This chapter demonstrates that international law does not recognise the international protection of pmdcc.163 This legal gap persists despite the increasing number of cooperative initiatives aiming to address the complex problem of hmdcc.164 Furthermore, existing treaties, general principles and customary rules do not provide for the international protection of pmdcc. As a result, this specific case cannot be subsumed under a more general rule of international law.165 In constructing its argument, this chapter proceeds as follows. First, it examines the relevant international treaty regimes, i.e. the international refugee regime, the international climate change regime, the international desertification regime, the international labour regime, the international trade regime and the international human rights regimes.166 Second, it analyses the relevant general principles and customary rules in international law concerning non-refoulement, displacement and the protection of persons in the event of disasters.167 Third, it discusses the novel challenge presented by sea-level rise due to anthropogenic climate change and examines the ongoing work of the UN ilc and the ila to address this issue under international law.168 The
1 Relevant International Treaty Regimes
From the mid-seventeenth century’s little ice age170 to the ‘Dust Bowl’ of the 1930s171 and the 1986 Chernobyl nuclear disaster172, people have been driven to move by environmental factors. Yet, an international treaty regime that addresses the protection needs of persons mobile due to environmental factors has never been created.173 Since the 1980s, studies looking into the human movement–environment nexus have blossomed.174 The ipcc’s
1.1 International Refugee Regime
The international refugee regime outlines the rights, obligations and responsibilities that States have towards asylum-seekers and refugees, as well as offering opportunities for cooperation on responsibility- and burden-sharing.178 The regime centres around the Refugee Convention of 1951 and its Protocol of 1967 as the main legal sources, as well as the unhcr as the primary agency.179 This section discusses whether the purpose of the refugee regime – that is, ensuring that refugees receive access to international protection – may be utilised to provide international protection to pmdcc.
According to the Refugee Convention, there are five grounds to be granted the status of a refugee, namely the applicant’s race, religion, nationality, membership of a particular social group or political opinion. Environmental factors, such as climate change or disasters, are not included.180
Nevertheless, whether pmdcc could be recognised as ‘refugees’ has been intensively debated.181 Some of the earliest mentions are found in Vogt in 1948, who used the notion of an ‘ecological refugee’182, and Brown in 1970s, who
El-Hinnawi’s report was particularly powerful in drawing attention to the potentially devastating impacts of unchecked development and pollution on ‘forced migration’.185 He used the factor of ‘environmental disruption’ as a qualifier which referred to ‘any physical, chemical, and/or biological changes in the ecosystem (or resource base) that render it, temporarily or permanently, unsuitable to support human life’.186 He defined environmental refugees as ‘people who have been forced to leave their traditional habitat, temporarily or permanently, because of a marked environmental disruption (natural and/or triggered by people) that jeopardised their existence and/or seriously affected the quality of their life’.187 He distinguished between three types of environmental refugees: (i) those who are temporarily displaced because of environmental stress, such as floods, earthquakes and other natural disasters; (ii) those who are permanently displaced and must be resettled in a new area as a consequence of human intervention, such as dam construction; (iii) those who have migrated within their own country due to the severe deterioration of their environment and who no longer have the resources necessary to meet their basic needs.188 Although his work was criticised for being too broad and impractical, it has paved the way for studies to examine hmdcc in the coming decades.189
Shortly afterwards, in 1989, the unhcr’s Executive Committee mandated that the organisation look at the issue of the international protection of
Although the unhcr’s report did not use the term ‘refugees’ to describe environmentally displaced persons, the popularisation of ‘environmental refugees’ resonated well with popular discourse.192 For instance, the Carteret Islanders in Papua New Guinea were relocated within their country largely due to sea-level rise and were characterised in popular media as ‘the world’s first environmental refugees’.193 To quote Dina Ioanesco, the head of the Migration, Environment and Climate Change Division of the iom, the ‘image of “climate refugees” resonates metaphorically to all as it mirrors the current images we see of those escaping wars and conflicts. With the threat of climate change we imagine millions becoming refugees in the future’.194
Concomitantly, the term ‘climate refugees’ received support from governments. In 2006, the government of the Maldives convened an international conference to discuss the protection and resettlement of ‘climate refugees’ and proposed the amendment of the Refugee Convention.195 For a small island nation threatened by rising sea levels, the availability of a clear international legal status that provides international protection and resettlement options was a matter of national security.196 Similarly, in the run-up to the unfccc
However, the call for the recognition of ‘environmental/climate refugees’ has also faced a strong backlash.198 These arguments can be grouped together under three headings. The first group of objections relates to a textual interpretation of the definition of a refugee under the Refugee Convention.199 Commentators argue that environmental factors are not recognised as one of the five grounds for refugee protection.200 Furthermore, they claim that the definition of a refugee fundamentally concerns individuals, whereas environmental factors are indiscriminate and do not target persons based on grounds recognised in the Convention.201 An individualised determination of the status of a refugee would be ill-suited to mass-displacement scenarios induced by environmental changes, such as in the case of displacement of a community due to a cyclone.202 Moreover, commentators point out that the refugee definition is forward-looking, meaning that it is limited to persons who have already fled their own country due to risks of civil or political discrimination.203 By
As the refugee definition only applies to those who have crossed an international border, the difficulties in characterizing climate change as ‘persecution’, and the indiscriminate nature of its impacts, it does not
expressly cover those fleeing a natural disaster or slow-onset degradation in living conditions owing to the environment.210
The third group of objections question the morality and the politics of recognising ‘environmental/climate refugees’.211 What are the moral reasons for privileging environmental refugees over other forced migrants, such as those fleeing poverty, famine or a pandemic (e.g. covid-19)? Furthermore, the unhcr has rejected the recognition of an environmental refugee status, in large part because it lacks the resources to address their needs.212 The lack of political appetite to formally extend international refugee protection has also been pointed out.213 According to the commentators who make this argument, migration is a field largely left to sovereign decisions, with political trends in favour of tightening border controls.214 This has led to a stream of proposals shifting the focus from the notion of an ‘environmental refugee’ to more modest and non-binding initiatives incorporating terms such as ‘cross-border displaced persons in the context of disasters and climate change’.215 Finally, some studies show that people affected by environmental changes reject being referred to as refugees and opt for local terminologies.216 A case study from Papua New Guinea, for instance, shows that ‘someone who wanders from
An exception has arisen in practice, however, with the so-called ‘nexus dynamics’. According to the unhcr, situations of nexus dynamics arise when the refugee criteria interact with disasters or adverse effects of climate change.218 One example is when a government uses the context of a disaster as a pretext for persecutory acts against certain groups.219 Another is conflict due to resource constraints, in which environmental changes act as a potential driver of refugee movement.220 Reliance on such nexus dynamics is very limited and depends on the determination by relevant national authorities. However, such persons could be granted refugee status.221
Moreover, there could be situations in which regional instruments extend the refugee protection safeguarded under the Refugee Convention. The Convention governing the Specific Aspects of Refugee Problems in Africa of 1969,222 adopted by the Organisation of African Unity, and the Cartagena Declaration on Refugees of 1984,223 adopted by the Colloquium on the International Protection of Refugees in Latin America, Mexico and Panama, are a case in point. These instruments extend refugee protection to persons
As this section has discussed, the international refugee regime currently does not recognise environmental factors as a ground for refugee protection. Three main reasons were highlighted to explain this, namely reasons deriving from a textual interpretation of the definition of a refugee under the Refugee Convention, from the multi-causal nature of the phenomenon of hmdcc and from the moral and political considerations of recognising a new refugee protection status. Despite these arguments, international refugee protection remains relevant for hmdcc to the extent that there might be a situation of ‘nexus dynamics’ or in cases where regional refugee instruments might be used to extend protection.
1.2 International Climate Change Regime
The climate change regime clusters around the institutions formed and the treaties negotiated under the auspices of the unfccc.228 Especially since the
In 2013, the unfccc wim was established with a mandate to enhance ‘knowledge and understanding of comprehensive risk management approaches’ and ‘action and support, including finance, technology and capacity-building’, as well as to strengthen the ‘dialogue, coordination, coherence and synergies among relevant stakeholders’ for loss and damage, amongst other things.231 Two years later, the Excom wim was mandated to create the tfd.232 Currently comprising fourteen members, the tfd represents perspectives from the fields of development, adaptation, human mobility, humanitarianism, civil society, least-developed countries, and loss and damage.233 Their recommendations to ‘avert, minimize and address displacement related to the adverse impacts of climate change’ were delivered in 2018 during the 24th Conference of the Parties (cop24), and were ‘welcomed’ by the cop.234
Protection is explicitly referred to as part of the recommendation to continue developing and sharing good practices.236 Here, the tfd ‘encourages’ the protection of affected individuals and communities within existing national laws, as well as international protocols and conventions, where applicable.237 It falls short of explicitly laying out a conceptual framework for protecting the pmdcc at the international level.
Nonetheless, the tfd plays a pivotal role in providing the foundations for achieving international consensus on addressing hmdcc for three main reasons. First, tfd’s work has contributed to ‘displacement riskification’, i.e. the construction of displacement in terms of the risks associated with displacement in the context of climate change.238 ‘Riskification’ allows for the inclusion of new concerns and assessments of adverse symptoms of climate change on human mobility, including food security, water security, sea-level rise, civil conflict and coastal degradation.239 This paves the way for the conceptualisation of integrated approaches to addressing hmdcc, and calls for the use of relevant treaty regimes, as well as non-binding legal instruments, in accordance with international human rights law.240
Third, according to its new mandate, the tfd is charged with helping Excom wim in guiding the implementation of the recommendations.244 The 2019–2021 Plan of Action of the tfd, referred to as ‘phase 2’, focuses on the themes of national and subnational policy and practice, international and regional policy, data and assessment, and framing and linkages.245 The tfd is supposed to prepare factsheets providing an annual overview of global disaster displacement, as well as developing user-friendly knowledge products bearing on nexus situations (climate change/disaster and conflict/violence).246 Technical issues, such as understanding how to access finance for averting, minimising, and addressing displacement associated with climate change, are also envisaged in the plan of action.247 By deciding on concrete steps for implementing its recommendations, the tfd advances the engagement of various actors in order to strengthen the global response.
1.3 International Desertification Regime
The unccd is the bedrock of the desertification regime, which aims to reverse land degradation trends and improve living conditions, by encouraging international cooperation and partnership for effective action at all levels.249 In its preamble, Parties to the unccd accept that desertification is an ‘urgent concern of the international community’, and acknowledged the significant impacts of desertification and drought on ‘important social problems … arising from migration, displacement of persons and demographic dynamics’.250 This section discusses the integration of human mobility considerations into the desertification regime.251
Adopted in 1994, the unccd includes legally binding commitments by States to protect various matters, including land and water resources, local and traditional knowledge, intellectual property rights, and cattle.252 Yet, the protection of persons mobile in the context of desertification is not envisaged in the treaty. Instead, States are encouraged to ‘take into account, where relevant,
This commitment is supported by regional implementation annexes.254 For instance, the regional implementation annex for Africa (Annex 1) encourages the taking into consideration of ‘the difficult socio-economic conditions … which induce internal, regional and international migrations’.255 Annex 1 further states that the national action programmes (naps) of African countries shall include measures to improve the economic environment with a view to eradicating poverty by ‘defining and applying population and migration policies to reduce population pressure on land’.256 In addition, the subregional programmes shall focus on ‘early warning systems and joint planning for mitigating the effects of drought, including measures to address the problems resulting from environmentally induced migrations’.257
Beyond the letter of the unccd, the Conference of the Parties (cop) of the unccd and related conferences have been pushing for more detailed understandings of linkages between desertification and human mobility.258 Already in 1994, the unccd secretariat and the government of Spain organised an international symposium on desertification and migration, which concluded that the ‘freedom of people to stay at home, on their land and in their own culture, deserves to be supported by the international community’.259 During cop7, held in Nairobi in 2005, Morocco ‘urged parties to be proactive in their response to the impact of desertification on migration’.260 That same year, the 3rd Committee for the Review of the Implementation of the unccd (cric3) conducted a plenary discussion on the impact of land degradation and desertification on migration and conflict.261 During the discussion, it was
Importantly, in 2017, cop13 adopted a decision to produce a study on the ‘role that measures taken under the Convention can play to address desertification/land degradation and drought as one of the drivers that causes migration’.263 The unccd secretariat published its report in 2019, which it prepared together with the iom.264 The report is particularly impressive for drawing attention to the ‘complex nexus’ of migration, on the one hand, and desertification, land degradation and drought (dldd), on the other.265 Beyond the conceptualisation exercise, the report consists of a collection of good practices, followed by policy review and recommendations.266 The recommendations to the States Parties to the unccd are clustered under three headings: (i) prioritising community-focused sustainable land management and restoration efforts; (ii) harnessing migration policy and practice; (iii) maximising synergies across policy areas.267
Under its 2018–2030 Strategic Framework, the unccd is expected to continue to work towards improving the living conditions of affected populations, which consists of ‘substantially’ reducing ‘migration forced by desertification and land degradation’.268 Despite the long-standing awareness and interest of the desertification regime on human mobility, current efforts are non-binding
1.4 International Labour Regime
The international labour regime encompasses the large body of the ilo’s binding conventions and non-binding recommendations, which are collectively referred to as the International Labour Standards (ils).269 Access to decent work and social justice in the context of environmental changes has been a key policy framework of the ilo.270 It has worked with governments, employers and unions on the transition to a low-carbon economy for years, as a result of which it established the Green Jobs Programme in 2008 and adopted the guidelines for a just transition towards environmentally sustainable economies and societies for all in 2015.271 The ilo’s focus on labour migration in the context of environmental changes is relatively new.272 Here, the main stance of the ilo has been that, if conducted in line with the ils, migration has the capacity to be an effective adaptive strategy to environmental changes.273 This section begins by discussing the protection of migrant workers under the ils, before turning to examine the ilo’s work on promoting migration as an adaptive strategy to environmental changes.
