A Proposal for Introducing “UN Guiding Principles on Cross-Border Displacement Due to Environmental Disasters”

Cross-border displacement due to environmental disasters is at the heart of today’s international migration discourse. To address the issue, I propose the adoption of “UN Guiding Principles on Cross-Border Displacement Due to Environmental Disasters”.

Millions of people are forcibly displaced by floods in China, India and the Philippines; windstorms in the U.S.A., Cuba and Madagascar; earthquakes in Chile and Italy; and droughts in Somalia and South Sudan. Similarly, the Pacific Island States are in danger of disappearing due to rising sea levels. In 2015 people were twice as likely to have been displaced by a disaster than they were in the 1970s.[1] According to the International Displacement Monitoring Centre (IDMC), a total of 184.6 million people were displaced by disasters between 2008 and 2014 – not including drought and other incidents of environmental degradation.[2] At least 53 countries have already received persons affected by disasters or refrained from returning them.[3]

The increased references to disaster displacement by other actors at the international level, such as IOM, UNHCR and the EU Parliament,[4] are proof of the growing awareness of the issue in recent years. However, as many researchers have pointed out, a legal protection gap exists for cross-border displaced persons due to environmental disasters.[5]

Given the factual evidence which points to the vulnerability of displaced persons, there are three legal principles that call for an international protection framework and that balance out the states’ concern for sovereignty: the principles of dignity, humanity and cooperation. These three overarching fundamental legal principles derive from international human rights, humanitarian, refugee, and environmental law.[6] Just recently, the UN International Law Commission’s 2016 “Draft Articles on the Protection of Persons in the Event of Disasters” made reference to these principles.[7]

In 2015 the state-led Nansen Initiative on Disasters and Cross-border Movements has adopted the non-binding Agenda for Protection of Cross-Border Displaced Persons in the Context of Disasters and Climate Change. The Agenda has been endorsed by 109 states “as a guiding document to better conceptualize cross-border disaster-displacement.”[8] The Agenda identifies the displaced and compiles examples of effective state practices which “can provide inspiration to states and other relevant actors.”[9] This is an important first step and can be seen as a success. However, the Agenda does not aim to create new legal standards and does not mention specific international applicable principles.

Hence there is a need to go beyond this Agenda to close the protection gap. While several researchers have suggested hard law approaches,[10] I propose the adoption of soft guiding principles under the auspices of the UN, which I will call the “UN Guiding Principles on Cross-Border Displacement Due to Environmental Disasters” – similar to the UN Guiding Principles on Internal Displacement. This soft law mechanism is a more realistic avenue to achieve global consensus. It also provides the flexibility to accommodate new scientific developments and international policies in the field of climate change and migration.

When drafting these UN Guiding Principles we do not have to reinvent the wheel. Several legal frameworks have recently conceptualized the phenomenon of natural disasters or disaster-related mobility which can help develop the UN Guiding Principles: The UN Guiding Principles on Internal Displacement[11] and the Kampala Convention[12] can serve as an indication of the relevant rights and protection. The Nansen Initiative’s Agenda is especially useful for its definition of disaster displacement. The mentioned ILC draft and the UN Sendai Framework for Disaster Risk Reduction 2015-2030[13] include language on natural disasters. The IOM Migration Crisis Operational Framework[14] and the UNHCR Guidelines on Temporary Protection or Stay Arrangements[15] can provide examples of the necessary forms of protection.

Some might argue that it is difficult to legally establish the existence of a natural disaster and to determine the protection needed in the individual case. However, existing good practices found in national laws for temporary stay arrangements, such as in Cyprus, Finland, Sweden and the USA can provide useful support.[16] Finally, good practices in determining the existence of a natural disaster, can be retrieved from the private sector, particularly when dealing with catastrophe insurance.[17]

In developing the proposed UN Guiding Principles in my forthcoming chapter,[18] I revert heavily on these existing international, regional and state regulations. In doing so I aspire to show how approaches to disaster-related mobility are already evolving in more formal contexts, and to demonstrate how developing the UN Guiding Principles is only a short step from what is already out there. By establishing a clear definition of “cross-border disaster displaced persons” and by formulating the core protection right of non-refoulement, the proposal provides a working basis for a realistic soft law agreement among affected and assisting states. We are not so far away from developing a legal framework.

[1] Advisory Group on Climate Change and Human Mobility, ‘Climate Change and Human Mobility Solution Agenda – Resilience – Paris COP 21’ (UNHCR) | Link | Accessed 27 June 2017.

