Issues for Legal Protection Issues for Legal Protection of Climate-related Migrants of Climate-related Migrants

and Displaced Personsand Displaced Persons

Michelle LeightonMichelle Leighton

Center for Law and Global JusticeCenter for Law and Global Justice

University of San Francisco University of San Francisco

School of LawSchool of Law

OverviewOverview

Human displacement or migration in response to climate Human displacement or migration in response to climate disasters implicate human rights and humanitarian law. disasters implicate human rights and humanitarian law.

Standards are uneven or ambiguous depending on the Standards are uneven or ambiguous depending on the climate impact--government obligations depend on nature climate impact--government obligations depend on nature and type of and type of climate disasterclimate disaster: In some cases standards are : In some cases standards are defined and in other cases they do not exist.defined and in other cases they do not exist.

Human rights standards and government obligations Human rights standards and government obligations relating to voluntary and forced migration responses will relating to voluntary and forced migration responses will need to be clarified in order to protect all climate victims.need to be clarified in order to protect all climate victims.

Basis of states legal obligationsBasis of states legal obligations

•International law: states owe duties to each other.

• Human rights law: states also owe duties to individuals.

•duty to respect, protect and fulfill human rights.•special responsibility to protect vulnerable groups (indigenous peoples, minorities, women, children).•special duties owed toward refugees.

•Human rights /humanitarian law oblige government’s to:

prevent disasters;protect victims affected by disaster; and assist victims in territory and/or refugees.

Climate change and disastersClimate change and disasters

Humanitarian norms Humanitarian norms convey responsibility convey responsibility on governments to provide relief to disaster on governments to provide relief to disaster victims in their territory victims in their territory andand to help disaster to help disaster victims in other states less able to do so. victims in other states less able to do so.

Tung X. Ngo/IRIN Flood VietnamTung X. Ngo/IRIN Flood Vietnam

2005 Hyogo Framework for Action 2005 Hyogo Framework for Action Disaster risk reduction—help countries reduce vulnerability;Disaster risk reduction—help countries reduce vulnerability; Improve strategic coordination of government assistanceImprove strategic coordination of government assistance

Reinforced by the 2006 IASC Operational guidelines on Human Reinforced by the 2006 IASC Operational guidelines on Human Rights and Natural Disasters, and 2007 Red Cross Rights and Natural Disasters, and 2007 Red Cross Guidelines for Domestic Facilitation and Regulation of Guidelines for Domestic Facilitation and Regulation of International Disaster ReliefInternational Disaster Relief

Is Climate Change a disaster?

Human rights norms on Human rights norms on cooperation and assistancecooperation and assistance

Covenant on Ecomonic, Social, Cultural Rights:Covenant on Ecomonic, Social, Cultural Rights:““ States parties have a joint and individual responsibility, States parties have a joint and individual responsibility, in accordance with in accordance with

the Charter of the United Nationsthe Charter of the United Nations and relevant resolutions of the United and relevant resolutions of the United Nations General Assembly and of the World Health Assembly, to cooperate in Nations General Assembly and of the World Health Assembly, to cooperate in providing disaster relief and humanitarian assistance in times of emergency, providing disaster relief and humanitarian assistance in times of emergency, including assistance to refugees and internally displaced persons.” including assistance to refugees and internally displaced persons.”

--Committee Eonomic, Social and Cultural Rights, IESCR treaty body--Committee Eonomic, Social and Cultural Rights, IESCR treaty body

160 countries ratified; additional 6 signed, including U.S.160 countries ratified; additional 6 signed, including U.S.

This includes climate disasters—does assistance include This includes climate disasters—does assistance include permitting “migration when there is no or few alternatives?”permitting “migration when there is no or few alternatives?”

Human rights in the context of Human rights in the context of climate-related migrationclimate-related migration

Human rights provides for Human rights provides for freedom of movementfreedom of movement. All rights attach to . All rights attach to the human person and their dignity wherever they reside or move, the human person and their dignity wherever they reside or move, including as they cross political borders. Scope of state’s duties change including as they cross political borders. Scope of state’s duties change but include minimum protections for:but include minimum protections for:

– right to be free from discriminationright to be free from discrimination– right to property right to property – right to family and privacyright to family and privacy– right to healthright to health– right to food, water, and housingright to food, water, and housing– right to cultureright to culture– right to information and participation in decision-makingright to information and participation in decision-making– right to asylum. right to asylum.

