Developing Rights-based Responses to Environmental Degradation: South African and Global Perspectives

23 March 2021 – by Vaughn Rajah

Introduction

We live in an age of extinction. The current geological epoch in which Earth and humanity finds itself in is the Anthropocene. It describes the devastating biological impact humanity has had on the planet, tantamount to an extinction event.[1] During this period, human-influenced, or anthropogenic, factors have altered geological, atmospheric and other earth systems beyond scientifically defined stable parameters, resulting in, amongst other consequences, a changing climate and mass extinctions of flora and fauna.[2] Within this context, the overarching argument of this article is that the current environmental law regime, in South Africa and globally, is inadequate to address the challenges of the Anthropocene and posits that rights-based legal responses to environmental degradation offer a solution in this regard.

This will be conveyed through a cursory analysis of the history of and threats posed by the Anthropocene, coupled with a discussion of the status and flaws of the current environmental law regime. With this in mind, the notion of environmental constitutionalism as a way forward and its application in the South African context will be discussed. The importance of its implementation with regards to environmental movements in South Africa will then be highlighted. Thereafter, and within the context of the global environmental legal regime, the responses of international environmental law to climate change will be assessed. Following on from this, the capacity of international law to hold global actors – particularly multinational corporations – accountable for transnational environmental harm will be examined. Finally, the role of rights-based approaches in enhancing the efficacy of climate change litigation in relation to these and other disputes will be evaluated.

Ultimately, it is contended that a holistic reimagining of environmental law is required wherein a balancing of the rights of nature and socio-economic rights is achieved and placed at the heart of environmental action, in order to address the greatest threats of the Anthropocene.

Environmental Law in an Age of Extinction

The Anthropocene is an epoch wherein humankind is changing the fundamental nature of Earth’s systems, perhaps irreversibly, due to a number of energy-dependent processes that began during the First Industrial Revolution.[3] The challenges presented by this include issues of human security (especially within the Global North and South paradigm as a result of environmental degradation), energy security, as well as how to effectively mitigate and adapt to climate change.[4] Environmental law and governance are the core structures through which to combat such exponential effects.[5]

Despite this new-found understanding of the challenges of the Anthropocene, the global environmental legal system lacks a collective focus, proactive measures, or a substantive recognition of the threats posed by the Anthropocene. It is therefore ill-equipped to respond decisively to the current global ecological crisis.[6] This paper contends that rights-based legal approaches to combating environmental degradation are suitable strategies to transform environmental law and governance along such lines in order to address the environmental and socio-economic challenges of the Anthropocene.

A transformative approach to environmental constitutionalism is one such method. It is a legal philosophy dedicated to a rights-based approach to environmental action within a framework of transformative constitutionalism.[7] Transformative constitutionalism in the South African context involves breaking away from past oppression via large-scale societal change grounded in legal processes.[8] Hence, transformative environmental constitutionalism in South Africa should entail, at a minimum, an improvement in basic living conditions of the poorest members of society, and an understanding that socio-economic rights – such as the right to shelter, water, and dignity – are inherently linked to the protection and restoration of the environment.[9]

Environmental Constitutionalism and its Implementation in South Africa

There must be a shift  from primarily procedural approaches to promote environmental constitutionalism in South Africa via substantive rights-based legal mechanisms. Environmental constitutionalism is a multi-faceted concept that consists of ‘thin’[10] components, that is, the overarching framework of environmental governance, as well as ‘thick’[11] components that relate to rights-based environmental governance strategies.[12] Law itself is necessary for effective environmental constitutionalism due to its ability to shape human behaviour and protect common interests.[13]

The Constitution of the Republic of South Africa, 1996 (the Constitution) is one such legal framework, entrenching substantive environmental and socio-economic rights.[14] Within this framework, the South African legal architecture is imbued with a substantive environmental right.[15] However, courts in South Africa have thus far failed to develop this substantive right as it applies to environmental justice, opting instead to focus on constitutionally entrenched procedural rights such as the right to access to information, undermining important environmental issues.[16] The impact of this, is that the most potent effects of environmental degradation in the Anthropocene are not placed at the centre of the discourse nor are they taken into account when forming legal foundations for possible solutions.

Substantive rights must be prioritised in South African jurisprudence if the nation’s transformative goals are to be realised.[17] Issues of social justice, through a discussion of the impact of environmental degradation on the ability of the majority of the population to enjoy fundamental human rights, and the effects upon the environment itself, must be brought to the fore. Transformative environmental constitutionalism demonstrates that socio-economic and environmental rights are not mutually exclusive, and that they in fact inform and reinforce one another.[18]

Rights-based Approaches and Environmental Movements in South Africa

Public interest litigation and environmental activism are necessary methods to restructure South African power dynamics in order to effectively protect the environment and achieve socio-economic goals as discussed above.

