Matthew Scott JUFN 20 Migration Law 6 February Climate change, disasters and international protection

Transcription

1 Matthew Scott JUFN 20 Migration Law 6 February 2017 Climate change, disasters and international protection

2 Overview 1. Overview of the phenomenon a) Climate change and natural disasters b) Disasters and displacement 2. International protection a) The protection gap b) Proposals c) Refugee Convention d) Complementary protection e) Risk assessment in relation to current and foreseeable future disasters

3 1. The phenomenon

4 i. Climate change and natural disasters

5 Predicted impacts of climate change Predictions by 2100 [most discussion of climate change impacts focuses on predictions] More frequent heat waves that are longer and more intense More frequent heavy rainfall More intense cyclones More intense droughts Sea level rise Increased extreme coastal high water levels (associated with flooding and storm surge) Increased risk of landslides and glacial lake outburst floods due to temperature changes IPCC 5 th Assessment Report 2013

6 The role of climate change in contemporary hazard events Links between climate change and natural disasters are difficult to establish IPCC attributes degrees of certainty to the role of climate change in particular types of disasters. For example, at the global level: medium confidence that anthropogenic influences have contributed to intensification of extreme precipitation medium confidence relating to changes in drought patterns. likely anthropogenic influence on the observed increase in extreme coastal high water worldwide related to increases in mean sea level in the late 20th century low confidence in the attribution of any detectable changes in tropical cyclone activity to anthropogenic influences (due to uncertainties in historical tropical cyclones record, incomplete understanding of physical mechanisms, and degree of tropical cyclone variability) Intergovernmental Panel on Climate Change Managing the risks of extreme events and disasters to advance climate change adaptation. Available at: 119

7 Multiple factors involved in causing natural disasters Natural Variability Climate Change Exposure Infrastructure Population Pressures Governance Individual Vulnerability

8 Vulnerability and exposure increasing faster than rate of extreme weather events The likelihood of being displaced by a disaster today is 60 per cent higher than it was four decades ago Ever growing numbers of people live in places exposed to hazards Source: IDMC: Global Estimates 2015: People Displaced by Disasters

9 More hazards + more vulnerability = more disasters

10 Definitions of disaster UNISDR - A serious disruption of the functioning of a community or a society involving widespread human, material, economic or environmental losses and impacts, which exceeds the ability of the affected community or society to cope using its own resources. IPCC - Severe alterations in the normal functioning of a community or a society due to hazardous physical events interacting with vulnerable social conditions, leading to widespread adverse human, material, economic, or environmental effects that require immediate emergency response to satisfy critical human needs and that may require external support for recovery. IPCC, Managing the Risks of Extreme Events and Disasters to Advance Climate Change Adaptation (CUP 2012) 5

11 More disasters = more displacement

12 ii. Disasters and displacement

13 Disaster related displacement 2014 NB: Not including slower onset hazards Source: IDMC: Global Estimates 2015: People Displaced by Disasters

14 Displacement in the context of natural disasters 26.5 million people newly displaced every year as a result of sudden onset natural disasters (IDMC 2015) Slow-onset versus sudden-onset Internal displacement Those who remain ( trapped populations ) Those who move short distances Those who move longer distances, especially to from rural areas to cities International displacement Cross border Longer distances Movement can be temporary or permanent Difficult to draw direct causal link between some natural disasters and displacement, especially slower-onset disasters Most environmental migration is expected to be internal

15 2. International protection

16 a) The protection gaps

17 Protection gaps It is also appropriate to identify and address knowledge gaps Most people not refugees because: Not fleeing persecution State actually wants to help even if it can t (esp. in the context of climate change) Disasters don t discriminate Complementary protection generally unavailable as well because: Need for treatment or arbitrary deprivation of life - entails culpable human agency not clear in disasters But note NZIPT jurisprudence (AC Tuvalu in particular)

18 b) Proposals

19 Draft Convention on the International Status of Environmentally-Displaced Persons Article 12- Rights common to inter-state and internally displaced persons 1. Right to assistance Each person, each family, each group and each population victim of an environmental disaster has the right to assistance in all locations. This right exists from the moment when the situation becomes critical, during and after the environmental disaster. The States Parties undertake to place no obstacle in the way of concrete and effective implementation of this right. They undertake also to elaborate and implement a permanent and regularly updated program of assistance to environmentally-displaced persons.

