Blog post by Jittawadee Chotinukul, a PhD candidate in international law at the Graduate Institute of International and Development Studies, Geneva. She was a research assistant at the Global Migration Centre (GMC). Prior to academia, Jittawadee worked with the United Nations High Commissioner for Refugees (UNHCR) and served in various capacities with a Geneva-based human rights NGO, an independent think tank, and different law firms in Southeast Asia. She is a qualified lawyer and a notarial services attorney.
The lives of cross-border displaced persons due to the adverse impacts of climate change have long been in legal limbo. They are unable to enjoy international protection under the existing relevant international normative frameworks, namely international environmental or climate change regime, international refugee law, and international human rights law. When the two Global Compacts, i.e. the Global Compact on Refugees (GCR) and the Global Compact for Safe, Orderly and Regular Migration (GCM) were adopted in 2018, albeit non-legally binding, they appear as a ray of hope to fill the legal and protection lacunae for this group of vulnerable individuals.
Against this background, this article seeks to examine and analyse in detail whether and to what extent such soft law instruments can play a normative complementary role in providing international protection for cross-border climate change-induced displaced persons.
The Relevance of the Global Compact on Refugees to Climate Change-Related Displacement
Considering its text, it can be seen that the Refugee Compact takes a cautious approach to forced migration linked to climate change. While acknowledging the increasing interaction between climate, environmental degradation, and natural disasters and the root causes of refugee movements, the GCR does not recognise these as a cause of migration in themselves (paragraph 8).
With regards to protection in the context of climate change-related displacement, despite being suggested that paragraph 63 is to be read in conjunction with paragraph 61 to avert protection gaps for climate displaced persons, the text remains problematic. It leaves discretion to states under state law, and the assistance measures provided under the instrument are vague and meagre. No concrete protection measure is offered more than guidance on ‘measures to assist those forcibly displaced by natural disasters, taking into account national laws and regional instruments as applicable, as well as practices such as temporary protection and humanitarian stay arrangements, where appropriate’ (paragraph 63). It is further observed that the term ‘climate’ appeared in paragraph 8 (prevention and addressing root causes) is absent from paragraph 63 (protection measures).
In view of the above, the language of the GCR conspicuously reflects states’ reluctance to deal with climate displaced persons in the context of the refugee regime. Rather, states prefer to keep the GCR limited to Convention refugees.
The Global Compact for Migration: Relevant Objectives and a Critical Analysis
In contrast to its counterpart, the Global Compact for Migration is more willing to embrace climate displaced persons. The first reference to climate change appears in the Preamble, where it affirms that the GCM rests on, inter alia, the UNFCCC, the Paris Agreement, and the Sendai Framework for Disaster Risk Reduction (paragraph 2). This is significant, since it not only emphasises the nexus between migration and climate change, but also implies that to address the issue, multi-sectoral approach is needed. Moreover, it is interesting to note that, unlike other core international human rights treaties, namely CAT, CEDAW, CRC, and International Convention on the Protection of the Rights of All Migrant Workers and Members of their Families, which are mentioned only in a footnote, the climate change instruments are evidently included in paragraph 2 of the document.
Among twenty-three objectives, the three following objectives, i.e. Objectives 2, 5 and 21 are particularly pertinent to climate change-related displacement.
1) Objective 2: Minimise the adverse drivers and structural factors that compel people to leave their country of origin
Contrary to the GCR, Objective 2 of the GCM on minimising the adverse drivers and structural factors that compel people to leave their country of origin explicitly recognises climate change as an important driver of migration. Under Objective 2, states commit to create conditions that allow people to live their lives in their own country and to fulfil their personal aspirations, and to ensure that ‘desperation and deteriorating environments do not compel them to seek a livelihood elsewhere through irregular migration’ (paragraph 18).
To achieve the commitment, the implementing actions are elaborated in paragraph 18 (a)-(l). The implementing actions (a)-(g) aim at reducing drivers of migration and are considered more general actions. This includes, among others, to promote the implementation of the 2030 Agenda for Sustainable Development as well as the Paris Agreement (paragraph 18 (a)); to invest in programmes that accelerate states’ fulfilment of the Sustainable Development Goals with the aim of eliminating the adverse drivers and structural factors that compel people to leave their country of origin, including through climate change mitigation and adaptation (paragraph 18 (b)); and to establish or strengthen mechanisms to monitor and anticipate the risks that may trigger migration movements, and to reinforce early warning systems (paragraph 18 (c)).
It is noteworthy that the specific implementing actions related to climate change (paragraph 18 (h)-(l)) are laid down under the separate and only thematic subheading of the whole GCM: ‘Natural disasters, the adverse effects of climate change, and environmental degradation’. This is remarkable, as it further highlights the significance of climate displacement issue in the eyes of the international community. The implementing actions deal with prevention of and preparedness for displacement. This includes: sharing information on migration movements that may result from sudden-onset and slow-onset natural disasters and the adverse effects of climate change, while ensuring the protection of the human rights of all migrants (paragraph 18 (h)), such as the right to privacy; and developing adaptation and resilience strategies to the adverse effects of climate change (paragraph 18 (i)). Vulnerabilities of persons affected by sudden-onset and slow-onset natural disasters are acknowledged in paragraph 18 (k), whereby approaches and mechanisms to address such vulnerabilities are to be harmonised and developed, and humanitarian assistance is to be provided.