Environmental protection of this nature heavily depends upon public participation.[19] A major obstacle to public interest environmental litigation in South Africa is the emergence of strategic litigation against public participation (SLAPP) suits.[20] SLAPP suits, originating in the United States (US), are meritless cases brought by polluters primarily to waste the resources and time of the opposing party – winning the suit is a secondary concern.[21] South Africa’s environmental legislative framework, consisting mainly of the National Environmental Management Act[22] (NEMA) and the Constitution, lacks the focus of US (and particularly Californian) statutes to effectively address SLAPP suits as they apply to environmental litigation.[23]

Alternatively, South African courts should utilise procedural and substantive rights-based legal methods currently at their disposal to ensure public interest environmental litigants are protected from SLAPP suits, especially in relation to their rights to seek satisfaction in court as well as that of a healthy environmental.[24] It is also vital that poor-led movements work alongside existing environmental organisations that have pursued public interest environmental litigation, such as Earthlife Africa, to combat power structures and private sector interests in South Africa in order to ensure that a balance between socio-economic and environmental rights is achieved.[25] It has been made clear that rights-based approaches have the potential to protect and promote environmental movements in developing nations, which are generally the states most vulnerable to the effects of environmental degradation in the Anthropocene. Within this context, climate change, which is possibly the greatest threat of the current epoch, is discussed below.

The Big Picture: Understanding the International Climate Law Regime

The adequacy of international and South African legal responses to climate change is dependent upon their implementation. Climate change is the overarching existential threat of the Anthropocene.[26]

Three key treaties have been negotiated for the purposes of regulating climate change at the global level, and represent sources of international climate change law. In 1994, the United Nations Framework Convention on Climate Change (UNFCCC), signed in 1992, entered into force.[27] The first international agreement to be linked to the UNFCCC was the Kyoto Protocol (Kyoto), signed in 1997.[28] Kyoto is no longer in force. A major pitfall was that negotiations failed to make major polluters, such as the US, parties to the treaty.[29] In 2016, the Paris Agreement (Paris), signed in 2015, entered into force.[30] It is historic in the sense that it is the first climate change treaty to reference human rights.[31] Although it is not an orthodox human rights instrument, its development and creation in line with global rights norms serves to entrench them within the climate regime, and allows for recognition of how climate change impacts the most vulnerable.[32] Article 4(4) of the treaty outlines the General Principle of international environmental law of Common but Differentiated Responsibilities. The Principle recognises the uneven distribution of climate change-related burdens, with the most destructive consequences exacted upon developing nations rather than the developed originators of the problem.[33]

Recent legislative responses such as the 2018 Climate Change Bill and 2019 Carbon Tax Act serve as manifestations of South Africa’s commitment to Paris.[34] These responses, if enforced, would meet many of South Africa’s Nationally Determined Contributions to the climate fight as per Paris. Though these recent responses are comprehensive, their adequacy in addressing the climate crisis will depend on their largely voluntary enforcement, both internationally and locally.

Corporate Accountability for Environmental Harms on an International Basis

Within this global context, multinational corporations (MNCs) must be held accountable for transboundary environmental harm by international law. The global scale at which modern MNCs operate inevitability results in widespread environmental harm.[35] Poorly regulated and substandard MNC activities have resulted in numerous accidents, such as water contamination, deforestation, soil erosion and the exploitation of natural resources by oil, mining and forestry companies.[36]

Domestic recourse is the preferred avenue for preventing environmental abuses by MNCs.[37] This, however, is a largely ineffective avenue as it presents an orthodox view of law wherein states are the principle actors in the global order, and state sovereignty is paramount.[38] This disregards the fact that MNC operations in the host country have the potential to affect that state’s environment as well as that of other countries, as was the case in Ecuador and Peru with regards to MNC water contamination.[39] Additionally, this ignores the very real influence of MNCs upon governments, particularly in developing states, and the threat this presents to domestic enforcement.[40] For example, the Nigerian state relies on oil MNCs as its major source of revenue, in turn granting these corporations enormous influence and control.[41]

The current international legal order is not well equipped to address transboundary environmental harms.[42]  One solution would be the development of international jurisprudence to recognise an universal substantive environmental right, under which companies could be held accountable.[43] This would supplant the outdated concept that international change is largely state-driven, especially with regards to the environment, and instead increase international focus on corporate-driven environmental destruction.[44] There is evidence to suggest that international enforcement would reduce corporate-driven environmental disasters as well as provide schemes to justly distribute clean-up costs.[45] This long-term approach must be supplemented through short term enforcement by economic superpowers such as the United States, where many MNCs are incorporated.[46]

The Importance of Rights-based Approaches to Climate Litigation

The courts are a key avenue for the enforcement of the rights-based legal frameworks discussed above. This section contends that a rights-based approach to climate change litigation enhances its efficacy as a tool of climate action.

