The International Legal Challenges Of Climate-Induced Migration: Proposal For An International Legal Framework
Mayer, Benoit
Abstract
Colorado Environmental Law Journal Colorado Environmental Law Journal
Volume 22 Number 3 Summer 2011
6-3-2011
Article 3
The International Legal Challenges Of Climate-Induced Migration: The International Legal Challenges Of Climate-Induced Migration:
Proposal For An International Legal Framework Proposal For An International Legal Framework
Benoit Mayer
The International Legal Challenges of Climate-Induced Migration: Proposal for an International Legal Framework
Benoit Mayer*
ABSTRACT
Tens and maybe hundreds of millions of people have been or are about to be displaced because of rising sea levels or land degradation induced by global warming. In some cases, internal displacement of the population is not possible, either because their territory may become entirely uninhabitable (e.g.: the Maldives) or because the unaffected part of their territory is not able to absorb the whole displaced population (e.g.: Bangladesh). The increasing masses of "climate migrants" cannot benefit from any appropriate protection under today's international law, as they do not fulfill legal conditions to be treated as "refugees." The the humanitarian vulnerability of climate migrants conception of Human Rights and goes against the principle of common but differentiated responsibility for climate change. An international framework on climate change-induced migrations should be legal established as soon as possible to provide a sustainable solution, protect international affected local decision-making. It would be unlikely that an funding and
individuals and communities, and reconcile
is contrary
international treaty could receive a sufficient number of ratifications to be efficient and, additionally, it would not be able to sufficiently take into account the specificity of each migration scenario. Therefore, this paper proposes a framework that could be adopted by a United Nations General Assembly resolution. The proposed resolution would recognize climate migrants' fundamental rights, but could also create an agency in charge of facilitating and supervising bilateral or regional ad hoc negotiations on the resettlement of the most affected populations.
TABLE OF CONTENTS
..........................
360 A. Purpose and Structure B. Climate Change and its Migratory Consequences................. 361 ......361 ...... 362
1. Climate Change and Human Population ..... .............. 2. Three Migratory Scenarios 3. A Wide-Scale Phenomena, though Difficult to
Estimate
.......................
C. Definition of Climate Migrants
..............
............ 365 ...... 367
FRAMEWORK ON CLIMATE CHANGE-INDUCED MIGRATION ..... 369 A. The Need for International Legal Consideration of
Climate Change-Induced Migration 1. The Limits of National Solutions
... .... ...................
a. In Situ Adaptation b. Resettlement........................... c. The Limits of National Solutions ......... 2. Rationale of the International Community's
................ 370 ................ 370 ..... 370 372 ........ 374
............................
B. The Absence of Appropriate International Legal Standards
Applicable to Climate Migrants ........... 1. Inapplicability of Refugee Law ....... 2. Insufficiency of Statelessness 3. The Absence of International Protection of Migrants
............
........ 379 ........... 380 ...... 383
Rights..................................
4. Lack of Efficiency of International Human Rights
Law ..................
................. 386
CLIMATE CHANGE-INDUCED MIGRATION A. Imagining: Guiding Principles for an International Legal
Framework 1. When? The Principle of an Early and Sustainable
.........................
........ 388
Response ...............................
2. What to Protect? The Principle of the Protection of
Individual and Collective Rights.............
........ 391
3. What to Decide? The Principle of a Global Approach
of Climate Change Migration ........
.........
3.... 93
4. With Whose Resources? The Principle of Common
but Differentiated Responsibility
............... 394 5. Who is in Charge? The Principle of Subsidiarity ...........398
B. Back to the Reality: A Realistic Path for the Adoption of an International Legal Framework.......... 1. Limited Discretion of Existing Institutions .... 2. The Incapacity of Litigation to Establish a General
.......400 400 .....
.........................
..... 402
3. Necessity of Treaty Law and its Feasibility at the
Regional Level
4. Soft Law as a Starting Point 5. A Combination of Different Modes of Action................409
...................... ..............
.....
405 ..... 408
CLIMATE-INDUCED MIGRATION A. First Act: a UNGA Resolution on the International
.....................
Community's Responsibility to Protect Climate Migrants.................................. 1. Guidelines on Climate Migrants and Climate-Induced 411 ..... ...... 413 a. Global Fund on Climate-Induced Migration.............413 b. United Nations Agency on Climate Change
.......................... .................
2. Institutional Provisions
Migration .
Migration............................
c. Expert Panel
.......................
414 ..... 414
B. Second Act: Regional Negotiations under the Resolution's
Umbrella .
...........................
........
1. INTRODUCTION
A. Purpose and Structure
The present Article argues that climate migrants should be granted some protection in a third-party country as soon as their state becomes unable to protect their most fundamental human rights. Small island developing states, where internal displacement will be impossible, demonstrate a clear case for this necessity. Larger countries that are not going to become fully uninhabitable make for a more difficult case, but international protection of climate migrants may still be necessary under certain conditions. In particular, countries such as Bangladesh, Egypt, Nigeria, and Vietnam are already facing high demographic pressure and will be unable to cope with the foreseeable loss of inhabitable territory resulting from climate change.'
This Article proposes an international legal framework on climateinduced migration. Part I introduces the migratory consequences of climate change and defines climate migrants. Part II argues for the creation of an international legal framework for climate change-induced migration. Populations will not always be able to adapt to climate change in situ and, under certain circumstances, no option will be left but to move. There are several alternative justifications for involvement of the international community, but no existing international legal standard or to climate migrants. Part III regime provides sufficient protection conceives the international legal framework argued for in Part II. First, it lists five guiding principles that should be applied in such a framework. Afterwards, it takes a pragmatic approach and attempts to conceive a to be adopted and realistic path for an then presents a concrete proposal of an implemented. Part IV international legal framework on climate-induced migration. It assumes that an ambitious convention could surely not be ratified at the global
level and probably not at a regional level in the short or medium-term. Yet, concrete results may be reached in regional forums or through bilateral negotiations if they are facilitated by an international structure. Therefore, I suggest that a resolution by the United Nations General Assembly ("UNGA") should create and monitor a global framework that would be implemented through bilateral and regional negotiations and cooperation and funded by the international community through a United Nations ("UN") agency.
B. Climate Change and its Migratory Consequences
1. Climate Change and Human Population
the average global temperature
During recent years, scientists have reached a consensus on the existence of climate change, even though the exact scope of this phenomenon remains somewhat uncertain.2 In 2007, the International Panel on Climate Change ("IPCC") concluded in its Fourth Assessment Report that "[wiarming of the climate system is unequivocal."' During increased by the twentieth century, 0.76'C, and it is expected to increase by a further 1.80C to 4oC during the twenty-first century. Consequently, sea levels rose by 17 centimeters during the last century, rising at a rate of 3.1 millimeters per year between 1993 and 2003.' The extent to which sea levels are going to rise during the twenty-first century remains uncertain.6 Though not taking into account ice sheet reaction, the IPCC forecast a further rise, between 18 and 59 centimeters, by the end of the century.' More recently, the "Copenhagen Diagnosis" concluded that the "global sea level is likely to rise at least twice as much as projected."' Beyond global warming and sea level rise, climate change is highly likely to result in more frequent such as droughts, heavy and more severe weather phenomena,
precipitation, extreme heat, and tropical storms.9
There is little doubt that climate change is the result of human activity, in particular the emission of greenhouse gases."o Although human beings are responsible for climate change, they also suffer from its diverse consequences. Economic activities, such as agriculture, forestry, and fishery, may be locally impeded." Human life and health are also affected due to extreme heat, natural disasters, and a resurgence of certain diseases such as malaria, which together are estimated to cause over 140,000 excess deaths annually.'2 One of the most dramatic human consequences of global warming could concern human settlement. Climate change is degrading the conditions of life in many inhabited territories, sometimes forcing people to move.
2. Three Migratory Scenarios
Until
recently, climate-induced migration was given
little consideration by both migration studies and environmental governance.3 However, over the course of the past decade, a growing number of to environmental migrants have focused on contributions relating climate-induced migration.'4 Yet, unsurprisingly, climate changeinduced migration has exclusively been conceived of as the displacement of people from a place negatively affected by climate change rather than as a displacement to places positively affected by this phenomenon. In fact, climate change might induce migration by attracting people to to places offering new economic newly inhabitable
territories or
opportunities as a result of climate change. " This perception of migration as a burden rather in an "emigration" approach, rather than an "immigration" approach.
than an opportunity
results
Three scenarios where climate change-induced immigration can occur have been generally identified in low-lying islands, coastal areas, and regions affected by land degradation. The first scenario of climate change-induced migration concerns low-lying islands." In 1998-1999, two islands under the jurisdiction of Kiribati disappeared underwater." In 2005, a thousand inhabitants of the Carteret Islands were evacuated to another island in Papua New Guinea.'8 In 2006, Lohachara Island in the Ganges Delta, where 10,000 live, was totally submerged." In many cases, however, a very slight rise of the sea level in a particularly vulnerable environment may combine with natural erosion and human activity to render the islands uninhabitable.20 Many other islands are at high risk.21 Even without being totally submerged, low-lying islands suffer from more frequent and more violent storms, the infiltration of saltwater threatening domestic agriculture, rapid erosion, and droughts.22 In particular, the risk is critical for Small Island Developing States ("SIDS"), such as Tuvalu and the Maldives, which are very likely to become fully uninhabitable by the mid-century.23
inhabitants used
A second scenario of climate change-induced migration concerns coastal areas, in particular deltas where the local rise in sea level could
far exceed the global average.24 The Mekong Delta in Vietnam is inhabited by 18 million people.25 Half of Vietnamese rice is produced in the Delta, but higher flooding imperils the population's resilience and forces more people to other regions of the country.26 In the GangesBrahmaputra Delta half a million people are displaced every year as a result of flooding.27 Ericson found that approximately 9 million people around forty deltas worldwide will soon be displaced." Storms, erosion, and temporary floods will affect even more people.29 Massive internal displacements create a highly sensitive situation in developing countries, which are in demographic transition and whose environmental resources may be subject to increased competition.30 For instance, Bangladesh is populated by more than 1,000 inhabitants per square kilometer, but most of its territory lies very near the current sea level.'
A third scenario results from desertification and land degradation. is no clear scientific consensus on the exact scope of this There phenomenon, but, according to Reich et al., half of Africa's arable lands are at some risk of desertification or degradation.32 The slow destruction for of agriculture populations but to move to survive. In West African Sahel, several countries, in particular Nigeria, are already facing ongoing desertification conjugated with "one of the highest population growth rates in the is world."" On
the North American continent,
low-developed countries
leaves no choice
land degradation
considered to be the origin of internal displacement or migration of to 900,000 Mexican people every year and may foster 700,000 emigration to the United States.34
The increase of natural hazards
is a further reason for concern because it exacerbates other factors of vulnerability. Climate change causes more violent and more frequent extreme phenomena. Scientific surveys show that natural hazards may result in much greater human risk than rise of the sea level." The Bangladesh Delta is particularly vulnerable to sudden storm surges, including instances where up to twothirds of the land mass has been inundated after extreme weather phenomena." Climate change-driven natural hazards may also result in pandemics and in intrusions of salt water." McLeman and Brown distinguish between "climate process," defined as "slow-onset changes," and "climate events," consisting of "sudden and dramatic hazards."" A climate event that occurs on a background of a slow climate process may be the straw that breaks the camel's back and pushes a population into exodus.
3. A Wide-Scale Phenomena, though Difficult to
Estimate
The scope of climate change-induced displacements is still very much debated,40 partly because an individual's decision to move is often
induced by a combination of factors rather than by one single factor.41 This is evident because "environmental migration commonly presents itself where there is a slow onset of environmental change or degradation process (such as desertification) affecting people who are directly dependent on the environment for their livelihood and causing them livelihood stress."42 Thus, environmental degradation is often a driver of displacement, but rarely is it the unique cause, as people also take into account factors such as economic opportunities, insecurity, attachment to a territory, the cost of relocation, and their perspectives on a new place to settle and new opportunities to be found there.43 Therefore, considering migrant workers, political refugees, and climate migrants as alternative categories may not adequately reflect the complexity of individual the link between specific bad environmental decisions. Moreover, conditions and climate change may be difficult to establish: a bad harvest and hunger often lead to migration, whether or not they result from climate change, war, bad governance, or any other reason.
There is a lack of statistics on the ongoing climate change-induced migration on which a forecast could be based. The International Organization for Migration ("IOM") considers, however, that "gradual and sudden environmental changes are already resulting in substantial population movements," and that in 2008, "20 million persons have been
as
remains
displaced by extreme weather events, compared to 4.6 million internally same period."" displaced by conflict and violence over Distinguishing people moving because of the degradation of soil in the Sahel or a rise of the sea level in Bangladesh from those making the same journey for another reason is almost impossible. In particular, no record is kept of internal displacements.45 Therefore, a vast amount of the scope of future climate-induced uncertainty displacements.46 Myers recognized that his estimation of 200 million "heroic climate-displaced extrapolations"47 and later updated to 250 million.48 Other estimations range up to 1 billion persons.49 The UN Secretary-General considers credible estimations to be "between 50 million and 350 million."50 These figures are particularly large compared with today's 214 million foreignborn individuals worldwide and 16 million political refugees."' It is likely that many of these climate-displaced persons will remain in their own country, but some scenarios will necessarily lead to emigration.
2050 was
persons
based
on
by
C. Definition of Climate Migrants
Black complained in 2001 that "[t]here are abundant typologies of little
'environmental migrants,' but
refugees'
'environmental
Colo. J. Int'l Enytl. L. & Pol'y
agreement on, or understanding of what these categories might really mean."52 Though some literature has tried to clarify the definitions during the last decade, the meaning of the words often remains quite unclear for lack of an official or widely accepted definition." The notion of "climate migrant" coexists with that of "environmental migrants." For the IOM, environmental migrants are defined as those who, "for compelling reasons of sudden or progressive changes in the environment that adversely affect their lives or living conditions, are obliged to leave temporarily or their habitual homes, or choose permanently, and who move either within their country or abroad."54 This definition adopts a pragmatic approach, as it indiscriminately includes people displaced by climatic events as well as by climatic process, people moving temporarily or permanently, people forced to move, and those choosing to do so.
to do so, either
For the sake of this Article, climate migrants will be defined more this Article deals with climate migration, not strictly. First, environmental migration. Climate migrants are people who are only moving because of global climate change as opposed to any "changes in the environment." This difference has important consequences when dealing with the role of the international community, as it will be argued that the international community is responsible for causing climate change. On the contrary, dealing with environmental migration may be a way to evade any international substantive commitment through the historical rejection of responsibility.
to migrate generally takes
Second, whereas the IOM's definition demands that climate change is the only cause for displacement, it has already been mentioned that a into account a set of factors. decision Moreover, the way that climate change affects the inhabitability of a territory depends on adaptation capabilities. Thus, the most challenging definitional issue is probably the determination of a threshold of causal relationship between climate change and migration. Renaud et al. suggested a distinction between "environmental motivated migrants," "environmental refugees."" However, there is minimal utility in creating a kind of semi-protection
forced migrants," and "environmental
status for would-be semi-forced climate migrants; one is either forced to migrate or not. Therefore, scholars should find a way to decide this question in binary terms. A solution may be found by analogy to the Refugee Convention, which does not require that persecution be the sole, or even the main, reason for the displacement of political refugees; it only requires that there is persecution." The same objective criterion that a good reason exists rather than has been a determinant of a personal choice should be adopted concerning climate migrants.
