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Climate Change and Human Mobility

Climate Change and Human Mobility

Presented in class at Universitat Bern in Fall 2022. An overview of the relevant international and regional law regimes concerning climate migration. By Nisheet Dabadge, Georgetown University Law Center student (graduating 2023).

Nisheet Dabadge

May 08, 2023
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  1. International Law, the Non-
    Refoulement Principle, and
    Environmental
    Displacements
    Nisheet Dabadge, Georgetown University Law Center
    (JD exp. May 2023)
    Universitat Bern (Fall 2022) | Professor Fornalé, World
    Trade Institute

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  2. Overview
    u Introduction
    u Hypothesis
    u Positive International Law
    u GCR and the Refugee Convention
    u GCM and ICPRMW
    u EU Directive 2004/83/EC
    u Statelessness
    u Nansen Initiative
    u Case Law Doctrines
    u “A ‘real risk’ of ‘irreparable harm’ to life or via ‘acute mental or physical suffering’ equating to inhumane treatment”
    u “No ‘reasonable relocation’ alternatives available upon return to the home country”
    u “‘Imminent danger’ is expected, without potential government intervention in the interim”
    u Conclusion
    u Impacts of climate migration on sending and receiving states: migrant workers

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  3. Introduction
    u Global average surface temperatures set
    to rise 2-4 degrees C (next 50-100 years)
    u Expected increase in climate catastrophes,
    both sudden- and slow-onset
    u Hurricanes, typhoons, forest fires, flooding
    u Droughts, desertification, rising sea levels,
    salinization, land degradation
    u “Nearly 1 billion people” exposed to high
    risks of climatic events, with ~216 million
    likely to be internally displaced by 2050
    u Exposure for cross-boundary
    displacement is indeterminable but
    interlinked

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  4. Hypothesis
    u What is the international law treatment, especially in terms of refoulement, for
    climate migrants?
    u Positive international and regional law exists, but has limitations. Accordingly:
    u “In refoulement situations where (1) a migrant (or the migrant’s family) would
    face a real risk of “irreparable harm” to life or via “acute mental and
    physical suffering” equating to “inhumane treatment”; (2) no “reasonable
    relocation” alternatives would be available to the migrant upon return to the
    country of origin; and (3) “imminent danger” is expected upon refoulement,
    without any expectation of a time period for government intervention, global
    climate migration law state practice indicates that non-refoulement may be
    an obligation that host states should honor. Additionally, where the Sending
    state’s government is the direct reason, through for a climate migrant’s inhuman
    treatment upon refoulement, or where a humanitarian basis for entry into the
    host state otherwise exists, such as for the protection of the rights of a migrant’s
    children and family, non-refoulement should more dispositively be an honored
    obligation upon host states.”

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  5. Positive International
    Law

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  6. IL: Global Compact on Refugees and the
    Refugee Convention
    u Defines “refugees” as those who have faced “persecution” on a
    discriminatory basis
    u Post-convention refugee doctrines and case law: persecution requires a social
    element
    u Climate events do not equate to social persecution
    u Discrimination: race, religion, nationality, membership of a particular social
    group or political opinion
    u Climatic events are indiscriminate

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  7. IL: Global Compact on Migration and the
    International Convention on the Protection of the
    Rights of All Migrant Workers
    u GCM
    u Recognition of climate migration: “migration
    movements … may result from sudden-onset
    and slow-onset natural disasters, the adverse
    effects of climate change, [and]
    environmental degradation …”
    u Pushes states to build on national and regional
    non-refoulement doctrines, namely on
    humanitarian and compassionate grounds
    u ICPRMW
    u Provides temporary protection from
    refoulement for migrant workers: one “who
    is to be engaged, is engaged or has been
    engaged in a remunerated activity in a state
    of which he or she is not a national”

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  8. Regional IL: EU Directive 2004/83/EC
    u Covers refugee and international protection status of refugees and migrants
    u A “real risk of suffering serious harm” associated with refoulement to a climate disaster-
    impacted country
    u Where there can be no reasonable expectation of protection upon return to the country of
    origin
    u Where refoulement would lead to the migrant facing “… inhuman or degrading treatment”
    u Teitiota: potential ICCPR Arts. 6,7 violations where there exist “reasonably
    foreseeable threats and life-threatening situations” impacting life or equating to
    inhumane treatment
    u In tandem: regional crystallization of climate-based non-refoulement