The global threat of climate change results in a number of contentious situations and issues of dispute.[47] It is a phenomenon that has grown as a subject of legal proceedings and has caused pre-existing legal norms to be reimagined in light of its many strands of contention and uncertainty.[48] Increasingly, plaintiffs are advancing rights-based arguments in climate change litigation.[49] Climate change litigation is a growing global[50] trend, coinciding with the Paris Agreement and the alignment of the global climate regime with international human rights as already discussed, wherein plaintiffs (generally NGOs and individuals), seek to urge defendants (generally governments, though corporations are increasingly being brought into the fold) to be more ambitious in their responses to their climate change, and to enforce or enhance existing climate policies more effectively.[51] Gbemre v Shell Petroleum[52] was notable in that it was one of the few climate-related cased premised on rights entrenched under the African Charter.[53] The landmark case of Leghari v Federation of Pakistan[54] directly relied on fundamental rights to rule that government’s failure to sufficiently combat climate change violated petitioners’ rights. This growing pattern has its roots in the grassroots genesis of the climate justice movement, framed in pluralistic terms of social justice, democracy and sustainability.[55] Juliana v. United States[56] is a case based on a lawsuit asserting that the US government violated the youths’ rights, and that of future generations by allowing activities that significantly harmed their right to life and liberty. Its dismissal by the Ninth Circuit is currently being appealed.

The importance of a rights-based approach goes beyond the mere winning of a case. ‘Winning’, in terms of this kind of strategic litigation, also relates to the promotion of social and policy issues with respect to climate change and ingraining these issues as facets of public sentiment and thought, with particular reference to the impact of climate change on fundamental rights.[57]

Conclusion

The Anthropocene represents an epoch in which humanity is fundamentally altering the functioning of Earth’s systems. The use of rights-based approaches to combat human-induced environmental degradation is vital if we are to address its greatest challenges.

One such approach is environmental constitutionalism. This legal concept is dedicated to promoting and balancing socio-economic and environmental rights within a constitutional framework. The use of substantive environmental rights within this approach is vital to promote and protect environmental activism and grassroots environmental justice movements. Rights-based approaches are also key in the context of international climate law. The Paris Agreement was developed in line with international human rights norms, and this had the effect of centring the human and environmental impact of climate change in the global discourse. Another vital requirement is to hold MNCs accountable for transnational environmental harm. Where domestic procedure has failed in this regard, international law must succeed. The probability of this success is enhanced by the use of rights-based approaches placing international focus on corporate-driven global environmental harm in addition to allowing for more effective enforcement and prevention schemes.

Perhaps the most important indicator of the value of rights-based approaches is the growing global trend of the advancement of rights-based arguments in climate change litigation. Cases such as Gbemre, Leghari and Juliana are signifiers of changing patterns of public thought with reference to the impact of climate change on fundamental rights. Ultimately, the need to import fundamental rights into the environmental legal and governance regime underlies a need to reimagine society as a whole. This, I believe, is possible in a world premised on the sanctity of international human and environmental rights.


Human Rights Pulse core team member and Earth Refuge Archivist Vaughn is passionate about sustainability and human rights, his scholarship and writing focuses on international law, climate change and transitional justice.


[1] LJ Kotzé ‘Rethinking global environmental law and governance in the Anthropocene’ (2015) 32(2) Journal of Energy & Natural Resources Law 128 129.

[2] S Dalby ‘Ecology, security, and change in the Anthropocene’ (2007) 8(2) The

Brown Journal of World Affairs 155 157.

[3] RJ Lazarus The making of environmental law (2004) 12 13.

[4] Kotzé (note 1 above) 123 124.

[5] Kotzé (note 1 above) 140.

[6] F Biermann et al ‘Navigating the Anthropocene: Improving Earth system governance’ (2012) 335 Science 1306.

[7] M Murcott ‘Introducing transformative environmental constitutionalism in South Africa’ in E Daly et al (eds) New frontiers in environmental constitutionalism (2017) 288 289.

[8] K Klare ‘Legal culture and transformative constitutionalism’ (1998) 14 South African Journal on Human Rights 146 150.

[9] Murcott (note 7 above) 291 292 293.

[10] L Kotzé ‘The conceptual contours of environmental constitutionalism’ (2015) 21(187) Widener Law Review 194.

[11] Kotzé (as above) 196 198.

[12] Kotzé (note 10 above) 194 198.

[13] L Kotzé ‘Human rights and the environment in the Anthropocene’ (2014) 1(3) The Anthropocene Review 252.

[14] J Dugard & A Alcaro ‘Let’s work together: Environmental and socio-economic rights in the courts’ (2013) 29 South African Journal on Human Rights 15 16.

[15] The Constitution, sec 24.

