The protection of climate change-induced migrants under international law

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Bacheloressay

Universiteit van AmsterdamFiscaal recht Internationaal belastingrecht, grondslagen Leerjaar: 2013-2014

Bacheloressay

Universiteit van AmsterdamFiscaal recht Internationaal belastingrecht, grondslagen Leerjaar: 2013-2014

Master Thesis

University of AmsterdamMaster Track: Public International Law

Academic year: 2017-2018 Final version Master Thesis

The protection of climate change-induced migrants under

international law

Supervisor: mw dr. mr. P.A. Hildering Second reader: mr. dr. M. den Heijer Mark de Jongh

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Abstract

Purpose: by the year 2050, an estimated 200 million people will be displaced by the adverse

effects of climate change. Although it is expected that most of these migrants will move internally, if only a small percentage of the expected climate change-induced migrants crosses international borders, it will put increasing pressure on both the international community and individual states to protect these migrants. The purpose of this thesis is to analyze how cross-border climate change-induced migrants are protected under international law and whether this protection effectively safeguards their (human) rights.

Findings: although the International Organization for Migration adopted an operational

definition for climate change-induced migrants, there is currently no legal definition agreed upon. Moreover, there is no legal framework that is specifically designed to safeguard the (human) rights of all climate change-induced migrants. Some frameworks offer protection to either a specific group or under exceptional circumstances, but since the scope of these frameworks is limited, it will leave many climate change-induced migrants unprotected. Furthermore, there is no clear method to hold states responsible for the adverse effects of climate change. As such, current and possible future cross-border climate change-induced migrants are not sufficiently protected under international law.

Value: this thesis provides a detailed analysis of the status of climate change-induced

migrants, the various legal frameworks that protect them and the mechanisms to assign responsibility for the adverse effects of climate change. It also discusses considerations for future directions concerning possible legal frameworks and ways to identify who is responsible for safeguarding the human rights of climate change-induced migrants. With an overview of how climate change-induced migrants are currently protected under international law and an analysis of the protection gaps, this thesis is able to provide considerations for future directions of how climate change-induced migrants can be more effectively protected in the future.

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Table of content

1. Introduction...3

1.1. Scope and terminology...6

2. The legal status of climate change-induced migrants...7

2.1. Kiribati case overview...7

2.2. Tuvalu case overview...9

2.3. Kiribati and Tuvalu case-law analysis...11

2.4. Legal status...12

3. Protection of climate change-induced migrants by international legal frameworks...16

3.1. Existing legal frameworks...16

3.2. Protection of human rights...24

3.3. Considerations for future directions concerning legal frameworks...27

4. Responsibility for climate change-induced migrants...30

4.1. Mechanisms for assigning state responsibility...31

4.2. The effectiveness of mechanisms to assign responsibility...34

4.3. Considerations for future directions concerning state responsibility...36

5. Conclusion...38

Bibliography...40

References...40

Literature from international organizations...44

Treaties, statues, protocols, declarations, agreements directives and conventions...46

Case law...47

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1. Introduction

Reports on people being displaced due to climate change by the year 2050, vary from 50 million up to 1 billion1_{. The most cited estimate is around 200 million}2_{. The large variation} between the top and bottom estimate, lies in both the uncertainty of the effects of climate change in general and the impact it will have on certain regions3_{. Different factors such as:} poverty, economic and social exclusion, limited resources, demographic developments, inter-group tension, institutional constraints and conflict countries also play an important role in human migration4_{. In this context, developing countries will likely experience the most} adverse consequences of climate change5_.

It is expected that future movement patterns6_{of climate change-induced migrants will} resemble current ones 7_{. In that case, migration linked to climate change will for a big part} take place internally or between contiguous countries8_{. There is currently no global data on} the magnitude of cross-border climate change-induced migration9_{, but even if cross-border} migration entails only a small percentage of the 200 million expected climate change-induced migrants, it will put increasing pressure on both the international community and individual states to effectively protect climate change-induced migrants10_.

1 Tacoli, “Crisis or Adaption? Migration and Climate Change in a Context of High Mobility”, Environment and Urbanization, Vol. 21 No. 2, p. 513-525 and K. Burrows and P.L. Kinney, Exploring the Climate Change,

Migration and Conflict Nexus, International Journal of Environmental Research and Public Health, April 2016. 2 K. Burrows and P.L. Kinney, Exploring the Climate Change, Migration and Conflict Nexus, International Journal of Environmental Research and Public Health, April 2016, Myers, Environmental refugees: a growing

phenomenon of the 21st Century, Philos Trans R Soc Biol Sci 357:609–613, 2002 and M. Shamsudduha & R.

Chowdhury, Climate Induced Forced Migrants in Need of Dignified Recognition Under a New Protocol, April 2009.

3 Tacoli, “Crisis or Adaption? Migration and Climate Change in a Context of High Mobility”, Environment and Urbanization, Vol. 21 No. 2, p. 513-525.

4 A. Kraler, T. Cernei and M. Noack, Climate Refugees Legal and Policy Response to Environmentally Induced

Migration, European Parliament, 2011.

5 S. Raleigh, L. Jordan and I. Salehyan, Assessing the Impact of Climate Change on Migration and Conflict, 2007.

6 R. Palladino, Climate Change, Forced Migration, and International Law, 16 Int'l Comm. L. Rev. 253, 2014. 7 O. Gomez, Climate Change and Migration (A review of literature), International Institute of Social Studies, November 2013.

8 S. Raleigh, L. Jordan and I. Salehyan, Assessing the Impact of Climate Change on Migration and Conflict, 2007.

9 Migration Data Portal, July 2018. Also see: https://migrationdataportal.org/themes/environmental_migration

10 A. Williams, Turning the Tide, Recognizing Climate Change Refugees in International Law, Baldy Center for Law and Social Policy, 2008.

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The temperatures in the atmosphere and ocean system have risen at an alarming rate since the 1950’s and it is expected that the temperature will continue to rise11_{. The dominant cause of} the observed increase in temperature is largely due to human influence12_{and will most likely} lead to sea-level rise and an increasing number of natural disasters, such as floods, storms, droughts and severe water shortages13_{. The severity of the situation has been emphasized by} various international organizations, such as the Intergovernmental Panel On Climate Change and the International Organization for Migration:

“The gravest effects of climate change may be those on human migration as millions are

displaced by shoreline erosion, coastal flooding and severe drought”14_.