20 Snap Poll on the Draft Convention Do you think the international community is likely to adopt this draft convention (or a modified version of it)?

21 Problems with a new Convention individuals, families, groups and populations confronted with a sudden or gradual environmental disaster that inexorably impacts their living conditions, resulting in their forced displacement, at the outset or throughout, from their habitual residence. Challenges to the adoption of such an instrument include: Lack of political will Lack of knowledge about cross-border displacement patterns Difficulty establishing causation owing to multiple drivers

22 Work within the UNFCCC framework Cancun Conference of Parties in 2010, where Article 14(f): Invites all Parties to enhance action on adaptation under the Cancun Adaptation Framework, taking into account their common but differentiated responsibilities and respective capabilities, and specific national and regional development priorities, objectives and circumstances, by undertaking, inter alia, the following: (f) Measures to enhance understanding, coordination and cooperation with regard to climate change induced displacement, migration and planned relocation, where appropriate, at the national, regional and international levels

23 UNFCCC post-paris Warsaw International Mechanism (WIM), where Action Area 6 aims to [e]nhance the understanding of and expertise on how the impacts of climate change are affecting patterns of migration, displacement and human mobility; and the application of such understanding and expertise Summer 2016 meeting in Casablanca reconfirmed much of what was already established under the Nansen Initiative

24 The Nansen Initiative Follow-up to the rejection by states of the Nansen Principles State-led, bottom-up consultative process led by Walter Kälin who led development of Guiding Principles on Internal Displacement 5 regional consultations Address knowledge gaps and look for best practice, owned by states Main product is the Protection Agenda, endorsed in October 2015 by 109 states Follow up Platform of Disaster Displacement

25 c) Refugee Convention

26 Why should refugee lawyers think about disasters and climate change at all? More people exposed and vulnerable Sur place displacement and ex-post facto movement is occurring and people are seeking protection Patchwork of discretionary policies and ad hoc responses i.e. no comprehensive system in EU High judicial authority suggests Refugee Convention almost entirely irrelevant and limited authoritative opinion to the contrary = either Convention is as irrelevant as it seems or individuals entitled to protection are not getting it

27 The hazard paradigm and judicial comments obiter dictum

28 A and Another v MIEA & Anor [1997] HCA By including in its operative provisions the requirement that a refugee fear persecution, the Convention limits its humanitarian scope and does not afford universal protection to asylum seekers. No matter how devastating may be the epidemic, natural disaster or famine, a person fleeing them is not a refugee within the terms of the Convention. (Dawson J) Case concerned forced sterilization under China s one child policy, and the meaning of MPSG ground Obiter comment in the context of arguing against too wide a construction of MPSG ground, notwithstanding humanitarian character of CSR

29 Canada (Attorney General) v. Ward, [1993] 2 S.C.R. 689 The need for "persecution" in order to warrant international protection, for example, results in the exclusion of such pleas as those of economic migrants, i.e., individuals in search of better living conditions, and those of victims of natural disasters, even when the home state is unable to provide assistance, although both of these cases might seem deserving of international sanctuary (La Forest J) Case concerns the meaning of MPSG ground Obiter comment in the context of considering CSR 51 as providing substitute for national protection, and therefore having intentionally in-built limitations

30 K & Fornah v SSHD [2006] UKHL 46 Very bad things happen to a great many people but the international community has not committed itself to giving them all a safe haven. People fleeing national and international wars, famine or other natural disasters are referred to as refugees, and offered humanitarian aid by the international community, but they do not generally fall within the definition in the 1951 Convention. Asylum can only be claimed by people who have a well- founded fear of persecution for reasons of race, religion, nationality, membership of a particular social group or political opinion. (Baroness Hale) [97] Cites A and Anor with approval Incorrectly describes famine as a natural disaster Case concerned FGM and whether MPSG Obiter comment in context of recognising nexus clause as limitation of scope of CSR 51

31 Federal Administrative Court of Germany, Beschluss vom 7. Februar BVerwG 10 C 33.07, BVerwG 10 C By contrast, general risks (e.g., because of war, natural disasters or poor economic conditions) are not covered by protection under Article 1 A No. 2 of the GRC, according to the letter and intent of this provision, nor are they covered by Article 1 C No. 5 sentence 1 of the GRC [24] Case concerns appeal against cessation of refugee status in relation to Iraq Obiter comment in context of contrasting cessation of individual fear of being persecuted with general risks

