Climate Change, Natural Disasters, and Internal Displacement

Madame Chairperson of the Committee on Migration, Refugees and Population, Distinguished Members of the Committee,

I welcome and encourage the Committee’s initiative to take up the cause of persons who are compelled to move as a consequence of natural disasters and other environmental events. Particularly in the context of climate change, such movements of persons will be among the major challenges facing countries in the decades to come.

These concerns are well reflected in resolution 1655 (2009) “Environmentally induced migration and displacement: a 21^st-century challenge” adopted by the parliamentary assembly of the Council of Europe on 30 January 2009.

An estimated 50 to 200 million people may move by the middle of the century as a result of the negative effects of climate change, either within their countries or across borders, on a permanent or temporary basis. Some of these movements are voluntary, e.g. triggered by the prospect of finding a better life in areas not affected by natural disasters and environmental degradation and can be considered as “migration” and to be part of an adaptation strategy. Arguably some of the movements have an element of coercion, including threats to life, or health, property and livelihoods. These movements are forced and commonly referred to as “displacement”.

The specific needs and vulnerabilities of those moving voluntarily and those who were forcibly displaced are different and so is the normative framework for their protection. This implies a differentiated approach, which allows humanitarians and development actors to build on existing laws and response mechanisms and thereby strengthening the existing international system to better address specific needs of those affected by natural disasters and the impacts of climate change.[1]

An all encompassing working definition of environmental migrant covering all types of movement, as proposed in resolution 1655 (2009), paragraph 24.1 might not reflect the complexities of the problem for such practical purposes, and in the current discussions on how to best address the challenge posed by global warming, it may weaken established categories of persons and existing normative framework.

The majority of those displaced by a natural disaster or the effects of climate change will remain within the border of their country of origin. However, some displacement is likely to take place across internationally recognized State borders.

Persons displaced within their country due to sudden-onset disasters or environmental degradation are internally displaced person[2]. The normative framework for their protection are the Guiding Principles on Internal Displacement (Guiding Principles) which outline their specific rights inherent in and derived from international human rights and humanitarian laws. Moreover, the Guiding Principles have been recognized by the international community, including the Council of Europe[3], as an important international framework for the protection of IDPs that is applicable to any type of internal displacement regardless of its cause.

I urge the Council of Europe and your Committee in particular to call on Member States to recognize that the persons forcibly displaced by the effects of climate change within their countries are IDPs and that their rights are covered by the Guiding Principles on Internal Displacement. Member States should use the Guiding Principles as underlying principles in their emergency response and in the recovery planning.

Unlike the situation of internal displacement, there is a major legal gap for those who are forcibly displaced across an international border by a sudden onset disaster and the effects of climate change. They are unlikely to qualify as refugees, unless the government has consciously withheld or obstructed assistance in order to punish or marginalize them on one of the five grounds specified in the 1951 Convention related to the Status of Refugees. Consequently, they are not eligible for protection under existing refugee law as environmental factors causing movements across international borders are not grounds, in and of themselves, for granting refugee status under the 1951 Refugee Convention. This is why the terms “environmental refugee” and “climate refugee” have no legal basis in international refugee law and are to be avoided.[4]

Nonetheless, cross-border displacement due to natural disasters and the effects of climate change raises specific issues of responsibility for both the State of origin and host States. Both the legal status and the rights of these persons are unclear. In particular where the displaced cannot reasonably be expected to return because the State of origin is not in a position to grant protection on its territory from high and persistent risks for life or security, receiving States might have a crucial role to support the State of nationality in granting subsidiary protection to those displaced.

The fundamental principle of non-refoulement, which finds expression in a large number of human rights instruments and international customary law, establishes that no person, regardless of status or conduct, may be returned in any manner whatsoever to a country where his or her life or integrity would be at risk.[5] Arguably, where return is impossible or cannot be reasonably be required from the individual, an obligation of the foreign State also exists to at least temporarily admit a person to remain. What the principle of non-refoulement lacks, however, is to provide more practical indication as to how to regulate the entry and the specific status of the displaced in the receiving country.

I therefore welcome that the Council of Europe in its resolution 1655 (2009) makes a call for subsidiary protection to those displaced across an internal border, either temporarily or permanently if return is impossible and I fully support the development of best practices or models based on the Finnish and Swedish legislation and on case law. I would also encourage this Committee to look at the US Temporary Protected Status when developing best practice. [6]

Conclusions

Let me conclude with some observations:

• There is a growing recognition of the humanitarian consequences of climate change. I’m encouraged that this notion was introduced to the current draft of the UNFCCC at the recent climate change talks in Bonn.
• While recognition is important, the challenge lies in developing consistent answers to the following questions: how can displacement due to the negative effects of climate change of be prevented through mitigation, adaptation and disaster risk reduction measures? How can the capacities of the international community be strengthened to assist and protect those who are displaced by the negative effects of climate change and to find durable solutions for them? And, finally, how can the legal gaps be covered for those affected by climate change, namely those who are forced to cross an international border due to a natural disaster and the effects of climate change?
• The Council of Europe and this Committee in particular play a pioneering role in developing answers to these questions. Many of this issues are raised in the resolution 1655 (2009) and I encourage you to press for its implementation. In doing so, the Committee should build on existing normative frameworks and categories of affected populations.
• I also encourage you to press your Governments to support these issues in the ongoing UNFCCC negotiations. The new Convention will be the cornerstone document for any major initiative related to climate change in the years to come. It is therefore of utmost importance that the humanitarian consequences of climate change, including that of migration and displacement, are integrated in this document.

Thank you for your attention.

[1] For a further discussion of terminology issues please refer to “Change, Migration and Displacement: Who will be affected?” Working paper submitted by the informal group on Migration/Displacement and Climate Change of the IASC – 31 October 2008 to the UNFCCC Secretariat.

[2] Guiding Principles on Internal Displacement, United Nations Publication E/CN.4/1998/53/Add.2, 1998: “[…], internally displaced persons are persons or groups of persons who have been forced or obliged to flee or to leave their homes or places of habitual residence, in particular as a result of or in order to avoid the effects of armed conflict, situations of generalized violence, violations of human rights or natural or human –made disasters, and who have not crossed an internationally recognized State boarder.”

[3] With regard to internal displacement, Council of Ministers Rec (2006)6 states. “Recommends that governments of member states be guided, when formulating their internal legislation and practice, and when faced with internal displacement, by the following principles:

1. The United Nations guiding principles and other relevant international instruments of human rights or humanitarian law apply to all internally displaced persons, including persons displaced from their homes or places of habitual residence due to natural or man-made disasters”.

[4] “Change, Migration and Displacement: Who will be affected?”, 31 October 2008

[5] “Forced Displacement in the context of Climate change” by UNHCR in cooperation with RSG on HR of IDPs and UNU of 19 May 2009 to the UNFCCC Secretariat

[6] For example, in 1990, the U.S. Temporary Protected Status (TPS) mechanism was enacted for those who do not meet the legal definition of refugee, but are nonetheless reluctant to return to potentially dangerous situations. Tens of thousands of Hondurans and Nicaraguans benefited from TPS in the aftermath of Hurricane Mitch in 1998. Finland would be a European example to be cited here, a country that extends complementary protection to foreign nationals who cannot return safely to their home country because of an environmental disaster. Similarly, the Swedish Aliens Act also grants protection to individuals who “are unable to return to the country of origin because of an environmental disaster” if there be no alternative of relocation to a safe area within the home state.