Building blocks for a legal protection of persons displaced in the context of climate change: The protection of persons affected by sea-level rise
p. 79-90
Texte intégral
Introductory considerations: The protection of persons affected by sea-level rise
1The protection of the environment and the related issue of the fight against climate change can benefit from an alliance with the protection of persons.1 Negative impacts on the environment and climate change have adverse impacts for the enjoyment of human rights, and the human rights and human mobility legal machinery can also be used as a legal tool to induce States, at the international and domestic level, to comply more effectively with their obligations to protect and preserve the environment and to combat climate change.
A significant threat
2Sea-level rise poses a significant threat to small islands and low-lying coastal areas around the world. Among the physical impacts, rising sea levels expose coastal populations to loss of land owing to an exacerbated risk of destructive erosion, inundation and wetland flooding of low-lying coastal areas. Increased flooding will have particularly adverse consequences for infrastructure, settlements and agricultural lands located at or near coasts. Higher sea levels also promote saltwater intrusion into river estuaries and aquifers, causing stress on the supply of freshwater resources and reducing the bearing capacity of the ground. Studies of extreme sea levels worldwide have also indicated that sea-level rise is attended by more frequent extreme events driven by severe weather such as tropical cyclones and mid-latitude storms, which further aggravate such physical changes.
A phenomenon of multifold dimensions and intensity with the potential to affect the enjoyment of human rights
3Because sea-level rise is not uniform across time and space, the nature and intensity of its physical impact will vary from region to region and locality to locality, depending, inter alia, on terrain, climatic conditions, wealth, economic conditions, infrastructure and political institutions. Yet, together, sea-level rise and the frequency and intensity of extreme events have potentially significant socioeconomic, environmental and cultural consequences for human lives and living conditions in coastal and low-lying areas. They threaten all aspects of human life, including mortality, livelihoods and industry, food and water security, health and well-being, homes, land and other property, infrastructure and critical services, as well as cultural heritage. Accordingly, although sea-level rise does not in itself constitute a violation of human rights, it has the potential to adversely affect the enjoyment of human rights, especially those of already vulnerable persons and groups, including women, children, older persons, and indigenous groups and other traditional communities.
4In resilient communities, the physical impact of sea-level rise and associated extreme events falling short of total submergence may be overcome through mitigation and adaptation strategies. However, in more severe cases, where the habitability of coastal and low-lying areas is jeopardized and adaptation and mitigation measures prove inadequate, such disruption may have a serious impact on the lives of local inhabitants, potentially leaving them with no choice but to relocate or migrate.
A phenomenon whose impact may lead to significant internal or international movement of persons
5Estimating the magnitude of such relocation or migration is challenging, because the impact of sea-level rise interacts with that of other economic, social and political factors that force people from their homes. In the past decade, 83% of all disasters triggered by natural hazards were caused by extreme weather and climate-related events.2
6According to the Internal Displacement Monitoring Centre, weather-related disasters caused the internal displacement of 23.9 million people in 2019 alone.3 Other studies estimate that 146 million people will be at risk of having to evacuate their homes over the next century due to the adverse effects of climate change, including sea-level rise.4
7Most involuntary relocation or displacement in the context of sea-level rise will be internal as opposed to across international borders. However, without timely and proactive interventions, displacement to other States may become inevitable. In either scenario, given that sea-level rise is in principle irreversible, it is more likely to cause long-term or permanent movement of people than any other form of environment-induced human migration.
8The partial or complete inundation of a State’s territory as a result of sea-level rise, including that of small island States and low-lying coastal States, thus has an impact on the populations of those areas, which are often densely populated. Sea-level rise jeopardizes the habitability of such areas, leading to a potentially large number of displaced persons, but also affecting those who might be able to stay.
9A key issue to be addressed is therefore that of the protection of persons affected by sea-level rise, whether they are displaced or migrate due to sea-level rise, or are able to stay owing to mitigation and adaptation measures but may still face the impact of sea-level rise.
Absence of a dedicated legal framework and of a distinct legal status for persons affected by sea-level rise
10To date, there is no binding international legal instrument that specifically includes provisions for cross-border movements induced by climate change and for the protection of persons who are affected and/or move due to the adverse effects of climate change, such as sea-level rise. International law does not at present grant any distinct legal status to persons affected by the adverse consequences of climate change, including sea-level rise.
