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Climate change, natural disasters and displacement: a multi-track approach to filling the protection gaps

Published online by Cambridge University Press:  29 November 2010

Abstract

Millions are displaced by climate-related disasters each year, and this trend is set to increase as climate change accelerates. It raises important questions about how well existing instruments actually protect people driven from their homes by climate change and natural disasters. This article first examines current protection instruments and points out gaps in them. There follows an exploration of various proposals for filling those protection gaps, with the focus on cross-border natural-disaster-induced displacement. A multi-track approach is recommended, including context-oriented and dynamic interpretation of existing law, and creation of new law. Adhering to the principle of non-refoulement, and focusing on whether return is possible, permissible, or reasonable, could be a realistic way to begin developing protection regimes for victims of natural-disaster-induced displacement.

Type
Environment
Copyright
Copyright © International Committee of the Red Cross 2010

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References

1 Intergovernmental Panel on Climate Change, Climate Change 2007: The Synthesis Report, p. 30, available at: http://www.ipcc.ch/publications_and_data/publications_ipcc_fourth_assessment_report_synthesis_report.htm (last visited 20 September 2010).

2 Office for the Coordination of Humanitarian Affairs (OCHA) and the Internal Displacement Monitoring Centre (IDMC)/Norwegian Refugee Council, Monitoring Disaster Displacement in the Context of Climate Change, Geneva, 2009, p. 15.

3 See, for example, the definition of an internally displaced person as someone ‘forced or obliged to flee or to leave their homes or places of habitual residence’, in Report of the Representative of the Secretary-General, Mr. Francis M. Deng, submitted pursuant to Commission resolution 1997/39, Addendum: Guiding Principles on Internal Displacement, 11 February 1998, UN Doc. E/CN.4/1998/53/Add.2 (hereafter 1998 UN Guiding Principles on Internal Displacement), Introduction: Scope and Purpose, para. 2.

4 The concept of ‘environmental refugees’ or ‘climate refugees’ has been criticized by migration academics. This is mainly because climate change, migration, and displacement are not phenomena with only one cause. Moreover, the refugee concept has a restricted definition, focusing on persecution as the main grounds for fleeing, and is limited to individuals who have crossed an internationally recognized border. The limited nature of the refugee concept in itself makes the term ‘climate refugee’ somewhat unsuitable.

5 Hodgkinson, David, Burton, Tess, Anderson, Heather, and Young, Lucy, ‘Copenhagen, climate change “refugees” and the need for a global agreement’, in Public Policy, Vol. 4, No. 2, 2009, p. 159Google Scholar.

6 IPCC, above note 1, p. 30.

7 See Emergency Event Database, available at: http://www.emdat.be/natural-disasters-trends (last visited 20 September 2010).

8 OCHA, Opening remarks by Sir John Holmes, Under-Secretary General for Humanitarian Affairs and Emergency Relief Coordinator at the DIHAD 2008 Conference, 8 April 2008, available at: http://www.reliefweb.int/rw/rwb.nsf/db900sid/YSAR-7DHL88?OpenDocument (last visited 20 September 2010).

9 OCHA and IDMC/NRC, above note 2, p. 15.

10 When is the land so degraded that we consider the small-scale farmer to have been forced to leave it – and not merely to have ‘chosen’ to leave it – for a better life elsewhere? Is the degradation mainly due to climate factors or to land use, poor irrigation, economics, and governance?

11 UK Treasury, Stern Review on the Economics of Climate Change, Cambridge University Press, Cambridge, 2005, p. 112.

12 See, for example, Inter-Agency Standing Committee (IASC), Climate Change, Migration and Displacement: Who will be affected?, Working paper submitted by the informal group on Migration/ Displacement and Climate Change of the IASC, 31 October 2008, p. 1.

13 IPCC, above note 1, p. 52.

14 See, for example, IASC, above note 12, p. 1.

15 See 1998 UN Guiding Principles on Internal Displacement, above note 3.

16 The typology is based on that presented in IASC, above note 12, pp. 2–3; and Kolmannskog, Vikram, ‘The point of no return: exploring law on cross-border displacement in the context of climate change’, in Refugee Watch, Vol. 34, December 2009, pp. 2742Google Scholar.

