Monday, April 15, 2013

The Climate Displacement Gap: A Survey of Legal Options for the Protection of Individuals Displaced by Natural Disaster and Slow-Onset Climate Change

by Adina Appelbaum
Twitter: @abappelbaum

Crisis after crisis, natural and climate change-related disasters such as floods, droughts, and storms have displaced people from their homes in countries around the world. Though a causal link between any weather event and climate change is difficult to prove, climatologists have long believed that climate change will result in an increase in extreme weather events. Floods, droughts, and storms almost always impact the lives of individuals, forcing them to flee their homes as a result of safety or reduced food supply, among other factors. In 2005 for example, Hurricane Katrina left a wake of more than 400,000 displaced residents. In 2010, over 20 million people were affected, and 8 million displaced, by the floods in Pakistan. In addition to these more immediate natural disasters, slow-onset climate change-related disasters such as drought, desertification, salination of groundwater, and the rise of sea levels have contributed to massive displacement worldwide. Decreased agricultural output and the collapse of fisheries have also been indirectly linked to climate change. For example, slow-onset climate change in the Sahel, namely erratic rainfall, combined with high food prices, led to a food crisis in 2012 that left 18 million people without sufficient food and put one million children at risk of starvation.

Connection to Human Rights
Climate displacement implicates human rights by threatening lives, food security, livelihoods, water access, health, and safety, among other critical needs. Women, children, and other vulnerable populations are often disproportionately affected. Additionally, underlying factors such as poverty, social injustice, and weak government capacity to respond greatly exacerbate a country’s ability to prevent displacement and protect those who become displaced, once vulnerable to climate change. In the Sahel and the Horn of Africa, for example, incredible rates of poverty and weak human rights institutions have intensified the impacts of climate change exposure. The 2010 Pakistan floods particularly demonstrated need for better international human rights transparency, institutions, and monitoring, and the creation of mechanisms that allow for the resolution of human rights issues in the context of climate displacement. In this light, the challenges of climate displacement must be seen as implicating existing human rights instruments such as the Guiding Principles on Internal Displacement, the International Covenant on Civil and Political Rights (ICCPR)  and the International Covenant on Economic, Social and Cultural Rights (ICESCR), in addition to new frameworks.

Climate displacement can be a means to work with governments to strengthen their human rights institutions and commitments: it may be easier to advocate for human rights to governments in terms of climate change rather than political upheavals. One option is to encourage countries to incorporate human rights standards into natural disaster law and policies. For example, Daniel Petz, Senior Research Assistant on Natural Disasters of the Brookings-LSE Project on Internal Displacement has worked with various governmental disaster managers to incorporate the IASC Operational Guidelines on the Protection of Persons in Situations of Natural Disasters in national disaster law and policies, which promote and facilitate a rights-based approach to disaster relief.

Government Unwillingness
Governments are aware that climate displacement is occurring, particularly in places like the Pacific where island-nations are already seeing sea levels rise. With political sensitivity surrounding climate change itself in many countries, however, governments have little appetite to take on comprehensive actions to address climate displacement, for example through a new treaty. Slow-onset climate displacement is particularly tricky to build consensus around as such challenges are unlikely to result in acute migration crises or displacement, but instead will be slower, emerging processes. Those who will be most affected by climate displacement will also be the poorest with the least political power, given that individuals who can afford to leave eroding land will likely leave earlier. Many countries will also view those who do move as a result of slow-onset climate changes as economic migrants, further reducing governmental willingness to act.

Legal Gap and Need
The millions of individuals who have been displaced as a result of climate change, and the many who will be in the future, are are unprotected by current international human rights and humanitarian law. As explained by Sarah Collinson of the Study-Team on Climate-Induced Migration,  “many key normative, institutional, operational and resource structures and systems within the international humanitarian system are poorly equipped for addressing the multiple and complex challenges to human security posed by climate change.” Those displaced by climate change do not fit under the 1951 Refugee Convention, which was designed to protect individuals from individualized persecution, not the environment. It has been widely accepted that there is no interest on the part of the international community to extend the definition of a refugee or to extend the mandate of the United Nations High Commissioner for Refugees to include responsibility for this issue. Regional refugee initiatives, such as the 1969 OAU Convention and 1984 Cartagena Declaration on Refugees, though broadening the refugee definition, do not expand protection to individuals displaced from natural disasters or climate change.

Given that the majority of future climate displacement is likely to be internal, many individuals affected could fall under the Guiding Principles on Internal Displacement, which already includes language for displacement resulting from natural disaster. Significantly however, this language does not include slow-onset climate displacement, leaving an increasingly relevant legal gap, nor does it cover those who must cross borders as a result of climate change crises. Moreover, few countries have adopted the Guiding Principles under national law. For the few countries that have nationalized the Guiding Principles, such as Colombia, the natural disaster language has not been included. Alice Thomas of Refugees International explains the consequence of the absence of natural disaster language in the case of Colombia’s 2010-2011 floods: “The government response was handled by a totally different agency that didn’t recognize any of the human rights principles that have been developed in the context of people displaced by conflict.” As Thomas argues, the already existing Guiding Principles must be better implemented before developing further soft law on this issue.

