to climate change and a 4 per cent proportion of the total seriously affected by environmental degradation based on negative health outcomes. Global Humanitarian Forum, ‘Human Impact Report Climate Change: The Anatomy of a Silent Crisis’ (2009) 9, http://www.ghf-ge.org/human-impact-report.pdf.  3   Global Humanitarian Forum, ibid., 12.  4   K. Wyman, ‘Responses to Climate Migration’ (2013) 37 Harvard Environmental Law Review 167, 171.  5   See e.g., S. Leckie, Displacement Solutions, ‘Finding Land Solutions to

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Towards a climate change displacement facility  ­421 As scholars have pointed out, there is currently no coordinated legal or administrative regime to enable populations and communities s­uffering from the impacts of climate change to migrate to areas with a more stable environment in a planned and orderly manner. Without such a legal framework, climate change-induced human displacement has the potential to exacerbate humanitarian crises, political instability and armed conflict. This concern has prompted proposals to extend international refugee status to, or provide a rights-based framework for, those escaping climatechange induced environmental damage, either through an amending protocol to the 1951 Convention Relating to the Status of Refugees (Refugee Convention), a new protocol to the United Nations Framework Convention on Climate Change (UNFCCC), or a new stand-alone, international treaty.6 However, these proposals have been criticized on the basis that Climate Displacement: A Challenge Like Few Others’ (October 2013) 4, http:// displacementsolutions.org/wp-content/uploads/2014/12/DS-Report-FindingLand-Solutions-to-Climate-Displacement.pdf. The most-often cited estimate is that there will be as many as 200 million climate refugees by 2050: N. Myers, ‘Environmental Refugees: A Growing Phenomenon of the 21st Century’ (2002) 357 Philosophical Transactions of the Royal Biological Sciences Society 609. However, this estimate has been heavily criticized as lacking academic credibility: H. Barnes, ‘How Many Climate Migrants Will There Be?’ BBC News (2 September 2013), http://www.bbc.com/news/magazine-23899195.  6   See e.g., D. Z. Falstrom, ‘Stemming the Flow of Environmental Displace­ ment: Creating a Convention to Protect Persons and Preserve the Environment’ (2001) 13 Colorado Journal of International Environmental Law & Policy 15, 23; M. Conisbee and A. Simms, New Economics Foundation, ‘Environmental Refugees: the Case for Recognition’ (2003) 32–3, http://b.3cdn.net/nefounda​ tion/e3cd1b834fc83fb11e_9pm6bkf32.pdf; A. Lopez, ‘The Protection of Environ­ mentally-Displaced Persons in International Law’ (2007) 37 Environmental Law 365, 402–8; F. Biermann and I. Boas, ‘Protecting Climate Refugees: The Case for a Global Protocol’ (2008) 50(6) Environment, 25–9; A. Williams, ‘Turning the Tide: Recognizing Climate Change Refugees in International Law’ (2008) 30 Law & Policy 502; B. Docherty and T. Giannini, ‘Confronting a Rising Tide: A Proposal for a Convention on Climate Change Refugees’ (2009) 33 Harvard Environmental Law Review 349; F. Biermann and I. Boas, ‘Preparing for a Warmer World: Towards a Global Governance System to Protect Climate Refugees’ (2010) 10 Global Environmental Politics 60; M. Prieur, ‘Draft Convention on the International Status of Environmentally-Displaced Persons’ (2010) 42 The Urban Lawyer 247; D. Hodgkinson, T. Burton, H. Anderson and L. Young, ‘The Hour When the Ship Comes In: A Convention for Persons Displaced by Climate Change’ (2010) 36 Monash University Law Review 69; see also B. Mayer, ‘The International Legal Challenges of Climate-Induced Migration: Proposal for an International Legal Framework’ (2011) 22 Colorado Journal of International Environmental Law & Policy 357.

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422  Research handbook on climate change, migration and the law i­nternational refugee law or a new rights-based framework would not be well suited to respond to the particular displacement challenges ­associated with climate change.7 Moreover, it is extremely unlikely that the international community could successfully negotiate and ratify such an instrument anytime in the near future, given the protracted and faltering nature of international treaty negotiations and the political sensitivity of the refugee crisis in many developed countries. There is a risk that the vast amounts of energy, time and resources negotiating such a treaty would be at the expense of other perhaps more nuanced responses, such as a climate change displacement facility under the UNFCCC.8 In December 2015, the Conference of the Parties (COP) to the UNFCCC adopted the Paris Agreement, which provides a new platform, applicable to both developed and developing countries, to address global climate change in the period from 2020 to 2030 and beyond. The Agreement entered into force on 4 November 2016. The Paris Agreement aims to achieve the ­ overarching objective of the UNFCCC by ‘[h]olding the increase in the global average temperature to well below 2°C above preindustrial levels and pursuing efforts to limit the temperature increase to 1.5°C’.9 This specific goal is designed to be met through ‘nationally determined ­contributions’ which must be communicated to the Secretariat of the UNFCCC every five years and ‘represent a progression over time’, reflecting each party’s ‘highest possible ambition’.10 In negotiating the Paris Agreement, the parties sought to achieve a balance between mitigation and adaptation measures. In the event that the parties’ mitigation actions fall short and fail to achieve the collective target, and in order to address the impacts that would still be felt if the global average temperature increase is kept to 1.5 or 2°C, the Paris Agreement aims to strengthen adaptation efforts under the Cancún Adaptation Framework, including by requiring each party to formulate and implement ‘national adaptation plans’.11 In addition, many countries  7   See e.g., I. Millar, ‘There’s No Place Like Home: Human Displacement and Climate Change’ (2007) 14 Australian International Law Journal 71, 85–6; J. McAdam, ‘Swimming Against the Tide: Why a Climate Change Displacement Treaty is Not the Answer’ (2011) 23 International Journal of Refugee Law 2.  8   McAdam, ibid., 8.  9   Conference of the Parties to the UNFCCC, Paris Agreement, UN Document FCCC/COP/2015/10/Add.1, Decision 1/CP.21, at Annex, art. 2 (adopted December 2015, published 29 January 2016), http://unfccc.int/resource/docs/2015/cop21/ eng/10a01.pdf (Paris Agreement). 10   Paris Agreement, arts 3, 4.2, 4.3, 4.9. 11   J. Tollefson, ‘Is the 2°C World a Fantasy?’ (2015) 527 Nature 436; Paris Agreement, arts 7.9(b), 7.10.

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Towards a climate change displacement facility  ­423 are including adaptation commitments in their intended nationally determined contributions. Specifically relevant to displacement, the Paris Agreement extends the operation of the Warsaw International Mechanism for Loss and Damage Associated with Climate Change Impacts (Warsaw International Mechanism) beyond the expiry of the Kyoto Protocol in 2020, providing a framework for cooperation past 2020 on issues such as early warning systems; emergency preparedness; slow-onset events; events that may involve irreversible and permanent loss and damage; comprehensive risk assessment and management; risk insurance facilities, climate risk pooling and other insurance solutions; non-economic losses; and resilience of communities, livelihoods and ecosystems.12 Conceptually, loss and damage arises when the adverse impacts of climate change are not avoided through mitigation or managed through adaptation measures and instead need to be redressed. In other words, there is loss and damage when the impacts of climate change exceed the adaptive capacity of a particular country, region, society or ecosystem.13 In the context of the UNFCCC, loss and damage involves the development of approaches to address the unavoidable impacts on the most vulnerable developing countries, which have historically contributed the least to the problem of climate change, are most severely affected, and have the least capacity to adapt to its impacts.14 It is therefore no surprise that the issue of human displacement in the climate negotiations has arisen in the context of loss and damage.15 In October 2014, in the lead-up to the Paris COP, the Least Developed Countries (LDC) group proposed the idea of a ‘climate change displacement coordination support mechanism’.16 The purpose of the mechanism

  Paris Agreement, arts 8.2, 8.4.   UNFCCC, Non-Economic Losses in the Context of the Work Programme on Loss and Damage, Technical Paper, UN Document FCCC/TP/2013/2 (9 October 2013), http://unfccc.int/resource/docs/2013/tp/02.pdf, at 8–9. 14   Climate Focus, ‘Loss and Damage in the Paris Agreement’ (December 2015), http://www.climatefocus.com/sites/default/files/20160214%20Loss%20and%20 Damage%20Paris_FIN.pdf. 15   Conference of the Parties to the UNFCCC, ‘Approaches to address loss and damage associated with climate change impacts in developing countries that are particularly vulnerable to the adverse effects of climate change to enhance adaptive capacity’, UN Document FCCC/CP/2012/8/Add.1 (28 February 2013) Decision 3/CP.18, para. 7(vi) (Doha Decision). 16   Submission by Nepal on behalf of the Least Developed Countries Group on the Ad Hoc Working Group on the Durban Platform for Enhanced Action (ADP) Co-Chairs’ Non Paper of 7 July 2014 on Parties Views and Proposal on 12 13

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424  Research handbook on climate change, migration and the law was to provide assistance to people displaced by the impacts of climate change, including measures to provide support for emergency relief, assistance in providing organized migration and planned relocation and compensation.17 The concept was endorsed by the G77 and China and the expression ‘climate change displacement coordination facility’ was subsequently included in early drafts of the negotiating text of the Paris Agreement.18 However, despite a strong lobbying effort from the Advisory Group on Climate Change and Human Mobility, at the Paris COP the parties dropped the proposed ‘climate change displacement coordination facility’ from the Paris Agreement and deferred consideration of such a facility to future negotiations. This was largely because the Umbrella Group opposed the proposal.19 This chapter argues that a new climate change displacement facility under the Warsaw International Mechanism, although not a panacea, may be more effective and politically feasible than other options proposed to deal with climate change-induced displacement. The main reason why addressing displacement within the UNFCCC and under the Paris Agreement is likely to be more feasible, is the existing political pressure, within both developed and developing countries alike, for sustained global cooperation and agreement on climate change. While negotiations may at times be slow and falter on particular issues, this domestic pressure increases the leverage that developing countries have to include issues on the agenda that are important to them. Indeed, the Warsaw International Mechanism was extended under the Paris Agreement despite initial ­opposition from the United States and the European Union, largely due the Elements for a Draft Negotiating Text (21 October 2014), http://www4.unfccc. int/submissions/Lists/OSPSubmissionUpload/39_99_130584499817551043-Sub​ mis​sion%20by%20Nepal%20ADP_21%20Oct%202014.pdf, at 4. 17   Displacement Solutions, ‘A Climate Change Displacement Facility in the Paris Draft Agreement: Summary of Facts’ (6 November 2015), http://displace​ mentsolutions.org/wp-content/uploads/2015/11/Climate-change-displacementcoordination-facility.pdf. 18  Ibid. 19   O. Karasapan, the Brookings Institution ‘Refugees: Displaced from the Paris Climate Change Agreement?’ (7 December 2015), http://www.brookings.edu/blogs/ future-development/posts/2015/12/07-refugees-climate-change-cop21-karasapan. The Umbrella Group is a loose coalition of developed countries, excluding the European Union, which formed during UNFCCC negotiations following the adoption of the Kyoto Protocol. Although there is no formal list, the Umbrella Group usually comprises Australia, Canada, Japan, New Zealand, Kazakhstan, Norway, the Russian Federation, Ukraine and the United States: United Nations Framework Convention of Climate Change, ‘Party Groupings’, http://unfccc.int/ parties_and_observers/parties/negotiating_groups/items/2714.php.

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Towards a climate change displacement facility  ­425 to the importance of loss and damage to small island developing states (SIDS) and LDCs.20 The opportunity to use that ongoing leverage to establish a climate change displacement facility under the Warsaw International Mechanism may not arise in a different legal context, such as under the Refugee Convention, where there would be less scope for bargaining and issue trade-offs. Part I of this chapter looks at the difficulties with existing p ­ roposals to address human displacement caused by climate change and sets out the reasons why a climate change displacement facility under the UNFCCC may be better suited to address the problem and be more politically feasible. Part II provides the background, history and evolution of ­ the Warsaw International Mechanism within the context of adaptation ­negotiations under the UNFCCC. Lastly, Part III of this chapter discusses the design and operation of a future climate change displacement facility, including key aspects such as the facility’s mandate, sources of funding, the use of those funds, and governance.

I. WHY A CLIMATE CHANGE DISPLACEMENT FACILITY? This chapter argues for further consideration of a climate change displacement facility because the existing international legal regimes for refugees, humanitarian assistance and migration are not well suited to address the multi-causal and, in many instances, slow-onset factors that lead to climate-induced displacement. The following section summarizes some of the key difficulties with those regimes and contrasts them with the current legal and political dynamics in the UNFCCC and Paris Agreement negotiations. A.  Difficulties with Existing Proposals In considering whether the concept of an environmental or climate refugee is appropriate and whether new legal regimes to afford protection to those persons should be developed, some scholars have argued that it would be incredibly difficult, if not impossible, to draft a clear definition of the people impacted by climate change who would qualify for protected

  M. McGrath, ‘COP21: Progress reported on key issue of loss and damage’ BBC News (5 December 2015), http://www.bbc.co.uk/news/science-environment-35​ 012781. 20

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426  Research handbook on climate change, migration and the law status.21 A refugee is someone who has fled his or her country of ­nationality due to a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion.22 The refugee’s migration is generally attributed to a clearly identifiable cause. By comparison, environmental stressors are inextricably linked to other economic, social and political factors and there are very complex processes at work in specific situations of environmental degradation, impoverishment and conflict that ultimately result in human displacement.23 This complexity is compounded by the difficulty in establishing a direct causal connection between climate change and any single natural disaster or gradual environmental degradation in a particular locale. For these reasons, clear causal links between climate change, natural disasters, environmental degradation and unregulated population movements are not well established and drafting a definition of climate change or environmental refugee to encompass this complexity in a way that could be practically administered on a case-by-case basis would be virtually impossible.24 Moreover, because climate change exacerbates existing socio-economic or environmental vulnerabilities, it would be conceptually arbitrary and unjust as a matter of policy to differentiate between people who are displaced by climate change and those who are victims of other types of socio-economic or environmental hardship.25 Proposals for a new treaty, whether rights-based or otherwise, are also based on certain assumptions about climate change and human movement that lack empirical support. Studies show that movement is likely to be predominantly internal and gradual, rather than cross-border and in the nature of urgent flight.26 In contrast to many other triggers for displacement, the slow onset of some climate change impacts, such as rising sea levels, may provide a rare opportunity to plan for migratory responses that are better attuned to the needs and cultural sensitivities of those migrating, rather than relying on post-hoc protection in the case of spontaneous and desperate flight.27   I. Millar, ‘There’s No Place Like Home: Human Displacement and Climate Change’ (2007) 14 Australian International Law Journal 71. 22   Convention Relating to the Status of Refugees, 28 July 1951, 189 UNTS 150 (entered into force 22 April 1954), art. 1(A)2. 23   S. Castles, ‘The International Politics of Forced Migration’ (2003) 46(3) Development 11, 12. 24  McAdam, supra note 7, 15. 25   Ibid., 13; A. Betts, Survival Migration: Failed Governance and the Crisis of Displacement (Cornell University Press, Ithaca, 2013) 16–17. 26  McAdam, supra note 7, 8. 27   Ibid., 5, 17, 18, 26. 21

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Towards a climate change displacement facility  ­427 B.  Strengths of the UNFCCC and the Paris Agreement Rather than negotiating an entirely new international instrument together with the necessary governance and administrative arrangements, the UNFCCC apparatus already contains many objectives, principles, work programmes, governance bodies, facilities, funding mechanisms and administrative functions that could form the basis of, serve as a precedent for, or at the very least complement a climate change displacement f­ acility under the Warsaw International Mechanism. For instance, it almost goes without saying that the principles underpinning parties’ obligations within the UNFCCC, such as the principle of common but ­differentiated ­responsibilities and respective capabilities, would also provide the normative basis for addressing displacement caused by climate change.28 In addition, the inclusion of the Warsaw International Mechanism in the Paris Agreement provides a clear platform on which parties can cooperate to better understand and respond to the drivers of climate induced displacement and mitigate risks associated with those drivers. The fact that parties to the UNFCCC have already contemplated a work programme to explore issues associated with human displacement through the Executive Committee of the Warsaw International Mechanism indicates at least some willingness to engage with the issues and drivers that underpin climate change-induced displacement.29 Additional benefits of addressing displacement under the UNFCCC are discussed in relation to the potential future mandate of a climate change displacement facility in Part III of this chapter below. Ultimately, a coherent and integrated patchwork of initiatives both within and outside the UNFCCC will be necessary to address the complex drivers of climate-induced displacement. Indeed, the Peninsula Principles and Nansen Initiative discussed elsewhere in this volume have already begun to set a normative framework for approaching internal and international displacement respectively. A climate change displacement facility within the UNFCCC and Paris Agreement framework should therefore be seen

  United Nations Framework Convention on Climate Change, 9 May 1992, 1771 UNTS 107 (entered into force 21 March 1994), art 3.1 (UNFCCC). 29   UNFCCC, Report of the Executive Committee of the Warsaw International Mechanism for Loss and Damage associated with Climate Change Impacts Annex II ‘Initial two-year workplan of the Executive Committee of the Warsaw International Mechanism for Loss and Damage associated with Climate Change Impacts in accordance with decisions 3/CP.18 and 2/CP.19’, UN Document FCCC/SB/2014/4 (24 October 2014), http://unfccc.int/resource/docs/2014/sb/ eng/04.pdf, Action Area 6, at 11. 28

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428  Research handbook on climate change, migration and the law as one of a number of complementary initiatives to address displacement caused by climate change.

