Report summary: Protecting People Crossing Borders in the Context of Climate Change

UKCCMC report summaries synthesise key documents on the topic of climate change and migration. They do not intend to provide analysis. For analysis on current issues and policy see the Blog section of this website. 

How can we best protect people who are forced to move in the context of environmental change? This is the question addressed by Walter Kalin and Nina Schrepfer in their report Protecting People Crossing Borders in the Context of Climate Change. Normative Gaps and Possible Approaches. What assistance should be offered to prevent people having to move? When and how should people be assisted in moving? And when people cross a border what legal protection is available?

The authors conclude that significant gaps exist in legal protection for people who have moved and crossed a border in the context of climate change. Such people would fall outside existing international law that protects people who have been forced to move across a border for other reasons, for example by conflict or  persecution. The authors argue that negotiating an entirely new international treaty to protect people crossing borders is unrealistic. Instead they argue that by pursuing a number of simpler options legal protection can be improved. Protection would be eventually be provided by a “patchwork” of multilateral and regional agreements and state level policies. Providing protection after people have moved should not be the only course of action. Programmes to build resilience in vulnerable areas should be pursued and migration out of areas of high risk seen as a positive way of adapting to climate change.

Report summary: Protecting People Crossing Borders in the Context of Climate Change. Normative Gaps and Possible Approaches. Walter Kälin and Nina Schrepfer. February 2012

  • New legal protection is needed to protect people crossing borders in the context of climate change, but preventing displacement by resilience building and migration as adaptation is also important.
  • Legal protection should be formed of soft law, not a new treaty. New soft law should operate at international, regional and state level. Several options at each level should be perused.

Four measures are needed to protect people crossing borders in the context of climate change:
Preventing displacement. Several options can be used to prevent displacement. They include: disaster risk reduction, preparedness measures and resilience building. High emitting countries should fund and assist this.

Managed migration should be part of national adaptation plans. Often, this will involve the migration of one household member rather than an entire household, and will usually be seasonal. Remittence payments help diversify household income. States should see this kind of migration as positive, but should also monitor and manage it. Where people could be crossing borders, states should make agreements making this legal, and should protect migrants from exploitation.

Protection: Creating rights-based temporary protection regimes for persons affected by natural disasters. Cross border migration presents one of the most serious gaps in protection. Protection should apply to people who cannot return for legal or humanitarian reasons. People must have the right to enter a country seeking refuge, and stay there temporarily or permanently if it is impossible for them to return. Migrants should be entitled to certain rights: access to the labour market, protection from discrimination they may experience as part of an ethnic or linguistic minority.

Who should be protected? Identifying who protection should apply to before people move is legally and technically difficult. It would be difficult to undertake a vulnerability assessment to identify people who are likely to experience forced displacement as a result of environmental change. It will be easier to make the assessment after people have moved because it will be possible to look at their actual circumstances. Although not technically refugees, inspiration can be taken from the Convention to help define the character of forced rather than voluntary migration. The distinction must also be made between people who will be entitled to stay outside their country of origin (permanently or temporarily) and those who will not. Someone could be granted leave to stay if their home country were unable to provide them with protection on their return. A “returnability” test that can help make this distinction already exists in Swiss law. Something similar could be created to deal with the return of people displaced across borders by the effects of climate change.

What form should this new law take?

For and against a new international treaty. Treaties can be legally binding and enforceable. They can be useful for filling normative gaps where many, or even all, countries in the world could be effected. However, the divergent interests of potential receiving countries and likely sending countries mean there is unlikely to be consensus on a treaty. Sending countries would be negotiating for maximum protection. While potential receiving countries could look to minimise their responsibility. This would mean a new treaty could take a long time to ratify – leaving gaps in protection during the long negotiation. There several other problems:

  • It could also lead to ratification gaps. Some countries may simply not sign the treaty
  • A new treaty may divert attention from other policy development that might be more immediately helpful
  • It may also be premature as most evidence suggests that climate induced migration is not cross-border but internal;
  • It may be a mistake to create protection based on what has caused someone to migrate, rather than who most needs protection. (All cited from MacAdam).