In effect, given the legal gaps in the Refugee Convention and the Guiding Principles, there is no comprehensive framework in international law that addresses current and future climate displacement.

Source: Norwegian Refugee Council
Current Potential Options
The international, regional, and national potential options that currently exist to meet this legal gap appear to be insufficient, as discussed below. Ultimately, a new approach is needed, as outlined in the following section.

i. International
At the international level, a set of Guiding Principles on Climate Change-Related Displacement could be created, similar to that of the Guiding Principles on Internal Displacement,  but for cross-border displacement. Such principles could provide a framework by which to guide countries in their codification of climate displacement-related laws.

Another option could be to open up existing major human rights conventions, adding language on climate displacement protection. This avenue is likely to be difficult. For example, climate displacement legal expert Jane McAdam notes that modifying the ICCPR’s complementary protection, a concept in which states are precluded from returning people where there is a real risk that they will face significant harm, would require substantial development of jurisprudence “before such harms would fall clearly within [its] scope.” She explains:

“Even though the impacts of climate change may ultimately render basic survival in a particular location impossible, the present complementary protection grounds would only assist a person once conditions were already very extreme. This mechanism does not allow for pre-emptive movement where conditions are anticipated to become dire, and thus would not assist people trying to move before the situation becomes intolerable. Thus, it will likely take some decades before the effects of climate change, interacting with underlying socio-economic vulnerabilities, will be seen as constituting a violation giving rise to protection from removal.”

The UN Framework Convention on Climate Change (UNFCCC) is also unlikely to be the right platform to address the human rights component of the climate displacement gap. Though the UNFCCC’s Cancun Agreements impressively included language on measures to enhance understanding, coordination, and cooperation with regard to climate change-induced displacement, this language is unlikely to protect the needs of those displaced. For example, in the case of planned relocations of communities displaced by climate change, Elizabeth Ferris of the Brookings-LSE Project on Internal Displacement has noted it is not clear that the “climate change adaptation and mitigation fund created by the [Cancun agreement] will include international safeguards for those resettled through funding from these new mechanisms.”

ii. Regional
Regional initiatives present a hopeful means to address climate displacement, particularly in the context of inaction at the international level. The African Union Convention for the Protection and Assistance of Internally Displaced Persons in Africa, or the Kampala Convention, is one promising example. As legal scholar Michelle Leighton explains, “the Kampala Convention recognizes that climate change may cause internal displacement and provides a detailed description of government obligations, including reparations for failure to act, and encourages non-governmental and other assistance in the region for IDPs when a state affected by disaster is unable to provide full assistance.” One shortcoming of regional agreements is that they will not on their own lead to an international framework, although they are an important steps forward.

iii. National
An alternative to international and regional agreements is to extend national-level
immigration laws. For example, Australia developed a program for affected small island states in the region. Still, Australia’s bi-lateral program is limited as Australia ultimately decides which individuals may participate, allowing the potential for discriminatory policies.

The U.S. specifically could expand its Temporary Protected Status (TPS), which currently allows people already in the U.S. at the time of a disaster in their home country to remain temporarily. The TPS is limited in this sense as the majority of those affected by climate change are not already in the U.S., and because the U.S. can choose which countries it includes in the program. The TPS could be reformed to provide a legal avenue for people who are impacted by natural disasters while in their home countries to go to the U.S. Such a program would also need to establish procedures to disallow the arbitrary selection of preferred skill-groups and/or nationals. Ultimately however, national policies will fail to provide a uniform approach to climate displacement or sufficient incentives to protect the rights of those displaced.

Moving Forward: Collaborative Initiatives to Develop Key Principles Regarding Climate Displacement
There are a few recent hopeful efforts to build consensus around a future climate displacement framework. Led by Norway and Switzerland, the Nansen Initiative is most notably setting up an international agenda for the protection of persons forced to leave their country as a consequence of natural disasters. Through upcoming regional consultations in Kenya, Latin America, South Asia, and Southeast Asia in 2013 and 2014, the Initiative’s aim is to build consensus on key principles regarding protection through normative and institutional measures. Similarly, the Georgetown University Institute for the Study of International Migration Project is also working to accumulate knowledge on crisis-related movements that do not fit within current legal and institutional frameworks, including climate change-related displacement.

These efforts are a positive step toward addressing the legal gap for those displaced by climate change and should be applauded.  The Nansen Initiative’s bottom-up, regional approach to developing international cooperation, standards of treatment, and operational responses are particularly noteworthy. To comprehensively address climate displacement, such efforts would be wise to intentionally include slow-onset climate change displacement and civil society, focus on strengthening existing human rights tools, such as the Guiding Principles on Internal Displacement, and demand stronger international commitment.

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