17 See 1998 UN Guiding Principles on Internal Displacement, above note 3, Principle 2.

18 One case study indicated that the protection challenges are more similar to those faced by migrants than displaced persons. For example, drought is often characterized by family separation, with the male head of the household leaving in search of work, while in conflicts and sudden-onset disasters, entire families are often forced to move. A senior staff member of an international humanitarian agency has suggested that the term ‘distress migration’ is more appropriate than ‘displacement’. Perhaps the tipping point is when the entire family leaves, i.e. when there is no longer any possibility of survival at home. Then we can speak of forced displacement. See Vikram Kolmannskog, Climate Change, Disaster, Displacement and Migration: Initial Evidence from Africa, New Issues in Refugee Research, Research Paper No. 180, Office of the United Nations High Commissioner for Refugees (UNHCR), December 2009, p. 11.

19 Convention relating to the Status of Stateless Persons, adopted on 28 September 1954 by a Conference of Plenipotentiaries convened by Economic and Social Council resolution 526 A (XVII) of 26 April 1954, Art. 1.

20 Jane McAdam and Ben Saul, An Insecure Climate for Human Security? Climate-induced Displacement and International Law, Sydney Centre Working Paper No. 4, University of Sydney, 2008, available at: http://sydney.edu.au/law/scil/documents/2009/SCILWP4_Final.pdf (last visited 28 September 2010).

21 See, for example, Nils Petter Gleditsch, ‘Environmental conflict: Neomalthusians vs. Cornucopians’, in Hans Günter Brauch et al. (eds), Security and the Environment in the Mediterranean: Conceptualising Security and Environmental Conflicts, Springer Verlag, Berlin, 2003, p. 478.

22 See 1998 UN Guiding Principles on Internal Displacement, above note 3, Introduction: Scope and Purpose, para. 2.

23 V. Kolmannskog, above note 16, p. 32.

24 Cartagena Declaration on Refugees of 22 November 1984, reproduced in Annual Report of the Inter-American Commission on Human Rights, 1984–1985, OEA/Ser.L/V/II.66, doc. 10, rev. 1, pp 190–193, Art. III(3); OAU Convention Governing the Specific Aspects of Refugee Problems in Africa, Addis Ababa, Ethiopia, 10 September 1969, Art. 1(2).

25 Council Directive 2001/55/EC of 20 July 2001 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, Art. 2(c)(i).

26 Council Directive 2004/83/EC of 29 April 2004 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, Art. 15(c) in combination with Art. 2(e).

27 Vikram Kolmannskog, Dignity in Disasters and Displacement: Exploring Law, Policy and Practice on Relocation and Return in the Context of Climate Context, paper prepared for the Global Environmental Change and Human Security Synthesis (GECHS) Conference, ‘Human Security in an Era of Global Change’, University of Oslo, 22–24 June 2009, available at: http://www.nrc.no/?aid=9411918 (last visited 20 September 2010).

28 Report of the Representative of the Secretary-General on the Human Rights of Internally Displaced Persons, Walter Kälin, Protection of Internally Displaced Persons in Situations of Natural Disasters, A/HRC/10/13/Add.1, 5 March 2009, para. 58.

29 1998 UN Guiding Principles on Internal Displacement, above note 3, Principles 6(2)(d), 7(1), 15(d), 28, and 29, and elsewhere.

30 See, for example, UNHCR, Climate Change, Natural Disasters and Human Displacement: A UNHCR Perspective, Geneva, 2009, p. 9.

31 See Bali Action Plan, Decision 1/CP.13 FCCC/CP/2007/6/Add.1, 14 March 2008, para. 1(c).

32 Kolmannskog, Vikram, ‘Towards a humanitarian climate change agreement’, in Forced Migration Review, Vol. 33, September 2009, p. 72Google Scholar.

33 D. Hodgkinson et al., above note 5, p. 159.

34 Docherty, Bonnie and Giannini, Tyler, ‘Confronting a rising tide: a proposal for a convention on climate change refugees’, in Harvard Environmental Law Review, Vol. 33, No. 2, 2009, p. 349Google Scholar.

35 Ibid., pp. 374–375.

36 Glazebrook, Susan, ‘Human rights and the environment’, in Victoria University of Wellington Law Review, Vol. 40, 2009, p. 293Google Scholar.

37 Kampala Convention, Art. 5(4).

38 OAU Convention Governing the Specific Aspects of Refugee Problems in Africa, above note 24, Art. 1(2).

39 Edwards, Alice, ‘Refugee status determination in Africa’, in African Journal of International and Comparative Law, Vol. 14, 2006, pp. 204233CrossRefGoogle Scholar.