II. THE WARSAW INTERNATIONAL MECHANISM FOR LOSS AND DAMAGE ASSOCIATED WITH CLIMATE CHANGE IMPACTS In order to understand how a climate change displacement facility could operate, this section outlines the background to the establishment of the Warsaw International Mechanism in 2013 and its extension under Article 8 of the Paris Agreement. This section also comments on the opportunities and limitations that arise due to the negotiating positions adopted by different parties. A.  Adaptation Under the UNFCCC The UNFCCC requires all parties to ‘cooperate in preparing for adaptation to the impacts of climate change’.30 Developed country parties are also required to assist developing country parties that are particularly vulnerable to the adverse effects of climate change in meeting the costs of adaptation.31 Small island countries are specifically recognized in the UNFCCC, along with countries with low-lying coastal areas and other vulnerable countries, as requiring special consideration. In this regard, parties are required to give full consideration to what actions are necessary under the UNFCCC, including funding, insurance and the transfer of technology, to meet their specific needs and concerns.32 While disaster-risk reduction has been a central aspect of adaptation discussions under the UNFCCC for many years, human displacement and migration was not generally discussed in this forum until relatively recently. Perhaps misguidedly, migration was not seen as a legitimate adaptation strategy, but as a last resort to be contemplated only if the international community were to fail to stabilize greenhouse gas concentrations at a level that would prevent dangerous anthropogenic interference with the climate system. More recently, scholars have conceptually grouped the impacts of climate change on vulnerable developing countries into three categories: avoidable impacts; impacts that are not avoided because of a country’s

  UNFCCC, art. 4.1(e).   Ibid., art. 4.4. 32   Ibid., art. 4.8. 30 31

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Towards a climate change displacement facility  ­429 inability to respond; and unavoidable impacts.33 To effectively manage the impacts of climate change, a framework for adaptation must address all three categories, including unavoidable impacts, such as forced migration and human displacement. In accordance with this logic, the Cancún Adaptation Framework adopted by the COP in 2010 invited the parties to undertake ‘[m]easures to enhance understanding, coordination and cooperation with regard to climate change induced displacement, migration and planned relocation’.34 While this formal recognition of migration as a form of adaptation ­arguably invites funding for migration-related issues within the context of adaptation, the Cancún Adaptation Framework fell far short of ­imposing any obligations on parties in relation to migration, such as ­ assisting ­developing countries with the costs of migration.35 Over the past ten years, leaders from the SIDS have become increasingly vocal in highlighting risks that islands could disappear and the plights of their populations who will have to relocate to higher ground to avoid inundation. Often linked to these emotional pleas has been a call for the ­developed countries that have historically contributed most to climate change to provide compensation for the losses suffered by others.36 B.  History of the Warsaw International Mechanism Scholars have considered the issue as to whether customary international law on State responsibility is equipped to deal with damages caused by climate change that disproportionately impact those States who not only contributed least to the problem, but also have the least capacity to adapt.37   I. Millar, C. Gascoigne and E. Caldwell, ‘Making Good the Loss: An Assessment of the Loss and Damage Mechanism under the UNFCCC Process’ in M. B. Gerrard and G. E. Wannier (eds.) Threatened Island Nations: Legal Implications of Rising Seas and a Changing Climate (Cambridge University Press, New York, 2013) 433, 470; see also, K. van der Geest and K. Warner, ‘Vulnerability, Coping and Loss and Damage from Climate Events’ in A. Collins et al. (eds.) Hazards, Risks and Disasters in Society (Elsevier, Oxford, 2015) 121, 123. 34   COP to the UNFCCC, ‘The Cancún Agreements: Outcome of the work of the Ad Hoc Working Group on Long-term Cooperative Action under the Convention’ UN Document FCCC/CP/2010/7/Add.1 (15 March 2011), Decision 1/CP.16 para. 14(f) (Cancún Agreements). 35  Wyman, supra note 4, 183. 36   See e.g., T. A. S. Malielegaoi, ‘The Pacific Islands are Drowning, We Need the World’s Help’ The Guardian (30 August 2014), https://www.theguardian.com/ commentisfree/2014/aug/29/pacific-islands-drowning-samoa-climate-change. 37   See e.g., C. Voigt, ‘State Responsibility for Climate Change Damages’ (2008) 77 Nordic Journal of International Law 1; B. Mayer, ‘State Responsibility 33

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430  Research handbook on climate change, migration and the law A number of SIDS have commenced or threatened legal action against large historical emitters, seeking compensation for the damage that climate change has caused to their territory.38 However, in light of the difficulties with bringing such claims, calls for treaty-based mechanisms to address loss and damage arose relatively early in the UNFCCC negotiations.39 The Alliance of Small Island States (AOSIS) originally proposed mandatory payments from developed countries to compensate for losses suffered by countries particularly vulnerable to climate change, rooted in the law of State responsibility for trans-boundary harm.40 This was ultimately rejected in the formulation of the UNFCCC. Similarly during the negotiation of the Kyoto Protocol, developing countries argued for the establishment of a compliance mechanism that would impose a financial penalty on developed country parties for any failure to meet their quantified emission limitation or reduction commitments. Such penalties were to be distributed as development assistance – a form of compensation to countries particularly vulnerable to climate change.41 This proposal was unsuccessful and the only attempt to address disaster risk reduction and loss and damage was the Kyoto Protocol’s call for the consideration of the ‘establishment of. . . insurance’ and its requirement that a share of the proceeds from the Clean Development Mechanism be used to assist developing countries to meet the costs of adaptation.42 However, these initial steps did not result and Climate Change Governance: A Light Through the Storm’ (2014) 13 Chinese Journal of International Law 539; B. Mayer, ‘Climate Change Reparations and the Law and Practice of State Responsibility’ (2016) 1 Asian Journal of International Law 1. 38   See e.g., S. Beck and E. Burleson, ‘Inside the System, Outside the Box: Palau’s Pursuit of Climate Justice and Security at the United Nations’ (2014) 3 Transnational Environmental Law 17; R. E. Jacobs, ‘Treading Deep Waters: Substantive Law Issues in Tuvalu’s Threat to Sue the United States in the International Court of Justice’ (2005) 14 Pacific Rim Law & Policy Journal 103. 39   Difficulties arise in relation to defining the standard of due diligence required of States in relation to climate change in accordance with international case law on trans-boundary harm and establishing causation between the activity of releasing greenhouse gases into the atmosphere and the specific damage that has occurred: Voigt, supra note 37 15, 17; Millar, Gascoigne and Caldwell, supra note 33, 442–3. 40   Millar, Gascoigne and Caldwell, ibid., 444–5. 41   J. Depledge, UNFCCC, Technical Paper ‘Tracing the Origins of the Kyoto Protocol: An Article-by-Article Textual History’ UN Document FCCC/TP/2000/2 (25 November 2000) paras 349 and 473, http://unfccc.int/resource/docs/tp/tp0200. pdf; for a detailed discussion of this proposal see K. Wilson, ‘Access to Justice for Victims of the International Carbon Offset Industry’ (2011) 38 Ecology Law Quarterly 967, 976. 42   Ibid; Kyoto Protocol, arts 3.14 and 12.8.

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Towards a climate change displacement facility  ­431 in either the type of compensation mechanism or the scale of assistance that developing countries envisaged and, although insurance was again ­identified in the Paris Agreement as an ‘area of cooperation and facilitation’, the provision of insurance occurs largely outside the international legal framework of the UNFCCC.43 It was not until ten years later in 2007, when the Bali Action Plan called for enhanced action on adaptation including ‘disaster risk reduction ­strategies and other means to address loss and damage in particularly ­vulnerable countries’, that the phrase ‘loss and damage’ became widely used in climate negotiations and the issue firmly entered the UNFCCC agenda.44 Following the adoption of the Bali Action Plan, a number of parties to the UNFCCC, including the members of AOSIS, called for the ­establishment of measures to address loss and damage through the adaptation framework being discussed for the post-2012 period.45 As part of the enhanced action on adaptation (known as the Cancún Adaptation Framework) adopted in 2010, parties were encouraged to implement: 1. enhanced climate change-related disaster-risk reduction strategies, taking into consideration the Hyogo Framework for Action 2000– 2015+46 where appropriate, early-warning systems, risk assessment and management, and sharing and transfer mechanisms such as insurance, at local, national, sub-regional and regional levels, as ­ ­appropriate; and 2. measures to enhance understanding, coordination, and cooperation with regard to climate-change-induced displacement, migration, and planned relocation, where appropriate, at national, regional, and ­international levels.47 43   Paris Agreement, art. 8.4(f); for a discussion of the negotiating history under the UNFCCC in relation to insurance, the role of insurance in reducing the financial risk associated with climate change-related disasters, and the organizations outside the UNFCCC, such as the World Bank, that provide insurance products to vulnerable countries see Millar, Gascoigne and Caldwell, supra note 33, 444–7 and 456–61. 44   COP to the UNFCCC, Bali Action Plan, UN Document FCCC/CP/2007/6/ Add.1, (14 March 2008) Decision 1/CP.13, para. 1(c)(iii), http://unfccc.int/resource/ docs/2007/cop13/eng/06a01.pdf. 45   Millar, Gascoigne and Caldwell, supra note 33, 449. 46  See Hyogo Framework for Action 2005–2015: Building the Resilience of Nations and Communities to Disasters, adopted by the World Conference on Disaster Reduction held on 18–22 January 2005 in Kobe, Japan, available at http:// www.unisdr.org/2005/wcdr/intergover/official-doc/L-docs/Hyogo-framework-foraction-english.pdf. 47   Cancún Agreements, Decision 1/CP.16 para. 14(e), (f).

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432  Research handbook on climate change, migration and the law The COP also established a work programme overseen by the Subsidiary Body for Implementation (SBI), to consider approaches to address loss and damage associated with climate change impacts, in particular: 1. possible development of a climate risk insurance facility to address impacts associated with severe weather events; 2. options for risk management and reduction, risk sharing and transfer mechanisms such as insurance, including options for micro-insurance, and resilience building, including through economic diversification; 3. approaches for addressing rehabilitation measures associated with slow-onset events; and 4. engagement of stakeholders with relevant specialized expertise.48 At the same time, parties remained deeply divided over what loss and damage under the UNFCCC should address, while some debated whether the issue should be addressed at all.49 Of all the matters being considered as part of the work programme on loss and damage, the third element – rehabilitation measures associated with slow-onset events, is perhaps the most challenging. Although policy responses such as coastal land use planning are likely to form part of these response strategies, this is one area where relocation of people displaced by those events will also need to form part of a response.50 It was not until 2012 that the parties could agree on a more defined scope for a loss and damage mechanism, determining that the role of the UNFCCC in addressing loss and damage includes three areas: a)  enhancing knowledge and understanding of risk management approaches; b) strengthening dialogue, coordination, coherence and synergies among relevant stakeholders; and c) enhancing action and support on loss and damage, including finance, technology and capacity building.51 In 2012 the parties also decided to create dedicated institutional arrangements that would serve to further these agreed roles of the ­ UNFCCC, thereby moving beyond conceptual discussions of a still broad concept into more concrete, action-oriented negotiations.52     50   51   52   48 49

Ibid., paras 25, 26 and 28. Climate Focus, supra note 14. Millar, Gascoigne and Caldwell, supra note 33, 454. Doha Decision, supra note 15, para. 5. Ibid., para. 9; Climate Focus, supra note 14.

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Towards a climate change displacement facility  ­433 At Warsaw in 2013, the Warsaw International Mechanism was established.53 The Mechanism’s goal is to address loss and damage associated with impacts of climate change, including extreme events and slow-onset events, in developing countries that are particularly vulnerable to the adverse effects of climate change.54 The Mechanism would be subject to review in 2016 and was to be managed by an Executive Committee comprising representatives from existing UNFCCC bodies. The Executive Committee was tasked to develop and carry out an initial two-year work plan.55 The work plan developed by the Executive Committee and adopted in 2014 has nine ‘action areas’. Notably, action area six is to ‘enhance the understanding of and expertise on how the impacts of climate change are affecting patterns of migration, displacement and human mobility; and the application of such understanding and expertise’.56 Loss and damage was again one of the most contentious issues at the Paris climate negotiations and its inclusion in the final text of the Paris Agreement remained controversial until the very last hours of negotiation.57 Article 8 of the Paris Agreement provides that the Warsaw International Mechanism will be subject to the authority and guidance of the COP to the UNFCCC serving as the meeting of the parties to the Paris Agreement. It also provides that parties should ‘enhance understanding, action and support. . . on a cooperative and facilitative basis with respect to loss and damage associated with the adverse effects of climate change’. As noted above, the areas of cooperation and facilitation identified were: a) b) c) d) e) f)

early-warning systems; emergency preparedness; slow-onset events; events that may involve irreversible and permanent loss and damage; comprehensive risk assessment and management; risk insurance facilities, climate risk pooling and other insurance solutions;

53   Conference of the Parties to the United Nations Framework Convention on Climate Change, ‘Warsaw international mechanism for loss and damage associated with climate change impacts’ (31 January 2014) UN Document FCCC/ CP/2013/10/Add.1, Decision 2/CP.19, para 1. 54  Ibid. 55   Ibid., paras 4, 9. 56   COP to the UNFCCC, ‘Report of the Executive Committee of the Warsaw International Mechanism for Loss and Damage Associated with Climate Change Impacts’ (24 October 2014) UN Document FCCC/SB/2014/4, at Annex II. 57   Climate Focus, supra note 14.

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434  Research handbook on climate change, migration and the law g) non-economic losses; and h) resilience of communities, livelihoods and ecosystems.58 Prior to the COP in Paris, developing countries had three primary demands: first, make the Warsaw International Mechanism a permanent mechanism; secondly, elevate the issue of displacement and migration into one of the nine action areas under the agreed work programme of the Warsaw International Mechanism; and thirdly, recognize some form of finance for irrecoverable loss and damage, possibly through innovative financing channels.59 Article 8 of the Paris Agreement has been described as an ‘ambitious compromise’ in that the prominent placement of loss and damage in the Agreement ensures its role as part of the institutional framework under the Agreement beyond the expiry of the Kyoto Protocol in 2020, but this prominence is compromised by its ‘soft’ approach.60 Article 8.3 of the Paris Agreement clarifies that the parties’ obligations are of a cooperative and facilitative nature – reiterating the approach adopted in the 2007 Bali Action Plan, the 2010 Cancún Adaptation Framework and the decision establishing the Warsaw International Mechanism in 2013, while eschewing any resemblance to the original proposals to link concrete financial obligations to legal responsibility for climate change. Indeed, the decision adopting the Paris Agreement expressly states that ‘Article 8 of the Agreement does not involve or provide a basis for any liability or compensation.’61 Conspicuous by its absence from the Paris Agreement is the ‘climate change displacement coordination facility’, with the parties deciding to leave open the question of what action will be taken to address displacement for future negotiations. Some scholars have argued that, because the Cancún Adaptation Framework does refer to induced displacement, migration and planned relocation, the funds set aside for adaptation under the UNFCCC, such as the Adaptation Fund and the Green Climate Fund can and should be used to fund displacement initiatives.62 However, the language of the

  Paris Agreement, art 8.4.   S. Huq and R. De Souza, ‘Not Fully Lost and Damaged: How Loss and Damage Fared in the Paris Agreement’ (22 December 2015), https://www.wilson​ center.org/article/not-fully-lost-and-damaged-how-loss-and-damage-fared-theparis-agreement. 60   Climate Focus, supra note 14. 61   Decision 1/CP.21, supra note 9, paras 49–50. 62  Wyman, supra note 4, 183–5; S. McAnaney, ‘Sinking Islands? Formulating a Realistic Solution to Climate Change Displacement’ (2012) 87 New York University Law Review 1172, 1204–5. 58 59

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Towards a climate change displacement facility  ­435 Paris Agreement is carefully crafted to avoid the creation of additional financial commitments on the part of developed countries. While the text of Article 8 is non-binding and does not explicitly refer to finance, the finance provisions of the Agreement (art. 9) provide that support is to be balanced between adaptation and mitigation, excluding any specific reference to loss and damage, thereby subtly avoiding the creation of a dedicated finance stream. Neither the Paris Agreement nor the adopting COP decision expressly provides a mandate for the Green Climate Fund – the Paris Agreement’s chief financial mechanism – to provide finance for loss and damage. This means that loss and damage will remain subsumed in the much broader umbrella of adaptation finance and it is unlikely that either Article 8 or Article 9 of the Paris Agreement will result in additional financial commitments specifically towards loss and damage.63 Despite the limitations of the existing financial architecture, in 2016 the Executive Committee compiled an information paper on best practices, challenges and lessons learned from existing financial instruments that address the risk of loss and damage.64 Based on submissions from governments and interested organizations, the paper identified a range of insurance schemes, bonds, contingency finance and risk management and risk pooling products that are being, or could be used, to finance loss and damage. In September 2016, the Standing Committee on Finance, supported by the Asian Development Bank and Philippines Climate ­ Change Commission, built upon this, holding a forum on financial instruments that could be useful in dealing with loss and damage. The forum similarly explored the range of existing financial instruments operating at different levels that are used to address the risks of loss and damage. The forum focused, in particular, on risk transfer schemes, social protection schemes, catastrophe and resilience bonds, and contingency finance and discussed respective opportunities, challenges, limitations and gaps.65 Of note, none of the financing tools were discussed in the context of ­managing human displacement.

  Climate Focus, supra note 14.   Warsaw International Mechanism Executive Committee, Information Paper, ‘Best practices, challenges and lessons learned from existing financial instruments that address the risk of loss and damage associated with the adverse effects of climate change’ (August 2016), http://unfccc.int/files/adaptation/groups_commit​ tees/loss_and_damage_executive_committee/application/pdf/aa7_d_information_ paper.pdf. 65   UNFCCC, ‘Highlights of the 2016 SCF Forum’, http://unfccc.int/files/ cooperation_and_support/financial_mechanism/standing_committee/application/ pdf/scf2016_forum_highlights.pdf> accessed 5 December 2016. 63 64

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436  Research handbook on climate change, migration and the law Perhaps tellingly, Article 8.5 of the Paris Agreement affirms that the Warsaw International Mechanism shall collaborate with existing bodies both within and outside the UNFCCC. This provision appears to be an attempt to avoid infringing on the mandates of existing bodies who are arguably much better equipped to address certain issues, such as the International Organization for Migration (IOM) in the case of internationally displaced persons.66 The outcome of the Paris negotiations does provide one source of hope for a future climate change displacement facility. Notwithstanding the absence of a reference to displacement in Article 8 of the Paris Agreement itself, the decision adopting the Paris Agreement requests the Executive Committee of the Warsaw International Mechanism to establish, ­according to its procedures and mandate, a task force to complement, draw upon the work of and involve existing bodies and expert groups under the UNFCCC including the Adaptation Committee and the Least Developed Countries Expert Group, as well as relevant organizations and expert bodies outside the UNFCCC, to develop recommendations for integrated approaches to avert, minimize and address displacement related to the adverse impacts of climate change.67 The task force on displacement was established in 2016 and its terms of reference require its recommendations to be provided by 2018.68 In July 2016 the Executive Committee and the IOM held a ­technical  meeting on migration, displacement, and human mobility in Casablanca, Morocco. The meeting explored current practices in this area including: a) disaster preparedness (e.g., early-warning systems in Bangladesh and the Special Guide on Assistance in Mexico); b) planned relocation programmes (e.g., planned voluntary relocation in Papua New Guinea); c) institutional structures (e.g., nationals abroad established by the Ministry of Foreign Affairs in Colombia); d) non-return policies (e.g., suspension of involuntary return in UK, Germany and Netherlands and fast-track visa applications in Canada and Australia); and e) regularization requirements (e.g., post-earthquake programs for  Ibid.   Decision 1/CP.21, supra note 9, para. 49. 68   UNFCCC, ‘Terms of Reference: Task Force on Displacement’, https:// unfccc.int/files/adaptation/groups_committees/loss_and_damage_executive_com​ mittee/application/pdf/tor_task_force_final.pdf. 66 67

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Towards a climate change displacement facility  ­437 Haitians in Ecuador, Venezuela, and Brazil and transitory resident status in Argentina).69 The recommendations flowing from the meeting addressed a range of issues related to enhancing knowledge, the need for greater dialogue and coordination between stakeholders and the need for greater support, including with respect to policy development and finance, to address human displacement.70 At COP 22 in Marrakech, parties undertook their first review of the Warsaw International Mechanism and adopted an indicative framework for a five-year rolling workplan. Within this workplan, the Executive Committee was requested, among other things, to advance the ­operationalization of its mandate on displacement.71 The COP also made recommendations for subsequent reviews of the Mechanism, including, as part of the inputs into the next review in 2019, elaboration on finance available for loss and damage and modalities for accessing such finance.72 The above discussion highlights that parties to the UNFCCC are already actively engaged in the consideration of the causes and many of the impacts of events that may result in displacement. Work is already underway in this forum, albeit through more passive activities like research, workshops, exchanges of information and other measures to enhance the understanding of these causes and impacts. The political buy-in to cooperate and provide support at this level is a significant step. Over time, and with the commitment of additional financial resources and ongoing political support from the G77 and China, this ‘knowledge platform’ could evolve into a more substantive, action-orientated facility.