– International law would tend to create a higher level of responsibility of assistance for governments that International law would tend to create a higher level of responsibility of assistance for governments that contribute to climate change disasters via their significant greenhouse gas emissions.contribute to climate change disasters via their significant greenhouse gas emissions.

Government obligations toward Government obligations toward climate-related migrantsclimate-related migrants

Are migrants entitled to receive protection,Are migrants entitled to receive protection,

legal status and/or work when they movelegal status and/or work when they move

in response to climate disasters? in response to climate disasters?

Does it depend on type of disaster?Does it depend on type of disaster?

1.1. rapid-onset v. slower-onset;rapid-onset v. slower-onset;

2.2. whether state of emergency or public whether state of emergency or public

order disrupted, requiring regional state protection;order disrupted, requiring regional state protection;

3.3. receiving country migration laws on disaster victims.receiving country migration laws on disaster victims.

Zunia.org

International migrants: International migrants: slow-onset disastersslow-onset disasters

People seek to cope with drought- andPeople seek to cope with drought- and

desertification through labor migration. desertification through labor migration.

Refugee norms may apply only if Refugee norms may apply only if

emergency or environment-related conflict.emergency or environment-related conflict.

1951 Refugee Convention, U.N. resolutions, European Court, Inter-1951 Refugee Convention, U.N. resolutions, European Court, Inter-American Commission cases: principle of American Commission cases: principle of nonrefoulement nonrefoulement prevents return.prevents return.

1969 OAU convention on Specific Aspects of Refugee Problems in Africa: 1969 OAU convention on Specific Aspects of Refugee Problems in Africa: ““events seriously disturbing public order.events seriously disturbing public order.” 1984 Cartagena Declaration on ” 1984 Cartagena Declaration on Refugees (Latin American region): includes similar provision to OAU.Refugees (Latin American region): includes similar provision to OAU.

Temporary protection status (only for migrants to Denmark).Temporary protection status (only for migrants to Denmark).

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Senegal: 52%; Sudan: 56% Equatorial Africa: 60%

2.3 billion in drylands threatened by mega-droughts.

42% Mexico

45% India

FUTUE DISASTER: 21 Countries to lose between 30% - 60% of agriculture

International migrants: International migrants: rapid-onset disastersrapid-onset disasters

Those migrating from storms, floods,Those migrating from storms, floods,

hurricanes seek temporary refuge. hurricanes seek temporary refuge.

No return if dangerous and/or No return if dangerous and/or

country of country of origin could not assist. origin could not assist.

Shamsuddin Shamsuddin Ahmed/IRINAhmed/IRIN

The international community has provided assistance, including The international community has provided assistance, including allowing for temporary migration.allowing for temporary migration.

Council of Europe and some countries have TPS: applies to Council of Europe and some countries have TPS: applies to those already in-country and very narrow protection.those already in-country and very narrow protection.

International migrants: International migrants: sea-level rise sea-level rise

Persons living on small island states displaced due to sea-Persons living on small island states displaced due to sea-water intrusion or forced to migrate permanently.water intrusion or forced to migrate permanently.

May result in “statelessness.May result in “statelessness. European Directive on Subsidiary Protection: would convey European Directive on Subsidiary Protection: would convey

temporary status to third party nationals.temporary status to third party nationals.

Photo courtesy of SPREP

Who will be responsible?

Internally displacedInternally displacedpersons persons

II “Persons forced or obliged to flee or to leave their homes or places of “Persons forced or obliged to flee or to leave their homes or places of habitual residence, as a result of or to avoid effects of…natural or habitual residence, as a result of or to avoid effects of…natural or human-made disasters, and who have not crossed a state border.”human-made disasters, and who have not crossed a state border.”