[2] Internal Displacement Monitoring Centre (IDMC), ‘Global Estimates 2015: People Displaced by Disasters’ (July 2015) | Link | Accessed 27 June 2017.

[3] Nansen Initiative, ‘Agenda for the Protection of Cross-Border Displaced Persons in the Context of Disasters and Climate Change’ (1 December 2015) vol 1, 50 [Annex I] | Link | Accessed 27 June 2017.

[4] E.g. UN Secretary-General, ‘Chair’s Summary: Standing Up for Humanity: Committing to Action’ (World Humanitarian Summit, Istanbul 23-24 May 2016) 5 | Link | accessed 27 June 2017; UNGA, ‘One Humanity: Shared Responsibility, Report of the Secretary-General for the World Humanitarian Summit’ (2016) UN Doc A/70/709 Annex, 21; UNCHR, ‘Guidance on Protecting People from Disasters and Environmental Change Through Planned Relocation’ (7 October 2015) 4 | Link | accessed 27 June 2017; European Parliament, Directorate-General for Internal Policies, ‘Study “Climate Refugees“: Legal and Policy Responses to Environmentally Induced Migration’ (2011) PE 462.422, 65 | Link | accessed 27 June 2016.

[5] Jane McAdam, Climate Change, Forced Migration, and International Law (OUP 2012) ch 2; Susan Martin, ‘Environmental Change and Migration: Legal and Political Frameworks’ (2012) 30 Environment and Planning C: Government and Policy 1045.

[6] African Union, ‘Convention for the Protection and Assistance of Internally Displaced Persons in Africa’ (22 October 2009) art 3(1)(c) | Link | accessed 27 June 2017.

[7] ILC, ‘Report of the International Law Commission’ GAOR 71th Session Supp No 10 (2016) UN Doc A/71/10, 12-74.

[8] Nansen Initiative, ‘Global Consultation – Conference Report Geneva 12-13 Oct 2015’ (December 2015) 59 | Link | Accessed 27 June 2017.

[9] Nansen Initiative (n 3) 44 para 106.

[10] For signing a new convention, see David Hodgkinson and Lucy Young, ‘“In the Face of Looming Catastrophe”: A Convention Climate-Change-Displaced Persons’ in Michael B Gerrard and Gregory E Wannier (eds), Threatened Island Nations (CUP 2013) 299; Bonnie Docherty and Tyler Giannini, ‘Confronting a Rising Tide: A Proposal for a Convention on Climate Change Refugees’ (2009) 33 Harv Envtl L Rev 349; Mizan R. Kahn, Toward a Binding Climate Change Adaptation Regime: A Proposed Framework (Routledge 2014); for extending the refugee definition in the 1951 Refugee Convention, see Matthew Lister, ‘Climate Change Refugees’ (2014) 17 Critical Rev of Intl Social and Political Philosophy 618); for adding a Protocol to UNFCCC see Frank Biermann and Ingrid Boas, ‘Preparing for a Warmer World: Towards a Global Governance System to Protect Climate Refugees’ (2010) 10 Global Environmental Politics 60.

[11] UNCHR, ‘Report of the Representative of the Secretary-General, Mr. Francis M. Deng, submitted pursuant to Commission resolution 1997/39. Addendum: Guiding Principles on Internal Displacement’ (11 February 1998) UN Doc E/CN.4/1998/53/Add.2.

[12] African Union (n 6).

[13] UNGA Res 69/283 ‘Sendai Framework for Disaster Risk Reduction 2015-2030’ (23 June 2015) UN Doc A/RES/69/283.

[14] IOM Council, ‘IOM Migration Crisis Operational Framework’ (15 November 2012) MC/2355 Annex I, 4 | Link | accessed 12 May 2017.

[15] UNHCR, ‘Guidelines on Temporary Protection or Stay Arrangements’ (UNHCR February 2014) | Link | Accessed 27 June 2017.

[16] Cyprus - The Refugee Law of 2000 (No. 6(I) of 2000), art 29(4); Finland - Aliens Acts (301/2004, as amended by 239/2017), s 109(1); Sweden - Aliens Act (2005:716), s 2(3); and USA - Immigration and Nationality Act of 1952, s 244(b)(1)(B)(i).

[17] For example, the Earthquake Commission Act 1993 of New Zealand, Art 2 (1), which makes provisions with respect to the insurance of residential property against damage caused by certain natural disasters and which contains definitions of natural disasters and natural disaster damage.

[18] Simon Behrman & Avidan Kent, Climate Refugees: Overcoming the Legal Impasse? (Routledge, forthcoming).