EXPOSÉ. CLIMATE CHANGE, HUMAN RIGHTS, STATE RESPONSIBILITY + MIGRATION an international legal analysis

Transcription

1 EXPOSÉ CLIMATE CHANGE, HUMAN RIGHTS, STATE RESPONSIBILITY + MIGRATION an international legal analysis (Working Title) Doktorandin: Mag.ª iur. Katharina Romana Glawischnig Betreuer: o. Univ.-Prof. Dr. Manfred Nowak, LL.M. Studienrichtung: Rechtswissenschaften Studienkennzahl: A Dissertationsgebiet: Völkerrecht 1

2 OUTLINE / TABLE OF CONTENT / QUESTIONS This doctoral thesis is going to set out the links of climate change, migration, human rights and state responsibility. The aim is on the one hand the clarification in which form other states have to carry out prevention measures to avoid environmental migration and on the other hand according to which international legal framework the protection of climate refugees could be legally most likely embodied or is rather plausible. This study is structured into several parts: The first part highlights the problems of climate change, explains it s impact and problems and finally declares the important definitions in this context. The second part introduces the possibility to link a human rights perspective to international environmental law. The third part proposes the possibility of an implementation of climate change in the existing human rights system. The fourth part should settle, if the non compliance or violation of international environmental law by mainly industrialized states leads to state responsibility and furthermore an obligation to development cooperation with states that are more affected by climate change than others. In succession, within the field of migration (part V) the question should be solved, which forms of protection individuals are able to claim drawing on international legal regulations. The conclusion - part six unites and recapitulates examples and solution scenarios. TABLE OF CONTENT INTRODUCTION Part I Problem climate change Chapter 1 Impacts, Problem, Definitions 1. Climate Change and it s impact on the global world order 1.1. Scenario Sea-level rise Flooding and dryness Weatherextrems (monsun, cyclones, ec.) Other Impacts e.g. extinction of species 1.2. Prognoses 2. Human rights dimensions of climate change 2.1. Right to life and health 2.2. Right to food 2.3. Right to water 2.4. Right to housing 2.5. Right to a healthy environment 2.6. Right to security 2.7. Right to development 2.8. Right to self-determination 2.9. Right of special disadvantaged groups 2

3 Indigenous people Women and children Extreme poverty 3. Climate change and migration 3.1. Already existing problems 3.2. Definitions Refugee, displaced person, migrant Environmental refugee vs. environmental displacee Climate refugee Economic migrant 3.3. Statelessness 4. Climate change, peace and security 4.1. Threats according to chapter VII UN Charta Part II Possibilities of Prevention Measures in the Field of International Environmental Law Chapter 2 Inclusion of human rights in international environmental law 1. International environmental regime 1.1. Rio Declaration basic principles Prevention Precaution Polluter-pays principle Common but differentiated responsibilities 1.2. UNFCCC 1.3. Kyoto Protocol 2. Other international law regulations: existing arrangements and approaches to prevent, minimize and/or restoration of climate 2.1. Incorporation into existing mechanisms 3. Possibility of a new mechanism 3.1. Committee 3.2. Expert group Part III Possibilities of Prevention Measures in the Field of Human Rights Chapter 3 Inclusion of climate change in the human rights treaty body system 1. International human rights system - United Nations 1.1. Concluding observations, state reports, general comments, statements 1.2. Special procedure Thematic mandate New mandate for climate change or environment Inclusion in existing mandates 1.3. Forum on minority issues 1.4. Social forum 1.5. Other mechanisms 2. Regional human rights systems 2.1. Council of Europe 2.2. Organization of American States 2.3. African Union 2.4. League of Arab States 3

4 2.5. OSCE 2.6. European Union Part IV Possibilities in the Field of State Responsibility Chapter 4 State responsibility 1. International legal obligations 1.1. Erga-omnes obligations 2. International legal liability and responsibility 3. Establishment of state responsibility 3.1. ILC - Draft Articles on Responsibility of States for Internationally Wrongful Acts 3.2. GA recommendations 3.3. GA 65th session 2010 (?) 4. The emergence of state responsibility 4.1. Action 4.2. Omission 4.3. Non state actors 5. State responsibility taking effect 5.1. Detriment, liability, attribution of a conduct 6. Consequences of state responsibility 6.1. Termination of condition 6.2. Non-repetition 6.3. Compensation 6.4. Other obligations/liability 7. Claim of state responsibility 8. Sanctions for the violation of international legal obligations Chapter 5 International environmental law 1. State responsibility for climate change 2. The role of non-state actors 3. Consequences for climate change-responsible states 3.1. Restoration 3.2. Assistance 3.3. Compensation 3.4. Adaption measures 3.5. Burden-sharing Different guilt - different burden? Chapter 6 Development 1. Right to development (see also chapter 1) 1.1. Sustainability 2. International Convenant on Economic Social and Cultural Rights 3. Transnational obligations in the field of ESCR and development aid/cooperation 3.1. Obligation to international cooperation 3.2. Obligation to international crises management 3.3. Obligation to adaption measures 4

