Post on 03-Apr-2018
transcript
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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
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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 ofclimate 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.
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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 governments to:
prevent disasters;protect victims affected by disaster; andassist victims in territory and/or refugees.
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Climate change and disasters
Humanitarian norms convey responsibility
on governments to provide relief to disaster
victims in their territory andto help disaster
victims in other states less able to do so.
Tung X. Ngo/IRIN Flood Vietnam
2005 Hyogo Framework for Action
Disaster risk reductionhelp 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
Is Climate Change a disaster?
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Human rights norms on
cooperation and assistance
Covenant on Ecomonic, Social, Cultural Rights:
States parties have a joint and individual responsibility, in accordance withthe Charter of the United Nations and relevant resolutions of the UnitedNations General Assembly and of the World Health Assembly, to cooperate inproviding 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 disastersdoes assistance includepermitting migration when there is no or few alternatives?
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Human rights in the context of
climate-related migrationHuman rights provides forfreedom of movement. All rights attach tothe human person and their dignity wherever they reside or move,including as they cross political borders. Scope of states 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.
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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 publicorder disrupted, requiring regional state protection;
3. receiving country migration laws on disaster victims.
Zunia.org
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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 ofnonrefoulementprevents 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).
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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
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International migrants:
rapid-onset disasters
Those migrating from storms, floods,
hurricanes seek temporary refuge.
No return if dangerous and/orcountry 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.
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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.
Photo courtesy of SPREP
Who will be responsible?
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Internally displaced
persons
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 ofnatural 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 ofthose 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.
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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 dependingon type of disaster and whether receiving country has favorable laws,
rather than the victims 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).
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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 ofslower-onset climatic events, such as long-term, persistent drought;
Persons moving to international destinations from islands threatened bysea-level rise, coastal storm surges, or salinization resulting from seawater 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
adaptationno binding guidelines apply.
Niger
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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 Conventionon 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 thepositive impacts and reduce the adverse impacts of forced displacement.
At a minimum, provide greater protection for international migrants notable to return due to climate events, possibly through national migration
management systems.
Adopt international or regional agreements (similar to KampalaConvention) that solidify the IDP Guiding Principles to ensureimplementation and increase accountability.
Facilitate a holistic approach to research and policy development.