“Climate change is expected to trigger growing population movements within and across

borders, as a result of such factors as increasing intensity of extreme weather events, sea-level rise and acceleration of environmental degradation. In addition, climate change will have adverse consequences for livelihoods, public health, food security, and water availability. This in turn will impact on human mobility, likely leading to a substantial rise in the scale of migration and displacement.15_”

With an expected growth of climate-change induced migrants and an increased impact of the adverse effects of climate change, the question of how climate change-induced migrants are protected under international law becomes more relevant than ever. Protection gaps could leave millions of cross-border climate change-induced migrants insufficiently protected under international law. This thesis therefore tries to answer the following question:

“How are climate change-induced migrants protected under international law and does this

protection effectively safeguard their human rights?”

To answer the main question of this thesis, the following three sub-questions are relevant:

11 Intergovernmental Panel on Climate Change, Climate Change 2014: Fifth Assessment Report, 2014. 12 Intergovernmental Panel on Climate Change, Climate Change 2007: Fourth Assessment Report, 2007. 13 G. Kibreab, Climate Change and Human Migration, A Tenuous Relationship, 20 Fordham Envt. L. Rev. 357, 2009.

14 Intergovernmental Panel on Climate Change, Climate Change 1990: First Assessment Report, 1990. 15 International Organization for Migration, 2018: https://www.iom.int/migration-and-climate-change-0

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1. What is the status of climate change-induced migrants?;

2. To what extent do international legal frameworks safeguard the human rights of climate chance-induced migrants?;

3. Who is responsible for climate change-induced migrants under international law? These three sub-questions will be discussed in the next three chapters after the introduction and the scope and terminology. In the first chapter, two cases will be discussed concerning climate change-induced migrants who applied for refugee status in New Zealand. These cases will serve as examples of the current problems regarding the status and protection of climate change-induced migrants under international law. After these examples, the legal status of climate change-induced migrants and the problems concerning the legal term ’refugee’ will be analyzed.

The second chapter will examine the various frameworks that can possibly protect the human rights of climate change-induced migrants and whether this protection is effective. It will also address considerations for future directions when it comes to an international legal framework to protect climate change-induced migrants. The third chapter will assess the question of responsibility for climate change-induced migrants under international law. Further, it will contain considerations for future directions regarding ways for assigning responsibility for climate change-induced migrants.

After having reviewed and analyzed the three sub-questions, the main question of this thesis will be discussed in the conclusion, which will also include an overview of the most important findings of the thee sub-questions and considerations for future directions.

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1.1.

Scope and terminology

This thesis will focus on cross-border climate change-induced migration, either temporary or permanent. It will set aside those who are displaced internally or those migrating on a voluntary basis. Further, this thesis will not discuss the causes of climate change or the correlation between climate change and migration further than what has been said in the introduction.

Various responses to the adverse effects of climate change, such as mitigation and adaption, will not be addressed either16_{. Although adaption and mitigation strategies make states more} resilient to the adverse effects of climate change17_{, cross-border climate change-induced} migration is not completely avoidable through adaption or mitigation efforts18_{. As such, this} thesis will only focus on how these cross-border climate change-induced migrants are protected under international law and whether this protection effectively safeguards their human rights.

Lastly, the terms ‘climate refugee’ or ‘environmental refugee’ are seen as controversial19_, because in most cases the legal definition of a ‘refugee’ does not apply for climate change-induced migrants (as will be discussed in detail the first chapter)20_{. Therefore, these terms will} not be used. Moreover, the term ‘environmental migrant’ is too broad as this thesis focusses on the adverse effects of climate change. Therefore, the term ‘climate change-induced migrant’ will be used instead.

16 Mitigation are actions which reduce activities that cause or worsen climate change. Adaption involves ways to reduce the vulnerability of biological and social systems to offset the effects of climate change. Resilience is defined as: “A measure of the persistence of (ecological) systems and of their ability to absorb change and disturbance and still maintain the same relationship between population or state variables.” For more information about these concepts: R. Döpker, The debate on climate-induced migration in the EU: is resilience showing

through?, 2016 and the IPCC, Fourth Assessment Report: Climate Change, Section 4: Adaption and mitigation options, 2007.

17 R. Döpker, The debate on climate-induced migration in the EU: is resilience showing through?, 2016. 18 UNFCCC, The Cancun Agreements: Outcome of the work of the Ad Hoc Working Group on Long-Term

Cooperative Action under the Convention (sixteenth session), Para. 14(f), 2011.

19 J. McAdam, Climate Change ‘Refugees’ and International Law, NSW Bar Association, October 2007. 20 J. McAdam, Climate Change ‘Refugees’ and International Law, NSW Bar Association, October 2007.

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2. The legal status of climate change-induced migrants

Because an increasing number of people are being displaced by the adverse effects of climate change, there is a growing need to regulate cross-border migrating caused by environmental degradation and sea-level rise21_{. In order to define the applicability of international law} regarding cross-border climate change-induced migrants, we must look into their legal status22_.

Two cases will be reviewed and analyzed concerning families who applied for refugee status in New Zealand. These cases show the complexity of assigning the refugee status to climate change-induced migrants and will serve as examples in regard to their status and whether international legal frameworks can affectively safeguard their human rights. Afterwards the legal status of climate change-induced migrants will be discussed.

2.1.

Kiribati case overview

Mr. Teiliota was one of the first persons to apply for refugee status due to the effects of climate change23_{. He and his wife migrated from the Republic of Kiribati, a small Pacific} island, to New Zealand in 2007. They had three children, but none of them were entitled to the New Zealand citizenship24_{. After October 2010 they remained in the country illegally due} to the expiration of their visas25_{. In order to avoid deportation, Mr. Teitiola applied for refugee} status under the New Zeeland Immigration Act 200926_{, which incorporates the Convention} Relating to the Status of Refugees27_{. He claimed that he was entitled to be recognized as a} refugee because of the changes to his environment in Kiribati as a result of the sea-level rise associated with climate change28_.

21 M. Gromilova, Legal protection of the people at risk of climate-induced cross-border displacement, application of the 1951 Refugee Convention, Tilburg University, 2011.

22 A. Berman & R. Wessel, The international Legal Status of Informal International Law-making Bodies:

Consequences for Accountability, 2012.

23 Eliot Hannon, Man Attempts to Become World’s First Climate Change Refugee, Slate, 17 October 2013. 24 New Zealand Citizenships Act 1977, Part 1 under 6; They were neither citizens of New Zealand nor were they entitled to reside there under the New Zealand Immigration Act 2009.

25 Library of Congress, New Zealand: ‘Climate Change Refugee’ Case Overview, July 2015. 26 New Zealand Immigration Act 2009, Part 5.