40 Hector Gros Espiell, Sonia Picado, and Leo Valladares Lanza, Principles and Criteria for the Protection of and Assistance to Central American Refugees, Returnees and Displaced Persons in Latin America, prepared by the Group of Experts for the International Conference on Central American Refugees pursuant to specific objective (a) in paragraph 3 of the San Salvador Communiqué on Central American Refugees of 9 September 1988, p. 11, available at: www.acnur.org/biblioteca/pdf/3668.pdf (last visited 20 September 2010).

41 Kolmannskog, Vikram and Myrstad, Finn, ‘Environmental displacement in European asylum law’, in European Journal of Migration and Law, Vol. 11, No. 4, 2009, pp. 313326CrossRefGoogle Scholar.

42 See, for example, Kolmannskog, Vikram, ‘Climates of displacement’, in Nordic Journal of Human Rights, Vol. 26, No. 4, 2008, pp. 302320Google Scholar; V. Kolmannskog, above note 16; and V. Kolmannskog and F. Myrstad, above note 41.

43 UNHCR, Handbook on Procedures and Criteria for Determining Refugee Status under the 1951 Convention and the 1967 Protocol relating to the Status of Refugees, Geneva, 1992, paras. 51–53.

44 UNHCR, above note 30, p. 7.

45 V. Kolmannskog, above note 18, p. 9.

46 Convention Relating to the Status of Refugees, 28 July 1951, Art. 33(1).

47 V. Kolmannskog, above note 42, pp. 312–316; V. Kolmannskog, above note 16, pp. 32–35. For an interesting and challenging perspective on the relevance of human rights law to migration, see Catherine Dauvergne, Making People Illegal: What Globalization Means for Migration and Law, Cambridge University Press, Cambridge, 2008. Dauvergne argues that the realm of immigration law has become an important theatre in terms of reaffirming state sovereignty in a globalizing world, and that we should not expect human rights norms to be of much use to illegal immigrants, who are the main targets of these reassertions of sovereignty. She suggests that a more promising alternative is to couch legal arguments on behalf of illegal immigrants not in terms of human rights norms but rather in terms of the rule of law. While we believe that human rights may be built on for a solution in the specific context of climate change and natural disasters, we conclude that the risk of an overly broad scope for interpretation emerging means that an explicit mention of natural disasters, or something similar, in law governing return better ensures effective protection.

48 See, for example, International Criminal Tribunal for the Former Yugoslavia (ICTY), Prosecutor v. Anto Furundžija, Case No. IT-95-17/1-T, Judgment (Trial Chamber), 10 December 1998, paras. 144, 153–157. The ICTY stated that there is a jus cogens for the prohibition against torture, that there is no allowance for states to make reservations, and that is considered to bind all states.

49 V. Kolmannskog, above note 16, p. 33.

50 European Court of Human Rights, D. v. the United Kingdom, Judgment of 2 May 1997, Application No. 30240/96, paras. 46–54.

51 United Nations, 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, New York, 2009, paras. 16-41.

52 United Kingdom House of Lords, Regina v. Special Adjudicator ex parte Ullah, 17 June 2004, [2004] UKHL 26, paras. 24–25.

53 See European Convention for the Protection of Human Rights and Fundamental Freedoms as amended by Protocols No. 11 and No. 14, Rome, 4 November 1950, Arts. 2(2) and 15(2).

54 V. Kolmannskog and F. Myrstad, above note 41.

55 See United States, Immigration and Nationality Act, Act 244 – Temporary Protected Status, Sec. 244. 1/[8U.S.C. 1254], sub-para. (b).

56 See V. Kolmannskog, above note 16, pp. 36–37.

57 See Council Directive 2001/55/EC, above note 25.

58 V. Kolmannskog and F. Myrstad, above note 41.

59 See V. Kolmannskog, above note 42, p. 320.

60 Walter Kälin, How Hard is Soft Law? The Guiding Principles on Internal Displacement and the Need for a Normative Framework, Presentation at Roundtable Meeting, Ralph Bunche Institute for International Studies, CUNY Graduate Center, 19 December 2001, p. 7, available at: http://www.brookings.edu/fp/projects/idp/articles/Kaelin12-19-01.pdf (last visited 20 September 2010).