PAST THE POINT OF NO RETURN The international right to relocate in the case of cross border environmentally displaced persons based on a human rights

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PAST THE POINT OF NO RETURN

The international right to relocate in the case of cross border environmentally displaced persons based on a human rights approach

Hajar Boudhan

Hajarboudhan@gmail.com Student number: 12456160

LL.M: International and European Law: Public International Law

Supervisor: René Lefeber

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Abstract

At present, areas in the world are moving towards uninhabitability due to extreme environmental degradation and sudden and slow-onset environmental related hazards. It is only natural that these environmentally induced effects will ultimately and unavoidably lead to human mobility. This research focusses on the right to relocation, or in other words, international migration as an adaption strategy of environmentally displaced people due to environmental degradation and climate change. The objective of this research is to determine which existing legal frameworks and principles in the area of human rights are fit to facilitate this right to relocate in the case of permanent and forced cross border environmental displacement due to slow or sudden onset disasters. While it is unclear what the exact relationship is between climate change, environmental degradation and human mobility, it is clear that the climate is intertwined with human mobility. This research responds to these current uncertainties pertaining climate change related human mobility and addresses the need for the allocation of a right of relocation for these affected persons in need based on a human rights approach.

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List of Abbreviations

ACHR American Convention on Human Rights

EDP’s Environmentally Displaced Persons

IACHR Inter-American Commission of Human Rights IBHR International Bill of Human Rights

ICCPR International Covenant on Civil and Political Rights

ICESCR International Covenant on Economic, Social and Cultural Rights IDP’s Internally Displaced Persons

IHRL International Human Rights Law

IOM International Organization for Migration

IPCC The Intergovernmental Panel on Climate Change

KP Kyoto Protocol

OC-23 Advisory Opinion No. 23/17

OHCHR Office of the High Commissioner for Human Rights UDHR The Universal Declaration of Human Rights

UNFCCC United Nations Framework Convention on Climate Change UNHCR United Nations High Commissioner for Refugees

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Introduction

Human mobility is a reoccurring phenomenon amongst human societies. Humans are all descendants from migrants, one way or the other. Nowadays more people than ever before have to face displacement. As we enter the ‘Anthropocene’, the geological epoch dictated by human activities, the environment will change and degrade profoundly in the near future. Environmental degradation and climate change are increasingly driving and forcing people to leave their current livelihood.1_{Land is becoming uninhabitable due to slow on-set disasters} such as desertification, acidification, salinization, sea-level rise, water scarcity and food insecurity.2_{Sudden on-set environmental disasters such as severe storms, floods, hurricanes,} typhoons and earthquakes will occur more frequently posing a threat to human life.3 Furthermore, the ability of ecosystems to provide for water, food and shelter will be largely compromised due to environmental change.4

At present, it is expected that in the near future even more people are going to be displaced due to severe environmental degradation, starting with most vulnerable people and communities.5_{Current estimates state that in 2050 around 140 million people will be forcibly} displaced from their homes due to environmental impact and degradation. These people either will be displaced within their country or across borders, individually or collectively, forcibly or voluntarily and temporarily or permanently.6

Since a large group of these people is expected to permanently cross international borders as an adaption strategy due to their land becoming uninhabitable, this thesis will focus on the right to relocate in the case of cross border environmentally displaced persons by necessity. In contrast to environmentally motivated internal displacement, which is covered by national

1_{UN High Commissioner for Refugees (UNHCR), ‘Report, Planned Relocation, Disasters And Climate Change:}

Consolidating Good Practices And Preparing For The Future’ (2014) <https://www.unhcr.org/54082cc69.pdf> accessed 29 April 2019. §23, p.11. 2_{ibid. §20, p.11.} 3_ibid. 4_ibid. 5_{ibid. P.11.} 6_{ibid. §23, p.11.}

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laws, principles and regional instruments, there is no legal clear protection mechanism designed to provide for a foundation for the right to relocate in case of cross border displacement. As academics state, these peoples are in legal limbo as they fall within the ‘legal gap’.

The rights of those affected by the consequences of climate change, especially their right to relocation, as well as the responsibility of the international community herein, need to be clarified. Thus, this thesis focusses on whether these cross border environmentally displaced people can receive protection under current law based on a human rights approach.

Guiding principles

This thesis is based on four guiding principles. Firstly, the thesis is focused on the rights of cross border environmentally displaced people that are unable to return to their country of origin due to land becoming uninhabitable.

Secondly, the thesis will explain and use a definition of the concept of ‘environmentally displaced’ persons in order to create a base line for the research conducted. The definition chosen is not one of a legal nature, but more of a descriptive nature.

Thirdly, this thesis is based on a human rights approach. Human rights are essential in our international community and give rise to many rights and obligations to protect people and are thus suitable to protect cross border environmentally displaced peoples. Every human has the right to fundamental rights.

Finally, ‘the right to relocation’ means that an environmentally displaced person is entitled to admission in the territory of a host country, protection from refoulement and a legal status in the host country. Thus, by ‘protection of the environmentally displaced’ is meant that the right to relocation is provided.

Academic contribution of this thesis

The aim of this thesis is to contribute in narrowing the current legal gap regarding the protection of cross border EDPs and their right to relocation by examining the current legal international protection instruments and addressing the host and home states obligations.

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This research focuses on how the right to relocation can be obtained and achieved, based on a human rights approach with a focus on the right to life and the human rights principle of non-refoulement. It is beyond the scope of this research to conduct a final legal definition of environmentally displaced persons or climate change related migration. The right to life is chosen as environmental degradation poses a threat to our very existence, it is only natural to protect is with the right to life. More importantly, this research is aiming to conduct a proposition on how to protect cross border EDPs by use of the existing legal frameworks and international agreements. It aims at stressing the need of protection by highlighting the special need and care of cross border EDPs by providing an overview of how the right to life could be jeopardized.

Finally, the aim of this thesis is to reach more political and social awareness and recognition of the plight of the international community as a whole, to address the issue, and work together towards a viable solution. It is important to acknowledge the magnitude of the issue at hand as cities and states are becoming unhabitable.7_{In light of past and the current influx} of EDPs, the magnitude of the issue leads to think that a crisis is immanent. A crisis that needs to be recognized not only academically, but first and foremost socially and politically.

Research questions and problem statements

The main question of this research is:

To what extent can cross border environmentally displaced people be protected against a forced return by an entitlement to the right to relocation? In other words, do forced cross border EDPs have the right to relocation based on a human rights approach, in particular based on the right to life, in correlation with the human rights principle of non-refoulement.

7_{For example, the capital Jakarta, one of the fastest sinking cities in the world. See: Kate Lamb, ‘Goodbye,}

Jakarta? Indonesia’s President Suggests New Capital’ (2019)

<https://www.theguardian.com/cities/2019/apr/30/goodbye-jakarta-indonesia-president-suggests-new-capital> accessed 12 May 2019.

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To provide an answer on the research question the following questions need to be answered: 1. Are states obligated under international human rights law to provide for protection of

a forced cross border EDP on their territory?

