Advances in research for protecting environmentally displaced people

Post written by Dr. Daniel Gracia Pérez
PhD in Law and European Law by l'Estudi General
Universitat de València and Alma Mater Studiorum-Università di Bologna
email: grapeda@uv.es

I would like to begin this post, the first I have written, by thanking Professor Borràs for the opportunity she has given me to disseminate through her blog the results of my doctoral thesis: "The protection of environmentally displaced persons: Legal gaps in International and Regional Law", which I happily defended on 17 June at the Real Colegio de España en Bologna (Italy). My thesis joins the ever-growing number of doctoral theses that in recent years have increased the body of doctrinal work addressing, from different perspectives, forced population displacement related to disasters, including climate change.
This doctoral research originally had a very different object of study, seeking to analyse the distinction between political refugees and economic migrants. It soon came to my attention that many of these apparently economic migration flows were closely related to environmental disturbances in ecosystems or their utilities that had severely affected the socio-economic conditions of life in the places of origin –I have called these disturbances environmental disruptions, borrowing the terminology used by El-Hinnawi in his 1985 booklet Environmental Refugees. From this serendipity, this thesis was born, being structured around three starting questions: Does environmental displacement exist? Is there a gap in the international legal order regarding protecting environmentally displaced persons? Can International Law prevent the causes of environmental displacement or, if not, how should it respond to protect those displaced?
Chapters I and II address the first question. The first chapter provides a bibliographical review, from the mid-1980s onwards, of the two doctrinal positions that have emerged around environmental displacement, which Suhrke called "maximalists" and "minimalists". However, the thesis suggests that this distinction is somewhat artificial and that the difference between the two lies not so much in whether the "maximalists" advocate a link between environmental factors and migration that the "minimalists" deny, but in the way in which, in my view, each approach has represented this link: either as a cause-effect line for the "maximalists" or as a multi-causal circle for the "minimalists". On the other hand, Chapter II quantifies the magnitude of the problem using data from the International Disaster Database and the Global Internal Displacement Database. The data analysis shows a total of 1,776 natural disasters, almost 960 billion in material losses and more than 115 million new displacements between 2016 and 2020, mainly due to rapid-onset environmental disruptions (such as earthquakes, floods, storms or fires), with Asia emerging as the hotspot for environmental displacement.
The second question comprises chapters III to VI. Each covers one of the legal protection regimes in International Law, examining the relevant instruments at both the universal and regional levels. The research found that, far from existing a generalised legal vacuum in the protection of environmentally displaced persons, there is a plurality of normative instruments, especially at the regional level, of varied nature –from hard-law to soft-law.
Chapter III examines refugee law. The fact that environmentally displaced persons are not, as a rule, refugees under the 1951 Geneva Convention contrasts with the protection they might receive under regional refugee instruments. However, the latter have drawbacks related to their regional scope of application, the divergent interpretations that may exist on the inclusion of environmental displacement from one State to another even within the same region, and the soft-law nature of some of these instruments, as is the case in Latin America or Asia.
Chapter IV explores the hypothetical statelessness of the population of low-lying SIDS resulting from sea-level rise associated with climate change, which necessarily raises the question of when an island State would legally cease to exist under water –which is not a peaceful issue in the absence of legal criteria. It also addresses the protection that UNHCR has been providing to environmentally displaced persons on the ground.
Chapter V discusses the non-refoulement of environmentally displaced persons unlawfully present in a third country. The Human Rights Committee decided on this issue in 2020 in the case of Teitiota v. New Zealand, holding, not without some dissenting voices, that there would have to have been an exceptionally severe level of deterioration in living conditions as a result of climate change to find the decision to deport Mr Teitiota and his family back to the island State of Kiribati contrary to their right to life or freedom from inhuman or degrading treatment under Articles 6 and 7 ICCPR. Despite the lack of similar jurisprudential precedents in regional human rights systems, I found that the European Court of Human Rights' caselaw interpreting Articles 2 and 3 ECHR would endorse a similar risk threshold to that held by the Human Rights Committee. By contrast, had Teitiota v. New Zealand been decided before the Inter-American Court of Human Rights or the African Commission on Human and Peoples' Rights, it seems likely that these bodies would have found refoulement incompatible with the right to a life in dignity, given the preponderance they have accorded to the right to a healthy environment as a necessary condition for realising other rights.
Finally, Chapter VI considers the normative framework applicable when environmentally displaced people have not crossed the borders of their country of origin. The relevant protection instruments are the UN Guiding Principles on Internal Displacement and the African Union Convention for the Protection and Assistance of Internally Displaced Persons in Africa. Both instruments protect as IDPs those forced to leave their habitual residence due to or to avoid the effects of, inter alia, natural or human-made disasters. In the case of the African Convention, reference is also made to those internally displaced by climate change-related processes (Article 5.4). However, by their very nature as programmatic principles, the UN Principles are not binding, and their degree of implementation varies greatly from region to region. Regarding the African Convention, while an international treaty, it is regional in scope and has so far been ratified by 33 States out of the 55 comprising the African Union.
The above de lege data review shows the legal fragmentation and uncertainty prevailing in the international legal order for protecting environmentally displaced persons, currently dominated by strong regionalism with Africa at the forefront. Given this situation, Part III asks what response International Law should provide. Chapter VII explores the preventive response, analysing the international framework on climate change (UNFCCC) and disaster risk management (MSRRD) as immediate causes of displacement. It also considers international progress on sustainable development (Agenda 2030) as an underlying cause of increased vulnerability to environmental disruption and subsequent displacement. In turn, Chapter VIII considers the reactive response, commenting on the University of Limoges' draft treaty on the international status of environmentally displaced persons and comparing it with other normative proposals from the Academy for the protection of the sub-category of climate displaced persons.
Finally, the thesis conclusions mention the draft universal convention for the Protection of Persons in the Event of Disasters elaborated by the International Law Commission and which the UN General Assembly has agreed to consider by its Resolution 76/119, adopted on 9 December 2021 –barely a month before depositing the thesis. While the draft treaty focuses primarily on protecting human rights and providing humanitarian assistance to victims in the immediate post-disaster response and early recovery phase, it provides a fertile starting point for incorporating considerations on displacement, return and eventual relocation of disaster-affected persons into the text during the negotiations, building on the doctrinal proposals discussed in Chapter VIII. Although this is a remarkable opportunity to advance the protection of the environmentally displaced, whether it is seized will, in my view, depend significantly on the Academy's ability to mobilise public opinion and political will. Time will tell.