Today, around 60% of all migrants are migrant workers.274 Demographic projections for the next forty years suggest that international labour migration will become an increasingly important factor in sustaining the productivity of national economies.275 Under targets 8.7 and 8.8 of the 2030 Agenda,
[the] human rights of all migrant workers, regardless of their status, should be promoted and protected. In particular, all migrant workers should benefit from the principles and rights in the 1998 ilo Declaration on Fundamental Principles and Rights at Work and its Follow-up, which are reflected in the eight fundamental ilo Conventions, and the relevant United Nations human rights Conventions.279
The international protection of migrant workers is expressed within the framework of the ils in three ways.280 First, the ils is applied to workers irrespective of their nationality and legal status, unless otherwise specified.281 Second, legally binding conventions have been adopted which are specifically tailored for the protection of migrant workers.282 Finally, non-binding instruments
Of relevance are ilo Conventions No. 87 on the Freedom of Association and Protection of the Right to Organize, No. 111 on Discrimination (Employment and Occupation) and No. 118 on Equality of Treatment (Social Security).284
Convention No. 87 provides that workers and employers shall have the right to establish and join organisations of their own choosing without previous authorisation.285 The Committee on Freedom of Association has stated that with the exception of Art. 9 concerning armed forces and the police, Convention No. 87 applies to all workers, including migrant workers.286 Whether employed on a permanent basis, for a fixed term or as a contract employee, all workers should have the right to establish and join organisations of their own choosing.287
Similarly, Convention No. 111 has been interpreted by the Committee of Experts on the Application of Conventions and Recommendations as applicable to all migrant workers, including those in an irregular situation.288 Everyone is entitled to protection from discrimination in the form of any distinction, exclusion or preference in employment and occupation made on the basis of sex, race, religion, political opinion and social origin.289 Migrant workers are particularly vulnerable to prejudices and differences in treatment in the labour market, and therefore the ilo members party to Convention No. 111 are obliged to actively work to combat discrimination.290
In addition, the legislative body of the ilo has adopted two Conventions which specifically relate to the protection of migrant workers, namely, No. 97 on Migration for Employment and No. 143 on Migrant Workers (Supplementary Provisions).293 Both conventions are complemented by non-binding Recommendations, namely No. 86 and No. 151 respectively.294
Convention No. 97 entered into force on 22 January 1951 and has been ratified by 50 States.295 It applies to migrants regularly admitted for employment and covers all stages of the migration process.296 It does not afford protection to irregular migrant workers. Based on the principle of non-discrimination, it articulates the equal treatment of lawfully residing migrant workers with national workers with respect to matters such as hours of work, family allowances, social security and trade union membership.297 Recommendation No. 86 complements the convention, aiming to ‘facilitate the international distribution of manpower and in particular the movement of manpower from countries which have a surplus of manpower to those countries that have a deficiency’.298 In the annex, it includes a Model Agreement on Temporary and Permanent Migration for Employment, including Migration of Refugees and Displaced Persons.299 The annex aims to provide a template for bilateral labour agreements between States, and the addition of specific provisions tailored
Convention No. 143 is broader in scope, as it applies to all migrant workers, including irregular migrant workers. It entered into force on 9 December 1978 and has been ratified by only 25 States.301 It consists of two parts, which address migration under abusive conditions and equality in opportunity and treatment.302 Adopted at a time when the international community was paying particular attention to migration-related abuses, such as the smuggling of migrant workers, the convention ‘underscores the need for inter-state cooperation and collaborative measures to prevent this phenomenon’.303 Recommendation No. 151 complements the convention and focuses especially on the formulation and application of national social policies which enable migrant workers and their families to share the advantages enjoyed by nationals.304
Furthermore, the ilo has developed non-binding instruments relating to the enhancement of the protection of migrant workers. In 2006, it published the ‘Multilateral Framework on Labour Migration: Non-binding principles and guidelines for a rights-based approach to labour migration’.305 The framework was developed following the establishment of the World Commission on the Social Dimension of Globalisation in 2002, which noted that the ‘absence of a multilateral framework to govern cross-border movements had given rise to a number of collateral problems in the exploitation of migrant workers, growth in irregular migration, rise in trafficking of human beings, and brain drain from developing countries’.306 Two years later, a resolution aiming at a fair deal for migrant workers in the global economy was adopted by the International Labour Conference, which called for an ilo Plan of Action on
It is also possible to locate the rights of migrant workers within the Decent Work Agenda of the ilo, launched in 1999. It is made up of four elements (job creation, rights at work, social protection and social dialogue) and two cross-cutting principles (gender equality and non-discrimination).309 It aims to ensure human-oriented development in the globalisation of working life and works together with the sdgs.310 Under the Decent Work Programmes, the ilo has given special emphasis to the rights of vulnerable groups of workers, including the migrant workers.311 For instance, the ilo Asia Region implemented a decent work programme during the period 2006–2015, which focused on five priority objectives, one of which was the protection of migrant workers.312
However, the role of the ilo in protecting the rights of migrant workers suffers from significant limitations. Conventions No. 97 and No. 143 have a very low rate of ratification (51 and 26 ratifications respectively).313 Furthermore, the non-binding Multilateral Framework on Labour Migration ‘clearly recognizes the sovereign right of all nations to determine their own migration policies’.314 The Decent Work Agenda and its implementation programmes are also tied to country participation. This legal reality aids the ‘protection gap’ for migrant workers at the international level, with particular consequences on
It is in this context that the ilo started to work on the labour migration–environmental change nexus.316 Using migration as an adaptation strategy has been a focal point of the ilo’s advocacy.317 In 2013, the ilo launched a three-year project with unescap and undp to explore more fully migration as a resilience strategy to climate change by leading the development of a technical-capacity-building project in the Pacific region.318 The ilo’s technical support in this project was based on the understanding that if international migration channels were not expanded for the citizens of the Pacific Island States, a significant proportion of the population could be ‘trapped’ by the worsening living conditions in the context of environmental changes.319 This project played a role in the development of national labour migration policies in Kiribati and Tuvalu, and worked with access to permanent and temporary skilled pathways in countries, such as Australia and New Zealand.320
The meaning and application of migration as adaptation is open to interpretation.321 Generally, it stands for a strategy to cope with environmental
According to the ilo, labour migration can diversify household income and reduce resource pressure on vulnerable populations, eventually providing opportunities for moving away from affected areas ‘in a less destabilizing process than mass relocation’.325 The ilo has been advocating for practices that will reduce the cost of movement, eliminate exploitative and expensive recruitment procedures, identify sectors with likely labour shortages, expand opportunities to internationally recognised qualifications and enhance vocational trainings.326 In its World Employment Social Outlook 2018 report, the ilo emphasised that ‘[s]ocial protection systems are the first line of defence against the negative impact on incomes of climate change and environmental degradation’.327 Facilitating mobility ensures the portability of social protection, and ‘thus increase the options available to poor and vulnerable households to improve their adaptive capacity’.328
1.5 International Trade Regime
The main legal instruments of the international trade regime are the wto Agreements and preferential trade agreements (ptas).331 Trade agreements can be important tools to facilitate the mobility of persons, especially in the context of disasters and climate change.332 This section discusses the relevance of wto law and ptas, in order to address the protection gap concerning pmdcc.333
Within the international trade regime, the wto is the only intergovernmental organisation dealing with rules of trade between States.334 Founded in 1995 with the Marrakesh Agreement, the wto currently has 164 members, including
Having entered into force in 1995, the gats mainly aims to progressively liberalise trade in services, to encourage economic growth and development and to increase the participation of developing countries in the global trade in services.338 The gats was born in a context in which services were increasingly being recognised as a distinct economic category.339 Today, trade in services represents a rapidly evolving sector of trade.340 In 2017, trade in services accounted for 65% of the world’s gdp,341 and it makes up about 29.7% of the EU’s gdp.342
Under the gats, there are four possible ‘modes’ of supplying services.343 The so-called ‘Mode 4’ is the movement of natural persons for the purpose of supplying services, sometimes referred to as ‘services mobility’.344 Services
The gats Annex on Movement of Natural Persons Supplying Services under the Agreement further elaborates on this definition by providing two categories.347 The first category contains ‘natural persons who are service suppliers of a Member’, which covers self-employed and independent service suppliers who obtain their remuneration directly from customers.348 The second category contains ‘natural persons of a Member who are employed by a service supplier of a Member’.349 The mainstream interpretation of the second category is that it covers foreigners working as independent suppliers on a contractual basis to companies in the host country, instead of being directly employed by such companies.350 Within this definition and scope, binding commitments to liberalise the movement of service suppliers are made by the wto Members.
Whether gats Mode 4 can be viewed as promoting the facilitation of the movement of persons requires critical reflection.351 On the one hand, Mode 4 commitments multilaterally open the national services markets for natural persons.352 States are free to make commitments, and their commitments can even reach beyond the scope of the gats.353 For instance, Jacobsson observes that the US quota for highly skilled persons in specialty occupations (the
In practice, however, Mode 4 remains an ‘underused channel for liberalising temporary mobility’,355 for two main reasons.356 First, its role is limited to service-supplying persons from wto Member States.357 In other words, the citizens of non-wto member countries cannot take advantage of the commitments listed. This limits the relevance, importance and effectiveness of gats Mode 4.
Furthermore, Mode 4 commitments are very few in number, with remittances totalling less than 6% of total trade in services.358 This has often been related to the Most-Favoured-Nation (mfn) clause of wto law, which requires a country to provide any concessions, privileges or immunities granted to one nation in a trade agreement to all other wto member countries.359 This obligation may discourage wto members from liberalising the temporary movement of service suppliers in the first place.360
Moreover, the content of the few commitments that exist have significant shortcomings.361 The commitments are usually limited to a specific period of time, even though the gats does not set any temporal limits.362
Since 2001, there have been several attempts to expand the gats Mode 4 commitments of States.367 During the Doha round of negotiations of the wto, Members discussed the expansion of the classes of workers covered under the commitments, as well as the abandonment of the economic-needs test, which gives wide discretion to States on who to admit.368 Some States insisted on addressing issues of ‘social dumping’ through trade provisions observing minimum working rights; however this issue was kept apart from the multilateral trade negotiations.369 Any new or improved commitments for services mobility have not been achieved. With the wto itself currently being in ‘crisis’ and facing existential challenges, expressions of improved community-wide interests on this matter have yet to be seen.
Due to these significant limitations of wto gats Mode 4, the role of ptas in facilitating the movement of persons has been gaining importance.370 ptas
There are at least 20 major multilateral ptas and several hundred bilateral ones.373 ptas proliferated with the rise of regional trading blocs; approximately 120 countries currently participate in regional arrangements that include free movement provisions.374 The Economic Community of West African States (ecowas), the Common Market for Eastern and Southern Africa (comesa), the East Africa Community (eac), the Southern Africa Development Community (sadc) and the Economic Community of Central African States (eccas) serve as prominent examples from Africa. The Association of South East Asian Nations (asean) and the Asia-Pacific Economic Cooperation (apec) are examples from the Asia-Pacific region. Finally, the Common Market of the South (mercosur), the Caribbean Community (caricom) and the Organisation of Eastern Caribbean States (oecs) represent examples from Latin America and the Caribbean.375
ptas can regulate the movement of persons by replicating the gats Mode 4 modalities or by including additional commitments.376 The growing interconnectedness between trade and migration, which were traditionally two separate fields, can be viewed within the context of globalisation.377 With increasing global trade, there was a desire to liberalise economies and to
A general observation suggests that ptas between developed and developing countries are limited to the gats Mode 4 commitments or highly skilled workers.381 However, ptas between only developed countries or only developing countries can incorporate more openness.382 For instance, both the EU and the caricom give preferential access to persons beyond the gats Mode 4 commitments.383 The EU has the principle of the free movement of persons.384 caricom allows for the free movement of skills and labour.385 In contrast, the Pacific Agreement on Closer Economic Relations Plus (pacer Plus), which is a pta signed by Australia, New Zealand and nine Pacific island countries, merely replicates the gats Mode 4 commitments.386
ptas can be viewed as expanding ‘the repertoire of measures and actions, often with a view to bypassing regulatory and discretionary hurdles created by immigration authorities’.387 They can grant indefinite stays and facilitate permanent resettlement, ease access to foreign labour markets through the mutual recognition of skills schemes, waive work permit requirements and waive travel document requirements in cases where documents have been lost or damaged.388 The rights and benefits might be extended unevenly, according to the categories of people on the move, such as migrant workers, students, refugees and business people.389
advancing a holistic approach that includes climate justice, human rights, and development is increasingly desirable to develop adequate measures to protect people affected by or at risk of being affected by the impact of climate changes. The main challenge to identifying cross-border mobility as an adaptation strategy is how to link this option to binding obligations, such as bilateral or regional agreements, by incorporating moral and justice responsibilities to improve the lives of affected populations and allowing for full respect for the human rights of vulnerable populations.394
A case in point is the Caribbean Islands region, where there are regional ptas that can provide legal pathways to people fleeing their homes in the context
As this section has demonstrated, the international trade regime provides significant legal tools to advance a ‘holistic’ approach to the international protection of pmdcc. Services mobility under wto gats Mode 4, as well as the facilitation of different types of mobility under ptas, can enhance people’s capacities to respond to the impact of disasters and climate change. However, as this section has pointed out, wto gats Mode 4 remains ‘underused’. Similarly, the facilitation of the movement of persons under ptas shows limitations, especially if the pta is signed between developing and developed countries. Any proposed international protection for pmdcc needs to pay attention to both the strengths and the weaknesses of the international trade regime.
1.6 International Human Rights Regimes
The UN Charter and the udhr are the pillars of the international human rights regimes, which the ohchr was established in order to promote.397 Furthermore, nine core international human rights treaties, and one optional protocol, have been adopted by States in order to respect, protect and fulfil a set of interrelated and indivisible civil, political, economic, social and cultural rights.398 Ten treaty bodies, i.e. committees of independent experts, were established to monitor the implementation of these sources.399 This section discusses the roles of the ohchr and the treaty bodies in providing international protection for pmdcc.
Although no explicit right to climate and disaster protection is enshrined in international human rights treaties, the ohchr has recognised that climate
The ohchr’s work on disasters and climate change have primarily been aimed at highlighting the essential obligations and responsibilities of States.401 It has been discharging this vision by carrying out studies and discussions with a view to the adoption of resolutions by the unhrc.402
The first resolution addressing climate change and human rights was adopted in 2008 by the unhrc, which acknowledged, amongst other things, the relevance of the right to development and to have access to water, as well as the needs of present and future generations.403 Subsequent resolutions addressed several matters related to protection in the context of climate change, including the disproportionate impact of climate change on persons with disabilities, as well as older persons.404 These resolutions play a pivotal
Treaty bodies also play a significant role in interpreting the obligations of States in the context of disasters and climate change.406 In September 2019, five treaty bodies – CEDAWCom, CESCRCom, CRMWCom, CRCom and CRPDCom – published a joint statement on human rights and climate change.407 The statement urged all States to ‘take into consideration their human rights obligations as they review their climate commitments’.408 It added that human rights mechanisms have an important role to play in ‘ensuring that States avoid taking measures that could accelerate climate change, and that they dedicate the maximum available resources to the adoption of measures aimed at mitigating climate change’.409 Here, the joint statement focused on the role of preventing future foreseeable harm to the effective enjoyment
The statement also highlighted that the risk of harm from climate change is particularly high ‘for those segments of the population already marginalised or in vulnerable situations or that, due to discrimination and pre-existing inequalities, have limited access to decision-making or resources, such as women, children, persons with disabilities, indigenous peoples and persons living in rural areas’.412 In response, the five treaty bodies recommended seeing persons in vulnerable situations not as victims, but as ‘agents of change’.413 One important consequence of this approach is that it guarantees the participation of ‘essential partners in the local, national and international efforts to tackle climate change’.414 In this regard, States have a positive duty to mandate human rights due diligence and ‘protect and defend effectively the rights of environmental human rights defenders, including women, indigenous and child environmental defenders’.415
5. Migrant workers and members of their families are forced to migrate because their States of origin cannot ensure the enjoyment of adequate living conditions, due to the increase in hydrometeorological disasters, evacuations of areas at high risk of disasters, environmental degradation and slow-moving disasters, the disappearance of small island states due to rising sea levels, and even the occurrence of conflicts over access to resources. Migration is a normal human adaptation strategy in the face of the effects of climate change and natural disasters, as well as the only option for entire communities and has to be addressed by the United Nations and the States as a new cause of emerging migration and internal displacement.