2. Could the right to life provide for a right to relocation for forced cross border EDPs? 3. Can forced cross border EDPs rely on legal protection in the state of entry -the host

state- based on the human rights obligation to protect from refoulement if return is impossible? 8

Research method

The subject regarding cross border EDPs is one of a complex nature as it is not only a legal subject, but it is one with a humanitarian nature as well. Environmentally displacement can be approached from several angles, diverging from a human right, humanitarian, migration, environmental or even a security perspective. This thesis will not take all these perspectives into account but will focus strictly on a human rights approach – while keeping in mind other approaches as there is no ‘one size fits all’ approach. The subject at hand is one that needs customized solutions and fluidity.

As this thesis focusses on the protection of fundamental rights of cross border EDPs and the general obligation of home and host states hereby, it is fundamental to make use of a human rights approach. It needs to be mentioned that this study will not focus on the doctrine of state responsibility and liability as the aim is to narrow the legal existing legal gap on the right of protection and relocation of cross border EDPs. The question of state responsibility and liability is an interesting one but will not be touched upon in this thesis.

This thesis conducts a description of the concept of EDPs based on a literature review. This thesis further uses descriptive and conceptual methodologies. The study conducts an applied research as it aims to provide a solution for the ‘legal gap’ problem regarding the right to relocate cross border EDPs. Furthermore, it aims to provide a basis for the right to relocation based on an analysis of treaties, conventions, general comments and jurisprudence

8_{In the case of disappearing island states return might be impossible. See: Emma Allen, ‘Climate Change and}

Disappearing Island States: Pursuing Remedial Territory’ (2018) Advance Articles Brill Open Law

<https://brill.com/view/journals/bol/aop/article-10.1163-23527072-00101008.xml?lang=en> accessed 18 June 2019; Jenny Grote Stoutenburg, Disappearing Island States in International Law (Brill | Nijhoff 2015)

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with a human rights-based approach. During this analysis the present legal materials are reinterpreted in light of the research question. The right to life and the human rights principle will be examined in-depth using a comparative approach. Finally, statistics are used comparatively to obtain evidence supporting environmental change in being a driver of environmental induced displacement.

Thesis outline

This thesis holds three chapters. Chapter one aims to conduct an understanding of the concept of environmental induced displacement as used in this thesis, based on a literature review. The environmental influence on human mobility and its multicausality will be discussed. Furthermore, the origin and nature of the cross border EDPs will be explained. Finally, the used definition of cross border EDPs will be discussed. By no means this chapters aims to conduct an exhausting overview of the concept, but rather constitutes an outline to be used a baseline for the understanding of the concept and the research conducted in this thesis. Chapter two seeks a foundation for the states to provide the right to stay for EDPs based on international human rights. The relation of human rights and the environment will be elaborated followed by the distinction between the two dimensions to apply international human rights law to protect EDPs (internally and cross border). Furthermore, possibility of a foundation for the right to relocation based on the right to life will be discussed. As the effects of environmental degradation will threaten our very existents, it is only natural to use the right to life to protect it. Chapter three provides a discussion on the legal protection of cross border EDPs based on the human rights non-refoulement principle.9

9_{Aurelie Lopez, ‘The Protection of Environmentally-Displaced Persons in International Law’ (2007) 37}

Environmental Law 365 <https://www.jstor.org/stable/43267165?read-now=1&seq=1#metadata_info_tab_contents> accessed 9 August 2019.

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Understanding the concept of environmental induced

displacement

For the purpose of understanding the legal framework supporting environmental induced displacement, especially regarding cross border migration, it is essential to understand the concept. This chapter aims to establish an understanding of the concept of environmental induced displacement as used in this thesis, based on a literature review.10

1.1 Environmental change as a driver for migration/ displacement

Scientific evidence for warming of the climate system is unequivocal.

- Intergovernmental Panel on Climate Change

Scientific predicaments state that between 2030 and 2052, the temperature on earth is likely to increase with at least 1.5°C.11_{Anthropocene influence on the environment has been} extremely likely to be the dominant cause of temperature rise on earth.12_{Statistics have} shown that the increasing anthropogenic greenhouse gasses since the preindustrial area have contributed largely to environmental degradation.13_{This evidence of human influence on the} environment has grown since the report of the IPCC where results were shared demonstrating the Anthropocene influence on the environment.14_{These findings are} consistent with the research conducted by academics and scientists.15

10_ibid.

11_{See figure 1 in ‘figures’; IPCC, ‘Special Report on Global Warming of 1.5°C - Summary for Policymakers’}

(2019) <https://www.ipcc.ch/sr15/> accessed 16 July 2019; IPCC, ‘Climate Change 2007: Impacts, Adaptation and Vulnerability’ <https://www.ipcc.ch/site/assets/uploads/2018/03/ar4_wg2_full_report.pdf> accessed 16 July 2019; IPCC, ‘Climate Change 2007: Synthesis Report - Summary for Policymakers’

<https://www.ipcc.ch/site/assets/uploads/2018/02/ar4_syr_spm.pdf> accessed 16 July 2019.

12_{IPCC, ‘Climate Change 2014 Synthesis Report - Summary for Policymakers’ <http://www.ipcc.ch.> accessed}

11 July 2019; IPCC, ‘Climate Change 2007: Synthesis Report - Summary for Policymakers’ (n 11).

13_{IPCC, ‘Climate Change 2014 Synthesis Report - Summary for Policymakers’ (n 12). P. 2- 6. See figure 2 and}

figure 3 in ‘figures’; IPCC, ‘Climate Change 2007: Synthesis Report - Summary for Policymakers’ (n 11).

14_{IPCC, ‘Climate Change 2014 Synthesis Report - Summary for Policymakers’ (n 12); IPCC, ‘Climate Change}

2007: Synthesis Report - Summary for Policymakers’ (n 11).

15 _{See: Richard SJ Tol, ‘Comment on “Quantifying the Consensus on Anthropogenic Global Warming in the}

Scientific Literature”’ (2016) 11 Environmental Research Letters 048001 <http://stacks.iop.org/1748-9326/11/i=4/a=048001?key=crossref.0b692e0e30f61886b8cfc6904d5e2cbe> accessed 16 July 2019; John Cook and others, ‘Consensus on Consensus: A Synthesis of Consensus Estimates on Human-Caused Global Warming’ (2016) 11 Environmental Research Letters

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As the environment continues to change, many academics, advocates and policy makers have expressed their concern regarding the environmental influence on human mobility.16 Scientific and archaeological evidence shows that human mobility has been a human response to environmental change, supporting that many large human movements were driven by environmental factors.17_{Furthermore, the UK Government Office for Science} published an extensive report on migration and global environmental change based on worldwide results conducted by around 350 experts and stakeholders worldwide. It is concluded that the environment will affect current and future migration patterns, internally and externally, especially by adding on to economic, social and political migration drivers. More importantly, scientific evidence supports that environmental degradation poses a large threat on humanity.18

Cook and others, ‘Quantifying the Consensus on Anthropogenic Global Warming in the Scientific Literature’ (2013) 8 Environmental Research Letters 024024

<http://stacks.iop.org/1748-9326/8/i=2/a=024024?key=crossref.ce047ab82872ab7fd19f230497d86fcb> accessed 16 July 2019; Fritz Reusswig, ‘History and Future of the Scientific Consensus on Anthropogenic Global Warming’ (2013) 8 Environmental Research Letters 031003

<http://stacks.iop.org/1748-9326/8/i=3/a=031003?key=crossref.58c83bd6a8bb4feb7b681b2078d795eb> accessed 16 July 2019.