For all these reasons, a soft law approach is more realistic and more likely to provide the protection needed.

Soft law creates more than moral or political obligations, but less than legal obligations. The Convention on the Elimination of All Forms of Discrimination against
Women started as soft law and eventually became a treaty. Soft law on the displacement of people due to the effects of climate change should take a rights based approach.

At an international level several things should happen: states should continue to reaffirm their commitment to the Cancun outcome of the AWG LCA. Although there are several problems with this agreement it is important that states continue to reaffirm their commitment at future COPs. No clear commitment regarding the Nansen principles emerged from the UNHCR ministerial meeting. Alternative ways of moving the Nansen principles forward need to be found. The International Law Commission is already has a stream of work looking at “Protection of Persons in the Event of Disasters”. The ILC has not yet specifically addressed displacement across borders, or displacement due to climate change. It would help the overall process of creating soft law if the ILC did look at these issues within their work on displacement and natural disasters. Alternatively a Global Commission on “Movement of Persons in the Context of Climate Change” could be created. The group would conduct research and eventually produce a report with specific recommendations on processes and institutions. However, at the moment, the only realistic way forward seems to be discussions between interested states and international organisations outside of the UN. This might help build consensus from the bottom up.

Several regional options are already underway, however they are all at the very early stages. While soft law is usually preferred in regional negotiations, treaty law is also a realistic possibility at regional level, in a way that it is not at an international level. Different regions will be differently affected by climate change, so regional agreements allow states to tailor new protection to their needs. Interests may be more convergent at regional level, possibly making consensus easier.

At the domestic level states should be encouraged to strengthen hard law relating to the protection of displaced people and migrants. Where states are offering funding or assistance with adaptation, these programs should include and element of migration as adaptation if appropriate.

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Report summary: Protecting People Crossing Borders in the Context of Climate Change

UKCCMC report summaries synthesise key documents on the topic of climate change and migration. They do not intend to provide analysis. For analysis on current issues and policy see the Blog section of this website. 

How can we best protect people who are forced to move in the context of environmental change? This is the question addressed by Walter Kalin and Nina Schrepfer in their report Protecting People Crossing Borders in the Context of Climate Change. Normative Gaps and Possible Approaches. What assistance should be offered to prevent people having to move? When and how should people be assisted in moving? And when people cross a border what legal protection is available?

The authors conclude that significant gaps exist in legal protection for people who have moved and crossed a border in the context of climate change. Such people would fall outside existing international law that protects people who have been forced to move across a border for other reasons, for example by conflict or  persecution. The authors argue that negotiating an entirely new international treaty to protect people crossing borders is unrealistic. Instead they argue that by pursuing a number of simpler options legal protection can be improved. Protection would be eventually be provided by a “patchwork” of multilateral and regional agreements and state level policies. Providing protection after people have moved should not be the only course of action. Programmes to build resilience in vulnerable areas should be pursued and migration out of areas of high risk seen as a positive way of adapting to climate change.

Report summary: Protecting People Crossing Borders in the Context of Climate Change. Normative Gaps and Possible Approaches. Walter Kälin and Nina Schrepfer. February 2012

  • New legal protection is needed to protect people crossing borders in the context of climate change, but preventing displacement by resilience building and migration as adaptation is also important.
  • Legal protection should be formed of soft law, not a new treaty. New soft law should operate at international, regional and state level. Several options at each level should be perused.

Four measures are needed to protect people crossing borders in the context of climate change:
Preventing displacement. Several options can be used to prevent displacement. They include: disaster risk reduction, preparedness measures and resilience building. High emitting countries should fund and assist this.