6. In that regard, States must address the effects of climate change, environmental degradation and natural disasters as drivers of migration
and ensure that such factors do not hinder the enjoyment of the human rights of migrants and their families. In addition, States should offer complementary protection mechanisms and temporary protection or stay arrangements for migrant workers displaced across international borders in the context of climate change or disasters and who cannot return to their countries.416
In their future of work, the treaty bodies committed to keep under review the impacts of climate change and disasters on the rights holders protected under their respective treaties.417 A great example is the landmark Sacchi et al. decision on the CRCom in 2021, where 16 children from various nationalities submitted communication under the Third Optional Protocol of the uncrc, requesting the CRCom to determine that climate change represents a children’s rights crisis.418 The petitioners argued that their rights to life and health, the priorisation of a child’s best interests, and the cultural rights of the petitioners from indigenous communities were being violated by the respondent States – namely, Argentina, Brazil, France, Germany and Turkey – due to their disregard of the measures needed to prevent and mitigate climate change.419
Although the CRCom found that the communication was inadmissible because the petitioners had not exhausted domestic remedies in the respondent countries, it noted that ‘climate change has an adverse effect on the enjoyment of rights by individuals both within and beyond the territory of the State
As this section has demonstrated, the ohchr and the treaty bodies play an important role in interpreting the binding obligations of States under international human rights treaties in relation to disasters and climate change. Human rights are central to enabling the creation of a meaningful international protection mechanism for pmdcc.423 Knowing this, the civil society and Indigenous People’s organisations have called for the creation of a UN Special Rapporteur on Human Rights and Climate Change since 2010.424 In 2021, the unhrc recognised for the first time that having a clean, healthy and sustainable environment is a fundamental right and created a new Special Rapporteur on the Protection of Human Rights in the Context of Climate Change.425 Such a new mandate has the potential to further build on the work of John Knox, the Special Rapporteur on Human Rights and the Environment at the time, who
2 Relevant International Rules and Principles
This section examines the principle of non-refoulement under international law, the protection of displaced persons and the protection of persons in the event of disaster. The analysis critically engages with, first, the substance of these rules and principles and, second, the procedural mechanisms created for their promotion and enforcement, in order to flesh out the legal gap in the international protection of pmdcc.
2.1 Non-refoulement
The principle of non-refoulement (non-return) prohibits States from transferring or removing a person from a place of safety within their jurisdiction or under their effective control to a place where there is a risk that they may face a qualifying type of harm.427 Notably expressed under the Refugee Convention, non-refoulement has reached beyond the sphere of refugee law to offer broader protection with the express articulation of the prohibition under international human rights law.428 Currently, the prohibition of non-refoulement applies to all persons on the move at all times, irrespective of migration status or the
No Contracting State shall expel or return (‘refouler’) a refugee in any manner whatsoever to the frontiers of territories where his life or freedom would be threatened on account of his race, religion, nationality, membership of a particular social group or political opinion.430
This prohibition serves the purpose of protecting the interests and rights of asylum seekers, as well as receiving States and third States. Asylum seekers are protected under the prohibition of non-refoulement from being sent back to a place where they are likely to face harm.431 Receiving States are protected under Section 2 of Article 33 of the Refugee Convention, which allows States to return the asylum seeker if the person ‘constitutes a danger to the community’ of the receiving State or if there are ‘reasonable grounds’ for regarding them as a ‘danger to the security’ of the receiving State.432 Finally, the principle of non-refoulement is a significant safeguard against unilateral measures to ‘dump’ refugees in another country, which protects the interests of third States.433
With the expression of the prohibition of non-refoulement under international human rights agreements, most notably the cat and the iccpr, non-refoulement is now formulated as a guarantee ‘that no one should be returned to a country where they would face torture, cruel, inhuman or degrading treatment or punishment and other irreparable harm’.434 The UNHRCom
The prohibition of non-refoulement under international human rights law broadens the protection guaranteed under international refugee law in at least two ways. First, the obligations under human rights law directly bind States, unlike the application of international refugee law, where States enjoy a degree of latitude in implementing their obligations by establishing and deciding domestic asylum procedures and outcomes.436 Second, under international human rights law, the principle operates without personal scoping restrictions, which can be contrasted with the five qualifying grounds for persecution under the Refugee Convention.437 The obligation of a State not to return a migrant therefore might be engaged irrespective of the causes of movement under international human rights law.438
A communication by Ioane Teitiota provided a special opportunity for the UNHRCom to interpret the applicability of the prohibition of non-refoulement to hmdcc.439 Teitiota is an I-Kiribati citizen who was deported from New Zealand along with his wife and children.440 In his communication to the UNHRCom, he argued that New Zealand violated his right to life by rejecting his asylum application.441 He argued that the severe impact of climate change
the effects of climate change and sea level rise forced him to migrate from the island of Tarawa in the Republic of Kiribati to New Zealand. The situation in Tarawa has become increasingly unstable and precarious due to sea level rise caused by global warming. Fresh water has become scarce because of saltwater contamination and overcrowding on Tarawa. Attempts to combat sea level rise have largely been ineffective. Inhabitable land on Tarawa has eroded, resulting in a housing crisis and land disputes that have caused numerous fatalities. Kiribati has thus become an untenable and violent environment for the author and his family.444
Against this backdrop, the UNHRCom recalled that the right to life ‘includes the right of individuals to enjoy a life with dignity and to be free from acts or omissions that would cause their unnatural or premature death’.445 It accepted that sea-level rise is ‘likely’ to render Kiribati uninhabitable.446 Yet, ‘the timeframe of 10 to 15 years’ could ‘allow for intervening acts’ by Kiribati, ‘with the assistance of the international community, to take affirmative measures to protect and, where necessary, relocate its population’.447 Kiribati ‘was taking adaptive measures to reduce existing vulnerabilities and build resilience to
There were essentially two reasons why the appeal to human rights protection failed in this case.451 First, the UNHRCom held that the danger faced was not specific enough to Teitiota and that climate change was indiscriminate in its effects on all inhabitants of Kiribati.452 Second, and relatedly, if a claim of non-refoulement is based on general conditions, then the applicant must provide ‘substantial grounds for believing that there is a real risk of irreparable harm’ to the enjoyment of a protected right.453
The dissenting opinion of Duncan Laki Muhumuza criticised the insistence on demonstrating a greater risk of harm than the general population.454 As he put it, ‘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’.455
The Vasilka Sancin’s individual opinion similarly criticised the majority opinion, and stated that the onus should have been on New Zealand to show that Teitiota and his family in fact enjoy access to ‘safe drinking water’ in Kiribati, in order to comply with New Zealand’s positive duty to protect life from risks arising from known natural hazards.456 Instead, Teitiota was expected to substantiate his claim that he did not have access to ‘potable water’.457
Commentators also pointed out the relevance of the prohibition of inhumane and degrading treatment under Article 7 of the iccpr, which the UNHRCom did not directly address – largely due to the fact that the communication was filed under Article 6 of the iccpr, which protects the right to life.458 According to this line of argument, in cases where an applicant can
In the author’s view, the Teitiota decision demonstrates that the international protection of pmdcc that is proposed in this book needs to expressly state the application of the principle of non-refoulement. In the absence of a clear articulation to this effect, a protection gap simply emerges. As this section has demonstrated, the interpretation of the right to life under Article 6 of the iccpr was not able to afford protection to Teitiota and his family from being returned to Kiribati.
2.2 Protection in the Event of Displacement
Internal displacement has been an issue at the international level for a considerable time, with various ios and other actors providing relief to people who flee their homes to escape conflict, violence and disaster.460 Recently, there
persons or groups of persons who have been forced or obliged to flee or to leave their homes or places of habitual residence, in particular as a result of or in order to avoid the effects of armed conflict, situations of generalized violence, violations of human rights or natural or human-made disasters, and who have not crossed an internationally recognized State border.466
idps are internationally protected under the cluster approach, which was established by the unga as a part of the Humanitarian Reform Agenda in 2005.470 Under the cluster approach, the responsibility for the protection of idps in the context of disasters is shared by the unhcr, ohchr and unicef, under the Global Protection Cluster (gpc).471 The 2020–2024 Strategic
However, the gpc’s role with respect to ‘climate-related disaster response’ and ‘climate preparedness’ is a work in progress.473 For instance, in order to unpack its role, the gpc organised a consultation event in 2020, with the suggestions including advocating for ‘climate refugees’, incorporating climate change as a key focus, identifying different protection concerns and coordinating ‘all actors worldwide’ by creating a platform.474
Concomitantly, two international cooperative initiatives have been established to address the protection needs of idps, including in the context of disasters. Spearheaded by unhcr, UN ocha and the Special Rapporteur on the Human Rights of idps, the gp20 Plan of Action was launched in 2018.475 The plan particularly aims to advance ‘prevention’, ‘protection’ and ‘solutions’ for idps, by focusing on the prevention of the conditions that cause displacement, improving the lives of people already displaced and encouraging more inclusive, coherent and strategic action among stakeholders engaged with and affected by internal displacement ‘no matter the cause’.476
Turning to cross-border displacement, an important State-led consultative process was launched by Switzerland and Norway in 2012.480 Named after Fridtjof Nansen, the first High Commissioner for Refugees, the Nansen Initiative aimed to address the challenges of cross-border displacement in the context of disasters and climate change.481 After a round of discussions and consultations in Central America, South Asia, the Greater Horn of Africa and the Pacific, the Agenda for the Protection of Cross-Border Displaced Persons in the Context of Climate Change (Protection Agenda) was established and endorsed by 109 governmental delegations at a global intergovernmental meeting in 2015.482
The Protection Agenda comprises three parts and three annexes.483 The parts concern (i) protecting cross-border disaster-displaced persons, (ii)
The Protection Agenda stresses that the ‘current and emerging realities call for increased preparedness, solidarity and cooperation by States, (sub-) regional organisations and the international community to prevent, avoid, and respond to disaster displacement and its causes’.486 This is transposed into application via the priority areas for future action, which call for, amongst other things, collecting data, strengthening the management of disaster displacement risk in the country of origin and enhancing the use of humanitarian protection measures.487
According to its strategy for 2019–2022, the pdd will continue to actively participate in international platforms concerning climate change, disaster risk reduction and human rights.490 In particular, the Protection Agenda and the work of the pdd have been recognised by States in the recently adopted Global Compact for Migration.491 pdd aims to be involved in the follow-up and implementation of the Global Compacts for Migration and on Refugees, deepening the interaction between international migration and refugee regimes with environmental factors.492
It must be noted, however, that the pdd’s work – similar to the Protection Agenda – does not aim to expand States’ legal obligations under international law.493 In this sense, the work of the pdd, and the Protection Agenda itself, can be interpreted as promoting current best practices, instead of normatively challenging them in order to raise them up to a higher degree of legal obligation.494
As this section has demonstrated, internal and cross-border displacement in the context of disasters and climate change are addressed to an extent under
2.3 Protection in the Event of Disasters
Influenced largely by the challenges raised by the 2004 tsunami affecting the Indian Ocean, the ilc decided in 2007 to include in its programme of work the topic ‘Protection of Persons in the Event of Disasters’.496 On the basis of eight reports submitted by the Special Rapporteur Eduardo Valencia-Ospina, as well as the comments provided by States and other relevant actors, the ilc adopted the final text of the Draft Articles on the Protection of Persons in the Event of Disasters (Draft Articles) in 2016.497 The ilc’s Draft Articles in this area represent a significant step towards the development of legislation.498 Since 2020,
It is important to clarify that the Draft Articles do not provide an international framework for the protection of pmdcc. Although, by virtue of the principle of non-discrimination, the Draft Articles apply to all persons in the event of a disaster, regardless of their nationality, the aim is not to address the admission, stay and return of non-citizens.500 Instead, the Draft Articles aim to ‘facilitate the adequate and effective response to disasters, and reduction of the risks of disasters, so as to meet the essential needs of the persons concerned, with full respect for their rights’.501
With this purpose, the Draft Articles, consisting of a preamble and 18 draft articles, are designed to reflect two dimensions.502 The vertical/human dimension acknowledges human dignity, human rights and humanitarian principles as reminders of the existing positive and negative obligations of States in disaster scenarios.503 The horizontal dimension, on the other hand, mainly addresses the legal relations among the affected States and assisting actors.504 The primary role of the affected State in ensuring the protection of persons
The unga has taken note of the Draft Articles, and invited governments to submit comments for the elaboration of a binding convention.506 In November 2020, a lively debate took place at the Sixth Committee of the unga on this issue.507 Several delegations supported the elaboration of an international convention on the basis of the Draft Articles, due to reasons such as the significance of the topic, the need to facilitate international cooperation in this area, the need to contribute to reaching sdg 13 and the way in which the Draft Articles are progressively developing international law governing disaster response.508
Climate change played a role in the statements of several delegations who showed support for the elaboration of a convention.509 For instance, Jamaica emphasised the increased frequency and severity of naturally occurring disasters and the growing impact of climate change on vulnerable States.510 Tonga,
Several delegations expressed the view that the topic could be best addressed through guidelines and practical cooperation or found the elaboration of a convention premature.513 Malaysia, for instance, was of the view that the elements of the Draft Articles that ‘seek to develop or create new duties or obligations would, for the time being, seem to be more appropriately pursued as best practice principles or guidelines’.514 Malaysia justified its position based on the existing body of international, regional and domestic law, and considered the ilc’s work to be ‘most valuable where it assists States to understand and implement their prevailing obligations’.515 Furthermore, Israel held that ‘undertaking to engage in a protection mission should not be considered in terms of legal rights and duties’, and called for the Draft Articles to remain as guidelines or guiding principles.516 Similarly, the US expressed its position that this issue was best approached through the provision of practical guidance and cooperation.517
Although the conclusion of a treaty is favoured especially by the project’s Special Rapporteur and the UN Secretary-General, the willingness of States to participate in this formal venture has yet to be demonstrated.520 The issue will be discussed during the 76th session of the unga, which is scheduled to open on 14 September 2021.521 A treaty on this topic would represent a milestone in clarifying the legal rights and obligations of affected States, affected persons, as well as assisting States and other assisting actors.522 However, as the Draft Articles currently stand, the international protection of pmdcc is not addressed. Therefore, the proposed international protection of pmdcc could build on the Draft Articles and their ongoing elaboration at the unga.
3
Sea-level rise prompts many novel legal challenges in international law.523 One question relates to statehood: what are the legal implications should the territory and population of a State disappear?524 Another question relates to the law of the sea: how does the inundation of low-lying coastal areas and of islands impact their baselines and maritime zones?525 Yet another question concerns forced migration and human rights: what protection do persons directly impacted by sea-level rise enjoy?526 This section discusses the ongoing work by the ila and the UN ilc to address the impact of sea-level rise under international law, as well as the prospects of the international protection of pmdcc.
