Climate Change And Human Rights Protection For Cross .
The slow onset effects ofClimate Change andHuman Rights Protectionfor cross-border migrants
The slow onset effects ofclimate change andhuman rights protectionfor cross-border migrants
ContentsPageBackground and AcknowledgementsvExecutive SummaryviI. Introduction: Linking climate change, human rights, and human mobility1A. Conceptualising human mobility in the context of climate change3B. International recognition of the connection between climate change, human rights,and human mobility6II. Slow onset events: Implications for human rights11A. Specific human rights12B. Rights to access information, participate in decision-making and access to justice15C. Persons and groups in vulnerable situations16D. Human rights of all migrants18III. Slow onset events and cross-border mobility: Gaps in protection21A. Human rights law22B. Refugee law23C. Law on statelessness25D. Environmental law25IV. Challenges posed by slow onset events: Case studies27A. South Asia28B. The Sahel32C. Pacific Island States37
D. Central America41E. Summary44V. Providing Protection: Legal obligations and policy solutionsvi47A. A human rights-based approach to human mobility48B. International cooperation and assistance52C. Disaster response policy and guidance55VI. Conclusion: Moving Forward57Bibliography62
Background andAcknowledgements kristof-rasschaert1.This study was undertaken on behalf of the Office of the United Nations High Commissioner for HumanRights (OHCHR) in collaboration with the Platform on Disaster Displacement (PDD). The Office of the UnitedNations High Commissioner for Human Rights wishes to express its sincere thanks to Lauren Nishimura forher valuable contribution to the preparation of this study. In addition, special mention and thanks are due toour United Nations partners and the many experts that contributed to this study and participated in the expertmeeting of 5 October 2017 at which it was first discussed.vii
Executive SummaryExecutive Summary2.There is now widespread recognition thatthe impacts of climate change adversely affect theenjoyment of human rights. There is also increasinginterest in the connection between climate changeand human mobility, and the role human rights lawplays in addressing this connection. Global dataindicates that the number of people displaced bysudden onset climate and weather-related disasters,such as storms and cyclones, averaged 22.5 millionpersons per year since 2008.1 But such a figure doesnot account for those who move due to the slow onseteffects of climate change, processes like sea levelrise, salinization, drought, and desertification. Theseeffects will combine with individual vulnerabilities andsocio-economic, demographic, and political contextsto affect the ability of people to respond to stressorsand enjoy human rights. This leads some people tomove internally or across borders, and renders othersunable to move away from affected areas.3.This paper seeks to advance understandingof the connection between the slow onset adverseeffects of climate change, human rights, and thecross-border movement of people in order to promoteinformed actions to protect the rights of those affected.The study was undertaken on behalf of the Office ofthe United Nations High Commissioner for HumanRights (OHCHR), in collaboration with the Platform onDisaster Displacement (PDD).4.Section I introduces the links between climatechange, human rights, and human mobility. SectionII discusses the implications slow onset events havefor the human rights of affected persons. Section IIIanalyses the international legal landscape for crossborder movement, discussing both gaps in legalprotection and potential sources of state obligations.The challenge such movement poses are highlightedin Section IV through four case studies that reflectthe complex interaction of context, vulnerability, and1viiiIDMC, ‘Global Estimates 2015: People Displaced byDisasters’ (2015) 8.prior patterns of movement. Section V then discussesmeans to provide protection for those who move in thecontext of slow onset events, through legal obligationsand policy responses. Finally, the study concludesby discussing current international and regionalmechanisms that offer ways to work on climatechange, human mobility, and human rights. It calls forfurther clarification and recognition of the relationshipbetween these factors and highlights the opportunity toplan and prepare for events and impacts.SLOW ONSET EVENTS AND IMPLICATIONS FORHUMAN RIGHTS5.Slow onset events can negatively impact anarray of internationally guaranteed human rights. Thisincludes specific substantive human rights, like therights to adequate food, water, health, and housing,as well as the rights to participation and information.Furthermore, while the impacts of slow onset eventsare indiscriminate, those already in vulnerablesituations are at the greatest risk of suffering humanrights harms as a result of their adverse effects.These risks are linked to human mobility in at leasttwo general ways. First, risks to human rights in situcontribute to vulnerability, which in turn can act as adriver of migration or displacement. Second, thereare specific impacts to the human rights of migrantsand displaced persons that need to be addressed. Thisincludes a lack of protection of their human rights atall stages in their journey, in particular in countries oftransit and destination and in the context of access toentry and protection from return to harmful situations.GAPS IN PROTECTION FOR CROSS-BORDERMOBILITY6.The mobility—and immobility—associated withslow onset effects is a global phenomenon that willtest the limits of international law and cooperation.Current international law is able to meet some of thesechallenges and falls short in other areas, leaving gapsin rights protection for persons who cross bordersin this context. The study identifies relevant areas ofinternational law to establish where current law is able