Third, this Article focuses on the issue of permanent climateinduced migration, thus excluding persons fleeing an environmental catastrophe for a short period. Immersion, desertification, droughts, and land degradation necessarily lead to permanent migration. If climate change may also lead to temporary displacements in the case of a heavy climate event disconnected from any ongoing climate process, these from permanent displacements would be resettlement and are likely to be a less thorny legal issue because they are only temporary.
intrinsically different
Fourth, while the IOM and a large part of the literature include persons displaced internally within the category of "climate migrants," this Article focuses on international climate migrants. This Article does not argue that internal climate migrants should not be protected by the international community, but it merely assumes that their situation is not of the same nature as international climate migrants. In particular, internal displacement should mainly be monitored by states (with the assistance of the international community), whereas, by definition, state's international jurisdiction. Surely, an international program on "climate internallydisplaced persons" should complete the international legal framework on international climate-induced migration that is the subject of this Article.
climate migrants
are excluded
from
their
II. JUSTIFYING THE CREATION OF AN INTERNATIONAL LEGAL FRAMEWORK ON CLIMATE CHANGE-INDUCED
This first part argues that a new international legal framework on climate-induced migration should be created. Subpart A demonstrates to climate change-induced migration are that national responses insufficient and require an international normative intervention. Subpart law does not provide for any B shows appropriate standard applicable to climate migrants.
that current
A. The Need for International Legal Consideration of
Climate Change-Induced Migration
justifications
This first Subpart argues that national responses to climate change are not sufficient to mitigate the effects of climate change and highlights community's for some possible responsibility to protect climate migrants. This Article does not deal with mitigation of climate change but assumes that adaptation is necessary whatever the outcomes of a mitigation program may be because "[t]he benefits of mitigation will be experienced several decades after the long implementation of cutbacks persistence of the latter in the atmosphere.""
in [greenhouse gas], given
1. The Limits ofNational Solutions
It is now common knowledge that "natural disasters" are not fully natural, since they depend heavily on social, economic, and political circumstances. This also applies to climate change, which is now known to the to have anthropogenic origins. However, this also applies consequences of climate change, as we often have the capacity to foresee natural phenomena and to prevent or mitigate any harm through community's appropriate policies. As Brown underscores, is a function of its exposure to climatic conditions (such vulnerability ... as a coastal location) and the community's adaptive capacity (the capacity of a particular community to weather the worst of the storm and recover after it)."" The adaptive capacity is primarily a national matter. Under international human rights law, states must secure their own international fundamental rights. As will be shown, population's organizations have, however, helped states to implement this obligation. The two possible ways of coping with climate change will be examined in turn: adapting in situ or leaving.
"[a]
a. In Situ Adaptation
is a
first-rank choice
In situ adaptation
to environmental change. For instance, a decision not to establish human settlements in flood plains will have little cost in comparison with the damages undergone otherwise. More specific ways of adapting to the local consequences of climate change have been implemented. to land degradation may classically consist of culture Adaptation diversification, water storage and management, irrigation systems, and
for adaptation
famine early warning systems. In contrast, desertification clearly calls for more radical policies. On June 17, 2010, a summit on the Great Green Wall gathered the representatives of the eleven most affected African states in N'Djamena, defining an ambitious project to plant a 7,000kilometer-long, 15-kilometer-wide "strip of forest," in order to "reforest the continent from west to east to battle desertification."59 However, national policies often take note that it is not possible to fight against climate change, and instead they prefer to focus on the aggravating factors, such as human overexploitation of land."o Such policies may slow down land degradation and desertification, but they will probably not reverse ongoing phenomena.
Adaptation to flooding allows more original ideas to be followed. For instance, the Bangladesh government built flow regulators along rivers. Similarly, the Maldives built a 3.5-meter-high wall around Male, its most inhabited island, reducing its vulnerability to natural hazards. In the Netherlands adopted a a more ambitious adaptation strategy, Flooding Defense Act and a Coastal Defense Policy, which included the project of building higher storm surge barriers, controlling the expansion of the rivers into side channels and wetlands, and leading regular safety reviews.6' Similarly, Singapore is contemplating the possibility of having dikes built by Dutch companies.62 Another form of adaptation consists of mitigating flooding damage as opposed to preventing floods, for instance through the creation of "'floating gardens' that rest on a bed of water hyacinths"63 or raising ducks rather than chickens.64
National
international Programme
adaptation programs organizations.
have been
encouraged by The United Nations Development for
the Organisation
the World Bank,"
("UNDP"),65
Economic Cooperation and Development ("OECD"), and the Asian Development Bank67 have each set up their own program on adaptation to climate change, while the UN Convention to Combat Desertification calls for international cooperation and partnership. However, only very limited financial aid has been provided. The United Nations Framework Convention on Climate Change ("UNFCCC") supervised the creation of National Adaptation Programs of Actions68 for least-developed countries, which was funded by an ad hoc voluntary trust fund administered by the Global Environment Facility ("GEF"). The GEF administers two other trust funds focused on climate change adaptation programs, and the GEF is the "largest funder of projects to improve the global environment."69 Yet, none of these four funds has an annual budget reaching $3 billion, which is the sole cost of the Dutch "Room for the River Program" that consists of improving security around rivers in the Netherlands."
b. Resettlement
Leaving one's home is, at least, the only option when adaptation is not possible, not affordable, or too dangerous. It seems quite consensual in scientific literature, as well as in publications by non-governmental organizations ("NGOs"), that in situ adaptation is not always possible. that "migration may be the only For instance, Brown underscores possible adaptive response in the case of some of the small island and low-lying states where rising seas will eventually flood large parts of the country."7' inserting a framework for international resettlement programs in the Copenhagen Treaty.72
In 2009, NGOs unsuccessfully
suggested
research, meetings,
However, the international community remains, to say the least, reluctant to acknowledge that resettlement may sometimes be necessary. For instance, an official report by the UNFCCC on "Climate Change: Impacts, Vulnerabilities and Adaptation in Developing Countries" stated that "international relocation is not an option"73 for SIDS and then failed to suggest any possible adaptation track for low-lying SIDS, and only international recommended partnerships. The Copenhagen Agreement only mentioned "adaptation in actions aimed at reducing vulnerability and building resilience developing countries,"74 without considering resettlement as an option. Thus, the international community assumes that adaptation should be national, 7 and even domestic resettlement is rarely considered. This may be explained by the fear that recognizing resettlement as a legitimate solution at the national level would give an argument in favor of international resettlements in situations where national resettlement is not possible.
and national or
Within affected states, particularly SIDS, there are ongoing debates on the relevance of resettlement solutions, which are sometimes opposed or mistrusted by these states' representatives. In favor of resettlement, the UN ambassador from Nauru denounced efforts to mitigate climate change consequences, saying they were focused on development, whereas "no amount of development could save the small islands from disappearing if global warming continues."7 Many fear that adaptation to climate change, either through in situ adaptation or resettlement programs could take the place of preventing climate change,n and resettlement is often associated with the loss of identity. For instance, Tuvalu's Prime Minister reminded that "Tuvalu is a nation with a unique language and culture" and argued that "[r]esettlement would destroy the very fabric of [its] nationhood and culture.""
local consequences of climate change. For
Yet, climate-induced migrations are not something new. Adger highlights that "[m]igration ... is a coping mechanism used throughout history by societies as part of their resource utilization strategies and as a means of coping with climate variability."79 In 1984 and 1985, 600,000 people were internally displaced in Ethiopia during the famine.o In the last decade, several resettlement programs have been set up by states to the combat Vietnamese "living with floods" program organizes the resettlement of 20,000 landless and poor households in regularly flooded areas to very close but less endangered areas. Yet, it has been put forward that this program considerably weakened the social links of displaced people." In the United States, a "voluntary home buyout" program was created in Harris County, Texas, to displace households living in flood plains.82 However, resettlement programs so far have been limited to within national borders; as a result, the foe of climate migrants is not climate as much as borders and migration control.
instance,
c. The Limits of National Solutions
in every coastal country,
increased natural hazards. If rising sea
Zarsky shows that "[u]nsurprisingly, but worrisome nonetheless, the most vulnerable regions are the poorest."" The Tropics are predicted to experience the most severe consequences of climate change, such as levels desertification and theoretically cause equal concern the vulnerability of the Tropics three factors: high demographic pressure, difficult settlement conditions, and little financial capacity. While all coastal states face challenges, "[p]oorer countries are to support widespread adaptation."84 Therefore, one under-equipped solution to the consequences of climate change on least-developed and developing countries might consist of huge international development aid. This would be extremely costly, and such generosity from Western governments may be deemed quite unlikely; overall, this would not be sufficient in all cases, as adaptation may be technologically impossible.
increased by
In any case, this Article assumes that such massive aid will not be able to be given in time, and that in the short- or middle-term, a certain number of states will no longer be able to protect their populations from the lifeendangering consequences of climate change.
2. Rationale of the International Community's
This Article argues that the international community bears certain obligations toward populations affected by climate change, including setting up international resettlement programs for climate migrants. There could be different ways of justifying such a commitment from the international community, and these different justifications lead to very different forms of intervention. This paper briefly presents four types of treaty obligations, a arguments: a positivist argument based on humanitarian argument on solidarity and responsibility to protect, a fairness argument on the polluter-pays principle, and a realist argument based on the protection of world security." These arguments are often complementary rather than alternative.
The international community's responsibility is first justified by obedience to the law. The UNFCCC provides that "[t]he developed country Parties ...shall ...assist the developing country Parties that are to the adverse effects of climate change in particularly vulnerable meeting costs of adaptation to those adverse effects."" Up to now, this provision led only to very limited financial aid to in situ adaptation, the 1992 exclusive of any program on resettlement. Arguably, convention drafters were not aware of the existence of a hypothesis whereby no choice would be left to populations but to leave their countries; therefore, the notion of "adaptation" in the UNFCCC should be understood as including national or international resettlement as need be.
A second possible justification relates to humanitarian assumptions. Nescient international solidarity may be invoked to justify a moral, if not intervene. The legal, obligation of developed states paradigm of human rights, recognizing dignity and fundamental rights to any human person, may also push for some political decisions to help populations facing disasters. If the protection of one population's human
to somehow
rights. The
rights is normally the responsibility of the nationally and territorially competent state, one may consider that other states bear a second-rank obligation. An obligation to protect has been recognized in the case of "genocide, war crimes, ethnic cleansing and crimes against humanity",7 in a three-pillar structure. It is easy to draw a parallel between mass crimes and climate change, as both threaten entire populations' most the classical "protection fundamental responsibilities of the state" towards its own inhabitants. Yet, the second international community and through "[i]nternational assistance and capacity-building" and "[t]imely and decisive response."" A second-pillar obligation has been recognized the creation of in the climate change context through cooperation, partnerships, and funding of adaptation programs. The next step would be for the international community to recognize third-pillar obligation, consisting of intervening "in a timely and decisive manner when a state is manifestly failing to provide" protection.8
include respectively
third pillars
first pillar
A
third possible justification of the international community's obligation relates to the general principle of responsibility.90 There is no need to review sophisticated theories of fairness to notice the injustice of the human consequences of climate change. Most affected populations live in least-developed or developing countries, which have benefited little from the emission of greenhouse gases. On the opposite side, those who have emitted greenhouse gases are developed countries that will likely suffer much less from climate change." Some polluting states, like Canada and Russia, could even benefit from global warming, since some inhabitable or exploitable.92 northern
regions will become more
Therefore, the principle of tort responsibility may be invoked by affected developing states claiming a share of developed states' benefits. Alternatively, the doctrine of unjust enrichment may apply, allowing affected states to claim some part of the new opportunities appearing in northern states.93 Besides being "moral," applying the polluter-pays principle could lead to economic efficiency, as it would favor domestic measures mitigating climate change through re-internalizing negative externalities in the cost of production. The Stem Review showed that a into rational behavior of developed states taking externalities account would consist of drastic measures to mitigate global warming.94
fully
A fourth justification of international intervention relates to peace and security.95 Considering that some states will not be able to cope with the consequences of climate change, plenty of migrants will flee their countries, and many others will be displaced internally. International migration should be legal and monitored rather than be illegal and out of control. One can hardly imagine the human, but also the potential political and geopolitical, consequences of tens or hundreds of millions of additional undocumented migrants over the upcoming decades, compared with today's number of unauthorized migrants, estimated by the OECD to be more than 30 million.96 Obviously, concerted migration schemes are preferred to emergency evacuation. In the absence of such a scheme, natural events, such as massive floods or severe cyclones in Asian deltas, might break the resilience of entire populations to climate change and lead to a domino effect whereby millions of people suddenly decide to leave. History has shown that such displacements can hardly happen without conflicts. This is especially true for our time, which is characterized by high population density in many regions of the world, states' sovereignty, and control of borders. According to Akhavan, postinternational relations are characterized by "an emerging albeit 9/11 grudging consciousness of humankind's inextricable interdependence" in
"a world in which events in the most remote reaches of the planet would have inevitable repercussions on all."97 The areas of the world negatively affected by global warming or sea level rise, but abandoned by those responsible for climate change, could become the new Afghanistan, in which instability and violence would be the fertile ground of a new wave of terrorism. Therefore, Western governments cannot ignore the conflicts that are going to arise from climate change-induced migration.
the Though the least convincing from an ethical perspective, security approach may be a good driver to push developed countries to commit. For instance, security expert Sderblom published an alarmist article in a leading Australian security magazine warning of the risk that "potentially millions of poor and unskilled regional neighbours come begging for a new life." Climate change could "raise the risk of peoplesmuggling syndicates targeting Australia," whereas "[t]errorist groups could target Australians travelling overseas, orchestrate a terrorist attack their upon Australia as in the Malacca Straits environment, or attack Australian shipping region." Therefore, Sdderblom concludes that "Australia needs to invest more time and money in scoping the impact of global warming and earn some credibility along the way by being seen to proactively drive improvements to the problem of global warming.""
the perceived damage
retribution for
Furthermore, security may constitute a legal argument to implicate the United Nations, whose first purpose is "[t]o maintain international includes "tak[ing] effective collective peace and security," which measures for the prevention and removal of threats to the peace."99 On April 17, 2007, the United Kingdom organized a debate at the UN Security Council on climate change as a security issue.'00 Two years later, on June 3, 2009, the UNGA adopted a resolution on Climate and its Possible Security Implications, which "invite[d] the relevant organs of the United Nations, as appropriate and within their respective mandates, to intensify their efforts in considering and addressing climate change, including its possible security implications"'01 and requested a report by the Secretary-General on the security implications of climate change.
B. The Absence ofAppropriate International Legal
Standards Applicable to Climate Migrants
to be given
legal "consideration"
The previous Subpart has shown that there are good arguments for to climate change international legal regime migration. However, no existing specific international applies to climate migrants. In particular, climate change law focuses on climate change mitigation and adaptation, but it does not recognize a status for those who cannot adapt in their country and have to flee elsewhere. Recognizing climate migration for the first time ever, the Cancun Adaptation Framework contented itself with encouraging states to enhance understanding, coordination and to carry out "measures cooperation with regard to climate change-induced displacement, migration and planned relocation, where appropriate, at national, regional, and international levels."'O2 Thus, this Subpart examines what Docherty and Giannini have called a wide "legal gap"03 and looks at law instruments concerning (1) refugee protection, (2) international statelessness, (3) migrants, and (4) human rights generally.
A paradox is that international law does provide some protection in case of internal climate-induced displacements. As long as the victims of climate change do not cross a border, they benefit from the Guiding Principles on Internal Displacement, which applies to any person or group 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 ... natural or human-made disasters, and who have not crossed an internationally recognized State border."'04 internally displaced persons ("IDPs"), including Under this regime,
if they had breached an
climate-induced displacements, have the right "to receive protection and humanitarian assistance" from their state's authorities, and a state shall not arbitrarily refuse international humanitarian assistance.'os However, the United Nations High Commissioner for Refugees ("UNHCR") has so far interpreted its mandate on IDP protection as limited to those IDPs "who, international border, would be refugees."'06 Furthermore, due to its limited resources, the UNHCR has constantly maintained that it "does not have a general competence for is far from internally displaced persons,"' automatic.'os As it will be seen in the next section, this result excludes the UNHCR's most of jurisdiction.
the climate change-induced
intervention
IDPs
from
its
1. Inapplicability of Refugee Law
language,'09 and
Climate or environmental migrants are often qualified as climate or in some in journalistic environmental "refugees" scientific literature."0 More than a mere question of vocabulary, this in some cases, an reflects an easily perceivable analogy and, argumentative posture based on this analogy. For instance, Stavropoulou underscores that "[tihere is nothing inherent in the ordinary meaning of the word 'refugee' that would suggest that people fleeing flooded homes ... should not be considered as refugees.""' The analogy stems from the fact that both political refugees and climate migrants are fleeing a place is no longer ensured. The forced character of where
their safety
displacement is often considered as the main difference between political this somewhat simplistic refugees and "ordinary" migrants.112 dichotomy, climate migrants should surely be considered closer to political refugees than to "ordinary" migrants. In addition, climate migrants flee depravation of their core fundamental rights, in particular their right to life, more than they pursue a better standard of life in a more prosperous country. As a result, "climate refugees" and political refugees have some similar needs in terms of legal protection. In particular, the non-refoulement principle, which is at the core of the is equally a moral international protection of political requirement for climate refugees."
refugees,
The 1951 Refugee Convention, as modified by the 1967 Protocol,"l4 defines a refugee as any person who "owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence as a result of such events, is unable or, owing to such fear, is unwilling to return to it.""' Consequences of climate change cannot fall per se within the definition of a "well founded fear of being persecuted." Though most climate migrants would have no difficulty proving that they could suffer a sufficient level of harm, a generally insuperable difficulty stems from the "source-of-persecution" requirement that "the cause of the harm [be] that the either the government or a person or group of persons government is unwilling or unable to prevent from continuing the persecution."'"'
