The planet's first legal think tank dedicated to climate migrants
26 February 2021 – conducted by James Sedlak
In the following interview, Mali’o discusses her work as a climate adaptation innovator, building communities around equitable solutions and how her work addresses problems of migration. She has over a decade of experience working in academic, government, and non-profit settings to advance program goals, protect healthy ecosystems and ensure community well-being.
25 February 2021 – by Robert Los
Introduction
The European Union (EU) has been a driving force in the fight against the climate challenges of the future even before Ursula von der Leyen, President of the European Commission, presented her ambitious targets for the “European Green Deal” to the public in December 2019.[1] The EU’s international climate policy began to gain significant momentum with the ratification and implementation of the United Nations Framework Convention on Climate Change (UNFCCC) and the Kyoto Protocol. It finally manifested itself as an international driving factor with the Paris Agreement of 2015, prior to which the EU, together with several developing countries and island states formed the so-called High Ambition Coalition (HAC) and conducted relevant preparatory work to persuade other major players like the United States (US) to reach an ambitious agreement.[2]
The Paris Agreement was signed during the refugee crisis of 2015/2016, which troubled Europe in particular. The highly complex issue of climate migration thus seems destined to receive a heightened degree of attention. In this respect, it may come as no surprise that the agreement acknowledges the problem for the first time in the context of an international climate agreement, albeit only in the legally non-binding preamble.[3] Additionally, by addressing the issue in Art. 50 the agreement incorporates climate migration into the existing system of loss and damage, and opens up the scope of the ‘Warsaw International Mechanism for Loss and Damage’ task force.[4] However, it is stated in the same section that the findings of the task force do not provide a legally binding basis for liability or compensation.[5] An international agreement exceeding the status of soft law or mere declarations of intent, and which regulates the complexity of climate migration in a binding manner, is still non-existent.[6]
In light of this legal gap in protection and the EU’s self-formulated claim to leadership in the fight against climate change,[7] this essay intends to provide a cursory overview of the legal status quo of climate migration – an important ramification of climate change – in the EU, and the developments in response to it. First, the historical development of the policy debate on climate migration will be retraced and certain milestones will be outlined before existing regulations at both the European and member state levels will be discussed. Finally, possible leverage points for legal gateways and regulations for the protection of climate migrants will be briefly pointed out.
A discourse with teething problems
Climate migration has been addressed at the European level by European institutions for more than 20 years, although the debate has admittedly not remained consistent. The European Parliament first addressed the issue in 1999 in a resolution on environment, security, and foreign policy.[8] In Art. K of the resolution, the parliamentarians stated that the number of climate migrants already exceeded that of ‘traditional’ refugees, according to international studies. Furthermore, climate migration was classified as a symptom of the global poverty problem, and it was recognized that already-destitute and impoverished people would be specifically and intensely affected.[9] The explanatory statement shows that the complexity of the issue was already recognized at that time. Identifying climate-induced migration as a threat to security and international relations, but above all as having the propensity to become “one of the worst humanitarian crises of our time” and lead to an “exodus of refugees”, the resolution called for international recognition of climate refugees and emphasized the need for international cooperation to mitigate the problem.[10] Subsequently, Green Members of the European Parliament (MEPs) in particular have tried, unsuccessfully, to include the issue in reports, studies and resolutions of the EU.[11]
The issue gained renewed and more concrete momentum in the years 2007 to 2009. In addition to the Green MEPs who conducted seminars and again wrote reports to give the issue the attention it deserved, several weighty papers and events addressed the issue. In April 2007, the European Parliament established a temporary Committee on Climate Change with 60 parliamentarians to formulate goals for European policy regarding the fight against climate change. At the Agora on climate change the following year, a number of the more-than 500 European NGOs in attendance warned of a link between climate change and increasing migration. One of the workshops again called on EU institutions to develop a strategy for climate-induced migration.[12] As many as 3 major papers joined the call of the social societies: a paper from the High Representative[13], a paper from the European Commission that linked climate change and security concerns[14], as well as another paper from the European Commission which advocates for the consideration of climate change effects in security, development and migration policy debates.[15]
The Stockholm Program, launched by the Swedish Presidency of the Council, gave the issue major impetus. The report not only established a link between natural disasters and migration, but it also addressed international protection and operational frameworks as “deficient, leaving several categories of people forced to flee or seeking safer existence without effective national or international protection.”[16] Precisely because of the latter, the final report called on the Commission to conduct further research regarding the legal gaps in protection and suggested that it develop a specific set of rules both by drawing on established protective instruments, and incorporating completely new concepts. The primary objective of the authors was to give Europe a pioneering role whereby, in addition to the recommended studies, on the one hand a fund for the provision of financial aid on the ground from European states was to be established and, on the other hand, migration policy was to be incorporated more strongly into development policy and in new international agreements.[17] A study by the European Parliament in 2011 supported this by further highlighting the gaps in legal protection and formulating similar recommendations.[18]
In 2013, the European Commission, under political and societal pressure, responded to the calls with a Staff Working Document.[19] Due to the evidence highlighted in a summary overview of the scientific studies at that time which showed that a large part of climate-induced migration is domestic in nature, development policy and adaptive instruments were identified as the preferable focus of the EU initiatives.[20] However, a position paper composed mainly by Green parliamentarians agreed to this only partially. They welcomed adaptive (and especially financial) local aid for the people and states affected. However, this alone would not be far-reaching enough for them. Instead, the paper argued for a so-called “two-axis” model. For the first axis, consisting of national or European protection, the paper provided concrete implementation suggestions in recasting existing law as the Qualification Directive, Temporary Protection Directive or the Return Directive[21]. For the second axis, concerned with international protection, the paper made suggestions in the form of addendums or protocols to existing international agreements.[22]
Nevertheless, the discourse dissipated somewhat when, in 2015, the aforementioned refugee crisis interfered with the positive trend. Although the European Commission mentioned climate change as one cause for migration amongst others in the European Agenda on Migration, just as the Paris Agreement did later in the year, the then-current crisis, its causes and respective countermeasures were to seize the full attention of the political agenda.[23] The European Parliament attempted to restart developments on climate migration with two further papers in 2016 and 2017, once again emphasizing cause-and-effect of climate change and migration, and highlighting the need for legal protection instruments.[24]
It can thus be stated that climate migration has been addressed across institutions in the EU in recent decades. Within these discourses, the different dimensions of the problem were also recognized and elaborated. The various dimensions of the problem were also recognized and concrete strategies and starting points were identified. To what extent the discourses have actually resulted in implementation, and whether the EU can thereby live up to its aspired pioneering role will be discussed in the following section.