III. TOWARDS A CLIMATE CHANGE DISPLACEMENT FACILITY The original concept of a ‘climate change displacement coordination support mechanism’ proposed by the LDCs envisaged a mechanism

69   See International Organisation for Migration, Technical Meeting on Migration, Displacement and Human Mobility, available at https://environmental​ migration.iom.int/technical-meeting, accessed 5 December 2016. 70  Ibid. 71  UNFCCC, Advanced unedited version, Decision -/CP.22 Warsaw ­Interna­tional Mechanism for Loss and Damage associated with Climate Change Impacts (2016). 72  Ibid.

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438  Research handbook on climate change, migration and the law that  would be established under the Warsaw International Mechanism and provide assistance to people displaced by the impacts of climate change, including measures to provide support for: ● ●

emergency relief; assistance in providing organized migration and planned relocation; [and] ● compensation measures.73

The LDCs’ proposal did not provide further guidance on matters such as whether the mechanism would be an independent body or fund established under the guidance of the COP to the UNFCCC serving as the Meeting of the Parties to the Paris Agreement. What was clear was that ­developing countries wanted a mechanism separate and distinct from adaptation, which would recognize the need to address displacement and migration. However, given its intended scope, it was unclear how this potential new fund would interact with the existing finance arrangements under the UNFCCC and the Paris Agreement, in particular the Green Climate Fund. The expression ‘climate change displacement coordination facility’ first appeared in the draft text for the Paris Agreement in December 2014, where the three functions of the facility remained virtually unchanged from the LDCs’ original proposal.74 However, during subsequent negotiations, developed country parties unsurprisingly refused to include compensation measures within the scope of the facility and this element was deleted from the draft Paris Agreement. Ultimately, the facility itself was not created in Paris. Instead, the Executive Committee of the Warsaw International Mechanism was tasked with developing recommendations to the COP for integrated approaches to avert, minimize and address displacement, and it is anticipated that the Executive Committee’s work on this issue could culminate in a recommendation that the COP establish a climate change   United Nations Framework Convention on Climate Change, ‘Submission by Nepal on behalf of the Least Developed Countries Group on the ADP Co-Chairs’ Non Paper of 7 July 2014 on Parties Views and Proposal on the Elements for a Draft Negotiating Text’ (21 October 2014), http://www4.unfccc. int/submissions/Lists/OSPSubmissionUpload/39_99_130584499817551043Submission%20by%20Nepal%20ADP_21%20Oct%202014.pdf, at 4. 74   United Nations Framework Convention on Climate Change, Report of the Conference of the Parties on its twentieth session, held in Lima from 1 to 14 December 2014, UN Document: FCCC/CP/2014/10/Add.1 (2 February 2015), Decision 1/CP.20 Lima Call for Climate Action, Annex: ‘Elements for a draft negotiating text’, http://unfccc.int/resource/docs/2014/cop20/eng/10a01.pdf, at 18. 73

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Towards a climate change displacement facility  ­439 displacement facility. The following sections discuss the potential mandate, sources of funds, use of funds and governance of a future climate change displacement facility. A. Mandate Scholars, commentators, negotiators and international organizations have suggested that a climate change displacement facility be tasked with myriad functions; from funding research into patterns of m ­ igration, identifying and providing resettlement opportunities, serving as a ­clearing house for bilateral migration treaties, providing humanitarian and d ­ isaster relief assistance, to setting standards and criteria for determining which individual migrants are eligible for assistance and implementing an ­ ­administrative regime to process claims.75 Many proposals or suggestions as to the scope of the climate change displacement facility are still from within the paradigm of international refugee law where the focus is on identifying individuals who meet the ­definition of a refugee, such as proposals for standard setting to identify those displaced due to climate change and quotas or obligations for ­countries to accept and re-settle those displaced due to climate change.76 Not only is it highly unlikely that the parties to the UNFCCC would agree to a mandate of standard setting and processing of individual claims akin to the regime established by the Refugee Convention, but such proposals invite the same criticisms as proposals for a new rightsbased treaty discussed above.77 For instance, the negotiations to define the people impacted by climate change who would qualify for relocation under the UNFCCC would be just as fraught as any negotiations to amend the Refugee Convention to include a definition of climate change refugee. Additionally, the UNFCCC is a regime that is entirely unsuited to providing a framework for the protection of individuals and imposing top-down obligations on States to protect individual citizens. Proposals for compensation and punitive enforcement mechanisms dissipated early during the UNFCCC negotiations and, following the highly publicized failure to reach an agreement for a post-2012 treaty at Copenhagen in   See e.g., J. Wentz and M. Burger, Columbia Law School Sabin Centre for Climate Change Law, ‘Designing a Climate Change Displacement Coordination Facility: Key Issues for COP21’ (September 2015), https://web.law.columbia.edu/ sites/default/files/microsites/climate-change/unfccc_climate_change_displacement_ coordination_facility.pdf, at 9–10. 76   See e.g., ibid., 14–16. 77   See Part I.A of this chapter. 75

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440  Research handbook on climate change, migration and the law 2009, the UNFCCC process has evolved into an increasingly bottom-up, building-blocks approach.78 Under the Paris Agreement, specified emission reduction obligations are not imposed, but each State is required to submit ‘nationally determined contributions’ that it ‘intends to achieve’ (emphases added).79 There are no concrete requirements as to the content or stringency of such contributions and no requirement to achieve any target or limitation set out in the contributions.80 In this context, a climate change displacement facility would only succeed under the UNFCCC if it is voluntary in nature, rather than imposing top-down standards and protection obligations upon unwilling States. Such an approach would also give individual States greater freedom and flexibility in addressing ­migration and displacement in an integrated and holistic manner. For example, rather than having to single-out populations displaced due to climate change, as opposed to populations displaced due to other socioeconomic and environmental stressors, States would be able to integrate policies on displacement and migration more broadly. Without significant additional funds, the provision of humanitarian and disaster relief assistance through a displacement facility would be very constrained. Moreover, the governance structures of UNFCCC bodies and facilities and the lack of experience within the UNFCCC in ­delivering emergency relief makes it unlikely that a displacement f­acility would be capable of swiftly deploying and effectively delivering the ­necessary ­services. For these reasons, humanitarian assistance is best left to existing international organizations and non-governmental organizations. Indeed, there is already a well-established, albeit underfunded, network of international organizations that respond to natural disasters and whose responses are coordinated through the UN Office for the Coordination of Humanitarian Affairs. For example, the IOM administers programmes to provide emergency relief, return people to their homes, reintegration, capacity building, and protecting the rights of affected populations in instances of disaster-induced displacement. Including humanitarian assistance and disaster relief within the mandate of a climate change displacement facility under the Warsaw International Mechanism would not only duplicate these existing efforts and result in an inefficient allocation and use of funds, but would also place the Executive Committee of the Warsaw International Mechanism in the unenviable position of having to decide   See e.g., R. Stewart, M. Oppenheimer and B. Rudyk, ‘Building Blocks for Global Climate Protection’ (2013) 32 Stanford Environmental Law Journal 341. 79   Paris Agreement, art. 4.2. 80   L. Rajamani, ‘The 2015 Paris Agreement: Interplay Between Hard, Soft and Non-Obligations’ (2016) 28 Journal of Environmental Law 337, 354. 78

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Towards a climate change displacement facility  ­441 when a particular disaster is caused by climate change and is therefore within its mandate. It has also been argued that the facility could: ●●

●● ●●

serve as a new funding mechanism for activities aimed at preventing or managing climate change-induced displacement and migration, such as assisting displaced persons during their journey or providing permanent housing and resettlement opportunities;81 pay countries to accept and re-settle migrants;82 and be used to define specific national obligations or targets with respect to climate-induced displacement, such as targets for accepting displaced persons that correspond with the historical GHG contribution of each country, or even more qualitative obligations.83

Given the constrained legal and political context of international climate change negotiations, we would rather argue for a narrower, more realistic mandate for a climate change displacement facility, including the following functions: 1. developing recommendations for integrated approaches to avert, minimize and address displacement related to the adverse impacts of climate change; 2. undertaking activities aimed at preventing or managing climate change-induced displacement and migration; and 3. providing capacity building and technical assistance to developing country parties in formulating national plans for orderly resettlement. The first two functions are already aligned with the work that the Executive Committee of the Warsaw International Mechanism is starting to pursue under its workplan on displacement. With appropriate financial, technical and human resources, a designated facility could expand this work to more closely support developing countries to align their vulnerability assessments, adaptation planning and national climate change strategies with national assessments of displacement risk and migration options, both internal and external. Building on this idea, the Advisory Group on Climate Change and Human Mobility has recommended that one function of the ­displacement

  Wentz and Burger, supra note 75, 8.  Ibid., 8–9. 83   Ibid., 15, 16. 81 82

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442  Research handbook on climate change, migration and the law coordination facility should be to assess the risk of climate changerelated forced internal and cross-border displacement.84 This could involve ­collecting data on existing patterns of climate-induced displacement and making predictions about future displacement needs. The facility could also assess possible responses and collect information that would help countries select and implement the best response options. This could include research on adaptation measures to prevent climate-induced displacement as well as identifying suitable places for relocation and ­assessing the economic costs of relocation compared with other adaptation ­strategies that may prevent the need for relocation.85 While it is unlikely that the facility could itself undertake and finance resettlement, it could at least provide direct technical assistance to national governments to help with the design and implementation of programmes to prevent displacement and administer national resettlement ­programmes.86 In this regard, the displacement facility would complement adaptation planning under the UNFCCC and could build on the e­ xperience of existing UNFCCC bodies that have provided capacity building and technical assistance to developing countries in relation to REDD+, the formulation of Intended Nationally Determined Contributions and National Adaptation Plans, and the preparation and implementation of National Adaptation Programmes of Action, which is funded by the Least Developed Countries Fund. In particular, it is important that, in any future decision establishing a climate change displacement facility, States be encouraged to take ­measures in their National Adaptation Plans to prevent and reduce the internal and cross-border displacement of vulnerable populations by increasing the resilience and adaptive capacity of vulnerable populations to enable them to remain where they live if they choose to do so, or ­planning for and facilitating voluntary and orderly migration. Indeed, some countries have already begun to incorporate issues of human mobility, migration and displacement into their National Adaptation ­ Plans.87 Several of these Plans include proposals for resettlement projects,

  Advisory Group on Climate Change and Human Mobility, Human Mobility in the Context of Climate Change: Elements for the UNFCCC Paris Agreement (March 2015), https://environmentalmigration.iom.int/sites/default/ files/March2015.pdf, at 3. 85  Ibid. 86   Wentz and Burger, supra note 75, 10. 87   See e.g., UNFCCC, Burkina Faso National Climate Change Adaptation Plan, (May 2015), http://www4.unfccc.int/nap/Documents/Parties/PNA_Version_ version%20finale[Transmission].pdf, at 15, 64, 66. 84

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Towards a climate change displacement facility  ­443 but without any detail on how exactly these projects would be implemented. The facility would need to administer this assistance to national governments in formulating and carrying out national plans in a way that would respect State sovereignty and facilitate national goals, while also ensuring that governments do not violate the human rights of individuals and communities, such as through forced relocations. In some ways the Warsaw International Mechanism is already heading in this direction with its technical meeting in July 2016, which aimed to bring together national policy makers, relevant organizations and experts to collectively enhance understanding of migration and displacement, including c­ haracteristics of vulnerable populations and good practices in relation to human migration.88 In this regard, the technical meeting resulted in a set of policy recommendations to States and policy makers, such as integrating displacement and human mobility in national adaptation policies, supporting and maintaining traditional routes of migration and livelihoods, as well as removing legal barriers to seasonal migration and voluntary relocation.89 Ideally, the facility should also engage in, encourage or require public consultation and stakeholder engagement for persons who are displaced or at risk of displacement in accordance with the principle of prior informed consent and the tenets of the Convention on Access to Information, Public Participation in Decision-Making and Access to Justice in Environmental Matters (Aarhus Convention).90 In countries where governments lack the capacity or political will to plan for human displacement, the facility could assist other entities to carry out such projects, such as humanitarian organizations that work within LDCs.91 B.  Sources of Funding Recent estimates of the funding needed to meet the adaptation needs of developing countries, assuming the international community achieves its 2°C target and excluding the cost of potential human relocation,

  Executive Committee of the Warsaw International Mechanism for Loss and Damage Associated with Climate Change Impacts, Technical Meeting, Action Area 6: Migration, Displacement and Human Mobility, http://unfccc.int/files/ adaptation/groups_committees/loss_and_damage_executive_committee/applica​ tion/pdf/excom_iom_technical_meeting_pillar_3.pdf. 89  Ibid. 90   Convention on Access to Information, Public Participation in DecisionMaking and Access to Justice in Environmental Matters, 25 June 1998. 91   Wentz and Burger, supra note 75, 11. 88

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444  Research handbook on climate change, migration and the law are in the order of $520 billion annually.92 Funds available through the various UNFCCC financial mechanisms and funds have long been recognized as inadequate to meet this need.93 There is currently no ­ ­dedicated multilateral fund to support the implementation of the Warsaw International Mechanism, let alone a climate change displacement facility. In Copenhagen in 2009, the parties to the UNFCCC pledged to scale up funding for mitigation and adaptation to US$100 billion per year by 2020. The parties proposed that a significant portion of the multilateral funding be delivered through a new Green Climate Fund, which was subsequently established in 2010.94 Parties have repeatedly stated that the US$100 billion pledged by 2020 will be balanced between mitigation and adaptation and comprise a mix of both public and private funding.95 The Fund aims to achieve a 50:50 balance between mitigation and adaptation over time, on a grant equivalent basis.96 Similarly, under the Paris Agreement, parties agreed that the provision of scaled-up financial resources should aim to achieve a balance between mitigation and adaptation and that climate finance should be mobilized from a wide variety of sources, instruments and channels.97 Parties were also urged to scale up their level of support with a concrete roadmap to achieve the Copenhagen goal. Prior to COP 22 in Marrakech, a number of developed country parties submitted the roadmap to US$100 Billion, outlining the actions being taken to achieve the goal, and noting that they were on track to do so.98 Despite the positive message, the report failed to expressly quantify the proportion of finance being directed to adaptation. However, other   T. Carty, Oxfam Media Briefing, ‘Game-changers in the Paris Climate Deal: What is needed to ensure a new agreement helps those on the front lines of climate change’ (25 November 2016), http://policy-practice.oxfam.org.uk/publications/ game-changers-in-the-paris-climate-deal-what-is-needed-to-ensure-a-new-agree​ men-582554, at 6. 93   Millar, Gascoigne and Caldwell, supra note 33, 464–5. 94   Cancún Agreements, paras 100, 102. 95   United Nations Framework Convention on Climate Change, Report of the Conference of the Parties on its 17th session held in Durban from 28 November to 11 December 2011, UN Document FCCC/CP/2011/9/Add.1 (15 March 2012), Decision 3/CP.17 Launching the Green Climate Fund, http://unfccc.int/resource/ docs/2011/cop17/eng/09a01.pdf, at para 8; Paris Agreement, art. 9.4. 96   GCF Features, available at https://www.greenclimate.fund/about-gcf/globalcontext#history, accessed on 5 December 2016. 97   Paris Agreement, arts 9.3 and 9.4. 98   UNFCCC, Roadmap to US$100 Billion, available at http://www4.unfccc. int/Submissions/Lists/OSPSubmissionUpload/261_295_131233554162587561-Ro​ admap%20to%20the%20US$100bn%20(UNFCCC).pdf, accessed on 5 December 2016. 92

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Towards a climate change displacement facility  ­445 sources note that it remains significantly less than the finance being directed to mitigation.99 It goes without saying that a new climate change displacement f­acility would need to be properly funded in order to effectively carry out its mandate. Some have suggested that funding for the climate change displacement facility be through the Green Climate Fund.100 Although the Fund’s board has the authority to establish additional ‘funding windows’ beyond mitigation and adaptation and could therefore choose to extend its scope to include loss and damage and displacement, the Fund is presently focused on enhancing direct access for recipient countries to the Fund, rather than deploying finance to support specific projects or national programmes.101 Additionally, funding climate change displacement initiatives through the Green Climate Fund would mean that separate funding applications would be assessed by a body that does not see displacement ­planning and support as its primary function and would therefore be unlikely to prioritize funding for assisting countries to formulate plans for relocating certain populations. A separately funded climate change displacement facility could arguably disburse funds more effectively and efficiently than if displacement were to be added as an additional window of funding under the Green Climate Fund. However, sources of funding for displacement initiatives should be approached with considerable caution as an undue focus on longer-term impacts could risk undermining the case for investment and adaptation measures in vulnerable regions to deal with very real and existing ­vulnerabilities.102 Indeed, the IPCC has placed very high confidence in its conclusion that the most effective vulnerability reduction measures in the near term are programs that implement and improve basic public health measures and increase the capacity for disaster preparedness and response and poverty alleviation.103   UNFCCC, Report of the Standing Committee on Finance to the Conference of the Parties, FCCC/CP/16/8, para. 27. 100   P Warren, ‘Evaluating the “Climate Change Displacement Coordination Facility”: How the UNFCCC Can Address Forced Migration After Paris COP21’ Columbia Law Review (forthcoming 2016). 101   COP to the UNFCCC, ‘Report of the Green Climate Fund to the Conference of the Parties and guidance to the Green Climate Fund’, UN Document FCCC/ CP/2015/10/Add.2 (29 January 2016), Decision 7/CP.21, para. 7. 102   International Organization for Migration, ‘Assessing the Evidence: Environment, Climate Change and Migration in Bangladesh’ (2010), https:// publications.iom.int/system/files/pdf/environment_climate_change_bangladesh. pdf, at 11. 103   IPCC Working Group II, Summary for Policy Makers, supra note 1, 20.  99

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446  Research handbook on climate change, migration and the law Contributions from parties (in particular developed country parties and developing countries with the capacity to contribute) would need to form the basis for covering the operational costs of such a facility. This is likely to be in the order of tens of millions of dollars per year, even with the limited coordination and support mandate outlined above. Several options to increase climate finance more generally have been considered over the years, including extending the share of proceeds from the Clean Development Mechanism to other market-based mechanisms and imposing levies on certain sectors such as aviation.104 The establishment of a climate change displacement facility would only increase the imperative to explore these options for new and additional sources of funding. Migration remains an extremely vexed political issue throughout the world and national and regional migration bodies are expending ­significant funds on responding to current crises. Rather than focus on climate finance as the sole source of funding for a climate change displacement facility, there may be opportunities to explore the diversion of national ­migration budgets into adaption planning, orderly migration and preventative actions. C.  Use of Funds and Governance If the facility is to distribute funds to countries to assist with their national planning for displacement, it will be important to define its relationship with other existing funds, including the Global Environment Facility, the Green Climate Fund, the Special Climate Change Fund, the Least Developed Countries Fund and the Adaptation Fund.105 As adaption ­planning is a central aspect of managing the coordination of orderly responses to displacement, these existing funds may well provide some of the much-needed finance required to assist developing country ­governments. However, it will be crucial for these funds to recognize the importance of displacement management as an element of adaptation. It will also be important to determine who will make decisions about how funds are used and what criteria will be used to determine the ­activities that receive funding. The funds and mechanism that have been set up under the UNFCCC and Kyoto Protocol to date are very much party-led. Most boards and committees are comprised of members   See e.g., B. Müller, ‘Two Unconventional Options to Enhance Multilateral Climate Finance: Shares of Proceeds and Crowdfunding’ European Capacity Building Initiative Policy Brief (2016), http://www.bu.edu/ise/files/2016/10/2016-ecbiPolicy-Brief-Finance-final.pdf. 105   Wentz and Burger, supra note 75, 9. 104

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Towards a climate change displacement facility  ­447 r­epresenting developed and developing countries, SIDS and LDCs with wide geographic ­representation. This means that individual representatives are usually drawn from government representatives and, despite acting in their personal capacities, are often advocating national positions. These boards also typically meet only periodically, rather than having a ­permanent presence. While the UNFCCC or Fund Secretariats facilitate the ongoing work of the bodies, decision-making, including on the disbursement of funds, is often slow. Ideally a climate change displacement facility would have a ­permanent presence, with well-resourced secretariat support, enabling it to undertake the research, coordination and support roles it is tasked with and distribute (or coordinate the distribution of) funds for the displacement aspects of adaptation planning. In the short term, it is difficult to ­envisage a board structure that departs radically from the UNFCCC norm. However, seeking to include on any governing board people with expertise in adaptation planning, migration and finance would enhance its operation.

