Climate Change Migration Legal Policy Considerations by Mostafa Mahmud Naser, Macquarie Law School, Australia

8/4/2019 Climate Change Migration Legal Policy Considerations by Mostafa Mahmud Naser, Macquarie Law School, Australia

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Climate change and migration:Legal and Policy Considerations

Researchers Workshop on Climate Change and

Migration in Asia and the Pacific

ADB HeadquartersManila, Philippines

14 September, 2011

Mostafa M NaserMacquarie Law School, Australia

University of Chittagong, Bangladesh

DISCLAIMER: The views expressed in this paper are the views of the authors and do not necessarily reflect the views or policies of the Asian

Development Bank (ADB), or its Board of Governors, or the governments they represent. ADB does not guarantee the accuracy of the data included in

this paper and accepts no responsibility for any consequence of their use. The countries listed in this paper do not imply any view on ADB's part as to

sovereignty or independent status or necessarily conform to ADB's terminology.


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Research question

There is nexus between climate change, environmentaldegradation and migration

The impacts of climate change are likely to displace a large

number of people (ranging from 200 million to 1 billion) all overthe world

Existing international legal framework is yet to recognise climateinduced migration

Policy intervention is essential at all levels; international,

regional, national, and local So my research focus is how the legal and policy apparatus can

be engaged for the protection of climate induced displacement


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Three broad objectives (IOM, 2011)

to minimize forced, unmanaged migration asmuch as possible;

where forced migration does occur, to ensureassistance and protection for those affectedand seek durable solutions to their situation;and

to facilitate the role of migration as anadaptation strategy to climate change


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Climate Change and Migration

Climate change place great stress onecological and livelihood systems.

The gravest effect of climate change wouldlikely be on human migration [IPCC (1990)]

150-200 million environmental displacementby 2050 (Myers, Oxford)

1 in every 45 people would be displaced byclimate change


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Variety of definitions

Environmental refugee

Lester Brown of WWI (1972)

El-Hinnawi of UNEP (1985)

Jacobson (1988)

Myers (1995)

Bates (2002)Renaud et al. (2007)


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Variety of definitions

Climate refugee definitions

Biermann and Boas (2008)

Docherty and Giannini (2009) Environmental migrants IOM (2008)

Climate change migrants IOM (2009)

Climigration Robert Bronen

Eco-migrant Wood

Forced climate migrant (Displacement Solution)


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International Refugee Law and Climate

Induced Displacement 1951 Refugee Convention Refugee

definition

(a)Well founded fear of persecution(b)Membership in a particular group i.e. Race,

religion, nationality, membership of aparticular social group or political opinion

(c)The refugee must flee his or her country

(d)The refugee must be unable or unwilling toreturn home


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Other international frameworks

International Climate Change Law

International Human Rights Law

International Humanitarian Law International Environmental Law

International Convention on Reduction of

Statelessness IDP Principles


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International Human Rights Law

IHRL lacks enforcing mechanism for non-compliance

Territorial limitation Causal problem


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International Humanitarian Law (IHL)

IHL deals with only conflict arising out ofresource crisis due to impacts of climate

change. IHL pays little attention to causes of conflict or

displacement.


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IDP Principles

IDP definition is very wide.

IDP Principles are not binding.

Implementation gap. No legal or institutional regime.

IDP Principles address only internal

displacement and provides temporaryprotection.


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Statelessness Issue

The legal definition of statelessness ispremised on the denial of nationality through

the operation of law of a particular staterather than through a disappearance of statealtogether.


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Governance Options

Expansion of Refugee Convention to includeenvironmental migrants

Protocol under UNFCC

Separate international framework


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Expansion of Refugee Convention toInclude Climate Migrants

Refugee Convention originated 60 years agoin the context of Second World War

UNHCR is not capable to deal with Climatedisplacement

Number of environmental migrants are largerthan traditional refugee


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Protocol under UNFCC

As climate change is the underlying cause ofthe displacement problem, it makes intuitive

sense to attach the instrument to the UNFCC(Biermann and Boas)

UNFCC has broad mandate for tacklingclimate change issues (192 state parties)


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Separate Framework Convention forClimate Migration

Proposed by Dana Falstrom (2001)

Docherty and Giannini (2009)

Global environmental migration governancebased on international human rightsstandards, justice and equity.


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Policy responses at national level

Strengthening knowledge base

Root causes of climate induced migration

need to be addressed Protecting those who remain

Migration as an adaptation strategy

National legal framework Placing climate induced migration within a

development agenda


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Labour migration

Role of civil society


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Conclusion

The current international legal regime does not offer

any concrete protection for the environmentalmigrants. The existing refugee structure is not anoption because they are not refugees in thetraditional sense and this would not address the rootof the problem. Only through a new set of provisionsbased on existing international human rights law the

problem of environmental displacement can beproperly addressed.


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Thank You

[email protected]

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Climate Change Migration Legal Policy Considerations by Mostafa Mahmud Naser, Macquarie Law School, Australia