Climate change and disaster-related migration, displacement and planned relocation are already a reality for many people around the world. There is a growing body of evidence suggesting that, as climate change continues to take its toll, the number of people affected will increase.1281 Countries have acknowledged this reality, especially under the recently adopted Global Compact for Migration, and have been calling for the development of coherent approaches to address hmdcc.1282
In searching for coherency, the main goal of this book has been to propose an international minimum standard for the treatment of pmdcc. It did so by arguing for the international protection of pmdcc. In order to operationalise this proposal, the book discussed the theories of community interests and the common concern of humankind. The former theory laid the foundation for an obligation erga omnes to protect pmdcc at the international level, whereas the latter conceived a new treaty regime with novel duties to cooperate and to act. This conclusion conveys the principal findings of the book and identifies potential avenues for further research.
1 International Protection and Human Mobility in the Context of Disasters and Climate Change
Conceptualising hmdcc as a complex planetary and intergenerational problem is one of the novel contributions of this book to the literature. In doing so, the first chapter approached hmdcc as a problem situation which (i) emerges from the actions and interactions of multiple actors, (ii) has multiple, dynamic and interconnected variables, (iii) occurs in conditions of scientific uncertainty and evolving scientific knowledge, and (iv) is planetary in scope and intergenerational in impact.1283
In order to demonstrate the relevance and importance of each pillar, the first chapter examined the relevant commitments made by States under the recently adopted Global Compact on Refugees and the Global Compact for Migration. The extensive legal stocktaking exercises in the second and third chapters supported this analysis. Overall, the book makes a number of key claims about the role of international protection in addressing hmdcc:
First, there can be no doubt about the immediate need of recognising the international protection of pmdcc. This has been made more evident with the increasing number of studies, projects and collaborations at the international level on the legal implications of hmdcc. In addition, the case study of the pis demonstrated the urgency of formulating an international response.
Second, despite this rising awareness, there are major legal blind spots, since the current international legal infrastructure promotes fragmented and largely voluntary responses to addressing hmdcc. These legal gaps exacerbate the existing vulnerabilities and protection needs of pmdcc.
Third, effective and timely responses to hmdcc are not possible without specific measures to prevent future displacement. Focusing on the conditions that cause displacement in the context of disasters and climate change can avert future harm. This, in turn, calls for reconsidering the global commitments on climate change mitigation and disaster risk reduction.
Fourth, States must acknowledge the application of the prohibition of the non-refoulement of pmdcc (although States may establish criteria with a view to prohibiting the return of certain categories of pmdcc only). This recognition has an inseparable human rights aspect to it, which aims to provide international protection to all those who are unable to return home because of a serious threat to their life and physical integrity in the context of disasters and climate change.
Lastly, States must facilitate safe, orderly and regular migration in the context of disasters and climate change. Facilitating migration can enable in situ and ex situ adaptation. The former generally refers to internal relocation, while the latter refers to the search for temporary or permanent opportunities across
2 Lessons Learnt about Community Interests and Common Concerns
Operationalising the international protection of pmdcc was both the greatest aspiration and the most difficult challenge of this book. The proposed formulations of the theories of community interests and of the common concern of humankind provided two different and non-contradictory pathways to operationalise the international protection of pmdcc.
The fourth chapter framed the international protection of pmdcc under the theory of community interests. The role of the theory of community interests in international law is to establish and protect multilateral rights and obligations in the interest of the ‘international community as a whole’.1284 Obligations erga omnes facilitate the integration of community interests into international law, by designating those obligations of a State towards ‘the international community as a whole’.
The analysis of obligations erga omnes showed that these obligations modify: (i) the scope of a primary rule (by broadening the circle of States bound by the rule); (ii) the right of standing according to secondary rules (by permitting any State other than an injured State to protect the community interest at stake); (iii) the content of the obligation in question (for instance, in the Genocide case, the icj ruled that the obligation of each State to prevent and punish the crime of genocide is not territorially limited by the Genocide Convention).
It was also pointed out, however, that there is confusion surrounding obligations erga omnes, particularly in relation to their identification, types of effects, enforcement and relationship to obligations jus cogens.
Nonetheless, the concept erga omnes remains highly relevant, since the icj has affirmed the existence of obligations erga omnes with reference to multilateral treaties and in customary international law, while commentators continue to propose new candidates of obligations erga omnes in several legal fields. The concept erga omnes is also highly significant, because it ensures that
To encourage the further development of erga omnes, the author proposed the identification of the international protection of pmdcc as an obligation erga omnes. The author structured her argument as follows: if (i) the international protection of pmdcc derives from the principles and rules concerning the basic rights of the human person and if (ii) it is a matter of community interest, it follows that (iii) the international protection of pmdcc is an obligation erga omnes and all States can be held to have a legal interest in its performance.