Since
the origin of the Refugee Convention,
the cause of displacement has been understood as "deriv[ing] from the relations between the State and its nationals."i" The UNHCR later confirmed that is normally related to action by the authorities of a "[p]ersecution country,""' either because national authorities persecute someone or because they let someone be persecuted. The requirement that a person be deprived of their fundamental rights because of national authorities was actually intended to exclude climate migrants from the protective status of refugees. According to Hong, "[t]he development of refugee legislative history and interpretative guides, law, as evidenced by indicates that the drafters recognized natural calamities as major causes of human migration and purposefully declined to extend refugee status to the victims of such events."ll9 Thus, "[e]nvironmental factors that cause in and of movements across international borders are not grounds, themselves, for the grant of refugee status"20 under international law. According to the UJNHCR Handbook, by indicating persecution as a specific motive, the convention "automatically makes all other reasons for escape irrelevant to the definition" and "rules out such persons as victims of famine or natural disaster, unless they also have well-founded fear of persecution."21
However, refugee law may provide some protection to climate migrants in two cases. First, refugees may accidentally fall within the Convention's definition of "refugee." It seems difficult to imagine that consequences of climate change might be considered a form of persecution committed by polluting states, as the causal and purposeful relation between one country's pollution and some local disaster would be very difficult to establish. Responsibility for climate change is collective, and "no individual government is primarily at fault."22 But if a the "source-of-persecution" government has not been willing to reduce the known vulnerability of a particular group to climatic phenomena. For instance, a national policy
requirement could be
fulfilled
that prevents any internal displacement of endangered populations or location could be mistreats those who move from an endangered qualified as "persecution," entitling some climate migrants to refugee protection. This would also be the case if a government excluded a minority from any protection in face of a natural catastrophe, as the minority members who would be discriminated against might be the government. considered Alternatively, preventing the provision of international humanitarian assistance to the victims of a climate process may be considered a form of persecution. Thus, when a state is unwilling to protect any part of its population against the consequences of climate change, people "seeking refuge from the resulting environmental degradation are effectively seeking refuge from their government as well."123
from persecution by
to be suffering
A second hypothesis under which climate migrants can be entitled to refugee protection relates to subsidiary protection. Two pioneer states, Finland and Sweden, have adopted legislation granting such subsidiary protection for anyone who left their country and who "is unable to return to the country of origin because of an environmental disaster."l24 Nonetheless, the Scandinavian subsidiary protection of "environmental refugees," including some climate migrants, is the exception to the rule; climate migrants are generally not entitled to refugee protection.
2. Insufficiency of Statelessness
The international legal regime for the protection of stateless persons and the reduction of the cases of statelessnessl25 might be applicable to some climate migrants, even though there are many uncertainties as to how this concept might apply. The first issue relates to the very nature of statehood. To be recognized, a state must have a territory, a population, and a government. However, it is uncertain whether these conditions must be respected continuously after a state has been recognized.'26 Most likely, a state cannot be maintained if an element disappears on a permanent basis.
Another issue is whether the territory requirement for statehood
inhabited, natural
territorial waters as
territorial waters only
would be met when land territories emerge. This does not seem to be the case in the United Nations Convention on the Law of the Sea, which the accessory of land territory and considers islands.'27 recognizes However, these provisions "rest on the assumption that there will not be a significant rise in sea-level,"128 and may therefore be inapplicable. Yamamoto and Esteban suggest that the concept of a "deterritorialized state" may "become a special type of international entity that would allow these Island States to survive in some form the disappearance of their territory."29 Yet, even in a worst-case scenario, the land territory of to be entirely Pacific islands, such as the Maldives, submerged before the end of the century; however, it will become Then, the "population uninhabitable long before being submerged.' element" of statehood would be challenged long before its "territorial" element. Eventually, is not defined by the existence of a state international conventions or institutions, but assessed by other states. Then, the continuing existence of the Maldives or other "sinking" islands depends primarily on political decisions.i13
is not likely
Statelessness is obviously a more secure status than the nationality of an uninhabitable country. However, international law does not provide stateless persons with a plethora of rights, and, in particular, does not provide the right to enter a territory. The Convention relating to the Status of Stateless Persons, ratified by sixty-six States,32 prohibits expulsion of stateless persons except on grounds of national security or public order, but under the condition of lawful stay on the territory,' whereas political refugees protected by the Convention Relating to the Status of Refugees cannot be sanctioned for their illegal entrance into a
state's territory.134 However, the notion of a reduction of statelessness may give stateless climate migrants an argument for naturalization. The Preamble of the Convention on the Reduction of Statelessness provided in a weak language that it is "desirable to reduce statelessness by international agreement."'15 A similar claim could be based on Article 15 that of the Universal Declaration of Human Rights, providing "[e]veryone has the right to a nationality," but this right has also remained of a doubtful legal nature.'"' Then, the requirement to reduce statelessness or the universal right to a nationality may constitute good political arguments, but probably not legal ones.
3. The Absence ofInternational Protection of
Migrants Rights
Climate migrants can hardly invoke their status as "migrants," as international law does not provide much protection to migrants. The International Convention on the Protection of the Rights of All Migrant Workers and Members of their Families does not provide any right to the International Labour Organization cross borders.'37 Neither conventions,138 nor the UNGA's Declaration on the Human Rights of Individuals Who Are Not Nationals of the Country in Which They Live give migrants any rights to move to or to stay.139 These international instruments mainly recall internationally recognized human rights in the specific case of migrant workers or aliens, and their low rate of
ratification shows that few states are actually keen to recognize and protect even basic human rights in the case of economic migrants.
instance, "[f]ollowing
Free from any international obligation, many states will select migrants so as to accept only qualified, working-age migrant workers. the Tuvaluan government's appeal for For assistance with relocation in 2000, the New Zealand government created the Pacific Access Category (PAC) to enable seventy-five residents... from Tuvalu ...to migrate each year," but "applicants must be eighteen to forty-five, have an 'acceptable' offer of employment and meet a the migration minimum English opportunities obviously do not bring an appropriate answer to the necessity that all climate migrants be given a new place to live in dignity and may even "disrupt production systems and undermine ... domestic markets" in the country of origin.141 It is fundamental that no one be left behind on an isolated island against their will, and economic migration does not generally give any satisfactory answer to this requirement.
requirement."40 Yet,
language
4. Lack ofEfficiency ofInternational Human Rights
Law
increase of natural hazards have
A last potential source of international legal protection for climate migrants might be found in international human rights law.'42 Obviously, submersion of one's entire country, flooding, desertification, or a on significant fundamental, widely recognized rights such as the right to life, but also economic and social rights and possibly third generation human rights, such as the right to security.'43 However, if climate migrants' rights are well established, there are obstacles to the identification of the corollary duty holders. Under international human rights law, a state has the responsibility to protect the fundamental rights of its citizens and any other person within its jurisdiction.'" States do not have any human rights obligations to other countries' citizens who are not under their
consequences
jurisdiction, understood as "effective control."45 In the Bankovic case, the European Court of Human Rights concluded that state-parties of NATO did not have effective control over the victims whom they were bombing in Sarajevo, and therefore the Convention did not apply.146 Even if a state has, or should have, effective control over its level of greenhouse gas emissions, it surely does not have control over the remote consequences of climate change on the other side of the world, several decades later.'47
If human rights can obviously serve as a justification for the international community's moral and political responsibility to intervene, it does not by itself create any pre-departure right that climate migrants could invoke vis-a-vis third-party states, such as a right to migrate. Legally unprotected climate migrants would be turned back by "host" countries with even less hesitation than asylum-seekers are turned away. However, if climate migrants eventually manage to move to a new country, either legally or illegally, they should be allowed to invoke fundamental rights against the state that has effective control over them. For instance, this could lead to a prohibition against the expulsion of a the Convention Against climate migrant based on, Torture.'48 The Human Rights Committee stated that "state parties [to the ICCPR] must not expose individuals to the danger of torture, cruel, inhuman, or degrading treatment or punishment upon return to another
for example,
country by way of their extradition, expulsion or refoulement."l49 The European Court of Human Rights adopted a similar position in Soering v. The United Kingdom.' Yet it is likely that many states will not accept the full dimension of their obligation to protect fundamental rights under international human rights law, especially if climate migrants have crossed the border illegally. Abuses may be frequent, while litigation under international human rights law would be extremely long and difficult."' Therefore, international human rights law is too vague and leaves too much room for national "interpretation" to provide quick and efficient protection of climate migrants. On the other hand, international human rights are likely to develop, thanks to the issue of climate-induced migration, through new jurisprudence and instruments.
III. CONCEIVING AN INTERNATIONAL LEGAL
FRAMEWORK ON CLIMATE CHANGE-INDUCED
As argued in Part II, a new international legal framework on climate-induced migration should be created. Part III will describe the picture of such a framework, first through identifying guiding principles framework on climate change-induced that an migration should respect (Subpart A) and then by imagining a realistic path to implement this legal framework (Subpart B).
legal
A. Imagining: Guiding Principles for an International
Legal Framework
identifies
This Subpart
five guiding principles
that such an international legal regime should respect: (1) an early and sustainable response; (2) respect for individual and collective rights; (3) a global approach to climate change migration; (4) burden-sharing; and (5) subsidiarity.
1. When? The Principle of an Early and Sustainable
Response
Members of the international community are likely to bury their "heads in the sands,"'52 waiting for a tragic catastrophe to happen before even recognizing the reality of climate change-induced migration. A cynic may wonder how many people need to die for the world to open its eyes. In the Ganges Delta, the most recent major storm surge in 2007 killed 4,000 people, in addition to 140,000 who died in 1991.'3 In 2008, Cyclone Nargis caused more than 145,000 deaths in the Irrawaddy Delta in Burma.154 In every such instance, hundreds of thousands, or millions, In of people are displaced, and many of them remain homeless.1" comparison, widespread images of a storm surge touching a small, would-be paradisiacal island, with a possible second disaster in the near future, may then have a greater influence on public opinion. This may lead to emergency evacuation and an international resettlement program announced by governments in prime time.
Yet, unlike political asylum claims, climate change migration can be foreseen well in advance. Even though nobody can guess when a climate event will suddenly force people to migrate from their homes, the growing probabilities of such an event are established.'56 The international community should take advantage of the foreseeable character of climate migrations and adopt a response to climate change migration as early as possible in order to mitigate the harm produced by the potential cost, and adopt sustainable climate change, reduce resettlement and solutions.' reintegration of affected populations over periods of many years and decades" should be preferred to "mere emergency response and disaster relief."'" Short-term in situ adaptation should be pursued only with due
and voluntary
a "planned
Thus,
consideration to a longer-term solution, which may imply resettlement.159 The risk is that false promises of in situ adaptation give the international community an excuse to avoid considering the necessity of resettlement and allows the world to simply wait for a catastrophe.
the country of destination can
A good response to climate change migration should not only be found early, it should also be a sustainable solution that prevents any leaves an immerged land or is further catastrophe. When someone pushed away by desertification, there is little to no hope that this land will become inhabitable again in that person's lifetime. Like economic migrants, there is a risk that climate migrants would be admitted to take asylum countries only when advantage from them "to free the citizens from hard and unpleasant work."160 To avoid such a situation, climate migrants should be "seen and treated as permanent immigrants"'"' from the outset and be entitled to the same rights as citizens. Substantive equality of climate migrants in the enjoyment of their rights may require particular forms of action given the difference of their situation. For example, climate migrants may require language education or assistance in finding a job. More particularly, that "[d]uring and after relocation, psychological Locke underlines trauma will no doubt be severe" and that "[r]elocation methods must take this into account."'62 Eventually, the permanent character of climate change-induced migration reflects the fact that the environmental causes of climate migration are themselves permanent, whereas a political change may stop the persecution of political refugees at their place of origin.
All in all, resettlement sustainability means that climate migrants should be given a stable and permanent status, entitling them to certain forms of protection. Indeed, if climate migrants are likely to live the rest of their life in a host country, there is no reason why they should not be naturalized. Naturalization would be the best way to ensure that climate migrants are not exploited after their migration and to guarantee "political justice.""' However, the automatic naturalization of all climate migrants is utopian, as states may be reluctant to accept any international in the sovereign and sacrosanct prerogative of legal breakthrough In addition, assimilation may also impede climate granting nationality. '
migrants' collective identity, and resettlement in itself may be perceived as a major cultural loss.165
2. What to Protect? The Principle of the Protection
ofIndividual and Collective Rights
A second guiding principle is that an international legal framework on climate-induced migration should recognize both individual rights and collective rights. The framework should leave no doubt that "[r]espect for human rights must be an integral part of any policy response to the migration and displacement consequences of climate change, no matter how the motivations for movement are defined."'66 Yet, individuals do not live alone; belonging to communities is a human need on economic, social, and political levels. Thus, one may consider that "if certain individual moral rights exist, then certain collective moral rights also ..cannot be separated from exist," for "[c]ertain individual rights . collective rights."67 The Human Rights Committee recognized that "the its right of self-determination realization is an essential condition for the effective guarantee and observance of individual human rights and for the promotion and strengthening of those rights."'16 In addition, cultural rights include the right to take part in "cultural life,"69 which certainly requires a form of collective identity.
importance because
is of particular
An international
legal framework dealing with climate-induced migration must reconcile the protection of a displaced groups' collective identity with the fundamental rights of each individual, which might be a
the brain drain of talented
very difficult task.'o Individual economic migration under today's national regimes would tend to leave unproductive people behind and destroy the community's social structure. It has, for instance, been argued that "[r]elaxing immigration rules as part of a concerted policy to in areas affected by climate change 'release the population pressure' from the could accelerate developing world to the developed-and worsen the 'hollowing out' of affected economies, which is itself a driver of migration.""' Large-scale resettlement programs could also have dramatic consequences, as "moving people out of established social networks threatens their livelihoods and contributes to a sense of isolation."'72 A collective this resettlement, destruction of the social network. Eventually, the cultural rights of climate migrants would be nullified if they had to "abandon their identity and their community and integrate elsewhere.""'
individual migration, may
individuals
reduce
rather
than
Biermann and Boas argue for a climate migrant regime to be "tailored not to the needs of individually persecuted people (as in the current UN refugee regime) but of entire groups of people, such as populations of villages, cities, provinces, or even entire nations, as in the case of small island states."74 An international collective resettlement program may be a solution not only in the extreme case of an island state tolerance immersion, but also when population density reaches a threshold resulting from climate-induced internal displacements. " An interesting option would be to grant "migrants" sovereignty in their new settlement,'76 either through cession or lease of territory, as it would fully allow migrants to maintain their national identity. Such an option has been considered by Tuvalu and the Maldives without much success, because New Zealand and Australia are opposed to any cession of territory or any specific migration program.77
On the other hand, a purely collective treatment of climate migrants would undermine individual rights. Each climate migrant may have
for
to Locke,
instance, different expectations abroad. According islanders with few educational or economic "[y]oung unemployed opportunities at home may benefit from access to educational facilities, the job market and perhaps the greater freedom available in developed countries," whereas "older Pacific islanders, and those who unwillingly relocate, may be the losers if forced to migrate.""' This may lead to different attitudes toward resettlement, which all ideally should be taken into account. Mortreux and Barnett show that "[p]eople in Funafuti [the main atoll of Tuvalu] wish to remain living in Funafuti for reasons of lifestyle, culture and identity.""' Any collective resettlement would require a collective decision. A democratic decision-making process that would allow an effective, early, and collective resettlement decision to be taken will need to be invented."0 In general, collective resettlement leads to very difficult issues relating to the respect of minorities in the exercise of collective rights. For instance, how would elders who want to finish their lives on "their" island be dealt with if everyone else wants to leave?
