Brownbag lunch with the Geneva Environment Network (GEN), at the
United Nations Environment Programme
URG, GEN, UNEP, OHCHR, CVF, UNHCR, IOM, Nansen Initiative
Climate change, cross-border displacement and human rights: is there a
protection gap and will COP21 help close it?
26th October 2015
Prospects for COP21 and cross-border
shortcomings, and expectations
displacement:
progress,
According to John Knox, UN Special Rapporteur on human rights and the
environment, progress has so far been counterbalanced by downsides. First,
although it is certain that commitment will be affirmed and an international
agreement will be reached, such agreement will not be binding. Second, while an
increasing number of developing states submitted their Intended Nationally
Determined Contributions (INDCs) and those of developed countries have
tended to be more significant, the sum of these contributions is not enough to
meet a 2-degrees-goal.1 Third, in spite of undoubted progress in the draft
agreement, the amount of text in square brackets, including on crucial points
such as finance, shows the persistence of great disagreement.2 According to the
OECD report,3 policy-makers must make decisions in spite of uncertainties on
what is happening on the ground and what should the agreement include. In fact,
many issues were left untouched and not discussed by Kyoto, which was ratified
with great difficulties by countries. Fourth, rejections of the draft presented in
October suggest that some countries will persist in opposing the agreement.
Finally, Paris may manage to set down human rights in the text, but the issue of
implementation will remain a potential problem. Loss and compensation
language has been left out of many first drafts of the text and the language of
article 5, which include a provision on displacement, is clearly an initial
formulation. These are clear signs of disagreement that should lead us not to be
overly optimistic on what is going to happen in Paris.
Furthermore, as highlighted by Matthews McKinnon, UNDP specialist on climate
vulnerability, in spite of its high potential impact and importance for human
rights, we should not expect from the Paris meeting an answer to a legal
question.
Remarks on human rights language in the Paris agreement: why is it
important and what message should it include on displacement?
Both panellists and audience agreed on the importance of including human
rights in the text. The agreement is going to guide innumerable important
decisions in key issues such as finance and the lack of a human rights perspective
would mean that decisions will not be made by taking into account people's
rights. For this reason, it is important to remember that the COP is an initial step,
preceding further decisions and action, which will undoubtedly leave an
implementation gap.
The latest draft of the agreement includes some good enough language regarding
human rights, but it does it in a verbose and incomprehensible way that
threatens the text's readability and capacity of survival, said the SR on human
rights and the environment.4
To a more pessimistic view focusing on what is missing in the text, a different
take came from some other speaker and people from the audience, who argued
that the recognition of human rights in official environmental texts has
significantly progressed. In order to strengthen this advance, negotiators need to
be increasingly aware of language's capacity to provide an anchor for following
action across other building blocks of the agreement. Therefore, human rights
experts should build on the present achievements by keeping in touch with Paris
negotiators, asking them questions and raising the issue of displacement.
Nevertheless, obsession with specific words should also be avoided.
Dina Ionesco, head of IOM's division for Migration, Environment and Climate
Change highlighted that, beyond anchoring specific language on migration and
displacement to the climate text, other elements need to be explicitly brought in,
in other to convey a positive message on people's movement, which is usually
affected by problems of visibility in the media and in the political sphere. Climate
mitigation needs to go hand in hand with an adaptation approach, thus pointing
out that environmental migration is a humanitarian challenge that requires a
political recognition as well as the recognition of the human rights of migrants.
In addition to being people who lost what they had, empowered migrants can be
beneficial participants in climate action.5 This was not clearly recognised in
COP21 drafts, where migration has been frequently inserted and cancelled.
INDCs also showed the importance and political implications of migration:
around 80 (mainly vulnerable) countries mentioned it, while others seemed to
recognise it but did not address it explicitly.
