Protection of climate IDP and Refugees Human rights, forced migration and climate change Sophie Pécourt Research Paper written in french Certificate of Advanced Studies in Human Rights Law, University of Geneva, Direction Prof. Maya HERTIG RANDALL et Prof. Michel HOTTELIER December 2008

Abstract Warming of the climate system is unequivocal, according to the Intergovernmental Panel on Climate Change's Fourth Assessment Report (AR4, 2007). Rising sea level, increased incidence and severity of extreme weather events, environmental degradation – disruptions of monsoon systems and other rainfall regimes, droughts, coastal floodings - will affect millions of people. Despite the lack of consensus on estimated number of potential climate change migrants, all specialists agree that the main human consequence of climate change will be the displacement of people from their homes, whether temporarily or permanently. Densely-populated and low-lying areas are especially at-risk; among inhabitants of those areas, the poorest are to face the fierceness of the effect of climate change on their living conditions. Even if some of the population movements may not be characterized as forced displacements, it is an evidence that all of the situations (slow-onset disasters or environmental degradation, extreme weather events) may trigger forced displacement. The “forced” character has to be analysed regarding the initial cause of displacement and also the return conditions: climate change will create situations where living conditions or risk exposure (to extreme events) are incompatible with international human rights standards. Last human effect of global warming to be mentioned is the increase of conflicts, mainly linked with the scarcity of resource: climate-change induced conflicts will also indirectly trigger forced migrations. Thus climate change will drive forced migrations, and they will be massive, internal or international. Climate IDP are defined as migrants forced to flee due to the effect of climate change, staying within the internationally recognized borders of their State of residence; climate refugees (the “refugee” term here is not strictly referring to its definition in the 1951 Refugee Convention) will in addition cross an internationally recognized border. Climate driven forced migrations are questioning human rights, because the human consequences of global warming are predicted to be immense. Human rights law is thus relevant in two ways. First because climate change causes human rights violations, which are paramount among the most vulnerable people. Second because human rights make clear that government obligations are to prevent human rights violations, and those obligations do not stop at their own borders. Affected people will face violations of all of some of their livelihood rights as defined in the International Covenant on Economic, Social and Cultural Rights, in regional treaties like the African Charter on Human and Peoples' Rights or the American Convention on Human Rights, and specific treaties like the

Protection of climate IDP and Refugees, S. Pécourt [email protected]

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Convention on the Rights of the Child: Right to Food (Art.11.2 ICESCR; Art. 12 San Salvador Protocol), Right to health (art. 12.1 ICESCR), and also the Right to adequate housing as part of the right to an adequate standard of living. Finally, the right to an adequate standard of living is violated, and it is reasonable to consider that the accumulation of violations can constitutive a violation of the right to life, as stated in the International Covenant on Civil and Political Rights (Art. 6) and defined by the Human Rights Committee in its General Comment 6. In this frame, the recent practice of the UN treaty bodies and the European and Inter-American Courts is of high interest; in particular, different cases of Indigenous People in front of the inter-American Court of Human Rights have brought significant improvement in the interpretation of the right to life. According to the description of forced migration given in the Guiding Principles on Internal Displacement, climate IDP fall in the scope of their protection. The recent improvement of the legal protection of IDPs, in particular by the entry into force of the legally-binding Great Lakes Protocol on Internally Displaced Persons and the coming adoption of the African Union Convention on the Protection and Assistance for Internally Displaced Persons (IDPs) in Africa, is significant. Nevertheless, the effectiveness of the protection and the assistance provided climate IDP (in opposition to conflict IDP) is a great concern. Regarding the protection of climate refugees, it is not obvious to ensure that they could easily be recognized as refugees under the 1951 Refugee Convention. Minimal protection is provided by the principle of non-refoulement, derived by the European Court of Human Rights and the Human Rights committee from the prohibition of torture and cruel and inhuman treatment (Art. 3 ECHR; Art. 7 ICCPR), which prohibits the forced return of a person to a situation where his/her life can reasonably be considered at risk. Nevertheless, the main issue for being recognized as a refugee convention is to prove whether the human rights violations faced by people affected by climate change can be considered as a persecution in the sense of the Convention (Art. 1A). A dynamic interpretation of the Convention, which is a living instrument that must be interpreted in the light of present-day conditions, could reasonably allow to recognize that climate change affected people are persecuted on the grounds of belonging to a certain social group.

Protection of climate IDP and Refugees, S. Pécourt [email protected]

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