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  9. IL: Statelessness
    u Minimum level of treatment for
    “stateless” people
    u Those “who [are] not considered
    as a national by any State under
    the operation of its law.”
    u Climate migrants are de facto
    stateless, not de jure stateless
    u No protection from refoulement

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  10. IL: The Nansen Initiative
    u Specifically addresses climate change,
    climate migration, and non-refoulement as a
    forum
    u Pushes countries to develop internal and
    multilateral frameworks, through
    negotiation, to address these issues
    u Creates no positive international
    obligations
    u “Pre-soft law”

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  11. Doctrine 1: A ‘real risk’ of ‘irreparable harm’
    to life or via ‘acute mental or physical
    suffering’ equating to inhumane treatment
    u Soering: “real risk” of “inhumane treatment” = violation of ECHR Art. 3 (right to be free
    from inhumane treatment)
    u Non-refoulement for German man facing death penalty in the US; he faced “extreme
    conditions” and “ever present and mounting anguish” on death row
    u See also Judge: man detained in Canada for 10 years, faced refoulement to death row
    in the US = violation of ICCPR Art. 6 (right to life) due to “irreparable harm”
    u D. v. UK: “acute mental and physical suffering” upon refoulement = ECHR Art. 3 violation
    u Terminally-ill man sent back to Caribbean to face worse living, health conditions
    u Even if “the risk … in the receiving country … stems from factors … [that do not] in
    themselves infringe” ECHR, an ECHR Art. 3 violation can still be found
    u Teitiota: importing the above, a real risk of “irreparable harm” under ICCPR Arts. 6 or 7
    can trigger climate-based non-refoulement
    u Man and his family fled from Tarawa, a sinking Kiribati island, due to land degradation,
    salinization, lack of fresh water, conflicts over remaining land, and sea level rise
    u “Real risk” of infringement of the above rights did not exist here, where Kiribati still
    received sufficient financial assistance and freshwater imports, there was sufficient
    land for agriculture, and no general state of conflict existed

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  12. Doctrine 2: No ‘reasonable relocation’
    alternatives available upon return to the
    home country
    u Federal Constitutional Court of Austria, Decision U84/11
    u Pakistani migrant left home because landowner shot his family; afraid to return
    u Lower court dismissed his asylum case
    u Appellate tribunal: lower court should have considered whether (1) migrant had
    domestic alternatives to relocation within Pakistan; (2) whether such domestic
    alternatives were reasonable – keeping in mind the flooding in Pakistan
    u Potential ECHR Art. 3 violation – right to be free from inhumane treatment

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  13. Doctrine 3: ‘Imminent danger’ is expected,
    without potential government intervention
    in the interim
    u Teitiota (Kiribati) and AD (Tuvalu) / AC (Tuvalu)
    u Climate migrants and their families fled their countries to
    New Zealand
    u While non-refoulement was potentially applicable
    (refoulement could equate to violations of ICCPR Arts. 6, 7
    OR humanitarian / cultural and compassionate / familial
    IL), not applicable here
    u Both cases: danger was not imminent and government had
    time to intervene and seek financial assistance
    u Kiribati: 15 years until sea level rise, land degradation, and
    salinization would have impacts on life / humanity
    u Tuvalu: government was actively implementing measures to
    combat sea level rise (outcome did not necessarily matter)

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  14. Conclusion
    u Domestic and regional principles and doctrines for non-refoulement are
    either crystallizing or in states of pre-crystallization
    u The 3-factor test is a viable framework for non-refoulement
    u To crystallize internationally, a new international instrument is required
    u Nansen Conferences / Iniative = fora for positive climate IL development

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  15. The impacts of climate migration on sending and
    receiving states: migrant workers – the Spain-
    Colombia circular model
    u Pros
    u Seasonality of both migrant
    work and climate issues
    u Large, cheap workforce
    u Flexibility for receiving
    countries: only temporary visas
    u Helps migrants obtain
    technical skills and remit
    incomes for development
    u Cons
    u Neoliberalism that avoids real
    “collective political action” in
    favor of exploitation
    u Lack of human rights
    protections (extreme
    conditions, no social security or
    right to organize)
    u Temporary protection,
    sometimes not provided to
    workers’ families

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