27 UNHCR, Convention and Protocol relating to the Status of Refugees 1951.

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His refugee status request was denied by a refugee and protection officer within the Refugee Status Branch, and the Immigration and Protection Tribunal (IPT) upheld this decision29_. The IPT dismissed his appeal on the following two grounds:

- First, the IPT sees the moving of Mr. Teiliota as voluntary rather than forced. Even though the limit capacity of his hometown had been compromised due to the adverse effects of climate change, the situation was not so severe that he was forced to migrate30_.

- Second, a person applying for the refugee status, must meet the criteria set out in the Refugee Convention. As such, there must be: ‘A real chance of a sustained or systematic violation of a core human right demonstrative of a failure of a state protection which has sufficient nexus of a Convention ground’31_{. The IPT found this} was not the case because the living conditions on Kiribati were not severe enough that the live of Mr. Teiliota or his family were in immediate danger. Further, the government of Kiribati had taken important steps to protect its inhabitants32_.

Mr. Teiliota went to the High Court to appeal the decision of the IPT, but without success. The High Court decided it was not up to the court to alter the scope of the Refugee Convention so it could include those who suffer from medium-term economic degradation or people confronted with environmental degradation or natural disasters due to climate change. It stated that a ‘sociological refugee’ that is seeking a better life by escaping the perceived results of climate change is not a person to whom the Refugee Convention applies33_{. In order} to overturn of decision of the High Court, Mr. Teiliota went to the Court of Appeal.

The Court of Appeal also upheld the reasoning of the IPT and stated that the effects of climate change do not fall within the scope of the Refugee Convention, even if they were to be interpreted in the most sympathetic, ambulatory approach possible34_{. Lastly, Mr. Teiliota went} to the Supreme Court to appeal the decision of the Court of Appeal.

29 Library of Congress, New Zealand: ‘Climate Change Refugee’ Case Overview, July 2015. 30 Immigration and Protection Tribunal New Zealand, NZIPT 800413, June 2013, under 39 and 49. 31 Immigration and Protection Tribunal New Zealand, NZIPT 800413, June 2013, under 65.

32 Immigration and Protection Tribunal New Zealand, NZIPT 800413, June 2013, under 74, 75 and 97. 33 High Court New Zealand Auckland Registry, NZHC 3125, November 2013, under 51 and 54. 34 Court of Appeal of New Zealand, NZCA 173, March 2014, under 21.

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The Supreme Court agreed with the lower courts and found that Mr. Teiliota did not face ‘serious harm’ and ‘that there was no evidence that the government of Kiribati failed to take appropriate steps to protect its citizens from environmental degradation35_{. The Supreme Court} noted that this does not mean environmental degradation as a result of a natural disaster or climate change could never create a pathway into the Refugee Convention and that their decision in this particular case should not be viewed as ruling out that possibility in other cases36_.

2.2.

Tuvalu case overview

Because of environmental degradation, overpopulation and sea-level rise37_{, Mr. Sigeo and his} wife decided to move from Tuvalu, a small pacific island, to New Zealand in 200738_{. They} had two children who were born in New Zealand (in 2008 and 2011), but neither of them was entitled to the New Zealand citizenship39_.

They first stayed in New Zealand under a visitor’s visa and when it expired, Mr. Sigeo applied multiple times for a working permit, but without success40_{. After staying unlawfully in} New Zealand for a second time in 2011, he applied for an interim visa so he would be eligible for a residence class visa on the basis that he was the last remaining sibling in Tuvalu. The interim visa was rejected by the immigration office because they did not find it appropriate for him to stay in New Zealand while his residence visa was being assessed41_.

It is important to note that over time, almost the entire family of Mr. Sigeo moved to New Zealand and obtained citizenship here and that they stayed close together as a family42_. Furthermore, his mother relied almost entirely on him for her mobility needs43_{. Lastly, the} children of Mr. Sigeo had never been to Tuvalu and the eldest of his children has already integrated into the New Zealand school system44_.

35 Supreme Court of New Zealand, SC 7/2015, NZSC 107, under 12, July 2015. 36 Supreme Court of New Zealand, SC 7/2015, NZSC 107, under 12 and 13, July 2015. 37 Immigration and Protection Tribunal New Zealand, NZIPT 501370-371, under 9, June 2014. 38 Immigration and Protection Tribunal New Zealand, NZIPT 501370-371, under 4, June 2014.

39 New Zealand Citizenships Act 1977, Part 1 under 6; They were neither citizens of New Zealand nor were they entitled to reside there under the New Zealand Immigration Act 2009.

40 Immigration and Protection Tribunal New Zealand, NZIPT 501370-371, under 4, June 2014. 41 Immigration and Protection Tribunal New Zealand, NZIPT 501370-371, under 5, June 2014.

42 The mother of mr. Sigeo and five of his six sisters moved to New Zealand. The other sister migrated to Fiji. 43 Immigration and Protection Tribunal New Zealand, NZIPT 501370-371, under 19, June 2014.

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Mr. Sigeo applied for refugee status saying that deportation back to Tuvalu would separate him from his family with whom he has close bonds and that he and his family would be at risk from the adverse effects of climate change45_{. His refugee request was denied and Mr. Sigeo} turned to the IPT and successfully appealed this decision after which his family was portrayed in the media as ‘the first climate refugees’46_.

The IPT made the following three remarks :

- First, in state practice, exposure to environmental degradation can constitute a circumstance of humanitarian nature47_{and that the adverse effects of climate change} affect the enjoyment of human rights48_.

- Second, that Tuvalu is especially vulnerable to the impact of climate change, because it is a low-lying tropical island49_.

- Third, the IPT noted that in this case there were exceptional circumstances of a humanitarian nature50_{. The entire family of Mr. Sigeo effectively moved to New} Zealand and deportation to Tuvalu would significantly disrupt their family network. It would also affect the quality of his mother’s life, who relied on him for her mobility needs51_{. Moreover, deportation could ultimately affect the wellbeing of the children} involved52_{because they are more vulnerable to the adverse impact of climate change} and natural disasters53_.

To conclude, due to exceptional circumstances of a humanitarian nature54_{, the IPT found it to} be unjust or unduly harsh to deport Mr. Sigeo and his family from New Zealand55_.

2.3.

Kiribati and Tuvalu case-law analysis

45 Immigration and Protection Tribunal New Zealand, NZIPT 501370-371, under 2, June 2014.

46 ESPMI Network, Climate Refugee? Alternative and Broadened Protection Avenues for Refugees from Small

Island Developing States (SIDS), May 2015 and R. Noack, Has the era of the ‘climate change refugee’ begun?,

The Washington Post, August 2014.