Guidelines protect the right of internal movement, right to life, dignity Guidelines protect the right of internal movement, right to life, dignity and security of persons displaced. and security of persons displaced.

Forced relocation only as last resort to protect the health and safety of Forced relocation only as last resort to protect the health and safety of those affected . May not be arbitrary / discriminatory, nor harmful to the those affected . May not be arbitrary / discriminatory, nor harmful to the needs of indigenous or marginalized groups dependent on their lands.needs of indigenous or marginalized groups dependent on their lands.

Climate adaptation plan include recognition of migration or forced Climate adaptation plan include recognition of migration or forced relocation but do not identify standards that would apply.relocation but do not identify standards that would apply.

Gaps and disparities in protectionGaps and disparities in protection

Not all climate disasters addressed equallyNot all climate disasters addressed equally::- Rapid-onset disasters receive greater recognition as disaster and Rapid-onset disasters receive greater recognition as disaster and

larger assistance than slow-onset. Droughts.larger assistance than slow-onset. Droughts.

Not all disaster victims protected equallyNot all disaster victims protected equally::

-- Laws protect some but not all victims forced to migrate Laws protect some but not all victims forced to migrate depending on type of disaster and whether receiving country has depending on type of disaster and whether receiving country has favorable laws, rather than the victim’s immediate need.favorable laws, rather than the victim’s immediate need.

Not all countries are accountable equallyNot all countries are accountable equally::-- Standards largely voluntary (including for IDPs) and protection Standards largely voluntary (including for IDPs) and protection of victims inconsistent; countries in region with treaty have higher of victims inconsistent; countries in region with treaty have higher standards than in other regionsstandards than in other regions, e.g. Kampala Convention)., e.g. Kampala Convention).

Who is unprotected?Who is unprotected?

Persons moving across international borders duePersons moving across international borders dueto the sudden-onset of natural climate disasters;to the sudden-onset of natural climate disasters;

Persons moving inside or outside their country as a consequence of Persons moving inside or outside their country as a consequence of slower-onset climatic events, such as long-term, persistent drought;slower-onset climatic events, such as long-term, persistent drought;

Persons moving to international destinations from islands threatened by Persons moving to international destinations from islands threatened by sea-level rise, coastal storm surges, or salinization resulting from sea sea-level rise, coastal storm surges, or salinization resulting from sea water moving inland---persons could be rendered stateless; water moving inland---persons could be rendered stateless;

Persons moving across borders to seek refuge from designated “high-Persons moving across borders to seek refuge from designated “high-risk” zones too dangerous for human habitation due to climate danger; risk” zones too dangerous for human habitation due to climate danger;

Persons forced to relocate or resettle under government programs of Persons forced to relocate or resettle under government programs of adaptation—no binding guidelines apply.adaptation—no binding guidelines apply.

Niger

Filling the normative gapsFilling the normative gaps

Clarify standards of protection for climate-related migrants.Clarify standards of protection for climate-related migrants.– Council of Europe parliamentary committee recommended adopting standards for Council of Europe parliamentary committee recommended adopting standards for

climate migrants within a migration agreement or protocol to the European Convention climate migrants within a migration agreement or protocol to the European Convention on Human Rights. Some call for a full convention treaty text on the subject.on Human Rights. Some call for a full convention treaty text on the subject.

Where climate adaptation programs acknowledge migration will occur, Where climate adaptation programs acknowledge migration will occur, assist governments in managing migration in ways that will enhance the assist governments in managing migration in ways that will enhance the positive impacts and reduce the adverse impacts of forced displacement.positive impacts and reduce the adverse impacts of forced displacement.

At a minimum, provide greater protection for international migrants not At a minimum, provide greater protection for international migrants not able to return due to climate events, possibly through national migration able to return due to climate events, possibly through national migration management systems.management systems.

Adopt international or regional agreements (similar to Kampala Adopt international or regional agreements (similar to Kampala Convention) that solidify the IDP Guiding Principles to ensure Convention) that solidify the IDP Guiding Principles to ensure implementation and increase accountability.implementation and increase accountability.

Facilitate a holistic approach to research and policy development.Facilitate a holistic approach to research and policy development.