16_{Jane McAdam, ‘Moving with Dignity: Responding to Climate Change-Related Mobility in Bangladesh’ [2012]}

Climate Change, Forced Migration, and International Law 161; Étienne Piguet, ‘Migration and Climate Change’ [2008] Futuribles: Analyse et Prospective; Sarah Opitz Sapleton and others, ‘Climate Change, Migration, and Displacement: The Need for a Risk-Informed and Coherent Approach’ [2017] The Encyclopedia of Global Human Migration 36 <http://doi.wiley.com/10.1002/9781444351071>; Susan Forbes Martin, Sanjula S Weerasinghe and Abbie Taylor, Humanitarian Crises and Migration : Causes, Consequences and Responses (2014);

17_{IDMC, ‘Displacement Due to Natural Hazard-Induced Disasters’ (2011)}

<https://reliefweb.int/sites/reliefweb.int/files/resources/Full_Report_1079.pdf> accessed 26 April 2019; Makiko Hori, Mark J Schafer and David J Bowman, ‘Displacement Dynamics in Southern Louisiana After Hurricanes Katrina and Rita’ (2009) 28 Population Research and Policy Review 45

<http://link.springer.com/10.1007/s11113-008-9118-1> accessed 26 April 2019; ‘UNFCCC Conference, Climate Change , Drought and Pastoralism in the Sahel’ <https://www.semanticscholar.org/paper/Climate-change-%2C-drought-and-pastoralism-in-the/ac47f51b645abc34b5e8fba9e431f94848b0831e> accessed 27 April 2019; François Gemenne, ‘How They Became the Human Face of Climate Change. Research and Policy Interactions in the Birth of the “Environmental Migration” Concept.’ <https://orbi.uliege.be/handle/2268/141894> accessed 12 June 2019; Nick Brooks, ‘Climate Change, Drought and Pastoralism in the Sahel - Discussion Note for the World Initiative on Sustainable Pastoralism’

<https://cmsdata.iucn.org/downloads/e_conference_discussion_note_for_the_world_initiative_on_sustainabl e_pastoralism_.pdf> accessed 8 July 2019; McAdam, ‘Moving with Dignity: Responding to Climate Change-Related Mobility in Bangladesh’ (n 16); Opitz Sapleton and others (n 16).

18_{Government Office for Science, ‘Migration and Global Environmental Change - Final Project Report’ (2011)}

<https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/287717 /11-1116-migration-and-global-environmental-change.pdf> accessed 30 June 2019. P.9.

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Vulnerable people mostly located in the developing countries are likely to be the first to be environmentally displaced as they live in fragile ecosystems.19_{Furthermore, people living in} these countries are less equipped, financially and technically, to adapt to the environmental degradation.20_{While most of the displacement will occur within the borders of countries,} there will be populations and individuals that will be forced to move across borders. Some movements will be gradual, while others will be sudden, due to the nature of the environmental impact. The low-island “disappearing” states are most likely to disappear altogether, forcing people to move across borders.21_{In addition, it is likely that there will be} people that will be unable to move due to extreme vulnerability.22_{Thus, environmental} change influences human mobility both internally and externally.23

1.1.1 The multi causality of environmental displacement

The decision to migrate is one influenced by environmental factors.24_{However, it is near} impossible to isolate the environmental mobility reason, in particular from humanitarian, political, social, conflict or even economic reasons.25_{At present, it is largely accepted that} environmental displacement is not the sole factor of displacement but rather a combination

19_{UNHCR, ‘Summary of Deliberations on Climate Change and Displacement’ (2011)}

<http://untreaty.un.org/ilc/guide/6_3.htm.> accessed 16 August 2019.

20_{Frank Biermann and Ingrid Boas, ‘Preparing for a Warmer World: Towards a Global Governance System to}

Protect Climate Refugees’ (2010) 10 Global Environmental Politics. P. 66 – 67; Julia Laukkonen and others, ‘Combining Climate Change Adaptation and Mitigation Measures at the Local Level’ (2009) 33 Habitat International 287 <https://www.sciencedirect.com/science/article/pii/S0197397508000623#bib26>.Pablo S Bose, ‘Vulnerabilities and Displacements: Adaptation and Mitigation to Climate Change as a New Development Mantra’ (2016) 48 Area 168. Jane McAdam, ‘Climate Change-Related Movement and International Human Rights Law: The Role of Complementary Protection’, Climate Change, Forced Migration, and International Law (Oxford University Press 2012). Camillo Boano, Roger Zetter and Tim Morris, ‘Environmentally Displaced People, Understanding the Linkages between Environmental Change, Livelihoods and Forced Migration’ (2008) <www.rsc.ox.ac.uk> accessed 10 August 2019. Nicole de Moor and An Cliquet, ‘Environmental Displacement: A New Security Risk for Europe’ (2009) <https://core.ac.uk/download/pdf/55728496.pdf> accessed 29 July 2019. P. 6.; Brooks (n 17).

21_{‘Migration Data Portal - Themes’ <https://dx.plos.org/10.1371/journal.pmed.1001083> accessed 17 August}

2019. Allen (n 8); Grote Stoutenburg (n 8).

22_{See “Trapped populations” in; ‘Migration Data Portal - Themes’ (n 21).} 23_{UNHCR (n 19).}

24_{UNHR, ‘The Slow Onset Effects of Climate Change and Human Rights Protection for Cross-Border Migrants’}

(2018) 04452 <https://disasterdisplacement.org/portfolio-item/slow-onset> accessed 23 August 2019. p.4; Oli Brown, ‘Migration and Climate Change’ [2008] IOM Migration Research series <http://www.iom.int> accessed 22 June 2019. P. 8-13, 17 -19.

25_{W Kälin and S. Weerasinghe, ‘Environmental Migrants and Global Governance: Facts, Policies and Practices’}

in M and M Klein Solomon (Conveners) McAuliffe (ed), Ideas to Inform International Cooperation on Safe,

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of multiple overlapping factors.26_{As emphasized by Kälin, W. and S. Weerasinghe, people are} displaced or migrate when they (1) are affected or expect to be affected by environmental degradation, (2) by sudden-onset disasters, slow-onset environmental degradation or a combination and (3) are unable to withstand the impacts.27_{In addition, numerous academics} emphasize the difficulty of separating the climate change factor from other migration influencing factors.28_{As Stephen Castle believes, displacement due to environmental factors} is always intertwined with conflicts, weak states and the abuse of human rights.29

A similar conclusion was reached by the United Nations High Commissioner for refugees (UNHCR) in the Summary of Deliberations on Climate Change and Displacement. Here the UNHCR stressed the multicausality nature of human displacement:

“The impacts of climate change also interact with several global mega-trends, such as population growth, human mobility, urbanization, as well as food, water and energy insecurity. Climate change acts as an impact multiplier and accelerator. While it is not likely to be the sole or the primary cause, climate change can be a factor in triggering migration and displacement.” […] “Future climate-related displacement, whether internal or external, is likely to be characterized by multiple causality, such as conflict and loss of livelihoods. The “tipping point” for a disaster is not just a physical one; in fact, the social “tipping point” often occurs much earlier and can trigger a decision to leave one’s community.”30

26_{UN High Commissioner for Refugees (UNHCR) (n 1). P. 11. Isabel M Borges, Environmental Change, Forced}

Displacement and International Law (2018). P. 50 – 52.