2) Objective 5: Enhance availability and flexibility of pathways for regular migration
Whereas the aim of Objective 2 is to minimise drivers of migration, Objective 5 discusses about entitlements and protection of migrants. It seeks to enhance regular pathways for migration, including forced migration due to natural disasters and climate change. This is reflected in the text of paragraph 21, which proclaims that states commit to adapt options and pathways for regular migration in a manner that ‘responds to the needs of migrants in a situation of vulnerability’.
Two implementing actions are specifically dedicated to migrants compelled to leave their countries of origin due to natural disasters and the adverse effects of climate change (paragraph 21 (g) and (h)). Examining the text of (g) and (h), the following observations are to be shared and discussed.
First, the GCM opts for a descriptive term when referring to those displaced due to climate change or natural disasters. This is to circumvent debates over definition of ‘environmental migrants’ or ‘climate refugees’.
Second, considering the grounds of flight, two remarks are noted. Firstly, unlike the previous drafts of the GCM (paragraph 19 (f), GCM Zero Draft; paragraph 20 (f), GCM Draft Rev 1) which combine the grounds of sudden-onset and slow-onset natural disasters into one paragraph, the final outcome of the GCM divides these grounds into two separate paragraphs with distinct levels of implementing actions. Secondly, the final GCM explicitly adds ‘the adverse effects of climate change’ in paragraph 21 (h) as a ground on its own. This once more underlines the importance of climate change as a driver of migration, and also signifies that the GCM categorises the climate change effects in the same cluster as slow-onset natural disasters and environmental degradation. Such categorisation cannot be underestimated, for it results in different expected responses and degrees of protection from the affirming states.
Third, as mentioned, the required responses to and protection for forced migrants who fall within the ambit of paragraph 21 (g) and (h) are not the same. As for migrants compelled to leave their countries of origin due to the grounds stipulated in (h), including climate displaced persons, the provision appears to establish bolder protection and impose stronger commitments on states. The level of protection in paragraph 21 (h) goes beyond the notion of temporary protection (as in paragraph 21 (g)), i.e. states are to cooperate to identify, develop and strengthen solutions, which include devising planned relocation and visa options. This is a noteworthy implication as it opens the door for, inter alia, local integration in a host state and resettlement in a third country – the same durable solutions enjoyed by refugees.
Fourth and last, the wording in paragraph 21 (h) ‘where adaptation in or return to their country of origin is not possible’ also bears significant inference. The fact that the final GCM adds the term ‘adaptation’ in the paragraph brings a positive aspect for climate migrants. It means that the prospective protection covers not only in the case where return is not possible (such as sinking or uninhabitable island scenarios), but crucially also where adaptation in their country of origin is impossible. The impossibility of adaptation may include a lack of access to basic healthcare, housing, or means of subsistence. Such a slight added word indeed broadens the scope of protection for this group of migrants.
3) Objective 21: Cooperate in facilitating safe and dignified return and readmission, as well as sustainable reintegration
Objective 21 paragraph 37 implicitly recognises the principle of non-refoulement. It provides that states commit to facilitate and cooperate for safe and dignified return by ‘upholding the prohibition of collective expulsion and of returning migrants when there is a real and foreseeable risk of death, torture, and other cruel, inhuman, and degrading treatment or punishment, or other irreparable harm’.
As the law currently stands, the adverse effects of climate change may not satisfy the high threshold for ‘torture, and other cruel, inhuman, and degrading treatment or punishment’ under international human rights law. To this extent, ‘other irreparable harm’ in paragraph 37 is of a tremendous added-value for climate displaced persons. It arguably covers situations such as return to low-lying island states that have become uninhabitable due to sea-level rise as well as other serious climate change impacts.
To realise this Objective, the implementing actions are elaborated in (a)-(i), which include: to promote gender-responsive and child-sensitive return and reintegration programmes (paragraph 37 (b)); to respect the best interests of the child and take into account the right to family life and family unity in return processes (paragraph 37 (g)); to ensure procedural guarantees, such as individual assessment (paragraph 37 (e)); and to facilitate the sustainable reintegration of returning migrants by providing them equal access to social protection and services (paragraph 37 (h)).
Future Directions and Conclusion
While the GCR appears regrettably reluctant to provide international sanctuary for people on the move due to the adverse effects of climate change, the GCM has the potential to play a pivotal role in averting protection gap for these vulnerable individuals. Notwithstanding its soft law nature, the GCM was adopted by the majority of the UN Member States, including those not parties to the Refugee Convention, suggesting its potentially broad implementation. It is the first migration-focused multilateral instrument that formally acknowledges the correlation between human migration and climate change, establishes the international cooperation, and offers the protection framework for climate displaced persons.
Notably through Objectives 2, 5 and 21 accompanied by concrete implementing actions, the language of the GCM evidently paves the way for international protection regime for climate change-induced displaced persons. The success of such soft law instrument, by all means, depends on a political will of states, participation and cooperation of all relevant stakeholders at local, national, regional and global levels, as well as the effectiveness of the follow-up and review mechanisms established under the instrument.
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This post was originally published on Refugee Law Initiative Blog.