IV. CONCLUSION In light of the inherent difficulties with addressing climate changeinduced displacement through a rights-based paradigm, the future work programme of the Warsaw International Mechanism offers a valuable platform to address the issue. A climate change displacement facility could serve a valuable role in assisting vulnerable developing countries plan for and manage the impacts of slow-onset environmental change and the orderly migration of people both internally and externally. While a future climate change displacement facility will never be a complete answer to the problem of climate change-induced displacement, it does provide a politically feasible, short- to medium-term international response to an issue that is unable to garner traction in other legal fora. Ultimately, a coherent and integrated patchwork of initiatives both within and outside the UNFCCC, with the support of both private and public sources of funding, will be necessary to address the complex drivers of climate-induced displacement and the diverse needs of displaced persons and the countries they inhabit. Indeed, the Peninsula Principles and Nansen Initiative discussed elsewhere in this volume have already begun to set a normative framework for approaching internal and international displacement respectively. Additionally, there is always a place for bilateral agreements for migration. The special position of SIDS means they may be able to negotiate bilateral agreements with nearby countries

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448  Research handbook on climate change, migration and the law based on proximity and cultural affiliation.106 A climate change displacement facility within the UNFCCC and Paris Agreement framework should therefore be seen as one of a number of complementary initiatives to address the issue.

  Hodgkinson et al., supra note 6.

106

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21.  Towards an extension of complementary protection? Towards an extension of complementary protection?

Susan F. Martin

INTRODUCTION Currently, national, regional and international legal frameworks for protecting persons who are displaced across borders by the effects of climate change and other environmental drivers are weak. States possess broad authority to regulate the movement of foreign nationals across their borders. Although this authority is not absolute, States exercise their sovereign powers to determine who will be admitted and for what period. The authority of States is limited by certain rights accorded foreign ­ nationals in international law but there are no international ­instruments that specifically address cross-border movements stemming from ­environmental factors. This is not to say that there is a complete lacuna in international law. As with other migrants, those displaced by environmental factors enjoy all of the human rights applicable, as defined by multiple human rights instruments. The Universal Declaration of Human Rights, the International Covenant on Civil and Political Rights and the International Covenant on Economic and Social Rights define the basic rights of all persons. Importantly, Article 13 of the Universal Declaration declares that ‘everyone has the right to leave any country, including one’s own, and to return to one’s own country’. The Declaration does not, however, require any other country to admit people who exercise their right to leave. Similarly, Article 14 of the Universal Declaration states that ‘everyone has the right to seek and to enjoy in other countries asylum from ­persecution’, but there is no corresponding obligation on the part of States to offer asylum. The obligation in the 1951 Refugee Convention and under ­customary international law is not to forcibly return (refouler) someone to where they may be exposed to persecution.1  1   UNHCR’s view that non-refoulement is customary international law was set out in a brief to the German Federal Constitutional Court:

The view that the principle of non-refoulement has become a rule of international customary law is based on a consistent practice combined with a

449

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450  Research handbook on climate change, migration and the law Some environmentally displaced persons may be covered under the 1951 UN Convention Relating to the Status of Refugees and its 1967 Protocol. The Convention defines refugees as persons who are unable or unwilling to avail themselves of the protection of their home countries because of a ‘well-founded fear of persecution based on their race, religion, ­nationality, political opinion or membership in a particular social group’.2 While few persons seeking protection because of purely environmental reasons are likely to meet the definition, those fleeing from the impacts of climate change may qualify if their life is in danger because they are unable to access resources because of a protected characteristic (that is, race, ­religion, nationality, membership of a particular social group or p ­ olitical opinion). Then, the non-refoulement (non-forced return) provision of Article 33 of the Refugee Convention would apply. In Africa, the scope of coverage is greater because the 1969 OAU (now AU) Convention Governing Specific Aspects of Refugee Problems in Africa applies, beyond the 1951 UN Refugee Convention, to anyone who, ‘owing to external aggression, occupation, foreign domination or events seriously disturbing public order in either part or the whole of his country of origin or nationality, is compelled to leave his place of habitual ­residence in order to seek refuge in another place outside his country of origin or nationality’. To the extent that the impacts of climate change seriously disturb public order, persons forced to leave their homes may be covered. The Cartagena Declaration, adopted by Latin American ­countries, has a similar broadening of the refugee definition but it is not binding regional law.3 National laws follow this same pattern of weak coverage of ­environmental displacement. The immigration policies of most destination countries are r­ ecognition on the part of States that the principle has a normative character. This conclusion is supported by the fact that the principle has been incorporated in international treaties adopted at the universal and regional levels to which a very large number of States have now become parties. The principle has, moreover, been reaffirmed in the 1967 United Nations Declaration on Territorial Asylum. Finally, the principle has been systematically reaffirmed in conclusions of the UNHCR Executive Committee and in resolutions adopted by the United Nations General Assembly. See UNHCR, The Principle of Non-Refoulement as a Norm of Customary International Law: Response to the Questions Posed to UNHCR by the Federal Constitutional Court of the Federal Republic of Germany in Cases 2 BvR 1938/93, 2 BvR 1953/93, 2 BvR 1954/93 (31 January 1994), available at http://www.refworld. org/docid/437b6db64.html.  2   Convention relating to the Status of Refugees, 1951, art. 1(A)(2).  3   Cartagena Declaration on Refugees (22 November 1984).

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Towards an extension of complementary protection?  ­451 not conducive to receiving large numbers of environmental migrants, unless they enter through already existing admission categories. Typically, destination countries admit persons to fill job openings or to reunify family members. Employment-based admissions are usually based upon the labour market needs of the receiving country, not the situation of the home country. Family admissions are usually restricted to persons with immediate relatives (spouses, children, parents and, sometimes, siblings) in the destination country. Humanitarian admissions are generally limited to refugees and asylum seekers – that is, those who fit the definition in the UN Convention Relating to the Status of Refugees. Most environmental migrants will be unlikely to meet the legal definition of a refugee, forced to flee because of loss of livelihood or habitat and not because of persecutory policies. Some countries have established special policies that permit individuals whose countries have experienced natural disasters or other severe upheavals to remain at least temporarily without fear of deportation. Given this dearth of international and regional agreements ­specifically focused on the impacts of climate and other environmental changes, a number of organizations have promoted guidelines that would be a­ pplicable in these situations. The most prominent is the Nansen Initiative, which was launched at the 60th anniversary commemoration of the UNHCR. An intergovernmental process spearheaded by Norway and Switzerland, the Nansen Initiative built a global evidence base and ­consensus on the needs of people displaced across borders in the context of disasters and climate change. The culmination of this process resulted in an Agenda for the Protection of Cross-Border Displaced Persons in Context of Disaster and Climate Change.4 The Agenda outlines proactive steps that States need to take at the national, regional, and international levels. When first presented in October 2015, more than 100 countries endorsed its conclusions and recommendations. This chapter discusses efforts to fill the gap in protection through processes, such as the Nansen Initiative, that are complementary to existing international, regional and national legal frameworks. Since many of these gap-filling initiatives follow the pattern established in the promulgation of the Guiding Principles on Internal Displacement, the next section highlights certain aspects of that process most pertinent to today’s efforts. It then discusses the evolution of efforts to address cross-border displacement from climate change, culminating in the Nansen Initiative’s Agenda for Protection and its successor, the Platform on Disaster Displacement.

 4   Nansen Initiative, Agenda for the Protection of Cross-border Displaced Persons in the Context of Natural Disasters and Climate Change (2015).

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452  Research handbook on climate change, migration and the law The following section takes a closer look at the Nansen Initiative’s recommendations on humanitarian admissions and deferral of deportation, a centrepiece of its protection agenda. The concluding section outlines the strengths and weaknesses in this approach to protection as well as next steps in this process.

I. GUIDING PRINCIPLES ON INTERNAL DISPLACEMENT The Guiding Principles on Internal Displacement are important as both a model for development of complementary measures to fill gaps in international law and for the specific provisions that pertain to those displaced by environmental factors, applicable in at least some circumstances of internal environmentally-induced displacement.5 In 1992, the Secretary General appointed Francis Deng as his Special Representative on Internal Displacement. The then UN Commission on Human Rights (predecessor to the UN Human Rights Council) asked Deng to examine the a­ pplicability of existing human rights and humanitarian law, ­including analogous ­provisions in refugee law, to internally displaced persons (IDPs). He, in turn, asked a team of lawyers to assist in this process. In his subsequent report to the Human Rights Commission, Deng concluded that there were s­ubstantial norms applicable, yet some gaps and some grey areas, and he proposed a restatement of the law to enhance the effective protection of IDPs. The Commission expressed support for the development of such a normative framework, with Austria and Norway taking the leadership in moving the process through the Commission. Deng invited the international legal team to help in the drafting and undertook broad consultations with stakeholders from regional organizations, international humanitarian and development organizations, humanitarian and human rights NGOs, women’s and children’s advocacy groups, legal associations and research institutions.6 The final document was completed in 1998. The Human Rights Commission and the General Assembly thanked Deng for his efforts and took note of the Guiding Principles but did not specifically endorse them. A number of governments pointed out that the process was UNand expert-, rather than State-driven, and that it did not constitute new, binding law. Nevertheless, the Guiding Principles came to be widely

  See discussion by Elizabeth Ferris in Chapter 6 of this volume.   Roberta Cohen, Lessons Learned from the Development of the Guiding Principles on Internal Displacement (Georgetown University, 2013).  5  6

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Towards an extension of complementary protection?  ­453 r­ ecognized as an important complement to the conventions upon which it was based. Importantly, a number of countries with sizeable populations of IDPs adopted the guiding principles into national law. Then, in 2009, the African Union adopted the legally binding Kampala Convention on Internal Displacement, which came into force in December 2012. Internally displaced persons are described in the Guiding Principles as: persons or groups of persons who have been forced or obliged to flee or to leave their homes or places of habitual residence, in particular as a result of or in order to avoid the effects of armed conflict, situations of generalized violence, violations of human rights or natural or human-made disasters, and who have not crossed an internationally recognized State border.

Since the definition encompasses people who are forced to leave their homes because of natural or human-made disasters, the Guiding Principles and AU Convention apply to some of those who will move as a result of climate change. In fact, the AU Convention explicitly recognizes that there will likely be displacement from climate change, stating in Article 4: ‘States Parties shall take measures to protect and assist persons who have been internally displaced due to natural or human made disasters, including climate change.’ The Guiding Principles affirm that all persons have the ‘right to be protected against being arbitrarily displaced from his or her home or place of habitual residence’. In the case of climate change-induced displacement, arbitrary displacement would include situations in which individuals are forced to flee for reasons that ‘are not justified by compelling and overriding public interests’. In the case of natural disasters, such ­displacement is arbitrary, ‘unless the safety and health of those affected requires their ­evacuation’. The Guiding Principles also state that ‘the authorities ­concerned shall ensure that all feasible alternatives are explored in order to avoid displacement altogether. Where no alternatives exist, all measures shall be taken to minimize displacement and its adverse effects’. The Guiding Principles emphasize the need for consultation with the affected parties, emphasizing that the free and informed consent of those to be displaced shall be sought. The authorities responsible for displacing persons are encouraged to involve those affected, particularly women, in the planning and management of their relocation. In particular, care should be taken to ensure that ‘proper accommodation is provided to the displaced persons, that such displacements are effected in satisfactory ­conditions of safety, nutrition, health and hygiene, and that members of the same family are not separated’. The Guiding Principles apply only to those who are displaced within their own borders. They do not pertain to the situation of persons who cross

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454  Research handbook on climate change, migration and the law i­nternational borders. This means that the legal framework for ­protecting IDPs affected by climate change is, in essence, more clearly articulated than is the framework for protecting cross-border environmentally d ­isplaced persons. This is in marked contrast to the situation of persons displaced across borders by persecution, who are covered under the Refugee Convention.

II. THE NANSEN INITIATIVE AND THE PLATFORM ON DISASTER DISPLACEMENT A.  The Origins of the Nansen Initiative The Nansen Initiative was launched in 2011 at a Ministerial Conference commemorating the 60th anniversary of UNHCR’s founding and adoption of the 1951 Refugee Convention. The aim was to develop an agenda for improving the protection of people displaced across borders by natural disasters and the slow-onset effects of climate change. The impact of climate change on displacement had long been a concern to António Gutteres, then the High Commissioner. As early as 2007, he gave voice to his concerns: When we consider the different models for the impact of climate change, the picture is very worrying. The need for people to move will keep on growing. One need only look at East Africa and the Sahel region. All predictions are that desertification will expand steadily. For the population, this means decreasing livelihood prospects and increased migration. All of this is happening in the absence of international capacity and political will to respond.7

The following year, Assistant High Commissioner for Protection Erika Feller summarized the dilemma before the UNHCR Executive Committee: New terminology is entering the displacement lexicon with some speed. The talk is now of ‘ecological refugees’, ‘climate change refugees,’ the ‘natural disaster displaced.’ This is all a serious context for UNHCR’s efforts to fulfill its mandate for its core beneficiaries. . .. The mix of global challenges is explosive, and one with which we and our partners, government and non-government, must together strike the right balance.8   António Guterres, Keynote Speech by UN High Commissioner for Refugees, Third Symposium on Corporate Social Responsibility and Humanitarian Assistance (Tokyo, 26 November 2007), http://www.unhcr.org/admin/ADMIN/476132d911. html.  8   Erika Feller, Statement by UNHCR Assistant High Commissioner for Protection at the 42nd Meeting of the Standing Committee, Agenda Item 3 (24 June 2008).  7

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Towards an extension of complementary protection?  ­455 In an address before the Security Council in November 2011 – with famine and displacement in Somalia heavily on his mind – High Commissioner Guterres returned to the theme: we should be addressing the more complex issue of the way in which global warming, rising sea levels, changing weather patterns and other manifestations of climate change are interacting with and reinforcing other global imbalances, so as to produce some very powerful drivers of instability, conflict and displacement.9

In the lead up to the Ministerial Conference, the organization commissioned new research on climate change and displacement. Preparatory meetings were held in Bellagio10 and Oslo11 to discuss gaps in the international response to the evolving phenomena. The June 2011 Oslo conference resulted in the Nansen Principles, which outlined core approaches for addressing both internal and international displacement. Recognizing that the Guiding Principles on Internal Displacement already covered those displaced by natural disasters and other environmental disruptions, the Nansen Principles urged action on cross border movements: A more coherent and consistent approach at the international level is needed to meet the protection needs of people displaced externally owing to suddenonset disasters. States, working in conjunction with UNHCR and other relevant stakeholders, could develop a guiding framework or instrument in this regard.12

The initial hope was that governments would back reforms in the institutional arrangements, particularly for responding to natural disasters, in the Ministerial Conference. This would have helped clarify under which situations UNHCR should take leadership in assisting and protecting victims. Governments did not agree that UNHCR should become more systematically involved with those displaced by natural disasters or climate change. A number argued that UNHCR was already overwhelmed with the growing number of refugees and internally displaced persons. The Ministerial Conference instead gave very indirect acknowledgement of the problem:

  António Guterres, Statement by UNHCR High Commissioner for Refugees at the United Nations Security Council Briefing, ‘Maintenance of International Peace and Security: New Challenges to International Peace and Security and Conflict Prevention’ (23 November 2011). 10   UNHCR, Summary of Deliberations on Climate Change and Displacement (Bellagio: UNHCR, 2011). 11   Nansen Conference, ‘Climate Change and Displacement in the 21st Century’ (Oslo, 5–7 June 2011), available at http://www.unhcr.org/4ea969729.pdf. 12   Ibid., 5.  9

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456  Research handbook on climate change, migration and the law We note that today’s challenges in providing protection and achieving solutions continue to be serious, interconnected and complex. . . . We will reinforce cooperation with each other and work with UNHCR and other relevant stakeholders, as appropriate, to deepen our understanding of evolving patterns of displacement and to agree upon ways to respond to the challenges we face in a changing global context.13