27_{Kälin and S. Weerasinghe (n 25). Stephen Castles, ‘Confronting the Realities of Forced Migration’ (2004)}

<https://www.migrationpolicy.org/article/confronting-realities-forced-migration> accessed 21 July 2019.

28_{François Gemenne and Alexandre Magnan, ‘The Other Migrants Preparing for Change: Environmental}

Changes and Migration in the Republic of Mauritius’ (2010)

<http://publications.iom.int/system/files/pdf/the_other_migrants.pdf> accessed 11 June 2019. P. 31. Brown (n 24). P. 8-13, 17 -19. Boano, Zetter and Morris (n 20).

29_{Castles (n 27); S Castles, ‘Environmental Change and Forced Migration: Making Sense of the Debate. New}

Issues in Refugee Research. UNHCR,

Geneva.’http://www.migrationinformation.org/Feature/display.cfm?ID=222.W Courtland Robinson, ‘Minimizing Development-Induced Displacement’ (2004)

<https://www.migrationpolicy.org/article/minimizing-development-induced-displacement/> accessed 20 August 2019.

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Thus, stating that climate change related movement is the sole outcome of climate change is incorrect. In fact, these climate related movements, gradual or sudden, are a complex sum of interconnected factors multiplied by the impacts of climate change. While the environmental factor is not the sole driver it is important to acknowledge it as a factor multiplier and accelerator.31_{In addition, these climate impacts often cause a snowball effect by adding on} to the pre-existing factors that are known to induce migration, such as overcrowding, poverty and conflicts.32

The key is assessing whether the environment is one of the primary drivers of the movement. Regarding the case of natural disasters, it is widely recognized that the environment is one of the main factors influencing the movement.33_{In the case of slow-onset degradation it} remains a fact that environmental degradation is an important factor in the decision to migrate and often results in an earlier decision to leave one’s living environment.34

1.2 Identifying environmentally displaced persons in need of international

protection

1.2.1 Origin and nature of the displacement

The origin and nature of the movement are both fundamental in seeking the foundation for states to provide for a right to stay for EDPs based on international human rights. 35

31_{IPCC, ‘Climate Change 2014 Synthesis Report - Summary for Policymakers’ (n 12). P.90. UNHCR (n 19). P.2.}

ibid. Borges (n 26). P. 50 – 52.

32_{Castles (n 27); Castles (n 29); Courtland Robinson (n 29).}

33_{Amir Reza Khavarian-Garmsir and others, ‘Climate Change and Environmental Degradation and the Drivers}

of Migration in the Context of Shrinking Cities: A Case Study of Khuzestan Province, Iran’ (2019) 47 Sustainable Cities and Society 101480 <https://linkinghub.elsevier.com/retrieve/pii/S2210670718307625> accessed 9 August 2019.Vikram Kolmannskog and Lisetta Trebbi, ‘Climate Change, Natural Disasters and Displacement: A Multi-Track Approach to Filling the Protection Gaps’ (2010) 92 International Review of the Red Cross

713.Roberta Cohen and Megan Bradley, ‘Disasters and Displacement: Gaps in Protection’, vol 1 (2010) <http://www.unep.org/geo/pdfs/GEO YEARBOOK 2004 > accessed 22 August 2019.

34_{Castles (n 27); Castles (n 29); Courtland Robinson (n 29). Khavarian-Garmsir and others (n 33); Kolmannskog}

and Trebbi (n 33); Cohen and Bradley (n 33); Maereg Tafere, ‘Forced Displacements and the Environment: Its Place in National and International Climate Agenda’ (2018) 224 Journal of Environmental Management 191 <https://doi.org/10.1016/j.jenvman.2018.07.063>.UNHR (n 24). Borges (n 26).P. 50 – 52.

35_{John H Knox, ‘Linking Human Rights and Climate Change at the United Nations’ (2009) 33 Harvard}

Environmental Law Review <http://www.bloomsburycollections.com/book/documents-of-the-african-commission-on-human-and-peoples-rights/human-rights-report-on-the-situation-in-nigeria> accessed 13 August 2019.

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As mentioned in part 1.1, Environmental degradation can result in forced or voluntary, sudden or gradual movements. In addition, these movements can be temporary, with a possibility of return or, permanently, without a possibility to return. Regarding the right to relocate, it is fundamental to take the origin of the movement into account.36

A variety of origins and types of environmental induced human mobility exist. However, as this thesis is exploring whether the right to stay can be based on the right to life not all variables will be discussed.37_{Moreover, the right to stay presumably depends on the severity} of the disaster and the inability to return to the country of origin due to a threat to the right to life. Thus, the following variables are chosen to be discussed:

a) Cross-border displacement and (part 1.2.1.1); b) Permanent relocation (dislocation) (part 1.2.1.2);

c) Forced displacement due to sudden and slow onset disasters (part 1.2.1.3);

1.2.1.1 Cross-border displacement

It is estimated that most environmentally induced displacements will be internally. However, there will be large groups of populations that will have to cross borders. This research will focus on cross border migration as it is likely that in the case of internal migration, due to the

vertical axis of human rights, citizens are protected by the state of origin.38_{The distinction}

between internal and cross-border displacement will be discussed comprehensively in part

2.2.

1.2.1.2 Permanent relocation (dislocation)

Natural disasters often result in temporary displacement, however, in some cases it is possible that land becomes uninhabitable as previously discussed in part 1.1. Legal protection in the case of permanent relocation on the basis of the right to life is only available for forced

36_ibid.

37_{See part 2.4 and 3.1 of the thesis.}

38_{John H Knox, ‘Diagonal Environmental Rights’ (2008) <http://ssrn.com/abstract=1134863> accessed 29 July}

2019. P. 148.UNHCR, ‘A/HRC/10/61 Report of the Office of the United Nations High Commissioner for Human Rights on the Relationship between Climate Change and Human Rights’ (2009)

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cross border EDPs that are unable to return to their country of origin due to life threatening circumstances.

In the scenario of disappearing island states the question thus rises how these citizens will be protected when they move across borders and when they enter a host state. In this example people are unable to displace internally and have to move across borders as the islands are sinking and thus are becoming uninhabitable. As there is no inhabitable land to return to, these people will be permanently displaced.39

1.2.1.3 Forced displacement due to slow and sudden onset disasters 1.2.1.3.1 Forced and voluntary displacement 40

It has been established in the academic community that forced migration as well as voluntary migration is caused by climate change.41_{Though it is difficult to distinguish between forced} and voluntary migration, it is nonetheless important as the cross border EDPs right to be admitted in another country is dependent on their inability to reside in their country of origin.42_{Displaced that are unable to return to their country of origin due to infringement of} the right to life are entitled to different protection compared to those who’s right to life is not in jeopardy in case of a return.43

The difficulty with the distinction between forced and voluntary displacement is intertwined with the nature of the environmental degradation. Thus, whether degradation is slow or sudden.