Status Quo of European Legislation
When considering the legal landscape of Europe, it is convenient to distinguish between different levels and dimensions of protection. Protection can arise from regulations at the level of European law, but it can also arise at the level of member state law. Within the European level, again a distinction can be made between external and internal protection dimensions. Furthermore, the jurisprudence, which will not be covered during the scope of this paper, has to be considered as a third level.[25]
1. Protection at EU level
a. Protection in the external dimension
Legal protection that is explicitly linked to forced migration is found almost exclusively at the externally oriented dimension of European law.
The 2020 report initiated by the European Parliament on this very topic sees above all a gateway for legal protection for climate-induced migration in intergovernmental pacts on mobility and migration. [26] Indeed, it is true that both the EU Global Approach to Migration and Mobility (GAMM)[27] and the Valetta Summit Action Plan[28] identify changing climatic conditions as a driver of migration in their respective regulations.[29] Both agreements are primarily aimed at addressing the root causes of migration and the legally secure management of migration flows to ensure humane migration. The GAMM in particular, as the overarching regulatory framework for migration in the EU, is of enormous importance in this context. Though several bilateral agreements have been conducted with neighboring and third countries under this framework, none explicitly mention climate-induced migration in the arrangements for better management of migration flows.[30] An explicit mention is only made in the context of adaptive strategies. Whilst the GAMM and the Valletta Summit Action Plan only suggest adaptation as part of the global strategy,[31] the EU Emergency Trust Fund for Africa[32] actually concretized this in the aftermath of the Valetta agreement of the EU, its member states and the African states.[33]
In fact, the direct instruments at the European level are exclusively those of preventive and damage-mitigating adaptation. In addition to those already mentioned, there are other regulations and mechanisms of a similar thrust. For instance, the regulations based on the Commission’s concept of “Lives Dignity: from Aid-Dependence to Self-reliance”,[34] intend to “prevent forced displacement from becoming protracted and to gradually end dependence on humanitarian assistance in existing displacement situations by fostering self-reliance and enabling the displaced to live in dignity as contributors to their host societies, until voluntary return or resettlement.”[35] With respect to damage mitigation instruments, recourse to the general humanitarian aid instruments of the European Union is necessary. Firstly, humanitarian aid – largely determined by the Humanitarian Act of 1996[36] and its concretizations by the Commission – is of interest here.[37] The aim of this “act of solidarity”[38] is above all to help the most vulnerable people in third countries who are exposed to natural disasters or human-induced crises.[39] Secondly, through the 2019 Decision on a Union Civil Protection Mechanism, the EU provides a protective umbrella for its own member states that might also take effect in the event of natural disasters.
b. Protection in the internal dimension
Legal protection at the European level in the internal dimension is to be found in the barriers of international human rights and the obligation to protect against their violation. In this regard, the right to life (Art 6 ICCPR, Art 2 ECHR, Art 2 CFR) and the prohibition of torture and inhuman and degrading treatment (Art 7 ICCPR, Art 3 ECHR, Art 4 CFR; Art 15 QD) are of particular relevance.[40] However, even in its latest version, the Common European Asylum System (CEAS)[41] does not provide protection exclusively for climate-induced migration. If no other recognized ground for protection is met, legal protection is not guaranteed.[42]
The absence of an explicit provision does not exclude protection altogether. Primarily, the definition of inhumane and degrading treatment in Art 3 of the European Convention on Human Rights (ECHR)[43] and Art 15b of the Qualification Directive (QD)[44] provides for some leeway, supported by established court practice in analogous cases.[45] The QD harmonizes the standards under which a person is classified as “in need of international protection” for the member states. And while its refuge definition is nearly identical to the definition of the Geneva Refugee Convention, it grants a so-called subsidiary protection status. This subsidiary protection is defined as “protection of a third-country national or a stateless person who does not qualify as a refugee but in respect of whom substantial grounds have been shown for believing that the person concerned, if returned to his or her country of origin […] would face a real risk of suffering serious harm”[46]. It is granted, amongst other reasons, in cases of inhumane and degrading treatment.[47] The vagueness of this legal definition allows the member states, their courts and the European courts to interpret it favorably for climate migrants. However, amidst this positive interpretation of indeterminacy, it must also be mentioned that courts “have carefully circumscribed the meaning of ‘inhuman or degrading treatment’ so that it cannot be used as a remedy for general poverty, unemployment, or a lack of resources or medical care except in exceptional circumstances”.[48] Therefore, in light of the practical reluctance in case law and policy, the indeterminacy seems more like an evasion than a hopeful starting point for legally adequate protection.