The ipcc identified two primary contributors to sea-level rise: (i) the expansion of the ocean as it warms and (ii) the transfer of water currently stored on land to the ocean, particularly from land ice (glaciers and ice sheets).527 The warming of our oceans and melting of ice are a central part of the Earth’s response to increasing ghg concentrations.528 The rate of sea-level rise during the 21st century is projected to be faster than during the 20th century.529 Whereas low-emission scenarios show a very likely rise of at least 0.3 metres above 2000 levels by 2100, highest-emission scenarios show a 2.5 metres rise by the same year.530 Perhaps the most unsettling fact yet is that even if ghg concentrations are stabilised, the sea level will continue to rise for centuries.531
Although more than 70 States are or are likely to be directly affected by sea-level rise, it is unarguable that small island states stand on the frontline.532
The ila and the UN ilc have been working to address these issues.535 The ila Committee on International Law and Sea Level Rise (ila Committee) was established in 2012, following the report of the ila Committee on Baselines under International Law of the Sea which acknowledged that sea-level rise was an issue that extended beyond baselines and the law of the sea.536 The newly established committee decided to examine the issue from three perspectives: (i) the law of the sea, (ii) forced migration and human rights, and (iii) issues of statehood and international security.537
The remaining five principles specifically refer to human mobility in the context of sea-level rise, with an emphasis on the evacuation, planned relocations, migration, and internal and cross-border displacement of affected persons.542 Here, the Sydney Declaration declares that States ‘should’ take several measures.543 For instance, in Principle 7, the ila Committee supports the facilitation of migration as an adaptation strategy, expressing the view that States ‘should’ recognise temporary, circular or permanent migration, review existing domestic laws – as well as bilateral and regional migration arrangements – and consider new laws and agreements, in accordance with applicable international human rights law and international labour law.544
According to Principle 9, States ‘should’ admit persons displaced across borders in the context of disasters linked to sea-level rise, if the persons are ‘personally and seriously at risk of, or already affected by, a disaster, or if their State of origin is unable to protect and assisted them due to the disaster (even if temporarily)’.545 Furthermore, States ‘should’ not return persons ‘to territories where they face a serious risk to their life or safety or serious hardship, in particular due to the fact that they cannot access necessary humanitarian assistance or protection’.546
The UN ilc, for its part, decided to include the topic ‘sea-level rise in international law’ in its programme of work for 2019, establishing an open-ended Study Group on the topic, to be co-chaired on a rotating basis by ilc members Nilüfer Oral, Patricia Galvão Teles, Bogdan Aurescu, Yacouba Cissé and Juan José Ruda Santolaria.547 The proposal by the fsm for the inclusion of this topic on the long-term programme of the ilc was highly influential in prompting the ilc to consider this topic.548
The Study Group aims to look at the legal implications of sea-level rise, with respect to three main areas: the law of the sea, statehood and the protection of the persons affected.549 It will not examine causation, responsibility, liability or the protection of the environment and climate change per se.550 The outcome will be a final report of the Study Group, accompanied by a set of conclusions on its work.551 The Study Group aims to perform ‘a mapping exercise of the legal questions raised by sea-level rise and its interrelated issues … This effort could contribute to the endeavors of the international community to respond to these issues and to assist States in developing practicable solutions in order to respond effectively to the issues prompted by sea-level rise’.552
The first issues paper published by the Study Group, prepared by Bogdan Aurescu and Nilüfer Oral, was released in 2020 and examined the issues relating to the law of the sea.553 Governments, as well as other relevant actors, contributed to this process.554 Moving forward, the Study Group Members Juan José Ruda Santolaria and Patricia Galvão Teles will focus on issues related to
In the author’s view, both the Sydney Declaration and the future work of the ilc on the protection of persons affected by sea-level rise represent highly important foundations for a legal rule on the international protection of pmdcc. As this section has discussed, the ila Committee has compiled significant principles for the protection of persons displaced in the context of sea-level rise. The UN ilc Study Group is currently undertaking its mapping exercise on the protection of persons affected. These collaborative exercises demonstrate that there is an urgent and undeniable need to address the legal gap in the international protection of pmdcc.
4 Conclusion
This chapter has dealt with the legal gap that persists in international law when it comes to the international protection of pmdcc. It has examined the relevant international treaty regimes (i.e. the refugee regime, the climate change regime, the desertification regime, the labour regime, trade regime and the human rights regimes), the relevant international rules and principles (i.e. the principle of non-refoulement, protection in the event of displacement and protection in the event of disasters), and the novel challenge brought by sea-level rise in international law.
The analysis has shown that the evolution of international cooperation to address hmdcc has been dramatic, resulting largely from new non-binding instruments (such as reports, guidelines, resolutions and agendas) and developments in practice (such as the Teitiota decision of the UNHRCom or the implementation of the Protection Agenda).
Second, the actors in relevant treaty regimes have retained their distinctive identities and studied the issue of hmdcc from their own perspectives and mandates. The formation of the tfd under the international climate change regime has contributed to breaking down this ‘silo approach’.556 Multi-disciplinary and multi-stakeholder approaches are particularly important for
Third, despite the considerable interest in and awareness of the need to address hmdcc, there is no legally binding obligation to protect pmdcc at the international level. Means and methods of accountability should be made available to create a global response and provide international protection to pmdcc.557
See Mostafa M Naser, The Emerging Global Consensus on Climate Change and Human Mobility (Routledge 2021); Sumudu Atapattu, ‘Climate change and displacement: protecting “climate refugees” within a framework of justice and human rights’ [2020] 11 Journal of Human Rights and the Environment 1, 86–113.
For instance, see Chapter 1.3 of this book for an examination of the recently adopted Global Compacts for Migration and on Refugees.
Although, as argued in Chapter 4.2 of this book, the international protection of pmdcc as a legal rule can derive from more general principles and rules of international law concerning the basic rights of the human person.
On treaty regimes, see Maria Fogdestam Agius, ‘Treaty Regimes in International Law’ in Maria Fogdestam Agius, Interaction and Delimitation of International Legal Orders (Brill 2015) 28–55; Study Group on the Fragmentation of International Law, Report on the Fragmentation of International Law: Difficulties Arising From the Diversification and Expansion of International Law UN Doc. a/cn.4/l.682 (April 13, 2006) (finalised by Martti Koskenniemi).
Kälin and Schrepfer (n 72).
ilc, ‘Sea Level Rise in Relation to International Law: First Issues Paper by Bogdan Aurescu and Nilüfer Oral, Co-Chairs of the Study Group on Sea-level Rise in Relation to International Law’ (28 February 2020) UN Doc a/cn.4/740; ilc, ‘Report on the work of the seventieth session’ (30 April-1 June and 2 July-10 August 2018) UN Doc A/73/10, 326; ila, International Law and Sea Level Rise, Sydney Conference Report (2018). Also see ila, Committee on International Law and Sea Level Rise, Resolution 6/2018.
For a discussion on the concept of duty-bearers, see Wouter Vandenhole, ‘Obligations and responsibility in a plural and diverse duty-bearer human rights regime’ in Wouter Vandenhole (ed), Challenging Territoriality in Human Rights Law (Routledge 2015).
Goeffrey Parker, Global Crisis: War, Climate Change and Catastrophe in the Seventeenth Century (Yale Univeristy Press 2013).
Myron Gutmann and others, ‘Two Population-Environment Regimes in the Great Plains of the United States, 1930–1990’ [2006] 27 Population and Environment 2, 191–225.
Marco Armiero and Richard Tucker (eds), Environmental History of Modern Migrations (Routledge 2017); William Yardley, ‘Alaskan Town Seeks Lifeline amid Climate Change’ (The New York Times 2007) <
In fact, there was a large disregard of environmental factors from migration studies during most of the 20th century. Since the 1980s, there has been a ‘rebirth’ of the migration-environment nexus. Piguet and others identified four main trends to explain this disregard in literature. First, a powerful Western-centric idea claimed that technological progress would decrease the influence of nature on human life and hence, on migration. Second, environment-based explanations of migration were rejected to the benefit of socio-cultural approaches or Marxist/economist perspectives. Third, the rise of economic paradigm in migration theory meant that economic factors were given most of the central role to explain human movement. Finally, forced migration was premised on strong political factors according to the idea that States are making refugees, which failed to include the role of our environment. See Piguet, Pecoud and Guchteneire (n 29) 3–4. See also, Etienne Piguet, “From Primitive Migration” to “Climate Refugees”: The Curious Fate of the Natural Environment in Migration Studies’ [2012] 103:1 Annals of the Association of American Geographers 148.
The discussions evolved through two polarised camps. The first camp, the so-called ‘alarmists’ or ‘maximalists’, ‘extract[ed] the environmental variable from a cluster of causes and proclaim[ed] the associated out-migration to be the direct result of environmental degradation’. They also viewed the human movement-environment nexus as a potential source of conflict and security threat that could be caused by ‘flocks’ of ‘environmental refugees’. The second camp, the so-called ‘sceptics’ or ‘minimalists’, started from the premise of the complexity of the migration-environment nexus. They criticised the ‘alarmist’ predictions for, amongst others, failing to account for the capacity of people to adapt to the adverse impacts of environmental changes. For alarmist viewpoints, see Jodi Jacobson, ‘Environmental Refugees: A Yardstick of Habitability’ [1988] Worldwatch Paper No: 86; Norman Myers and Jennifer Kent, ‘Environmental Exodus: An Emergent Crisis in the Global Arena’ [1995] Climate Institute. Also see Norman Myers and Jennifer Kent (ed), The New Atlas of Planet Management (University of California Press 2005); Arthur Westing, ‘The Environmental Component of Comprehensive Security’ (Sage 1989) 129–134. Ashok Swain, ‘Environmental Migration and Conflict Dynamics: Focus on Developing Regions’ [1996] 17 Third World Quarterly 5; Thomas Homer-Dixon, ‘On the Threshold: Environmental Changes as Causes of Acute Conflict’ [1991] 16 International Security 2, 76–116.; Angela Oels, From Securitization of Climate Change to Climatization of the Security Field (Springer 2012) 199; Wolfgang Kempf, ‘A sea of environmental refugees? Oceania in an age of climate change’ in Elfriede Hermann, Karin Klenke and Michael Dickhardt (eds), Form, Macht, Differenz: Motive und Felder ethnologischen Forschens (Göttingen: Göttingen University Press 2009). For the minimalist viewpoints, see UK Government (n 33) 27–28; Bettini, ‘Climate Barbarians at the Gate? A critique of apocalyptic narratives on climate refugees’ [2013] 45 Geoforum, 63–64; Alexander Betts, ‘Survival Migration: A New Protection Framework’ in Alynna Lyon and others (eds), Global Governance: A Review of Multilateralism and International Organizations (Brill Nijhoff 2020); Emily Wilkinson and others, ‘Climate-induced migration and displacement: closing the policy gap’ (odi 2016); March Helbling, ‘Attitudes towards climate change migrants’ [2020] 160 Climatic Change, 89–102.
ipcc, ‘First Assessment Report’ (wmo 1990), para 5.10.10.
McAdam summed up the ‘general consensus among migration scholars’ as follows: ‘(a) climate change-related movement is a multi-causal phenomenon; most movement will be within countries rather than across borders; (b) climate-change related movement is likely to take different forms, and will require a variety of responses at the local, national, regional and international levels; (c) migration is a rational adaptation strategy to climate change processes, and should be supported as such; most people do not want to leave their homes, and sometimes the most vulnerable will not be able to move; (d) there is a need to strengthen legal, policy, institutional and administrative frameworks; planning and policy must be underpinned by a strong scientific and empirical basis; (e) policy needs to be proactive, not just remedial; (f) there is a need to strengthen operational and technical capacities, including through further funding; there must be sufficient budgetary support for long-term planning; (k) affected populations should be included in decision-making through participatory processes; (1) comprehensive approaches are needed-for example, migration management should be linked with other policy objectives, including climate change adaptation, disaster risk reduction, humanitarian responses and sustainable development; (m) multi-stakeholder partnerships, involving public and private service actors, need to be developed; and (n) all responses should be underpinned by basic human rights principles’. See Jane McAdam, Climate Change, Forced Migration and International Law (Oxford University Press 2012) 235–236.
Koko Warner, ‘Global environmental change and migration: Governance challenges’ [2010] 20 Global Environmental Change 3, 402–413.
Alexander Betts, ‘The Refugee Regime Complex’ [2010] 29 Refugee Survey Quarterly 1, 12–37.
ibid.
For instance, see Matter of Acosta, A-24159781, United States Board of Immigration Appeals, 23 November 2010; AF (Kiribati) [2013] nzipt 800413 (25 June 2013); Ioane Teitiota (n 83); Jane McAdam, ‘The Emerging New Zealand Jurisprudence on Climate Change, Disasters and Displacement’ [2015] 3(1) Migration Studies 131; Scott (n 14).
In the author’s view, the adoption of the Global Compact for Refugees settled this debate and States have endorsed the view that environmental factors alone are not grounds to qualify for a refugee protection. See Chapter 1.3.2 of this book for a more detailed discussion.
‘Ecological refugee’ was used in the report of the Worldwatch Institute, which is a Washington-based non-governmental organisation, established by environmentalist Lester Brown in 1974. The early projects of the organisation analysed the potential links between migration and environmental disruptions.
Lester Russell Brown, Patricia McGrath and Bruce Stokes, ‘Twenty Two Dimensions of the Population Problem’ [1976] Worldwatch Institute, 7–82.
Essam El Hinnawi, ‘Environmental Refugees’ [1985] 2 unep, 1–41.
Høeg, E. & Tulloch, C. D, ‘Sinking strangers: Media representations of climate refugees on the bbc and Al Jazeera’ [2013] 43 Journal of Communication Inquiry 3, 225–248; David Keane, ‘Environmental causes and consequences of migration: A search for the meaning of “environmental refugees”’ [2004] 16 Georgetown Environmental Law Review, 209–223.
El Hinnawi (n 184) 466; Diane Bates, ‘Environmental Refugees? Classifying Human Migrations Caused by Environmental Change’ [2002] 23 Population and Environment 5, 465–477.
El Hinnawi (n 184) 466.
ibid.
Astri Suhrke and Annamaria Vinsentin, ‘The Environmental Refugee: A New Approach’ 1991; Francois Gemenne, Environmental Changes and Migration Flows: Normative Frameworks and Policy Responses (PhD thesis, Institut d’Etudes Politiques de Paris and Université de Liége 2009).
unhcr ExCom, ‘Report of the Working Group on Solutions and Protection to the Forty-second Session of the Executive Committee of the High Commissioner’s Programme’ (12 August 1991) UN Doc ec/scp/64, paragraph 8.
ibid.
Bettini (n 163) 63. See Steven Saphore, ‘Why Canada needs to think about accepting climate change refugees’ (cbc, 21 May 2021) <
Sanjay Gupta, ‘Pacific swallowing remote island Chain’ (cnn, 2007) <
Dina Ionesco, ‘Let’s Talk About Climate Migrants, Not Climate Refugees’ (UN Sustainable Development Goals Blog 2019) <
See Republic of the Maldives Ministry of Environment, Energy and Water, ‘Report on the First Meeting on Protocol on Environmental Refugees: Recognition of Environmental Refugees in the 1951 Convention and 1967 Protocol Relating to the Status of Refugees’ (Male, Maldives, 14–15 August 2006) mentioned in Frank Biermann and Ingrid Boas, ‘Protecting Climate Refugees: The Case for a Global Protocol’ [2008] 50 Environment: Science and Policy for Sustainable Development 6, 8–17.