11However, given the nature of this adverse effect of climate change, persons affected by sea-level rise may have specific needs that would have to be addressed. The impact of sea-level rise thus raises questions as to how affected persons should be protected, what existing legal frameworks are potentially applicable to this situation (lex lata), whether existing legal frameworks are sufficiently comprehensive, coherent or specific, what their limitations are, and whether adjustments would be warranted (lex ferenda).
Protection of persons affected by sea-level rise: a dual rights- and needs-based approach
12The protection of persons affected by sea-level rise should be understood as all activities aimed at ensuring full respect of their rights, in accordance with the relevant and applicable bodies of international law. As stated by the Special Rapporteur, Eduardo Valencia-Ospina, in the International Law Commission’s preliminary report on the topic “protection of persons in the event of disasters”:
The title [of the topic] … imports a distinct perspective, that is, of the individual who is a victim of a disaster, and therefore suggests a definite rights-based approach to treatment of the topic. The essence of a rights-based approach to protection and assistance is the identification of a specific standard of treatment to which the individual, the victim of a disaster, in casu, is entitled. To paraphrase the Secretary-General, a rights-based approach deals with situations not simply in terms of human needs, but in terms of society’s obligation to respond to the inalienable rights of individuals, empowers them to demand justice as a right, not as a charity, and gives communities a moral basis from which to claim international assistance when needed.5
13In the subsequent work of the Special Rapporteur on the protection of persons in the event of disasters and the outcome of the Commission’s work on the topic, a needs-based approach was also adopted, informed by existing human rights obligations. As the Special Rapporteur stated in the second report:
More than a normative statement with claims of exclusivity, the [rights-based] approach is a useful departing position that carries the all-important baggage of rights-based language, and needs to be complemented by other views of relevance to the specific subject matter to be understood. [The International Federation of Red Cross and Red Crescent Societies] has suggested that a rights-based approach to the topic may be complemented by considering the relevance of needs in the protection of persons in the event of disasters. The Special Rapporteur believes that such an exercise can be usefully undertaken in this context. There is no stark opposition between needs and a rights-based approach to the protection of persons in the event of disasters. On the contrary, a reasonable, holistic approach to the topic seems to require that both rights and needs enter the equation, complementing each other when appropriate.6
14This compromise between the rights-based and the needs-based approaches resulted in draft Article 2, which reads as follows:
The purpose of the present draft articles is to facilitate the adequate and effective response to disasters, and reduction of the risk of disasters, so as to meet the essential needs of the persons concerned, with full respect for their rights.7
15A similar approach would seem justified in regard to the protection of persons affected by sea-level rise, since the two approaches (rights-based and needs-based) are not necessarily mutually exclusive but are best viewed as complementary: the protection of persons affected by sea-level rise should meet their needs, and such response must take place with full respect for their rights.
Mapping the existing legal frameworks potentially applicable to the protection of persons affected by sea-level rise
16The relevant legal frameworks potentially applicable are: international human rights law, international humanitarian law, international law concerning refugees and internally displaced persons, international law concerning migrants, international law concerning disasters, and international law concerning climate change.
17International human rights law, at both international and regional level, is relevant to the protection of persons affected by sea-level rise since the adverse effects of sea-level rise may affect the enjoyment of several human rights. The analysis mostly focuses on international human rights law, but also refers to regional protection systems as appropriate. A brief analysis of international humanitarian law is relevant in the sense that there could be a nexus between the adverse effects of climate change, such as sea-level rise, and conflict, in terms of both the root causes of armed conflict and the impact of climate change on the vulnerability of civilian victims of armed conflict.
18Because sea-level rise might lead to the movement of persons, within their own country or abroad, their protection from the point of view of international and regional legal regimes related to refugees, internally displaced persons and migrants is also appropriate.
19Since sea-level rise has also been characterized as a disaster and is an adverse effect of climate change, international and regional legal regimes concerning the protection of persons in the event of disasters, and international law concerning climate change, might also contain relevant provisions.