Managed migration should be part of national adaptation plans. Often, this will involve the migration of one household member rather than an entire household, and will usually be seasonal. Remittence payments help diversify household income. States should see this kind of migration as positive, but should also monitor and manage it. Where people could be crossing borders, states should make agreements making this legal, and should protect migrants from exploitation.

Protection: Creating rights-based temporary protection regimes for persons affected by natural disasters. Cross border migration presents one of the most serious gaps in protection. Protection should apply to people who cannot return for legal or humanitarian reasons. People must have the right to enter a country seeking refuge, and stay there temporarily or permanently if it is impossible for them to return. Migrants should be entitled to certain rights: access to the labour market, protection from discrimination they may experience as part of an ethnic or linguistic minority.

Who should be protected? Identifying who protection should apply to before people move is legally and technically difficult. It would be difficult to undertake a vulnerability assessment to identify people who are likely to experience forced displacement as a result of environmental change. It will be easier to make the assessment after people have moved because it will be possible to look at their actual circumstances. Although not technically refugees, inspiration can be taken from the Convention to help define the character of forced rather than voluntary migration. The distinction must also be made between people who will be entitled to stay outside their country of origin (permanently or temporarily) and those who will not. Someone could be granted leave to stay if their home country were unable to provide them with protection on their return. A “returnability” test that can help make this distinction already exists in Swiss law. Something similar could be created to deal with the return of people displaced across borders by the effects of climate change.

What form should this new law take?

For and against a new international treaty. Treaties can be legally binding and enforceable. They can be useful for filling normative gaps where many, or even all, countries in the world could be effected. However, the divergent interests of potential receiving countries and likely sending countries mean there is unlikely to be consensus on a treaty. Sending countries would be negotiating for maximum protection. While potential receiving countries could look to minimise their responsibility. This would mean a new treaty could take a long time to ratify – leaving gaps in protection during the long negotiation. There several other problems:

  • It could also lead to ratification gaps. Some countries may simply not sign the treaty
  • A new treaty may divert attention from other policy development that might be more immediately helpful
  • It may also be premature as most evidence suggests that climate induced migration is not cross-border but internal;
  • It may be a mistake to create protection based on what has caused someone to migrate, rather than who most needs protection. (All cited from MacAdam).

For all these reasons, a soft law approach is more realistic and more likely to provide the protection needed.

Soft law creates more than moral or political obligations, but less than legal obligations. The Convention on the Elimination of All Forms of Discrimination against
Women started as soft law and eventually became a treaty. Soft law on the displacement of people due to the effects of climate change should take a rights based approach.

At an international level several things should happen: states should continue to reaffirm their commitment to the Cancun outcome of the AWG LCA. Although there are several problems with this agreement it is important that states continue to reaffirm their commitment at future COPs. No clear commitment regarding the Nansen principles emerged from the UNHCR ministerial meeting. Alternative ways of moving the Nansen principles forward need to be found. The International Law Commission is already has a stream of work looking at “Protection of Persons in the Event of Disasters”. The ILC has not yet specifically addressed displacement across borders, or displacement due to climate change. It would help the overall process of creating soft law if the ILC did look at these issues within their work on displacement and natural disasters. Alternatively a Global Commission on “Movement of Persons in the Context of Climate Change” could be created. The group would conduct research and eventually produce a report with specific recommendations on processes and institutions. However, at the moment, the only realistic way forward seems to be discussions between interested states and international organisations outside of the UN. This might help build consensus from the bottom up.

Several regional options are already underway, however they are all at the very early stages. While soft law is usually preferred in regional negotiations, treaty law is also a realistic possibility at regional level, in a way that it is not at an international level. Different regions will be differently affected by climate change, so regional agreements allow states to tailor new protection to their needs. Interests may be more convergent at regional level, possibly making consensus easier.

At the domestic level states should be encouraged to strengthen hard law relating to the protection of displaced people and migrants. Where states are offering funding or assistance with adaptation, these programs should include and element of migration as adaptation if appropriate.

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Your email address will not be published. Required fields are marked *

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