See ‘Maleì Declaration on the Human Dimension of Global Climate Change’ (14 November 2007) 1 <
See Harriet Grant, James Randerson and John Vidal, ‘UK Should Open Borders to Climate Refugees, Says Bangladeshi Minister’ (The Guardian, 4 December 2009) <
See, for instance, Tanja Dreher and others, ‘Climate Refugees or Migrants? Contesting Media Frames on Climate Justice in the Pacific’ [2014] 9 Environmental Communication 1, 1–19; Daniel Faber and others, ‘Give me Shelter from the Storm: Framing the Climate Refugee Crisis in the Context of Neoliberal Capitalism’ [2017] 28 Capitalism Nature Socialism 3, 1–17.
See Benoit Mayer and Francois Crépeau (eds), Research Handbook on Climate Change, Migration and the Law (Edward Elgar 2017); Kate Pincock and Alexander Betts, The Global Governed? Refugees as Providers of Protection and Assistance (cup 2020). For instance, see Matter of Acosta (n 180); Ioane Teitiota (n 83); McAdam (n 176) 131; Scott (n 14).
unhcr, ‘Legal considerations regarding claims for international protection made in the context of the adverse effects of climate change and disasters’ (1 October 2020) <
Brian Opeskin, Richard Perruchoud, Jillyanne Redpath-Cross, Foundations of International Migration Law (Cambridge University Press 2012) 178. Also see Horvath v Secretary of State for the Home Department [2000] ukhl 37, [2001] AC 489; Applicant A v Minister for Immigration and Ethnic Affairs [1997] hca 4, [1997] 190 clr 225; Canada (Attorney General) v Ward [1993] 2 scr 689.
McAdam (n 176) 186.
Sarah M. Munoz, ‘Environmental Mobility in a Polarized World: Questioning the Pertinence of the “Climate Refugee” Label for Pacific Islanders’ [2021] Journal of International Migration and Integration; Pincock and Betts (n 199); Mayer and Crépeau (eds) (n 199).
Caroline Zickgraf, ‘Climate change, slow onset events and human mobility: reviewing the evidence’ [2021] 50 Current Opinion in Environmental Sustainability, 21–30; UK Government (n 33).
McAdam (n 176) 186.
Kelly Buchanan, ‘New Zealand: ‘Climate change refugee’ case overview’ [2013] Global Legal Research Center; Ingrid Boas and others, ‘Climate migration myths’ [2019] 9 Nature Climate Change, 901-903.
Etienne Piguet, ‘From “primitive migration” to “climate refugees”: The curious fate of the natural environment in migration studies’ [2013] 103 Annals of the Association of American Geographers 1, 148–162.
Andrew Baldwin, Christiane Fröhlich and Delf Rothe, ‘From climate migration to anthropocene mobilities: Shifting the debate’ [2018] 14 Mobilities 3, 289–297; Jane McAdam, ‘Swimming Against the Tide: Why a Climate Change Displacement Treaty is Not the Answer’ in Mary Crock (ed), Refugees and Rights (Routledge 2015).
In the case of A and Another before the High Court of Australia, Dawson J reflected this view: ‘By including in its operative provisions the requirement that a refugee fear persecution, the Convention limits its humanitarian scope and does not afford universal protection to asylum seekers. No matter how devastating may be the epidemic, natural disaster or famine, a person fleeing them is not a refugee within the terms of the Convention’. Applicant A (n 201).
UN High Commissioner for Refugees Antonio Guterres, ‘Migration, Displacement and Planned Relocation’ (31 December 2012) <
McAdam (n 176) 187.
John Podesta, ‘The Climate crisis, Migration and Refugees’ (Report Brooklings, 25 July 2019) <
Mayer and Crépeau (eds) (n 199) 15. Also see Scott (n 14) 1–8.
Mayer and Crépeau (eds) (n 199) 15.
Nansen Initiative, Agenda for the Protection of Cross-Border Displaced Persons in the Context of Disasters and Climate Change adopts this terminology. The Nansen Initiative, Agenda for the Protection of Cross-Border Displaced Persons in the Context of Disasters and Climate Change, <
See, for instance, Johannes Luetz and Peni Hausia Havea, ‘We’re not Refugees, We’ll Stay Here Until We Die! Climate Change Adaptation and Migration Experiences Gather From the Tulun and Nissan Atolls of Bougainville, Papua New Guinea’ in Leal Filho (ed), Climate Change Impacts and Adaptation Strategies for Coastal Communities: Climate Change Management (Springer 2018); Jane McAdam, ‘Refusing “refugee” in the Pacific: (de)constructing climate-induced displacement in international law’ in Etienne Piguet, Antoine Pecoud and Paul de Guchteneire (eds), Migration and Climate Change (cup and unesco Publishing 2011).
Luetz and Havea (n 217) 14.
unhcr, ‘Climate change and disaster displacement’ <
For instance, see the case of Haitians being persecuted after Cyclone Dorian hit the Bahamas in October 2019. Nisha Stickles and Hannah Jiang, ‘Haitian migrants, homeless from Hurricane Dorian, could now be deported from the Bahamas’ (Business Insider, 21 October 2019) <
Tim Krieger, Diana Panke and Michael Pregernig (eds), Environmental Conflicts, Migration and Governance (Bristol University Press 2020); unicef United Kingdom, ‘No Place to Call Home: Protecting Children’s Rights When the Changing Climate Forces Them to Flee’ (unicef United Kingdom 2017); unhcr, ‘Legal Considerations on Refugee Protection for People Fleeing Conflict and Famine Affected Countries’ (unhcr 2017).
For a case study of Italy, see Elisa Fornalé, ‘Floating Rights in Times of Environmental Challenges’ in Cataldi and others (eds), Migration and Fundamental Rights: the Way Forward (Napoli: Editoriale Scientifica 2019).
Organization of African Unity, Convention Governing the Specific Aspects of Refugee Problems in Africa (10 September 1969) 1001 unts 45 (oau Convention).
Colloquium on the International Protection of Refugees in Central America, Mexico and Panama, Cartagena Declaration on Refugees (22 November 1984) (Cartagena Declaration).
oau Convention (n 222) Article 1(2); Cartagena Declaration (n 223) N.220, Paragraph iii(3). See Federica Cristani, Elisa Fornalé and Sandra Lavenex, ‘Environmental Migration Governance at the Regional Level’ in Tim Krieger, Diana Panke and Michael Pregernig (eds), Environmental Conflicts, Migration and Governance (Bristol University Press 2020).
Sanjula Weerasinghe, ‘In Harm’s Way: International protection in the context of nexus dynamics between conflict or violence and disaster or climate change’ (unhcr 2018) <
James Hathaway, The Law of Refugee Status (Butterworths 1991) at pages 92–94; James Hathaway, ‘Food Deprivation: A Basis for Refugee Status?’ [2014] 81 Soc Res 327; Vikram Kolmannskog, ‘Climate Change, Environmental Displacement and International Law’ [2012] 24 J Int Dev 1071.
States in Central and South America have recognised Haitians applying for asylum following the 2010 earthquake as refugees under the Cartagena Declaration definition. For more information, see McAdam and others (n1) para 88.
Robert O. Keohane and David G. Victor, ‘The Regime Complex for Climate Change’ [2011] 9 Perspectives on Politics 1, 7–23; Daniel Bodansky, ‘The History of the Global Climate Change Regime’ in Urs Luterbacher and Detlef F. Sprinz, International Relations and Global Climate Change (Massachusetts Institute of Technology 2001) 23–40.
In its sixth assessment report, the Working Group ii of the ipcc assessed the impacts of climate change on adaptive migration, involuntary displacement, organised relocation of populations from sites highly exposed to climatic hazards, and immobility. It has built a typology, supported by real-life examples. See ipcc (n 4), 1342–1351.
Conference of the Parties to the United Nations Framework Convention on Climate Change, Report of the Conference of the Parties on its Twenty-First Session, 21st sess, (29 January 2016) UN Doc fccc/cp/2015/10/Add. 1 <
Conference of the Parties to the United Nations Framework Convention on Climate Change, ‘Report of the Conference of the Parties on its Nineteenth Session’ (19th sess, 31 January 2014) UN Doc fccc/cp/2013/10/Add. 1 <
Conference of the Parties to the United Nations Framework Convention on Climate Change, ‘Report of the Conference of the Parties on its Twenty-First Session’ (21st sess, 29 January 2016) UN Doc fccc/cp/2015/10/Add. 1.
These members are representatives from the undp, unhcr, iom, ilo, Advisory Group on Climate Change and Human Mobility, ifrc, pdd, unfccc ngo constituency group ‘Youth ngos’, unfccc Adaptation Committee, unfccc ldcs Expert Group, and ExCom of wim. See Task Force on Displacement (n 1).
Decision 10/cp.24 fccc/cp/2018/10/Add.1; unfccc (n 15).
The examples given for relevant policy agendas are: the Sendai Framework, sdgs, World Humanitarian Summit, the gfmd, and the Global Compacts on Migration and Refugees. See unfccc (n 15) para 47 (d).
ibid para 51 (iii) (c).
ibid.
However, as Odeyemi notes, this aspect is not being incorporated in tfd’s reports to the cop. See Christo Odeyemi, ‘unfccc’s posture on displacement riskification: Conceptual suggestions’ [2021] 10 Progress in Disaster Science.
ibid. Also see Malin Mobjörk and others, ‘Climate-related security risks: towards an integrated approach’ (Stockholm International Peace Research Institute, Stockholm 2016).
For instance, the tfd paid attention to not replicating the work of the UN Network on Migration under the Global Compact for Migration. See ‘Meeting of the Task Force on Displacement (tfd4) Summary’ (7–9 September 2020) <
Atapattu (n 163) 86–113; Benoit Mayer, ‘Migration in the unfccc workstream on loss and damage: an assessment of alternative framings and conceivable responses’ [2017] 6 Transnational Environmental Law 1, 107–129.
tfd (n 240).
The report examines internal displacement in the context of the slow-onset adverse effects of climate change. See unga, ‘Human Rights of Internally Displaced Persons’ gaor 75th Session, Item 72 (b) of the provisional agenda, Promotion and protection of human rights: human rights questions, including alternative approaches for improving the effective enjoyment of human rights and fundamental freedoms, UN Doc A/75/207.
unfccc, ‘Report of the Executive Committee for the Warsaw International Mechanism for Loss and Damage associated with Climate Change Impacts’ (15 February 2019) unfccc/sb/2019/5/Add.1<
unfccc (n 15).
ibid.
unfccc, ‘Plan of Action’ <
The unfccc has 197 parties, including all UN Member States. See United Nations Framework Convention on Climate Change (adopted 9 May 1992, entered into force 21 March 1994) 1771 unts 108 <
Pierre Marc Johnson, Karel Mayrand and Marc Paquin, ‘The United Nations Convention to Combat Desertification in Global Sustainable Development Governance’ in Pierre March Johnson, Karel Mayrand and Marc Paquin (eds), Governing Global Desertification: Linking Environmental Degradation, Poverty and Participation (Routledge 2016) 1–10.
United Nations Convention to Combat Desertification in those Countries Experiencing Serious Drought and/or Desertification, Particularly in Africa (adopted 14 October 1994, entry into force 26 December 1996) 1954 unts 3 (uncccd) preamble.
Luca Salvati, ‘Economic Causes and Consequences of Desertification’ [2021] Oxford Research Encyclopedia of Environmental Science; Michelle Leighton, ‘Desertification and Migration’ in in Pierre March Johnson, Karel Mayrand and Marc Paquin (eds), Governing Global Desertification: Linking Environmental Degradation, Poverty and Participation (Routledge 2016) 43–58.
unccd (n 250) Article 6(d), Article 8(3)(e), Article 4(2) (d), Article 16 (g), and Article 18(1)(e).
ibid, Article 17 (1) (e).
See unccd (n 250) Annex ii, Article 2; Annex iii, Article 2(c).
ibid Annex I, Article 3 (e).
ibid article 8 (a).
ibid article 11 (f).
Andreas Rechkemmer, ‘Societal Impacts of Desertification: Migration and Environmental Refugees?’ in Hans Günter Brauch and others (eds), Facing Global Environmental Change (Springer 2009) 151–158.
United Nations Convention to Combat Desertification Committee for the Review of the Implementation of the Convention, ‘Overview of Panel Discussions and Global Interactive Dialogues During the Third Session of the Committee for the Review of the Implementation of the Convention’ (Third Session, 2–11 May 2005) <
iisd, ‘ccd cop-7 Highlights’ (Earth Negotiations Bulletin, Vol 4 No 183, 25 October 2005).
cric was was established by cop as a subsidiary body to the cop to assist it in regularly reviewing the implementation of the unccd. See Decision 1/cop.5, ‘Additional procedures or institutional mechanisms to assist in the review of hte implementation of the Convention’ iccd/cop (5)/11/Add.1 <
United Nations Convention to Combat Desertification Committee for the Review of the Implementation of the Convention, ‘Overview of Panel Discussions and Global Interactive Dialogues During the Third Session of the Committee for the Review of the Implementation of the Convention’ (Third Session, 2–11 May 2005) <
uncccd, ‘Decision 28/cop.13. The positive role that measures taken under the Convention can play to address desertification/land degradation and drought as one of the drivers that causes migration’ (15 September 2017) UN Doc iccd/cop(13)/21/Add.1.
iom and unccd, ‘Addressing the Land Degradation – Migration Nexus: the Role of the unccd’ (1 August 2019).
ibid.
ibid.
Ibid.
This is Strategic Objective 2, Expected Impact 2.4. See iccd, ‘The future strategic framework of the Convention: Draft decision submitted by the Chair of the Committee of the Whole’ (14 September 2017) iccd/cop(13)/L.18 <
icrmw is discussed under the international human rights regimes in Chapter 1.1.6.
ilo, ‘ilo Activities for environment and the world of work’ (Tripartite Advisory Meeting on Environment and the World of Work, ilo, 2–4 November 1992). ilo, ‘Decent work for sustainable development, Director-General’s Report I (A)’ (2007); ilo, “Decent work for sustainable development – the challenge of climate change’ (Governing Body Working Party on the Social Dimension of Globalization, 2007).
ilo, ‘Working in a changing climate: The Green Initiative: Report of the Director General to the International Labour Conference’, 106th Session (ilo, 2017); ilo, ‘Guidelines for a Just Transition Towards Environmentally Sustainable Economies and Societies for All’ (ilo, 2015).
ilo, ‘The Global Crisis: Causes, Responses and Challenges’ (ilo, 2011). See Sophia Kagan, Meredith Byrne, and Michelle Leighton, ‘Organizational Perspectives from the ilo’ in Benoit Mayer and Francois Crépeau (eds), Research Handbook on Climate Change, Migration and the Law (Edward Elgar 2017).
See Kagan, Byrne and Leighton (n 272).
ilo, Global Estimates on International Migrant Workers – Results and Methodology (ilo 2015).
Ryszard Cholewinski, ‘International Labour Migration’ in Brian Opeskin and others (eds), Foundations of International Migration Law (Cambridge University Press 2012).
unga Res 70/1 Transforming our world: the 2030 Agenda for Sustainable Development (21 October 2015) UN Doc a/res/70/1, targets 8.7 and 8.8.
ilo, multilateral framework on labour migration: Non-binding principles and guidelines for a rights-based approach to labour migration. 2006. Geneva. Paragraph 9(a).