47 Immigration and Protection Tribunal New Zealand, NZIPT 501370-371, under 27, June 2014. 48 Immigration and Protection Tribunal New Zealand, NZIPT 501370-371, under 28, June 2014. 49 Immigration and Protection Tribunal New Zealand, NZIPT 501370-371, under 29, June 2014. 50 Immigration and Protection Tribunal New Zealand, NZIPT 501370-371, under 30, June 2014. 51 Immigration and Protection Tribunal New Zealand, NZIPT 501370-371, under 31, June 2014.

52 UNHCR, Convention on the Rights of the Child, Art. 3, November 1989: The IPT is required to have regard for the best interest of children.

Island Developing States (SIDS), May 2015.

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In both cases, the main question revolved around whether or not the refugee status should be granted to a family moving to New Zealand because of the adverse effects of climate change. In the Kiribati case this request was denied, because escaping from the adverse effects of climate change was not considered a stand-alone reason to be seen as a refugee under the Refugee Convention56_{. It was also noted that it was not proven that the government of Kiribati} failed to take necessary steps to protect its inhabitants57_.

In the Tuvalu case, the refugee request was granted, because of exceptional circumstances of a humanitarian nature. It would have been unduly harsh or unjust to deport Mr. Sigeo and his family58_{. The two main reasons for this, were because his entire family moved to New} Zealand and deportation was not in the best interest of the children involved59_.

What is made clear when reviewing these cases, is that the Refugee Convention does not offer adequate protection when it comes to protecting climate change-induced migrants. Only in exceptional circumstances does it offer protection to climate change-induced migrants by granting them refugee status. In the Tuvalu case these were circumstances of a humanitarian nature, which in this particular case could be seen in the context of human rights law as the ‘right to family life’ and the ‘right to life’.

Since there have not been many cases in which refugee status was granted to climate change-induced migrants, it is unclear in which other exceptional circumstances the refugee status could be granted to climate change-induced migrants. The next section will discuss the legal status of climate change-induced migrants and whether or not they should be seen as a refugee under the Refugee Convention.

2.4.

Legal status

Island Developing States (SIDS), May 2015.

57 Supreme Court of New Zealand, SC 7/2015, NZSC 107, under 12, July 2015.

59 Immigration and Protection Tribunal New Zealand, NZIPT 501370-371, under 23, 24, 25 and 26, June 2014. The IPT found it not in the best interest because their whole family lives in New Zealand and they have never even been to Tuvalu. Another reason was that their oldest child started school in New Zealand and their youngest child would be more vulnerable to the adverse effects of climate change.

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As seen in the Kiribati and Tuvalu cases60_{, the existing instrument to protect refugees only} protects climate change-induced migrantsunder exceptional circumstances61_{. This raises the} question of what the international legal status is of climate change-induced migrants and whether they should be categorized as refugees. As Brooks Masters eloquently put it:

“To Be or Not To Be a Refugee?62_”

The legal term of ‘refugee’, was created as a reaction to the large-scale displacement of people after World War II and it was not meant to protect climate-change induced migrants63_. In the Refugee Convention, the definition of the term refugee is as follows:

“A person who owing to a 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 to the protection of that country64_.”

To be recognized as a refugee under the Refugee Convention, it requires a ‘well-founded fear of being persecuted’ and the reasons for this persecution are limited to “race, religion, nationality membership of a particular social group or political opinion65_{.” This restrictive} legal framing leaves little room for interpretation and it has no obvious provision that protects climate change-induced refugees66_.

It could be argued that government-induced environmental degradation is a form of persecution and ‘environmental refugees’ can be seen as ‘members of a social group’67_{. Given} the purpose and object of the Refugee Convention and the narrow applicability as intended by

60 See the Kiribate Climate Change Case Study.

62 S. Brooks Masters, Environmental Induced Migration, Beyond a Culture of Reaction, 14 Geo. Immigr. L.J. 855, 2000.

63 S. Brooks Masters, Environmental Induced Migration, Beyond a Culture of Reaction, 14 Geo. Immigr. L.J. 855, 2000.

67 A. Aleinikoff, T. Alexander & V. Chetail, Migration and International Legal Norms, The Hague: TMC Asser Press, 2003.

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the parties, it is very unlikely that such an argument will hold any significant credibility, even if the treaty is interpreted in the most liberal approach68_.

There are two reasons of why the term ‘climate refugee’ and ‘environmental refugee’ are problematic. First, a refugee must be ‘outside the country of his nationality’. This entails the refugee has crossed an international boarder. Since a lot of climate change-induced migrants migrate internally, they are not protected by the Refugee Convention69_{. This characteristic} draws a line between international displaced persons and refugees. International displaced persons are defined as:

“Persons or groups of persons who have been forced or obliged to flee or to leave their

homes or places of habitual residence, in particular as a result of or in order to avoid the effects of armed conflict, situations of generalized violence, violations of human rights or natural human-made disasters, and who have not crossed an internationally recognized State border.70_”

This definition fits the concept of climate refugees, except that it only covers internal displacement71_{. However, the scope of this thesis lies strictly on cross-border climate} change-induced migration. Still, different mechanisms for protecting different groups should be kept in mind, as these instruments may prove useful in finding solutions for the protection of climate refugees72_.

Second, in order to be characterized as a refugee under the Refugee Convention, there must be a ‘well-founded fear’73_{. This phrase holds both an objective and a subjective meaning. The} element of fear is subjective and refers to the state of mind of a refugee and usually requires

70 United Nations Commission on Human Rights, Report of the Representative of the Secretary-General, Mr.

Francis M. Deng, submitted pursuant to Commission resolution 1997/39. Addendum: Guiding Principles of

Internal Displacement, February 1998.

72 European Commission, Climate change, environmental degradation, and migration (Commission Staff

Working Document), April 2013.

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an assessment of the credibility and personality of the applicant74_{. Also, the fear must be} ‘well-founded’; this implies that the frame of mind must be supported by some kind of objective situation75_{. This will be difficult, since it is not clear in which situation and to what} extend natural disasters, sea-level rise or environmental degradation constitute as ‘well-founded’.

In this regard, you can distinguish three major types of climate change-induced migrants76_. 1. People that have been displaced temporarily due to a anthropogenic or natural disaster.

In most cases this type of migration in temporary77_;

2. People that have been displaced permanently because of drastic changes in the environment, such as with the construction of a water reservoir78_{; and}

3. People that migrate due to the effects of gradual environmental degradation, such a sea-level rise and extreme drought79_.

The last group is especially problematic, because it is hard to assess whether their fear is ‘well-founded’ and it is difficult to distinguish them from ordinary migrants who want to migrate in search of better living conditions80_{. In most cases, the legal definition of the term} ‘refugee’ does not apply to climate change-induced migrants. There is a growing consensus81 to stop using terms like ‘climate refugee’ or ‘environmental refugee’ as it could possibly undermine the existing international legal framework that is built for the protection of refugees82_.

