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2020 | Book

International Law and the Protection of “Climate Refugees”

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About this book

This book studies the topic of forced climate migrants (commonly referred to as “climate refugees”) through the lens of international law and identifies the reasons why these migrants should be granted international protection. Through an analysis focused on climate change and human rights international law, it points out the legal principles and rules upon which an international obligation to protect persons forced to migrate due to climate change is emerging. Sciaccaluga advocates for a state obligation to protect climate migrants when their origin countries have become extremely environmentally fragile due to climate change—to the point of becoming unable to guarantee the exercise of inalienable human rights in their territories. Turning to the future, this book then investigates the current elements on which a “forced climate migrants law” could be built, ultimately arguing for the duty to provide some form of assistance to forced climate migrants in a third state within the international legal system.

Table of Contents

Frontmatter
Chapter 1. Introduction
Abstract
The introduction sets out the principal questions tackled in the book. It underlines the importance of these for international law and the international community, both from a political and legal standpoint. The phenomenon of climate-induced migration is a serious challenge that requires a complex and multifaceted response. This chapter synthetically points out the risks and opportunities linked to addressing this phenomenon from an international viewpoint. It furthermore provides the reader with a brief outline of the structure of the book.
Giovanni Sciaccaluga
Chapter 2. Conceptual Framework
Abstract
This chapter contextualizes the phenomenon of climate change-related migrations and illustrates the conceptual framework underpinning this book. Science suggests that without successful global climate policies, massive human suffering and conflict, triggering uncontrolled migration in different parts of the world, is possible, if not (very) probable. Interdependence is the key concept that underpins the book. It entails that no single actor can be considered as a stand-alone, independent unit. Ecological studies broadly rely on this principle to explain the functioning of ecosystems. This chapter investigates the links between ecosystem services, human well-being, and migration patterns. Following these trends, it argues that social sciences and international law too should refer to interdependence as a key guiding principle, and that it is sound today to talk of “international interdependence law”.
Giovanni Sciaccaluga

Are All Climate Change Migrants Equal? Making Light in the “Climate Refugees Cauldron”

Frontmatter
Chapter 3. Climate Change and Migration
Abstract
This chapter draws attention to the most important findings concerning climate-related migration. It discusses the etiologic link between climate change-driven environmental degradations and human mobility; it then focuses on the difficulty of neatly separating forced and voluntary migrations. The distinction between climate-related forced and voluntary migrants is ontologically blurred, yet it is of utmost importance under international law. The chapter explains when and how it is possible to talk of voluntary or forced migrations, both mentioning dedicated studies and existing cases of climate-induced migration. Although confined to a national dimension, these cases provide clear examples of the first relocation processes caused by climate change. This leads to the last crucial element: most of the people involved tend to migrate within their national state, therefore not directly affecting international law and relations. The chapter highlights why this element also is of great importance for an international law perspective on the issue.
Giovanni Sciaccaluga
Chapter 4. How Many “Climate Refugees”? Pros and Cons of Maximalism and Minimalism
Abstract
This chapter turns to the different approaches adopted over the years to study climate-driven migration. Depending on the approach, very different discourses and estimates have been proposed. Figures concerning future “climate refugees” span from zero to hundreds of millions of people. The chapter analyzes the evolution of the study concerning the topic, investigating the pros and cons of the two main schools of thought—maximalism and minimalism—that have approached it in the years. The chapter also critically discusses recent and ongoing climate-related mass migration events, explaining how these may be understood in light of the different schools of thoughts. This to shed further light on the phenomenon. It is so possible to draw lines and start appreciating that there are different categories of climate-related migrants, an important step to understand which ones can effectively be considered through the prism of international protection.
Giovanni Sciaccaluga
Chapter 5. Defining the Category: Who Are “Climate Refugees”?
Abstract
Generally, “climate refugees” can be considered as all individuals forced/induced to leave their houses due to global warming. Understood as such, the category is far too broad to be legally coherent. This uncertainty has contributed to the proliferation of (proto)legal classifications and definitions. Without the identification of a specific sub-category within the “climate refugees cauldron” that should be protected under international law, “climate refugees” becomes a hollow concept. In fact, just a minority of climate migrants leave their origin country in conditions of absolute need of international protection, whereas the majority is composed of “economic migrants”. The focus here is on the aforementioned minority. While discussing existing definitions, this chapter adopts Atapattu’s notion of “forced climate migrants” and builds on it, understanding them as individuals forced to abandon their state because of the occurred impossibility there to enjoy fundamental rights as a consequence of significant climate change-related environmental degradations.
Giovanni Sciaccaluga

A Problem of Rights and Responsibilities: The Legal Rationale for the Protection of Forced Climate Migrants

