From “climate refugees” to “survival migrants”: international legal protection standards Michèle Morel PhD Fellow Research Foundation Flanders (FWO) Ghent University, Faculty of Law Department of Public International Law 1-5 November Colloquium of the IUCN Academy of Environmental Law Wuhan, China

Research Question: To what extent does international law protect “climate refugees”? Michèle Morel, Ghent University - Belgium

Two parts: 1.Conceptualisation From “climate refugees” to “survival migrants” 2.International legal protection framework A) Prevention B) Humanitarian assistance C) Legal protection Michèle Morel, Ghent University - Belgium

Quid “CLIMATE REFUGEES”? 1. Meaning in literature 2. Climate change not only a migration issue 3. Continuum: voluntary --- general/extreme poverty --- survival threat 4. Problem with refugees (1951 Refugee Convention) 5. Problem with climate (multi-causality of migration)  for legal protection purposes: no adequate term Michèle Morel, Ghent University - Belgium 1. CONCEPTUALISATION

Concept of SURVIVAL MIGRATION (A. Betts, 2009) Definition: 1. outside country of origin 2. existential threat 3. no domestic remedy Cause of existential threat: mainly environmental and socio-economic factors 1. environmental disaster (possibly but not necessarily related to climate change) 2. livelihood failure 3. state fragility Michèle Morel, Ghent University - Belgium

“Climate refugees” facing survival threat fit the definition of “survival migrants”  incorporation Role of climate factor may be dominant, almost non-existing or in between Examples: - Island States - Zimbabwe Michèle Morel, Ghent University - Belgium

“Survival” migration: threat to the right to life  general/extreme poverty (= violation of other human rights) = excluded  Threshold “existential threat”: how to determine uninhabitability or unlivability of a country? Michèle Morel, Ghent University - Belgium

Initial Research Question: To what extent does international law protect “climate refugees”? Michèle Morel, Ghent University - Belgium

Revised Research Question: To what extent does international law protect “survival migrants”? Michèle Morel, Ghent University - Belgium !  Cross-border movements >< Internal displacement: Guiding Principles on Internal Displacement

Persecution-induced migration Conflict/violence-induced migration Survival migration International human rights law 1951 Refugee Convention 1969 OAU Convention 1984 OAS Declaration EU Qualification Directive EU Temporary Protection Directive International human rights law International humanitarian law 1969 OAU Convention 1984 OAS Declaration EU Qualification Directive EU Temporary Protection Directive International human rights law NOT: 1951 Refugee Convention NOT: International humanitarian law 1969 OAU Convention ? NOT: 1984 OAS Declaration EU Qualification Directive ? EU Temporary Protection Directive ? 2. INTERNATIONAL LEGAL FRAMEWORK Michèle Morel, Ghent University - Belgium

 Survival migrants much weaker legal framework than migrants fleeing persecution and conflict/violence  Notwithstanding that claim of survival migrants to international protection is as valid Identical features: - outside country of origin - existential threat - no domestic remedy Only qualitative difference = cause of existential threat  does not justify the difference in legal protection Michèle Morel, Ghent University - Belgium

INTERNATIONAL HUMAN RIGHTS LAW Applicable to each individual, thus also to (survival) migrants The State on whose territory an individual finds him- or herself is responsible for the protection of the human rights of that individual, to the extent that the State is bound by international human rights law. (International Law Commission (ILC) Articles on State Responsibility 2001) Michèle Morel, Ghent University - Belgium

Two questions arise: 1.Survival migration likely to be South-South  can developing country be expected to respect human rights of survival migrants if it cannot respect human rights of its own citizens? International burden-sharing requires resettlement to the North Michèle Morel, Ghent University - Belgium

2.Which human rights apply to survival migrants and to what extent? The right to be protected against forcible return Other rights (civil, political, economic, social and cultural): legal status Michèle Morel, Ghent University - Belgium

The right to be protected against forcible return = principle of non-refoulement No State is allowed to return a person to another State where that person risks being subjected to serious human rights violations. Michèle Morel, Ghent University - Belgium Which human rights violations?

No univocal prohibition of refoulement in international law 1951 Refugee Convention – Article UN Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (UNCAT) – Article 3 International Covenant on Civil and Political Rights (ICCPR) – Article 7 European Convention on Human Rights (ECHR) – Article 3 Michèle Morel, Ghent University - Belgium

1951 Refugee Convention – Article 33 No Contracting State shall expel or return (“refouler”) a refugee in any manner whatsoever to the frontiers of territories where his life or freedom would be threatened on account of his race, religion, nationality, membership of a particular social group or political opinion UNCAT – Article 3 No State Party shall expel, return ("refouler") or extradite a person to another State where there are substantial grounds for believing that he would be in danger of being subjected to torture. (Article 1) … "torture" means any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person … when such pain or suffering is inflicted by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity… Michèle Morel, Ghent University - Belgium

ICCPR – Article 7 No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment. In particular, no one shall be subjected without his free consent to medical or scientific experimentation. Human Rights Committee (HRC) General Comment No. 20: Article 7 includes a prohibition to expose individuals to the danger of torture or cruel, inhuman or degrading treatment or punishment upon return to another country by way of their extradition, expulsion or refoulement. However, no “survival migration” cases whereby HRC acknowledged violation of Article 7… Michèle Morel, Ghent University - Belgium

ECHR – Article 3 No one shall be subjected to torture or to inhuman or degrading treatment or punishment. European Court of Human Rights (ECtHR): Article 3 implies prohibition of return when risk of torture or inhuman or degrading treatment or punishment. Soering v. the UK Cruz Varas v. Sweden Vilvarajah et al. v. the UK Chahal v. the UK Salah Sheekh v. the Netherlands Michèle Morel, Ghent University - Belgium

IMPORTANT : Source of risk of proscribed treatment = irrelevant  Harm may emanate from non-State actor OR from non-human situation D v. the UK (1997): HIV/AIDS, St. Kitts Violation of Article 3 – “very exceptional circumstances” N v. the UK (2008): HIV/AIDS, Uganda No violation of Article 3 Severe illness: only very exceptional cases may amount to breach of Article 3 (stage of illness, treatment and support by relatives in country of origin) Michèle Morel, Ghent University - Belgium

CONCLUSION ECtHR reluctant to include socio-economic rights within scope of Article 3 Expulsion of survival migrants facing life threatening socio-economic and environmental conditions, in the absence of “very exceptional circumstances” with regard to a severe illness: unlikely to be considered by ECtHR as violation of Article 3  Principle of non-refoulement generally NOT applicable to survival migrants  Core obstacle? Measuring “survival threat”… as opposed to general poverty Michèle Morel, Ghent University - Belgium

Thank you Michèle Morel, Ghent University - Belgium