Matthew Scott JAMR13 Migration Law 6 February Climate change, disasters and international protection

Transcription

1 Matthew Scott JAMR13 Migration Law 6 February 2018 Climate change, disasters and international protection

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3 Refugees?

4 Outline 1. Understanding human mobility in the context of disasters and climate change 2. International protection in the context of disasters and climate change

5 1. Understanding human mobility in the context of disasters and climate change

6 The Foresight Study The relative weight of different variables changes depending on context Impeding migration is not without risk Manifestations include> - Sea level rise - Hazard frequency and intensity - Changing rainfall - Increases in temp - Atmospheric chemistry - Melting mountain glaciers Source: Foresight: Migration and Global Environmental Change, Final Project Report (The Government Office for Science 2011) The poorest tend not to move, owing to cost. At risk of being trapped

7 Migration and environmental change How do factors interact to shape migration choices? People in vulnerable communities worldwide are already experiencing impacts associated with extreme weather events and slow-onset climate change Those households with more or better adaptation options are seen to be less sensitive to changes in rainfall and less likely to have to undertake needdriven migration under adverse conditions Migration can be either a positive or negative adaptation strategy

8 Four household profiles / present across 8 country studies 1. Positive adaptation (Thailand study) 3. Coping (Peru study) 2. Erosive coping (India study) The need for largescale unplanned human mobility may be prevented through effective adaptation measures Changing rainfall patterns have a clear impact on migration decisions 4. Trapped populations (Guatemala study)

9 Disaster displacement 19 million newly displaced by disasters in million newly displaced by conflict 83% of displacement was in Asia-Pacific 86% of displacement is weather-related, rather than geophysical

10 Disaster displacement 2016 Correlation between displacement and exposure to natural hazards particularly in urban areas Poorer and more marginalised are disproportionately affected Most displacement is very short term but can also become protracted i.e. 2.8 million still displaced after 2015 Nepal earthquake

11 Conceptual framework: Human mobility in the context of disasters and climate change Environmental Pressure Spatial Frame Temporal Frame Causal Frame Policy Frame Sudden onset hazard event (Haiyan) Long/Short distance Temporary (one night, weeks, months) (majority) Direct/Indirect Migration as adaptation/sdgs Slower onset hazard event (Somalia) Rural/Rural Circular Rural/Urban (Mali) Forced/Voluntary Disaster risk management Process of environmental change (Tuvalu) Internal/Cross-Border Permanent (Bouganville relocation) Spontaneous/planned relocation Climate security

12 Summing up Environmental factors contribute to human mobility in a variety of ways context and understanding interlinking drivers is key Mobility takes a wide range of forms, and can have both positive and negative impacts, on both sending and receiving communities what matters is how processes are managed Mobility is differentially experienced across gender, age, income and other characteristics Mobility cannot be seen or addressed in isolation from wider processes The future is uncertain

13 2. International protection in the context of disasters and climate change

14 i) Refugee Convention

15 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

16 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

17 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

18 Nothing to do with the Refugee Convention?

19 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

20 The climate refugees approach perpetuates this old paradigm

21 Refugee Appeal No /2000 (NZ RSAA) Clearly, none of the fears articulated by the appellant vis-a vis 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]

22 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

23 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)

24 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)

25 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)

26 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!]

27 Being persecuted as an enduring condition of existence in which discrimination engenders (a real risk of) exposure to serious denials of human rights from which the state is unwilling or unable to provide effective protection (?)

28 BREAK

29 ii) Complementary protection

30 Thoughts arising from AC (Tuvalu) 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

31 iii) The risk assessment and standard of proof

32 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 [Article 3 ECHR] [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

33 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]

34 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 Source: PD Dr. Jo rn Birkmann et al, World Risk Report 2011, Bu ndnis Entwicklung Hilft (Alliance Development Works) in cooperation with: United Nations University, Institute for Environment and Human Security, Bonn (UNU-EHS), 2011, page 41, available at

35 iv) Internal relocation alternative

36 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

37 Somalia Famine 2011 Relevant, reasonable internal relocation alternative?

38 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

39 v) Proposals

40 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.

41 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)?

42 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 For full critique see Jane McAdam - Swimming against the tide in IJRL

43 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

44 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

45 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

46 3) What if that fails?

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

48 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

49 Other solutions?