The Swiss and Norwegian governments did take up the call in the Nansen Principles for more attention to protection needs, pledging to fund an intergovernmental process that would examine the issue and make recommendations for enhancing protection in both acute emergencies and slow-onset processes. Switzerland and Norway asked Walter Kälin, formerly the Special Representative of the Secretary General and one of the principal architects of the Guiding Principles on Internal Displacement, to take on the leadership of the initiative, serving as the Chair’s Envoy. The Nansen Initiative was clear in stating, however, that it did ‘not seek to develop new legal standards, but rather to build consensus among states on the elements of a protection agenda, which may include standards of treatment’.14 There was no expectation that the process would lead to a set of Guiding Principles on Cross-Border Displacement that would be equivalent to the ones developed for internally displaced persons. Rather, the Nansen Initiative sought to identify existing practices that complement refugee and other humanitarian protection regimes in use by countries in protecting those who are displaced by natural disasters and other forms of environmental change. The initiative also differed from the Guiding Principles process in that it was State-led, rather than UN-led. It was governed by a Steering Committee, chaired by Switzerland and Norway, and including Australia, Bangladesh, Costa Rica, Germany, Kenya, Mexico and the Philippines. A Consultative Committee15 was formed to bring the expertise of representatives from international organizations dealing with displacement and migration issues, climate change and development, researchers, think tanks and non-governmental organizations to bear. A ‘Friends of the Initiative’

  UNHCR, Ministerial Communique: Intergovernmental event at the ministerial level of Member States of the United Nations on the occasion of the 60th anniversary of the 1951 Convention relating to the Status of Refugees and the 50th anniversary of the 1961 Convention on the Reduction of Statelessness, HCR/MINCOMMS/2011/6 (8 December 2011), available at http://www.unhcr. org/4ee210d89.pdf. 14   The Nansen Initiative website, ‘About us,’ available at https://www.nansen​ initiative.org/secretariat/. 15   The author was a member of the Consultative Committee. 13

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Towards an extension of complementary protection?  ­457 allowed other governments to provide advice and remain informed of the deliberations. Finally, a secretariat supported the work of the initiative. The main fact-finding activities were a series of regional consultations to pull together evidence about the impacts of natural disasters and climate change on displacement and to solicit the views of governments and civil society. The secretariat also distilled the lessons of research for the initiative’s consideration and commissioned background papers on a number of topics. B.  The Outcome Document The Agenda for Protection, adopted as the outcome of the Nansen Initiative, focuses on three principal areas of action. The first is to improve the collection of data and to enhance knowledge on cross-border disaster-induced displacement. More specifically, the agenda recommends improvements in the collection, consolidation and analysis of ‘genderand age-disaggregated data regarding the overall number of people displaced in disaster contexts, both internally and across international borders, based on clear criteria and effective methods’.16 It also calls for new ­‘methodologies to identify those at risk of being displaced in d ­ isaster contexts, including across international borders’ and new research to, ‘determine to what extent men and women already rely on migration as a strategy to cope with the effects of natural hazards and the effects of climate change, and what lessons can be learned for improving the benefits of migration and addressing related protection risks’.17 Finally, it emphasizes the need for additional data and analysis of planned relocation processes in the context of disasters and effects of climate change. The second area of the agenda focuses on ‘humanitarian p ­ rotection measures for cross-border disaster-displaced persons, including ­ ­mechanisms for lasting solutions’.18 This section is most pertinent to the development of measures to complement and augment protection of those displaced by environmental factors. These measures include ones related to the admission of disaster-displaced persons from abroad as well as those preventing the return of displaced persons to countries ­experiencing natural disasters and the effects of climate change. The agenda points to the need for new legal instruments and policies that would, for example, grant

  Nansen Initiative, supra note 4, 45.  Ibid. 18   Ibid., 44. 16 17

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458  Research handbook on climate change, migration and the law ‘temporary entry and stay for cross-border disaster-displaced persons, such as through the issuance of humanitarian visas or other exceptional migration measures’.19 The Nansen Initiative emphasized that governments could use ­existing legal frameworks, such as existing temporary labour migration and ­humanitarian admissions programmes, more creatively to permit entry of those needing protection. It identified a number of examples in current practice: ●●

●●

●●

●●

●● ●●

●●

●●

19

granting visas that authorize travel and entry upon arrival for people from disaster-affected countries, or temporarily suspending visa requirements; prioritizing and expediting the processing of regular migration ­categories for foreigners from affected countries following a disaster, or waiving certain admission requirements for such categories; relying upon regular (sub-)regional or bilateral free movement schemes to permit the temporary entry and stay of disaster-­displaced persons, and providing for the suspension of documentation requirements in disaster situations, recognizing that such persons may not possess, or have lost and are unable to acquire documentation normally required; granting temporary entry and stay for cross-border disaster-­displaced persons, such as through the issuance of humanitarian visas or other exceptional migration measures; granting entry and temporary stay for a group or ‘mass influx’ of cross-border disaster-displaced persons; developing transhumance agreements to facilitate the cross-border movement of pastoralists and their livestock, particularly in situations when drought endangers the health and lives of humans and animals; reviewing asylum applications of and granting refugee status or similar protection under human rights law to displaced persons in disaster contexts who meet the relevant criteria under applicable international, regional, or national law; exploring at sub-regional and regional levels, where relevant, whether and under what circumstances regional instruments on refugee, and similar protection under human rights law, can and should be interpreted as applying to cross-border disaster-displacement situations; and

  Ibid., 26.

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Towards an extension of complementary protection?  ­459 ●●

reviewing and harmonizing existing humanitarian protection measures at sub-regional and regional levels.20

The Agenda for Protection recognized, however, that these measures are not consistently implemented. Instead, they are ‘largely unpredictable, because they generally rely upon the discretionary power of relevant authorities as opposed to a legal obligation to admit or permit the stay of disaster displaced persons’.21 Nansen also identified examples of mechanisms that were complements to the refugee non-refoulement standard. The effective practices in this regard include: ●●

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providing such persons with humanitarian protection measures such as suspending their deportation or extending or changing their existing migration status on humanitarian grounds if they would experience extreme hardship as a consequence of the disaster in case of return to the country of origin; or their country of origin has declared a disaster and is temporarily unable to manage the return of its citizens for reasons related to the disaster; and providing persons eligible for humanitarian protection measures with adequate information on the possibility to benefit from such protection, and their rights and responsibilities once such protection has been granted.

The next section discusses some of these mechanisms in greater detail. The third set of recommendations is aimed at strengthening the ­management of disaster-displacement risk in the country of origin so that those affected by natural disasters and the effects of climate change would not need to cross international borders. These include: integrating human mobility within disaster risk reduction and climate change adaptation strategies, and other relevant development processes; . . . improving the use of planned relocation as preventative or responsive measure to disaster risk and displacement; and . . . ensuring that the needs of IDPs displaced in disaster situations are specifically addressed by relevant laws and policies on disaster risk management or internal displacement.22

Finally, the agenda notes that legal migration can prevent displacement since they allow people to move in a safe and orderly manner.  Ibid.   Ibid., 28. 22   Ibid., 44. 20 21

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460  Research handbook on climate change, migration and the law The Agenda was endorsed by 109 governmental delegations during a global multi-sectoral consultation in October 2015. More than 360 participants from governments, international organizations, academic institutions and civil society attended. That so large a number of governments endorsed the Agenda was impressive. Those who spoke at the consultation noted the utility of the agenda and the flexibility of governments to adopt its recommendations in accord with national law. C.  The Platform on Disaster Displacement Subsequently, the German government took on the chairmanship of the process, announcing the Platform on Disaster Displacement (PDD) in May 2016 at the World Humanitarian Summit in Istanbul. The PDD has four main goals in furthering the Agenda for Protection. First, it seeks to address knowledge and data gaps. The long-term goal is to produce ‘global information management, analysis, tracking of trends and ­reporting regarding cross-border disaster-displacement, including on its root ­causes’.23 In the short- to medium-term, the aim is to help ensure the inclusion of displacement in post-disaster needs and damage assessment tools and methodologies and in national censuses; strengthen risk mapping and forecasting modelling to identify vulnerable populations at risk of displacement and to better understand existing and emerging displacement risk drivers; and commission new research, as needed, to fill information gaps.24 The second aim is to promote policy and normative development to fill gaps in protection, as outlined in the protection agenda. In keeping with the Nansen perspective, the focus is not on international conventions but rather with law and policy at the regional and national level. The PDD intends to work with regional consultative processes to develop guidance for countries on norm development, referencing the ‘Guide to Effective Practices on Admission and Stay for Persons Moving across Borders in the Context of Disasters’ produced by the Nansen Initiative and Regional Conference on Migration (RCM) in Central and North America.25 It will strive to support ‘legal and policy development at domestic and regional level and support the development of bilateral and regional frameworks 23   Platform on Disaster Displacement, ‘Address knowledge and data gaps‘, available at http://disasterdisplacement.org/address-knowledge-and-data-gaps. 24  Ibid. 25   Platform on Disaster Displacement, ‘Promote Policy and Normative Development in Gap Areas’, available at http://disasterdisplacement.org/promotepolicy-and-normative-develop​ment-in-gap-areas/.

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Towards an extension of complementary protection?  ­461 regarding admission, stay and non-return of cross-border disaster-displaced persons’.26 The third aim flows naturally from the second area for the PDD. The aim is to enhance the use of effective practices identified by the Nansen Initiative. The focus is on humanitarian protection measures, such as policies that provide admission and temporary relief from removal for disaster-displaced persons. Other practices that the PDD will promote include consideration of displacement in national, bilateral and regional contingency plans, disaster-risk management and humanitarian response plans. It will also enhance use of options, such as planned relocation and voluntary migration, which are designed to reduce the likelihood that people will be displaced by natural hazards or the slow-onset impacts of climate change.27 Mainstreaming disaster-induced displacement across sectors, mandates and areas of expertise related to its multi-causality is the fourth aim of the PDD. This area stems from recognition that a ‘key gap and challenge highlighted by the Nansen Initiative is the need to bring together and link multiple policy and action areas that to date have been u ­ ncoordinated in order to better address cross-border disaster-displacement and its root causes’.28 To achieve this aim, the PDD will work with States as well as stakeholders from multiple sectors and disciplines. It will also ­coordinate with other initiatives, such as those commissioned with followup to the Sendai Framework on Disaster Risk Reduction, the UNFCCC Warsaw International Mechanism for Loss and Damage’s Task Force on Displacement, and the follow-up to the World Humanitarian Summit.

III. COMPLEMENTARY PROTECTION MECHANISMS As discussed, the Nansen Initiative identified a number of complementary protection mechanisms pertinent to cross-border environmental displacement. This section provides a brief overview of mechanisms for ­humanitarian admissions as well as humanitarian relief from deportation.  Ibid.   Platform on Disaster Displacement, ‘Enhance the use of identified effective practices’, available at http://disasterdisplacement.org/enhance-the-use-of-identi​ fied-effec​tive-practices/. 28   Platform on Disaster Displacement, ‘Mainstream human mobility challenges across relevant action areas’, available at http://disasterdisplacement.org/ mainstream-human-mobility-challenges-across-relevant-action-areas/. 26 27

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462  Research handbook on climate change, migration and the law The 2010 earthquake in Haiti provides a good example of humanitarian admissions policies that were used by governments to protect persons not already on their territory and who did not qualify as refugees. The Dominican Republic responded almost immediately, permitting an estimated 160 000 Haitians to cross on to its territory. According to a report prepared for the Nansen Initiative: The Dominican government removed border obstacles to entry and allowed those at the border to come into the country to receive medical assistance where needed. Privately owned helicopters were made available to transport the most seriously injured. Family members of patients received multiple entry humanitarian visas to permit them to care for their loved ones while still attending to their losses in Haiti.29

Other Haitians received humanitarian visas to enter Brazil. At first, the Haitians applied for asylum but the Brazilian government determined that they did not fit the refugee definition. Also recognizing that they were not seeking admission for purely economic reasons, Brazil offered the alternative of humanitarian visas. Initially, the determinations were made at the border. Thousands of Haitians had travelled to Ecuador, which had suspended visa requirements for Haitians in 2008, and then made their way to the Brazilian border. Subsequently, Brazil instituted processing procedures in Haiti for persons seeking humanitarian admissions.30 At first, these were for temporary admissions but Brazil now has a category for permanent admissions. In September 2015, the International Organization for Migration (IOM) established the Brazil Visa Application Centre (BVAC) to facilitate applications for these visas.31 Other governments, such as Canada’s and the United States’, sped up entry of persons who had already applied for admission, recognizing that they would remain in life-threatening situations if forced to wait for their turn in the admissions queue. For Canada, for example, ‘this meant expediting and to some extent stretching the existing immigration categories through which Haitians would be eligible to come to Canada without changing existing immigration rules and regulations’.32 These applied primarily to family reunification applications. The province of Quebec, which   Patricia Weiss Fagen, ‘Receiving Haitian Migrants in the Context of the 2010 Earthquake’ (Geneva: Nansen Initiative, 2013). 30  Ibid. 31   IOM, ‘IOM Opens Brazil Humanitarian Visa Application Centre in Haiti’ available at http://haiti.iom.int/iom-opens-brazil-humanitarian-visa-application-cen​ tre-haiti. 32  Fagen, supra note 29. 29

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Towards an extension of complementary protection?  ­463 controls its own immigration policy, expanded its notion of family reunification to include ‘formerly inadmissible categories of adult brothers and sisters, step brothers and sisters and adult children, along with their own families’.33 As a result, Quebec admitted about 9 000 Haitians in 2010 alone. Policies for deferral of deportation of those displaced by natural disasters range from statutory measures to ad hoc ones. One of the most well-developed statutory provisions is in US legislation enacted in 1990 to provide temporary protected status (TPS) to persons ‘in the United States who are temporarily unable to safely return to their home country because of ongoing armed conflict, an environmental disaster, or other extraordinary and temporary conditions’.34 Environmental disaster may include ‘an earthquake, flood, drought, epidemic, or other environmental disaster in the state resulting in a substantial, but temporary, disruption of living conditions in the area affected’.35 In the case of environmental disasters, as compared to conflict, the country of origin must request designation of TPS for its nationals. Importantly, TPS only applies to persons already in the US at the time of the designation. It is not meant to be a mechanism to respond to an unfolding crisis in which people seek admission from outside the country. It also only pertains to situations that are temporary in nature. On the other hand, countries are often re-designated and ‘temporary’ protection is offered to their nationals over lengthy periods. For example, TPS was originally triggered in 1999 by Hurricane Mitch, which had severe impacts on Nicaragua and Honduras. Its most recent extension is until January 5, 2018. Those granted TPS are left in limbo throughout these periods; they are unable to become permanent residents unless they meet the criteria of other immigration statuses (e.g., they have married a US citizen). If the environmental disaster has permanent consequences, however, a designation of TPS is not available or it may be lifted. When a volcano erupted in Montserrat in 1997, TPS was granted to its citizens and was extended six times. In 2005, however, it was ended because, ‘it is likely that the eruptions will continue for decades, [and] the situation that led to Montserrat’s designation can no longer be considered “temporary” as required by Congress when it enacted the TPS statute’.36  Ibid.   US Temporary Protection Act, Public Law 101-649 (Immigration Act of November 29, 1990), section 302. 35   US Immigration and Nationality Act, section 244.­ 36   ‘Termination of the Designation of Montserrat under the Temporary Pro­ ­ tected Status Program; Extension of Employment Authorization Documentation’ Federal Register 69.128 (6 July 2004). 33 34

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464  Research handbook on climate change, migration and the law Another significant factor is that the designation is discretionary, to be made by the Secretary of Homeland Security. Countries or parts of ­countries are designated, allowing nationals only of those countries to apply. Notably, TPS was not triggered for the hurricanes that destroyed large parts of Haiti but was offered following the 2010 earthquake and has since been extended. Sweden and Finland have also included environmental migrants within provisions of their immigration policies. Sweden includes within its asylum system persons who do not qualify for refugee status but have need for protection. Such a person in need of protection: has left his native country and does not wish to return there because he: − has a fear of the death penalty or torture − is in need of protection as a result of war or other serious conflicts in the country − is unable to return to his native country because of an environmental disaster.37

The decision is made on an individual basis. Although many recipients of this status are presumed to be in temporary need of protection, the Swedish rules foresee that some persons may be in need of permanent solutions. Similarly, in the Finnish Aliens Act, ‘aliens residing in the country are issued with a residence permit on the basis of a need for protection if [. . .] they cannot return because of an armed conflict or environmental disaster’.38 A number of other countries provide exceptions to removal on an ad hoc basis for persons whose countries of origin have experienced ­significant disruption because of natural disasters. After the 2004 tsunami, for example, Switzerland, the UK and Canada suspended deportations of those from such countries as Sri Lanka, India, Somalia, Maldives, Seychelles, Indonesia and Thailand. A number of governments announced similar plans after the 2010 earthquake in Haiti.

IV. CONCLUSION The Nansen Initiative represents a new way in which governments and other stakeholders are attempting to address persistent protection gaps 37   Sweden, Aliens Act (2005), http://www.regeringen.se/content/1/c6/06/61/22/ bfb61014.pdf. 38   V. Kolmannskog, ‘Climate change-related displacement and the European response’, paper presented at SID Vijverberg Session on Climate Change and Migration, The Hague, 20 January 2009, available at http://sideurope.wordpress. com/2009/03/03/third-vijverberg-session-climate-change-and-migration/.

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Towards an extension of complementary protection?  ­465 for those displaced by crises.39 Unlike earlier efforts that focused primarily on adoption of binding international conventions, these initiatives are less formal, more ad hoc and less binding. The reluctance of many States to ratify the UN Convention on the Rights of all Migrant Workers and Members of their Families or to open up the UN Convention on the Status of Refugees to renegotiation has heralded the need for such initiatives. In the first case, the reluctance appears to be concerns about over-reach, particularly with regard to migrants in irregular status. In the second case, amid backlashes against refugees and asylum-seekers, the concern is about losing the protections currently available to those populations. In the face of such impasses, informal, non-binding, State-led processes for reform are seen as a more pragmatic approach. There are a number of reasons to be optimistic about this trend. First, promulgation of the Guiding Principles on Internal Displacement has proven to be a highly effective way to gain visibility and improved protection for a population that had not previously received sufficient attention. They have been recognized widely as applicable to a broad range of persons forced to leave their homes because of events beyond their own control. Second, because States are leading these efforts, there is a built-in constituency for ensuring their implementation. As discussed, the Platform on Disaster Displacement is following-up on Nansen and implementing the recommendations of the Protection Agenda by building ‘partnerships between policymakers, practitioners and researchers and constitute a multi-stakeholder forum for dialogue, information sharing as well as policy and normative development’.40 Third, the Nansen process has been highly inclusive in terms of regional scope and participation. Members of the steering group have come from all regions. Regional variations have been solicited in consultations that have brought together governments, civil society, the private sector, international organizations and the research community. The resulting recommendations were vetted with multiple stakeholders although responsibility for issuing them ultimately rested with the Chairs of the initiative. Finally, the ad hoc nature of the process allows policymakers to address emerging issues and concerns more effectively than through more formal   A second and very similar State-led process to fill protection gaps is the Migrants in Countries in Crisis initiative, led by the US and the Philippines. In June 2016, it issued principles, guidelines and effective practices for protecting migrants caught in conflict and natural disasters in their host countries. 40   Platform on Disaster Displacement, ‘The Platform on Disaster Displacement: implementing the Protection Agenda, a toolbox for disaster displaced persons’, available at http://disasterdisplacement.org/about-us/our-response/. 39

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466  Research handbook on climate change, migration and the law mechanisms that are often tied to specific mandates. Although framed as a response to cross-border displacement, the Nansen Initiative was able to also provide useful guidance on internal displacement, arguing: A comprehensive approach to cross-border disaster-displacement also requires tackling disaster displacement risk in the country of origin. Therefore, the Protection Agenda addresses not only the protection and assistance needs of cross-border disaster-displaced persons, but, at the same time, identifies measures to manage disaster displacement risks in the country of origin. These include effective practices to reduce vulnerability and build resilience to disaster displacement risk, facilitate migration and conduct planned relocation out of hazardous areas, and respond to the needs of internally displaced persons.41

This is not to say that the ad hoc, non-binding nature of the process is without problems. Effective protection is still highly dependent on the willingness of States to implement the recommendations of the initiative. There are no built-in mechanism to spur action or for the international community to intercede when States are unwilling or unable to fulfil their responsibilities. Enhancing protection of those displaced by conflicts, natural disasters and other crises will require sustained attention. Mechanisms such as the Nansen Initiative, and their follow-up, are promising ways to foster greater attention to the protection gaps and practical solutions to improve the lives of millions of people affected by crises. In the long term, however, they will only be as effective as the willingness of States and other s­ takeholders to implement the recommendations and offer protection on a non-­ discriminatory basis to all who flee life-threatening situations.