3. What to Decide? The Principle of a Global
Approach of Climate Change Migration
lead
that should
to a global solution, as the
A third guiding principle is that the adopted approach should be global in its geographical and material scope. Climate change is a global largest phenomenon greenhouse gas emitters are often far from affected countries, and instability in one region of the world can bring insecurity to remote countries."' Adopting a global approach to climate change migration is an equity requirement as it ensures that those states responsible for climate change pay for its consequences; but it is also an efficiency requirement as it includes both developed countries of the global North together with affected countries, mostly of the global South. This also implies that an international framework on climate-induced migration internal cannot completely evade
issue of climate-induced
displacements. Granting asylum only to those who cannot be protected in their home country might, in extreme circumstances, create an incentive for suboptimal domestic decisions not to take adaptive measures for the purpose of "getting rid" of vulnerable populations. A genuinely global approach toward climate-related migration would push the actors to balance the costs and benefits of international displacement and in situ toward climate change adaptation. Furthermore, a global approach migration should also be coordinated with climate change mitigation to an policies. This may open the path to national contributions international fund that is indexed on the level of emissions of greenhouse gases and/or on the reduction of these emissions.
4. With Whose Resources? The Principle of Common but Differentiated Responsibility
A fourth guiding principle is that costs should be split between states on a fair basis. But what is a fair basis? Reflecting a widespread claim in the developing world, the Ethiopian Prime Minister Meles Zenawi stated "those who did the damage will have to pay."l82 A solution the Principle of Common but Differentiated could be found Responsibility ("PCDR"), recognized in the 1992 Rio Declaration on Environment and Development' and in the UNFCCC.184 The PCDR demands that states address the consequences of climate change together, while still differentiating between states in different situations.'"' Thus, it "fosters partnership and cooperation among states" and "promotes effective implementation of agreements"8"' through more acceptable, capacities-tailored agreements. An application of the PCDR is the special situation and needs of developing requirement those most the countries, environmentally vulnerable, shall be given special priority," so that "[i]nternational actions in the field of environment and development ... address the interests and needs of all countries."' The authority of the
that "[t]he particularly
least-developed
PCDR is strengthened since "[g]rowing evidence of state practice supports the view that [it] is a principle of international environmental law." 188
There are two alternative interpretations of the PCDR: whether differentiation of responsibility may be based either on historical emissions, or on financial capabilities.89 An emissions-based PCDR is similar to the "Polluter-Pays Principle," recognized as a principle of to reduce domestic governance,190 and it may act as an incentive pollution.'9' In contrast, a financial capacity-based PCDR would lead to a justification such as solidarity or generosity, thus weakening the moral the sense negotiations of the UNFCCC, developed countries accepted a higher responsibility justified by financial capacities, but rejected any idea of
the notion of "responsibility."92 During
implied by
instance,
"culpability."l93 For the United States has consistently underscored that it "does not accept any interpretation of [the PCDR] that would imply a recognition or acceptance by the United States of any the international obligations or responsibilities of developing countries."'94 This disagreement may seem of little practical consequence since "rich" countries are usually those who historically have contributed the most to greenhouse gas emissions.
liabilities, or any diminution
The financial capacity-based
interpretation, being voluntary by nature (rich states accepting to offer assistance), deeply differs from the integral reparation due under a "polluter-pays principle"-like rule. This latter option could open the way to litigation, because, referring to the Draft Articles on Responsibility of States for Internationally Wrongful Acts: the injured states would be allowed to demand the "cessation of the wrongful act" and would be "entitled to obtain from the state which has committed an internationally wrongful act full reparation in the form of restitution, in-kind compensation, satisfaction and assurances and guarantees of non-repetition, either singly or in combination."'95 Based on the other interpretation of the PCDR, states may argue that their responsibility is of a purely moral nature and that it has been mentioned in international instruments only as a mere explanation for specific financial mechanisms.' either important consequences interpretation of concerning the nature and the scope of the international community's commitment.
the PCDR may have
the prevalence of
Therefore,
Questions also arise concerning the concrete meaning of the PCDR. Even if opening Western borders to climate migrants is an option, it is unlikely that most climate migrants will want to go to a completely different environment. For instance, most Bangladeshis will naturally want to go to India, and the Tuvalu will try to resettle on other Pacific islands or in Australia rather than in the suburbs of American or
taken
facilitating
supporting, and
European cities.197 As such, other actions should be taken by Western the governments such as "financing, protection and resettlement of climate refugees."'98 Developing countries that are neighboring affected areas are likely to be the main destinations for climate migrants, and their capacity to resettle climate migrants into consideration. The UN Secretary-General should be emphasized that "[s]ocieties differ greatly in their capacity to manage population movements and assimilate migrants, and a capacity adequate to manage moderate and/or gradual flows may be overwhelmed by massive and/or sudden flows," concluding that "[a]dequately planning for and managing environmentally induced migration will be critical."'99 to developing Eventually, compensation from developed countries countries neighboring affected countries must be established to ensure fairness and successful resettlement.
5. Who is in Charge? The Principle of Subsidiarity
A fifth requirement is that decisions should be taken through a procedure that conforms to a principle of "subsidiarity." The principle of subsidiarity stems from the Treaty on European Union, where it is used as a principle of competence sharing between the Union and its member states.200 It provides that "the Union shall act only if and in so far as the objectives of the proposed action cannot be sufficiently achieved by the Member States ... but can rather, by reason of the scale or effects of the level."20' In a very proposed action, be better achieved at Union convincing article, Carozza argues that "[a]s in the European Union, in international law subsidiarity can be understood to be a conceptual to the comparatively empty and unhelpful idea of state alternative sovereignty,"202 in particular to justify international human rights law. Similarly, this Article argues that an international legal framework on climate migrants would greatly benefit from an approach based on the principle of subsidiarity.
is "the
live. The second element
Carozza considers that, when applied to human rights, subsidiarity may be summarized in three elements. The first element is "that local communities be left to protect and respect the human dignity and freedom represented by the idea of human rights whenever they are able those ends on their own." Regarding climate-induced to achieve displacements, this would mean that victims of climate change should normally fall within the competence of the state on the territory of which integration of local and they supranational interpretation and implementation into a single community of discourse with respect to the common good that the idea of human rights represents." Similarly, a set of commonly accepted minimal international community, should be recognized by standards response; the principles of an early and sustainable including consideration for individual and collective rights; a global approach; and common but differentiated responsibility. A third element of subsidiarity is that, "to the extent that local bodies cannot accomplish the ends of human rights without assistance, the larger communities of international society have a responsibility to intervene."203 Thus, the principle of subsidiarity may be interpreted to define the international community's duty to intervene upon the incapacity of the affected state to adapt in situ
or to resettle internally. It commands that the international intervention be as limited as possible: founding of an in situ adaptation scheme or an to international internal resettlement program should be preferred displacements of people.
leads
However, adopting
the principle of subsidiarity
two to determine who will questions. A first procedural question implement the principle: assessing that one level of governance is unable to achieve a given goal (e.g. the protection of its population facing adverse environmental change) and that the upper level of governance should be in charge. In the EU context, the European Court of Justice, constituted by judges nominated by the member states, has competency to arbitrate between the authorities of the member states and those of the European Union.20 Such an international institution may be essential to the proper functioning of a subsidiarity-based framework.
invented
international community and
Another substantive issue relates to the appropriate number of levels of governance. The subsidiarity principle was to share competences between only two levels of governance: the states and the European Union. Concerning climate change-induced migration, however, it could be argued that a regional level of governance should be encouraged between the states. Regional agreements may be easier to make than global ones, as few Western states are likely to welcome a significant number of new migrants. In contrast, in regional diplomatic forums, countries that already face increased illegal migration would be willing to help further a negotiated collective solution rather than unilaterally fence their borders.205 Regional negotiations have already been shown to be more able to foster ratification of conventions on the protection of refugees and human rights.206 Consequently, concerning climate migrants, it is likely that regional negotiations will result in more ambitious decisions than in universal ones.207
lead
to fears
Nonetheless, regional governance may
that the treatment of climate migrants may differ from one region to another, and that burden-sharing would not be possible on the regional scale, since rich Western States would be separated from needy tropical ones. To prevent this from happening, a global normative and financial umbrella should be created to establish common minimal human rights standards and to ensure efficient burden-sharing at a global level. An independent in charge of providing international independent scientific assessments on issues, such as the inhabitability of a region, in order to ensure the respect of common standards at the regional level through public reporting, and to diffuse the best practices observed in a country or a region. Eventually, the failure of regional protection should be considered. Under these circumstances, one could imagine a direct intervention of the international community.
institution should also be
B. Back to the Reality: A Realistic Path for the Adoption
of an International Legal Framework
the best media
Turning from theory to practice, this Subpart deals with the issue of legal determining framework, which could be done through: (1) the action of existing institutions; (2) litigation; (3) international conventions; (4) international soft-law instruments; or (5) a combination of different modes of action.
to set up a new
1. Limited Discretion ofExisting Institutions
First, stretching the competence of an existing institution would clearly be the easiest way to protect climate migrants. The UNHCR's extension of its jurisdiction to internally displaced persons provides a historical example. 208 The UNHCR's original statute clearly delimited its jurisdiction to persons who are "outside the country of [their] nationality, or if [they] ha[ve] no nationality, the country of [their] former habitual residence."209 However, the UNGA adopted the statute of the UNHCR and retains the authority to modify it. Successive resolutions of the UNGA extended the UNHCR's authority to internally displaced persons "on the basis of specific requests from the Secretary-General or the competent principal organs of the United Nations and with the consent of
the concerned State."2'0 As a result, "[a]t the end of 2008, the UN refugee agency was caring for around 14.4 million of these IDPs, more than the total number of refugees of concern to UNHCR."21
It may be tempting to imagine a similar initiative in the context of climate-induced migration, as a UNGA resolution may suffice to extend the jurisdiction of an existing agency of the United Nations to the protection of climate migrants or to create a new agency. A UNGA resolution may be quite difficult to obtain because it requires support by the "majority of the members present and voting,"212 but it is much easier than ratification of an international treaty. Alternatively, one may even argue that the UNHCR could do without a UNGA resolution, contenting itself with a reinterpretation of the definition of refugees so as to include climate migrants. Yet, the UNHCR cannot extend its mandate from the protection of nearly 25 million refugees and IDPs213 to hundreds of millions of internal or international climate migrants without a profound reorganization. Of course, other existing institutions may also have a role to play in protecting climate migrants, such as the UNDP, the World Bank, the United Nations Environment Program ("UNEP"), and the UNFCCC. Cooperation among all of these institutions would be required the international in order for any efficient requirement of a global approach.214
to respect
Overall, an international organization's initiative would face an insurmountable obstacle: the absence of commitment by third-party states. First, a unilateral initiative may lack financial resources. However, if the initiative were decided by a UNGA resolution, states that voted for the resolution may be ready to donate some voluntary contributions. The example of the UNHCR shows that "[a]s its work and size have grown, [its] expenditure has soared:"215 voluntary donations by states, which represent almost the whole budget of this agency,216 have followed the expansion of its scope of competencies. Yet, states likely would not fund
a program that they did not support. The main issue concerning an international organization or an NGO's own initiative is that there would be no adequate limitation to states' sovereignty. As a consequence, such a program would be limited to adaptation and possibly assistance to intergovernmental negotiations on resettlement, whereas states would remain totally free as to whether to cooperate.
2. The Incapacity of Litigation to Establish a General
Litigation provides a second possible medium for international law to deal with climate-induced migration. In 2002, Tuvalu considered filing a complaint before the International Court of Justice against 7 Again in 2007, the new Prime Minister lelemia Australia and the USA.2 threatened the international community, "[i]f urgent action is not taken in addressing the adaptation needs of vulnerable countries, [Tuvalu] will be forced to go down the path of litigation" and "seek the necessary restitution for all damages created by climate change."218 If no complaint has been lodged yet, litigation is surely not an option that should be excluded straightaway. It could be initiated either directly by a state that is the victim of climate change, or by a state that is the destination of climate change-induced migration; both claiming to be an indirect victim of climate change resulting from several states' high emissions of greenhouse gases.
State responsibility for air pollution was recognized as early as 1941, when the Trail Smelter arbitration panel ordered Canada to indemnify the USA for transboundary air pollution. The panel stated that:
[U]nder the principles of international law, .. .no state has the right to use or permit the use of its territory in such a manner as to cause injury by fumes in or to the territory of another or the is of serious properties or persons is established by clear and consequence and the convincing evidence.219 Similarly, the ICJ in Corfu Channel referred to "every State's obligation not to allow knowingly its territory to be used contrary to the
therein, when the case
injury
rights of other States."220 Later, the Stockholm Declaration provided that "States have, in accordance with the Charter of the United Nations and the principles of international law, . .the responsibility to ensure that activities within their jurisdiction or control do not cause damage to the environment of other States or of areas beyond the limits of national jurisdiction."221 According to Smith and Shaerman, the no-harm principle "is so widely accepted amongst members of the international community that it would be difficult to argue against the proposition that it forms part of customary international law."222
Obviously, the main advantage of litigation is to "force" states to commit to international cooperation. However, litigation is in no case a perfect solution, in particular because some states, like the United States, have not accepted the compulsory jurisdiction of the ICJ.223 However, the main difficulty with litigation would be to establish causation. Sufficient scientific evidence of an anthropogenic climate change phenomenon probably exists for the no-harm principle to be applied rather than the precautionary principle. Yet, a plaintiff would have to prove the individual responsibility of states for global warming, the causal link between global warming and environmental effects, and the relation between this environmental effect and a given harm to the plaintiff.224 The last step may be particularly problematic, as community resilience to environmental phenomena widely depends on other conditions.225 Immigration in particular depends on many causes, and may be triggered by climate in conjunction with other drivers.226 Moreover, the most harmful consequence of climate change is not climate process, but climatic events. Plaintiffs will have difficulty demonstrating that a storm surge would not have occurred, or would not have been so devastating,
"but for" emissions of greenhouse gases by one particular state. Therefore, probability methods of assessment would be more adequate to establish a causal link than a classic binary "but for" test.227 Moreover, rather than scapegoating one or a few states for the wrongdoing of the whole developed world, the ICJ may be tempted to recognize a form of collective international responsibility, or even the responsibility of the international community of states. In recognizing either of these forms of liability, the ICJ would recognize that, as Delbruck argued, "[t~he traditional paradigm of repressive and early preventive environmental law, based on individual state obligations and liability," could be in view of the formidable global task of preserving the "inadequate environment and thereby securing a livable planet for the future."228
include
restitution
restitution;
impossible,
The consequence of state responsibility for wrongful acts should then if normally compensation should be ordered.229 While restitution is impossible when a territory has been submerged or rendered uninhabitable, cession of territory may be fair compensation after a plaintiffs territory has become uninhabitable. Then successful litigation might force developed states to accept a certain number of climate migrants, thus dividing the affected population between numerous host countries. Though highly preferable, collective resettlement may be difficult to achieve through litigation. A court order for cession of territory would affect only one state-that which had jurisdiction over the ceded territory-and in all likelihood, the court would order that state to cede an amount of territory exceeding the share of responsibility owned by that state. One way to evade this issue would be to have affected countries file a collective complaint against all developed states, so that each state would be "responsible enough" to cede one piece of territory, which would then be allocated to one particular plaintiff. Another more realistic possibility would be if the ICJ asks the condemned states to negotiate and find one resettlement place in one of their territories, with a threat of more severe penalties if they cannot succeed in doing so. A higher condemnation may consist of additional compensation relating to the impossibility of a collective resettlement.