Constitution of the ilo (1 April 1919) <
ilo, Multilateral framework on labour migration: Non-binding principles and guidelines for a rights-based approach to labour migration (ilo Geneva, 2008) para 8.
The ilo defines migrant workers as ‘all international migrants who are currently employed or unemployed and seeking employment in their present country of residence’. See ilo, Global Estimates on International Migrant Workers – Results and Methodology (ilo 2015).
Philip Alston, ‘Core labour standards and the transformation of the international labour rights regime’ [2004] 15 ejil 3, 457–521.
See, in general, Aziz Choudry, Just Work?: Migrant Workers’ Struggles Today (Pluto Press 2016); Michael Hasenau, ‘Part I: The Genesis of the Convention: ilo Standards on Migrant Workers: The Fundamentals of the UN Convention and Their Genesis’ [1991] 25 International Migration Review 4, 687–697.
See ilo, ‘ilo’s International Legal Framework on Labour Migration’ <
ilo Convention No. 87 concerning Freedom of Association and Protection of the Right to Organise (adopted 9 July 1948, entered into force 4 July 1950) 68 unts 17; ilo Convention No. 111 concerning Discrimination (Employment and Occupation) (adopted 25 June 1958, entered into force 15 June 1960) 362 unts 31; ilo Convention No. 118 concerning Equality of Treatment (Social Security) (adopted 28 June 1962) 7238 unts 940.
ilo Convention No. 87 concerning Freedom of Association and Protection of the Right to Organise (adopted 9 July 1948, entered into force 4 July 1950) 68 unts 17, article 2.
ilo Governing Body, ‘327th report of the Committee on the Freedom of Association’ (ilo 2002).
ilo, ‘Freedom of Association: Digest of decisions and principles of the Freedom of Association Committee of the Governing Body of the ilo’ (Fifth (revised) edition 2006), para 214.
International Labour Conference, Report of the Committee of Experts on the Application of Conventions and Recommendations (articles 19, 22, and 35 of the Constitution), Report iii (Part 1B), 101st session 2012, para 778.
ilo Convention No. 111 (n 284) art 1(1).
ibid art 2. International Labour Conference (n 288) para 776.
ilo Convention No. 118 (n 284) article 3(1).
ibid article 2.
ilo Convention No. 97 concerning Migration for Employment (Revised) (entered into force 22 January 1952); ilo Convention No. 143 concerning Migrant Workers (Supplementary Provisions).
ilo Recommendation R86: Migration for Employment Recommendation (Revised); ilo Recommendation R151: Migrant Workers Recommendation.
ilo, ‘Ratifications of CO97 – Migration for Employment Convention (Revised), 1949<
ilo Convention No. 97 (n 293) article 11(1).
ibid article 6(1).
ibid article 4. ilo Recommendation R86: Migration for Employment Recommendation (Revised).
ibid.
ibid.
ilo, ‘Ratifications of C143 – Migrant Workers (Supplementary Provisions) Convention’ <
ilo Convention No. 143 (n 293).
Cholewinski (n 75) 258. Also see Ryszard Cholewinski, International Migration Law: Developing Paradigms and Key Challenges (tmc Asser Press 2007).
ilo, ‘Ratifications of co97 – Migration for Employment Convention (Revised), 1949 <
ilo, ‘Multilateral Framework on Labour Migration: Non-binding Principles and Guidelines for a Rights-Based Approach to Labour Migration’ (ilo 2006) <
ibid.
ibid.
ibid.
ilo, Decent Work Agenda (1998). Also see Vicente Silva, ‘The ilo and the future of work: The politics of global labour policy’ [2021] Global Social Policy.
Gillian MacNaughton and Diane F. Frey, ‘Decent Work, Human Rights and the Sustainable Development Goals’ [2016] 47 Georgetown Journal of International Law, 607–664.
ilo, Working on a warmer planet: The effect of heat stress on productivity and decent work (ilo 2009). See Jorma Rantanen, Franklin Muchiri and Suvi Lehtinen, ‘Decent Work, ilo’s Response to the Globalization of Working Life: Basic Concepts and Global Implementation with Special Reference to Occupational Health’ [2020] International Journal of Environmental Research and Public Health.
ilo, ‘Statistical Report of the Decent Work Decade 2006–15: Asia-Pacific and the Arab States’ (ilo 2016).
ilo, ‘Ratifications of C143 – Migrant Workers (Supplementary Provisions) Convention’ <
ilo, ‘Multilateral Framework on Labour Migration: Non-binding Principles and Guidelines for a Rights-Based Approach to Labour Migration’ (ilo 2006) <
Piyasiri Wickramasekara, ‘Globalisation, International Labour Migration and Rights of Migrant Workers’ [2009] 29 Third World Quarterly 7, 1247–1264; Elisa Fornalé, ‘Regional migration governance and social protection of migrant workers’ in Oreste Foppiani, Oana Scarlatescu, Family, Separation, and Migration: An Evolution-Involution of the Global Refugee Crisis. Population, Family and Society (Peter Lang 2018) 107–120.
unescap and ilo, ‘Climate Change and Migration Issues in the Pacific’ (ilo 2014); ilo, ‘The employment impact of climate change adaptation: Input Document for the G20 Climate Sustainability Working Group’ (ilo 2018); ilo, ‘Future of Work for Climate Resilience in the Pacific Islands’ (ilo 2019); ilo, ‘Working on a Warmer Planet: The impact of heat stress on labour productivity and decent work’ (ilo 2019).
Andrew Baldwin and Elisa Fornalé, ‘Adaptive Migration: Pluralising the debate on climate change and migration’ [2017] 183:4 The Geographical Journal, 323.
The Pacific Climate Change and Migration Project <
ilo, ‘Enhancing the Capacity of Pacific Island Countries to Address the Impacts of Climate Change to Migration’ (1 June 2013–1 June 2015) <
UN, ‘Climate Change and Migration Issues in the Pacific’ (2014) <
The notion of migration as an adaptive mechanism has a long pedigree, with origins in evolutionary biology and environmental determinism. For Charles Darwin, adaptation meant the organic modification of species to better fit and flourish in their environment. Progressing in social sciences, especially in anthropology and archeology, the term adaptation became associated with how cultures or societies were able to respond to or cope with changes in their socio-economic systems. Human history shows that migration has been a part of this coping mechanism through, for instance, circular migration, nomadic pastoralism and transhumance. See UK Climate Change and Migration Coalition, ‘Climate Outreach and Information Network. Migration as Adaptation: exploring mobility as a coping strategy for climate change’ <
Frank Laczko and Etienne Piguet, ‘Regional Perspectives on Migration, the Environment and Climate Change’ in Etienne Piguet and Frank Laczko (eds), People on the Move in a Changing Climate: Global Migration Issues (Global Migration Issues, Vol. 2, Springer 2014) 16.
ibid.
Laurie Parsons and Jonas Ostergaard Nielsen, ‘The Subjective Climate Migrant: Climate Perceptions, Their Determinants, and Relationship to Migration in Cambodia’ [2020] 111 Annals of the American Association of Geographers, 971–988; Etienne Piguet, ‘Linking climate change, environmental degradation, and migration: a methodological overview’ [2010] wires Climate Change, 517–524; Caroline Zickgraf, ‘Keeping people in place: political factors of (im)mobility and climate change’ [2019] 8 Social Sciences 8, 228.
See Kagan, Byrne, and Leighton (n 272) 330.
ibid.
ilo, ‘World Employment Social Outlook 2018’ (2018).
ibid.
Elisa Fornalé, ‘The Future Role of Labor Mobility Mechanisms in the Context of Environmental Degradation: Building or Crumbling Adaptation Strategies?’ in Elisa Fornalé and Sophia Kagan, ‘Climate Change and Human Mobility in the Pacific Region: Plans, Policies and Lessons Learned’ (knomad Working Paper 31, 2017) <
ilo, ‘Climate change, displacement and labour migration’ <
Peter Van den Bossche and Werner Zdouc, The Law and Policy of the World Trade Organization (Cambridge University Press, 4th edn, 2017).
Thomas Cottier and Anirudh Shingal, ‘Migration, Trade and Investment: Towards a New Common Concern’ [2021] 55 Journal of World Trade 1, 51–76.
Fornalé (n 329).
Thomas Cottier (ed), The Challenge of wto Law: Collected Essays (The Blissett Group 2007).
wto, ‘Members and Observers’ <
General Agreement on Trade in Services 1994 (Marrakesh Agreement Establishing the World Trade Organization, Annex 1B, 1869 unts 183; 33 ilm 1167 (1994)).
Marion Panizzon, ‘A Ménage à Trois? gats Mode 4, epas, and Bilateral Migration Agreements’ [2010] 44 Journal of World Trade 6, 1207–1252.
Van den Bossche and Zdouc (n 331) 54–65.
William J Drake and Kalypso Nicolaidis, ‘Ideas, Interests and Institutionalisation: Trade in Services and the Uruguay Round’ [1992] 46 International Organisation 1, 37–100.
Ingo Borchert and others, ‘The Evolution of Services Trade Policy Since the Great Recession’ (World Bank Group, Policy Research Working Paper 9265, June 2020).
World Bank, ‘Services, value added (% of gdp)’ <
World Bank, ‘Trade in services (% of gdp) – European Union’ <
Laure Ritchie Dawson, ‘Labour Mobility and the wto: The Limits of gats Mode 4’ [2012] 51 International Migration 1, 1–23.
wto Document S/C/W/75; wto, ‘Background note on gats Mode 4 Measurement’ Meeting of the United Nations Technical Subgroup on Movement of Persons -Mode 4 (New York, 22 – 24 February 2006) <
Marion Panizzon, Gottfried Zürcher and Elisa Fornalé, ‘Introduction: Conceptualising a Pluralist Framework for Labour Migration’ in Marion Panizzon, Gottfried Zürcher and Elisa Fornalé (eds), The Palgrave Handbook of International Labour Migration: Law and Policy Perspectives (Palgrave 2015) 1–14.
gats (n 336) article 1(2).
ibid.
oecd, World Bank and iom, ‘A Quick Guide to the gats and Mode 4’ (Geneva, Palais des nations, 12–14 November 2003) <
wto, ‘Presence of Natural Persons (Move 4) Background Note by the Secretariat’(8 December 1998) S/C/W/75.
Jürgen Bast, ‘Commentary on the Annex on Movement of Natural Persons Supplying Services Under the Agreement’ in Rüdiger Wolfrum, Peter Tobias Stoll and Clemens Feinäugle (eds), wto – Trade in Services (Martinus Nijhoff 2008) 573–595.
Chetail (n 47) 95–97.
Rupa Chanda, ‘Movement of Natural Persons and the gats’ [2001] 24 The World Economy 5, 631–654.
Antonia Carzaniga, ‘The gats, Mode 4, and Pattern of Commitments’ in Aaditya Mattoo and Antonia Carzaniga (eds), Moving People to Deliver Services (The World Bank/oup 2003) 21–26.
Johanna Jacobsson, ‘gats Mode 4 and Labour Mobility: The Significance of Employment Market Access’ in Marion Panizzon, Gottfried Zürcher and Elisa Fornalé (eds), The Palgrave Handbook of International Labour Migration: Law and Policy Perspectives (Palgrave 2015) 61–95; Johanna Jacobsson, ‘Liberalisation of Service Mobility in the EU’s International Trade Agreements: As External as it Gets’ [2013] 15 European Journal of Migration and Law 3, 245–261.
Panizzon (n 337) 1221.
Natasha Ward, ‘Facilitating temporary movement’ in Rahel Kunz, Sandra Lavenex and Marion Panizzon, Multilayered Migration Governance: The Promise of Partnership (Routledge 2012).
Steve Charnovitz, ‘Trade Law Norms on International Migration’ in T Alexander Aleinikoff and Vincent Chetail (eds), Migration and International Legal Norms (tmc Asser Press 2003) 252.
Philip Martin, ‘Low-Skilled Labour Migration and Free Trade Agreements’ in Marion Panizzon, Gottfried Zürcher and Elisa Fornalé (eds), The Palgrave Handbook of International Labour Migration: Law and Policy Perspectives (Palgrave 2015) 205–230.
Anqi Wang, The Interpretation and Application of the Most-Favoured-Nation Clause in Investment Arbitration (Brill 2022); Tomer Broude, ‘Most-Favoured Nation Principle, Equal Protection, and Migration Policy’ [2010] 24 Georgetown Immigration Law Journal 3, 553–564.
Panizzon (n 337) 1221.
Joel P Trachtman, The International Law of Economic Migration: Toward the Fourth Freedom (we Upjohn Institute for Employment Research 2009) 115–127.
Jacobsson (n 354) 245–261.
Panizzon (n 337).
ibid.
Jacobsson (n 354).
gats (n 336).
oecd, World Bank and iom, ‘A Quick Guide to the gats and Mode 4’ (Geneva, Palais des nations, 12–14 November 2003) <
ibid.
unhrc, ‘Report of the Special Rapporteur on the human rights of migrants on the impact of bilateral and multilateral trade agreements on the human rights of migrants’ (4 May 2016) a/hrc/32/40.
Sandra Lavenex, ‘Regional migration governence – building block of global initiatives?’ [2019] 45 Journal of Ethnic and Migration Studies 8, 1275–1293; Kamaal R Zaidi, ‘Harmonizing Trade Liberalization and Migration Policy through Shared Responsibility: A Comparison of the Impact of Bilateral Trade Agreements and the gats in Germany and Canada’ [2010] 37 Syracuse Journal of International Law 267.
Antonia Carnaziga, ‘A Warmer Welcome? Access of Natural Persons under ptas’ in J Marchetti and M Roy (eds), Opening Markets for Trade in Services: Countries and Sectors in Bilateral and wto Negotiations (Cambridge University Press 2008) 474–502.
gats (n 336) paragraphs 4 to 10 of Article xxiv, Article xxviii bis.
wto, ‘Database on Preferential Trade Arrangements’ <
Vincent Chetail, ‘The Transnational Movement of Persons under General International Law – Mapping the Customary Law Foundations of International Migration Law’ in Vincent Chetail and Céline Bauloz (eds), Research Handbook on International Law and Migration (2014) 1–72.
ibid.
Sonja Nita, ‘Free Movement of People within Regional Integration Processes: A Comparative View’ in Sonja Nita and others, Migration, Free Movement and Regional Integration (unesco Publishing and unu Institute on Comparative Regional Integration Studies 2017).
unhrc (n 369).
ibid.
ibid.
ibid.
Martin (n 358) 226.
Rupa Chanda, ‘Mobility of Less-Skilled Workers under Bilateral Agreements: Lessons for the gats’ [2009] 43 Journal of World Trade 3, 479–506.
L Alan Winters, ‘The Temporary Movement of Workers to Provide Services’ in Aaditya Mattoo and Antonia Carzaniga (eds), Moving People to Deliver Services (The World Bank/oup 2003) 480–540.
Sergio Carrera, ‘What does free movement mean in theory and practice in an enlarged EU?’ [2005] 11 European Law Journal 6, 699–721.
Amy Francis, ‘Free Movement Agreements & Climate-Induced Migration: A Caribbean Case Study’ [2019] 1 Columbia Law School, 1–28. Also see German Cooperation giz and pik (n 33).
See Chapter 3.2.2 of this book for a discussion on pacer Plus in more detail.