Mapping State practice and the practice of relevant international organizations and bodies regarding the protection of persons affected by sea-level rise
20The States most affected by the impact of sea-level rise first attempted to bring the issue to the attention of the international community over 30 years ago, through the Malé Declaration on Global Warming and Sea Level Rise of 1989.8
21Because sea-level rise – although already happening, as proven by scientific data – is still a relatively new phenomenon and, as mentioned above, its acceleration will have different impacts through time and space, many States seem only now to be beginning to consider the measures required to protect persons affected by it. Furthermore, some of the emerging practice that may be identified is not necessarily specific to sea-level rise, since it may cover the wider phenomena of disasters and climate change.
22While a preliminary assessment of State practice shows that it is still scarce at global level, it is increasingly more developed in the States and regions that are the most exposed to sea-level rise and thus that are already feeling its effects on their territory, such as Pacific small island States and States with low-lying coastal areas. Certain third States that might be exposed to an indirect impact, from cross-border displacement of persons affected by the adverse effects of climate change, including sea-level rise, are also starting to take legal or policy measures to prepare for such a possibility.
23International organizations and other bodies with relevant mandates in the field of human rights, displacement, migration, labour, refugees, statelessness, climate change and financing have been taking a more proactive approach. They have been seeking to promote tools that would allow States to be better prepared with regard to issues pertaining to human rights and human mobility in the face of climate-related displacement, including as a result of sea-level rise.
Preliminary observations regarding the protection of persons affected by sea-level rise
24Sea-level rise is one of several adverse effects of climate change. According to scientific evidence, this phenomenon, which is already taking place, is likely to accelerate in the future, resulting in the increased inundation of low-lying coastal areas and of islands, making these zones less and less habitable. Low-elevation coastal zones in different regions will be at risk from a variety of threats related to rising sea levels, including soil salinization, degradation of marine ecosystems, more frequent flooding and extreme weather events such as cyclones.
25Particularly vulnerable areas include small island developing States in the Pacific and Indian Oceans, West Africa and the Caribbean, and highly populated urban centres in megadeltas and low-lying coastal areas. In these areas, sea-level rise is having and will continue to have an impact on the lives and livelihoods of the inhabitants, and may lead to their displacement.
26Displacement and migration may be triggered by the slow-onset consequences of sea-level rise, such as coastal erosion, by sudden-onset disasters, or by a combination of both. Sea-level rise may exacerbate storm surges, leading to saltwater intrusion into surface water and corruption of the freshwater lens, thus diminishing habitable conditions of a territory even before its possible submersion or disappearance. Displacement within a person’s own country and cross-border displacement to third countries in the context of climate change and disasters, including sea-level rise, is a multicausal phenomenon, involving interaction with other economic, social and political factors. Unlike some other disasters or adverse effects of climate change, however, sea-level rise has the potential to create long-term or permanent movement of persons within a country or to another country.
27At the same time, for those who wish to remain in situ and who may be able to do so because of mitigation and adaptation measures, questions may arise as to how to ensure that their human rights are respected, in terms, inter alia, of human dignity, non-discrimination, access to information and public participation, and regarding possible processes of planned relocation.
28The current international legal frameworks – that is, the lex lata – that are potentially applicable to the protection of persons affected by sea-level rise are fragmented. They are mostly non-specific to sea-level rise but are generally applicable in the context of disasters and climate change, and often consist essentially of soft law. Such international legal frameworks could be further developed in a more specific, coherent and complete manner in order to effectively protect persons who remain in situ or have to move because of the impact of sea-level rise.
29A preliminary assessment of State practice shows that it is still sparse at global level, but that it is more developed in States that are already feeling the impact of sea-level rise on their territory. Some of the practice that it has been possible to identify is not necessarily specific to sea-level rise, since it covers the wider phenomena of disasters and climate change, but it reveals relevant principles that may be used as guidelines for the protection of persons affected by sea-level rise. International organizations and other bodies with relevant mandates in the field of human rights, displacement, migration, refugees, statelessness, labour, climate change and finance have been taking a proactive approach. They have been seeking to promote practical tools to enable States to be better prepared with regard to issues related to human rights and human mobility in the face of climate displacement, including in the context of sea-level rise.
30Given the complexity of the issues at hand, and taking into account the exercise of mapping the applicable legal frameworks and emerging practice, as set out in the present paper, it can be concluded that the principles applicable to the protection of persons affected by sea-level rise could be further identified and developed by the International Law Commission and the Study Group on sea-level rise in relation to international law.