Next, the author provided a roadmap to promoting the performance of the international protection of pmdcc as an obligation erga omnes. This roadmap involves using the procedural aspects of the international human rights regime, the international climate change regime, the international labour regime and the international trade regime, more specifically: (i) the individual communication procedures under international human rights treaties; (ii) the Universal Periodic Review process; (iii) the formulation of the Nationally Determined Contributions; (iv) the work of the unfccc Task Force on Displacement; (v) the tripartite structure of the ilo; (vi) the Trade Policy Review Mechanism of the wto.
The roadmap also encourages the utilisation of the follow-up and review mechanisms of the Global Compact for Migration, and the Global Compact on Refugees, more specifically: (i) the International Migration Review Forum, to be held in the first semester of 2022; (ii) the Migration Multi-Partner Trust Fund; (iii) the Migration Network Hub; (iv) the Global Refugee Forum, to be held in 2023; (v) the Global Academic Interdisciplinary Network.
Overall, relying on the theory of community interests has helped shape a legally binding obligation imposed on all States to provide international protection the pmdcc. This solution is especially useful for inducing the cooperation of States that would otherwise prefer to remain free from legal fetters.
However, the fact remains that ‘the best instrument to produce legal change’ in international law is the treaty.1285 Treaties have the advantage of creating written law with which contracting States formally undertake to comply.
In order to ground a treaty solution, the fifth chapter discussed the international protection of pmdcc as a common concern of humankind. The extensive research on the theory of common concern of humankind has demonstrated
Even though common concern continues to inspire international law-making, its content and legal effects are not yet settled. In order to further clarify the concept, two international instruments were examined: the Paris Agreement, which reiterates climate change as a common concern, and the Global Compact on Refugees, which recognises the predicament of refugees as a common concern.
The analysis has shown that, under both instruments, States remain largely free to decide on their own contributions to addressing the relevant common concern. This leads to ineffective problem solving. For instance, developing countries continue to host an overwhelming majority (86% as of 2021) of the world’s refugees, while in the case of climate change, we are heading for a global temperature rise of 3 degrees Celsius, even if countries meet commitments made under the Paris Agreement.
Hence, in order to facilitate genuine problem solving, the author proposed employing common concern as a normative statement rather than a factual one. Common concerns cannot be addressed by all States, if constraints on State sovereignty are not adequately and effectively established.
Borrowing from the normative conceptualisation of common concern articulated by Cottier and others, the author also argued that the international protection of pmdcc as a common concern should involve a treaty regime which incorporates a novel duty to cooperate and a novel duty to act.1286
The novel duty to cooperate justifies limiting sovereignty over immigration matters in favour of the international protection of pmdcc. Furthermore, it incorporates: (i) the interests of the people living in their countries of origin, as well as of people on the move; (ii) due process transparency; (iii) a duty to consult and negotiate; (iv) modalities on burden-sharing and differentiated responsibility.1287
The novel duty to act envisages that States: (i) ‘do their homework’, in other words, transpose the obligations deriving from the treaty domestically, and (ii) secure compliance and enforce the rules of the treaty.
In conclusion, in order to operationalise the international protection of pmdcc, the author searched for theories that supplied conceptions of international law which do not merely rest on the self-interests of States. The theories of community interests and the common concern of humankind transcend self-interests by taking into account ‘the international community as a whole’, including the present and future generations. In the author’s view, these theories are far from being utopian. In fact, they represent the function of international law more realistically. International law is (and should be) well equipped to address complex planetary and intergenerational problems, such as hmdcc.
3 Outlook
Looking forward, the research carried out here can be taken further in at least three respects. First, the notion of international protection in international law could be fleshed out in more detail. International criminal law and private international law, in particular, might provide valuable insights for this purpose. Second, the complex problem of hmdcc could be understood better. Primary research focusing on the local, national and regional impacts of climate change and disasters is particularly important for informing future legislation and policy-making. Third, the theories of community interests and common concern of humankind can be taken further. The proposed formulations of these theories can be applied to other problematic situations that humanity is facing.
In the event that the reader was convinced by the arguments presented in this book, they can look for ways to implement its proposals. There is much work that needs to be done in order to achieve the recognition of the international protection of pmdcc as an obligation erga omnes and/or a common concern of humankind. The good news is that there is space for everyone to get involved.
For an overview on estimations of ‘environmental migrants’, see Viviane Passos Gomes and Diana Viveiros, Legal Protection for environmental migrants: current challenges and ways forward (Punto Rojo Libros 2018) chapter 1.
Global Compact for Migration (n 9) objective 2(l).
For the definition of complex problems, see Brunnée (n 24) 211–232.
See Chapter 4.1.2 of this book for a discussion on the meaning of ‘international community as a whole’.
See Antonio Cassese (ed), Realizing Utopia: The Future of International Law (Oxford University Press 2012) 657–658.
Cottier (ed) (n 21).
Cottier and Losada (n 1181).