Panizzon, Zürcher and Fornalé (n 345) 11.
Nita (n 376).
ibid.
unhrc (n 369).
ibid.
ibid.
ibid.
ibid.
Francis (n 385).
ibid; Annita Montoute, Debbie Mohammed and Jo Francis, ‘Prospects and Challenges for Civil Society and Climate Change Engagement in the Caribbean: The Case of Trinidad and Tobago’ 47 Caribbean Studies 2; Leon Sealey-Huggins, ‘1.5°C to stay alive’: climate change, imperialism and justice for the Caribbean’ [2017] 38 Third World Quarterly 11, 2444–2463.
Universal Declaration of Human Rights (adopted 10 December 1948) unga Res 217 A(iii) preamble; Declaration by the United Nations (adopted 1 January 1942) <
icerd (n 76); iccpr (n 71); icescr (n 76); cedaw (n 76); cat (n 71); crc (n 76); icrmw (n 76); icpped (n 71); cprd (n 76).
Kälin and Künzli (n 22) 15.
ICESCRCom, ‘Climate Change and the International Covenant on Economic, Social and Cultural Rights’ (Statement, 8 October 2018) <
ohchr, ‘Key Messages on Human Rights and Climate Change’ <
See unhrc ‘Analytical study on the promotion and protection of the rights of older persons in the context of climate change, Report of the Office of the United Nations High Commissioner for Human Rights’ (30 April 2021) UN Doc a/hrc/47/46. Also see John Knox, ‘Linking Human Rights and Climate Change at the United Nations’ [2009] 33 Harvard Environmental Law Review 2, 477.
unhrc Res 7/23, ‘Human rights and climate change’ (28 March 2008) UN Doc a/hrc/res/7/23.
unhrc Res 44/7, ‘Human rights and climate change’ (16 July 2020) UN Doc a/hrc/res/44/7; unhrc 42/21 ‘Human rights and climate change’ (12 July 2019). Also see unhrc Res 46/7 ‘Human rights and the environment’ (30 March 2021) UN Doc a/hrc/res/46/7; unhrc Res 38/4 ‘Human rights and climate change’ (5 July 2018) UN Doc a/hrc/res/38/4; unhrc Res 35/20, ‘Human Rights and climate change‘ (22 June 2017) UN Doc a/hrc/res/35/20; unhrc Res 32/33, ‘Human rights and climate change’ (18 July 2016) UN Doc a/hrc/res/32/33, unhrc Res 29/ 15, ‘Human rights and climate change’ (22 July 2015) UN Doc a/hrc/res/29/15; unhrc Res 26/27, ‘Human rights and climate change’ (15 July 2014) UN Doc a/hrc/res/26/27; unhrc Res 18/22, ‘Human rights and climate change’ (17 October 2011) UN Doc a/hrc/res/18/22; unhrc Res 10/4 ‘Human rights and climate change’ (25 March 2009) UN Doc a/hrc/res/10/4; unhrc Res 7/23, ‘Human rights and climate change’ (28 March 2008) UN Doc a/hrc/res/7/23. See also, unhrc Res 16/11, ‘Human rights and the environment’ (12 April 2011) UN Doc a/hrc/res/16/11; unhrc Res 19/10, ‘Human rights and the environment’ (19 April 2012) UN Doc a/hrc/res/19/10; unhrc Res 25/21, ‘Human rights and the environment’ (15 April 2014) UN Doc a/hrc/res/25/21; unhrc Res 28/11, ‘Human rights and the environment’ (7 April 2015) UN Doc a/hrc/res/28/11; unhrc Res 31/8, ‘Human rights and the environment’ (22 April 2016) UN Doc a/hrc/res/21/8; unhrc Res 34/20, ‘Human rights and the environment’ (6 April 2017) UN Doc a/hrc/res/34/20; unhrc Res 37/8, ‘Human rights and the environment’ (9 April 2018) UN Doc a/hrc/res/37/8.
Conference of the Parties to the unfcc, Decision 1/cp.16, ‘Report of the Conference of the Parties on its sixteenth session, held in Cancun from 29 November to 10 December 2010, Part Two: Action taken by the Conference of the Parties at its sixteenth session’ (15 March 2011) UN Doc fccc/cp/2010/7/Add.1. Also see unfccc, ‘Integrating human rights at the unfccc’ <
Valentina Carraro, ‘Promoting Compliance with Human Rights: The Performance of the United Nations’ Universal Periodic Review and Treaty Bodies’ [2019] 63 International Studies Quarterly 4, 1079–1093; Marc Limon, ‘Human Rights and Climate Change: Constructing a Case for Political Action’ [2009] 33 Harvard Environmental Law Review 2, 439–476.
Committee on the Elimination of Discrimination Against Women, Committee on Economic, Social and Cultural Rights, Committee on the Protection of the Rights of All Migrant Workers and Members of their Families, Committee on the Rights of the Child, and Committee on the Rights of Persons with Disabilities, ‘Joint Statement on “Human Rights and Climate Change”’ (16 September 2019) <
ibid.
ibid.
ibid.
ibid.
ibid.
ibid.
ibid.
ibid.
ibid. Migrant workers and members of their families are protected under the icrmw. icrmw is one of the nine core international human rights instruments and is the longest with 93 articles. The overall aim is to recognise that all migrant workers, regardless of, for instance, nationality, age, marital status, and political opinion, are entitled as human beings to the enjoyment of fundamental rights in the entirety of the migration process. An important limitation of icrmw is its low rate of ratification. As of May 2020, it has been ratified by 55 States. See Carla Edelenbos, ‘Committee on Migrant Workers and implementation of the icrmw’ in Ryszard Cholewinski, Paul de Guchteneire and Antoine Pécoud (unesco 2009) 100–122.
Committee on the Elimination of Discrimination Against Women, Committee on Economic, Social and Cultural Rights, Committee on the Protection of the Rights of All Migrant Workers and Members of their Families, Committee on the Rights of the Child, and Committee on the Rights of Persons with Disabilities, ‘Joint Statement on “Human Rights and Climate Change”’ (16 September 2019) <
Communication to the Committee on the Rights of the Child, In the case of Chiara Sacchi and others v. Argentina, Brazil, France, Germany and Turkey (23 September 2019) <
ibid.
CRCom (n 10).
ohchr, ‘UN Child Rights Committee rules that countries bear cross-border responsibility for harmful impact of climate change’ (11 October 2021) <
Child Rights Environment, ‘General Comment No. 26’ <
Bellinkx and others (n 84).
Clémence Billard Schachter and Francesca Mingrone, ‘A UN Special Rapporteur on Human Rights & Climate Change? Regional Perspectives’ (Centre for International Environmental Law, January 2021) <
unhrc (n 10). Also see unhrc (n 80).
unhrc, ‘Report of the Special Rapporteur on Human Rights and the Environment on the Issue of Human Rights Obligations relating to the Enjoyment of a Safe, Clean, Healthy and Sustainable Environment’ (1 February 2016) UN Doc a/hrc/31/52, para 33.
It is also debated whether non-refoulement amounts to a peremptory norm (jus cogens) under international law. See Chetail (n 47) 197; Sir Elihu Lauterpacht and Daniel Bethlehem, ‘The Scope and Content of the Principle of Non-Refoulement’ in Erika Feller, Volker Türk and Frances Nicholson (eds), Refugee Protection in International Law: unhcr’s Global Consultations on International Protection (Cambridge University Press 2003) 252; Jean Allain, ‘The jus cogens nature of non-refoulement’ [2001] 13 International Journal of Refugee Law 4, 533–558; Robert L Newmark, ‘Non-Refoulement Run Afoul: The Questionable Legality of Extraterritorial Repatriation Programs’ [1993] 71 Washington University Law Review 3; unhcr, ‘Advisory Opinion on the Extraterritorial Application of Non-Refoulement Obligations under the 1951 Convention relating to the Status of Refugees and its 1967 Protocol’ <
Refugee Convention (n 70); iccpr (n 71); cat (n 71); icpped (n 71); The Declaration on Territorial Asylum 1967; the American Convention on Human Rights 1969.
ohchr, ‘The principle of non-refoulement under international human rights law’ <
Refugee Convention (n 70).
Human Rights Committee, General Comment No. 31, para 12; crc, General Comment No. 6, para 27 (see also para 84); cat, General Comment No. 4 (2017) on the implementation of article 3 of the Convention in the context of article 22. para. 13.
Refugee Convention (n 70) art 33.
Tally Kritzman-Amir, ‘Community Interests in Migration and Refugee Law’ in Eyal Benvenisti, Georg Nolte and Keren Yalin-mor (eds), Community Interests across International Law (Oxford University Press 2018) 351.
ohchr (n 429). Cornelis Wouters, ‘International Refugee and Human Rights Law: Partners in Ensuring International Protection and Asylum’ in Scott Sheeran and Nigel Rodley (eds), Routledge Handbook of International Human Rights Law (Routledge 2013) 231–243.
UNHRCom, ‘ccpr General Comment No:20 Article 7 (Prohibition of Torture, or other Cruel, Inhuman or Degrading Treatment or Punishment) (10 March 1992) <
Chetail (n 47) 198.
Vincent Chetail, ‘Are Refugee Rights Human Rights? An Unorthodox Questioning on the Relations between International Refugee law and International Human Rights Law’ in R Rubio-Marin (ed), Human Rights and Immigration (Collected Courses of the Academy of European Law, Oxford University Press 2014) 36–37.
Cali, Costello and Cunningham (n 81) 355–384.
Ioane Teitiota (n 83).
ibid.
The Immigration and Protection Tribunal in New Zealand undertook an analysis in line with the view that ‘while in many cases the effects of environmental change and natural disasters will not bring affected persons within the scope of the Refugee Convention, no hard and fast rules or presumptions of non-applicability exist. Care must be taken to examine the particular features of the case’. The Tribunal interpreted the right to life under the iccpr as involving a positive obligation of the State to fulfil this right ‘by taking programmatic steps to provide for the basic necessities of life’. Their conclusion was that Teitiota ‘could not point to any act or omission by the Government of Kiribati that might indicate a risk that he would be arbitrarily deprived of his life within the scope of Article 6 of the Covenant’. His appeals to the High Court, the Court of Appeal, and the Supreme Court of New Zealand were denied on the ground that if he returned to Kiribati, he would not face serious harm, even though the Supreme Court stated that environmental degradation from climate change and other natural disasters could ‘create pathways into the Refugee Convention or other protected person jurisdiction’. See Ioane Teitiota (n 83).
Jane McAdam, ‘Protecting People Displaced by the Impacts of Climate Change: The UN Human Rights Committee and the Principle of non-refoulement’ [2020] 114 ajil 718; Simon Behrman and Avidan Kent, ‘The Teitiota case and the limitations of the human rights framework’ [2020] 75 qil, 25–39.
Ioane Teitiota (n 83) para 3.
ibid para 2.1.
See UNHRCom, ‘General Comment No. 36, Article 6 (Right to Life)’ (3 September 2019) UN Doc ccpr/C/gc/36.
Ioane Teitiota (n 83) para 9.12.
ibid.
ibid.
ibid.
ibid.
Behrman and Kent (n 442) 25–39.
ibid.
ibid.
Ioane Teitiota (n 83), dissenting opinion of Duncan Laki Muhumuza.
ibid.
Ioane Teitiota (n 83), individual opinion of Vasilka Sancin.
ibid.
McAdam (n 176); Eugénie Delval, ‘From the UN Human Rights Committee to European Courts: Which protection for climate-induced displaced persons under European Law?’ (EU Migration and Asylum Law and Policy Blog, 8 April 2020) <
For instance, Caskey argues that if an applicant can substantiate the real risk of increased land salinization forcing them to leave their residence, or of rising temperatures to force their retreat from an area, then the prohibition of non-refoulement under Article 7 of the iccpr arises. Christopher Caskey, ‘Non-Refoulement and Environmental Degradation: Examining the Entry Points and Improving Access to Protection’ (Global Migration Research Paper No 26, 2020) Global Migration Centre, Graduate Institute of International and Development Studies.
Why the international community should be concerned with the treatment of idps is a legitimate question. Cohen argues that there were a combination of factors to form an international response to protect the idps. First, there has been a growth of the number of idps, from 1.2 million in 1982 to an estimated 20 million in 1995 and it was realised that internal displacement can undermine national, as well as regional and international security. Second, towards the end of the Cold War era, there was a change in the notion of sovereignty, towards a framing of ‘sovereignty as responsibility’, which was later developed into the doctrine of responsibility to protect (R2P). R2P relates to the failure of a State in fulfilling its responsibilities towards its own citizens, in which case the protection falls within the responsibility of the international community. A similar principle is applicable to the protection of idps. Governments have the primary responsibility to protect their displaced populations, and in the failure to discharge that responsibility, the international community has the right to engage. A third reason is the ‘particular vulnerability’ of idps. idps experience problems as a result of their displacement, including lack of shelter, access to services, formal documents and political rights; loss of property and access to livelihoods; discrimination because of being displaced; and challenges relating to return and integration. The particular vulnerabilities idps face can be contrasted with other internal migrants, who move voluntarily within the borders of their countries, and hence do not summon international protection. See Roberta Cohen, ‘Nowhere to Run, No Place to Hide’ [2002] 58 Bulletin of the Atomic Scientists 6, 36–45. Also see Khalid Koser, ‘Internally Displaced Persons’ in Alexander Betts (ed), Global Migration Governance (Oxford University Press 2011).
idmc, ‘The Invisible Majority: The Displacement Continuum’ (idmc Thematic Series, November 2017) <
Julia Toscano, ‘Climate Change Displacement and Forced Migration: An International Crisis’ [2015] 6 Arizona Journal of Environmental Law and Policy 1, 460–487.
Jane McAdam, ‘From the Nansen Initiative to the Platform on Disaster Displacement: Shaping International Approaches to Climate Change, Disasters and Displacement’ [2016] 39 University of New South Wales Law Journal 4, 1518–1546.
See Vikram Kolmannskog and Lisetta Trebbi, ‘Climate change, natural disasters and displacement: a multi-track approach to filling the protection gap’ [2010] 92 icrc 879, 713–730.
Convinced of the need to address ‘gray areas’ and protection gaps, a new international mechanism was created to address the human rights of idps. In 2004, Walter Kälin was appointed as the first Representative on the Human Rights of idps, a function which was taken up by Chaloka Beyani in 2010 and Cecilia Jimenez-Damary in 2016. See unhrc Res 41/15, ‘Mandate of the Special Rapporteur on the human rights of internally displaced persons’ (19 July 2019) UN Doc a/hrc/res/41/15.
Guiding Principles on Internal Displacement (22 July 1998) adm 1.1, prl 12.1, pr00/98/109 <
The African Union Convention for the Protection and Assistance of Internally Displaced in Africa (the Kampala Convention) is the only regional binding instrument that has adopted this definition. Complementing the general obligations of States on the protection of idps, the Kampala Convention also includes the obligation to take measures to protect and assist persons who have been internally displaced due to natural or human made disasters. See Francis Deng and Romola Adeola, ‘The Normative Influence of the UN Guiding Principles on the Kampala Convention in the Protection of Internally Displaced Persons in Africa’ [2021] 65 Journal of African Law, 59–72.