[16] M Murcott ‘The procedural right of access to information as a means of implementing environmental constitutionalism in South Africa’ in E Daly and J May (eds) Implementing environmental constitutionalism: Current global challenges (2018) 194 195.

[17] M Murcott ‘Transformative environmental constitutionalism’s response to the setting aside of South Africa’s moratorium on rhino horn trade’ (2017) 6 Humanities 85 86.

[18] Murcott (note 7 above) 280.

[19] T Murombo & H Valentine ‘SLAPP suits: An emerging obstacle to public interest environmental litigation in South Africa’ (2011) 27 South African Journal on Human Rights 105.

[20] T Murombo & H Valentine (as above) 83.

[21] G Pring & P Canan SLAPPS Getting Sued for Speaking Out (1996) 8 9.

[22] 107 of 1998.

[23] T Murombo & H Valentine (note 21 above) 87 88 93 94.

[24] WA Joubert et al LAWSA civil procedure (2007) 229.

[25] Earthlife Africa Johannesburg v Minister of Environmental Affairs and Others 2017 (2) SA 519 (GP).

[26] M Kidd Environmental law (2011) 60; K Davies et al‘“The Declaration on Human Rights and Climate Change”: A New Legal Tool for Global Policy Change’ (2017) 8(2) Journal of Human Rights and the Environment 217; Amadiba Crisis Committee ‘Amadiba Crisis Committee (ACC)’ http://aidc.org.za/partners/amadiba-crisis-comittee/ (accessed 31 July 2019).

[27] UN General Assembly, United Nations Framework Convention on Climate Change: resolution / adopted by the General Assembly, 20 January 1994, A/RES/48/189, (UNFCCC).

[28] Kyoto Protocol to the United Nations Framework Convention on Climate Change, 10 December 1997, U.N. Doc FCCC/CP/1997/7/Add.1, 37 I.L.M. 22 (Kyoto).

[29] J von Stein ‘The international law and politics of climate change: Ratification of the United Nations Framework Convention and the Kyoto Protocol’ (2008) 52(2) Journal of Conflict Resolution 263.

[30] Paris Agreement to the United Nations Framework Convention on Climate Change, 12 December 2015, T.I.A.S. No. 16-1104 (Paris).

[31] Paris (as above) preamble.

[32] JH Knox ‘The Paris Agreement as a human rights treaty’ in D Akande et al. (eds) Human rights and 21st century challenges: Poverty, conflict, and the environment (2018) ch 15.

[33] Paris (note 32 above) art 4(4).

[34] Climate Change Bill 580 of 2018; Carbon Tax Act 15 of 2019.

[35] E Morgera Corporate Accountability in International Environmental Law (2009) 5.

[36] Morgera (as above) 6 7.

[37] E. Prudence Taylor ‘From environmental to ecological human right: A new dynamic in international law?’ (1990) 10 Georgetown International Environmental Law Review 309 350.

[38] A Shinsato ‘Increasing the accountability of transnational corporations for environmental harms: The petroleum industry in Nigeria’ (2005) 4 Northwestern Journal of International Human Rights 194.

[39] Morgera (note 37 above) 6.

[40] S Ratner ‘Business’ in Hey et al (eds) Oxford Handbook of International Environmental Law (2008) 808 816 817.

[41] Shinsato (note 40 above) 195.

[42] Shinsato (note 40 above) 198 199; Ratner (note 42 above) 816 817 818 819.

[43] Shinsato (note 40 above) 201; Ratner (note 42 above) 825.

[44] Shinsato (note 40 above) 187.

[45] Shinsato (note 40 above) 199 200 201.

[46] Shinsato (note 40 above) 204 205.

[47] E Fisher et al ‘The legally disruptive nature of climate change’ (2017) 80(2) Modern Law Review 175.

[48] D Markell & JB Ruhl, ‘An emprical assessment of climate change in the courts: A new jurisprudence or business as usual?’ (2012) 64 Florida Law Review 15; Fisher (as above) 177 178.

[49] J Peel & HM Osofsky ‘A rights turn in climate change litigation’ (2018) 7(1) Transnational Environmental Law 39.

[50]

[51] Peel & Osofsky (as above) 39 40.

[52] Gbemre v Shell Petroleum Development Company Nigeria Ltd and Others (2005) AHRLR 151 (NgHC 2005).

[53] African Charter on Human and Peoples’ Rights, 1986.

[54] (2015) W.P. No. 25501/201. 


[55] D Schlosberg & L Collins, ‘From environmental to climate justice: climate change and the discourse of environmental justice’ (2014) WIREs Climate Change 362.

[56] 339 US 1062 (2018).

[57] Peel & Osofsky (note 51 above) 66.

France’s First Climate Refugee – A Sign of a Promising Future for Climate Migration?