Even if it is unlikely to give a full response to the issue of climateinduced migration, litigation can bring some hope that international law will avoid the injustice in which states that are responsible for climate change are not very affected by its consequences. Eventually, litigation
on climate change consequences may deeply transform the nature of international justice, which has never had to deal with cases of such proportion. Basing their survey on less severe climate change scenarios than are commonly accepted today, Told and Verheyen evaluated the damages at four percent of the OECD's Gross Domestic Product. 230
However, it is quite unlikely that a 10,000-inhabitant state such as Tuvalu will dare to-and be able to-lodge a complaint against all developed states, given that a great amount of scientific and legal resources would be required for such a case. Litigation may nonetheless be a useful threat for "victim" states to push developed states into negotiations.
security
implications
A third medium consists of the adoption of a new treaty. For instance, the UN Secretary-General's Report on climate change and its "[m]ultilateral possible comprehensive agreements would be the ideal preventive mechanism, providing where, and on what legal basis, affected populations would be permitted to move elsewhere, as well as their status."'231 More scholars now reject a mere reform of the 1951 Refugee Convention, such as a second protocol extending the definition of refugees to include climate migrants.
highlighted
that
losing
the Refugee Convention focuses on
A practical reason for this belief is that political refugees may be the collateral victims of a very significant extension of the Refugee the specificity of their protection.233 Convention scope by the protection of Moreover, the climate individual rights and would fail migrants' collective rights. This document and its application by states and the UNHCR have prioritized return over assimilation, whereas climate migrants need to be considered permanent migrants and should not be destined to live in tents indefinitely. In addition, the extension of
to take into account
the refugee regime would disconnect the climate migrant issue from the climate adaptation issue, which could result in incoherent decision making. Furthermore, the Refugee Convention does not provide for burden-sharing because in principle the first host country must accept the UNHCR, which may provide some refugees,234 and because is funded by voluntary donations. This would make an assistance, extension of the Refugee Convention to climate migrants unfair and unacceptable for countries like India, which are likely to receive an amount of climate migrants disproportionate to their financial capacity or historical responsibility for climate change.
Finally, one of the strongest arguments against an extension of the Refugee Convention regime to climate migrants is that the Refugee Convention does not protect populations before they have moved. Therefore, the only way for climate migrants to fall within the protection of such a regime would be to illegally cross borders, often through dangerous means such as overcrowded boats. States would promptly their assimilate asylum seekers with illegal migrants and reinforce borders' protection so as to prevent asylum seekers from entering their territory. Therefore, an extension of the refugee protection to climate migrants would result in further increases in human trafficking and the avoidable requirement that climate migrant protection be an early and sustainable response.
fatalities. Surely such a system would not meet
During the Sixteenth Conference of the Parties to the UNFCCC in Cancun, Equity BD, leading a group of NGOs, presented a petition for a "Protocol under the UNFCCC to ensure social, cultural and economic rights of the climate change induced forced migrants." Such a protocol would be based on UNFCCC Article 3, which provides that "developed country Parties should take the lead in combating climate change and the adverse effects thereof."235 Alternatively, Falstrom pleaded for a protocol recommended a to "Framework Convention for Global Health," which would "go to the to the blatant heart of the environmental inequalities in life expectancy, the incidence of infectious diseases, and the poor and chronic diseases disproportionately present among developing countries, on the one hand, and rich nations on the other."237 Yet, these two approaches would fail to take collective rights fully into consideration.
the Convention Against Torture.236 Westra
justice issue-that
is,
a
Climate-induced migration may be an issue "sufficiently new and substantial to justify its own legal regime instead of being forced within legal frameworks that were not designed to handle it."238 Thus, other authors have suggested a "broad, interdisciplinary legal and policy framework."239 Such framework would contain guarantees of assistance, burden-sharing mechanisms, and institutional provisions. A definition of climate migrants should be adopted and the duty of any state to protect its rights should be provided for, particularly nonrefoulement and non-discrimination. Unlike the Refugee Convention, a new treaty would encourage "long-term resettlement."240 It should also contain provisions on humanitarian assistance for arriving climate migrants. A global fund with compulsory participation may organize financial contributions from developing states that are responsible for climate change.24' In addition, a new treaty should create an expert body, which would be in charge of identifying affected areas from which migrants could claim protection and other affected areas that could claim international aid for adaptation. The international community would that provide implementation would be organized by several existing international institutions working together, it seems more appropriate to establish a new agency, which would be wholly in charge of climate migrants' welfare, even though the agency's creation may be inspired by the UNHCR.243
funding.242 Though Biermann
and Boas
suggest
Such a project is obviously very ambitious, and one may wonder whether an international convention would successfully be ratified. Falstrom recognizes international convention "is not that will happen overnight."24 Similarly, Boncourt and something Burson argue that "' [h]ard-law' policy instruments may be [sic] not be the potential scale of the attractive obligations assumed is unknown."245 Similarly, Docherty and Giannini
to states, particularly when
that such an
acknowledge that "there may be reluctance to develop a new treaty. However, they emphasize that affected states and their neighbors will push the international community toward a treaty, whereas other states may be sensitive to humanitarian or economic considerations, as well as to the management of international migration. As argued above, states may be less reluctant to negotiate and ratify conventions at the regional level, but an international framework should still monitor these efforts.247 In any case, conventions cannot be expected to solve every problem. A treaty is an instrument through which a state decides to commit itself to some obligations. Treaty obligations cannot extend beyond States' consent. The price to pay to obtain States' ratifications may be to remove ambitious norms from any potential Climate Migrant Convention. It is therefore significant that proposals for such conventions have taken little consideration of collective rights and the common but differentiated principle. Most of the burden could be supported by neighboring countries. This is deeply unfair and would create the risk of a "domino effect," as neighboring countries may themselves be affected by similar environmental degradation and unable to sustainably resettle climate migrants.24 Altogether, a treaty is likely to adopt a narrow humanitarian approach to climate migrant protection rather than a wide, rights-based approach focusing on sustainable resettlement. Climate migrants would be resettled on an individual basis in the suburbs of existing cities, thus losing any social, cultural, or national identity. Overall, the application of a convention should not be left to the goodwill of states without any independent control.
4. Soft Law as a Starting Point
A fourth mode of action consists of a resolution adopted either by the Security Council or the UNGA. The Security Council already addressed climate change in a debate on April 17, 2007.249 However, it did not adopt a resolution but instead concluded that the Security Council is not the correct institution to deal with climate change migration. In any for "maintenance of case, international peace and security"250 would exclude any general approach. This seems to undermine the triggering effect that a resolution by the
the Security Council's
Security Council may have if the resolution decides that a well-known international issue calls for an immediate international answer. For this reason, a group of Pacific Small Island Developing States is currently pushing the Security Council to address this issue again and to adopt a resolution as the start to a lobbying effort.25'
The UNGA, which has already adopted Resolution 63/281 on climate migration,252 may be a more appropriate forum for a decision because its procedures to adopt a resolution are less demanding and its general competence allows it to adopt a global approach to climateinduced migration. A resolution by the UNGA may press states to negotiate a global, concerted, early, and sustainable response to this phenomenon, which would implement the guiding principles of burdensharing, subsidiarity, and respect for collective, as well as individual, rights. More concretely, a resolution may also recommend that existing fundamental rights of climate migrants be respected, including the right to life and the right not to be submitted to inhuman or degrading treatment. A right to resettlement may also be deduced from existing fundamental rights. Eventually, the UNGA may encourage states or international organizations to take some measures to protect climate migrants. Eventually, it may recommend that states ratify a convention.
Soft law would have a highly symbolic importance and may define universal norms that should be applied by states. Obviously, its main pitfall stems from the absence of an obligation of states to cooperate in a compulsory funding instrument, although a fund such as the UNHCR's can be opened to voluntary contributions. Furthermore, contrary to a treaty, because a resolution does not have to be ratified, it would not raise national debate and public awareness. Overall, one can hardly imagine that a UNGA resolution would be sufficient to push states to recognize the rights of climate migrants. Therefore, a resolution is probably a starting point, but it will in no case be sufficient to deal with climate-induced migration.
5. A Combination ofDifferent Modes ofAction
None of the above-mentioned modes of action alone would be able to deal with the issue of climate change-induced migration. This article agrees that an "alternative system for addressing the plight of those
agreement, operating under an
displaced by climate change may be better coordinated by way of international umbrella regional framework."253 Such cooperation between the United Nations and regional organizations would not be a complete novelty. In 1974, the its Regional Seas Program, which supervises 140 UNEP launched countries in thirteen regional agreements. This program is not based on any international "hard-law" instrument, but on cooperation between the through which binding UNEP, states, and regional organizations and standardized implemented.254
regional conventions are negotiated, adopted,
Similarly, a satisfying international legal framework on climateinduced migration should exist on three different levels. States should be their individually concerned and cooperative so that they respect obligations and collaborate to find collective resettlement solutions. At a universal level, common standards should be adopted as to which fundamental rights should be applied to climate migrants, and the burden leastshould be shared between developed polluting states, and an developed or developing affected intermediary, regional level is it possible to imagine that ambitious conventions could be negotiated and widely ratified, and that collective resettlement solutions could eventually be negotiated.
states. However, only at
IV. PROPOSAL FOR AN INTERNATIONAL LEGAL FRAMEWORK ON CLIMATE-INDUCED MIGRATION
Part II has shown that a new international legal framework on climate-induced migration should be created, and Part III has conceived this framework. Part IV now suggests an international legal framework to protect climate migrants. At the core of this proposal lies the principle of subsidiarity, which is not only justified by considerations of the efficiency of public policies, but also by the consideration that an international convention would not be able to be ratified and/or would not be able to produce any collective resettlement. The First Act consists of the adoption of a UNGA resolution on the international responsibility
the protection of climate migrants. This resolution refers
for encourages, and supervises negotiations at international governance, which constitute proposal.
to, level of the Second Act of the
the regional
A. First Act: a UNGA Resolution on the International
Community's Responsibility to Protect Climate
Migrants
No international legal framework on climate-induced migration can be adopted without a preliminary campaign to raise public awareness and press states to become concerned. This should be achieved through a Security Council resolution recognizing the security challenge posed by climate-induced migration and the necessity for international action.255 Only afterwards may the UNGA take on a substantive resolution project. This resolution, conceived as the start of a longer process consisting of substantial regional negotiations, should set the tone for an international legal framework on climate-induced migration. This "Resolution on the International Community's Responsibility to Protect Climate Migrants" ("the Resolution") should contain guidelines as well as institutional provisions.
1. Guidelines on Climate Migrants and Climate-
Induced Migration
later be
guidelines
constitute through
these that may
should implemented
The first part of the Resolution should recognize guidelines for the treatment of climate migrants and for the monitoring of climate changeinduced migration. Rather than directly establishing protection for climate migrants, general considerations regional negotiations or referred to by national institutions. These guidelines would play an important role in framing the debate and adopting a common approach with key priorities. A climate migrant should be defined as "a person who, for a reason linked to anthropogenic climate change, is unable to live in dignity in the territory of his or her country of nationality." Climate change IDPs would therefore be excluded from this regime, but they are already formally protected as IDPs. Climate change IDPs' vulnerability should, however, be recalled in the Resolution, and some of the principles applied to climate migrants may be extended to them.
The Resolution should recall the obligation of states to protect
to national circumstances
individual and collective human rights at any stage. It should clearly state that migrants are, and remain, human beings, and that as a principle their status as migrants should not lead to any differential legal treatment. It should confirm that states have a primary obligation to protect their own population's human rights. However, it should also assert that the international community as a whole, and each state individually, with (e.g. financial capacities), has a regard secondary obligation to protect the human rights of any person whose own state is unable or unwilling to protect those rights. Some individual and collective human rights should be explicitly underscored, such as the right to life, the right to freedom from inhuman and degrading treatment, the right to health, and the right to a family life, but also cultural rightsthe right to a collective identity, the right to self-determination, and minority rights. Particular applications of universal human rights should be identified, such as a right to non-refoulement and the right to a place to live in safety and dignity.
Overall, the right of climate migrants to a safe and sustainable relocation should be affirmed. Certain applications of this right should be explicitly underscored: the right to assistance during one's insertion in the host country, the right to freedom from discrimination, and the right to conserve one's cultural identity when settling into the host country's society. The notion of a right to a nationality may be put forward to suggest that the host state should establish specific naturalization procedures for climate migrants.256
As for the responsibility of states, the Resolution should assert the relevance of the PCDR with respect to protection of climate migrants. It should confirm that each state shall contribute to solving the problems relating to climate-induced migration in proportion to its historical responsibility for climate change as well as its economic capacity. The Resolution should recall the duty of developed states to take the lead on the policies necessary for the protection of climate migrants.
The Resolution should establish the principle of an early and sustainable response as a way to minimize human suffering, costs, and security threats; as well as the principle of a global approach to all the consequences of climate change on vulnerable populations and the necessity to coordinate local adaptation and population displacement strategies. The Resolution should also apply the principle of subsidiarity of action and emphasize that the regional level of governance is the best
forum for resettlement negotiations. Accordingly, it should press states to engage in bilateral and regional negotiations in order to identify future needs of climate migration and in order to reach a negotiated solution in the light of these guiding principles. Regional negotiations should produce both a general legal framework and concrete ad hoc solutions to actual needs of climate migration.
2. Institutional Provisions
To complement
the Resolution should the Guiding Principles, establish a UN Program on Climate Change Migration to promote negotiations at the bilateral and regional level, and to supervise the (i). Moreover, an implementation of the international, independent expert panel should be in charge of scientific assessments used as the basis of regional negotiations (ii). Eventually, a Global Fund on Climate-Induced Migration should be monitored by the Program on Climate Change Migration (iii).
a. Global Fund on Climate-Induced
A fund should be created, entitled the "Global Fund on ClimateInduced Migration" ("Fund"). Its income should come from voluntary contributions by states and private actors. The Fund should be used to help find regional- or bilateral-negotiated solutions to actual or future needs of migration induced by climate change. It should not cover costs of in situ adaptation, as in situ adaptation is already funded by UNFCCC tools.257 However, the requirement of a global approach would demand that the Fund be closely coordinated with financial tools within the JNFCCC system. The main purpose of the Fund should be to convince third-party states to actively collaborate in resettlement solutions, in particular through compensation to states that agree to welcome climate migrants. Specific funding mechanisms may be created in order to ensure the successful integration of climate migrants. For instance, part of the compensation may be correlated to an evaluation of political outcomes with regard to social insertion, based on indicators such as climate migrants' differential rate of unemployment two years after their arrival.
b. United Nations Agency on Climate
Change Migration
Because the issue of climate-induced migration is too widespread and too instance-specific to be addressed by an existing institution, the United Nations should create an ad hoc monitoring institution. This institution should report to the UNGA and it may be entitled the "United Nations Agency on Climate Change Migration" ("Agency"). In the absence of field operations, the functioning budget of the Agency should be relatively limited, and it might be funded by the general budget of the United Nations.
The Agency should have three main missions. Firstly, it should include encourage and supervise regional negotiations. This may suggesting terms of negotiations and offering good offices, mediation, or conciliation. For this purpose, it should be authorized to adopt soft-law instruments, such as a manual on the implementation of the guiding principles, standard or specific terms of negotiations, and reports of good practices and recommendations. Secondly, the Agency should administer the Fund, particularly through encouraging voluntary donations by states, and the Agency should spend this fund so as to help successful regional negotiations. Thirdly, the Agency should raise global public awareness on climate-induced migration by funding scientific activities and reporting regularly on ongoing climate-induced migration.