41

  Nansen Initiative, supra note 4.

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Afterword

James C. Hathaway

The overwhelming sense one takes away from this volume is that we as international lawyers are struggling to come to grips with the phenomenon of migration due to climate change. Both conceptually and operationally, we are in a bit of a muddle. We can, I think, rise to the challenge of conceptualization. While Nicholson’s contribution to this volume correctly observes that some degree of conceptual incoherence is inherent when describing a ­phenomenon as complex as migration due to climate change, there can be little doubt that climate alone is rarely the result solely of environmental risk. Rather, as McLeman insists, climate change more commonly combines with ­economic, social, and political phenomena; it normally forms part, rather than being the sole determinant, of a decision to move. Farbotko’s call to come to a more nuanced understanding of the nature of human agency among climate migrants is thus in my view compelling, and is an understanding that must be effectively communicated to journalists and other opinion leaders as Randall counsels. Indeed, the fact that climate is normally only an aspect of the ­migration calculus means that Cournil’s rather pessimistic view of the conceptual ­relevance of refugee law is debatable. Leading states have embraced a human rights-based approach to understanding when someone is at risk of being persecuted, and have made clear that serious threats to ­socioeconomic rights are included. The old view that the state of origin had to have caused – rather than simply being unable or unwilling to rectify – the risk has been firmly rejected. And while it is true that some form of discrimination is required to be recognized as a refugee, the response to climate change is often discriminatory in design or at least in outcome – as the contributions of McInerney-Lankford, Oluborode Jagede, and Ramos/Capdeville attest. Refugee status is thus a very real option for many climate migrants, giving force to Gemenne’s plea not to downplay the value of that clear legal entitlement. But refugee law cannot – and should not – provide the sole legal ­architecture for a response to climate migration. General international human rights law – for example, the creative analogy to the prohibition on forced eviction offered in the contribution by Jodoin/Hansen/Hong, or the invocation of labour migration norms championed by Kagan/Byrne/ 467

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468  Research handbook on climate change, migration and the law Leighton – should also be drawn upon as part of a legal strategy. In this regard, I disagree with Ferris’s view that non-binding standards for the so-called ‘internally displaced’ should be the primary normative point of departure: these norms really only contextualize already binding law rather than creating anything new. Such soft norms are not inherently unhelpful – contextualization does matter, and can both lead the way towards inclusive interpretation of binding law and to consensus-building initiatives of the kind described by Appave/Sironi/Chazalnoël/Ionesco/Mokhnacheva. But we do climate migrants a disservice when we relegate their claims to the fungible political space of ‘soft law’ rather than anchoring our efforts in law that is agreed to bind states, and which requires at least some measure of accountability. This is not to say that the extant structures of international refugee and human rights law are fully up to the task of responding to those ­migrating because of climate change. To the contrary, I believe that c­reative re-­ imagining of legal norms – of the kind outlined here by Biermann and Boas – will be required to meet the needs of at least a subset of the population. My own sense, though, is that – taking account of the strength of already agreed international refugee and human rights law – this normbuilding project might be of a relatively modest scope. The group least well served by existing law is the special case in which the entire citizenry of a state is forced to move by reason of climate change – for example, those impacted by the possible complete disappearance of island states. In my view, such persons are threatened by a modern form of s­ tatelessness, meaning that what is needed is a protocol to the statelessness regime. And while even such a comparatively modest legal expansion will require time, Martin’s contribution rightly notes that we could move with relative speed to cover the normative gap in international law by building on the web of domestic protection mechanisms – complementary protection, ­humanitarian ­admissions, and deferral of deportation, thereby ensuring the dignity of climate migrants pending more fundamental normative reform at international level. Despite believing that there are realistic answers to the normative dimension of migration induced by climate change, I concede that the institutional and operational challenges are more daunting. Burkett is clearly correct that climate change law and policy have not produced a robust system of global governance. There is moreover, as Vlassopoulos describes, already a web of international actors – including for example IOM, UNHCR, UNHCHR, ILO, and their regional counterparts – jockeying for position on the climate migration front. Could these actors put institutional interests aside in order jointly to champion the sort of dedicated climate change displacement facility proposed in this volume by

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Afterword  ­469 Millar and Wilson? More fundamentally, could these actors provide leadership to states, drawing strength from the law of state responsibility interrogated by Mayer, and offering the blueprint for a serious system of shared responsibility among states of the kind advocated by Wyman? The record to-date is not encouraging: even with unprecedented attention to the plight of refugees, for example, the UN offered only a plan to agree to have agreements to agree at the September 2016 refugee summit. But if not the UN, is there an influential state or regional champion for a robust mechanism that would fairly share the burdens and responsibilities of finding homes for those compelled to flee their homes due to climate change? In their introduction, the editors forthrightly concede the range of ­intellectual dissonance on how to move forward on the issue of climate migration. While at one level such conflicts are worrisome, I believe that the decision of editors Crépeau and Mayer not to paper over the ­conceptual, normative, and institutional differences was wise. This is because the first step in arriving at a constructive consensus on how to move forward is surely to identify where we stand. Only then can we take on the difficult task of jettisoning positions rooted in pet theories, ­institutional protectionism, or simple lack of intellectual creativity. We are all indebted to the talented contributors to this book for putting the present disorder on full display, and thus of positioning us to tackle the process of advocating from a position of intellectual awareness – and, I hope, with a clear sense that answers are possible.

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Index Aarhus Convention 443 access to justice 177–8, 233, 236 accountability 63–6, 108 human rights 140, 150, 233 World Bank Inspection Panel 217–18 Africa 92–3, 418, 419 Convention Governing the Specific Aspects of Refugee Problems in 194, 450 dryland West 29–30, 32–7 international migration 36, 37 flood events in West 37 Great Lakes Protocol on the Protection and Assistance to Internally Displaced Persons 112 indigenous peoples 177 climate-related projects and migration 174–6 identifying 170–171 Kampala Convention 10, 12, 105, 112–13, 169–70, 184–9, 453 land degradation and migration 172–3 regional groups 328 see also individual countries African Charter on Human and Peoples’ Rights 184, 188 African Commission on Human and Peoples’ Rights 188, 227, 304 African Court of Justice and Human Rights 188 African Union 186, 187, 450 Convention for the Protection and Assistance of Internally Displaced Persons in Africa 10, 12, 105, 112–13, 169–70, 184–9, 453 agency 32, 140, 231, 233, 252, 298, 398–400, 407–8, 467 context and 77–8, 81 individual 79–80 Agenda for Protection of Nansen

Initiative 17, 87–8, 299, 300, 310, 451, 457–60, 465 internal displacement 466 agenda-setting process see sociopolitical analysis of agenda-setting process agendas, coexisting 13–15 agriculture 116, 120, 171–3, 316 Bangladesh 38–40, 41 climate-smart initiatives 215 hydroelectricity 210 Latin America 266 pastoralism 34, 35, 171, 172, 173 agro- 35 transhumance agreements 458 Philippines 327 Sahel 34–5 salinization 124, 173, 266, 323 Alaska 74, 339–40, 342 Alliance of Small Island States (AOSIS) 76, 384, 430, 431 Amnesty International 212 Andean Community 276–7 Angola 173 Anthropocene 2, 86, 397–8 refugees in the see separate entry aquaculture: Bangladesh 38 Arab Convention on Regulating Status of Refugees 93 Argentina 281, 284, 437 armed violence and climate change media in UK 340 Asia 92–3, 170, 325, 418, 419 see also individual countries Asian Development Bank 435 audit culture 49 Australia 199, 324, 337, 436, 456 asylum claims due to climate change 102–3 detention 80 pilot programme for low-skilled migrants 325, 330 security discourse 75–6

471

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472  Research handbook on climate change, migration and the law Austria 111, 452 aviation 243, 446 Bacon, F. 65 Bali Action Plan (2007) 8, 385, 431, 434 Bangladesh 78, 396, 404, 409, 436, 456 climate-migration nexus: floods 31–41 international migration 40–41 planned relocations 222 seasonal labour migration 125 Belgium 380 Belize 42, 43, 265 beneficiary-pays principle 351, 352–3 Benin 175 best practices 17, 87, 189, 234, 299, 435 Geneva Pledge on Human Rights and Climate Action: sharing of knowledge and 300 relocations 222 bilateral migration agreements 308, 447–8 Kiribati 78 biofuel plantations 174 Bolivarian Alliance for Peoples of our America (ALBA) 268–9 Bolivia 203, 265, 284–5, 286 Botswana 173 Brazil 203, 265, 266, 282–3, 437, 462 Brazil Declaration (2014) 267 Brexit 402 Brookings Institute 105, 111–12, 233, 235, 310 Brookings-Bern Project on Internal Displacement 233, 235 burden-sharing 253, 412 Burkina Faso 35 Burundi 172 Butler, J. 67 Cameroon 172, 175 camps and detention centres 76–7 Canada 436 Haitian earthquake 462–3 hydroelectricity 209–13, 235–6 Indian Ocean tsunami (2004) 95, 464 Kyoto Protocol 243 refugee: claims based on natural disasters 96

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capitalism 71 Caribbean 264, 265, 266, 268, 278, 279 Cartagena Declaration on Refugees 194, 279–80 definition of refugee 279–80, 450 Carteret Islands 222 causation 5, 15, 52–3, 69, 89, 108, 114, 117, 122, 137, 158, 202, 239, 297 armed violence and climate change 340 corrective justice 353–4 environmental migration 378, 380, 426 maximalists and minimalists 181–2, 378 probabilistic nature of concept of climate 246 state responsibility for wrongful acts 256–8 terminological debate 293, 295, 396, 408–9 weather events and climate change 240 Central African Republic (CAR) 172, 175 Central America 265, 266, 268, 269 climate-migration nexus: Hurricane Mitch 41–6 international migration 43–5 ILO: training 320 see also individual countries Central American Integration System (SICA) 268, 278 Centre for Research on the Epidemiology of Disasters 120 changes needed 13, 30, 46–8 coexisting agendas 13–15 new protection instruments 15–17 UNFCCC climate change displacement facility, towards see separate entry Climate Migrant Protocol, proposed 412–15, 417, 419, 421–2 Chávez, Hugo 282 Chernobyl 98, 100

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Index  ­473 children 134, 135, 146, 160 Convention on the Rights of the Child 178, 179, 226 CRC Committee 303 Chile 266 China 246, 352, 424, 437 internal migrants 4 civil society 15, 187, 213, 301, 314, 415, 460, 465 climate refugee 291, 337 forest and carbon certification programs 219 organisations 186 Clean Development Mechanism (CDM) 174–5, 187, 213–14, 235, 430, 446 Gold Standard Rules and Procedures 214 climate change displacement facility, towards 24–5, 420–448, 468–9 difficulties with existing proposals 425–6 mandate 439–43 sources of funding 443–6 strengths of UNFCCC and Paris Agreement 427–8 use of funds and governance 446–7 Warsaw International Mechanism (WIM) 428 adaptation under UNFCCC 428–9 history of 429–37 climate refugee see under terminology climate-migration nexus 13–15, 18–19, 239–41, 267–70, 286 conceptual incoherence 49–66 context of questions 63–5 problem with content of arguments and answers 50–57 problem with content of questions 58–63 contemporary examples 29–32, 46–8 Bangladesh floods 37–41 Central America and Hurricane Mitch 41–6 dryland West Africa 29–30, 32–7 general considerations 30–32 adaptation, migration as 32 adaptive capacity 31–2

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trapped populations 32 vulnerability 31 (mis)representation of climate migrants 18–19, 67–81 context and agency 77–8, 81 definitional debates 68–70 individual agency 79–80 multiple climate migrations 70–74 performativity theory 67, 68, 80 praxiography 67, 68, 73, 80 security 70, 72, 73, 74–7, 78, 80 coastal erosion 126, 127 coercion and free will 4 Cold War 91 collective rights 165, 178, 183, 184 ethical duties to climate migrants 358, 362–6, 371, 372, 375 towards global governance system 412, 414 Colombia 113, 203, 227, 436 colonialism 260 common but differentiated responsibilities 165, 258, 412, 413, 427 compensation 111, 127, 146, 229 ethical duties to climate migrants 361, 368, 369, 375 indigenous peoples 178, 188, 218–19 Iraq’s invasion of Kuwait 251 REDD+ Social and Environmental Safeguards 220 state responsibility for wrongful acts 251–3, 256–7, 259–60, 261, 430 directness, proximity and foreseeability 257–8 towards global governance system: financial support and 416–19 UNFCCC 439–40 loss and damage 8, 384, 385, 386, 390, 410, 434–5, 437, 438 conceptual background 1 climate change 2–3 climate-migration nexus 4–5 migration 3–4 conceptual incoherence 18, 49–66, 467 context of questions 63–5 problem with content of arguments and answers 50–57 concessive conclusions 54–7 contradiction 52–3

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474  Research handbook on climate change, migration and the law empirical substance 52–4 equivocation 54–5 general statements 51–2 ideational framing 51–2 metamorphosis 54, 55–7 specific claims 52 tautology 52, 53–4 problem with content of questions 58–63 conditionality: financial and technical support 60, 259, 261 consensus-building, from legal prescriptiveness to 295–301 consent climate change displacement facility 443 free, prior and informed 188, 212, 233–4, 236 Guiding Principles on Internal Displacement 453 Constitutions 227–8 consultation 228, 303, 453 climate change displacement facility 443 indigenous peoples 176, 187, 188, 211, 235, 236 contradiction 52–3 Convention against Torture (CAT) 178, 179–80 Convention on the Elimination of all Forms of Discrimination Against Women (CEDAW) 147, 226–7 CEDAW Committee 303 Convention on the Law of the Sea (CLOS) 195, 243, 244 Convention on the Rights of All Migrant Workers and their Families (CMW) 115 corrective justice 349–54, 360, 369, 372 cosmopolitanism 404 Costa Rica 43, 284, 456 Côte d’Ivoire 175 Council of Europe 380 Crépeau, François 137 criminal law 176 cross-border migration 104, 190–191, 449 ethical duties to climate migrants 360–361 human rights law: distinguishing

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IDPs from cross-border migrants 142–5 international climate change law perspectives see separate entry international refugee law see separate entry Latin America 265, 287 Cartagena Declaration on Refugees: definition of refugee 279–80, 450 regional forums 263, 267, 269, 272, 275 media in UK 335–7, 338 Nansen Initiative see separate entry socio-economic status 43–4 Cuba 265, 281 cultural heritage 214, 243, 244 customary international law 244–8, 429–30, 449 Czechoslovakia 251 Daily Express 341 Daily Mail 341 Darfur 122 de-politicising migration 400–402, 403, 404 definition of refugee 1951 Refugee Convention and its 1967 Protocol 8, 12, 86, 296, 297, 402, 407, 450 Cartagena Declaration on Refugees 279–80, 450 Cuba 281 see also terminology definitional approach see sociopolitical analysis of agenda-setting process deforestation 46, 120, 147, 378 Central America 42 REDD+ 174, 175–6, 187–8, 214–20, 442 free, prior and informed consent 188, 233–4 democracy 250, 402 Democratic Republic of Congo (DRC) 172 Clean Development Mechanism (CDM) 174–5 REDD+ 175 Deng, Francis 105, 109, 111, 452

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Index  ­475 deportation 459, 463, 464, 468 Desertification Convention 47 detention centres and camps 76–7 deterritorialized state 78, 364–5 development 56–7, 104, 119, 127, 128, 129, 192, 241 political interference 260, 261 right to 182–3 diplomatic protection 251, 254, 260 disability 134, 136, 160 displacement 291, 294 internal see separate entry see also cross-border migration; forced and voluntary migration displacement due to responses to climate change: role of rightsbased approach 21, 205–37, 467 disaster risk and relocation initiatives 220–225 international human rights law prohibition of forced evictions and justification of relocation under 225–30 REDD+ 214–20 renewable energy initiatives 208–14 Displacement Solution 301 diversification livelihood 122, 126, 313, 327, 330, 399 do no harm and human rights 141, 146, 149, 231 domestic tribunals asylum claims 12, 79–80, 94–5, 102–3, 335–7 Dominican Republic 265, 266, 462 double-weighted decision-making procedures 412, 413–14 drought-related migration 29–30, 46, 47, 137, 138, 172, 239 Bangladesh 41 definition of drought 120 dryland West Africa 32–7 cause of drought trends 33–4 international migration 36, 37 Guiding Principles on Internal Displacement 116, 119–22 IDMC 121, 122 persecution: Refugee Convention 100

MAYER_9781785366581_t.indd 475

earthquakes 117, 280, 282–3, 378, 436–7, 462–3, 464 Economic Community of West African States (ECOWAS) 328 Ecuador 265, 280, 283, 437, 462 education 313, 319, 320, 324 -based international migration 324 Kiribati 78 right to 144, 160 effectiveness principle 156 Egypt 93, 328 El Salvador 42, 44–5, 266 emergencies and human rights 229–30, 235 empathy 72 employment see labour markets environmental impact assessment (EIA) 149, 187 Environmental Justice Foundation 113–14, 124 environmental law 6–7, 192 equality 133, 135, 143, 144, 152, 165, 167 see also inequality/ies equivocal concept see conceptual incoherence Eritrea 122, 173 ethical duties to climate migrants 23, 117, 347–75 allocation of responsibility 348, 367 centralized administrative 369–73 decentralized choice by migrants 367–9 foundations 354 corrective justice 349–54, 360, 369, 372 rescue principle 354–6 right of necessity or Lockean-type proviso 356–60 scope of duties 360–366 Ethiopia 122, 173, 174, 175 European Convention on Human Rights (ECHR) Art 2: right to life 303–4 Art 3: inhumane or degrading treatment 94 European Court of Human Rights (ECtHR) disasters and obligations of State 303–4

