Issues for Legal Protection
of Climate-related Migrants
and Displaced Persons
Michelle Leighton
Center for Law and Global Justice
University of San Francisco
School of Law
Overview
 Human displacement or migration in response to climate
disasters implicate human rights and humanitarian law.
 Standards are uneven or ambiguous depending on the
climate impact--government obligations depend on nature
and type of climate disaster: In some cases standards are
defined and in other cases they do not exist.
 Human rights standards and government obligations
relating to voluntary and forced migration responses will
need to be clarified in order to protect all climate victims.
Basis of states legal obligations
•International law: states owe duties to each other.
• Human rights law: states also owe duties to individuals.
•duty to respect, protect and fulfill human rights.
•special responsibility to protect vulnerable groups
(indigenous peoples, minorities, women, children).
•special duties owed toward refugees.
•Human rights /humanitarian law oblige government’s to:
prevent disasters;
protect victims affected by disaster; and
assist victims in territory and/or refugees.
Climate change and disasters
Is Climate Change a disaster?
Humanitarian norms convey responsibility
on governments to provide relief to disaster
victims in their territory and to help disaster
victims in other states less able to do so.
Tung X. Ngo/IRIN Flood Vietnam
2005 Hyogo Framework for Action

Disaster risk reduction—help countries reduce vulnerability;

Improve strategic coordination of government assistance
Reinforced by the 2006 IASC Operational guidelines on Human Rights
and Natural Disasters, and 2007 Red Cross Guidelines for Domestic
Facilitation and Regulation of International Disaster Relief
Human rights norms on
cooperation and assistance
Covenant on Ecomonic, Social, Cultural Rights:
“ States parties have a joint and individual responsibility, in accordance with
the Charter of the United Nations and relevant resolutions of the United
Nations General Assembly and of the World Health Assembly, to cooperate in
providing disaster relief and humanitarian assistance in times of emergency,
including assistance to refugees and internally displaced persons.”
--Committee Eonomic, Social and Cultural Rights, IESCR treaty body
160 countries ratified; additional 6 signed, including U.S.
 This includes climate disasters—does assistance include
permitting “migration when there is no or few alternatives?”
Human rights in the context of
climate-related migration
Human rights provides for freedom of movement. All rights attach to
the human person and their dignity wherever they reside or move,
including as they cross political borders. Scope of state’s duties change
but include minimum protections for:
–
–
–
–
–
–
–
–
right to be free from discrimination
right to property
right to family and privacy
right to health
right to food, water, and housing
right to culture
right to information and participation in decision-making
right to asylum.
Government obligations toward
climate-related migrants
Are migrants entitled to receive protection,
legal status and/or work when they move
in response to climate disasters?
Does it depend on type of disaster?
1. rapid-onset v. slower-onset;
2. whether state of emergency or public
Zunia.org
order disrupted, requiring regional state protection;
3. receiving country migration laws on disaster victims.
International migrants:
slow-onset disasters
People seek to cope with drought- and
desertification through labor migration.
Refugee norms may apply only if
emergency or environment-related conflict.
1951 Refugee Convention, U.N. resolutions, European Court, InterAmerican Commission cases: principle of nonrefoulement prevents return.
1969 OAU convention on Specific Aspects of Refugee Problems in Africa:
“events seriously disturbing public order.” 1984 Cartagena Declaration on
Refugees (Latin American region): includes similar provision to OAU.
Temporary protection status (only for migrants to Denmark).
-
FUTUE DISASTER:
21 Countries to lose between 30% - 60% of agriculture
Senegal: 52%;
Sudan: 56%
Equatorial Africa: 60%
42% Mexico
45% India
2.3 billion in drylands threatened by mega-droughts.
International migrants:
rapid-onset disasters
 Those migrating from storms, floods,
hurricanes seek temporary refuge.
No return if dangerous and/or
country of origin could not assist.
Shamsuddin Ahmed/IRIN
 The international community has provided assistance, including
allowing for temporary migration.
 Council of Europe and some countries have TPS: applies to
those already in-country and very narrow protection.
International migrants:
sea-level rise
Who will be responsible?
Photo courtesy of SPREP
 Persons living on small island states displaced due to seawater intrusion or forced to migrate permanently.
 May result in “statelessness.
 European Directive on Subsidiary Protection: would convey
temporary status to third party nationals.
Internally displaced
persons
I
“Persons forced or obliged to flee or to leave their homes or places of
habitual residence, as a result of or to avoid effects of…natural or
human-made disasters, and who have not crossed a state border.”
 Guidelines protect the right of internal movement, right to life, dignity
and security of persons displaced.
 Forced relocation only as last resort to protect the health and safety of
those affected . May not be arbitrary / discriminatory, nor harmful to the
needs of indigenous or marginalized groups dependent on their lands.
 Climate adaptation plan include recognition of migration or forced
relocation but do not identify standards that would apply.
Gaps and disparities in protection
 Not all climate disasters addressed equally:
- Rapid-onset disasters receive greater recognition as disaster and
larger assistance than slow-onset. Droughts.
 Not all disaster victims protected equally:
Laws protect some but not all victims forced to migrate depending
on type of disaster and whether receiving country has favorable laws,
rather than the victim’s immediate need.
 Not all countries are accountable equally:
Standards largely voluntary (including for IDPs) and protection of
victims inconsistent; countries in region with treaty have higher
standards than in other regions, e.g. Kampala Convention).
Who is unprotected?
 Persons moving across international borders due
to the sudden-onset of natural climate disasters;
 Persons moving inside or outside their country as a consequence of
slower-onset climatic events, such as long-term, persistent drought;
 Persons moving to international destinations from islands threatened by
sea-level rise, coastal storm surges, or salinization resulting from sea
water moving inland---persons could be rendered stateless;
 Persons moving across borders to seek refuge from designated “highrisk” zones too dangerous for human habitation due to climate danger;
 Persons forced to relocate or resettle under government programs of
adaptation—no binding guidelines apply.
Niger
Filling the normative gaps
 Clarify standards of protection for climate-related migrants.
– Council of Europe parliamentary committee recommended adopting standards for
climate migrants within a migration agreement or protocol to the European Convention
on Human Rights. Some call for a full convention treaty text on the subject.
 Where climate adaptation programs acknowledge migration will occur,
assist governments in managing migration in ways that will enhance the
positive impacts and reduce the adverse impacts of forced displacement.
 At a minimum, provide greater protection for international migrants not
able to return due to climate events, possibly through national migration
management systems.
 Adopt international or regional agreements (similar to Kampala
Convention) that solidify the IDP Guiding Principles to ensure
implementation and increase accountability.
 Facilitate a holistic approach to research and policy development.