CASE STUDIES AND THE CHALLENGES POSEDBY SLOW ONSET EVENTS7.To illustrate some of the risks to human rightsand challenges posed by slow onset events, thestudy provides concrete examples of environmentaland climate change and human mobility in fourregions: (1) South Asia; (2) Pacific Island States; (3)the Sahel; and (4) Central America. Each examinesthe interaction of climate events with high povertylevels, food insecurity, and low adaptive capacity. Theresulting impacts on people and their employment,livelihoods, and access to natural resources along withother contextual stressors can tip the balance towardsmigration. The case studies also highlight that climatechange poses a progressive threat to human rights.In regions where malnutrition is already widespread,some individuals and groups are particularlyvulnerable, and mobility is a common response tochanging conditions.ix NOOR/Kadir van Lohuizento provide protection for those who cross borders,and where it does not. Those who move will do sounder a number of different conditions. For example,some people may move in the context of conflict orpersecution that are triggered, at least in part, by theslow onset effects of climate change. These peoplemay be entitled to protection under refugee law.Many, however, will move for reasons that do notaccord them protection as refugees. There is also noaffirmative international right to enter a country orstay, aside from being a refugee, and/or protectionsprovided by international human rights law includingthe fundamental principle of non-refoulement. Inthe absence of such a right, barriers to entry andpractices that put migrants at risk have emerged. Thishas resulted in border governance and immigrationmeasures that include the use of violence, pushbacks,the erection of fences, and administrative sentences.
Executive Summary8.Each region also exemplifies different aspectsof the challenges posed by slow onset events. SouthAsia is highly vulnerable to environmental change,and the well-established seasonal migration patternsin certain places are at risk of being upended byclimate change. The Sahel shows the impact of climatechange on important shared resources. Resourcescarcity has been linked to climate change, conflict,and development projects in the region, all of whichcan lead to migration and displacement. For somePacific Island States, international migration andplanned relocation are often raised as potentialresponses to sea level rise and loss of territory,although such movement tends to be viewed as a lastresort. In Central America, slow onset processes maycontribute to international movement in a region thatalready sees people crossing borders to escape socioeconomic deprivation, gang violence and disasterscaused by natural hazards.LEGAL OBLIGATIONS AND POLICY SOLUTIONS9.Approaches that better anticipate humanmobility in response to slow-onset events and thatproactively seek to protect rights before, during, andafter movement are possible. They also provide ameans to begin to ensure the human rights of all crossborder migrants. Protection can be provided throughinternational legal obligations and policy guidancethat take a human rights-based approach. States haveobligations to respect, protect, and fulfil the humanxrights of all persons. In the context of climate change,this translates into a need for States to undertakemeasures to mitigate climate change and preventits negative impacts on human rights; to ensure allpersons have the capacity and means to adapt; andto ensure accountability and an effective remedy forharms caused by climate change.10. The preventive role a human rights-basedapproach plays can also shift the focus to the risksslow onset events pose to human rights, enablingStates to take action before severe harm occurs andensure meaningful participation of those affectedby climate change. Such an approach strengthensarguments for proactive measures, to preventdisplacement by enabling people to stay in conditionsunder which their human rights are respected, to allowfor migration within conditions that protect humanrights as a means of adaptation, or to facilitate humanrights responsive planned relocation. Furthermore,climate change agreements broadly require States toprevent or mitigate the harm from climate change, andto take action on adaptation. Human rights law mustbe considered in the interpretation of these obligationsand integrated into the planning and implementationof climate change action. International cooperationand assistance are also critical in this context, both asa matter of state obligation and necessity to addressthe global challenges created by climate change andrelated human mobility.