31This identification and development could build on the draft articles on the protection of persons in the event of disasters, which provide a general framework for disaster response and the protection of persons, namely with regard to human dignity (draft Article 4), human rights (draft Article 5), the duty to cooperate (draft Article 7) and the role of the affected State (draft Article 10).9 This framework could be further developed to reflect the specificities of the long-term or permanent consequences of sea-level rise, and to take into account the fact that affected persons may remain in situ, be displaced within their own country, or migrate to another State in order to cope with or avoid the effects of sea-level rise.
32In addition to instruments of international and regional human rights law, other existing instruments that could usefully be taken into consideration in this respect include:
- the Guiding Principles on Internal Displacement (1998),10
- the Kampala Convention (2009),11
- the New York Declaration for Refugees and Migrants (2016),12
- the Global Compact for Safe, Orderly and Regular Migration (2018),13
- the Sendai Framework for Disaster Risk Reduction 2015–2030 (2015),14
- and the Nansen Initiative’s Agenda for the Protection of Cross-Border Displaced Persons in the Context of Disasters and Climate Change (2015).15
33Guidance could also be drawn from the International Law Association’s Sydney Declaration of Principles on the Protection of Persons Displaced in the Context of Sea Level Rise.16
34This exercise should also incorporate the relevant emerging practice of States and relevant international organizations and bodies. Special attention should be paid to recent decisions, such as that by the Human Rights Committee in Teitiota v. New Zealand.17 The Committee concluded that the effects of climate change, namely sea-level rise, in receiving States may expose individuals to a violation of their rights under Articles 6 (right to life) or 7 (prohibition of torture and cruel, inhuman or degrading treatment or punishment) of the International Covenant on Civil and Political Rights. This would trigger the non-refoulement obligations of sending States, since the risk of an entire country becoming submerged under water is such an extreme risk, the conditions of life in such a country may become incompatible with the right to life with dignity before the risk is realized.
Protection of persons affected by sea-level rise: Building blocks for a legal protection of persons displaced in the context of climate change
35The purpose of this contribution was thus to identify the challenges and briefly discuss whether the current international legal framework is adequate for the protection of persons affected in the context of climate change, particularly persons affected by sea-level rise, or whether a more specific legal regime should be developed and if so, on which basis.
36In this regard, this contribution proposes that the following building blocks be taken into account for the purposes of the consolidation of a legal protection of persons affected by sea-level rise:
- the protection of human dignity should apply as an overarching principle in the protection of persons affected by sea-level rise;
- a combination of the needs-based and rights-based approaches should be the basis for the legal analysis of the protection of persons affected by sea-level rise;
- the implications on human rights – including not only civil and political, but also economic, social and cultural rights – must be analysed in the context of the protection of persons affected by sea-level rise;
- the scope of the obligations of the different human rights duty bearers in the context of sea-level rise needs to be more clearly identified;
- the protection of persons in vulnerable situations in the context of sea-level rise in particular must be ensured;
- the principle of non-refoulement in the context of the protection of persons affected by sea-level rise must be significantly relevant;
- the Global Compact for Safe, Orderly and Regular Migration and other soft law instruments must contain relevant guidelines in terms of the protection of persons affected by sea-level rise;
- complementary protection in the context of refugee law could be applied to persons affected by sea-level rise;
- States could develop humanitarian visas and similar administrative policies for the protection of persons affected by sea-level rise;
- States could develop tools for the avoidance of statelessness in the context of sea-level rise;
- the principle of international cooperation, including through institutional paths for inter-State, regional and international cooperation, is key to ensure the protection of persons affected by sea-level rise.
37The next steps in the work of the United Nations International Law Commission’s Study Group on sea-level rise in relation to International Law, as regards the protection of persons affected by sea-level rise, will be dedicated to developing such building blocks for the legal protection of persons affected by sea-level rise.
38It is hoped that by developing these building blocks in the work of the Study Group, the International Law Commission can contribute to a more effective application of international law regarding the environment and climate change through an alliance with the protection of the human person.