39_{Allen (n 8); Grote Stoutenburg (n 8).}

40_{UNFCCC, ‘Slow Onset Events: Technical Paper’ (2012) <https://unfccc.int/resource/docs/2012/tp/07.pdf>}

accessed 21 August 2019. § 20.

41_{Astri Suhrke, ‘Environmental Degradation and Population Flows’ 473}

<https://www.jstor.org/stable/24357292> accessed 28 May 2019. P. 480; Fabrice Renaud, Janos J Bogardi Olivia Dun and Koko Warner, ‘Control, Adapt or Flee: How to Face Environmental Migration?’ (2007)

<https://environmentalmigration.iom.int/control-adapt-or-flee-how-face-environmental-migration> accessed 23 April 2019.

42_{Gemenne and Magnan (n 28).}

43_{Walter Kälin, ‘Conceptualising Climate-Induced Displacement’ <http://unfccc.int/> accessed 21 August 2019.}

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1.2.1.3.2 Slow onset environmental degradation

Effects of environmental degradation that take effect on a slow pace are referred to as slow onset degradation.44_{These effects are gradual and will eventually lead to unhabitual land due} to desertification, acidification, salinization, sea-level rise, water scarcity and food insecurity.45_{A well-known example of environmental degradation is the case of the} disappearing low island states. Due to sea level rise, these islands are likely to seize to exist.46 This type of degradation will predominantly cause permanent relocation.47

In slow onset degradation it is harder to isolate the environmental migration motivation from other migration factors as people often migrate preventively before notable life-threatening harm.48_{Comparable to sudden onset disasters where there is often notable life-threatening} harm. In addition, people often migrate based on the future expectancy of the quality of their surrounding environment.49_{In these situations it is uncertain if we speak of environmental} degradation being the main motivator of the movement as it is not an immediate and major factor for migration.

Furthermore, a person may decide to move preventively even before life threatening harm occurs based on future predicaments. In this case, the right to life is not at present threatened and thus protection based on this right is not guaranteed as protection requires an immediate threat.50_{However, displacement that was initially voluntary could at present create an} entitlement to protection when there is ex post an impossibility to return due to life threatening circumstances.51_{Thus, the possibility to return can shift to impossibility to return} due to further degrading of the environment.

44_{Cohen and Bradley (n 33). UNHR (n 24). P.2; UNFCCC (n 40). § 20; OHCHR, ‘A/HRC/37/CRP.4: The Slow Onset}

Effects of Climate Change and Human Rights Protection for Cross-Border Migrants’ (2018)

<https://www.ohchr.org/Documents/Issues/ClimateChange/SlowOnset/A_HRC_37_CRP_4.pdf> accessed 10 July 2019.

45_{UNHR (n 24); UNFCCC (n 40).} 46_{Allen (n 8); Grote Stoutenburg (n 8).}

47_{Jane Mcadam, ‘Jane McAdam - Climate Change, Forced Migration, and International Law’, Utrecht Journal of}

International and European Law (Oxford University Press 2012). P. 109.

48_{UNHR (n 24). P.2.}

49_{OHCHR (n 44). P.7.}

50_{See part 2.4 of the thesis.} 51_{Kälin (n 43).}

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For the entitlement of protection based on the right to life it is essential that return would be impossible due to uninhabitability of the land. Voluntary and preemptive displacement would thus not qualify as ‘life threatening’.

1.2.1.3.3 Sudden onset environmental degradation

Large and instant effects of climate change are often referred to as sudden onset hazards.52 These hazards are disastrous and have a devastating effect on the affected region. Sudden on-set events, such as hurricanes, floods and tsunamis, are able to render a place temporarily or permanently inhabitable. The nexus of a sudden onset disaster is often natural. However, these disasters can be triggered by economic, social or political factors53_{. Natural disasters} have been known to cause life threatening and devastating effects and are estimated to increase in frequency and magnitude due to the anthropogenic effects of climate change.54 The migration response of sudden onset events is likely to have a more temporary nature. Nonetheless, they can often render land uninhabitable in combination with slow onset degradation. For example, sea level rise can erode land, but a severe storm could generate the last push that renders a land uninhabitable.55

1.3 Terminology and definitions

In order to provide the adequate protection foundation for the international right to relocate in the case of cross border environmentally displaced persons based on a human rights approach it is necessary to specify who qualifies as an ‘environmentally displaced person.’ It is only then, that the adequate protection foundation can be invoked.

1.3.1 Refugees, migrants or displaced persons

One of the difficulties in addressing the ‘environmentally displaced’ is the existence of numerous terms and concepts regarding this terminology.56_{The terminology diverges from}

52_{Cohen and Bradley (n 33).}

53_{Gaim Kibreab, ‘Climate Change and Human Migration: A Tenuous Relationship’ (2017) 20 Fordham}

Environmental Law Review <http://ir.lawnet.fordham.edu/elr>. P. 357-359.

54_{UN High Commissioner for Refugees (UNHCR) (n 1). §20 - §23.}

55_{UNHR (n 24). P. 4; Jane McAdam and others, ‘International Law and Sea-Level Rise: Forced Migration and}

Human Rights’ (2016) <https://www.researchgate.net/publication/295858590_International_Law_and_Sea-Level_Rise_Forced_Migration_and_Human_Rights> accessed 29 July 2019. § 13.

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‘ecological refugees’, ‘environmental refugees’, ‘climate refugees’ to ‘climate change migrants’, ‘environmental migrants’ and ‘environmental displacement.’Researcher El-Hinnawi was the first to propose a definition for this category of displaced people.57 El-Hinnawi proposed the definition of ‘environmental refugees’ as:

‘Those people who have been forced to leave their traditional habitat, temporarily or permanently, because of a marked environmental disruption (natural and/or triggered by people) that jeopardized their existence and/or seriously affected the quality of their life. By ‘environmental disruptions’ in this definition is meant any physical, chemical and/or biological changes in the ecosystem (or the resource base) that render it, temporarily or permanently, unsuitable to support human life. According to this definition people displaced for political reasons or by civil strife, and migrants seeking better jobs purely on economic grounds, are not considered environmental refugees.’58

He further categorised the ‘environmental refugee’ in three broad categories being:

1. ‘First there are those who have been temporarily displaced because of an environmental stress. Once the environmental disruption is over and the environment rehabilitated they return to their original habitat. This is usually the situation with populations displaced by natural hazards such as earthquakes or cyclones or an environmental accident.’

2. ‘The second category of environmental refugees comprises those who have to be permanently displaced and re-settled in a new area. They are displaced because of permanent changes, generally man made, that affect their original habitat - in the case of the establishment of large reservoirs for example, or […] relocation effects of nuclear accidents such as at Chernobyl.’