Introduction:Linking climate change,human rights,and human mobility UNHCRI
I. Introduction: Linking climate change, human rights, and human mobilityI. Introduction: Linkingclimate change, humanrights, and human mobility11. Climate change has global impacts. Themost recent report of the Intergovernmental Panelon Climate Change’s (IPCC) predicts that evenunder stringent mitigation scenarios global surfacetemperatures will increase. Absent stringent mitigation,the IPCC has high confidence that global temperatureswill increase more than 1.5 C by the end of thecentury. Without any intervention, global temperatureswill likely increase more than 2 C.2 Global mean sealevel will likely rise as well, somewhere in the rangebetween 0.26 and 0.82 metres above 1986 to 2005levels by the end of the century.3 These changes willnot be felt uniformly across all regions, but they willproduce complex local effects, including stressors andadverse impacts to the enjoyment of human rights thatinteract to drive human mobility.12. Understanding the relation between these localeffects and human mobility can be difficult for tworeasons. First, human mobility in the context of climatechange is often multi-causal: environmental changeinteracts with a wide range of other factors to influencea decision to move and the degree to which thisdecision is voluntary. In some cases, this interactionmay render an individual unable or unwilling to move,despite facing increasing environmental challenges.4People may also move as a way to adapt or toproactively avoid severe impacts. This underscoresthe fact that much movement—and indeed mostmovement related to environmental factors—is notentirely forced or voluntary, but rather falls somewhereon a continuum between the two, with multiple factors22IPCC, ‘Climate Change 2014: Synthesis Report. Contributionof Working Groups I, II and III to the Fifth Assessment Reportof the Intergovernmental Panel on Climate Change’ (IPCC2014) 10.3ibid 11–13.4See Foresight, ‘Migration and Global Environmental Change’(UK Government Office for Science 2011) Final ProjectReport 11–14.contributing to whether a person moves, where theymove, and how.513. Second, the impacts of climate change occur atdifferent rates. Some of the weather and climate eventsassociated with climate change are discrete and havean immediate and obvious impact, lasting a matter ofhours or days. Hurricanes, storms, and flooding areexamples; these are often referred to as sudden onsetevents.6 In contrast, climate change can also generateimpacts through gradual environmental transformationthat occurs over the course of a prolonged periodof months to years.7 Such gradual changes—alsoreferred to as slow onset effects, processes, or events—include sea level rise, increasing temperatures,ocean acidification, glacial retreat, salinization, landand forest degradation, loss of biodiversity, anddesertification.8 These effects can be difficult to isolateas drivers of movement.14. This study focuses on the links between the slowonset effects of climate change, human rights, andthe cross-border movement of people. It explores therisks slow onset events pose to human rights, whichcan contribute to vulnerability that in turn acts as adriver of human mobility. Such vulnerability to harmwill also continue to affect people as they move acrossborders. It considers the role human rights law canplay in approaches to slow onset events and humanmobility, including measures to mitigate, ensure thecapacity and means to adapt, and provide accessto effective remedies. The study also emphasises the5See Graeme Hugo, ‘Environmental Concerns andInternational Migration’ (1996) 30 The InternationalMigration Review 105, 107; Walter Kälin and NinaSchrepfer, ‘Protecting People Crossing Borders in theContext of Climate Change Normative Gaps and PossibleApproaches’ (UNHCR 2012) 22.6Sudden onset events also include geophysical hazardsthat are not linked to climate change and thus outside thescope of this study. See IDMC, ‘Global Report on InternalDisplacement’ (2017) 106.7See UNFCCC, ‘Slow Onset Events - Technical Paper’ (2012)FCCC/TP/2012/7 para 20.8See UNFCCC COP, ‘Decision 1/CP.16- The CancunAgreements’ (2010) FCCC/CP/2010/7/Add1 para 25;UNFCCC (n 7) paras 26-49.