32 These quotes reflect the continued operation of the old paradigm Notion that Refugee Convention does not apply in disasters is pervasive based on generalized assumptions about the nature of disasters self-perpetuating That s not to say that hazard events don t often kill, injure, destroy property of, displace indiscriminately - but it need not be the starting presumption for a refugee lawyer

33 The climate refugees approach perpetuates this old paradigm

34 Refugee Appeal No /2000 (NZ RSAA) Clearly, none of the fears articulated by the appellant vis-àvis her return to Tuvalu, can be said to be for reason of any one of the five Convention grounds This is not a case where the appellant can be said to be differentially at risk of harm amounting to persecution due to any one of these five grounds. All Tuvalu citizens face the same environmental problems and economic difficulties living in Tuvalu. Rather, the appellant is an unfortunate victim, like all other Tuvaluan citizens, of the forces of nature leading to the erosion of coastland and the family home being partially submerged at high tide [16]

35 How should refugee lawyers conceptualize disasters? Disasters as revealing and exacerbating discriminatory failures of state protection that result in a serious violation/denial (?) of human rights

36 Disasters are social processes The crucial point about understanding why disasters happen is that it is not only natural events that cause them. They are also the product of social, political and economic environments... where people live and work, and in what kind of buildings, their level of hazard protection, preparedness, information, wealth and health have nothing to do with nature as such, but are attributes of society. So people s exposure to risk differs according to their class (which affects their income, how they live and where), whether they are male or female, what their ethnicity is, what age group they belong to, whether they are disabled or not, their immigration status, and so forth. Wisner et al. At Risk: Natural hazards, people s vulnerability and disasters (p6)

37 Failures A host of climate refugee claims from Australia and New Zealand AF (Kiribati) Emphasized that the Refugee Convention falls to be applied in these cases in the same way as any other case a human rights-based approach Recognises the role of human agency in disasterrelated harm Does not identify an actor of persecution, no discrimination, harm threshold not met, no risk of immanent harm on return (this last point in relation to complementary protection claim only)

38 Potential applications recognized in the New Zealand case law ex post facto Discriminatory disaster relief Exposure to increased risk of trafficking and other harm perpetrated by non-state actors against which state unable to protect Arbitrary withholding of consent for necessary foreign humanitarian assistance. [thus quite similar to the recognised potential refugee-producing scenarios] AC (Tuvalu)

39 Scenario Conflict or violence in disasters or situations of depleted resources connected to climate change Discriminatory denial of disaster relief Obstructing international humanitarian assistance Using the disaster as a pretext for persecution the deliberate infliction of socio-economic harm by state agents or a failure to intervene while nonstate agents did the same the increased vulnerability of persons displaced in the wake of natural disasters increases the risk of them being subjected to cruel treatment (for example, being trafficked) by non-state actors against whom the state is unwilling or unable to provide effective protection. Where people flee in the context of disaster but the well-founded fear of being persecuted exists independently The state causing environmental damage or allowing it to be caused Implementing discriminatory agricultural policies against people already affected by climate change Due to political weighting, state response to natural disasters fails to meet the recovery needs of marginalised groups Forced relocation or prohibition to live in particular areas, or not providing support in areas of relocation Arbitrary withholding of consent for necessary foreign humanitarian assistance Failures of disaster risk reduction

40 Possible improvements to the NZIPT methodology Don t focus on the culpability of the state, but rather on the predicament of the claimant not necessary to establish violation of human rights to establish that person faces being persecuted on return Recognise the centrality of discrimination in the predicament of being persecuted not just the sustained or systemic denial of human rights demonstrative of the failure of state protection Recognise that being persecuted is an enduring condition of existence, not something that just happens [NB thoughts on this slide are work in progress!]

