ReliefWeb

1. EXECUTIVE SUMMARY

This paper first presents the background to and context of current discussions and approaches surrounding climate change-related human mobility across borders (Part 1) before identifying the normative gaps in the present international protection regime together with institutional and operational shortcomings (Part 2). It argues that while a relationship between climate change, environmental events and displacement/migration exists, direct causalities are difficult to establish. Rather, such movements are triggered by multiple causes. This has several implications:

(1) While the question of the responsibility of states that historically have been and continue to be the main emitters of greenhouse gases is legitimate and relevant, identifying the needs of people moving across borders in the context of climate change and analysing how these needs should be addressed from a human rights perspective is more appropriate than an approach that would put the responsibility of traditional emitters to admit affected people in the forefront.

(2) Because it is difficult to predict the number of persons who will be displaced or who will decide to migrate for reasons linked to climate change, devising policies on the basis of needs and corresponding rights rather than numbers seems more adequate even though there are clear indications that the numbers will grow.

(3) Despite the complex relationship between climate change and population movements, five scenarios can be identified that trigger such movements. These scenarios are sudden-onset disasters; slow-onset environmental degradation; the destruction of small island states by rising sea levels; areas designated as prohibited for human habitation because of mitigation and adaptation measures or because of a high risk of disasters occurring there; and unrest, violence and conflict over resources diminishing as a consequence of climate change.

In this context, the paper explores general obligations of states at the three levels of mitigation, adaptation and protection. The existence and applicability of legal frameworks differ significantly with respect to the character of the movement of persons, and thus depend on whether such movement takes place within the territory of a state or across borders as well as whether it can be considered voluntary or forced. The lack of an agreed terminology is acknowledged as gap. However, this paper does not consider this absence as a real problem and therefore does neither analyse the many existing definitions nor propose new terminology. Rather, in analyzing relevant branches of international law, the paper concludes that three critical legal issues remain unaddressed: (1) criteria to distinguish between voluntary and forced movements, though such distinction is necessary in light of the fact that international law treats them differently; (2) rights related to admittance and stay on foreign territory; (3) the legal situation and rights of persons on foreign territories, i.e. status rights.

In exploring possible avenues, the paper analyses existing approaches to address cross-border displacement and migration at the domestic, regional and international levels as well as suggestions by private institutions. A strategy based on the four pillars of prevention, migration management, temporary and permanent protection schemes and resettlement is proposed for normative regulations and a returnability test is suggested as a tool to better distinguish between forced and voluntary movements. In balancing the advantages and disadvantages of a hard versus soft law instrument, the paper suggests a multi-level approach to best address the multi-faceted challenges of cross-border migration and displacement at the normative level (Part 3).