Clarifications on the protection gap: (1) projections and consequences on
the relation between climate change, displacement and human rights, (2)
current available human rights instruments
(1) Climate change is expected to lead to severe extreme weather events, more
frequent climate disaster and sea level rise that will have an impact on migration,
as demonstrated by the case of Maldives. People can move before conditions
deteriorate, they can be displaced by sudden disasters such as cyclones or by
slower onset-processes; they might be relocated for security reasons. Even
figures from just one of these factors show how profound the impact of climate
change can be: during the period 2008-2012 they caused the displacement of
144 million people.6 Disasters displace more people than any other factor and it
is external displacement that poses the greatest challenges to human rights.
It is precisely because of such a significant impact of climate change on people's
displacement that McKinnon highlighted the value of setting a 1.5, rather than 2,
degrees target in Paris. According to him, 1.5 degrees is still a visible objective,
which would make a difference for human rights.
(2) In McAdams and Limon's URG report, McAdams analyses the existing
protecting framework and its capacity to meet current and future challenges. 7
Refugee law presents several problems of application to climate-related
displacement, whereas complementary protection arduously applies because of
both the restricted meaning of “inhuman and degrading treatment” and
“imminence” requirements. Similarly, poorly ratified treaties and a narrow
definition of “stateless” person this category mostly irrelevant to climate change
displacement. Finally, the majority of other covenants and soft law instruments
mainly refers to internal displacement. Since 2006, the international community
and the Human Rights Council recognised this as a huge and complicated issue,
but is seemed to be so huge and complicated that response ended with
manifestations of concern.
Role of the International community: regional solutions and thematic
agendas. Available means to bridge the protection gap.
Ionesco emphasised how migration, climate and human rights are sensitive and
crosscutting issues, whose simultaneous discussion at the international level is,
in spite of remarkable progress, still difficult. Various geographic and thematic
perspectives could, should and are taken and this is crucial in determining the
means available to the international community. We are, in fact, far from having
an international regime on migration. The necessity of a broad view on human
rights and environment was also stressed by Barbara Ruis, Legal Officer at
UNEP's Division of Environmental Law and Conventions who criticised narrow
and fragmentary approaches sometimes adopted by environmental lawyers.
Regional solutions. Climate change is just one of the many factors leading to
migration and migrants are not a legal category. This makes it difficult to tackle
the issue at the legal level. Looking at routes of migration suggests that solutions
are more likely to be found by setting a regional agenda. After disasters, some
people migrate to places nearby, whereas others take traditional migratory
routes that are already available. However, States want to keep their
prerogatives on migration, which is now on the top of political visibility, and they
leave climate change causes widely unrecognised. Significantly, climate entered
for the first time the agenda of regional (State-led) consultative processes on
migration in 2013 (Cairo).
Hannah Entwisle Chapuisat of the Nansen Initiative supported Ionesco's point on
different responses tailored to the context. “Solutions may vary” she said
“because different problems require different actions”.
Thematic agendas. In order to identify international instruments applicable to
the protection gap, a narrow view on environment and human rights is not
beneficial. On the contrary, a broad spectrum of instruments has to be
considered, including bilateral and multilateral agreements, labour migration
agreements, natural conservation agreements, agreements on indigenous rights,
etc. - all of which tackle the issue of displacement from different perspectives.
From the migration side, IOM has been treating environmental issues in line with
the international agenda: every year since 2007, states have asked to talk about
migration and climate change; in 2011, 80 countries gathered together for this
reason; and, in 2014, the Council of IOM approved a specific new division
consecrated to this topic. As for the climate negotiation side, not until 2010 were
adaptation, displacement and climate relocation considered. The Doha meeting
and the following discussions then marked an increasing awareness.
Nevertheless, climate-related displacement is also part of the humanitarian
agenda, involving the UN cluster system for disasters, the UNFCCC, the UNHCR
(for national disasters), and the IOM who has the lead. By requiring work at the
evacuation level, is is also a topic for the protection cluster. Finally, it is an issue
of non-fulfilment, of development and part of the disaster risk-reduction agenda.
It is a difficult topic that agencies have been passing one to the other.