Notes de bas de page
1This contribution is based on the second issues paper on “Sea-level rise in relation to international law” presented by the author and Juan José Ruda Santolaria to the United Nations International Law Commission in 2022; see A/CN.4/752, 19 April 2022, https://undocs.org/A/CN.4/752 (hereinafter Second Issues Paper).
2International Federation of Red Cross and Red Crescent Societies, “World Disasters Report 2020: Come heat or high water – Tackling the humanitarian impacts of the climate crisis together”, Geneva, 2020, https://www.ifrc.org/document/world-disasters-report-2020.
3Internal Monitoring Displacement Centre, “Global Report on Internal Displacement 2020”, Geneva, 2020, https://www.internal-displacement.org/publications/2020-global-report-on-internal-displacement-grid/.
4E. Piguet, “Climate change and forced migration”, research paper No. 153, Geneva, UNHCR – Policy Development and Evaluation Service, 2008, https://digitallibrary.un.org/record/627764; and D. Anthoff et al., “Global and regional exposure to large rises in sea-level: A sensitivity analysis”, working paper No. 96, Norwich, Tyndall Centre for Climate Change Research, 2006.
5Second Issues Paper, § 236 (citing United Nations International Law Commission, “Preliminary report on the protection of persons in the event of disasters”, A/CN.4/598, 5 May 2008, § 12, https://undocs.org/A/CN.4/598).
6United Nations International Law Commission, “Second report on the protection of persons in the event of disasters”, A/CN.4/615 and Corr.1, 7 May 2009, § 17, https://undocs.org/A/CN.4/615.
7“Draft articles on the protection of persons in the event of disasters, and commentary thereto”, in “Report of the International Law Commission, Sixty-eighth session (2 May-10 June and 4 July-12 August 2016)”, A/71/10, New York, United Nations, 2016, § 48–49, https://undocs.org/a/71/10.
8“Letter dated 20 November 1989 from the Permanent Representative of Maldives to the United Nations addressed to the Secretary-General”, A/C.2/44/7, 22 November 1989, annex, https://digitallibrary.un.org/record/81035.
9“Draft articles on the protection of persons in the event of disasters, and commentary thereto”, op. cit., § 48.
10United Nations Commission on Human Rights, “Human rights, mass exoduses and displaced persons”, E/CN.4/1998/53/Add.2, 11 February 1998, annex, https://undocs.org/E/CN.4/1998/53/Add.2.
11United Nations, African Union Convention for the Protection and Assistance of Internally Displaced Persons in Africa (Kampala Convention), 23 October 2009, p. 3, https://au.int/en/treaties/african-union-convention-protection-and-assistance-internally-displaced-persons-africa; see also M. Taddele Maru, “The Kampala Convention and its contribution in filling the protection gap in international law”, Journal of Internal Displacement, Vol. 1, No. 1, 2011, pp. 91–130, at p. 96.
12Resolution by the United Nations General Assembly (UNGA), “New York Declaration for Refugees and Migrants”, A/RES/71/1, 19 September 2016, https://undocs.org/A/RES/71/1.
13Resolution by the UNGA, “Global Compact for Safe, Orderly and Regular Migration”, A/RES/73/195, 19 December 2018, annex, https://undocs.org/A/RES/73/195.
14Resolution by the UNGA, “Sendai Framework for Disaster Risk Reduction 2015–2030”, A/RES/69/283, 3 June 2015, annex II, https://undocs.org/A/RES/69/283.
15Nansen Initiative, “Agenda for the Protection of Cross-Border Displaced Persons in the Context of Disasters and Climate Change”, Vol. 1, Geneva, December 2015, https://disasterdisplacement.org/resource/nipa-vol1/.
16“Final report of the Committee on International Law and Sea Level Rise”, in International Law Association (ILA), Report of the Seventy-eighth Conference, Held in Sydney, 19–24 August 2018, Vol. 78, London, ILA, 2019, pp. 866 and 897; and id., resolution 6/2018, annex, p. 33.
17United Nations Human Rights Committee, Case Teitiota v. New Zealand, CCPR/C/127/D/2728/2016, 23 September 2020, § 3, https://undocs.org/CCPR/C/127/D/2728/2016.
Auteur
Professor at the Autonomous University of Lisbon, Member of the United Nations International Law Commission
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