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476  Research handbook on climate change, migration and the law inhumane or degrading treatment 94 obligation to relocate 304 European Union 92–3, 246, 401–2, 424 internal displacement 98 mass influx of displaced persons 97–8 Parliament 379–80 Refugee Convention 103 evictions, forced 151, 160, 179, 206, 223, 232 CDM 174–5 human rights law: justification of relocation and prohibition of 225–30 hydropower 209 REDD+ 174, 216–17 UNDRIP 188 expatriates 3 extraterritoriality 143, 148–9, 156, 161–3, 166 famine 121, 122 Fiji 222, 324 Finland 12, 93–4, 464 flood events 47, 120, 122, 126, 220, 378 Bangladesh climate-migration nexus 31–41 Nigeria 303 West Africa 37 food (in)security 121, 122, 215, 266, 270, 280 right to 135, 160, 180 forced evictions see evictions, forced forced and voluntary migration 4, 78, 91, 104, 114–15, 297, 298, 337 continuum 53, 291, 293, 294, 402 Guiding Principles on Internal Displacement 114, 121, 124–6 UNFCCC 388–9, 390 forests see deforestation fragmentation of international law 133, 166–7, 247 framing, ideational 51–2 France 100, 200 free will and coercion 4 freedom of speech and association 153 freedom of thought, conscience and religion 230

MAYER_9781785366581_t.indd 476

G77 199, 384, 424, 437 Gabon 172 Gemenne, F. 86–7, 100 Geneva Pledge on Human Rights and Climate Action 300 genocide 156 Georgia 113 Germany 300, 436, 456, 460 1953 Luxembourg Agreement: Federal Republic of 254 Ghana 175, 321 Global Compact for Migration 314–15 Global Environment Facility 220, 416, 418, 446 global governance system 24, 405–19, 421–2, 468 climate migrants vs climate refugees 406–9 constraints and limitations 418–19 current 409–11 financial support and compensation 416–18 towards sui generis regime 411 institutional setting 412–15 organizational setting 415 principles 411–12 Greece 401–2 Grotius 357 Guatemala 42, 43, 44–5, 266 Guiding Principles on Internal Displacement 10, 17, 19–20, 105, 108–30, 410, 451, 456, 465, 468 addendum to 129–30 anticipatory displacement 123 causation 114, 117, 122 climate change-induced mobility: difficulties 113–16 causal links 114 forced or voluntary 114 compensation 111, 127 consultation 453 definition of IDPs 110, 116–17, 121, 122, 124, 125–6, 453 ‘easy case’: sudden-onset disasters 116–19 intersection: natural hazards and economic factors 121–2, 124–5 national level 110, 127–8 natural or human-made disasters 12 non-discrimination 111

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Index  ­477 Organization of American States (OAS) 286 participation of IDPs 111 Peninsula Principles 301 return, resettlement and reintegration 110–111, 119, 126–7 slow-onset disasters 116, 119 climate change 114, 116, 123–6 drought 116, 120–122 what difference does it make 126–8 voluntary and involuntary mobility 114, 121, 124–6 Haiti 265, 280, 282–3, 327, 437, 462–3, 464 health 313, 445 right to 135, 138, 143, 146, 160 homelessness 151 Honduras 42, 43, 44–5, 266, 284, 463 host communities 224, 249, 253–5, 302, 312–13 ethical duties to climate migrants centralized administrative allocation 369–73 migrants choose host state 367–9 housing 193 CERD Committee 303 evictions, forced see separate entry right to 135, 138, 142, 143, 144, 146, 151, 223, 225–8 elements 160–161 indigenous peoples 179, 180, 227 planned relocations 224, 234 UN Special Rapporteur on adequate housing 224, 225, 228–9 human dignity 107, 146, 233, 236–7, 252, 468 human rights 4, 5, 9–11, 13, 16, 20, 131–68, 192, 449, 468 cautionary notes 164–6 CDM projects 175, 214 climate change displacement facility 443 climate change and human rights law 135–7, 191–2 climate migrants 134, 137–9, 164 climate IDPs 139, 145

MAYER_9781785366581_t.indd 477

climate refugees and IDPs: protection compared 145, 167 conditions to identify climate refugees 139 displacement due to responses to climate change: role of rightsbased approach see separate entry do no harm 141, 146, 149, 231 emergencies 229–30 equality 133, 135, 143, 144, 152, 165, 167 ethical duties, internal migration and 374–5 forced or voluntary movement 114–15, 388–9 group-specific conventions 297 Guiding Principles 112, 126, 129 IDPs: conflict and violations of 122 impact assessments (HRIA) 152, 155 indigenous peoples 102, 134, 135, 136, 146, 160, 161, 176–84 Kampala Convention 186–7 intersectionality 133–4, 139, 143–4, 152 margin of appreciation 250 minimal emission States 150 Nansen Initiative 17, 458 nationality 145, 163, 196 non-discrimination see separate entry Operational Guidelines on the Protection of Persons in Situations of Natural Disasters (2011) 118, 119 presumption against normative conflict 167 role of human rights bodies 301–5 sources of protection applicability of international human rights law 141–2 distinguishing IDPs from crossborder migrants 142–5 fulfil, obligation to 158–63, 167 protect, obligation to 153–8, 167, 194 respect, obligation to 146–53, 167 specifying obligations owed 145–63 types of rights 146

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478  Research handbook on climate change, migration and the law value added of human rights law 140 see also Refugee Convention (1951) and Protocol (1967) human security 58, 76, 78, 85 human trafficking 273 humanitarian system/protection/law 93, 191, 192, 198, 296, 301, 461–4, 468 climate change displacement facility 439, 440–441, 443 cluster system 128 CCCM Cluster 310 extraterritoriality 148 Guiding Principles on Internal Displacement 109, 110, 112, 119, 129, 410, 452 host communities 253 international climate regime 239, 392 International Organization for Migration (IOM) 289, 310 Kampala Convention 186–7, 188 Latin America and Caribbean 279, 280 Brazil Plan of Action 267 Community of Latin American and Caribbean States 277 MERCOSUR 273–4 national responses 281, 282–4, 285, 286 Organization of American States 273 visas, humanitarian 267, 269, 280, 282–3, 285 minimise need for humanitarian responses 78 Nansen Initiative 456 Agenda for Protection 17, 310, 457–9 Platform on Disaster Displacement 461 national tribunals/protection 79, 80, 94, 96, 110, 281, 282–4, 285, 286, 410 Operational Guidelines 118, 119, 232 post-disaster recovery 127 regional protection 94 responsibility to protect 153, 156–7 security frame 72, 75–6 terminology 86

MAYER_9781785366581_t.indd 478

hunter-gatherers 171, 172 Hurricane Matthew in Cuba and Haiti 265 Hurricane Mitch and Central America 463 climate-migration nexus 41–6 hydropower 209–14, 235–6 ideational framing 51–2 identity and place 363 India 30, 175, 327, 352, 396, 464 Indian Ocean tsunami (2004) 95, 223–4, 464 indigenous peoples 134, 135, 136, 146, 160, 161, 169–89, 232 climate change/migration nexus and 170–172 climate-related projects and migration 174–6 land degradation and migration 172–3 consultation 176, 187, 188, 211, 235, 236 criminal law 176 hydroelectricity 210, 236 Kampala Convention 10, 12, 105, 112–13, 169–70, 184–5, 453 climate change and migration 185, 189, 453 complaint mechanisms for remedies 188–9 concrete and explicit obligations 186–8 State reports 188 land and 177, 178, 179, 183, 216, 304 Kampala Convention 185, 187–8 renewable energy 174, 210–213 Latin America 262 climate change impacts on human mobility 264 meaning of 170–171 media in UK 339–40 private and family life 178–9 REDD+ 174, 175–6, 187–8, 216–19, 233–4 Refugee Convention: persecution 102 renewable energy 174 hydroelectricity 210, 236 sustainable development 206

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Index  ­479 UN Declaration on the Rights of (UNDRIP) 177–8, 182, 183, 188, 212, 227, 236 UN protection: normative basis and deficit 176–80 climate change and migration 180–182 complaint mechanisms for remedies 183–4 lack of concrete obligations 182–3 Indonesia 327, 464 inequality/ies 92, 167, 227, 400 Bangladesh 41 see also equality information 146, 153, 161, 187, 224, 304, 459 labour market 325, 326 Operational Guidelines on the Protection of Persons in Situations of Natural Disasters (2011) 118 relocation 228 inhuman or degrading treatment 94, 227, 230 insurance 361, 372, 384, 430, 431, 432, 433, 435 Inter-American Commission on Human Rights 136, 183–4, 267 Inter-American Court of Human Rights 304 Inter-American Program for the Promotion and Protection of the Human Rights of Migrants 270, 272 intergenerational equity 160 intergovernmental organisations (IGOs) 186, 187, 307, 379, 381–2, 393 see also individual organizations Intergovernmental Panel on Climate Change (IPCC) 2, 7, 75, 85, 113, 135, 137, 190, 220–221, 288 indigenous knowledge 234 media in UK 332, 337–9, 341 national disaster reduction systems 221 projections of changes in mobility 420 REDD+ 214–15

MAYER_9781785366581_t.indd 479

towards global governance system 414 vulnerability reduction measures 445 internal displacement 3–4, 139, 152, 156, 336, 383, 407, 410, 426 in Africa: Kampala Convention 10, 12, 105, 112–13, 169–70, 184–9, 453 Brookings Project on 111–12 definition of IDPs Guiding Principles on Internal Displacement 110, 116–17, 121, 122, 124, 125–6 Kampala Convention 185 ethical duties 374–5 Guiding Principles on see separate entry IASC Framework for Durable Solutions for IDPs 126, 127 IOM: new framework 312 media 338, 342 Mexico 285–6 Monitoring Centre (IDMC) 85, 117–18, 119, 121, 138 drought-induced migration 121, 122 Latin America 265 Nansen Initiative 466 Organization of American States (OAS) 272, 286 Peninsula Principles 132, 134, 151, 159, 301, 410, 427, 447 Peru 285 Refugee Convention: state responsibility 104–6 scenarios, displacement-triggering 192 UN Special Rapporteur on human rights of IDPs 105, 223–5, 302 international assistance and cooperation 10, 126, 158, 161–3, 182–3, 412 international climate change law perspectives 20–21, 190–204, 468 cross-border migration, law of 191–4 implementation of para 50 200–203 statelessness, law of 194–6 UNFCCC and migration and displacement 196–200

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480  Research handbook on climate change, migration and the law see also UN Framework Convention on Climate Change International Convention on the Elimination of All Forms of Racial Discrimination (ICERD) 144, 147, 226–7 CERD Committee 303 indigenous peoples 178, 179 International Convention for the Prevention of Pollution from Ships (MARPOL) 243 International Convention on the Protection of the Rights of All Migrant Workers and Members of their Families 9 International Court of Justice (ICJ) 148–9, 245, 259 International Covenant on Civil and Political Rights (ICCPR) 10, 142, 144, 164–5, 449 Art 2(1): respect 144, 146, 148–9 Art 4: public emergency 229 Human Rights Committee 144, 146–7, 178–9, 183 indigenous peoples 178–9 non-discrimination 147 International Covenant on Economic, Social and Cultural Rights (ICESCR) 10, 142, 143, 144, 164–5, 449 CESCR 145, 148, 156, 158–9, 161–2, 179, 180, 183, 234 displacement due to responses to climate change 213 forced evictions 225–6 relocation: procedural protections 228 indigenous peoples 178, 179, 180, 182 international assistance and cooperation 161–2 non-discrimination 147 progressive realization 158–9 International Disaster Database EMDAT 120 international humanitarian law see humanitarian system/protection/ law International Labour Organization (ILO) 9, 22–3, 316–30, 467–9

MAYER_9781785366581_t.indd 480

fair recruitment 325 future directions for work of 325–9 green jobs 319–20, 328 Guidelines 320–321 impact of climate change on labour markets 317–21 indigenous peoples 176–7, 179 migrant workers 9, 115, 316–17, 321–30 Public Employment Programmes (PEPs) 327 rights-based approach 322 International Law Commission (ILC) 247, 251, 259 International Organization for Migration (IOM) 22, 50, 51, 288–315, 332, 468–9 Brazil Visa Application Centre 462 climate change 382 migration as adaptation strategy 383 environmental migration 379, 380 Migration and Governance Framework (MiGOF) 311–12 objectives 289, 311 quest for legal framework 289 from legal prescriptiveness to consensus-building 295–301 role of human rights bodies 301–5 rights-based approach 312 role and perspectives of 289–90, 305–6, 440 capacity building activities 308 evolving 311–12 guidelines and good practices 309–11 institutional developments 306–7 policy and legislation: support in developing 308–9 support provided to Member States and others 307–11 WIM 309 terminological debate and positioning of 289, 290–295, 407 definition of climate migration 294–5 towards global governance system 415

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Index  ­481 UNFCCC 383, 390, 391–2, 393, 436–7, 440 United Nations 311, 312 international refugee law 19, 85–107, 131, 394, 468 climate change displacement facility 439 climate refugee 86–7, 100, 113–14, 139, 407 crisis migration 107 Refugee Convention (1951) and Protocol (1967) see separate entry survival migration 106–7 International Union for Conservation of Nature (IUCN) 219, 232, 235 intersectionality 133–4, 139, 143–4, 152 Inuit rights 136, 183–4 Iraq 251 Israel 254 Jamaica 284 justice 359 access to 177–8, 233, 236 corrective 349–54, 360, 369, 372 social 317–18, 321, 330 Kälin, Walter 87, 112, 116, 123, 127, 137, 192, 194, 196, 456 Kampala Convention 10, 12, 105, 112–13, 169–70, 184–5 climate change and migration 185, 189 complaint mechanisms for remedies 188–9 concrete and explicit obligations 186–8 State reports 188 Kant, I. 61 Kenya 113, 172, 173, 174, 175, 215–19, 328, 456 Kiribati 4, 79–80, 102–3, 151, 222 Australia 102–3, 324, 325, 330 ethics 347–8, 374 media 79–80, 335–7, 342 ‘Migration with Dignity’ policy 78 Pacific Climate Change and Migration Project 323–5 Kosovo 254 Kuwait 251

MAYER_9781785366581_t.indd 481

labour markets employment human right 143, 144 opportunities 313 impact of climate change on 317–21 migrant workers 115, 308, 316–17, 321–30, 337, 451, 465 labour migration schemes 298 seasonal 4, 34–5, 36, 43, 125, 192, 313, 324 see also International Labour Organization (ILO) labour standards 214, 319, 329 land degradation 46, 47, 378 drought 120 extreme poverty and 120 indigenous peoples: migration as consequence of 172–3 Sahel 35–6, 37 land and identity 363 land and indigenous peoples 177, 178, 179, 183, 216, 304 Kampala Convention 185, 187–8 renewable energy 174, 210–213 Latin America 21–2, 47, 92–3, 262–87, 418, 419 Cartagena Declaration on Refugees 194, 279–80, 450 climate change impacts on human mobility 264–6 national responses 281–6 regional responses 263, 266 Andean community 276–7 Central America and Caribbean organizations 278 climate change, disasters and migration 267–70 Community of Latin American and Caribbean states 277 fragmented responses 271–9 humanitarian assistance 279 MERCOSUR 267, 273–5 Organization of American States (OAS) 269–70, 271–3, 286 Pacific Alliance 277–8 refugee definition 279–80 UNASUR 274, 275–6 least-developed countries (LDCs) 384, 423–5, 437–8, 447 Expert Group 436

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482  Research handbook on climate change, migration and the law legal aid 228 legal framework, quest for 289 from legal prescriptiveness to consensus-building 295–301 role of human rights bodies 301–5 lex specialis derogat lege generali 247 life, right to 135, 146, 226, 230, 303–4, 305 Living Space for Environmental Refugees (LISER) 379 Lockean-type proviso or right of necessity 356–60 loss and damage (L&D) 89, 258, 384–6, 393, 399, 410, 431 dismantling climate migration 386–90 loss of control by former policy actors 390–392 Warsaw International Mechanism (WIM) see separate entry low-lying states see small-island/lowlying atoll states Madagascar 175 Maldives 4, 74, 136, 151, 222, 223–5, 464 ethics 347–8, 374 Malé Declaration on the Human Dimension of Global Climate Change 136 margin of appreciation 250, 305 Marshall Islands 347–8, 374 The Mary Robinson Foundation – Climate Justice 300 Mauritius 328 media 23, 290, 331–43, 467 background 332–3 climate refugee 291, 336, 337, 338–9, 394, 407 methodology 334–5 observations about results absence of sceptical sources 340–341, 342 IPCC 337–9 Teitiota case 335–7 US government 339–40 Pacific mobility 74, 79–80, 335–7 passive victims 77 priorities when speaking to 342

MAYER_9781785366581_t.indd 482

MERCOSUR 267, 273–5 metamorphosis 54, 55–7 Mexico 9, 30, 42, 47, 266, 280, 284, 285–6, 436, 456 Migrants in Countries in Crisis (MICIC) Initiative 300, 310–311 Millennium Development Goals 10 minorities 134, 135, 136, 139, 155–6, 227 misrepresentation and representation of climate migrants 18–19, 67–81 context and agency 77–8 definitional debates 68–70 individual agency 79–80 multiple climate migrations 70–74 security 70, 74–7 Montserrat 119, 463 Morocco 173, 175 multinational corporations 102 Myers, N. 74–5, 137, 332, 339, 378, 398, 421 Namibia 174, 328 Nansen Initiative 16–17, 119, 129, 269, 299, 390, 410, 447, 451, 464–6 Agenda for Protection 17, 87–8, 299, 300, 310, 451, 457–60, 465 internal displacement 466 causation 117 conceptual incoherence 50, 51–2 Guiding Principles on Internal Displacement 116, 455, 456 origins of 454–7 Platform on Disaster Displacement 17, 119, 129, 300, 310, 451, 452–4, 460–461, 465 National Adaptation Plans 198, 201, 203, 299, 422, 442–3 national security see security nationality 9–10, 12, 144–5, 163, 410 right to 196 NATO (North Atlantic Treaty Organization) 254 Nauru 323–5, 330 necessity, right of Lockean-type proviso or 356–60 neocolonialism 241 neoliberalism 72, 78, 400