18 March 2021 – by Flora Bensadon

In December 2020, France officially recognized its first climate refugee – a 40-year-old Bangladeshi man with severe respiratory asthma. The appeals court in Bordeaux overturned his deportation order, finding that the substantial level of air pollution in Bangladesh would only exacerbate his condition.

Sheel, as the media named him, fled persecution he faced in his hometown north of Dhaka, the capital of Bangladesh. He arrived in France in 2011 where he settled in Toulouse and has since made a living for himself. 

Sheel suffers from severe asthma and sleep apnea for which he needs careful medical treatment that is unavailable in Bangladesh. Upon his arrival in France, Sheel applied for political asylum but his claim was denied by the French Government, leading him to start a procedure for a residence permit as a “sick” foreigner. Sheel was granted a temporary residence permit as a sick foreigner in 2015, as this kind of permit is only granted to those who cannot receive proper treatment in their home country and whose life would be put at risk if they were to be sent back.

The case

In 2019, however, the Haute-Garonne (French department) Prefecture did not renew his residence permit claiming that he would be able to receive proper treatment in Bangladesh. As a result, on 18 June 2019 the Prefecture issued Sheel an expulsion order (or, ‘OQTF’ – Obligation de Quitter le Territoire Français). 

Sheel’s lawyer, Ludovic Rivière, argued that not only would he receive poor medical treatment in his home country but due to the high level of air pollution in Bangladesh, his condition would only worsen. In fact, the Environmental Performance Index of Yale University and Columbia University ranks Bangladesh as 179th in terms of air quality in 2020. In addition to this, the level of fine particles in the air in Bangladesh is six times higher than the maximum required by the World Health Organization (WHO). The WHO figures for 2016 also show that 82% of the 572,600 deaths recorded from non-communicable diseases in Bangladesh were caused by air pollution.

In light of those arguments, on 15 June 2020, the Administrative Court of Toulouse cancelled the OQTF as it estimated that provision of Sheel’s required medical treatment would not be adequate in Bangladesh. The Haute-Garonne Prefecture appealed that decision, and the case was then brought before the court of Administrative Appeals in Bordeaux in December 2020. 

Mr. Rivière’s plea was founded on environmental arguments, which he defended by presenting the court with the WHO figures. The court ultimately decided to permit Sheel to stay on French territory and cited the environmental criteria to justify the final decision. The court in fact noted that sending Sheel back to Bangladesh would lead to an “aggravation of his respiratory disease due to air pollution”.

A symbol for greater protection of climate refugees in Europe? 

The notion of a “climate refugee” is not officially inscribed in the French legal system – Sheel is therefore not legally referred to as one. Although environmental criteria have been evoked in some French cases, Sheels’ is the first where environmental degradation is used as the leading argument for the final ruling. Could this possibly open the door for other similar cases? Could this case be seen as a step toward a change in migration policy in Europe, particularly as the number of climate migrants is predicted to rise to 200 million by 2050?

François Gemenne, teacher and specialist in environment-related migration, stated that while he sees Sheel’s case as a step in the right direction, it is unlikely that this outcome will become frequent unless the criteria for asylum are broadened. His reason for this belief is that many asylum seekers that are victims of conflict and/or persecution are often also victims of environmental degradation. Whilst the authorities are aware of this, the lack of regulations and structures protecting climate migrants makes it unlikely for these arguments to be accepted as the main justification for asylum.

However, this could possibly change with the Nansen Agenda, a “state-led consultative process to build consensus on a Protection Agenda addressing the needs of people displaced across borders in the context of disasters and climate change”. This initiative was ratified by 110 countries in 2015, including France, and has the potential to clearly define the protection criteria for climate refugees. The issue is, like many immigration policies, it is non-binding, allowing countries to deflect their responsibility to protect refugees. 
While these – the Sheel outcome and Nansen Agenda – are extraordinary first steps for providing solutions to climate migration, policies that clearly protect climate migrants and refugees need to be put in place soon as the number of climate migrants is only set to rise.


Flora Bensadon is an Earth Refuge Archivist with a degree in History and International Development Degree from McGill University. Through her studies, her culturally diverse background and her travels, Flora has taken a profound interest in the problems of migration, specifically those of climate refugees.

The Lasting Effects of Wildfires on the West Coast

16 March 2021 – by Jennifer Fields

Introduction

Wildfires in the Western United States (US) have been increasing in intensity and destruction over the past decade due to various factors, including severe droughts and heavy winds. They leave undeniable devastation in their wake, such as the charred remains of the forests, farms, and homes they burn as well as the severe health risks posed to the people in their proximity due to smoke and debris.

The fires also cause more latent harm that has lasting effects on communities. Apart from the physical destruction, there are costs that result from the fire evacuations, including the loss of business, personal finances, health struggles, and the impact on deserted communities. Wildfires can create uninhabitable areas, forcing people to evacuate their homes and become migrants in their county or state. The term ‘migrant’ is typically understood to imply crossing country borders. However, the wildfires in Western North America have forced hundreds of thousands of residents in California and Oregon to migrate across county and state lines in search of safety.