Furthermore, a linkage of the term refugee with climate induced migrants, may create confusion about both the rights and obligations of refugees and climate-change induced

74 UNHCR, Determination of Refugee Status, supra note 50, Art. 1A(2).

77 R. Brears, Environmental Refugees from the Malidves: Are They Protected?, July 2009. 78 UNEP, After the Tsunami: Rapid Environmental Assessment, 2005.

80 M. Gromilova, Legal protection of the people at risk of climate-induced cross-border displacement, application of the 1951 Refugee Convention, Tilburg University, 2011

81 E. Wilkinson, A. Kirbyshire, L. Mayhew, P. Batra and A. Milian, Climate-Induced Migration and

Displacement: Closing the Policy Gap (Briefing), October 2016.

82 M. Chazalnoel and D. Mokhnacheva, Environmental Migration, Human Rights Legal Issues, 14 Insights on L. Soc'y 26, 2014.

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migrants respectively83_{. The United Nations High Commissioner for Refugees also has serious} reservations about the notion and terminology of the words ‘climate refugee’ and ‘environmental refugee’, because these terms are not recognized under international law84_. The terms ‘climate refugee’ or ‘environmental refugee’ are controversial, because the legal term ‘refugee’ does not accurately reflect the status of climate change-induced migrants85_{. The} lack of an agreed upon legal definition for climate change-induced migrants, reflects the complexity of this debate86_{. The International Organization for Migration (IOM) has therefore} adopted an operational definition for climate change-induced migrants, which captures the complexity of the issue87_{. The IOM defines climate-change induced migrants as:}

“Persons or groups of persons who, for compelling reasons of sudden or progressive changes

in the environment that adversely affect their lives or living conditions, are obliged to leave their habitual homes, or choose to do so, either temporarily or permanently, and who move either within their country or abroad88_.”

Even though the IOM adopted an operational definition for climate-change induced migrants, there is still no legal definition accepted by the international community89_{. This leaves many} people who are displaced by the adverse effects of climate change without legal protection90_. The legal instruments that are available to protect climate change-induced migrants and whether this protection effectively safeguards their human rights, will be discussed in the next chapter.

3. Protection of climate change-induced migrants by

international legal frameworks

83 UNHCR, Climate change, national disasters and human displacement: a UNHCR perspective, 2009.

84 UNHCR, Climate change, national disasters and human displacement: a UNHCR perspective, 2009. 85 J. McAdam, Climate Change ‘Refugees’ and International Law, NSW Bar Association, October 2007. 86 M. Chazalnoel and D. Mokhnacheva, Environmental Migration, Human Rights Legal Issues, 14 Insights on L. Soc'y 26, 2014.

87 M. Chazalnoel and D. Mokhnacheva, Environmental Migration, Human Rights Legal Issues, 14 Insights on L. Soc'y 26, 2014.

88 International Organization for Migration, Migration, Environment and Climate Change: Assessing the

Evidence, 2009.

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As mentioned in the previous chapter, there is no legal definition for climate-change induced migrants that is accepted under international law. A comprehensive approach is required to properly protect climate-change induced migrants, such as: disaster risk reduction, education, urban planning, climate change mitigation, asylum, social policy, development policies, migration policies and civil and humanitarian protection policies91_.

Currently, there is no legal framework that specifically addresses climate change-induced migration as a whole92_{. However, there are various mechanisms that could be used for the} protection of climate change-induced migrants93_{. This chapter will outline the various legal} frameworks and evaluate to what extent they effectively safeguard the human rights of climate change-induced migrants. After having analyzed the various frameworks, this thesis will discuss considerations for future directions regarding legal frameworks to protect climate change-induced migrants.

3.1.

Existing legal frameworks

International human rights law applies to all persons, including climate change-induced migrants94_{. Both slow-onset}95_{and rapid-onset}96_{environmental events, can affect the} enjoyment of people’s human rights97_{. This was also one of the main points in the Tuvalu} case98_{. Examples of human rights that are possibly undermined by the adverse effects of} climate change are the right to: life, water, adequate food, health, adequate housing and the right to family life99_.

92 L. Olsson, Environmental Migrants in International Law, 2015.

93European Commission, Climate change, environmental degradation, and migration (Commission Staff

94 United Nations, Universal Declaration of Human Rights, 2015. 95 Such as sea-level rise, drought and coastal erosion.

96 Such as floods, cyclones and storms.

97 J. McAdam, Climate Change, Forced Migration, and International Law, March 2013. 98 Immigration and Protection Tribunal New Zealand, NZIPT 501370-371, under 28, June 2014.

Working Document), April 2013. Examples of human rights that might be undermined by the adverse effects of

climate change are: the Right of life (art. 6 UNCRC and art. 6 ICCPR), right to water (artt. 11 and 12 ICESCR, art. 14 CEDAW, art. 28 CRPD and art. 24 UNCRC), right to adequate food (art. 5 CERD, art. 11 ICESCR and 14 CEDAW), the right to health (art. 12 ICESCR), the right to adequate housing (art. 11 ICESCR) and the right to family life (art. 16 UDHR).

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States are obliged to provide the minimum standards of treatment to persons within their territory100_{or jurisdiction}101_{. Some of the human rights principles also bring forth a duty for} states not to expel people from their territory102_{. This could offer protection to climate} change-induced migrants through the non-refoulment principle103_.

The non-refoulement principle offers protection when a person is in danger of persecution based on: "torture, or cruel, degrading or inhuman punishment104_{”. These conditions are not}

met in most cases concerning climate change-induced migrants, because it is difficult to define the cause of climate change-induced migration as being either cruel, degrading or inhuman punishment. Furthermore, the government in question must have failed to take appropriate steps to protect the climate change-induced migrants105_{. This can be hard to prove,}

as was seen in the Kiribati case were the Supreme Court of New Zealand noted: ‘that there was no evidence that the government of Kiribati failed to take appropriate steps to protect its citizens from environmental degradation106_’.

In the context of non-refoulement, there must be a persecutor, but when it comes to violations of socio-economic rights resulting from the adverse effects of climate change, it is difficult to attribute these violations to a state107_{. The framework of international human rights law is} therefore not ideal in safeguarding the human rights of climate change-induced migrants, because it only protects climate change-induced migrants under specific circumstances108_. The International Organization on Migration therefore encourages to use all legal instruments available when it comes to safeguarding the human rights of climate change-induced migrants, both in soft- and hard law109_.