Besides the QD, there are two more EU secondary legal acts that might provide protection in their scope. One is the Temporary Protection Directive,[49] which has never been triggered since its creation. In the long term, however, the Directive can only provide temporary protection, the applicability of which is questionable in the case of slow-onset events,[50] and is thus unsuitable for sustainable legal protection for climate migrants. Nevertheless, Art 2d of the Directive,[51] which regulates the arrival of refugees, could legally safeguard the reception and arrival of people affected by natural catastrophes.[52] Also potentially promising is the Return Directive.[53] This regulates the return of refugees and incorporates in particular the principle of non-refoulement for both political and factual reasons. It is worth noting that both an explicit mention of climatic reasons and a harmonized definition or recognition of reasons are omitted, so that member states could theoretically postpone an expulsion on environmental grounds according to Art 9(2).[54] The first efforts in this sphere were made by a German administrative court when it clarified that in exceptional cases, climate and environmental factors can lead to a non-refoulement obligation. However, the court left open the question of when such circumstances could exist, as they were not relevant to the decision and instead only noted that a “very high level of damage” is required.[55] Therefore safe legal grounds are not established, rather the postponement of return depends again upon administrative will.[56]
c. Conclusion
In summary, given the historical genesis of the European discourse on climate migration, the external dimension is unsurprisingly limited to mostly indirect adaptive assistance, and does no more than merely mention climate change as one of many drivers of migration. The internal dimension lacks explicit instruments altogether and presents the legal practitioner with the challenge of constructing vague and uncertain legal protection from the disconnected existing norms. Therefore, it can be stated that a sophisticated and reliable protection system has not yet been established at the European level.
2. Protection at the member states’ level
When it comes to protection at the level of national law in the member states, the special characteristics of European law must be considered a priori. In harmonized areas of law, member states can only adopt derogative regulations if they go beyond the requirements in positive terms in cases of “minimum harmonization”, or if they regulate aspects not covered by harmonizing frameworks.[57] Indeed, the European regulations on migration and asylum contain a significant gap between subsidiary protection as defined by the QD, and the principle of non-refoulement as set out in Art 3 ECHR for which member states can develop their own legal protections for refugees to the extent that they do not undermine the minimum standards of the CEAS. [58]
According to the 2020 report of the European Migration Network,[59] 20 member states have made use of this option, each with at least one humanitarian ground that exceeds the minimum standards of the CEAS. A total of 60 additional grounds can be found in the national regulations.[60] However, only two member states’ (Sweden and Italy) regulations explicitly address the issue of climate migration.
In Italy, persons eligible for the protection under Art 20-bis of the Immigration Act are third-country persons who cannot return to the country of origin due to a contingent situation and exceptional circumstances that do not allow for safe conditions upon their return.[61] These circumstances may very well cover environmental reasons amongst others.[62] The application for this protection status is to be submitted to and assessed by the Territorial Chief of Police. An appeal against a negative decision is to be filed with the bodies that otherwise decide on international protection, and does not automatically carry a suspensive effect but must be applied for separately. Within the substantive protection dimension, Italy issues a residence permit for 6 months in case of positive recognition of the status, which is less than the 1-year residence for people in the scope of Subsidiary Protection of the QD. The residence status is valid only on Italian territory and denies the beneficiary some rights granted under the European refugee standard. For example, family reunification is excluded and access to social welfare is reduced to its core elements. Nonetheless, beneficiaries are granted access to the labor market and employment, mainstream health services at a level equal to that afforded to other third-country persons, and general integration support. Since its introduction in 2018, this protection tool has only been used once.[63]
The eligibility definition of Sec. 2a of the Swedish Aliens Act does not differ too drastically from the Italian framework, though there are some differences. For example, it does require that the need for “protection” must feature a triggering environmental event that qualifies as “sudden”, and the unavailability of internal relocation. Additionally, unlike the Italian option, the Swedish application for protection follows the usual procedure for applying for international protection, and an appeal has an automatically suspensive effect. Swedish protection also goes beyond Italian protection in terms of content. Not only is the granted residence status valid for 3 years, but its validity can be extended to other states by issuing a travel document in the form of an alien passport. In addition, spouses – or partners in similar social relationships, such as same-sex or engaged couples – dependent children and parents of unaccompanied minor children are eligible for family reunification. In addition, unlike Italy, Sweden provides access to support services on par with the European Minimum Standards. However, within the context of the European refugee crisis, this protection has been suspended until 2021. How it is set to advance remains unclear.[64]
Alongside the two explicit regulations, there are also provisions in Finland and Cyprus that take ecological circumstances into account in the context of granting protection. Finland considers environmental reasons when assessing humanitarian grounds under Chapter 6 Section 88a of the Finnish Aliens Act, especially in cases in which neither refuge nor subsidiary protection can be granted, but the return to the home country seems unbearable. Similar to the Swedish regulation, this protection was also suspended around 2015.[65] Art 29 (4) of the Cypriot Refugee Law mentions environmental destruction as an additional justification for non-refoulement, but does not grant protection on this ground alone.[66]
Conversely, the remaining member states do not provide for any protective regulations. There are also hardly any known initiatives to close the national gaps in this sphere.[67] Most states refer to the international consensus on refugees – manifested in the Geneva Refugee Convention – and refuse to adopt a differing interpretation.[68] Thus, similar to the situation on the European level, legal practitioners in these states are left to search for new interpretation and readings of national law. In conclusion, it can be said that at the member states’ level, the protective dimension is being rolled back rather than developed further. Even where there is still explicit protection for people fleeing climate-induced change, it is weaker than that provided to other displaced peoples.