3. ‘The third category of environmental refugees consists of individuals or groups of people who migrate from their original habitat, temporarily or permanently,

57_{Essam El-Hinnawi, ‘Environmental Refugees’ (1985).W Franklin and G Cardy, Environment and Forced}

Migration: A Review (1994) <repository.forcedmigration.org/pdf/?pid=fmo:1158>. P. 2 – 3.

58_{Franklin and Cardy (n 57). P. 2 – 3. ibid. Diane C Bates, ‘Environmental Refugees? Classifying Human}

Migrations Caused by Environmental Change’ (2002) 23 Population and Environment 465

<http://link.springer.com/10.1023/A:1015186001919> accessed 21 August 2019. P. 465–477; Boano, Zetter and Morris (n 20).

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in search of a better quality of life. Generally, they only do this if the resource base in their original habitat has deteriorated to such an extent that it can no longer support them. Share croppers and small holders whose lands are being waterlogged and salinized and who cannot afford the capital investment necessary to reclaim them, often give up their holdings and migrate to nearby urban centres in search of other jobs’59

El-Hinnawi acknowledged different natures of displacement in his categories, namely: temporary displacement due to a temporary environmental hazard, such as a natural disaster; permanent displacement through resettlement due to permanent change in their environment; and temporary or group displacement due to slow onset degradation. In these categories El-Hinnawi neglects to make a distinction between internal versus external movements and forced versus voluntary displacement. In addition, this definition by El-Hinnawi has received a lot of criticism as it has been deemed to be ‘too wide’ and failing to make the important distinctions mentioned above.60

Another influential definition regarding this concept is ‘environmental refugees’ proposed by Myers and Kent.61_{They categorized ‘environmental refugees’ as persons:}

‘Who can no longer gain a secure livelihood in their traditional homelands because of environmental factors of unusual scope, notably drought, desertification, deforestation, soil erosion, water shortages and climate change, also natural disasters such as cyclones, storm surges and foods.’62

This definition is problematic in being too wide as it does not clarify when these environmental factors amount to an unsecure livelihood.

59_{Franklin and Cardy (n 57). El-Hinnawi (n 57).}

60_{As an example: Astri Suhrke and Annamaria Visentin, ‘The Environmental Refugee: A New Approach’ [1991]}

Ecodecision 73.

61_{Norman Myers and Jennifer Kent, ‘Environmental Exodus: An Emergent Crisis in the Global Arena’}

<http://climate.org/archive/PDF/Environmental Exodus.pdf> accessed 23 August 2019. P. 18–19 in Richard Black, ‘Environmental Refugees: Myth or Reality?’ (2001) Working Paper No. 34

<https://www.unhcr.org/3ae6a0d00.html> accessed 16 August 2019. P. 1.

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Numerous scholars and academics have attempted to propose a clear definition of ‘environmental refugees’. Surprisingly, these definitions revolve largely around the proposed definition of El-Hinnawi although with some differences.63

However, the use of the term ‘refugee’ is heavily debated, as the international refugee convention does not consider environmental disruption as a form of ‘fear of persecution’.64 In addition, It is probable that situations exist where people need to flee their land as environmental disruption is threatening their lives. While this threat constitutes ‘well-founded fear’, it does not qualify as ‘persecution’ under the Refugee Convention.65_{Thus, with} the IOM, I share the opinion that environmental disruptions do not fall within the scope of the Refugee Convention.66

The term “environmentally displaced persons” as used in this thesis and inspired by the IOM working definition will encompass:

“Persons who are forcibly displaced, temporary or permanently, within their country of habitual residence or who have crossed an international border and for whom environmental degradation, deterioration or destruction due to sudden or slow onset disasters, either natural or human induced, is a major cause of their displacement, although not necessarily the sole one.”

This definition is not meant to be a legal definition, but rather a descriptive definition that serves as a baseline.

The category of environmentally displaced persons discussed in this thesis meet the criteria of forced, cross border displacement and permanent relocation triggered by slow or sudden onset environmental disasters as discussed in part 1.2.1.67_{In addition, the term EDP, cross} border EDP and forced cross border EDP will be used interchangeably. This category is

63_{Renaud, Bogardi Olivia Dun and Warner (n 41); Mcadam (n 47); Borges (n 26); Biermann and Boas (n 20).} 64_{Brown (n 24). p.13-14; François Gemenne, ‘The Refugees of the Anthropocene’ in Benoît Mayer and}

François Crépeau (eds), Research Handbook on Climate Change, Migration and the Law (2017). P. 395.

65_{Brown (n 24). p.13-14. ‘1951 Convention and Protocol Relating to the Status of Refugees’ <www.unhcr.org>}

accessed 23 August 2019.Leeja Miller, ‘“Climate Refugee”: Misnomer or Opportunity?’ (2018)

<http://alfredlahaibrownell.com/climate-refugee-misnomer-or-opportunity/> accessed 23 August 2019.

66_{Migration and Climate Change, No. 31, IOM 2008 p.14}

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important as this thesis aims to seek a foundation for the right to relocation based on the inability to return to the country of origin due to sudden or slow onset disasters threatening the right to life.

A human rights bases approach on state obligations to

provide for a right to stay for cross border EDPs

This chapter seeks a foundation for the states to provide the right to stay for EDPs based on international human rights. Human rights do not offer a specific protection for environmentally displaced persons. However, the significance of a human rights-based approach is mainly based on the human rights concept of duty that is imposed on states.68_It is thus fundamental to explore whether states are obligated to provide for protection of a cross border EDP based on human rights law. Also, under international human rights treaties, states commit to join forces in addressing global problems that pose a threat to international human rights such as climate change and environmental degradation:

‘While human rights law provides a strong framework for protection at the national level, States also have obligations relevant to their joint action internationally to deal with climate change. Importantly, under international human rights treaties – and under the United Nations Charter and internationally agreed development goals – States have committed to engage in international assistance and cooperation and to take joint and separate action to address global problems which threaten the realization of human rights. Based on these commitments and obligations, human rights must be a central objective of the international response to the climate change crisis.’69

The essence of a human rights-based approach in this context is the identification of the right to relocate that EDPs are entitled to protection and the content of state obligations. It is

68_{Lopez (n 9). P.1.}

69_{‘Address by Kyung-Wha Kang United Nations Deputy High Commissioner for Human Rights at the 7th}

Gathering for Human Rights’ (2009)

<https://newsarchive.ohchr.org/EN/NewsEvents/Pages/DisplayNews.aspx?NewsID=132&LangID=E> accessed 21 June 2019.

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undeniable that the rights of EDPs are affected by climate change.70_{Whether or not the} effects of climate change can be regarded as human rights violations, these affected rights need to be protected. As the OHCHR stated: ‘Irrespective of whether or not climate change effects can be construed as human rights violations, human rights obligations provide important protection to the individuals whose rights are affected by climate change or by measures taken to respond to climate change.’71

In this context, it is primarily of importance to make remarks on the relationship existing between the enjoyment of human rights and the environment. Subsequently, the right to life as a foundation to provide for the right to entry is discussed.

