Issues for Legal Protection of Climate-related Migrants and Displaced Persons

1. Issues for Legal Protection of Climate-related Migrants and Displaced Persons Michelle Leighton Center for Law and Global Justice University of San Francisco School of Law

2. Overview • Human displacement or migration in response to climate disasters implicate human rights and humanitarian law. • Standards are uneven or ambiguous depending on the climate impact--government obligations depend on nature and type of climate disaster: In some cases standards are defined and in other cases they do not exist. • Human rights standards and government obligations relating to voluntary and forced migration responses will need to be clarified in order to protect all climate victims.

3. Basis 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.

4. Climate change and disasters Is Climate Change a disaster? Humanitarian norms convey responsibility on governments to provide relief to disaster victims in their territory and to help disaster victims in other states less able to do so. Tung X. Ngo/IRIN Flood Vietnam 2005 Hyogo Framework for Action • Disaster risk reduction—help countries reduce vulnerability; • Improve strategic coordination of government assistance Reinforced by the 2006 IASC Operational guidelines on Human Rights and Natural Disasters, and 2007 Red Cross Guidelines for Domestic Facilitation and Regulation of International Disaster Relief

5. Human rights norms on cooperation and assistance Covenant on Ecomonic, Social, Cultural Rights: “ States parties have a joint and individual responsibility, in accordance with the Charter of the United Nations and relevant resolutions of the United Nations General Assembly and of the World Health Assembly, to cooperate in providing disaster relief and humanitarian assistance in times of emergency, including assistance to refugees and internally displaced persons.” --Committee Eonomic, Social and Cultural Rights, IESCR treaty body 160 countries ratified; additional 6 signed, including U.S. • This includes climate disasters—does assistance include permitting “migration when there is no or few alternatives?”

6. Human rights in the context of climate-related migration Human rights provides for freedom of movement. All rights attach to the human person and their dignity wherever they reside or move, including as they cross political borders. Scope of state’s duties change but include minimum protections for: • right to be free from discrimination • right to property • right to family and privacy • right to health • right to food, water, and housing • right to culture • right to information and participation in decision-making • right to asylum. • 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.

7. Government obligations toward climate-related migrants Are migrants entitled to receive protection, legal status and/or work when they move in response to climate disasters? Does it depend on type of disaster? 1. rapid-onset v. slower-onset; 2. whether state of emergency or public order disrupted, requiring regional state protection; 3. receiving country migration laws on disaster victims. Zunia.org

8. International migrants: slow-onset disasters People seek to cope with drought- and desertification through labor migration. Refugee norms may apply only if emergency or environment-related conflict. 1951 Refugee Convention, U.N. resolutions, European Court, Inter-American Commission cases: principle of nonrefoulementprevents return. 1969 OAU convention on Specific Aspects of Refugee Problems in Africa: “events seriously disturbing public order.” 1984 Cartagena Declaration on Refugees (Latin American region): includes similar provision to OAU. Temporary protection status (only for migrants to Denmark).

9. FUTUE DISASTER: 21 Countries to lose between 30% - 60% of agriculture Senegal: 52%; Sudan: 56% Equatorial Africa: 60% 42% Mexico 45% India 2.3 billion in drylands threatened by mega-droughts. -

10. International migrants: rapid-onset disasters • Those migrating from storms, floods, hurricanes seek temporary refuge. No return if dangerous and/or country of origin could not assist. Shamsuddin Ahmed/IRIN • The international community has provided assistance, including allowing for temporary migration. • Council of Europe and some countries have TPS: applies to those already in-country and very narrow protection.

11. International migrants: sea-level rise • Persons living on small island states displaced due to sea-water intrusion or forced to migrate permanently. • May result in “statelessness. • European Directive on Subsidiary Protection: would convey temporary status to third party nationals. Who will be responsible? Photo courtesy of SPREP

12. Internally displacedpersons I “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 human-made disasters, and who have not crossed a state border.” • Guidelines protect the right of internal movement, right to life, dignity and security of persons displaced. • Forced relocation only as last resort to protect the health and safety of those affected . May not be arbitrary / discriminatory, nor harmful to the needs of indigenous or marginalized groups dependent on their lands. • Climate adaptation plan include recognition of migration or forced relocation but do not identify standards that would apply.

13. Gaps and disparities in protection • Not all climate disasters addressed equally: • Rapid-onset disasters receive greater recognition as disaster and larger assistance than slow-onset. Droughts. • Not all disaster victims protected equally: - Laws protect some but not all victims forced to migrate depending on type of disaster and whether receiving country has favorable laws, rather than the victim’s immediate need. • Not all countries are accountable equally: - Standards largely voluntary (including for IDPs) and protection of victims inconsistent; countries in region with treaty have higher standards than in other regions, e.g. Kampala Convention).

14. Who is unprotected? • Persons moving across international borders due to the sudden-onset of natural climate disasters; • Persons moving inside or outside their country as a consequence of slower-onset climatic events, such as long-term, persistent drought; • Persons moving to international destinations from islands threatened by sea-level rise, coastal storm surges, or salinization resulting from sea water moving inland---persons could be rendered stateless; • Persons moving across borders to seek refuge from designated “high-risk” zones too dangerous for human habitation due to climate danger; • Persons forced to relocate or resettle under government programs of adaptation—no binding guidelines apply. Niger

15. Filling the normative gaps • Clarify standards of protection for climate-related migrants. • Council of Europe parliamentary committee recommended adopting standards for 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. • Where climate adaptation programs acknowledge migration will occur, assist governments in managing migration in ways that will enhance the positive impacts and reduce the adverse impacts of forced displacement. • At a minimum, provide greater protection for international migrants not able to return due to climate events, possibly through national migration management systems. • Adopt international or regional agreements (similar to Kampala Convention) that solidify the IDP Guiding Principles to ensure implementation and increase accountability. • Facilitate a holistic approach to research and policy development.