A. CONCEPTUALISING HUMAN MOBILITY INTHE CONTEXT OF CLIMATE CHANGE15. There is no universal legal definition or agreedupon terminology that describes people who movein the context of climate change. Several forms ofmovement are often discussed in academic andpolicy analyses of the issue. Within the UnitedNations Framework Convention on Climate Change(UNFCCC), for example, the Conference of the Parties(COP) initially referred to ‘climate change induceddisplacement, migration and planned relocation.’10This terminology is also used by the Nansen InitiativeProtection Agenda, the outcome document of a stateled bottom-up consultative process that partly built109A human rights-based approach refers to a conceptualframework based on international human rights law andstandards that are directed at promoting and protectinghuman rights. See, e.g., OHCHR, ‘Frequently AskedQuestions on a Human Rights-Based Approach toDevelopment Cooperation’ (2006) HR/PUB/06/8 15.UNFCCC COP (n 8) para 14(f). More recently, a reportof one of the mechanisms under the UNFCCC adoptedlanguage that uses ‘human mobility’ as a term that includes‘migration, displacement, and planned relocation’. ‘Reportof the Executive Committee of the Warsaw InternationalMechanism for Loss and Damage Associated with ClimateChange Impacts’ (2017) FCCC/SB/2017/L.5 para 13(c).3 Din Mhuhammad Shiblypreventive role of a human rights-based approach,9which can shift the focus to the risks posed by slowonset events and action that can be taken beforesevere harm occurs. Because this movement is multicausal and complex, it has been subject to terminologythat categorizes, defines, or characterizes movementand its drivers in a variety of ways. To better ensureconceptual clarity, this section provides a conceptualframework for the study. It then briefly describesinternational efforts to understand and recognize therelationship between human rights, climate change,and human mobility.
I. Introduction: Linking climate change, human rights, and human mobilityupon the COP’s call for increased understanding ofthese forms of movement.1116. While recognising that terminology in thiscontext is a charged—and often contested—area, thisstudy will use the following terms throughout. It willrefer to movement broadly as ‘human mobility’. Theterm ‘displacement’ is used to describe movementsthat are predominately forced, while ‘migration’is used more broadly, to describe movement thatis not predominantly forced but nonetheless maynot be entirely voluntary. It is important to note thatinternational migration often takes place along acontinuum between movement that is explicitly ‘forced’and that which is entirely ‘voluntary’. It will focus oninternational or cross-border ‘migrants’, which includesany person who is outside a State of which he orshe is a citizen, national, place of birth, or habitualresidence.12 Where reference is being made to peoplewith specific legal entitlements in international law, suchas refugees, trafficked persons or migrant workers,this will be made clear in the text. Finally, plannedrelocation will also be discussed; it refers to a processcarried out under the authority of a State ‘in whichpersons or groups of persons move or are assisted tomove away from their homes or places of temporaryresidence, are settled in a new location, and providedwith the conditions for rebuilding their lives.’1317. This study distinguishes between sudden onsetevents, the intensity of which can influence movement,and slow onset processes, where the focus is onthe gradual effects on resources and livelihoods.1411The Nansen Initiative, ‘Agenda for the Protection of CrossBorder Displaced Persons in the Context of Disasters andClimate Change’ (2015) Vol 1 15–17 paras 8, 16-22.12OHCHR, ‘Principles and Practical Guidance on the Protectionof the Human Rights of Migrants in Vulnerable SituationsReport’ (2018) A/HRC/37/34 9.13Brookings Institution, Georgetown University, and UNHCR,‘Guidance on Protecting People from Disasters andEnvironmental Change through Planned Relocation’ (2015).This Guidance defines planned relocation as occurring withinState borders. However, its principles and legal and policyframework are applicable to cross-border relocation.144See, e.g., ‘Assessing the Climate Change EnvironmentalDegradation and Migration Nexus in South Asia’ (IOM2016) 43.Sudden onset events can result in temporary orsometimes protracted displacement.15 In contrast, slowonset processes often lead to permanent migrationor displacement due to longer lasting or potentiallyirreversible effects to the environment. In some cases,these effects may render a place uninhabitable. Slowonset processes can also contribute to migration inanticipation of climate impacts, potentially creatingdistinct human rights protection needs.1618. Sudden and slow onset events, however, are notalways categorically discrete drivers of movement, butcan also interact and, in combination or accumulation,influence human mobility. Repeated exposure tosudden onset even
I. Introduction: Linking climate change, human rights, and human mobility 1 . change poses a progressive threat to human rights. In regions where malnutrition is already widespread, . already sees people crossing borders to escape socio-economic deprivation, gang violence and disasters
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