100 J. McAdam, Climate Change, Forced Migration, and International Law, March 2013 and United Nations,

International Covenant on Civil and Political Rights, art. 2(1), 1966.

101 European Court of Human Rights, European Convention on Human Rights, art. 1, November 1950. 102 A. Edwards & C. Ferstman, Human Security and Non-Citizens: Law, Policy and International Affairs, January 2010.

103 UNHCR, Note on Non-Refoulement (Submitted by the High Commissioner), EC/SCP/2, August 1977. The principle of non-refoulment in international law prohibits states from returning a victim of persecution to his or her persecutor.

104 G. Goodwin-Gill & j. McAdam, The Refugee in International Law, March 2007. 105 J. McAdam, Climate Change, Forced Migration, and International Law, March 2013. 106 Supreme Court of New Zealand, SC 7/2015, NZSC 107, under 12, July 2015.

107 IASC, Climate Change, Migration and Displacement: Who will be affected?, October 2008. 108 IASC, Climate Change, Migration and Displacement: Who will be affected?, October 2008.

109 IOM Policy: The IOM Human Rights-Based Approach to Migration, Environment and Climate Change. Also see: http://www.environmentalmigration.iom.int/human-rights

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Another possible framework to protect climate change-induced migrants is international refugee law. But, as discussed in the previous chapter, in most cases climate change-induced migrants fall outside the scope of the Refugee Convention110_{and they are only protected in} exceptional circumstances. For example, when a particular social group is forced to migrate due the adverse effects of climate change because their government has failed to protect them111_{. It could also be used in accordance with humanitarian grounds, as seen in the Tuvalu} case112_{. However, due to the limited scope of the Refugee Convention, international refugee} law is in itself an inappropriate framework for protecting climate-change induced migrants113_. Relating to the Refugee Convention are complementary forms of protection which are based on human rights law and expand the obligation of states to offer protection in cases not addressed by the Refugee Convention and the 1967 Protocol114_{. This non-exhaustive list offers} protection to people who are at risk of arbitrary deprivation of life, cruel degrading or inhuman treatment or punishment, or torture115_{. This might be relevant in cases regarding} climate change-induced migration, were people are forced to move away permanently or on a long-term basis116_{. Examples might include displacement because of sea-level rise or when} land becomes almost uninhabitable due to advanced stages of environmental degradation or in the case of certain natural disasters.

Environmental law could also be used to protect climate change-induced migrants. There are two international frameworks that address the issues of climate change: The United Nations Framework Convention on Climate Change and the Kyoto Protocol117_{. Neither of those} treaties explicitly mention climate change-induced migrants, but they do contain two relevant guiding principles118_.

111 R. Zetter, Protecting environmentally displaced people: Developing the capacity of legal and normative

frameworks, February 2011.

112 Immigration and Protection Tribunal New Zealand, NZIPT 501370-371, June 2014. 113 T. Afifi & J. Jäger, Climate Change, Forced Migration and Social Vulnerability, 2010.

115 UNHCR, Climate Change Displacement and International Law: Complementary Protection Standards

(Legal and Protection Policy Research Series), May 2011. Also see art. 7 ICCPR.

117 United Nations Framework Convention on Climate Change, 1992 and Kyoto Protocol to the United Nations Framework Convention on Climate Change, 1998.

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First, the ‘precautionary principle’, which is found in the Lisbon Treaty and the UNFCCC119_, requires states to take precautionary actions, even though uncertainty may still exist about the impact of climate change or to the extent of the effects this may cause120_{. Second, the principle} known as the ‘common but differentiated responsibility’121_{, recognizes that climate change is} a global problem, but that developed nations should assume a leading role in taking responsibility for climate change and its adverse effects122_{. This is relevant because the lesser} developed countries are more vulnerable when it comes to dealing with the adverse effects of climate change and often lack the capacity to respond to environmental changes123_.

Parties to the convention identified climate change-induced migration as an important issue and agreed to: “Take measures to enhance understanding, coordination and cooperation with regard to environmentally induced displacement, migration and planned relocation, at national, regional and international levels124_{.” Although this agreement is not obligatory and it} lacks specificity125_{, it is significant because it embodies the international concern regarding} climate-change induced migration and willingness to address the issue of climate change-induced migration within the UNFCCC Framework126_.

Nonetheless, because the UNFCCC is mainly focused on interstate relationships and the adaption and prevention of climate change instead of protecting individuals, the framework might be relevant in preventing and supporting countries affected by climate change-induced migration, but the framework is not suited for protecting climate change-induced migrants127_.

Additionally, you have international law on stateless persons. This framework could potentially protect the human rights of climate change-induced migrants that lose their home

119 Art. 191(3) TFEU and art. 3(3) UNFCCC.

120 B. Mayer, The international legal challenges of climate-induced migration: proposal for an international

legal framework, 2011.

121 Art. 4(1) UNFCCC.

123 Greenpeace, Climate Change, Migration and Displacement (The Underestimated Disaster), Hamburg, May 2017.

124 UNFCCC, The Cancun Agreements: Outcome of the work of the Ad Hoc Working Group on Long-Term

Cooperative Action under the Convention (sixteenth session), Para. 14(f), 2011.

125 L. Nishimura, ‘Climate Change Migrants’: Impediments to a Protection Framework and the Need to

Incorporate Migration Into Climate Change Adaption Strategies, February 2011.

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due to the adverse effects of climate change. Small island states are heavily affected by slow-onset environmental degradation such as sea-level rise and have a chance of being submerged completely in the foreseeable future128_{. Examples of small island states that are in danger of} being submerged are Tuvalu and Kiribati129_{of which case law concerning a request for} refugee status in New Zealand is analyzed in the first chapter.

Small island states in danger of submerging, will become uninhabitable before they are completely submerged130_{, which will force people to migrate before they are de jure stateless.} This is problem, because statelessness under international law only extends to people who are

de jure131_{stateless and not those who do have a nationality, but are de facto}132_stateless133_and pre-emptive migration, does not protect climate-change induced migrants under the Convention on Statelessness134_.

Additionally, even if a person would become stateless due to sea-level rise, it is unclear whether they would be protected by the Convention Relating to the Status of Stateless Persons, because within the definition of statelessness, a person only becomes stateless through the denial of nationality rather than through a state becoming non-existent135_{. If this is} the case, one can only become de jure stateless if a government either withdraws or denies a person their nationality and therefore becomes stateless. A person that lost their nationality through the disappearance of a state, would only become de facto stateless, which does not fall under the scope of the Convention on Statelessness136_.

128 IDLO, Sustainable Development Law on Environmental Migration: The Story of a Bag of Marbles, an

Obelisk and a Tapestry, December 2011 and S. Mclnerney-Lankford, M. Darrow and L. Rajamani, Human Rights and Climate Change: A review of the International Legal Dimensions, April 2011.