41 d) Complementary protection

42 Article 3 ECHR my earlier attempts focusing on climate change Climate change-related harm is sui generis as host state bears responsibility for harm Anthropogenic climate change can be predominate cause of the disaster

43 Snap quiz prospects of success of either of these arguments?

44 The better approach focusing on responsibility for disaster-related harm Sudden onset Failure of early warning system Failure of urban planning Failure of building regulations Failure of storm shelters Failure of sea walls Failure to seek disaster assistance Human agency may never be the predominate cause in a sudden onset disaster but it can exacerbate a crisis (as in Myanmar 2008) Slower onset Failure to stockpile food Failure to maintain food distribution networks Failure to control prices Fluctuation of global food prices Insecurity Blocking relief

45 The risk assessment and standard of proof

46 Ongoing Risk Assessment AF (Kiribati) & AC (Tuvalu) No evidence of present risk of arbitrary deprivation of life (Art 6) or inhuman or degrading treatment (Art 7) in light of harm severity and prevalence and state DRR Sufi & Elmi [291] the Court considers that the conditions both in the Afgooye Corridor and in the Dadaab camps are sufficiently dire to amount to treatment reaching the threshold of Article 3 of the Convention. IDPs in the Afgooye Corridor have very limited access to food and water, and shelter appears to be an emerging problem... Although humanitarian assistance is available in the Dadaab camps, due to extreme overcrowding access to shelter, water and sanitation facilities is extremely limited. The inhabitants of both camps are vulnerable to violent crime, exploitation, abuse and forcible recruitment. Moreover, the refugees living in or, indeed, trying to get to the Dadaab camps are also at real risk of refoulement by the Kenyan authorities. Finally, the Court notes that the inhabitants of both camps have very little prospect of their situation improving within a reasonable timeframe

47 Anticipatory risk assessment AF (Kiribati) & AC (Tuvalu) Fear of being exposed to disaster related harm in the future mere conjecture or surmise but guidance on anticipatory risk assessment The Tribunal notes the fear of the wife in particular that the young children could be drowned in a tidal event or storm surge. No evidence has been provided to establish that deaths from these events are occurring with such regularity as to raise the prospect of death occurring to the appellant or his family member to a level which rises beyond conjecture and surmise at all, let alone a risk which can be characterised as an arbitrary deprivation of life in the sense outlined above. AF (Kiribati) [90]

48 Substantial grounds for believing that a person would on return face a real risk of being exposed to serious harm in the context of an anticipated future disaster A hypothetical fantasyland?

49 Elements of an anticipatory risk assessment Past failures of DRR & response Likelihood of occurrence of the disaster itself Individual risk profile; disaggregated disaster stats what makes one person face a real risk in the context of a disaster?

50 Past persecution parallel Just as in the refugee context past persecution can be a powerful indicator of the risk of future persecution, so too can the existence of a historical failure to discharge positive duties to protect against known environmental hazards be a similar indicator in the protected person jurisdiction. Nevertheless, given the forward looking nature of the inquiry, the nature of the hazard, including its intensity and frequency, as well as any positive changes in disaster risk reduction and operational responses in the country of origin, or improvements in its adaptive capacity, will need to be accounted for AC (Tuvalu) [69]

51 Risk on return? Risk = Hazard x Exposure x Vulnerability

52 Evaluating disaster risk Extreme weather and disasters are quite likely in general Risk of exposure to disasters greater in some places and for some people The greater the extent of harm, the lower the likelihood of risk in order to qualify for international protection - McAdam

53 Disaster recurrence and impacts But assessing risk on return is not actuarial science! Consider all factors differential vulnerability and exposure; past exposure and failure of state protection People may be affected more than once

54 Internal relocation alternative

55 Internal relocation alternative Consideration of whether alternative is relevant and reasonable Must not expose person to persecution or serious harm in transit or in place of relocation, and must not be unduly harsh Individual claimant s personal circumstances Likely to be available for the majority but consider Somalia famine

56 Somalia Famine 2011 Relevant, reasonable internal relocation alternative?

57 Conclusions 1. The vast majority of the 27+ million people annually affected by disasters will not be entitled to / may not be in need of international protection but may well need humanitarian assistance 2. Refugee Convention addresses protection needs in limited situations, but should always be considered 3. Complementary protection addresses protection needs in some situations, but challenges relating to Causation (role of human conduct in disaster; margin of appreciation) Risk on return (ongoing and anticipatory; individual risk profile) 4. Better country information relating to disaster risks; more jurisprudence will help clarify extent of refugee and complementary protection but cases are very few why? 5. A clear role for temporary protection regimes; categorical protection; bilateral and regional arrangements; discretionary policies

58 What if that fails?

59 Discretionary policies at domestic or regional level Europe? Sweden USA Temporary protected status Brazil Humanitarian visas for Haitians

60 But don t count on it Haitians expelled in the aftermath of the 2010 earthquake Many regions, including Europe, don t have policies in place Some countries, like Sweden, have removed policies

61 Other solutions?