5_Leighton_Legal Rights and Protection UNITAR

7/28/2019 5_Leighton_Legal Rights and Protection UNITAR

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Issues for Legal Protection

of Climate-related Migrants

and Displaced Persons

Michelle Leighton

Center for Law and Global Justice

University of San Francisco

School of Law


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Overview

Human displacement or migration in response to climate

disasters implicate human rights and humanitarian law.

Standards are uneven or ambiguous depending on the

climate impact--government obligations depend on nature

and type ofclimate disaster: In some cases standards are

defined and in other cases they do not exist.

Human rights standards and government obligations

relating to voluntary and forced migration responses will

need to be clarified in order to protect all climate victims.


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Basis of states legal obligations

International law: states owe duties to each other.

Human rights law: states also owe duties to individuals.

duty to respect, protect and fulfill human rights.

special responsibility to protect vulnerable groups

(indigenous peoples, minorities, women, children).

special duties owed toward refugees.

Human rights /humanitarian law oblige governments to:

prevent disasters;protect victims affected by disaster; andassist victims in territory and/or refugees.


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Climate change and disasters

Humanitarian norms convey responsibility

on governments to provide relief to disaster

victims in their territory andto help disaster

victims in other states less able to do so.

Tung X. Ngo/IRIN Flood Vietnam

2005 Hyogo Framework for Action

Disaster risk reductionhelp countries reduce vulnerability;

Improve strategic coordination of government assistance

Reinforced by the 2006 IASC Operational guidelines on Human Rights

and Natural Disasters, and 2007 Red Cross Guidelines for Domestic

Facilitation and Regulation of International Disaster Relief

Is Climate Change a disaster?


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Human rights norms on

cooperation and assistance

Covenant on Ecomonic, Social, Cultural Rights:

States parties have a joint and individual responsibility, in accordance withthe Charter of the United Nations and relevant resolutions of the UnitedNations General Assembly and of the World Health Assembly, to cooperate inproviding disaster relief and humanitarian assistance in times of emergency,including assistance to refugees and internally displaced persons.

--Committee Eonomic, Social and Cultural Rights, IESCR treaty body

160 countries ratified; additional 6 signed, including U.S.

This includes climate disastersdoes assistance includepermitting migration when there is no or few alternatives?


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Human rights in the context of

climate-related migrationHuman rights provides forfreedom of movement. All rights attach tothe human person and their dignity wherever they reside or move,including as they cross political borders. Scope of states duties change

but include minimum protections for:

right to be free from discrimination

right to property

right to family and privacy

right to health

right to food, water, and housing

right to culture

right to information and participation in decision-making

right to asylum.


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Government obligations toward

climate-related migrants

Are migrants entitled to receive protection,

legal status and/or work when they move

in response to climate disasters?

Does it depend on type of disaster?

1. rapid-onset v. slower-onset;

2. whether state of emergency or publicorder disrupted, requiring regional state protection;

3. receiving country migration laws on disaster victims.

Zunia.org


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International migrants:

slow-onset disasters

People seek to cope with drought- and

desertification through labor migration.

Refugee norms may apply only if

emergency or environment-related conflict.

1951 Refugee Convention, U.N. resolutions, European Court, Inter-

American Commission cases: principle ofnonrefoulementprevents return.

1969 OAU convention on Specific Aspects of Refugee Problems in Africa:

events seriously disturbing public order. 1984 Cartagena Declaration on

Refugees (Latin American region): includes similar provision to OAU.

Temporary protection status (only for migrants to Denmark).


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Senegal: 52%;

Sudan: 56%

Equatorial Africa: 60%

2.3 billion in drylands threatened by mega-droughts.

42% Mexico

45% India

FUTUE DISASTER:

21 Countries to lose between 30% - 60% of agriculture


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rapid-onset disasters

Those migrating from storms, floods,

hurricanes seek temporary refuge.

No return if dangerous and/orcountry of origin could not assist.

Shamsuddin Ahmed/IRIN

The international community has provided assistance, including

allowing for temporary migration.

Council of Europe and some countries have TPS: applies to

those already in-country and very narrow protection.


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sea-level rise

Persons living on small island states displaced due to sea-

water intrusion or forced to migrate permanently.

May result in statelessness.

European Directive on Subsidiary Protection: would convey

temporary status to third party nationals.

Photo courtesy of SPREP

Who will be responsible?


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Internally displaced

persons

I Persons forced or obliged to flee or to leave their homes or places of

habitual residence, as a result of or to avoid effects ofnatural or

human-made disasters, and who have not crossed a state border.

Guidelines protect the right of internal movement, right to life, dignity

and security of persons displaced.

Forced relocation only as last resort to protect the health and safety ofthose affected . May not be arbitrary / discriminatory, nor harmful to the

needs of indigenous or marginalized groups dependent on their lands.

Climate adaptation plan include recognition of migration or forced

relocation but do not identify standards that would apply.


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Gaps and disparities in protection

Not all climate disasters addressed equally:- Rapid-onset disasters receive greater recognition as disaster and

larger assistance than slow-onset. Droughts.

Not all disaster victims protected equally:- Laws protect some but not all victims forced to migrate dependingon type of disaster and whether receiving country has favorable laws,

rather than the victims immediate need.

Not all countries are accountable equally:

- Standards largely voluntary (including for IDPs) and protection of

victims inconsistent; countries in region with treaty have higher

standards than in other regions, e.g. Kampala Convention).


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Who is unprotected?

Persons moving across international borders due

to the sudden-onset of natural climate disasters;

Persons moving inside or outside their country as a consequence ofslower-onset climatic events, such as long-term, persistent drought;

Persons moving to international destinations from islands threatened bysea-level rise, coastal storm surges, or salinization resulting from seawater moving inland---persons could be rendered stateless;

Persons moving across borders to seek refuge from designated high-risk zones too dangerous for human habitation due to climate danger;

Persons forced to relocate or resettle under government programs of

adaptationno binding guidelines apply.

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Filling the normative gaps

Clarify standards of protection for climate-related migrants. Council of Europe parliamentary committee recommended adopting standards for

climate migrants within a migration agreement or protocol to the European Conventionon Human Rights. Some call for a full convention treaty text on the subject.

Where climate adaptation programs acknowledge migration will occur,assist governments in managing migration in ways that will enhance thepositive impacts and reduce the adverse impacts of forced displacement.

At a minimum, provide greater protection for international migrants notable to return due to climate events, possibly through national migration

management systems.

Adopt international or regional agreements (similar to KampalaConvention) that solidify the IDP Guiding Principles to ensureimplementation and increase accountability.

Facilitate a holistic approach to research and policy development.

5_Leighton_Legal Rights and Protection UNITAR

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