I. Physical and Mental Health Effects

The wildfires pose health risks both physically and mentally. Medical complications can begin even before the flames are seen as the smoke alone can be deadly[1]. In October 2020, smoke surrounded counties in Oregon where more than eight million people reside, leading to hundreds of additional Emergency Room visitations. Many of the patients began to struggle with their breathing as soon as the smoke appeared, and hospitals were already stretched thin from battling the COVID-19 pandemic. Some residents were unable to go to hospitals which were at full capacity, and others ended up dying later on from complications such as pneumonia[2]. Minuscule particles invisible to the naked eye mean that the inhalation of smoke is extremely dangerous. Often, people do not realize the risk of their situation until they are already suffering the respiratory effects[3]. The evidence shows that this can be deadly: an unexpected blaze of smoke in California killed 85 people in the summer of 2018, and Stanford University research has revealed that about 3,000 people over the age of 65 in California died prematurely after being exposed to smoke in early August of 2020. [4]

In late October 2020, wildfires spread through southern California, and in an attempt to prevent electrical fires, counties decided to cut the power from homes and buildings[5]. Over 90,000 people were under mandatory evacuation orders in Irving City alone whilst firefighters tried to regain control. Two firefighters were severely injured by the flames and sustained second and third-degree burns across much of their bodies. Enduring such physical trauma also has mental health implications.

Researchers at the Centre of Social Medicine and Community Health in New Delhi, India, carried out a study on trauma and its effects on mental health and found strong links between the two[6]. Disasters such as wildfires are not contained to the inherent damage caused, but create ripples of new problems and intensify the severity of others. Natural disasters have long-lasting traumatic implications for both society at large as well as individuals.

Psychological distress is a common reaction to devastating events such as forced evacuation, relocation, and disruption from the daily routine of one’s life. Experiencing a natural disaster increases the risk of Post-Traumatic Stress Disorder (PTSD), anxiety, and depression[7]. Children who may not understand the full severity of the situation are at even greater risk of these mental struggles, as well as suffering from shock as the result of such disruption[8].

As fire season began in the midst of the COVID-19 pandemic, parents on the West Coast struggled to care for their children’s mental health. It became unsafe to be outside for prolonged periods due to the dangers of smoke inhalation. This left parents inside with their doors locked, windows shut, and air purifiers on trying to keep their children entertained to avoid cabin fever.[9] One mother, Meg Keene, tried to calm her son, who has ADHA, anxiety, and depression. However, the orange skies in the daytime made him afraid of an apocalypse, and he asked to stay in a room without windows[10]. The relentless fires have increased mental health struggles for many families who are trying to survive a global pandemic and wildfire season.

Home is often a secure place for people to bunker down, and with a stay-at-home advisory or orders issued by the governors of Oregon and California, home is where people spent most of their summers. However, complications arose when fire evacuations were ordered whilst these orders were in place. Home was no longer a safe place to be, but neither was anywhere else due to the pandemic. Families struggled to find or afford alternative accommodation following months of layoffs and record unemployment rates. Those who were still employed did not want to risk losing their only income source and disrupt their lives by evacuating. In Oregon, when the fires spread abruptly and destroyed homes, people booked up all the local hotels and accommodation, making alternative housing almost impossible.

Wildfires spread rapidly through Oregon once more in September 2020, and people were forced to begin to evacuate their homes with only three-hours’ notice[11]. Many people were unable to pack within the time restriction and due to the quickly traffic-jammed roads, and so only took their pets and the shirts on their backs. Roads were closed to prevent the spread of fire, but that left few options for people trying to evacuate. With no accommodation available, people parked in parking lots and slept in their cars with their cats and dogs[12]. California and Oregon state governments encouraged inhabitants to prepare and have evacuation plans in place, but with only a few hours’ notice, a pandemic raging and limited resources for the hundreds of thousands of people forced to flee, chaos ensued. Families’ typical evacuation plans, which typically involve staying with a friend or family member in another town were disrupted or not an option due to the risk of COVID-19.

II. Impact on Low-Income Families

Like all disasters, fires disproportionally harm low-income families. Many families out West struggle to afford temporary accommodation elsewhere. Evacuations can happen several times a year and for varying lengths of time. Many people cannot afford to take time off from their jobs and afford housing and food costs elsewhere[13]. Food costs also tend to increase when seeking alternative accommodation, as there is often not a kitchen available. Families are then forced to purchase more expensive premade meals. Often families also do not have reliable transportation or a car, meaning that they must pay bus or train fees; a disruptive cost for an already economically burdened family[14]. Several government agencies provide disaster loans, but unfortunately, not all low-income families qualify for these relief loans[15]. In the event that a family does qualify, it can take months or more for the funds to come through, at which point the family is often even more in debt. In addition, many of these loans do not cover reconstruction for many of the homes that have been damaged or decimated by the heat and the flames of the wildfires. 