5 3.4. Other obligations 4. State responsibility for the omission of development cooperation 5. Consequences/effects Chapter 7 s of Chapter State responsibility of climate flight -causing states Part V Rights of Individual Affected Persons Chapter 8 Rights or claims against one s own state 1. State-citizen relationship 2. Obligations of the state toward citizens/inhabitants 2.1. Obligations toward internally displaced persons Chapter 9 Protection in the field of refugee law 1. Rights against other states 2. Refugee law 2.1. Geneva Refugee Convention 2.2. Bangkok principles 2.3. African Refugee Convention 2.4. Cartagena Declaration 2.5. Non-refoulement and island sinking 3. Other Protection measures/rights 3.1. Subsidiary protection Safe third countries 3.2. Quota system 3.3. Other forms of protection Part VI Examples and Preview Chapter 10 Examples and Cases 1. Already existing climate change impacts 2. Climate sinner 3. (Future) problem children 4. Existing (other) attempts at a solution Chapter 11 Preview and Comments / explanations of the table of contents resp. the separate chapters Chapter 1 highlights the implications of climate change in general. After a first meteorological explanation the human rights dimension is pointed out and the different common definitions from environment migration to climate refugee are illustrated. The term economic refugee is also sketched, due to a possible relevance for a following separation of protection measures of different migrants (chapter 8+9). The chapter finishes with considerations about peace and security according to climate change and migration. 5

6 Chapter 2 describes the international environmental law and proposes an implementation of human rights into this system. On the one hand there is the possibility of an embodiment in existing institutions (e.g. Subsidiary Body for Scientific and Technical Advice or the Subsidiary Body for Implementation) or the implementation in future treaties, and on the other hand there is a special mechanism, like a committee or an expert group that could be established. Chapter 3 discusses the possibility of an inclusion of climate change into the human rights system. Climate change can and is sometimes already incorporated in different treaties and United Nations mechanisms, and can as well find its way into the regional human rights systems. The establishment of an own thematic mandate should also be taken into consideration. The content of chapter 4 is state responsibility. After describing the beginning and the significance of this area, the conditions of responsibility / liability and their consequences are outlined. The particular notion of responsibility for climate change damages and/or insufficient development cooperation is dealt with in the according chapters (3+4). Chapter 5 addresses the legal consequences of the violation of international environmental law. In this context the principles polluter-pays and common but different responsibilities get a detailed look, to solve, if a different rate of liability or varying heights of emissions may/should cause different obligations. Chapter 6 concerns the development cooperation and addresses the following questions: Which obligations exist? What are the consequences of such a violation? And what are the legitimate claims of the disadvantaged state? Chapter 7 concentrates on considerations such as: What is the responsibility of climate flight-responsible parties and examines the chapters 4-6 together. In this context the chain of ideas is ascertained: climate change responsibility obligation to development cooperation eventually responsibility for omission; and if there could be an appropriate method for a responsibility toward affected states and finally toward their inhabitants (also chapter 8+9). The legal difference between climate- and economic refugee is also part of this chapter. Chapter 8 and 9 take a closer look on the concrete affected population and discuss what an individual can claim against his/her state of citizenship and what legal action can be pursued against other states respectively the community of states. With regard to the country of origin there are for example questions like: What demands can be brought by internal refugees? (Eventually) Is there a possibility to trigger acts of the country of origin on an international-political platform/level? (E.g.: Negotiations and/or signing of a treaty to ensure the safety of the inhabitants even under another climatic situation). Among possible claims against other states possibilities like the interpretation of the (Geneva) Refugee Convention(s) and quota systems for a residence permission/ naturalisation within other states are discussed and/or in case of an uninhabitability: How would adequate protection be administered in another state? (Minority, selfdetermination, statelessness). Chapter 10 and 11 introduce examples, cases and a preview. The final chapter will draw possible solutions from the study. 6

7 RESOURCES / METHODOLOGY / CURRENT STATE OF RESEARCH Legal Documents of the United Nations and other international organisations, the library of Vienna University and the internet will serve as main resources. Additional resources are not required. Starting with the analysis of the important legal documents, I will take literature and expert opinions into account. Since the legal frameworks of all parts, except of the first one, are expected to change depending on the unknown real impact of climate change, I will have a close look on the different future international legal negotiations in this area during my writing. The current state of research is the effect of climate change on the human rights situation and of the status of climate refugees. There also exist studies on state responsibility in connection with climate change. RESEARCH PLAN November 2009 January 2010 courses of the introduction phase and first research February 2010 May 2010 presentation of the outline to Prof. Nowak and discussion of the dissertation plan and attendance of courses in relation to the subject June 2010 conclusion of the dissertation agreement July 2010 approving of the dissertation plan August 2010 September 2010 drafting of Part I October 2010 November 2010 drafting of Part II, further lectures December 2011 January 2011 drafting of Part III, further lectures February 2011 July 2011 drafting of Part IV August 2011 November 2011 drafting of Part V December 2011 February 2012 drafting of Part VI March 2012 June 2012 revision of drafted parts, taking into account of new developments and last improvements End of June 2012 expected finalization BIBLIOGRAPHY Ammer, Margit (2009): Climate change and Human Rights: The Status of Climate Refugees in Europe. Swiss Initiative to Commemorate the 60th Anniversary of the UDHR - Protecting Dignity: An Agenda for Human Rights. Publ.: Auprich, Andreas (2000): Das Recht auf Entwicklung als kollektives Menschenrecht. Frankfurt am Main; Wien [et al.]: Lang. Betts, Alexander (2009): Forced migration and global politics. Oxford [et al.]: Wiley- Blackwell. Biermann, Frank; Boas, Ingrid (2007): Preparing for a Warmer World Towards a Global Governance System to Protect Climate Refugees. Working Paper No. 33. Publ.: overnance_nov2007.pdf Birnie, Patricia; Boyle, Alan; Redgwell, Catherine (2009): International law and the environment, 3. ed. Oxford: Oxford University Press. 7

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