2.1 Linking human rights and the environment

The human footprint is becoming more and more visible in the environment surrounding us. Our human activity reaches all parts of the ecosystem and is causing environmental degradation. Nowadays, humans play a significant part in the degradation of the environment. At the same time, as humans, we are largely influenced and dependent on the wellbeing of the environment surrounding us. It is thus in our greatest interest to take care of the environment as our lives are profoundly entangled with the environment.72_{At present,} the relationship between human rights and the environment is still a heavily debated matter.73

70_{UNHR (n 24) P.2. ; OHCHR (n 44).}

71_{‘Report of the Office of the United Nations High Commissioner for Human Rights on the Relationship}

between Climate Change and Human Rights A/HR/10/61’ (2009) <http://www2.ohchr.org/> accessed 11 May 2019.

72_{Evan DG Fraser, Warren Mabee and Olav Slaymaker, ‘Mutual Vulnerability, Mutual Dependence’ (2003) 13}

Global Environmental Change 137 <https://linkinghub.elsevier.com/retrieve/pii/S0959378003000220> accessed 5 August 2019. Borges (n 26).

73_{The relationship between human rights and the environment remains a heavily debated subject amongst}

academics. See for example: Cesar Rodriguez-Garavito, ‘A Human Right to a Healthy Environment? Moral, Legal and Empirical Considerations’ (2017); John H Knox and Ramin Pejan (eds), The Human Right to a Healthy

Environment (Cambridge University Press 2018)

<https://www.cambridge.org/core/product/identifier/9781108367530/type/book> accessed 6 August 2019; Dinah Shelton, ‘Human Rights, Environmental Rights, and the Right to Environment’ (1992) 28 Stanford Journal of International Law

<https://heinonline.org/HOL/Page?handle=hein.journals/stanit28&div=10&g_sent=1&casa_token=&collection =journals> accessed 5 August 2019; Borges (n 26).

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The environment is an integral factor for the enjoyment of fundamental human rights. This relationship between the environment and human rights has been stressed several times over the past decades by the international community.74_{In 1972, this relationship has been} recognized explicitly in the Stockholm Declaration at the UN Conference on the Human Environment. Principle 1 of the Declaration sets out the foundation for the relation between human rights and the environment. This fundamental principle declares that:

‘Man has the fundamental right to freedom, equality and adequate conditions of life, in an environment of a quality that permits a life of dignity and well-being, and he bears a solemn responsibility to protect and improve the environment for present and future generations. In this respect, policies promoting or perpetuating apartheid, racial segregation, discrimination, colonial and other forms of oppression and foreign domination stand condemned and must be eliminated.’75

This relationship is further stressed in the preamble of the Stockholm Declaration, where is stated that ‘Both aspects of man's environment, the natural and the man-made, are essential to his well-being and to the enjoyment of basic human rights the right to life itself.’76_{There is} a clear relation recognized in these two provisions of the Stockholm declaration. However, these provisions do not constitute a right to a healthy environment but solely stress the importance and relation of the environment and human rights.77_{Unfortunately, regardless of} inspiring many national constitutional provisions in recognizing the right to a healthy environment, these provisions have not been transformed into a binding rule of international law until this date.78

74_{Mcadam (n 47); Borges (n 26); Biermann and Boas (n 20).}

75_{Principle 1, Declaration of the United Nations Conference on the Human Environment ‘Stockholm}

Declaration’ 1972.

76_{Preamble, ibid.}

77_{Maguelonne Déjeant-Pons and Marc Pallemaerts, ‘Human Rights and the Environment’ (2002)}

<http://book.coe.int> accessed 5 August 2019, p. 11.

78_{M Pallemaerts, ‘A Human Rights Perspective on Current Environmental Issues and Their Management:}

Evolving International Legal and Political Discourse on the Human Environment, the Individual and the State’ (2008) 2 Human Rights and International Legal Discourse, p. 152. And see Annex III in; ‘UN Doc.

e/CN.4/Sub.2/1994/9’, <https://undocs.org/en/E/CN.4/Sub.2/1994/9> accessed 5 August 2019, for example: Afganistan, Germany, Brazil, the Netherlands and many others.

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In 1984, the World Commission on Environment and Development, an independent commission in charge to formulate ‘a global agenda for change’, was established by the United Nations.79_{The world commission published its report, our common future, in April} 1987. In this report the commission raised issues that will, if not addressed, inevitably lead to far reaching impacts on the quality of our lives.80_{The committee further noted that the} national and international law was failing to protect the environment adequately and needed to find ways to ensure the protection the right of present and future generations of an healthy environment.81_{In annex 1 to the report, the commission summarized the proposed legal} principles for environmental protection and sustainable development, starting with principle 1, a fundamental human right: ‘All human beings have the fundamental right to an environment adequate for their health and well-being.’82

This right to an adequate environment for the health and well-being of human beings has not explicitly been recognized in any global conventions, notwithstanding the fact that it has been recognized at a regional level in the 1998 UN/ECE Aarhus Convention83_{, the 1981 African} Charter84_{and the 1988 San Salvador Protocol to the American Convention on Human Rights.}85 In 1990, the General assembly adopted resolution 45/94 ‘Need to ensure a healthy environment for the well-being of individuals’, where the relation between the environment and human rights was stressed.86_{Here is stated that: ‘in accordance with the Declaration of} the United Nations Conference on the Human Environment, men and women have the fundamental right to freedom, equality and adequate conditions of life in an environment of

79_{See the Chairman’s foreword in: World Commission on Environment, ‘Report of the World Commission on}

Environment and Development: Our Common Future’

<https://sustainabledevelopment.un.org/content/documents/5987our-common-future.pdf> accessed 6 August 2019.

80_ibid.

81_{See 4.5, ibid.}

82_{See Annex 1 under I, ibid.}

83_{See article 1, Convention on access to information, public participation in decision-making and access to}

justice in environmental matters 1998.

84_{See article 24, African Charter on Human and Peoples Rights 1981 (Entered into Force October 21, 1986).} 85_{See article 11, Right to a Healthy Environment, Additional Protocol to the American Convention on Human}

Rights in the Area of Economic, Social and Cultural Rights 1988 (Entered in to force 1999).

86_{See §9; ‘Report Commission on Human Rights, Review of Further Developments in Fields with Which the}

Sub-Commission Has Been Concerned Human Rights and the Environment’ (1994) <http://center-hre.org/wp-content/uploads/2011/05/REVIEW-OF-FURTHER-DEVELOPMENTS-IN-FIELDS-WITH.pdf> accessed 5 August 2019.

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a quality that permits a life of dignity and well-being, and that they bear a solemn responsibility to protect and improve the environment for present and future generations.’87 In 1989, the Hague Declaration on the environment provided in the preamble that: ‘The right to live is the right from which all other rights stem. Guaranteeing this right is the paramount duty of those in charge of all States throughout the world. Today, the very conditions of life on our planet are threatened by the severe attacks to which the earth's atmosphere is subjected.’88_{Hereby stressing the importance and fundamentality of the right to life as the} supreme right and noting that this right is threatened by attacks on the atmosphere. Furthermore, the 1992 Rio Declaration explicitly mentioned in its principle 1: ‘Human beings are at the center of concerns for sustainable development. They are entitled to a healthy and productive life in harmony with nature.’89_{Hereby, emphasizing that a healthy and productive} life depends on a healthy environment.