Ways forward
The current status quo is inadequate, and results in the need for further development and improvement of the current level of protection in view of the ever-increasing numbers of people forced to flee as a result of climate change. There are various possible answers to the question regarding which path to take, and perhaps the first thing to do is to take a general step in the direction shared by them all.
That is, to carry the issue from niche academic spheres into the broader public conversation and, above all, into day-to-day political discourse. This applies to both the European and national levels. A survey conducted by the European Migration Network shows that in most member states, the topic is discussed in academic and socially engaged circles, but lacks the attention of legislative and executive powers.[69] In view of the historical genesis of the discourse, this may seem a tedious and Sisyphean-like task, especially at the European level, but it is a fundamental prerequisite for the implementation of protective instruments and assistance of any kind, including the elimination of legal uncertainties. A slight positive trend may even be triggered if one realizes that in the last few years, both European[70] and member state institutions[71] have paid some attention to the subject in studies, despite the fact that these are not legally binding. We can only add to the clamor made in the last two decades by those in the relevant spheres, and hope that this time the positive upward trend will manifest itself into concrete and protective action.
Once this step has been taken, the question arises as to which path will finally be taken. There are various options, which are not necessarily contradictory and can also coexist in some cases. Broadly speaking, to pick up on the two-axis suggestion of the Green MEPs, there are two major currents – each in turn with two tributaries – for legal policy-making. Given that most climate-related migrants are internally displaced persons, there must be a local and regionally focused course of action. Despite the focus on internally displaced persons and local support, the remaining protection seekers must not be neglected, so that the second course of action should focus on guaranteeing international and national protection for them.
A distinction can then be made within the local and regional strategy. On the one hand, the path of adaptation already proposed by the Commission in its 2013 findings can be taken. This mostly-financial aid can certainly make use of the already existing European mechanisms and build upon them. It would be crucial to also legally couch this financial aid with regard to climate migration in a concrete manner. Moreover, financial aid could be established and coordinated more effectively through regionally focused international agreements with countries in the affected regions. This leads into the second sub-prong of the local and regional strategy. In addition to an actively supportive role, the EU can play a passively supporting role as an advocate or promoter in the international forum for local initiatives with a bottom-up approach to international governance, and as a mediator for negotiation in such agreements.
The second stream of action can also be divided into an active, self-implementing sub-prong and a passive, facilitating sub-prong that relies on the cooperation of others. The latter would consist primarily of seeking, in addition to regional and local agreements, an international compromise that goes beyond the soft-law arrangements agreed to date. For instance, additional protocols to the Geneva Refugee Convention or the Paris Agreement are conceivable, or the promotion of an entirely new agreement that adapts refugee protection rules to the challenges and circumstances of the modern world.
The former, self-implementing part, in which the EU would not be dependent on external help, would have to consist of a redesign of the existing regulations. In particular, an adaptation of Art 15 of the QD, which has already been discussed, would provide a suitable solution. It would be plausible to add a fourth section, (d), to the already existing alternatives, which would also provide for subsidiary protection in the case of an “environmental catastrophe.” For better protection, however, a legal definition of the term should be standardized, so that imprecision and difficulties of delimitation are avoided in practice.[72] Alternatively, an Art 15a QD with corresponding content could be introduced.[73]
Furthermore, member states could, of course, issue their own national regulations, which would provide for protection up to the point of regulation at European level. Besides the concrete standardization of protection, the EU and its member states could develop other legal instruments for protection. Such as, for example, a humanitarian corridor which already exists in several European states and provides a pathway for people escaping conflict,[74] or a temporary travel document issued by the states in the form of a climate passport. This would offer those who are threatened by climate change the option to demand civil rights in safe countries.[75]
Conclusion
As discussed, the current outlook – despite years of attention and discourse – does not do justice to the ultimate goal of protection. Rather, it seems almost negligent in the fight against the climate crisis to utterly exclude it as an important factor, or to instead surrender to the benevolent interpretation of legal practitioners. Although there are mentions of the topic in various agreements and instruments, there is no commitment beyond the status of soft law.
On the legal protection level, with the exception of two national regulations in Italy and Sweden, there is a complete lack of rules that address the issue. This is disappointing, as the EU could be a pioneer and has a wide range of options for implementation. It is submitted that if all four described tributaries of the two main streams were implemented and followed, the EU would be able to provide effective protection.
Of course, the implementation of one is better than complete inaction, but as stated above, this would only lead to a patchy and, above all, deficient protective dimension, and would not necessarily lead to an improvement of the status quo. This would neither correspond to the ambitious, but also self-claimed pioneering role of the EU, nor to the moral responsibility stemming from the Polluter Pays principle (to which the polluting countries agreed in the Paris Agreement).
This shows precisely how much of a difference an ambitious major player can make, even in terms of initiatives for which the EU would have to rely on the cooperation of other countries. The ambitious deal from 2015 would have not been possible without the initiation of the HAC. Accordingly, it would be desirable for the EU to address the issue and follow societal and academic demands in order to alleviate the current unsatisfactory status quo with regard to climate migration and its related challenges. There is truly no lack of concrete proposals, only the lack of concrete will to revisit the spirit of the HAC.
