COMMENT Merlin Mitschker 19 March 2021
Climate change affects everyone and everything, including human beings. Throughout the world, we can see various developments and the forms of climate change materialization differ. In some affected territories, the accumulated precipitation is falling, and the land is becoming too dry to till. Therefore, crops will wither rising. Sea levels will undermine coastal dwellings as well as spoil freshwater. Entire species have already disappeared and are going to continue to do so. Consequently, the livelihoods of millions of people are vanishing.[i] These effects foreshadow mass migration and conflicts.[ii] As one result of many, human rights violations will increase in context with climate-induced migration. The most widely repeated number of climate migrants among analysts is 200 million by 2050.[iii] Affected countries reach from Ethiopia, Sudan, India to the Philippines. Therefore, guaranteeing the full enjoyment of human rights to those affected all over the world is very important.
Climate Justice?
Mainly vulnerable states in the so-called Global South will suffer from climate change effects and climate-induced migration.[iv] States in the Global North emit considerably more parts of greenhouse gases, are wealthier (based on their GDP),[v] and therefore more likely to be capable of incorporating human rights norms in times of climate change.[vi] Furthermore, they are less likely to undergo climate-induced migration than states in the Global South because harsh climatic variances do not affect those regions. However, until today they are not coerced to contribute support to climate-induced migration. Neither exists any binding treaty forcing them to assist states in the Global South to address climate-induced migration in coherence with human rights norms.
Human Rights-Based Approach
A universal human rights norm-based approach to address climate-induced migration would be the most promising solution to protect those suffering from climate change effects. The aforementioned seems unlikely as there is no sufficient international implementation, accountability, and compliance of Human Rights Law as the implementation of human rights depends on each individual state. Therefore, the effectiveness of the implementation varies. Refugee law does not include all migrants because the narrow definition aims to protect persecuted persons and not those migrating because of climate change. The United Nations Framework Convention on Climate Change (UNFCCC) seems to be the wrong place to address migration. The ILC Draft Articles on the Protection of Persons in the Event of Disasters does not address the full range of human mobility. Soft law can only fill some of the gaps as it is not legally binding. At best, a hybrid approach of hard and soft law can enable an enhanced protection level and a context-specific application of international law.[vii] However, the present impression is that neither the hard law nor the soft law nor both together effectively address climate-induced migration with human rights norms. Therefore, persons forced to leave their homes due to climate change are currently only partly protected by human rights. It is up to their situation whether human rights norms can be guaranteed or not as they are dependent on their state to enshrine human rights values by implementing them. The indicated does not illustrate a promising future for inhabitants of regions vulnerable to climate change. To put it straight: it threatens climate justice. For the reasons named above, improvement in addressing climate-induced migration with human rights norms is most urgently needed. Otherwise, the enjoyment of human rights concerning climate-induced migration cannot be guaranteed. Rather, human rights violations will increase significantly.
Improvement Opportunities
Therefore, it is necessary to show whether there are any improvement opportunities. The first thing to enhance is to define a human rights-based universal standard of reference for climate-induced migration. For instance, the Human Rights Council could establish a human rights-based international legal framework (beyond the UNFCCC and the human rights treaties). It should define legal responsibilities and entitlements both of those contributing to climate change and of those whose livelihoods have been severely affected by climate change.[viii] By fixing responsibilities on those states which are mainly responsible for climate change, it would also contribute to climate justice. Even introducing a new legal instrument is a promising option: It could establish guarantees of human rights protection and humanitarian aid for climate-induced migrants across borders.[ix] The instrument’s burden can be split across the home state, host state, and the international community while considering the countries’ contributions to climate change. Instead of using financial resources to prevent migrating people from leaving their continent or country by installing border controls that currently dissent humanitarian aid, financial resources could contribute to climate justice. To ensure the instrument’s effectiveness, it can form institutions to implement the provisions by establishing a global fund, a coordinating agency, and a body of scientific experts. Its foundation could be legal precedent and academic literature – along with using existing legal frameworks.
Consequence
As shown, the creation of independent global monitoring and enforcement mechanisms to prevent human rights violations of those who are migrating because of climate change is possible. About 200 million people could lose their livelihood by 2050 without their fault as their greenhouse gas emissions are the lowest possible. At the same time, there is no humanitarian aid by those who are responsible for the loss of livelihood. After all, guaranteeing the enjoyment of their human rights is extremely endangered. Therefore, addressing climate-induced migration with human rights norms should be improved as soon as possible to contribute to climate justice in the Global South.
[i] Mary Robinson, Foreword in Stephen Humphrey (ed) Human Rights and Climate Change (Cambridge University Press 2009) p. xvii.
[ii] See note 1.
[iii] International Organization for Migration, No. 31: Climate Change and Migration, p. 9.
[iv] <https://time.com/5687470/cities-countries-most-affected-by-climate-change/> accessed 10 March 2020.
[v] <https://www.visualcapitalist.com/all-of-the-worlds-wealth-in-one-visualization/> accessed 11 March 2020.
[vi] Showing that poverty and human rights violations correlate: <https://www.hrw.org/news/2013/01/11/discrimination-inequality-and-poverty-human-rights-perspective> accessed 11 March 2020.
[vii] Cosmin Corendea, Mani Tanvi; ‘Deriving a legal framework to address climate change-induced migration in the Pacific’ (2017) in Stefan Burkhardt, Silke Franke (eds.) Argumente und Materialien zum Zeitgeschehen 107, pp. 79.
[viii] https://www.newclimateforpeace.org/blog/interview-seeing-climate-migration-through-human-rights-lens. <accessed 20 November 2020>.
[ix] Bonnie Docherty, Tyler Giannini; ‘Confronting a rising tide: a proposal for a convention on climate change refugees’ (2009), Harvard Environmental Law Review Vol. 33, p. 350.