Throughout these missions, the Agency should act to facilitate effective and successful implementation of the framework. As a forum for coordination of all actors concerned with climate migrants, it should work together with other international institutions such as the UNHCR, the UNFCCC, the UNEP, the JNDP, and the GEF. The Agency, in turn, will benefit from the specific expertise of each of these institutions. The Agency should also cooperate closely with regional institutions, states, and NGOs.
c. Expert Panel
The Resolution may either create an ad hoc expert body or call for an extension of the mandate of the IPCC ("Panel"). Functioning essentially as a referee between diverging interests, this expert panel the should Resolution's framework by providing scientific assessments. Because of the importance of these assessments, the experts should be completely independent.
regional negotiations and
functioning of
foster
The first task of the Panel would be to encourage states to contribute to the Fund, for instance through the regular assessment of each state's expected contributions to the fund. Such an assessment may be based on states' respective historical responsibility for climate change and on the
efforts states are making to reduce their greenhouse gas emissions, as well as on their financial capacity. This assessment may also take into consideration the costs of adaptation supported by each state and its past participation implementation of collective and the resettlement solutions.
research
Either the Agency or any interested state could initiate other assessments by the Panel. First, the Panel could be asked to assess whether there is ongoing migration and whether there is a need for international migration. This assessment could prevent states from claiming that would-be climate migrants are not "forced" to move and could further prevent states from rejecting support for any migration program under the pretext that the program funds in situ adaptation projects.258 Secondly, concerned states could not only ask the Panel to assess the capacity of one or several states to welcome climate migrants using objective criteria, such as their domestic population and demographic growth, natural resources, socio-economic, and political capacity to integrate climate migrants, but also to assess new economic opportunities allowed by climate change. Thus, it would review the "we don't have a place for them" argument with an independent perspective and determine objectively which state is most able to welcome climate migrants, towards an agreement on an international resettlement program.
to push states
in order
B. Second Act: Regional Negotiations under the
Resolution's Umbrella
The Resolution would only be a large umbrella under which regional negotiations should be organized. These regional negotiations should take two different forms. First, negotiations should be organized as general regional agreements, establishing more detailed, ambitious, and concrete legal frameworks on climate-induced migration. The Agency should participate in such negotiations and ensure that these guidelines. agreements Negotiations at the regional level should also deal with concrete climateinduced migratory needs on a case-by-case basis, within the international legal framework of the Resolution and with help of the Agency, the Fund, and the Panel. Such negotiations would benefit from a framework
the Resolution's
compatible with
are
that establishes key priorities, assesses each state's duties, introduces an institution that supervises and fosters cooperation, and compensates states that cooperate actively. States themselves would surely prefer a low-cost negotiated solution to the higher price of building fences, enduring higher regional insecurity, severing their diplomatic relations with their neighbors and the international community, and facing growing discontent in civil society against their policy.
At the end of the day, all would depend on states' involvement in these ad hoc negotiations; it is the fate of any international legal project that the beginning and the end of the story lie in the hands of states. If international institutions cannot do anything without the consent of states, they should do everything possible to encourage states to cooperate and lessen the human suffering arising from climate change. This proposal aims at establishing a legal background that will help international cooperation to succeed in protecting climate migrants.
--- FOOTNOTES ---
Part of the Environmental Law Commons
* Benoit Mayer, LL.M. (McGill), Master of Political Sciences (Sciences Po), Bachelor of Law (Sorbonne), is a PhD candidate at the National University of Singapore. Remarks and comments can be sent to the author by email at [email protected]. This article is a modified version of a LL.M. Research Project supervised by Prof. Frangois Crdpeau, whose advice and support were very appreciated. Thanks to Karen Crawley and Mdlodie Sahraie for their much appreciated comments, to Sebastien Jodoin for his enlightening conversations, and to Island First, the United Nations Global Migration Database Team, Amanda Greenman, and the staff of the McGill Faculty of Law and its library for their assistance.
I. INTRODUCTION
.......................................
....... 360
II. JUSTIFYING THE CREATION OF AN INTERNATIONAL LEGAL
III. CONCEIVING AN INTERNATIONAL LEGAL FRAMEWORK ON
.................. 388
IV. PROPOSAL FOR AN INTERNATIONAL LEGAL FRAMEWORK ON
1. See, e.g., Alice Poncelet, Bangladesh Case Study Report: The Land of Mad
30,
(Jan.
2009),
http://www.each-for.eu/documents/CSR Bangladesh
Rivers, 090126.pdf; Tamer Afifi, Egypt Case Study Report, (Jan. 30, 2009), http://www.eachfor.eu/documents/CSREgypt 090130.pdf; Ulrike Grote & Koko Warner, Environmental Change and Migration in Sub-Saharan Africa, 2 INT'L J. GLOBAL WARMING 17, 36 (2010); Jamila Abdullahi et al., Rural -Urban Migration of the Nigerian Work Populace and Climate Change Effects on Food Supply: A Case Study of Kaduna City in Northern Nigeria, (June 28-30, 2009), http://siteresources.worldbank.org/INTURBANDEVELOP MENT/Resources/336387-1256566800920/6505269-1268260567624/Abdullahi.pdf; Olivia Dun, Viet Nam Case Study Report: Linkages Between Flooding, Migration and Resettlement, 090212.pdf.
http://www.each-for.eu/documents/CSRVietnam
(Jan. 30,
2009),
2. See, e.g., INTERGOVERNMENTAL PANEL ON CLIMATE CHANGE, CLIMATE CHANGE 2007: THE PHYSICAL SCIENCE BASIS. CONTRIBUTION OF WORKING GROUP I TO THE FOURTH ASSESSMENT REPORT OF THE INTERGOVERNMENTAL PANEL ON CLIMATE CHANGE 12-17 (2007), available at http://www.ipcc.ch/pdf/assessment-report/ar4/wgl/ar4-wglspm.pdf [hereinafter IPCC WG 1].
3. Id. at 5. 4. Id. at 5,13. 5. Id. at 5-7. 6. Id at 13-14. 7. Id. at 5-14. 8. Ian Allison et al., The Copenhagen Diagnosis: Updating the world on the Latest
Climate Science 7 (Nov. 2009), http://www.ccrc.unsw.edu.au/Copenhagen/Copenhagen DiagnosisLOW.pdf.
9. IPCC, supra note 2, at 8. 10. Id. at 10. 11. See, e.g., Dr. Charles Ehrhart, Poverty-Climate Change Coordinator, CARE Int'l, At the Crossroads of Poverty Reduction and Climate Change: New Challenges, (Aug. 6, 2006) (presentation slides available at New Opportunities for CARE http://www.careclimatechange.org/files/CARE docs/Climate Change and Nepal.pdf) (describing how global warming threatens Nepali agricultural productivity through temporary flooding and degradation of arable land and reduction in yields of cereal crops).
12. World Health Org., Climate Change and Health,
(Jan.
2010),
http://www.who.int/mediacentre/factsheets/fs266/en/index.htmlhttp://www.who.int/medi acentre/factsheets/fs266/en/index.html (last visited July 2, 2011) [hereinafter WHO].
13. Olivia Dun & Fran<ois Gemenne, Defining 'Environmental Migration', 31 FORCED MIGRATION REv., Oct. 2008, at 10, 10, available at http://www.finreview.org/ FMRpdfs/FMR3 I /FMR3 1.pdf.
14. Global Governance Project, Climate Refugees: Hotspots and Numbers, a (last visited http://www.glogov.org/?pageid=82 comprehensive review of works written on climate migration, some of which are cited in this article).
(containing
3, 2011)
July
15. For instance, Russia and Canada: See infra notes 121, 92. 16. See Ilan Kelman, Island Evacuation, 31 FORCED MIGRATION REV., Oct. 2008, at
20, 20, available at http://www.fmreview.org/FMRpdfs/FMR31/FMR31.pdf.
17. John Vidal, Pacific Atlantis: First Climate Change Refugees, THE GUARDIAN (Nov. 25, 2005), http://www.guardian.co.uk/environment/2005/nov/25/science.climate change.
18. Id; see also Displacement Solutions, The Bougainville Resettlement Initiative
Meeting Report, (Dec. 11, BougainvilleResettlementlnitiative-MeetingReport.pdf
2008), http://displacementsolutions.org/files/documents/
19. See Geoffrey Lean, Disappearing World: Global Warming Claims Tropical Island, THE INDEPENDENT, Dec. 24, 2006, available at http://www.independent.co.uk/ environment/climate-change/disappearing-world-global-warming-claims-tropical-island429764.html.
20. See Kelman, supra note 16, at 20. 21. Id. 22. See IPCC, CONTRIBUTION OF WORKING GROUP 11 TO THE FOURTH ASSESSMENT REPORT OF THE IPCC 687, 691 (2007), available at http://www.ipec.ch/pdf/assessmentreport/ar4/wg2/ar4-wg2-chapterl6 II]; U.N. FRAMEWORK CONVENTION ON CLIMATE CHANGE IMPACTS, VULNERABILITIES AND ADAPTATION IN DEVELOPING COUNTRIES 24 (2007); OLi BROWN, INT'L ORG. FOR MIGRATION, MIGRATION AND CLIMATE CHANGE 25 (2008).
[UNFCCC], CLIMATE CHANGE:
IPCC WG
[hereinafter
23. See Kelman, supra note 16, at 20.
24. See IPCC WG II, supra note 22, at 747, 812-814 (showing "local sea level change due to change in ocean density and dynamics"); see also C.D. Woodroffe et al., Landscape Variability and the Response of Asian Mega-Deltas to Environmental Change, in GLOBAL CHANGE AND INTEGRATED COASTAL MANAGEMENT: THE ASIAPACIFIC REGION 277 (2006).
25. Dun, supra note 1, at 3. 26. Id. at 9-10. 27. See KOKO WARNER ET AL., CARE INT'L, IN SEARCH OF SHELTER: MAPPING THE EFFECTS OF CLIMATE CHANGE ON HUMAN MIGRATION AND DISPLACEMENT 2:13 (2009), available at http://www.care.org/getinvolved/advocacy/pdfs/MigrationReport.pdf.
28. Jason P. Ericson et al., Effective Sea-Level Rise and Deltas: Causes of Change and Human Dimension Implications, 50 GLOBAL PLANET & PLANETARY CHANGE 63, 78 (2006).
29. See IPCC WG II, supra note 22, at 858. 30. See Dun, supra note 1. 31. See U.N. DEP'T OF ECON. AND Soc. AFFAIRS, POPULATION Div., WORLD POPULATION PROSPECTS: THE 2008 REVISION (2009), available at http://www.un.org/ esa/population/publications/wpp2008/wpp2008_text
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32. See P.F. Reich et al., Land Resource Stresses and Desertification in Africa, in RESPONSES TO LAND DEGRADATION (E.M. Bridges et al. eds., 2001); see also IPCC WG 11, supra note 22 at 439, 442.
33. Anthony Nyong & Charles Fiki, Drought-Related Conflicts, Management and Resolution in the West African Sahel, 25 (paper presented to the Human Security and
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34. See U.N. Convention to Combat Desertification, Thematic Fact Sheet Series No. 3: Migration and Desertification, 1, available at http://www.unced.int/documents/ Desertificationandmigration.pdf [hereinafter UNCCD Thematic Fact Sheet Series No. 3]; Alexandra Deprez, Climate Migration in Latin America: A Future 'Flood of Refugees' to the North?, COUNCIL FOR HEMISPHERIC AFFAIRS (February 22, 2010), available at http://www.coha.org/climate-migration-in-latin-america-part-1/.
35. IPCC WG I, supra note 2, at 7-9. 36. IPCC WG II, supra note 22, at 17, available at http://www.ipcc.ch/pdf/
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37. M. Monirul Qader Mirza, Global Warming and Changes in the Probability of Occurrence of Floods in Bangladesh and Implications, 12 GLOBAL ENVTL. CHANGE 127, 128 (2002); see also WARNER ET AL., supra note 27, at 2:13; IPCC WG II, supra note 22, at 333; Lynne Peeples, The Bigger Kahuna: Are More Frequent and Higher Extreme Ocean Waves a By-Product of Global Warming?, SCIENTIFIC AMERICAN (Feb. 2, 2010), available at (showing that "[i]ncreasing maximum wave heights off the Pacific Northwest coast may pose a greater threat than rising sea levels). 38. IPCC WG II, supra note 22, at 18. 39. BROWN, supra note 22, at 17-18. 40. See, e.g., Roger Harrabin, Climate Mass Migration Fears 'Unfounded,' BBC NEWS (February 4, 2011), available at http://www.bbc.co.uk/news/science-environment-
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(showing
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85. For a more extensive discussion of "fraternity,"
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86. United Nations Framework Convention on Climate Change [UNFCCC], art. 4, §
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88. Id. T l1(b)-(c). 89. Id. T 11(c). 90. See generally, Romain Felli, Justice globale pour les refugie-e-s climatiques?, 6 (2008), available at http://www.reseau-terra.eu/article850.html; Angela ASYLON(S) Williams, Promoting Justice Within the International Legal System: Prospects for Climate Refugees, in CLIMATE LAW AND DEVELOPING COUNTRIES, LEGAL AND POLICY CHALLENGES FOR THE WORLD ECONOMY 84, 90 (Yves Le Bouthillier, Benjamin J. Richardson & Heather Mcleod-Kilmurray eds., 2010). 91. See, e.g., Zarsky, supra note 83, at 229. 92. See, e.g, Jamie Hewitt et al., Assessment of Climate Change Impacts on Agricultural Land- Use Suitability: Spring Seeded Small Grains on the Prairies (2008) http://www4.agr.gc.ca/AAFC-AAC/display-afficher.do?id= 1210289174331 &lang=eng (arguing that "by 2040-2069, climate change would lead to a change in limitations over much of the Prairies' agricultural regions and some new opportunities may develop in northern areas"). However, on the short and medium-term, Canada and Russia may have to undergo adaptation to climate change, in particular to the melting of permafrost and
changes in the animal population.
93. Tort responsibility requires a wrongful act. In this case, the wrongful act may consist of pursuing greenhouse gas emissions in spite of scientific evidence indicating ongoing climate change, and in violation of the precautionary principle. In contrast, the doctrine of unjust enrichment does not require any wrongful act; therefore, a state's responsibility may be assessed even for historical pollution pre-dating any discovery of climate change.
94. NICHOLAS STERN, THE ECONOMICS OF CLIMATE CHANGE: THE STERN REVIEW Vii
(2006).
95. On climate change-induced migration and security, see generally Michael Renner, Climate of Risk, Climate Change Poses new Challenges to Security Policy, 23:1 WORLD WATCH MAGAZINE 18 (2010).
96. See OECD, THE FUTURE OF INTERNATIONAL MIGRATION TO OECD COUNTRIES
TO 2030 (2009).
97. Payam Akhavan, Justice, Power, and the Realities of Interdependence: Lessons
from the Milos Evi and Hussein Trials, 38 CORNELL INT'L L.J. 973, 974 (2005).
98. Jason D. Soderblom, Climate Change: National & Regional Security Threat
Multiplierfor Australia 52 SECURITY SOLUTIONs 58, 60-61, 68 (2008) (emphasis added).
99. UN Charter art. 1, para. 1. 100. See U.N. Security Council [UN S.C.], Rep. of the Security Council, Apr. 17,
2007, U.N. Doc. S/PV.5663.
101. G.A. Res. 63/281, 1 1, U.N. Doc. A/RES/63/281 (June 3, 2009), available at
http://www.un.org/en/ga/63/resolutions.shtmlhttp://www.un.org/en/ga/63/ resolutions.shtml.
102. United Nations Framework Convention on Climate Change, Conference of the Parties, Dec. 7-19, 2009, Outcome of the Work of the Ad Hoc Working Group on LongTerm Cooperative Action Under the Convention, advanced unedited version, 14(f), (Dec. 10, 2010), available at http://unfccc.int/files/meetings/ U.N. Doc. A/CP.16 cop 16/application/pdf/cop 6 lca.pdf [hereinafter UNFCCC COP 16]; see also, Benoit Mayer, Cancun Conference on Climate Change: Enhanced Attention on Adaptation (Center for International Sustainable Development Law, Working Paper, Jan. 2011), available at http://www.cisdl.org; Inter-Agency Standing Committee [IASC], Climate Change, Migration and Displacement: Who Will be Affected? I (working paper submitted by the informal group on Displacement and Climate Change, 2008), available at http://unfccc.int/resource/docs/ 2008/smsn/igo/022.pdf.