Robert Los is an Archivist at Earth Refuge and a student of law at the Bucerius Law School in Hamburg, Germany. His interest and commitment to climate law issues extends mainly to voluntary work alongside his studies and work.
References
[1] https://www.politico.eu/article/the-commissions-green-deal-plan-unveiled/ (Last Access: 18.01.2021, 17:23).
[2] https://www.eyes-on-europe.eu/can-the-eu-lead-the-way-in-the-fight-against-climate-change/ (Last Access: 21.01.2021, 15:25).
[3] Paris Agreement(2015), Preamble.
[4] https://www.iass-potsdam.de/de/node/5386 (Last Access: 18.01.2021, 17:43).
[5] Report of the Conference of the Parties on its twenty-first session, held in Paris from 30 November to 13 December 2015 (FCCC/CP/2015/10/Add.1), Addendum, Nr. 51; The Warsaw International Mechanism and its requires a separate examination that will follow in a separate essay.
[6] Cf. for a deeper examination: Mile (2021): Protecting Climate Migrants: A Gap in International Asylum Law; https://earthrefuge.org/protecting-climate-migrants-a-gap-in-international-asylum-law/ (Last Access: 21.01.2021; 15:34).
[7] Cf. the opening statement of Ursula von der Leyen in the European Parliament Plenary Session in Jul:y 2019; https://ec.europa.eu/commission/presscorner/detail/en/SPEECH_19_4230 (Last Access: 20.01.2021; 18:37).
[8] European Parliament (1999): Resolution on the environment, security and foreign policy. 28.1.1999, A4-0005/99.
[9] European Parliament (1999): Resolution on the environment, security and foreign policy, Art. J and Art. L. 28.1.1999, A4-0005/99.
[10] European Parliament (1999): Resolution on the environment, security and foreign policy, explanatory note. 28.1.1999, A4-0005/99.
[11] www.reseau-terra.eu/article844.html (Last Access: 15.01.2021; 22:37).
[12] Ibid.
[13] High Representative and the European Commission (2008), Climate Change and International Security.
[14] Commission of the European Communities (2008). European Consensus on Humanitarian Aid – Action Plan. Commission Staff Working Paper, SEC (2008) 1991.
[15] European Commission (2009): WHITE PAPER Adapting to climate change: Towards a European framework for action; COM (2009) 147.
[16] https://pace.coe.int/en/files/12098/html#_TOC_N1047B (Last Access: 19.01.2021; 23:54).
[17] Ibid.
[18] Kraler/Cernei/Noack (2011), “Climate Refugees”: Legal and Policy Responses to Environmentally Induced Migration. Study commissioned by the Directorate General for Internal Policies, Policy Department C: Citizens’ Rights and Constitutional Affairs, Civil Liberties, Justice and Home Affairs (PE 462.422) Brussels, European Parliament.
[19] European Commission (2013): Commission Staff Working Document: Climate change, environmental degradation, and migration -Accompanying the document Communication from the Commission to the European Parliament, the Council, the European Economic and Social Committee and the Committee of the Regions: An EU Strategy on adaptation to climate change.
[20] Ibid, p. 17 and 35.
[21] Cf. also Kraler/Katsificias/Wagner (2020), Climate Change and Migration: Legal and policy challenges and responses to environmentally induced migration. Study commissioned by Policy Department for Citizens’ Rights and Constitutional Affairs Directorate-General for Internal Policies (PE 655.591), Brussels, European Parliament, p. 67.
[22] The Greens (2013): Climate Change, Refugees and Migration.
[23] Kraler/Katsificias/Wagner (2020), Climate Change and Migration: Legal and policy challenges and responses to environmentally induced migration. Study commissioned by Policy Department for Citizens’ Rights and Constitutional Affairs Directorate-General for Internal Policies (PE 655.591), Brussels, European Parliament, p. 66.
[24] European Parliament (2016): Resolution on the situation in the Mediterranean and the need for a holistic EU approach to migration; European Parliament (2017): Addressing refugee and migrant movements: the role of EU external action European Parliament resolution of 5 April 2017 on addressing refugee and migrant movements: the role of EU External Action (2015/2342(INI)).
[25] In view of the few previous rulings on the matter, both at national and European level, this can be disregarded for the time being. However, an incorporation into the other categories will follow. For a summary overview cf. Kraler/Katsificias/Wagner (2020), p. 79 et seqq.
[26] Kraler/Katsificias/Wagner (2020), p. 68 et seqq.
[27] European Commission (2011), COM(2011), 743 final: Communication from the Commission to the European Parliament, the Council, the European Economic and Social Committee and the Committee of the Regions – The Global Approach to Migration and Mobility.
[28] Valletta Summit Action Plan (2015).
[29] Cf. European Commission (2011), COM(2011), 743 final, p. 6 et. Seqq.; Valletta Summit Action Plan (2015), p. 3.
[30] Cf. Kraler/Katsificias/Wagner (2020), p. 68 et seqq.
[31] European Commission (2011), COM(2011), 743 final, p. 6 et. Seqq.; Valletta Summit Action Plan (2015), p. 3.
[32] Cf. for more detail: https://ec.europa.eu/trustfundforafrica/sites/euetfa/files/eutf_2019_annual_report_english.pdfeuropa.eu (Last Access: 17.01.2021; 21:50).