129 B. Docherty & T. Giannini, Confronting a Rising Tide: A Proposal for a Convention on Climate Change

Refugees, 2009 and S. Atapattu, Climate Change, Disappearing States, Migration, and Challanges for International Law, 4 Wash. J. Envtl. L. & Pal'y 1, 2014.

130 B. Saul & J. McAdam, An insecure Climate for Human Security? Climate-Induced Displacement and

International Law, October 2008.

131 De jure statelessness is when a person does not have a nationality at all. Also see: UNHCR, H. Massey,

UNHCR and De Facto Statelessness, April 2010.

132 De facto statelessness is when a person does have a nationality, but this nationality is in some ways ineffective in practice.

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Even if a de facto stateless person137_{would be protected by the Convention on} Statelessness138_{, there is no enforceable right to a nationality}139_{. It only prohibits the expulsion} of persons that are lawfully staying in the country, except in matters of national security or public order140_{. As such, the Convention does not offer protection to climate change-induced} migrants.

There are also three forms of temporary protection systems. These mechanisms can provide temporary protection and/or assistance to climate change-induced migrants141_{. First, there are} temporary protection systems within domestic systems. For example, the US Immigration and Nationality Act can protect nationals of a foreign state under certain circumstances, but since this thesis strictly focuses on the international frameworks this will not further be discussed. Second, there is a temporary protection system within the European Union which can protect climate change-induced migrants in cases of a mass influx142_{of displaced persons}143_{. The} protection offered is aimed at providing emergency protection from refoulement144_{. Although} this directive is designed for persons who have fled areas of armed conflict or endemic violence or ‘persons at serious risk of, or who have been the victims of, systematic or generalized violations of their human rights’145_{, it could also be an appropriate mechanism to} temporarily protect people who are displaced by severe rapid-onset disaster, such as floods146_. However, the qualification directive requires a qualified majority of the Council of the EU in order to be implemented147_{. So far this has not happened and there is a good chance it will}

137 Either through the disappearance of a state or because of pre-emtive migration. 138 UNHCR, Convention relating to the Status of Stateless Persons, September 1954. 139 L. Olsson, Environmental Migrants in International Law, 2015.

140 UNHCR, Convention relating to the Status of Stateless Persons, art. 31(1), September 1954 141 L. Olsson, Environmental Migrants in International Law, 2015.

142 European Union, Council Directive 2001/55/EC, July 2001, art. 2d: Mass influx means: ‘arrival in the Union of a large number of displaced persons, who come from a specific country or geographical area, whether their arrival in the Union was spontaneous or aided, for example through an evacuation programme’.

143 European Union, Council Directive 2001/55/EC, July 2001.

144 A. Kraler, T. Cernei and M. Noack, Climate Refugees Legal and Policy Response to Environmentally

Induced Migration, European Parliament, 2011.

145 European Union, Council Directive 2001/55/EC, Chapter 1, Article 2c, July 2001.

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only be implemented under exceptional circumstances, making it an unreliable method to protect climate change-induced migrants148_.

Also, the directive only takes effect when the Council designates which group of climate change-induced migrants constitutes as a ‘mass influx’149_{. This classification will most likely} come of the expense of certain displaced individuals that fall outside the scope of the group of people designated by the Council as a mass influx150_.

Third, some states have granted forms of temporary protection under customary law to those who have been displaced by natural disasters151_{. This is most often done between neighboring} states152_{. Some states that offer protection are guided by human rights law and others} specifically refer to natural disasters153_{. The general practice of states to offer protection to} those displaced by the adverse effects of climate change, can be seen as a developing right of climate change-induced migrants to temporary protection under customary international law154_.

The ability of states to grant temporary protection, enables them to protect climate change-induced migrants on a case-by-case basis155_{. This makes it an unreliable protection mechanism} for the general protection of climate change-induced migrants, because of its discretionary approach156_{. Further, because the protection is granted on an ad hoc basis, it is more focused} on fast-onset environmental disasters and less suited for dealing with the effects of slow-onset environmental degradation157_{. Additionally, the protection that is offered by states in response} to environmental disasters differs in its extent and application. There is no consensus in which scenarios protection should be offered and it is also not clear whether the right to temporary protection from displacement in the case of environmental disasters exists at all158_{. Therefore,}

148 IDLO, Sustainable Development Law on Environmental Migration: The Story of a Bag of Marbles, an

Obelisk and a Tapestry, December 2011.

149 European Union, Council Directive 2001/55/EC, Chapter 2, Article 5(1), July 2001.

150 V. Kolmannskog & L. Trebbi, Climate change, natural disasters and displacement: a multi-track approach

to filling the protection gaps, September 2010.

151 J. McAdam, Climate Change, Forced Migration, and International Law, March 2013. 152 A. Edwards, Refugee Status Determination in Africa, January 2010.

153 UNHCR, The Nansen Conference, Climate Change and Displacement in the 21st_{century, June 2011.}

154 J. McAdam, Climate Change, Forced Migration, and International Law, March 2013.

155 UNHCR, The Nansen Conference, Climate Change and Displacement in the 21st century, June 2011.

156 L. Olsson, Environmental Migrants in International Law, 2015. 157 L. Olsson, Environmental Migrants in International Law, 2015.

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it is hard to define whether temporary protection in cases of environmental disasters counts as ‘evidence of a general practice’159_{and it is also uncertain if opinio juris exists}160_.

Additionally, you have regional free movement agreements161_{which regulate the free} movement of people. These agreements could, if properly implemented, serve as a framework for climate change-induced migrants162_{. Although none of these agreements specifically target} climate change-induced migrants, they could possibly be used by climate change-induced migrants to permanently or temporarily locate to other regional countries163_{. Currently} however, the implementations of such provisions have been ineffective and many developing countries have made little progress when it comes to promoting regional mobility164_.

Lastly, you have the United Nations Guiding Principles on Internal Displacement165_{, which} contains a framework that protects victims of natural disasters who have not yet crossed an international border166_{. Although the focus of this thesis lies on cross-border migration, the} Council of Europe has suggested that these principles could act as a model in order to develop an international framework to protect the rights of cross-border displaced persons167_.

These non-binding principles offer a set of legal standards that protects internal displaced persons, which is expected to be a large portion of the climate change-induced migrants. It also has the advantage of giving governments room for the implementation of these rules. This way governments can account for various scenarios and have the flexibility to adept rules depending on local circumstances168_{. The list of persons covered by the principles of}

159 Statue of the International Court of Justice, art. 38(1)(b).

160 Opinio juris is the belief that an action is carried out as a legal obligation. Both opinio juris and the evidence of a general practice are needed to become part of customary law under art. 38(1)(b) of the Statue of the International Court of Justice.