103. Docherty & Giannini, supra note 53, at 357. 104. Representative of the U.N. Secretary-General, Guiding Principles on Internal available at Displacement, T 2, U.N. Doc. E/CN.4/1998/53/Add.2 http://www.unhcr.org/43ce1cff2.html. Yet, the UN High Commissioner for Refugees adopted a more restrictive definition of internally displaced persons. See David Keane, The Environmental Causes and Consequences of Migration: A Search for the Meaning of "Environmental Refugees ", 16 GEO. INT'L ENVTL. L. REv. 209, 217 (2003).
(1998),
105. Representative of the U.N. Secretary-General, Guiding Principles on Internal
Displacement, Principle 3, 1 2, Principle 25, (1998), available at http://www.unhcr.org/43celcff2.html.
2, U.N. Doc. E/CN.4/1998/53/Add.2
[UNHCR],
106. See, e.g., Keane, supra note 104, at 217; United Nations High Commissioner Internally Displaced People, http://www.unher.org/pages/ for Refugees 49c3646cl46.html (last visited July 3, 2011) ("Even if they have fled for similar reasons as refugees ..., IDPs legally remain under the protection of their own government."); Int'l Org. for Migration, UNHCR's Role with Internally Displaced Persons, IOM/33/93FOM/33/93, Apr. 28, 1993, § 8.
107. See, e.g., Int'l Org. for Migration, UNHCR's Role with Internally Displaced
Persons, IOM/33/93-FOM/33/93, Apr. 28, 1993, § 8.
108. See CATHERINE PHUONG, THE INTERNATIONAL PROTECTION OF INTERNALLY
DISPLACED PERSONS 84 (James Crawford ed., 2004).
109. See, e.g., Lester R. Brown, Climate Refugees' Growing Tab, U.S.A. TODAY,
July 21, 2007.
110. See, e.g., Emma Brindal, Asia-Pacific: Justice for Climate Refugees, 32 ALT.
L.J. 240 (2007); Hulme, supra note 43; Docherty & Giannini, supra note 53.
111. Maria Stavropoulou, Drowned in Definitions?, 31 FORCED MIGRATION REV., 12, available at http://www.fmreview.org/FMRpdfs/FMR31/
11,
Oct. 2008, at FMR3I.pdf.
112. See, e.g., United Nations High Commissioner for Refugees, Flowing Across
Borders, http://www.unhcr.org/pages/49c3646cl25.html (last visited July 3, 2011).
113. See, e.g., Nicole de Moor & An Cliquet, Environmental Displacement: A New Challenge for European Migration Policy, 7 (Paper presented to the Conference on "Protecting People in Conflict and Crisis: Responding to the Challenges of a Changing World", Oxford, Sept. 22, 2009), available at http://www.rsc.ox.ac.uk/PDFs/ sessionlllgroup5nicoledemoor.pdf.
114. U.N. General Assembly, Convention Relating to the Status of Refugees, July 28, 1951, 189 U.N.T.S. 137 [hereinafter Convention Relating to the Status of Refugees]; U.N. General Assembly, Convention and Protocol Relating to the Status of Refugees, Jan. 30, 1967, 606 U.N.T.S. 267.
115. U.N. General Assembly, Convention and Protocol Relating to the Status of
Refugees, Jan. 30, 1967, 606 U.N.T.S. 267, art. 1.2.
116. Kara K. Moberg, Extending Refugee Definitions to Cover Environmentally Displaced Persons Displaces Necessary Protection, 94 IOWA L. REV. 1107, 1121 (2009); see also Pierre-Fran9ois Mercure, A la recherche d'un statutjuridique pour les migrants environnementaux transfrontaliers. la probldmatique de la notion de refugie, 37 R.D.U.S. 1, 13 (2006).
117. Jeanhee Hong, Refugees of the 21' Century: Environmental Injustice, 10 CORNELL J.L. & PUB. POL'Y 323, 331 (2001) (citing JACQUES VERNANT, THE REFUGEE IN THE POST-WAR WORLD 5-7 (1953 .
118. UNITED NATIONS HIGH COMMISSIONER FOR REFUGEES, HANDBOOK ON PROCEDURES AND CRITERIA FOR DETERMINING REFUGEE STATUS UNDER THE 1951 CONVENTION AND THE 1967 PROTOCOL RELATING TO THE STATUS OF REFUGEES j 65 (1979), available at http://www.unhcr.org/refworld/pdfid/3ae6b3314.pdf [hereinafter UNHCR Handbook].
119. Hong, supra note 117, at 332. 120. TASC, supra note 102, at 4. 121. UNHCR Handbook, supra note 118, 139. 122. Jessica B. Cooper, Environmental Refugees: Meeting the Requirements of the
Refugee Definition, 6 N.Y.U. ENVTL. L.J. 480, 513 (1998).
123. Id. at 502. 124. SWEDISH ALIENS ACT, ch. 2, § 4 (SFS 2005:716)
(Swed.), available at (official translation); see http://www.sweden.gov.se/content/l/c6/06/61/22/bfb61014.pdf also Finnish Aliens Act, § 88a(1), 301/2004, available at http://www.finlex.fi/en/laki/ kaannokset/2004/en20040301.pdf.
125. For a general presentation of statelessness under international law, see LAURA VAN WAAS, NATIONALITY MATTERS: STATELESSNESS UNDER INTERNATIONAL LAW (2008). 126. Jane McAdam, 'Disappearing States', Statelessness and the Boundaries of International Law, 6-7 (University of New South Wales Faculty of Law Research Series No. 2, 2010), available at http://papers.ssrn.com/sol3/papers.cfm?abstract-id=1539766.
127. United Nations Convention on the Law of the Sea, art. 121, paras. 1-3, art. 60
para. 8, Dec. 10, 1982, 1833 U.N.T.S. 3973.
128. David D. Caron, When Law Makes Climate Change Worse: Rethinking the
Law ofBaselines in Light of a Rising Sea Level, 17 ECOLOGY L.Q. 621, 622 (1990).
129. Lilian Yamamoto & Miguel Esteban, Vanishing Island States and Sovereignty,
53 OCEAN & COASTAL MANAGEMENT 1, 8 (2010).
130. In this sense, see McAdam, supra note 126, at 2; see also The United Nations High Commissioner for Refugees [UNHCR], Climate Change and Statelessness: an Overview, 2, Submission to the 61h Session of the Ad Hoc Working Group on Long-Term Cooperative Action 1-12, 2009, http://unfccc.int/resource/ docs/2009/smsn/igo/048.pdf.
the UNFCCC,
6) under
(AWG-LCA
June
131. McAdam, supra note 126, at 12. 132. Convention relating to the Status of Stateless Persons, Sept. 28, 1954, 360
U.N.T.S. 117, available at http://treaties.un.org/doc/Publication/UNTS/Volume%20360/ volume-360-1-5158-English.pdf.
133. Id., art. 31.
134. Convention Relating to the Status of Refugees, supra note 114, art. 31. 135. Convention on the Reduction of Statelessness, second recital, Aug. 30, 1961, 989 U.N.T.S. 175, available at http://treaties.un.org/doc/Publication/UNTS/Volume% 20989/volume-989-1-14458-English.pdf.
136. Universal Declaration of Human Rights, GA Res. 217(111), art. 15, para. 1, U.N. Doc. A/810 (Dec. 10, 1948), available at http://www.un.org/en/documents/udhr/. The right to a nationality has not been recognized as such by the International Covenant on Civil and Political Rights. Human Rights were originally conceived in order to protect citizens from their (own) state and therefore do not easily apply to stateless persons.
137. See International Convention on the Protection of the Rights of All Migrant Workers and Members of their Families, Dec. 18, 1990, (entered into force July 1, 2003), available at http://www2.ohchr.org/english/law/cmw.htm.
138. See C97 Migration for Employment Convention (Revised), July 1, 1949, 120 U.N.T.S. 70; C143 Migrant Workers (Supplementary Provisions) Convention, June 24, 1975, 1120 U.N.T.S 77.
139. See GA Res. 40/144, Document A/RES/40/144 (Dec. 13, 1985), available at http://www.un.org/documents/ga/res/40/a40rl44.htm. Article 2, paragraph 1 clearly provides that "[n]othing in this Declaration shall be interpreted as legitimizing the illegal entry into and presence in a State of any alien, nor shall any provision be interpreted as restricting the right of any State to promulgate laws and regulations concerning the entry of aliens and the terms and conditions of their stay or to establish differences between nationals and aliens."
140. Brindal, supra note I10, at 241. 141. BROWN, supra note 22, at 32. 142. See generally C.W. WOUTERS, INTERNATIONAL LEGAL STANDARDS FOR THE
PROTECTION FROM REFOULEMENT (2009).
143. For a human rights analysis of climate migration, see, e.g., Benoit Mayer, International Law and Climate Migrants: A Human Rights Perspective (CISDL-IDLO joint working paper series on sustainable development law on climate change, March available http://www.idlo.int/Publications/8_MayerBenoit International 2011), LawandClimateMigrants.pdf.
at
144. In this context, "jurisdiction" is to be understood as a synonym of "control." See Marko Milanovic, From Compromise to Principle: Clarifying the Concept of State Jurisdiction in Human Rights Treaties, 8 H.R. L. REv. 411, 435-36 (2008).
145. See, e.g., U.N. Human Rights Comm., General Comment No. 31: Nature of the General Legal Obligation Imposed on States Parties to the Covenant, § 10, U.N. Doc. (March 29, 2004), available at http://www.unhchr.ch/tbs/ CCPR/C/21/Rev.1/Add.13 doc.nsf/(Symbol)/CCPR.C.21.Rev.1.Add.13.En?Opendocument; Saldano v. Argentina, Petition, Inter-Am. Comm'n H.R., Report No. 38/99, OEA/Ser.L./V/11.102, doc. 6 rev. f 17-19 (1999).
146. Bankovic et al. v. Belgium, 2001-XII Eur.Ct. H.R.333 TT 50-58. 147. A condition of "jurisdiction" or "effective control" is more restrictive than a condition of causal link, which would be implemented in litigations on polluters' tort responsibility.
148. Convention Against Torture and Other Cruel,
Inhuman or Degrading Treatment or Punishment, art. 3.1, December 10, 1984, 1465 U.N.T.S. 85 ("No State Party shall expel, return (refouler) or extradite a person to another State where there are substantial grounds for believing that he would be in danger of being subjected to torture."). This convention adopts a very broad definition of torture as "any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for such purposes as obtaining from him, or a third person, information or a confession, punishing him for an act he or a third person has committed or is suspected of having committed, or intimidating or coercing him or a third person, or for any reason based on discrimination of any kind, when such pain or suffering is inflicted by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity." Id., art. 1.
149. U.N. Human Rights Comm., General Comment No. 20: Prohibition of Torture, or Other Cruel, Inhuman or Degrading Treatment or Punishment, art. 7, § 9, Mar. 10, 1992, available at http://www.unhchr.ch/tbs/doc.nsf/(Symbol)/6924291970754969c 12563ed004c8ae5?Opendocument; see generally WOUTERS, supra note 142, at 359.
150. Soering v. United Kingdom, XI Eur. Ct. H.R. (Ser.A) at 439 (1989); see
generally WOUTERS, supra note 142, at 187; Moor & Cliquet, supra note 113, at 7.
151. In this sense: Moberg, supra note 116, at 1117.
152. BROWN, supra note 22, at 36. 153. Andrew C. Revkin, The Dangers of the Deltas, N.Y. TIMES, May 11, 2008, available at http://www.nytimes.com/2008/05/ 1/weekinreview/I Irevkin.html?scp= 7&sq=Cyclone+Sidr+&st-nyt.
154. Id. 155. Joanna Kakissis, Environmental Refugees Unable to Return Home, N.Y. Jan. 3, 2010, available at http://www.nytimes.com/2010/01/04/world/asia/
TIMES, 04migrants.html.
156. See, Myers, supra note 47. 157. See generally, Frank Biermann & Ingrid Boas, Preparing for a Warmer World: Towards a Global Governance System to Protect Climate Refugees, 10 GLOBAL ENVTL. POL. 60, 75 (2010) (arguing in favor of a "Principle of Planned Re-location and Resettlement" and a further "Principle of Resettlement Instead of Temporary Asylum").
158. Frank Biermann & Ingrid Boas, Protecting Climate Refugees: The Case for a Global Protocol, 50 ENVT. 8, 12 (2008) [hereinafter Biermann & Boas, Protecting Climate Refugees].
159. See, e.g., Kelman, supra note 16. 160. MICHAEL WALZER, SPHERES OF JUSTICE: A DEFENSE OF PLURALISM AND
EQUALITY 3, 52 (1983).
161. Biermann & Boas, supra note 158, at 12. 162. Justin T. Locke, Climate Change-Induced Migration in the Pacific Region:
Sudden Crisis and Long-Term Developments, 175 GEOGRAPHICAL J. 171, 177 (2009).
163. WALZER, supra note 160, at 59. 164. See, e.g., YAFFA ZILBERSHATS, THE HUMAN RIGHT TO CITIZENSHIP 7 (2002) ("It
is commonly accepted that issues of citizenship are outside the reach of international law and are dealt with by states in accordance with their respective domestic legal system.... State sovereignty is primarily understood to entail the power to determine who will be the permanent and preferred members of the State, or, put differently, who will be its citizens.").
165. See, e.g., lelemia, supra note 78. 166. Philippe Boncour & Bruce Burson, Climate Change and Migration in the South Pacific Region: Policy Perspectives, in CLIMATE CHANGE AND MIGRATION: SOUTH PACIFIC PERSPECTIVES 5, 19 (Bruce Burson ed., 2010).
167. Dwight G. Newman, Collective Interests and Collective Rights, 49 AM. J.
JURIS. 127, 158,162 (2004).
168. U.N. Human Rights Comm., General Comment No. 12: The Right to SelfDetermination of Peoples, art. 1, § 1, (Mar. 13, 1984) available at http://www.unhchr.ch/ tbs/doc.nsfI0/f3c99406d528f37fc l2563ed004960b4?Opendocument.
169. See The International Covenant on Economic, Social and Cultural Rights, Dec. 16, 1966, 993 U.N.T.S. 3, art. 15, § 1, available at http://www2.ohchr.org/english/ the right of law/cescr.htm ("The States Parties to the present Covenant recognize everyone [. ..] [t]o take part in cultural life.").
170. See generally, Jean Rivero, Les droits de l'homme : droits individuels ou droits collectifs?, in LES DROITS DE L'HOMME : DRoITS COLLECTIFS ou DROITS INDIVIDUELS? 23, 23 (Alain Fenet ed., 1982).
171. BROWN, supra note 22, at 40. 172. WARNER ET AL., supra note 27, at 2:15. 173. Kelman, supra note 16, at 20 (noting that "[t]he 12,000 Tuvaluans still on Tuvalu, for example, could easily disperse among the millions of Sydney, Tokyo, Los Angeles or other large cities").
174. Biermann & Boas, supra note 158, at 12. 175. See generally, supra note 1. 176. UNHCR, supra note 130, at 2. 177. See Locke, supra note 162, at 177-78.
178. Id. at 178. 179. Colette Mortreux & Jon Barnett, Climate Change, Migration and Adaptation
in Funafuti, Tuvalu, 19 GLOBAL ENvT'L CHANGE 105, 105 (2009).
180. The Alaskan indigenous community of Kivalina gives a first example of such a democratic decision making. Referendums on a resettlement of the village, threatened by erosion, were rejected in 1953 and again in 1963. Yet another referendum was held in 1992, where 72 voted for a resettlement and only 7 against. See Kivalinacity.com, Relocation, http://www.kivalinacity.com/kivalinarelocation.html (last visited June 21, 2011). Yet, such a procedure results in imposing the decision of a majority upon a minority: those seven persons who voted against resettlement will surely have no choice but to move with the others. On the other hand, unanimous decisions are unlikely.
181. See supra note 97.
182. Migration and Climate Change: A New (Under) Class of Travellers, THE
ECONOMIST, June 25, 2009.