Therefore, from the above analysis can be concluded that there is a widespread international recognition of the relation between the enjoyment of human rights and the environment. Unfortunately, there is still a lack of transformation of this recognition into binding international obligations.

2.2 Comparing the applicability of human rights law in internal

displacement and external displacement

There are two dimensions to apply international human rights law to protect EDPs. The first is the vertical axis of human rights, which governs the vertical relationship between the state and its citizens. This vertical application of human rights law primarily concerns the protection of IDPs but could be used for cross border EDPs who are within a state’s territory or effective control.90

87_{‘Resolution 45/94, “Need to Ensure a Healthy Environment for the Well-Being of Individuals”’ (1990)}

<https://www.un.org/documents/ga/res/45/a45r094.htm> accessed 5 August 2019.

88_{See preamble; Hague Declaration on the Environment 1989.}

89_{See principle 1; Rio Declaration on Environment and Development 1992.}

90_{Knox (n 38). P. 148.UNHCR (n 38). §57; Siobhan McInerey-Lankford, ‘Climate Change, Human Rights and}

Migration: A Legal Analysis of Challenges and Opportunities’ in Benoît Mayer and Francois Crépeau (eds),

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In the case of the traditional application of human rights law between the state and its citizens, the UNHCR states: ‘persons affected by displacement within national borders are entitled to the full range of human rights guarantees by a given state, including protection against arbitrary of forced displacement and rights relating to housing and property restitution for displaced persons’91_{It can be understood from the wording of the UNHCR that}

due to the vertical application of human rights, in principle, IDPs are protected by the state of origin. However, this application is available for cross border EDPs.

In comparison with IDPs, the case of EDPs is more complex. Since the displacement entails the crossing of borders the difficulty at hand is regarding a) obligating another state than the state of origin to protect the EDPs, and b) extraterritorial application of the human rights obligations.92_{The applicability and exterritoriality of international human rights will be} further examined in part 2.3 and 2.4 of this thesis.

2.3 State obligations under International human rights law

Regardless of the lack of an adequate and widespread acknowledged definition, EDPs are entitled to fundamental human rights and the protection thereof simply by being human beings.93_{The nature of the general legal obligations imposed on states is reflected in article} 2 of the International Convention of Civil and Political Rights (ICCPR). The obligations entail the states party to the convention to respect and ensure to all individuals within their territory and subject of their jurisdiction all rights recognized in the convention without a distinction of any kind. Article 2 of the ICCPR further obligates states to undertake all necessary steps, legislative or of other nature, to give effect to the rights recognized in this Covenant.94_This implies that the country of origin has the primary duty to respect, protect and fulfil the fundamental human rights of EDPs. Therefore, it is in principle their duty to protect people

91_{UNHCR (n 38). §57.}

92_{Rabab Fatima, Anita Jawadurovna Wadud and Sabira Coelho, ‘Human Rights, Climate Change, Environmental}

Degradation and Migration: A New Paradigm | Migrationpolicy.Org’ (2014)

<https://www.migrationpolicy.org/research/human-rights-climate-change-environmental-degradation-and-migration-new-paradigm> accessed 2 August 2019. P.3. McInerey-Lankford (n 90). P. 143.

93_{This will be discussed in part 2.4 of the thesis.} 94_{Article 2 ICCPR.}

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from displacement and in case displacement is inevitable, to ensure their fundamental human rights are respected in case of relocation.

Moreover, the duty of states is accurately phrased by the OHCHR in their message on disaster risk reduction where they state: ‘All states have positive human rights obligations to protect human rights. Natural hazards are not disasters, in and of themselves. They become disasters depending on the elements of exposure, vulnerability and resilience, all factors that can be addressed by human (including state) action. A failure (by governments and others) to take reasonable preventive action to reduce exposure and vulnerability and to enhance resilience, as well as to provide effective mitigation, is therefore a human rights question.’95

The OHCHR further notes that mitigation and adaptation strategies, or the lack of, are a

product of states choices and decisions from governments, international organizations and private actors. Stressing that vulnerable peoples exposed to environmental harm are less capable of providing themselves with suitable protection.96_{It is evident that the survival of} these vulnerable groups is largely dependent on the integration of international human rights in the context of environmental displacement, and especially regarding the obligations of home and host states to respect, protect and fulfil the fundamental human rights. These obligations obligate states to protect humans regardless of whether their acts or omissions contributed to climate change.97

Furthermore, these obligations are not concerning the liability of states but focus on the shared duty to protect human beings from the harm resulting from climate change and environmental degradation. As John Knox stated: ‘whether a state causes climate change is a separate question from whether it has the duty to address the effects of climate change on human rights.’98

95_{‘Office of the United Nations High Commissioner for Human Rights (OHCHR), Policies and Programmes in}

DRR’ (2011) <https://www.preventionweb.net/organizations/1370> accessed 21 June 2019.

96_ibid.

97_{Borges (n 26); Shelton (n 73); OHCHR, ‘Understanding Human Rights and Climate Change, Submission of the}

Office of the High Commissioner for Human Rights to the 21st Conference of the Parties to the United Nations Framework Convention on Climate Change’

<http://www.ohchr.org/Documents/Issues/ClimateChange/KeyMessages_on_HR_CC.pdf>.

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2.3.1 Extra territoriality

In the inevitable case of cross border environmentally induced movement it is fundamental to explore the extraterritorial obligations of states, predominantly those of the home and host state. Guidance on the extraterritorial obligations of the states are found in General Comment no. 31.99_{The Committee here states in paragraph 2 that ‘While article 2 is couched} in terms of the obligations of State Parties towards individuals as the right-holders under the Covenant, every State Party has a legal interest in the performance by every other State Party of its obligations.’100

The committee continues with: ‘This follows from the fact that the ‘rules concerning the basic rights of the human person’ are erga omnes obligations and that […] there is a United Nations Charter obligation to promote universal respect for, and observance of, human rights and fundamental freedoms.’101_{This means that states party to the convention must ensure and} respect the rights recognized in the Convention to all individuals, erga omnes, without any kind of discrimination.

The Committee further adds in paragraph 10, that the rights laid down in the Covenant must be respected and ensured to anyone within the power or effective control of that State Party, regardless of being within their territory and subject to their jurisdiction. In this connection, the committee stated that ‘the enjoyment of Covenant rights is not limited to citizens of States Parties but must also be available to all individuals, regardless of nationality or statelessness, such as asylum seekers, refugees, migrant workers and other persons, who may find themselves in the territory or subject to the jurisdiction of the State Party.’102

In addition, the ICJ confirmed in paragraph 112 its advisory opinion on the Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory that while the Covenant guarantees rights that are in essence territorial, it is not excluded that these rights are also applicable in the situation where a state has effective control. The ICJ stated

99_{‘General Comment No. 31, The Nature of the General Legal Obligation Imposed on States Parties to the}

Covenant’. § 2.

100_{ibid. §2.} 101_{ibid. §2.} 102_{ibid. §10.}

PAST THE POINT OF NO RETURN The international right to relocate in the case of cross border environmentally displaced persons based on a human rights