The 2018 California wildfires burned down Wendy, and Norm Alvarez’s home and tool shed, destroying all their possessions[16]. This left them without shelter and destroyed Norm’s livelihood as he no longer had the tools for his carpentry work. The couple could not afford homeowner’s insurance, which put them in a precarious financial situation. Many of those who lose homes in the fire are unable to fully recover financially, and this has an impact that can last for several generations. It creates instability in the community as people do not know how long they will be able to afford to live in one place, and are often forced to move elsewhere in pursuit of affordable housing options[17]. Well-paying jobs and reasonably priced housing accommodation are difficult to find in rural areas, especially when neighboring communities have suffered similar losses and are competing for the same jobs and homes[18].

Some people have received relief in the form of Federal Emergency Management Agency (FEMA) provided trailers whilst they recover from the disaster, but they may only use the trailer for a maximum of 18 months[19]. Home renovations and repairs are expensive and time-consuming; it takes time to remove all the fire damage and appraise whether anything is at all salvageable. Ellen and John Brackett lost their home in a fire and lived in a FEMA trailer whilst reconstructing their home with the knowledge that they would have to live in a tent on the property if it was not completed in time. As parents of two teenagers and caretakers of a 70-year-old parent, living in a tent would give rise to an entire host of other problems. Many people in the community were already living in tents, with no other relief or rebuilding plans available[20].

III. Impact on Insurance and Business

Due to the risk of fire, insurance companies have significantly increased their rates. This means that many residents cannot afford homeowner or renters’ insurance. In September 2020, California implemented new laws to provide affordable insurance in fire risk areas, but this has created the fear that insurers will simply stop offering insurance to those in high-risk regions[21]. Since 2017, insurers have started to discontinue insurance for homes in fire-prone regions. The inability to access insurance can make homes harder to sell and decreases their overall value[22].

In 2020 California suffered the worst wildfire season recorded. 10,488 structures were damaged or destroyed as a result, and 4,257,863 acres of land and forest were destroyed[23]. This devastation increases the risk that insurers will stop providing services at increasing rates, wrecking the housing market in many areas. Insurance providers have been working with homeowners to detail the steps they can take to mitigate fire risks, but there are only a finite number of precautions a homeowner can take to reduce the risk of damage as forest fires increase in both frequency and severity[24].

Insurance rates and fire risks are also increasing the rate at which people move away from high-risk communities, creating climate migrants within the state. This ruins businesses, especially local businesses that were first plagued by COVID and were then hit by the fires or their secondary effects. Northern California has a billion-dollar agricultural industry that provides over one hundred thousand jobs[25]. Fires in the area have ruined many vineyards and destroyed decades-old vines. Without the plants, there is no business. New vines take three to four years to produce grapes, and much longer to yield quality grapes. The smoke in the area taints the wine while it is being fermented and can ruin the overall flavor, which could become a problem for the industry. Even if plants do survive, the heat of the fires causes much of the fruit fall off, and according to federal food and safety regulations, a crop cannot be sold once it has fallen off of the vine[26]. California grows 90% of avocados in the US – an industry worth millions to the economy – but in 2017 many farmers lost their avocados to wildfires, which led to the loss of many farming jobs as well[27]. Most of these farms are small and family-run in the south of the state. This economic loss has continued to challenge them each year as the fires increase, making it harder to recover each time[28].

The pandemic had already impacted small businesses in rural areas, and the fires and smoke brought with them another wave of problems. Many local shops and cafes were destroyed in the fires, and others had to close due to the hazardous air quality[29]. The sun was blocked out by all the smoke, and indoor seating was limited or banned due to COVID-19 restrictions, leaving countless local business owners with no choice but to close in the interests of safety. This came at a cost for many owners who had to make the difficult choice to close for good. If businesses cannot be run, they must close up shop and move to a place that is inhabitable, where smoke and fire do not pose a threat to them or their customers.

The wildfires have increased in frequency and severity over the past decade, causing millions of dollars of damage and affecting the lives of West Coast communities for generations to come. The fires themselves have wreaked havoc that cannot, without – affordable – insurance, be repaired. Families have suffered emotionally, mentally, and financially from these traumas. Many people have suffered and even died due to health complications from the flames and smoke, whilst others have lost their means of income and life’s possessions. People are being forced to move out of these areas because they can no longer afford the cost associated with living in a high fire risk area.

Conclusion

Despite the tragedies faced by these communities, they have come together and shown strength whilst trying to put their homes and lives back together. Organizations and companies across the US have pitched in to help provide relief.

