Climate Change and Migration

IPCC AR6 on migration as an adaptation strategy

Migration as a universal strategy in response to factors such as environmental change

IPCC AR6 on climate change and armed conflict

Climate hazards have affected armed conflict but small effect relative to socioeconomic, political and cultural factors

AR5: costly and disruptive, adaptation of last resort

How much more likely are people to be displaced now as in the 1970s? (UNHCR)

2x

UNHCR on climate change and refugees

Majority of people of concern to UNHCR are in 'climate change hotspots'

No recognition of climate refugees, but CC as an issue of concern

IPCC AR5 on internally displaced migration

Majority of migrants will be IDPs

UK 2011 Foresight Report

Trapped populations as important

Unable to access capital to move

Maximalist school of thought (Kälin)

Up to 1 billion to be displaced as consequence of CC

Minimalist school of thought (Kälin)

Displacement triggered by complex and multiple causes, CC just one

Kälin's 4 scenarios

1. Sudden onset

2. Slow onset

3. Displaced from SIDS

4. Designation of high-risk zones

5. Climate-induced unrest, violence and armed conflict

Kälin on sudden onset

Majority are IDPs, receive protection and assistance under HR

Cross-border: only protected if refugee or otherwise protected by non-refoulement

Kälin on slow onset

No right to be admitted, but protected by general HR law abroad

Main international law framework for IDPs

1998 UN Guiding Principles on Internal Displacement

UN Guiding Principles IDP definition

Forced or obliged to flee or leave home

In particular as a result of or in order to avoid the effects of...HR violations or natural or human-made disasters

Principle 18 UN IDP Guiding Principles

humanitarian aid, minimum right to be provided with and have safe access to food and potable water, basic shelter and housing, clothing, medical

Principle 28 UN IDP Guiding Principles

right to choose between voluntary return, integrating, or moving

Are UN IDP Guiding Principles binding?

Not binding, reflecting and consistent with binding HR law

1951 Refugee Convention Article 1A(2)

A refugee = A person who

i) owing to well-founded fear of being persecuted

ii) for reasons of race, religion, nat, membership of group or pol op.

iii) outside country of nationality (etc)

Which protocol modified the Refugee Convention to expand its scope to include events post-1951?

1967 Protocol Art 1(2)

Kälin on Refugee Convention and climate-induced displacement

Not covered and not considered, unlikely to apply unless gov consciously withheld or obstructed assistance to punish or marginalise

1969 OAU Convention

Expands 'refugee' to include persons compelled to leave due to events seriously disturbing public order

African Union

1984 Cartagena Declaration

Latin America - refugee includes fleeing internal conflicts or 'massive violation of HR'

Core principles of Refugee Convention

Non-refoulement, basic minimum standards for treatment

IPCC AR5 on the term 'climate refugee'

'Scientifically and legally problematic'

Reasons given by the IPCC for why the term climate refugee is 'scientifically and legally problematic'

Widespread agreement in scientific and legal literature:

1. Environment as trigger not cause for migration decision

2. Negative geopolitical implications

3. SIDS reluctant

Environmental Justice Foundation climate refugee definition

1. Sudden or progressive climate-related change in the environment

2. Adversely affects lives or living conditions

Fry on climate refugee as a term

Should be considered legally and procedurally different to those affected by geological disasters, global issue, drivers by industrialised countries

Recommends UNHRC recommend UNGA commence negotiations to make an optional protocol to define

''Time to put aside this denial and accept the fact that a large number of people are being displaced across international borders due to climate change and that there is an international legal responsibility to properly protect them'

IOM environmental migrants definition

1. Predominantly for reasons of sudden or progressive changes in the environment

2. Adversely affects lives/living conditions

3. Obliged to leave homes OR choose to do so

4. Temporarily or permanently

5. Move within country or abroad

[Very broad]

Kälin's suggested approach

Person displaced by effects of CC as person in need of international protection

i) outside country of origin or habitual residence

ii) danger to life, limb or health as consequence of CC effects or nature of response, or lack thereof, of competent authorities

iii) unable or unwilling to avail of assistance and protection of country of origin or habitual residence