Alexandra Bilak and Avigail Shai, ‘Internal Displacement Beyond 2018: The Road Ahead’ [2018] 59 Forced Migration Review, 49–52; Walter Kälin, ‘The Guiding Principles on Internal Displacement as international minimum standard and protection tool’ [2005] 24 Refugee Survey Quarterly 3, 27–36.
McAdam and others (n 1).
The cluster approach emerged following the serious deficiencies in the international response mechanism to humanitarian crises, as a result of which people falling under the mandate of certain international organisations had benefited from assistance (e.g. children under unicef, or refugees under unhcr), whereas others, especially the idps, received ad hoc and unpredictable assistance. Whilst the cluster approach is not limited to idps, one of the biggest motivations for the new system was to fill the ‘protection gap’ experienced by idps. At the international level, the cluster approach aims to ‘strengthen the system-wide preparedness and technical capacity to respond to humanitarian emergencies, and provide clear leadership and accountability in the main areas of humanitarian response’. At the national level, it aims to ‘strengthen partnerships, and the predictability and accountability of international humanitarian action, by improving prioritization and clearly defining the roles and responsibilities of humanitarian organizations’. The Inter-Agency Standing Committee (iasc) designates the ‘sectors’ of humanitarian action and appoints both UN and non-UN humanitarian organisations as sector leaders. There are currently eleven clusters, which complement the food (solely led by wfp) and refugee sectors (solely led by unhcr). See iasc, ‘Guidance Note on Using the Cluster Approach to Strengthen Humanitarian Response’ (24 November 2006); unga Res 46/182 (19 December 1991) 78th Plenary Meeting; ocha, ‘What is the cluster approach?’ <
gpc’s work is guided by the iasc Policy on Protection in Humanitarian Action and the icrc Professional Standards for Protection Work. See Global Protection Cluster Working Group, ‘Handbook for the Protection of Internally Displaced Persons’ (31 March 2010)<
Protection is defined as ‘all activities aimed at obtaining full respect for the rights of the individual in accordance with the letter and the spirit of the relevant bodies of law, including International Humanitarian Law and International Refugee Law’. See Global Protection Cluster, ‘Protection in a Climate of Change: Strategic Framework 2020–2024’ (2020)<
gpc, ‘Consultation event report, Climate Preparedness and Community-based Protection’ <
ibid.
The plan of action focuses on four priorities: engaging idps in decision-making processes that affect them; promoting, developing and implementing national frameworks to prevent and address internal displacement; enhancing the quality of data and analysis on internal displacement; and addressing protracted displacement while driving solutions for idps. See gpc, ‘gp20 Plan of Action for Advancing Prevention, Protection and Solutions for Internally Displaced People’ <
ibid.
UN, ‘UN Secretary-General’s Statement announcing the establishment of a High-Level Panel on Internal Displacement’ (23 October 2019, New York) <
UN, ‘Terms of Reference: High-Level Panel on Internal Displacement’ <
UN, ‘Terms of Reference: High-Level Panel on Internal Displacement’ <
The Nansen Initiative (n 215).
Francois Gemenne and Pauline Brücker, ‘From the Guiding Principles on Internal Displacement to the Nansen Initiative: What the Governance of Environmental Migration Can Learn From the Governance of Internal Displacement’ [2015] 27 International Journal of Refugee Law 2, 245–263.
The Nansen Initiative (n 215).
ibid.
ibid.
ibid.
ibid.
Humanitarian protection measures are especially a tool to provide international protection to cross-border displaced persons in the context of disasters and climate change. These can generally be in two forms: a State can admit cross-border disaster-displaced persons into its territory and allow such persons to stay at least temporarily, or a State can refrain from returning non-citizens to a disaster affected country who were already present in the receiving country when the disaster occurred. An example is the US Temporary Protected Status (tps), which since 1990 has been offering humanitarian protection to hundreds of thousands of non-citizens who are unable to return to their countries of origin. tps functions as a ‘blanket’ form of relief, and grants all nationals of particular countries work authorisation and protection against deportation. The Department of Homeland Security chooses to award tps to a particular country after analysing the situation, which could be based on armed conflicts, epidemics, and other extraordinary and temporary conditions. tps has also covered situations of environmental disasters. For instance, after the devastating effects of Hurricane Mitch in 1999, citizens of Honduras and Nicaragua have been protected under the tps, and have been holding this status for more than 20 years. Furthermore, States can adopt measures to manage displacement risks within their borders, which would have the effect of addressing the root causes of cross-border disaster-displacement. In this sense, the Protection Agenda promotes the use of planned relocation as a preventative or responsive measure to the risk of displacement. See Alice Edwards, ‘Temporary Protection, Derogation and the 1951 Refugee Convention’ [2012] 13 Melbourne Journal of International Law,1–40; Claire Bergeron, ‘Temporary Protected Status after 25 Years: Addressing the Challenge of Long-Term Temporary Residents and Strengthening a Centerpiece of US Humanitarian Protection’ [2018] 2 Journal on Migration and Human Security 1, 22–43.2; Meltem Ineli-Ciger and Achilles Skorda, ‘Temporary Protection’ (Max Planck Encyclopedia 2019) <
McAdam (n 176) 1518–1546.
Structurally, the work of the pdd is directed by the Steering Group, which has 18 members, including the EU. The Steering Group is led by the Chair and the Vice Chair which are subject to a one and a half year term. On 3 December 2020, Fiji took over the chairmanship and France became the Vice-Chair. See pdd <
pdd, ‘PDD Strategy 2019–2022’ <
Global Compact for Migration (n 9) objective 2.
ibid.
The Nansen Initiative (n 215) 7.
Chien-yu Liu, ‘Disaster Displacement in Humanitarian and Development Contexts’ in Veronica Fynn Bruey and Steven W. Bender, Deadly Voyages: Migrant Journeys across the Globe (The Rowman and Littlefield Publishing Group Inc 2020).
Other non-binding legal tools that complement the mentioned instruments include, the 2005 Pinheiro Principles on Housing and Property Restitution for Refugees and Displaced Persons, the 2010 Handbook for the Protection of Internally Displaced Persons, and the 2014 Mend Guide: Comprehensive Guide for Planning Mass Evacuations in Natural Disasters. See ecosoc, ‘Economic, Social and Cultural Rights: Housing and property restitution in the context of return of refugees and internally displaced persons, Final Report of the Special Rapporteur Paulo Sergio Pinheiro, Principles on housing and property restitution for refugees and displaced persons’ (28 June 2005) UN Doc E/cn.4/Sub.2/2005/17; Global Protection Cluster Working Group, ‘Handbook for the Protection of Internally Displaced Persons’ (31 March 2010); Global Camp Coordination and Camp Management Cluster, ‘The mend Guide: Comprehensive Guide for Planning Mass Evacuations in Natural Disasters’ (31 December 2014).
The international legal architecture pertaining to the prevention and response to ‘disasters’ is characterised by a ‘pot pourri’ of binding and non-binding instruments. See Craig Allan and Therese O’Donnell, ‘A Call to Alms? Natural Disasters, R2P, Duties of Cooperation and Unchartered Consequences’ [2012] 17 Journal of Conflict and Security Law 3, 345; unga Res 69/283, ‘The Sendai Framework for Disaster Risk Reduction’ (23 June 2015) UN Doc. a/res/69/283; Convention on Assistance in the Case of a Nuclear Accident or Radiological Emergency (adopted 26 September 1986, entered into force 26 February 1987) 1457 unts 134; Tampere Convention on the Provision of Telecommunication Resources for Disaster Mitigation and Relief Operations (adopted 18 June 1998, entered into force 8 January 2005) 2296 unts 5.
The Special Rapporteur preferred to define disasters as ‘a calamitous event or series of events resulting in widespread loss of life, great human suffering and distress, mass displacement, or large-scale material or environmental damage, thereby seriously disrupting the functioning of society’. Although the scope extends to human-made disasters, the commentary clarifies that mere situations of political and economic crisis would not be covered. See ilc, ‘Report of the International Law Commission: Sixty Eighth Session’ (2 May 10 June and 4 July 12 August 2016), UN Doc. A/71/10, 2016 (das Report) 13 73.
Previous initiatives addressing this issue include the iasc Operational Guidelines on the Protection of Persons in the Context of Natural Disasters, which were developed with the support of the Brookings-Bern Project on Internal Displacement. See iasc, ‘iasc Operational Guidelines on the Protection of Persons in Situations of Natural Disasters’ (The Brookings – Bern Project on Internal Displacement, January 2011) <
unga, ‘Annotated preliminary list of items to be included in the provisional agenda of the seventy-fifth regular session of the General Assembly’ (15 June 2020) UN Doc A/75/100, para 89; unga, ‘Summary record of the 31st meeting’ Sixth Committee (31 January 2019) UN Doc A/C.6/73/sr.31; unga Res 71/141 ‘Protection of persons in the event of disasters’ (19 December 2016).
ilc, ‘Draft Articles on the Protection of Persons in the Event of Disasters, with Commentaries’ (2016) <
ilc, ‘Draft articles on the protection of persons in the event of disasters’ (2016) UN Doc A/71/10, draft Article 2.
ibid para. 48.
Bartolini argues that the vertical dimension is reflected in Articles 4–6 (human dignity, human rights, humanitarian principles), and the horizontal dimension in Articles 7–17 (including disaster risk reduction, and relief/recovery phases) of the Draft Articles. See Giulio Bartolini, ‘A Universal Treaty for Disasters: Remarks on International Law Commission’s Draft Articles on the Protection of Persons in the Event of Disasters’ [2019] 99 International Review of the Red Cross 906, 1103–1138.
ibid.
ilc (n 501), draft articles 7 and 11.
Twenty four delegations submitted statements during the seveny-third session of the unga. See unga, ‘Summary record of the 31st meeting’ Sixth Committee (31 January 2019) UN Doc a/c.6/73/sr.31; unga Res 71/141 ‘Protection of persons in the event of disasters’ (19 December 2016).
Sixth Committee (Legal) – 75th session, ‘Protection of persons in the event of disasters (Agenda Item 89)’ (UN, 2020) <
See Statement by Sweden on behalf of the Nordic Countries (Denmark, Finland, Iceland, Norway and Sweden) (23 October 2020) <
Statement by Jamaica (23 October 2020) <
Statement by Jamaica (23 October 2020) <
Statement by Tonga (27 October 2020) <
Statement by Brazil (13 November 2020) <
Statement by the United States of America (27 October 2020) <
Statement of Malaysia (11 November 2020) <
Statement of Malaysia (11 November 2020) <
Statement by Israel (14 October 2020) <
Statement by the United States of America (27 October 2020) <
Statement by Switzerland (11 November 2020) <
Statement by Brazil (13 November 2020) <
unga ‘Protection of persons in the event of disasters – Report of the Secretary-General’ (21 July 2020) gaor 75th Session, Item 89 on the provisional agenda UN Doc A/75/214.
unga, Sixth Committee (Legal) – 75th session, ‘Protection of persons in the event of disasters (Agenda Item 89)’ (UN, 2020) <
Dire Tladi, ‘The International Law Commission’s Draft Articles on the Protection of Persons in the Event of Disasters: Codification, Progressive Development or Creation of Law from Thin Air?’ [2017] 16 Chinese Journal of International Law 425; Therese O’Donnell, ‘Vulnerability and the International Law Commission’s Draft Articles on the Protection of Persons in the Event of Disasters’ [2019] 68:3 iclq 573.
McAdam and others (n 1); Davor Vidas, ‘Sea-level Rise and International Law: At the Convergence of Two Epochs’ [2014] 4 Climate Law 1, 70–84; Nilüfer Oral, ‘International Law as an Adaptation Measure to Sea-level Rise and Its Impacts on Islands and Offshore Features’ [2009] 34 The International Journal of Marine and Coastal Law 3.
ilc (n 168), 326.
ibid.
ibid.
ipcc, ‘Special Report on the Ocean and Cryosphere in a Changing Climate’ (2019); ipcc, ‘Sea Level Change’ in Climate Change 2013: The Physical Science Basis. Contribution of Working Group 1 to the Fifth Assessment Report of the Intergovernmental Panel on Climate Change (Cambridge University Press 2013) <
ibid.
ibid.
ibid.
ibid. Also see ipcc (n 4).
ilc (n 168).
Curt Storlazzi and others, ‘Most atolls will be uninhabitable by the mid-21st century because of sea-level rise exacerbating wave-driven flooding’ [2018] 4 Science Advances 4; E Bird and V Prescott, ‘Rising global sea levels and national maritime claims’ [1989] 1 Marine Policy Reports 3, 1–20.; Derek William Bowett, ‘The legal regime of islands in international law’ [1979] Oceana Publications.
Alfred Soons, ‘The Effects of a Rising Sea Level on Maritime Limits and Boundaries’ [1990] 37 Netherlands International lr 207; Geoffrey Lean, ‘Disappearing World: Global Warming Claims Tropical Island’ (Independent, 24 December 2006); Ann Powers and Christopher Stucko, ‘Introducing the Law of the Sea and the Legal Implications of Rising Sea Levels’ in Michael B. Gerrard and Gregory E. Wannier, Threatened Island Nations: Legal Implications of Rising Seas and a Changing Climate (Cambridge University Press 2013).
There were previous attempts to address this issue. For instance, in 2005, the UN Sub-commission on the Promotion and Protection of Human Rights adopted a resolution, which called on the Commission of Human Rights to appoint a Special Rapporteur to prepare ‘a comprehensive study on the legal implications of the disappearance of States and other territories for environmental reasons, including their implications for the human rights of their residents’, but this study has not occurred. See UN Commission on Human Rights, ‘The legal implications of disappearance of States and other territories for environmental reasons, including the implications for the human rights of their residents, with particular reference to the rights of indigenous peoples’ (Report on the 61st session, 14 March – 22 April 2005) e/cn.4/dec/2005/112.
See International Law Association Committee on Baselines under the International Law of the Sea, Final Report (2012), Sofia Conference, 30 <
Davor Vidas, David Freestone and Jane McAdam, ‘International Law and Sea Level Rise: The New ila Committee’ [2019] Brill Research Perspectives in International Law.
ila (n 168).
ibid.
ibid.
ibid.
ibid.
ibid.
ibid.
ibid.
This can be compared with the test determined by UNHRCom in its decision on the Ioane Teitiota v New Zealand case. See Chapter 2.2.1 of this book for a detailed discussion.
ilc (n 168).
ibid para 15. For the proposal of the fsm, see Document ilc (lxx)/lt/informal/1 of 31 January 2018 (on file with the Codification Division).
ilc (n 168).
ibid.
ilc (n 168) para 26.
ibid para 18.
ibid.
For instance, see Information by Pacific Islands Forum (30 December 2019) <
ilc (n 168) para 225.
Karen Sudmeier-Rieux and others, ‘Introduction: Exploring Linkages Between Disaster Risk Reduction, Climate Change Adaptation, Migration and Sustainable Development’ in Karen Sudmeier-Rieux and Others (eds), Identifying Emerging Issues in Disaster Risk Reduction, Migration, Climate Change and Sustainable Development (Springer 2017).
On effectiveness of international legal norms, see Daniel Thürer, International Humanitarian Law: Theory, Practice, Context (Hague Academy of International Law 2011) 154–160.