[33] Kraler/Katsificias/Wagner (2020), p. 69.
[34] European Commission (2016c) COM(2016) 234 final: Lives in Dignity: from Aid-dependence to Self-reliance; Communication from the Commission to the European Parliament, the Council, the European Economic and Social Committee and the Committee of the Regions; cf. for a more detailed description Kraler/Katsificias/Wagner (2020), p. 69.
[35] European Commission (2016c) COM(2016) 234 final, p.2
[36] Council Regulation (EC) No 1257/96 of 20 June 1996.
[37] Kraler/Katsificias/Wagner (2020), p. 69.
[38] Commission of the European Communities (2007): Communication from the Commission to the European Parliament and the Council – Towards a European Consensus on Humanitarian Aid; COM(2007) 317 final; Commission of the European Communities (2008). European Consensus on Humanitarian Aid – Action Plan. Commission Staff Working Paper, SEC (2008) 1991; European Commission (2015). Implementation Plan of the European Consensus on Humanitarian Aid. Commission Staff Working Document, SWD (2015) 269 final.
[39] Council Regulation (EC) No 1257/96 of 20 June 1996, Art. 1; cf. for a more detailed description of humanitarian aid system Kraler/Katsificias/Wagner (2020), p. 70 et seqq.
[40] Kraler/Katsificias/Wagner (2020), p. 71.
[41] Cf. for more detailed information: https://ec.europa.eu/home-affairs/what-we-do/policies/asylum_en (Last Access: 19.01.2021; 22:01).
[42] Kraler/Katsificias/Wagner (2020), p. 71.
[43] https://www.echr.coe.int/Documents/Convention_ENG.pdf (Last Access: 19.01.2021; 19:54).
[44] Qualification Directive (2004), Directive 2004/83/EC: https://www.asylumlawdatabase.eu/en/content/en-qualification-directive-directive-200483ec-29-april-2004#Art%2015%20QD (Last Access: 19.01.2021; 20:02).
[45] For the analogous transfer of case law on the rejection of sick persons, cf. Kraler/Katsificias/Wagner (2020), p. 79 et. seqq.
[46] Qualification Directive (2004), Directive 2004/83/EC: https://www.asylumlawdatabase.eu/en/content/en-qualification-directive-directive-200483ec-29-april-2004#Art%202%20QD (Last Access: 20.01.2021; 20:06).
[47] Kraler/Katsificias/Wagner (2020), p. 71 et. seqq.
[48] McAdam (2014). The human rights implications of cross-border displacement in the context of disasters what are the protection gaps and what is the role of the human rights council?.
[49] Temporary Protection Directive (2001), EU CD 2001/55/EC: https://eur-lex.europa.eu/legal-content/EN/TXT/PDF/?uri=CELEX:32001L0055&from=en (Last Access: 20.01.2021; 20:10).
[50] Kraler/Katsificias/Wagner (2020), p. 73.
[51] Qualification Directive (2004), Directive 2004/83/EC: https://www.asylumlawdatabase.eu/en/content/en-qualification-directive-directive-200483ec-29-april-2004#Art%202%20QD (Last Access: 20.01.2021; 20:14).
[52] Beirens/Maas/Petronella/Velden (2016): Study on the Temporary Protection Directive,
p17; Study commissioned by the European Commission Directorate-General for Migration and
Home Affairs Unit C.3 — Asylum.
[53] Return Directive (2008), EU RD 2008/115/EC: https://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=OJ:L:2008:348:0098:0107:EN:PDF (Last Access: 20.01.2021; 20:22).
[54] Return Directive (2008), EU RD 2008/115/EC, Art. 9: https://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=OJ:L:2008:348:0098:0107:EN:PDF (Last Access: 20.01.2021; 20:22).
[55] VGH Mannheim (2019): 29.10.2019, A 11 S 1203/19.
[56] Kraler/Katsificias/Wagner (2020), p. 73.
[57] https://eur-lex.europa.eu/legal-content/DE/TXT/HTML/?uri=LEGISSUM:l14527&from=DE (Last Access: 20.01.2021; 20:27).
[58] Kraler/Katsificias/Wagner (2020), p. 74.
[59] European Migration Network (2020): Comparative Overview of National Protection Status in the EU and Norway – EMN Synthesis Report for the EMN Study 2019.
[60] European Migration Network (2020), p. 4.
[61] European Migration Network (2020), p. 25.
[62] European Migration Network (2017): EMN Ad-Hoc Query on ES Ad hoc Query on Humanitarian Protection.
[63] European Migration Network (2020), p. 25.
[64] European Migration Network (2020), p. 25.
[65] Kraler/Katsificias/Wagner (2020), p. 78.
[66] Ibid.
[67] European Migration Network (2018): European Migration Network; Ad-Hoc Query on Climate change and migration.
[68] Explicitly stated by Austria, Czech Republic, Germany to a questionnaire on environmentally induced migration distributed by ICMPD to selected EU+ countries in March 2020; cf. Kraler/Katsificias/Wagner (2020), p. 78.
[69] European Migration Network (2018).
[70] see, for example, the 2020 study commissioned by the European Parliament on Climate Change and Migration: Kraler/Katsificias/Wagner (2020).
[71] see, for example, the advisory study of the Economic Advisory Council of the Federal Government in Germany, which dealt with climate migration in 2018: WBGU (2018), Zeitgerechte Klimapolitik: Vier Initiativen für Fairness.