Frontmatter
Chapter 6. International Climate Change Law and State Responsibility
Abstract
This chapter studies what obligations exist regarding climate policies to be undertaken by states under customary law and the international climate change regime. It examines the classic notion of international responsibility, wondering the extent to which a state may be considered responsible for climate alterations capable of causing international displacement of individuals in third countries. The issue is addressed considering the do no harm principle, establishing that states may be held responsible where no action is taken to prevent foreseeable environmental damages in other states. “Foreseeability” is thus a crucial element. This chapter argues that the evolution of international climate change law leaves fewer and fewer opportunities to states to be indifferent to global warming, also arguing that the do no harm principle acquires growing importance when states consciously permit or promote on their territories climate-altering behaviors capable of damaging other countries.
Giovanni Sciaccaluga
Chapter 7. The erga omnes Obligation to Mitigate and Manage Climate Change
Abstract
Different elements arising from climate change international law may bring to light an international custom obliging states to mitigate global warming and to adapt to it. Such obligations would moreover be erga omnes because of the essentiality of the international “good” to be protected: the climatic system in which the international community has developed to this day. By analyzing the notions of international customs and erga omnes obligations, this chapter explains why the international community is starting to be bound by general international law to act against climate change. The preservation of sustainable climatic balances and the need to adapt to the inevitable ongoing climate alterations represent general and mandatory international obligations. Focusing on the particular issue of climate-induced migration, this theorization is used to argue that under climate change adaptation policies and in fulfillment of existing human rights obligations, states should grant international protection to forced climate migrants.
Giovanni Sciaccaluga
Chapter 8. Climate Change, Environmental Degradation, and Fundamental Human Rights
Abstract
This chapter looks at the relationship between climate change and fundamental human rights. Through the examination of universal and regional human rights instruments and case law, it argues that an international state obligation to provide decent environmental conditions to individuals and communities has arisen in the last decades. Moreover, in view of anthropogenic climate change, the international community has started questioning how climate change-induced environmental alterations affect human rights. The chapter examines this topic, highlighting the need for international action to avert the negative effects on human rights caused by climate change. Since the enjoyment of basic human rights such as life, health, and access to livelihood can be infringed by global warming, it is possible to link human rights law with the issue of forced climate migrants: these become in fact such where there is the impossibility to enjoy fundamental human rights at home due to climate change.
Giovanni Sciaccaluga
Chapter 9. Why States Should Protect Forced Climate Migrants
Abstract
The evolution occurred under the UN and the progress made by regional human rights courts suggest that states may have an obligation to protect forced climate migrants when these cannot enjoy their fundamental rights in their national territory due to climate change. This chapter argues that when climate change-driven environmental degradations affect the entirety of a state’s territory, dismantling its capability to provide for its citizens, the international community should be obliged to protect these individuals. Basic human rights such as life, health, and access to livelihoods are unalienable. The main argument of this book is that in the name of inalienable human rights protection, forced climate migrants should be provided with protection in third countries when their national state is environmentally weakened by climate change up to the point of becoming unable to grant the enjoyment of these rights to its citizens on its own territory.
Giovanni Sciaccaluga

The Embryos of Forced Climate Migrants’ Law

Frontmatter
Chapter 10. The Role of the UNFCCC and of the Global Compacts for Refugees and Migration
Abstract
This chapter investigates the future of forced climate migrants’ law, whose embryos are already in place: the progress made under the UNFCCC, the adoption of the Refugees and Migration Compacts, as well as the success of dedicated intergovernmental initiatives in the last years go in this direction. From 2010 and COP16, the UNFCCC started explicitly addressing climate-related migration, and in 2018 COP24 endorsed the UNFCCC’s Task Force on Displacement recommendations. In the same period, the UNGA passed the Global Compacts on Refugees and Migration. Whereas the first adopts a soft approach toward climate-related refugee movements, the second comprehensively includes climate change as a driver of human migration. Altogether, these instruments represent the “embryo” of what might become in the future a dedicated legal system for forced climate migrants. This chapter examines these trends addressing how they may fit in a systemic evolution of international law to provide responses to the problem of climate-related migration.
Giovanni Sciaccaluga
Chapter 11. The Role of Complementary Protection
Abstract
Among existing international protection frameworks, complementary protection systems appear the fittest to adapt and cover the category of forced climate migrants. This final chapter analyzes complementary protection systems to understand if and how they may be progressively interpreted by competent courts. Attention is devoted to national and regional cases to investigate the possible evolutionary margins existing therein, for instance, within the European Convention on Human Rights system. Arguably, there is room in similar systems to reinterpret the category of forced climate migrants within the group of those who can be protected under complementary protection mechanisms.
Giovanni Sciaccaluga
Chapter 12. Conclusion
Abstract
The conclusion sums up the thesis of the book. It highlights the work’s most important features and research results, offering the reader a clear “stand-alone” final chapter. It explains why this research should be of keen interest to all actors involved in international law and politics. By offering a systemic legal analysis of why forced climate migrants should be protected under international law, it provides new elements for future studies on “climate refugees”, stimulating debate and interest.
Giovanni Sciaccaluga
Backmatter
Metadata
Title
International Law and the Protection of “Climate Refugees”
Author
Giovanni Sciaccaluga
Copyright Year
2020
Electronic ISBN
978-3-030-52402-9
Print ISBN
978-3-030-52401-2
DOI
https://doi.org/10.1007/978-3-030-52402-9

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