Environmental displacement also comes as a question for the human rights
agenda, whose approach can be crucial because it (1) deals with the
responsibility of states, (2) identifies particular phases, (3) looks at human needs
and assesses them, and (4) because human rights have the adequate tools to
address migration's mixed factors.
Is the international community doing enough? Current and future
initiatives.
IOM works with an advisory group that includes EU, ILO, other UN groups and
various NGOs in order to deliver a balanced message on migration: not to fear it,
not to ignore it. Their work aims at showing how migration brings much less loss
and damage if planned and managed. Furthermore, the Organisation is holding,
together with UNHCHR, a round table on this issue, which will include various
UN organisms, and it will publish an Atlas of Environmental Migration. Finally,
an exhibition will be held in Paris at the Cité Nationale de l'Histoire de
l'Immigration.8
McKinnon outlined the work of the Climate Vulnerable Forum (CVF),9 a global
project helping countries to articulate their needs and communicate problems
and good practices. The Human Rights Council was also described as the
preferred context for vulnerable countries to intensify their efforts to become
more coordinated and able to close the protection gap. Within the Council,
Maldives, Bangladesh and the Philippines stand out for their activity. Finally,
during the pre-COP21 high-level meeting in Manila, vulnerable countries will
have the opportunity to express their concerns, since some countries are still
negotiating.
Entwisle Chapuisat presented the work of the Nansen Initiative10, which was
launched in 2012 by Switzerland and Norway and consists of a state-led
consultative process to build consensus on a Protection Agenda addressing the
needs of people displaced across borders in the context of disasters and climate
change. After holding regional and global consultations (12-13 October 2015)
the Initiative drafted the Agenda with three objectives: setting up current and
future realities, identifying tools for cross-border displacement, developing
strategies for adaptation and management before displacement happens. Their
work also informed the UNFCCC process and the CVF submission. Finally, they
are hosting a side-event in Paris, on 2 December 2015, to keep the attention on
the issue of human mobility.11
Ellen Hansen, UNHCHR, mentioned three main initiatives from her organisation:
its involvement in the work of the Nansen initiative; together with Brookings
Institution and Georgetown University’s Institute for the Study of International
Migration (ISIM), carrying out consultations and providing guidance on planned
relocation as an adaptation strategy;12 and participating in the Advisory group
on Climate Change and Human mobility to ensure that human mobility is taken
into the Paris agreement.
Additional points made by speakers and the audience

What role for the private sector in human rights protection?
It was reminded that Paris is a starting point, leaving scope for decisions
on implementation.

Policy coherence. Dante Pesce pointed out that it is essential for
governments to be able to locate in their structure who is in charge
of implementation.
True, but Paris will be a high-level political bind, which will require
higher commitment to countries, including accountability and
transparency. In this regard, national level report mechanisms and the
model of the UPR review offer important and concrete lessons.
1Number and texts of pledges submitted is available here: UNFCC.
2The latest draft (October 2015) can be downloaded
http://unfccc.int/resource/docs/2015/adp2/eng/8infnot.pdf
here:
3OECD report available here (See in particular p.19 and related chapters):
http://www.keepeek.com/Digital-Asset-Management/oecd/environment/oecdenvironmental-outlook-to-2050/executive-summary_env_outlook-2012-3en#page3
4Particular reference was made to pp. 6, on gender equality and the rights of
indigenous peoples.
5See also second-to-last section on initiatives to address climate migration.
6Data from McAdam and Limon's URG report on Human rights, climate change
and cross-border displacement, downloadable here: http://www.universalrights.org/urg-policy-reports/human-rights-climate-change-and-cross-borderdisplacement-the-role-of-the-international-human-rights-community-incontributing-to-effective-and-just-solutions/
7Ibid., pp.15-18.
8http://www.histoire-immigration.fr/
9http://www.thecvf.org
10http://www.thecvf.org
11More on the event “Prepare and Adapt: Climate Change and Human Mobility in
Paris
and
Beyond”:
https://seors.unfccc.int/seors/reports/events_list.html?session_id=COP21
12About which you can read here: http://www.unhcr.org/54082cc69.pdf