[72] Hush proposes a definition along the lines of: “a natural disaster affecting a large number of persons in a geographic area, occurring either suddenly or over time, with or without human action, and causing the destruction, or reasonable threat of destruction, or severe degradation of, the applicant’s livelihood, residence, community, or land”; Hush (2018)- Developing a European Model of International Protection for Environmentally Displaced Persons: Lessons from Finland and Sweden.
[73] Hush (2018) – Developing a European Model of International Protection for Environmentally Displaced Persons: Lessons from Finland and Sweden.
[74] Cf. Kraler/Katsificias/Wagner (2020), p. 75.
[75] Cf. for a more detailed examination of this idea: Los (2020), Climate Passport: A Legal Instrument to Protect Climate Migrants – A New Spirit for an Historical Concept; cf. WBGU (2018): Zeitgerechte Klimapolitik: Vier Initiativen für Fairness, p. 24 ff.
5 January 2021 – conducted by Human Rights Pulse
Dr. Boyd is currently serving as the UN Special Rapporteur on Human Rights and the Environment. In this discussion with Human Rights Pulse, Dr. Boyd explores the growing movement for a rights-based approach to environmental law.
14 December 2020 – conducted by Stephanie Hader
Basti, the young owner of his sailboat “Tonga” tells Earth Refuge about the importance of understanding meteorology as a sailor and how the weather has become more unpredictable in recent years. Normally, the Azores are a safe pit stop for boats crossing the Atlantic, but in 2019 the Islands witnessed a formation of an extreme weather event of unprecedented intensity.
12 January 2021 – conducted by James Sedlak
Priscilla shares her valuable insights into climate change from a tech perspective. As a resident of California, she has also been “woken up year after year with ash on her sinks and smoke in the air”. The number of dry, warm and windy autumn days – which are ideal conditions for wildfires – in California has more than doubled since the 1980s. More than half of the acres burned each year in the western US can be attributed to climate change.
21 January 2021 – conducted by Aubrey Calaway
Researcher Jake Meyers discusses the importance of narratives in addressing the local impacts of climate change. From rural-urban migration in Kenya to floating villages of Cambodia, Jake has seen first hand how a well-constructed narrative can change environmental policy for the better.
29 January 2021 – conducted by Amanda Ng
Based on Dr. Islam’s PhD in Climate Change, Migration and Conflict, and his field work experiences, he shares some of the causes and dangers of climate-induced displacement. Using the Chattagong Hill Tracts as a case study, he leads us through the factors he deems most important based on his findings, and the consequences that climate migration has had on communities in Bangladesh.
23 February 2020 – by Dr. Md Rafiqul Islam
The displaced Rohingya Muslim people – currently living in more than 33 camps in the Cox’s Bazar districts of Bangladesh – comprise one of the most unfortunate, destitute and oppressed communities in the world, due to their statelessness. A new generation of Rohingya children are growing up in camps without any foreseeable future.
The recent exodus of more than 1 million Rohingya people to a small area of Cox’s Bazar land has generated densely cramped conditions that have serious environmental destruction implications. This is now of serious concern to the government of Bangladesh (GOB) and the local population. The influx of a large number of refugees has had significant effects on Bangladesh’s economy, society, and environment. As such, the GOB has planned to relocate more than 100,000 displaced people under the ‘Ashrayan-3’ project to the island of Bhasan Char in the Noakhali district, with a view to reducing the population pressure in the current locations, and also improving their living conditions with modern facilities.
Bashan Char – Source: Taken by the research team
However, the relocation plan of the GOB has already sparked debate and criticism amongst academics, policy makers and media personalities both locally and internationally. It has been suggested that relocation to Bhasan Char should be carried out with informed consent, and the provision of appropriate information about the Island beforehand.
The main criticisms of the relocation project center around the island’s proneness to natural disaster, its isolation from the landmass of Bangladesh, and a potential lack of basic services (for example, to education or healthcare). Though these concerns are partially justified, appropriate measures from the GOB and international organisations will reduce their likelihood. Further, Bangladeshi nationals are themselves living on isolated islands, such as Hatia and Sandwip. In this way, the concerns outlined are not enough to halt the relocation project.
The Field Study
A research team from the Department of Peace and Conflict Studies at the University of Dhaka conducted research on 18-20 December 2020. Engaging in participant observation, focus group discussions and key informant interviews in Bhasan Char, they then used this firsthand information to assess the livability and viability of the Ashrayan-3 project.
The study found that the established facilities are of a high standard in comparison to any other refugee shelters in Bangladesh. The project coordinator found that, of the total area of usable land (6427 acres), the project area covers 1702 acres. The island of Bhasan Char itself covers an expanse of 13000 acres. There are a total of 120 cluster houses in the project area, and each of these clusters has 12 individual houses comprising 16 rooms, and a four-storied shelter station. The houses are built on concrete blocks that raise them 4 feet above the ground. Each individual house can host up to 16 families, provided that each family unit has 4 members each. The shelter stations can host up to 23 families in normal conditions.
The available facilities in each cluster house also meet an appropriate standard. There are separate bathrooms for males and females, schools with adequate facilities, hospitals and community clinics with accommodation quarters for medical officials and their families on the top floors. The medical centers are well-equipped to meet a diverse set of medical needs. There are altogether 4 food storage warehouses to be used by people living in the cluster villages. There are 2 helipads for helicopters to land in case of emergencies, travel, or visits by officials, as well as 2 playing fields for physical activities. Buildings with proper and appropriate lodging and facilities are in place for accommodating visiting officials.