161 For example the Economic Community of West African States (ECOWAS) and the Mercado Comum do Sul (MERCOSUL).

163 IOM, Migration, Environment and Climate Change: Assessing the Evidence, 2009.

165 United Nations, Guiding Principles on Internal Displacement, September 2004.

166 J. Toscano, Climate Change Displacement and Forced Migration: An International Crisis, 6 Ariz. J. Envtl. L. & Pol'y 457, 2015. Internal displaced people are defined as: ‘persons or groups of persons who have been forced or obliged to flee or to leave their homes or places of habitual residence, in particular as a result of or in order to avoid the effects of armed conflict, situations of generalized violence, violations of human rights or natural human-made disasters, and who have not crossed an internationally recognized State border.’ 167 European Commission, Climate change, environmental degradation, and migration (Commission Staff

Working Document), April 2013. See Parliamentary Assembly of the Council of Europe, Resolution 1862 (point 6.5), 2009.

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internal displacement are non-exhaustive and it is unclear whether climate-change induced migrants suffering from a gradual processes of environmental degradation fall under its scope169_.

3.2.

Protection of human rights

Having reviewed the legal frameworks for protecting climate change-induced migrants, this section will analyze to what extent these frameworks safeguard the human rights of climate change-induced migrants.

Although human rights law applies to all persons and states or obliged to offer a minimum standard of protection to those within their territory, it does not explicitly protect climate change-induced migrants170_{. The non-refoulment principle may offer protection when a person} is in danger of persecution based on torture, or cruel, degrading or inhuman punishment, but this will not be the case for many climate change-induced migrants171_{. Furthermore,}_{when it}

comes to violations of socio-economic rights resulting from the adverse effects of climate change, it is difficult to attribute these violations to a state172_{. As such, human rights law can} only protect climate change-induced migrants under specific circumstances and is not an ideal instrument to safeguard their human rights.

The Refugee Convention only protects those who fall under the definition of the legal term ‘refugee’, which will only happen under exceptional circumstances, because it requires a ‘well-founded fear of being persecuted’. The restrictive application of the Refugee Convention makes refugee law an inappropriate framework for protecting the human rights of climate change-induced migrants173_.

169 S. Brooks Masters, Environmental Induced Migration, Beyond a Culture of Reaction, 14 Geo. Immigr. L.J. 855, 2000.

170 B. Docherty & T. Giannini, Confronting a Rising Tide: A Proposal for a Convention on Climate Change

Refugees, 2009.

171 J. McAdam, Climate Change, Forced Migration, and International Law, March 2013. 172 IASC, Climate Change, Migration and Displacement: Who will be affected?, October 2008. 173 T. Afifi & J. Jäger, Climate Change, Forced Migration and Social Vulnerability, 2010.

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Complementary forms of protection expand the obligation to offer protection to those not addressed in the Refugee Convention174_{. It has a non-exhaustive lists and could potentially} protect the human rights of climate change-induced migrants hit by slow onset disasters175_. However, it is unclear whether environmental degradation and sea-level rise would be covered by this framework and under what conditions176_{. Before this framework could be used} to protect the human rights of climate change-induced migrants, this first would need to be clarified. Also, it would leave cross-border migrants hit by rapid-onset disasters unprotected177_.

In environmental law contains two important principles when it comes to combatting climate change and its adverse effects: the common but differentiated responsibility principle and the precautionary principle178_{. However, this framework is not designed to protect individuals and} does not incorporate human rights. It is therefore not suited for the protection of cross-border migrants179_{. Nonetheless, international environmental law could be used for helping states} with the adaption and mitigation strategies.

The framework for international law on stateless persons is not able to protect the human rights of cross-border climate change-induced migrants either, because the concept of statelessness does not extend to those who are de facto stateless persons180_{. Even if this group} were to be protected, statelessness does not give a right to a nationality, making this framework not suited for protecting climate change-induced migrants181_.

Temporary protection systems are designed for granting temporary protection and could be used to safeguard the human rights of climate change-induced migrants displaced by

rapid-174 European Commission, Climate change, environmental degradation, and migration (Commission Staff

175 UNHCR, Climate Change Displacement and International Law: Complementary Protection Standards

(Legal and Protection Policy Research Series), May 2011. Also see art. 7 ICCPR.

178 B. Mayer, The international legal challenges of climate-induced migration: proposal for an international

legal framework, 2011.

Incorporate Migration Into Climate Change Adaption Strategies, February 2011.

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onset disasters182_{. The Qualification Directive however, is not designed for the protection of} people displaced by slow-onset disasters as sea-level rise and it takes a qualified majority to of the EU Council to be implemented183_.

Additionally, it only protects a specific group of migrants who are designated as a ‘mass influx’, which makes this mechanism not fit for general protection of climate change-induced migrants184_{. Under customary international law, there is no consensus in which scenarios} protection should be offered to climate change-induced migrants, if such a right to protection exists at all185_{. Because there is no consensus, protection given to climate change-induced} migrants will likely differ in both its extent and application. This makes temporary protection under customary international unreliable and not well suited for protecting the human rights of climate change-induced migrants186_.

Free movement agreements, could in theory safeguard the human rights of climate change-induced migrants, but the implementation of such provisions have not yet been effective and many developing countries have made no or little progress in promoting regional mobility187_. Although free movement agreements are currently not effective in protecting climate change-induced migrants, this framework will be discussed in the considerations for future directions as a possible way to protect climate change-induced migrants188_.

To conclude, there is currently no framework that effectively safeguards the human rights of all climate change-induced migrants189_{. Some of the legal frameworks offer no protection at} all, while other frameworks only protect a specific group of climate change-induced migrants or only protect them under exceptional circumstances. This leaves the human rights of many current and possibly also future climate change-induced migrants unprotected. The next

182 UNHCR, Protecting People Crossing Borders in the Context of Climate Change: Normative Gaps and

Possible Approaches, February 2012.

183 European Union, Council Directive 2001/55/EC, Chapter 2, Article 4(2), July 2001.

184 V. Kolmannskog & L. Trebbi, Climate change, natural disasters and displacement: a multi-track approach

to filling the protection gaps, September 2010.

185 J. McAdam, Climate Change, Forced Migration, and International Law, March 2013. 186 J. McAdam, Climate Change, Forced Migration, and International Law, March 2013.

Working Document), April 2013. See Parliamentary Assembly of the Council of Europe, Resolution 1862 (point 6.5), 2009