Kälin on returnability

Look at in light of prevailing circumstances and particular vulnerabilities it would be unreasonable to require them to return

Kälin on statelessness and SIDS

No ipso facto stateless so long as some remaining part of territory and gov continues to exist

De facto (may happen) vs de jure (problematic)

Issue = how to ensure they are admitted to other countries on a permanent basis where they can keep nationality of origin, even if they or descendents acquire nationality of that country

Article 1 Convention relating to the Status of Staleess persons

'Not considered as a national by any State under the operation of its law'

Teitota v NZ (UNHRC) facts

Claimed effects of CC and sea level rise forced him to migrate from Kiribati to NZ

Some violent land disputes, but not a situation of general violence and he was not involved

Key question in Teitota v NZ (UNHRC)

Whether he has substantiated claim that he faced upon deportation a real risk of irreparable harm to his right to life

Teitota v NZ judgment on Article 6

Art 6 could give rise to non-refoulement in principle

Appears to expand the HR application of non-refoulement

Teitota v NZ reasoning on Article 6

Sudden onset and slow onset can propel cross-border movement, effects may expose individuals to violation of Art 6 and 7 ICCPR rights, triggering non-refoulement obligations

Right to life cannot be properly understood if interpreted restrictively

Where risks are imminent, may be unlawful to send back, life-threatening or CIDT

Teitota v NZ decision on facta

Accepted that Kiribati likely to become uninhabitable, but 10-15 year period could allow for intervening acts by Republic of Kiribati

Head of UNHCR on Teitota judgment

'If you have an immediate threat to your life due to climate change, due to the climate emergency, and if you cross the border and go to another country, you should not be sent back because you would be at risk of your life, just like in a war or in a situation of persecution'

Muhumuza dissent in Teitota v NZ

Risk must be personal, threshold should not be too high and unreasonable

Counterintuitive to wait for deaths to be frequent and considerable - child has already suffered significant health hazards, family difficulty in growing crops

'The fact that this is a reality for many others in the country, does not make it any more dignified for the persons living in such conditions. New Zealand's action is more like forcing a drowning person back into a sinking vessel, with the "justification" that after all there are other voyagers on board'

Daniel Billy and others v Australia (Torres Strait Islanders petition) (UNHRC) facts

Indigenous inhabitants of small islands in Australia's Torres Strait region

Citizens of Australia

Daniel Billy and others v Australia (Torres Strait Islanders petition) (UNHRC) claim

Rights violated by Australia's failure to adapt to CC by, inter alia, upgrading seawalls and reducing GHG emissions

Impacts on livelihood, culture, traditional way of life - ancestral graveyards, cultural ceremonies on native lands, degradation of land and trees

Daniel Billy and others v Australia (Torres Strait Islanders petition) (UNHRC) judgment

Australia's failure to adequately protect indigenous Torres Islanders against adverse impacts of CC violated their rights to enjoy their culture and be free from arbitrary interferences with their private life, family and home

Took into account spiritual connection

Daniel Billy and others v Australia (Torres Strait Islanders petition) (UNHRC) remedies

compensate for harm, engage in meaningful consultations to assess needs, measures to secure safe existence

Fry assessment of current law

Deficit in protection

Drivers created mainly by industrialised countries - should be considered in context of causalit and responsibility

Fry on gaps in protection

Absence of intl instruments to give protection and the ones that do exist are not implemented effectively

Fry solutions

Develop legal regime to protect rights of persons displaced

Interim - nat legislation that provides humanitarian visas for persons displaced across intl borders due to C

Funding to assist, ad hoc is not adequate, could be under developmental work on the loss and damage fund

Budayeva v Russia

Positive obligation to take regulatory measures and adequately inform the public about any life-threatening emergency

Rio Declaration principle 10 (right to information)

Each individual shall have appropriate access to information concerning the environment that is held by public authorities

Kampala Convention

African Union Convention for Protection of IDPs in Africa
IDP: persons or groups of persons forced or obliged to flee or leave homes/places of habitual residence in particular as a result of or in order to avoid the effects of…violations of HR or natural or human made disasters