A Suitable Option for Temporary Resettlement
The observation and field visit also confirmed that there are several opportunities presented by the project that suggest that it may be a suitable option for the temporary settlement of Rohingya displaced peoples.
First, the infrastructure and basic facilities are of high quality in comparison to the current alternatives in Cox’s Bazar. There are very few facilities available like those provided by this project to shelter displaced peoples, both in Bangladesh and abroad. The Island has scope to diversify the income opportunities of the Rohingya. For example, the resettled population can have the option to raise cattle, or build poultry farms with coops for farming chicken, ducks, and pigeons. There are dedicated grazing areas for such cattle. These facilities for farming can help the Rohingya displaced people to diversify their livelihoods through rearing fresh produce. This is an option which is presently unavailable in the camps in Cox’s Bazaar, and other regions.
There is also a large freshwater lake for fish cultivation, with some smaller freshwater lakes near the clusters. The relocated people would therefore have the scope to cultivate fish and further improve their food sources. These opportunities would increase stability and improve the quality of life for the Rohingya displaced people.
Second, the drinking water for the project is supplied from an underground fresh water reserve, and is transferred directly to the houses. There are also ponds situated in the open areas in several of the clusters. These ponds have systems installed to collect additional rainwater and pump it to the homes when necessary. It is worth noting that the precise size of the underground water reserve has not yet been verified by officials.
Third, there is a waste management system is in place to redirect waste through a drainage structure into a landfill for management and processing, with plans for a biogas plant in the future. There are measures for the production of electricity through solar panels and generators in case of the need for emergency electricity. There are communication systems in place in the form of cell towers for the provision of prepaid services from popular mobile networks such as Grammenphone and Robi.
Pre-empting Environmental Disaster
One of the key issues raised by the expert who accompanied the research team is the potential for the environmental inundation of the island as a result of the project.
In line with this, a 9-foot-high embankment has been constructed, and a further project is underway to make it 19-feet-high. This would provide safety and security to the resettled inhabitants of the Island from any form of floods or cyclone damage.
The artificial measures taken to decrease the chances of erosion consist of a 3-staged system. At the first stage there is a line of wave breakers, followed by a line of low-elevation barriers featuring sandbags and low-walls, and finally, a line consisting of the main dams. One of the research team’s experts in Disaster Science and Management at the University of Dhaka explained that Bhasan Char island’s growth rate is currently much higher than the rate of erosion, and thus more and more land is surfacing above ground every year. The 3-staged system will also help to prevent any unexpected changes that might result from these two contrasting rates. Additionally, a mangrove forest line is kept around the embankment to act as a natural barrier against possible natural disasters.
Conclusion
The current conflict within groups of Rohinngya people in Cox’s Bazar is a security concern for Bangladesh as well as the local community. A security expert who accompanied the research team argues that the relocation of Rohnigya peoples to Bhasan Char would likely reduce the incidents of violence and conflict, as the proposed Ashrayan-3 project is isolated from others parts of the country, as well as surveillance from Bangladesh Navy.
Having considered the potential infrastructure and livelihood options, the Ashrayan-3 project in Bhasan Char would be a suitable place for the relocation of the Rohingya people. It has systems in place for all basic necessities for resettled people to live and function.
However, there is still room for improvement. For instance, the size of the underwater reserve must be verified, so that appropriate measures can be taken to guarantee a stable supply of freshwater. Also, the introduction of suitable early warning systems would help prepare the inhabitants of the island in addition to the already robust foundation of the housings and shelters. Lastly, proper maintenance of the embankment would help maintain the longevity of the entire island of Bhasan Char.
Md Rafiqul Islam Ph.D. is a Professor at the Department of Peace and Conflict Studies at the University of Dhaka in Bangladesh and also one of Earth Refuge’s Regional Advisors. Dr. Islam’s primary research interests are peace and conflict studies, displacement and development. He also has a keen interest in global politics and security.
Dr. Islam is currently also working as an Advisor of the Dhaka University Environmental Society (DUES) and volunteers for the greater cause of our earth, and humanity.
The Earth Refuge team is seeking to recruit one or more reliable and creative volunteer(s) to cover current affairs regarding climate change, climate migration, environmental justice and related topics on a regular basis.
You are probably well aware of the fact that climate migration is now increasingly featured in both international & local news coverage as the world starts to take notice of this ever-worsening issue and the fact that no legal protections exist or are utilised e.g. the case of the Bangladeshi man accepted as an ‘environmentally displaced’ individual in France, or the Biden administration’s executive order.
Though we publish more in-depth observations and analyses of these topics in our Archive, we would like for our readers and contributors to remain up to date with the goings on in this sphere. A live timeline, if you will.
As a Reporter, you would be tasked with keeping track of these topics in the news, and drafting brief summaries detailing the ‘who, what, when, where, why and how’ in 3-4 paragraphs.
These summaries would then be published on the website to keep our readers up to date, and would also be posted on our Instagram stories (@earthrefuge) on a regular basis.
If you are interested in becoming a Reporter for Earth Refuge, please send an email with your desired role and name in the subject header to [email protected] e.g. ‘REPORTER – FULL NAME’.
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5 January 2021
In the following interview, Earth Refuge Correspondent James from Lake Tahoe, California discusses his experience fighting California wildfires in a warming climate and the threat of migration.
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