183. United Nations Conference on Environment and Development, Rio De Janeiro, Braz., June 3-14, 1992, Rio Declaration on Environment and Development, vol. 1, princ. 7, U.N. Doc. A/CONF.151/26, (June 14, 1992) available at http://www.un.org/ on documents/galconfl 51 /aconfl 5126-1 annex I.htm Environment and Development").
"Rio Declaration
(hereinafter
184. U.N. Framework Convention on Climate Change, supra note 86, art. 3, § 1. 185. LAVANYA RAJAMANI, ENVIRONMENTAL LAW 137 (2006).
DIFFERENTIAL
TREATMENT
186. FRIEDRICH SOLTAU, FAIRNESS IN INTERNATIONAL CLIMATE CHANGE LAW AND
POLICY 186 (2009).
187. Rio Declaration on Environment and Development, supra note 183, princ. 6.
188. SOLTAU, supra note 186, at 189. 189. See, for
instance, the contradiction between
to "historical responsibility" and the designation of "developed countries" in, UNFCCC, Decision 1/CP. 16: The Cancun Agreements: Outcome of the work of the Ad Hoc Working Group on Long-term Cooperative Action under the Convention, 2, recitals before § 36, U.N. Doc. FCCC/CP/2010/7/Add.l responsibility, developed country Parties must take the lead in combating climate change and the adverse effects thereof.").
[their] historical
the reference
("owing
(2010)
190. Rio Declaration on Environment and Development, supra note 183, princ. 16 ("National authorities should endeavour to promote the internalization of environmental costs and the use of economic instruments, taking into account the approach that the polluter should, in principle, bear the cost of pollution, with due regard to the public interest and without distorting international trade and investment.").
191. The "Polluter Pays Principle" intends to internalize the negative environmental consequences of an activity in the cost of this activity. See, e.g., Guiding Principles the International Economic Aspects of Environmental Policies of the Concerning in for Economic Co-Operation and Development (OECD), adopted Organization Recommendation of the Council on Guiding Principles Concerning International Economic Aspects of Environmental Policies, 1 4, Doc. C(72)128, (May 26, 1972), available at http://webnet.oecd.org/oecdacts/Instruments/ShowlnstrumentView.aspx? InstrumentlD=4&Lang-en&Book=False ("The principle to be used for allocating costs to encourage rational use of scarce of pollution prevention and control measures environmental resources and to avoid distortions in international trade and investment is the so-called 'Polluter-Pays Principle.' This principle means that the polluter should bear the expenses of carrying out the above-mentioned measures decided by public authorities to ensure that the environment is in an acceptable state. In other words, the cost of these measures should be reflected in the cost of goods and services that cause pollution in production and/or consumption. Such measures should not be accompanied by subsidies that would create significant distortions in international trade and investment."); see also Sanford E. Gaines, Polluter-Pays Principle: From Economic Equity to Environmental Ethos, 26 TEXAS INT'L L.J. 463, 469 (1991).
192. For an extensive discussion of the distinction between capacity-based and
responsibility-based PCDR, see Mayer, supra note 85, at 24-27.
193. Daniel Bodansky, United Nations Framework Convention on Climate Change:
A Commentary, 8 YALE J. INT'L L. 451, 503 (1993).
194. U.N. Conference on Environment and Development, Report of the UN IV, § 16 U.N. Doc.
Conference on Environment and Development, ch. A/CONF. 151/26(vol. IV), aconfl 5126-4.htm.
available at
http://www.un.org/documents/ga/confl51/
195. International Law Commission, Report on its 53rd Working Session, arts. 41 &
42, § 1, U.N. Doc. A/56/10, available at http://untreaty.un.org/ilc/reports/2001/ 2001report.htm.
196. For a presentation of the adaptation financial mechanisms established by the UNFCCC, see, e.g., Karoline Hwgstad Flilm & Jon Birger Skjurseth, Does adequate Financing Exist for Adaptation in Developing Countries?, 9 CLIMATE POL'Y 109, 110-11 (2009).
(2009), available at http://www.each-for.eu/documents/CSR
197. See, e.g., Jane McAdam & Ben Saul, Displacement with Dignity: International Law and Policy Responses to Climate Change Migration and Security in Bangladesh, 53 GERMAN YEARBOOK OF INT'L L. 1 (2010) (arguing that climate migration in Bangladesh is and will mostly be internal); Afifi, supra note 1, at 21 (reporting that "rather than traveling to Europe, [Nigerian climate migrants] travel to other African countries (if they leave their own country in first place) where there are similar agricultural activities to theirs. These countries are mainly the Benin Republic, Cameron, Chad, Ghana, Ivory Coast, Mali, Nigeria and Togo"); Francois Gemenne & Shawn Shen, Tuvalu and New Zealand Case Study -Report, in ENVIRONMENTAL CHANGE AND FORCED MIGRATION SCENARIOS 2, 10-11 Tuvalu 090215.pdf, (reporting that Tuvaluan climate migrants mainly go to Fiji and New Zealand, but only exceptionally to Australia or the United States, mainly for cultural reasons); Mohamed Ait Hamzad, Brahim El Faskaoui & Alfons Fermin, Migration and Environmental Change in Morocco: The Case of Rural Oases Villages in the Middle Drda Valley, in ENVIRONMENTAL CHANGE AND FORCED MIGRATION SCENARIOS 2, 12 (2009), available at http://www.each-for.eu/documents/CSR Morocco_090328.pdf international migration to Europe is frequent, "internal (showing that, even though in particular migration has always remained more important in numerical concerning emigration from remote oases); Thomas Faist et al., Environmental Factors in Mexican Migration: The Cases of Chiapas and Tlaxcala, in ENVIRONMENTAL CHANGE AND FORCED MIGRATION SCENARIOS 2, 12 (2009), available at http://www.eachis for.eu/documents/CSR Mexico 090126.pdf (noting that Emigration from Mexico overwhelmingly directed towards the United States (other international migration flows are close to insignificant) and strongly interlinked to the respective economic, social, and political conditions in both countries, Mexico and the United States, yet also recognizing (without quantifying) the development of internal migration. Even in cases of developing countries close to developed ones, where socio-economic "pulls" add to environmental "pushes," social and cultural links with potential places of destination have a great importance).
terms,"
198. Biermann & Boas, supra note 158, at 12. 199. U.N. Secretary-General, supra note 50, § 63.
200. See, e.g., J.L. CLERGERIE ET AL., L'UNION EUROPEENNE 239 (6th ed. 2006). 201. Consolidated Version of the Treaty on European Union, art. 5, §§ 1, 3, Mar.
30, 2010, O.J. (C83) 15.
202. Paolo G. Carozza, Subsidiarity as a Structural Principle of International
Human Rights Law, 97 AM. J. INT'L L. 38, 40 (2003).
203. Id. at 57-58.
204. Consolidated Version of the Treaty on European Union, supra note 201, arts.
35, 220.
205. See, e.g., Lisa Friedman, A Global 'National Security' Issue Lurks at Bangladesh's Border, SCRIBDCOM (March 23, 2009), http://www.scribd.com/doc/ 13651961/India-Fence-Along-Bangladesh (reporting on India's ongoing project to fence more than 2,000 miles of its borders with Bangladesh in an attempt to prevent illegal migration).
206. See in particular Convention
for the Protection of Human Rights and Fundamental Freedoms, Nov. 4, 1950, 213 U.N.T.S. 222; Convention Governing the Specific Aspects of Refugee Problems in Africa, Sept. 10, 1969, 1001 U.N.T.S. 45; American Convention on Human Rights, Nov. 22, 1969. O.A.S. Treaty Series No. 36, 1144 U.N.T.S. 123; African Charter on Human and People's Rights, June 27, 1981, 21 I.L.M. 58.
207. See Aurdlie Sgro, Towards Recognition of Environmental Refugees by the
European Union, 6 ASYLON(S) article844.html.
(2008), available at http://www.reseau-terra.eu/
208. See Guy S. GOODWIN-GILL & JANE MCADAM, THE REFUGEE IN INTERNATIONAL
LAW 23 (2007).
209. G.A. Res. 428(V), art. 6(A)(ii), U.N. Doc. A/Res/428(V) (Dec. 14, 1950),
available at http://www.unhcr.org/refworld/docid/3ae6b3628.html.
l
210. GA Res. 47/105,
14, U.N. Doc. A/RES/47/105 (Dec. 16, 1992), available at
http://www.un.org/documents/ga/res/47/a47rl05.htm.
211. UNHCR, Internally Displaced People Figures, http://www.unhcr.org/pages/
49c3646c23.html (last visited June 22, 2011) [hereinafter Displaced].
212. U.N. Charter, supra note 99, art. 18, § 3. 213. Approximately 10.4 million refugees (excluding Palestinian refugees of the UNRWA's competence) and 14.4 million IDP are cared for by the UNHCR. See (last visited UNHCR, Refugee Figures, http://www.unhcr.org/pages/49c3646cld.html June 22, 2011); see also, Displaced, supra note 211.
214. See, e.g., Biermann & Boas, supra note 157, at 79. 215. UNHCR, Financial Figures, http://www.unhcr.org/pages/49c3646cla.html
(last visited June 22, 2011).
216. See id (93% of the UNHCR budget comes from voluntary donations by states
and 3% from private donors).
217. See, e.g., Kalinga Seneviratne, Tiny Tuvalu Steps up Threat to Sue Australia,
CoMMoNDREAMS.ORG
US., headlines02/0905-02.htm.
(Sept. 5, 2002),
http://www.commondreams.org/
218. lelemia, supra note 78, at 19. 219. Trail Smelter (U.S. v. Can.), 3 R.I.A.A. 1911, 1965 (Perm. Ct. Arb. 1940),
available at http://untreaty.un.org/cod/riaa/cases/vol_111/1905-1982.pdf.
.
220. Corfu Channel (UK. v. Alb.), 1949 I.C.J. 4, 22 (Apr. 9). 221. United Nations Conference on the Human Environment, June 16, 1972, Declaration of the United Nations Conference on the Human Environment, art. 21, U.N. (1972), available at http://wwwl.umn.edu/humanrts/instree/ Doc. A/Conf.48/14/Rev.1 humanenvironment.html; see also Rio Declaration on the Environment and Development, supra note 183, art. 2.
222. JOSEPH SMITH & DAVID SHEARMAN, CLIMATE CHANGE LITIGATION: ANALYZING THE LAW, SCIENTIFIC EVIDENCE & IMPACTS ON THE ENVIRONMENT, HEALTH & PROPERTY 49 (2006). Litigation could also be brought to the UNCLOS tribunal. William C.G. Bums, Potential Causes of Action for Climate Change Damages in International Fora: The Law ofthe Sea Convention, 2 McGILL J. SUSTAINABLE DEV. L. & POL'Y 27 (2006).
223. See SMITH & SHEARMAN, supra note 222, at 53. 224. RODA VERHEYEN, CLIMATE CHANGE DAMAGE AND
PREVENTION, DUTIES AND STATE RESPONSIBILITY 238 (2005).
INTERNATIONAL LAW:
225. See IPCC WG II, supra note 22, at 357-90, available at http://www.ipcc.ch/
pdf/assessment-report/ar4/wg2/ar4-wg2-chapter7.pdf. 226. WARNER ET AL., supra note 27, at 2.
227. SMITH & SHEARMAN, supra note 222, at 111. 228. See, e.g., Jost Delbruck, A More Effective International Law or a New "World in a Changing
Law"?: Some Aspects of the Development of International Law International System, 68 IND. L.J. 705, 717 (1992).
229. International Law Commission, supra note 195, art. 44(1).
3. Necessity of Treaty Law and its Feasibility at the
Regional Level
230. Richard S.J. Tol & Roda Verheyen, State Responsibility and Compensation for Climate Change Damages-A Legal and Economic Assessment, 32 ENERGY POL'Y 1109, 1125 (2004).
231. U.N. Secretary-General, supra note 50, 1 72. 232. See, e.g., Biermann & Boas, Protecting Climate Refugees, supra note 158, at I 1; Dana Zartner Falstrom, Stemming the Flow ofEnvironmental Displacement: Creating a Convention to Protect Persons and Preserve the Environment, 13 COLO. J. INT'L ENVTL. L. & Pot'Y 1 (2002); Hulme, supra note 43; Contra Jessica B. Cooper, Environmental Refugees: Meeting the Requirements of the Refugee Definition, 6 N.Y.U. ENvTL. L.J. 480 (1998).
233. See Moberg, supra note 116, at 22.
234. See Convention Relating to the Status of Refugees, supra note 114, art. 31. 235. UNFCCC, supra note 86, art. 3, § 1. 236. Falstrom, supra note 232. 237. LAURA WESTRA, ENVIRONMENTAL JUSTICE AND THE RIGHTS OF ECOLOGICAL
REFUGEES 188 (2009).
238. Docherty & Giannini, supra note 53, at 350. 239. Id. at 359, 373. 240. David Hodgkinson et al., Towards a Convention for Persons Displaced by
Climate Change: Key Issues and Preliminary Responses, 8 THE NEW CRITIC 1, 2 (2008).
241. See Docherty & Giannini, supra note 53, at 378; Biermann & Boas, supra note
157, at 79.
242. See Biermann & Boas, supra note 157, at 79; Docherty & Giannini, supra note
53, at 389.
243. Biermann & Boas, supra note 157, at 79; Docherty & Giannini, supra note 53,
at 388-89.
244. Falstrom, supra note 232, at 13. 245. Boncour & Burson, supra note 166, at 21; see also Angela Williams, Turning the Tide: Recognizing Climate Change Refugees in International Law, 30 L. & POL'Y 502, 517 (2008).
,,211
246. Docherty & Giannini, supra note 53, at 400. 247. See U.N. Secretary-General, supra note 50; see also Williams, supra note 245,
at 518.
248. For example, Nigeria may receive many migrants from Niger, though Nigeria
is itself concerned by land degradation (as well as by floods).
249. See UN S.C., supra note 100. 250. UN Charter, supra note 99, art. 24, § 1.
251. Teall Crossen & Rona Meleisea, Drowning Islands Demand Security Council Action on Climate Change, ISLANDS FIRST (May 20, 2010), http://www.islandsfirst.org/ updates/20100520_pressrelease.html; see also Francesco Sindico, Climate Change: A Security (Council) Issue?, I CARBON & CLIMATE L. REV. 26, 34 (2007) available at http://papers.ssrn.com/sol3/papers.cfm?abstractid=1013186.
252. See GA Res 63/281, supra note 101.
253. Williams, supra note 245, at 518; see also Boncour & Burson, supra note 166, at 23 (suggesting "an interconnected and mutually-reinforcing series of global, regional, and bilateral responses under the umbrella of the UNFCCC").
254. See generally UNEP, REGIONAL SEAS, PARTNERSHIPS FOR SUSTAINABLE (2005), available at http://www.unep.org/regionalseas/publications/
DEVELOPMENT brochures/pdfs/regionalseas brochure.pdf; Akiwumi & T. Melvasalo, UNEP's Regional Seas Programme: Approach, Experience and Future Plans, 22 MARINE POL'Y 229 (1998).
255. See Akiwumi & Melvasalo, supra note 254, at 153.
256. This provision may be inspired by article 34 of the Convention Relating to the Status of Refugees, supra note 114 ("The Contracting States shall as far as possible facilitate the assimilation and naturalization of refugees. They shall in particular make every effort to expedite naturalization proceedings and to reduce as far as possible the charges and costs of such proceedings.").
257. In order to complete the Kyoto Adaptation Fund, the 16th Conference of the Parties to the UNFCCC decided to set up a "Green Climate Fund" in charge of ensuring a balanced funding of adaptation and mitigation activities. See UNFCCC COP 16, supra note 102, 1102.
258. For such an argument, see Public communiqu6, New Zealand Ministry of Foreign Affairs and Trade, New Zealand's Immigration Relationship with Tuvalu (Aug. 4, 2009), immigration.php (in which New Zealand rejects any resettlement program from Tuvalu through underlining in developing countries").
available at http://www.mfat.govt.nz/Foreign-Relations/Pacific/NZ-Tuvalu-
its commitment for "climate change projects