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Index  ­483 Nepal 327 Netherlands 436 New Economic Foundation 379 New York Declaration for Refugees and Migrants (2016) 314 New Zealand 324 Immigration and Protection Tribunal 79–80, 94–5 Pacific ‘climate migrants’ 79–80, 94–5, 102–3, 335–7 Refugee Convention: discriminatory intent 102 security discourse 75–6 UK print media: Teitiota case 335–7 newspapers in UK 23, 331–43 methodology 334–5 observations about results 335–41 Nicaragua 42, 43, 44–5, 266, 463 Niger 121 Nigeria 172, 175, 303 El Niño 265, 266 no-harm principle 149, 157, 245–8, 249, 255–7, 259 non-discrimination 133–4, 143, 144, 147, 152, 167, 226–7, 466 derogation 230 Guiding Principles on Internal Displacement 111 Operational Guidelines on the Protection of Persons in Situations of Natural Disasters (2011) 118 non-governmental organizations (NGOs) 14, 50, 76, 87, 229, 331, 379, 381, 392, 393, 452 climate refugee 407 dam projects 214, 236 ‘do good’ principles 231 human rights-based approach and emergency relief 235 humanitarian assistance 440 indigenous peoples 212 internal displacement 109 Nansen Initiative 456 non-refoulement 86, 449–50 Nordic countries 151 see also individual countries North America 269 see also individual countries

MAYER_9781785366581_t.indd 483

Norway 111, 452 Nansen Initiative 16–17, 87, 299, 451, 456 Refugee Council 390–391 Nuclear Weapons 149, 245 Obama, Barack 407 older people 134, 152 open society 63–6 Operational Guidelines on the Protection of Persons in Situations of Natural Disasters 112, 118–19, 193, 232 principles 118 volcanoes and earthquakes 117 Organization of African Unity (OAU) 194, 450 Organization of American States (OAS) 269–70, 271–3, 286 Orwell, G. 64 otherness 3, 70, 74, 76 overview of laws 6 climate-migration nexus 11–12 environmental and climate law 6–8 refugee, migration and human rights law 8–11 ozone layer 6–7, 242–3, 414, 417 Pacific Alliance 277–8 Pacific States 75–6, 79, 87, 94–5, 102–3, 337 in-country resettlement schemes 150–151 news media 77, 79–80 Pacific Climate Change and Migration Project 323–5, 330 Pacific Islands Development Forum Suva Declaration on Climate Change (2015) 11 see also individual countries Panama 213, 264, 284 Papua New Guinea 436 Paraguay 265, 266 participation 146, 153, 161, 177, 179, 232, 233–4, 235, 236 Cancún Safeguards 219 CERD Committee 303 Maldives 224 pastoralism 34, 35, 171, 172, 173 transhumance agreements 458

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484  Research handbook on climate change, migration and the law paternalism 177 Peninsula Principles on Climate Displacement within States 132, 134, 151, 159, 301, 410, 427, 447 performance arts 72 performativity theory 67, 68, 80 Peru 203, 265, 280, 282, 285 Philippines 9, 78, 321, 327, 328, 456 Climate Change Commission 435 Pinheiro Principles on Housing and Property Restitution 193 planned relocation see relocation, planned Platform on Disaster Displacement (PDD) 17, 119, 129, 300, 310, 451, 452–4, 460–461, 465 Poland 251 politics 14, 16, 122, 343, 395, 397–8, 404, 407, 408 de-politicising migration 400–402, 403, 404 polluter-pays principle 385 population growth and drought 120 populism 16, 24, 257, 396, 402, 408 poverty 3, 5, 40, 219, 280, 325, 373, 400, 415, 445 conceptual incoherence 56 human rights 133–4, 136 land degradation and extreme 120 survival migration 106–7 travel short distances 104 praxiography 67, 68, 73, 80 precautionary principle 152 preventive principle 245–8, 249, 255–7, 259 print media in UK 23, 331–43 methodology 334–5 observations about results 335–41 property and peaceful enjoyment of possessions, right to 146, 226 proportionality 144, 229 Protection Agenda of Nansen Initiative 17, 87–8, 299, 300, 310, 451, 457–60, 465 internal displacement 466 public goods 359 Pulp Mills 149, 157 REDD+ 174, 175–6, 187–8, 214–20, 442

MAYER_9781785366581_t.indd 484

free, prior and informed consent 188, 233–4 REDD demonstration projects 235 reduction systems, national disaster 221, 222 Refugee Convention (1951) and Protocol (1967) 8–9, 12, 19, 86, 89–90, 143, 193–4, 239, 297, 467 altering 16, 296, 336, 407, 421–2, 465 border-crossing condition 103–4, 115, 407 internal displacement and state responsibility 104–6 economic and social rights 91 host communities 253 individual approach of 95 individual status attribution when faced with urgent and/or mass mobility 96–8 personal threat 95–6 migrants vs refugees 402 Nansen Initiative 458 non-refoulement 86, 449–50 outdated text 92–5 persecution, fear of 91, 96, 98–101, 193–4, 239, 395, 400–401, 407, 425–6, 450 discriminatory intent 102 recognizing environmental persecution 101–3 well-founded 101 ‘political’ refugees 90–92, 395, 408, 409 stateless refugees 195 UNHCR: refugee status 12, 95, 96–7, 290–291, 296, 379, 388 refugees of the Anthropocene 23, 86–7, 100, 394–404 agency in migration 398–400 de-politicising migration 400–401, 403, 404 ‘migrant’: life-threatening label 396, 402 our responsibility as scholars 403 politics 397–8, 404 refugees vs migrants 401–2 Regional Conference on Migration (RCM or Puebla Process) 269 regional consultative processes (RPCs) 328

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Index  ­485 regional economic communities (RECs) 328–9 regional responses: Latin America 263, 266 climate change, disasters and migration 267–70 fragmented responses 271–9 Organization of American States (OAS) 269–70, 271–3, 286 refugee definition 279–80 relocation, planned 199, 221–4, 234, 294, 299, 337, 424, 436, 438 Agenda for Protection 457, 459 Cancún Agreements (2010) 11, 88, 197–8, 294, 399, 429, 431, 434 definition 304 ECtHR: States’ obligation to relocate 304 guidelines 310 human rights law: relocation and forced evictions 225–30 human rights-based framework 231–2 Maldives 208, 222, 223–4 media in UK 339–40, 342 Nansen Initiative 466 Platform on Disaster Displacement 461 proposed global governance system: principle of 411 UNFCCC: planned migration 387–8 remedies 228, 233 compensation see separate entry indigenous peoples 178, 183, 188 resettlement 252, 361–6, 375 proposed global governance system 411–12 remittances 43–4, 45, 313, 322, 325, 337, 399 renewable energy 174, 328 displacement and human rights issues 208–14, 235–6 reparations 241, 247, 249, 250–253, 254, 255–61 representation and misrepresentation of climate migrants 18–19, 67–81 context and agency 77–8 definitional debates 68–70 individual agency 79–80

MAYER_9781785366581_t.indd 485

multiple climate migrations 70–74 security 70, 74–7 rescue principle 354–6 responsibility to protect 153, 156–7 restitution 178, 193, 256 retroactive penalty 230 Rio Declaration (1992) 149, 245 risk management, disaster 221, 266, 273, 275–6, 287, 308, 461 Robinson, Mary 113–14 Rorty, R. 60 rural-to-urban migration 138, 220 Bangladesh 39–40, 41, 125 Central America 42, 43 West Africa 35–6 Rwanda 172 salinization of water and arable land 124, 173, 194, 221, 266, 323, 385, 387 scapegoating foreigners 16 security 14–15, 86, 255, 261 human 58, 76, 78, 85 (mis)representation of climate migrants 70, 72, 73, 74–7, 78, 80 North-South axis 75 self-determination 135, 236, 358, 359, 360, 362–6, 389 Sen, A. 63 Sendai Framework for Disaster Risk Reduction 11 Senegal 328 Fulani pastoralists 34, 35 Seychelles 464 slavery 230 slow-onset disasters/events 426, 432, 433, 447, 461 Guiding Principles on Internal Displacement 116, 119 climate change 114, 116, 123–6 drought 116, 120–122 what difference does it make 126–8 media 342 UNFCCC 387–8 small-island/low-lying atoll states 14, 194–6, 197, 290, 398, 428, 468 Alliance of Small Island States (AOSIS) 76, 384, 430, 431 climate refugee 395–6

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486  Research handbook on climate change, migration and the law ethical duties to climate migrants 347–8, 355–6, 357–60, 361–6, 374 centralized administrative allocation 369–73 migrants choose host state 367–9 loss and damage 425 relocation 221–2 salinization 124, 194 Small Island Developing States (SIDS) 429, 430, 447–8 towards global governance system 412, 414 voluntary and involuntary mobility 124 see also Pacific States social justice 330 ILO 317–18, 321 social networks 31, 39–40, 41, 43, 45, 250, 406 social security 160, 319 socio-economic status migration destinations and 43, 44, 45 socio-political analysis of agendasetting process 24, 376–93 from environmental to climate migrants 377 exclusive consensus period 381–4 inclusive conflict period 378–81 loss and damage 384, 393 dismantling climate migration 386–90 loss of control by former policy actors 390–392 new policy category under UNFCCC 384–6 soft law 105, 106, 115, 142, 289, 299, 306, 307, 310, 468 towards global governance system 410–411, 419 see also Guiding Principles on Internal Displacement; Operational Guidelines on the Protection of Persons in Situations of Natural Disasters Solomon Islands 222 Somalia 122, 173, 464 South Africa 227, 327

MAYER_9781785366581_t.indd 486

South America 265, 266 UNASUR (Union of South American Nations) 274, 275–6 see also individual countries South American Conference on Migration (CSM) 267–8 South American Network for Environmental Migrations (RESAMA) 268 South Sudan 175 Southern Africa Development Community (SADC) 328 sovereign equality 244–5, 246 sovereignty 75, 109, 355, 388–9, 413, 443, 449 detached from territory 78, 365 Soviet Union: Chernobyl 98, 100 Sri Lanka 222, 464 state, deterritorialized 78, 364–5 state responsibility 21, 110, 115, 118, 238–61, 385, 429–30, 469 International Law Commission (ILC) 247 primary obligations 241 conventional sources 242–4 de minimis threshold 246 general international law 244–8 lex specialis derogat lege generali 247 Refugee Convention: internal displacement 104–6 secondary obligations 248 migration and injuries 249–55 migration as injury for migrants 249, 250–253 migration as injury for other communities 249, 253–5 migration as way to mitigate injuries 249–50 nature of remedial obligations 255–60 statelessness 194–6, 283, 361–2, 410, 468 statistics 3–4, 74, 85, 117–18, 137–8, 339, 398, 405–6, 420 droughts 120 Hurricane Mitch 42 Latin America 264, 265–6 migrant workers 317

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Index  ­487 Stockholm Declaration (1972) 6, 149, 245 Sudan 122, 173, 175 sui generis regime see global governance system The Sun 341 sustainable development 6, 206, 214, 254–5, 381, 417 Goals 10–11, 277 ILO 318, 320 Suva Declaration on Climate Change 11 Sweden 12, 93–4, 464 Switzerland 464 Nansen Initiative 16–17, 87, 299, 451, 456 Syria 340, 401 tabloids UK 340–341 Tanzania 173, 174, 174–6 tautology 52, 53–4 technocratic turn 49, 65 technology transfer 259 Teitiota, Ioane 99, 102, 335–7 terminology 288 climate migrants 5, 68–70, 86, 139, 240, 285, 294–5, 338–9, 381, 406–9 climate refugee 86–7, 100, 113–14, 139, 192, 202, 290–291, 298, 336, 337, 338–9, 381, 406–9, 425–6 refugees of the Anthropocene see separate entry debate and positioning of IOM 289, 290–295, 407 environmental migrant 51, 85–6, 266, 291–3, 295, 378, 381, 464 environmental refugee 32, 86, 290, 292, 379–80, 381, 395, 425–6 terrorism 237 Thailand 320, 464 think differently see conceptual incoherence Torture Convention 178, 179–80 tourism 316 Trail Smelter Arbitration 6, 149, 157, 245, 257

MAYER_9781785366581_t.indd 487

training ILO 319, 320, 326 IOM 308, 311 transhumance agreements 458 trapped populations 16, 32, 106, 240, 260, 302, 313, 324 Trump, Donald 47, 402 tsunami disaster (2004) 95, 223–4, 464 Tunisia 175, 328 Turkey 401–2 Tuvalu 4, 74, 79, 94–5, 102–3, 151, 222 Australia 102–3, 324, 325, 330 CEDAW Committee 303 ethics 347–8, 374 Pacific Climate Change and Migration Project 323–5 Uganda 113, 172, 173, 175 UN Framework Convention on Climate Change 7, 11, 107, 149, 155, 165, 174, 188, 196–7, 204 Cancún Agreements 8, 11, 88, 190, 197–8, 207, 219, 242, 376 Adaptation Framework 199, 261, 294, 298–9, 399, 403, 422, 429, 431, 434 international cooperation 383–4, 385 IOM 306–7 loss and damage 199, 384, 385, 386 variety of types of human mobility 293–4, 298–9 climate change displacement facility, towards see separate entry Climate Migrant Protocol, proposed 412–15, 417, 419, 421–2 common but differentiated responsibilities 165, 258, 412, 413, 427 Doha Amendment 7–8, 242 Doha Decision 198–9 Durban (2011) 207, 219, 385 funding 443–7 Human Rights Council 205 Intended Nationally Determined Contributions (INDCs) 8, 242, 299, 422–3, 440 Kyoto Protocol 7, 174, 242, 243, 244, 248, 430

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488  Research handbook on climate change, migration and the law CDM 174–5, 187, 213–14, 430, 446 loss and damage (L&D) 89, 258, 384–6, 393, 399, 410, 431 dismantling climate migration 386–90 loss of control by former policy actors 390–392 Warsaw International Mechanism (WIM) see separate entry no-harm/preventive principle 245 obligations 242, 243, 244 Paris Agreement 7, 174, 208 adaptation 8, 174, 422–3 displaced populations 88–9 employment 317 Green Climate Fund 435, 438, 444, 445, 446 human rights 129, 137, 149, 159–60, 180, 206, 207 insurance 431, 433 loss and damage 258, 309, 386, 389–90, 423, 424–5, 427, 433–5, 436 nationally determined contributions 8, 242, 299, 422–3, 440 obligations 242, 243 planned relocation 294 task-force 403 terminology 293, 294 WIM 199–203, 309, 423–5, 427–8, 434, 436, 438–9, 448 protection of people displaced by climate change 197–8, 296 climate change displacement facility, towards see separate entry Climate Migrant Protocol, proposed 412–15, 417, 419, 421–2 REDD+ 174, 175–6, 187, 219 terminology 293–4, 295 UNASUR (Union of South American Nations) 274, 275–6 United Kingdom 200, 436, 464 Brexit 402 print media 23, 331–43

MAYER_9781785366581_t.indd 488

methodology 334–5 observations about results 335–41 UKIP 402 United Nations 73, 233, 382, 469 Commission on Human Rights 225, 452 Development Programme (UNDP) 323, 382, 392, 415, 416 Environment Programme (UNEP) 6, 7, 319, 407, 415 Food and Agriculture Organization 416 General Assembly 311, 314, 409–10, 452 Guiding Principles on Internal Displacement see separate entry High Commissioner for Refugees (UNHCR) 50, 86, 87, 122, 129, 267, 281, 332, 468–9 climate change 382, 383 Nansen Initiative 454–6 persecution 101–2 planned relocations 222–3, 231–2 refugee status 12, 95, 96–7, 290–291, 296, 379, 388, 407, 409–10 revision of Geneva Convention 100–101 towards global governance system 415 UNFCCC 383, 390, 391–2, 393 Human Rights Council 10, 105, 129, 136–7, 144–5, 180–181, 193, 205 indigenous peoples 169, 174–6, 180–181, 186 Declaration on the Rights of (UNDRIP) 177–8, 182, 183, 188, 212, 227, 236 Office of the High Commissioner for Human Rights (OHCHR) 138–9, 143, 149, 152, 468–9 adequate housing 160–161 Climate Justice Dialogue 300 human rights-based approach 231, 233 indigenous peoples 171–2, 232 international cooperation 163 planned relocations, report on 222–3

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Index  ­489 rural to urban migration 220 state responsibility 221 REDD Programme 219 Security Council 14, 15, 251, 254, 455 IDPs: right to return to place of residence 126–7 Special Rapporteurs adequate housing 224, 225, 228–9 human rights and environment 155, 302 human rights of IDPs 105, 223–5, 302 human rights of migrants 137, 272, 302, 355 UNFCCC see UN Framework Convention on Climate Change United States 16, 47, 183–4, 199–200, 246, 402, 424 Alaska 74, 339–40, 342 Central America: Hurricane Mitch 43–5, 463 climate refugees 407 Haitian earthquake 462, 464 Hurricane Katrina 45–6, 98 CERD Committee 303 Kyoto Protocol 243 media in UK Alaska 339–40, 342 Syria 339, 340 temporary protected status (TPS) 44–5, 94, 151, 463–4 Vietnamese refugees 252 Universal Declaration of Human Rights (UDHR) 144, 164–5, 196, 226, 449 urban centres 121, 138 agro-pastoralism 35 Central America 42 rural-to-urban migration see separate entry Uruguay 284, 321 Venezuela 266, 282, 437 Vietnam War 252 volcanoes 117, 119, 126, 378, 463 voluntary migration see forced and voluntary migration

MAYER_9781785366581_t.indd 489

Warsaw International Mechanism (WIM) 8, 461 adaptation under UNFCCC 428–9 climate change displacement facility, proposed 199, 201, 420–425, 427, 428, 434, 436, 437–9 mandate 439–43 sources of funding 443–6 use of funds and governance 446–7 dismantling climate migration 389 Doha Decision 198–9 financial instruments 435 history of 429–37 International Organization for Migration (IOM) 307, 309 loss of control by former policy actors 391 operational role 410 Paris Agreement 199–200, 309, 423–5, 427–8, 434, 436, 438–9, 448 implementation of para 50 200–203 two-year work plan 198–9, 200–201, 433 water, right to 135, 180 weather events and climate change 240 Winch, P. 59–60 Wittgenstein, L. 62 women 134, 135, 146, 152, 160, 227, 453 activists 72 Bangladesh 39, 41 CEDAW 147, 226–7, 303 workers, migrant 9, 115, 308, 316–17, 321–30, 337, 451, 465 labour migration schemes 298 seasonal 4, 34–5, 36, 43, 125, 192, 313, 324 World Bank 392 Forest Carbon Partnership Facility (FCPF) 219–20 Inspection Panel 217–18 involuntary resettlement 127, 220 REDD+ 215–19

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490  Research handbook on climate change, migration and the law towards global governance system 415, 416, 418 World Health Organization 416 World Meteorological Organization 7

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xenophobia 16, 24, 255, 257, 396, 402 Zambia 173, 175, 320 Zimbabwe 173

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