The Salvation Army has helped provide essential services such as the provision of food, water, shelter, and emotional support to many first responders[30]. Many local Airbnb hosts have volunteered their accommodations, and the American Red Cross has been collecting donations[31].

There are many ways to get involved and help the communities hit by the fires, including volunteering time, resources, and funding. Organizations like Baby2Baby collect essentials such as formula, diapers, wipes, and baby food for infants and toddlers whose families were displaced by the fires[32]. The California Fire Foundation provides families with relief by donating gift cards to assist in replacing necessities that were lost or destroyed[33]. There are also food banks across the West Coast that have reopened and provide meals to families and front-line workers in need. California’s Office of Emergency Services also maintains a list of reputable foundations where donors can safely provide relief funding. When communities support one another, they can accelerate the rebuilding process and minimize the potential ripple effects of such disasters. 

This article is part of our Spring 2021 collaboration with students from the International Human Rights Clinic at the Western New England University.


Jennifer Fields is a second year Law Student at Western New England School of Law in Springfield, MA.  She is on the Dean’s List and is working on a concentration in International and Comparative Law to complement her passion for justice. In college, she worked for Beit Ha’Gefen in Haifa, Israel, creating a safe, multicultural space for refugees settling into Israeli life. Currently, she is active in her community as a trained legal observer for the National Lawyers Guild and does Pro Bono work with the ACLU. When the season is right, she enjoys skiing and spending time on the water.


References

[1] Associated Press, Wildfire smoke in the U.S. exposes millions to hazardous pollution, (Oct. 15th, 2020), https://www.nbcnews.com/science/science-news/wildfire-smoke-us-exposes-millions-hazardous-pollution-rcna156.

[2] Id.

[3] Id.

[4] Id.

[5] David K. Li and Tim Stelloh, California wildfire leaves two firefighters critically injured, forces 90,000 to evacuate, (Oct. 26th , 2020), https://www.nbcnews.com/news/us-news/southern-california-wildfire-forces-60-000-orange-county-residents-evacuate-n1244810.

[6] Nikunj Makwana, Disaster and its Impact on Mental Health, (Oct. 8th, 2019), Journal of Family Medicine and Primary Care.

[7] Id.

[8] Id.

[9] Doha Madani, West Coast residents, struggle with psychological burden of repeated evacuations as wildfire seasons worsen, (Nov. 21st, 2020), https://www.nbcnews.com/news/us-news/west-coast-residents-struggle-psychological-burden-repeated-evacuations-wildfire-seasons-n1248451.

[10] Id.

[11] Andrew Freedman, Western wildfires: Evacuations in California and Oregon as destructive fire outbreak engulfs region, (Sept. 9th, 2020),https://www.washingtonpost.com/weather/2020/09/09/western-fires-live-updates/.

[12] Id.

[13] Carlos Martín, Improving the Disaster Recovery of Low-Income Families, https://www.urban.org/debates/improving-disaster-recovery-low-income-families

[14] Id.

[15] Id.

[16] Sam Harnett, Low-Income Communities Struggle To Recover After A Wildfire, (Sept. 19th, 2020), https://www.npr.org/2018/09/19/647606049/low-income-communities-struggle-to-recover-after-a-wildfire.

[17] Id.

[18] Id.

[19] Id.

[20] Id.

[21] Christopher Flavelle, As Wildfires Rage, California Presses Insurers to Cut Rates, (Sept. 16th, 2020), https://www.nytimes.com/2020/09/16/climate/california-home-insurance-crisis.html.

[22] Id.

[23] https://www.fire.ca.gov/incidents/2020/.

[24] Flavelle, As Wildfires Rage (Sept. 16th, 2020).

[25]   Kelly McEvers, Northern California Wildfires Destroy Thousands Of Businesses, All things Considered, NPR https://www.npr.org/2017/10/12/557444669/northern-california-wildfires-destroy-thousands-of-businesses.

[26] BBC, California wildfires: Businesses face ruin as blaze rages, (Dec. 2017), https://www.bbc.com/news/world-us-canada-42289831.

[27] Id.

[28] Id.

[29] West Coast Fires will Cost US Dearly, https://www.dw.com/en/economic-impact-california-wildfires-us-west-coast/a-54956210.

[30] Sophie Lewis, How to help victims of the West Coast’s apocalyptic wildfires, (Sept. 11th, 2020), https://www.cbsnews.com/news/wildfires-oregon-california-washington-west-coast-how-to-help-victims/.

[31] Id.

[32] Marie Tae McDermott, How to Help Victims of the California Wildfires, (Oct. 16th, 2020), https://www.nytimes.com/2020/09/18/us/help-wildfires-victims.html.

[33] Id.

Involuntary Stayers: A Case Study of Environmental Racism in Flint, Michigan

11 March 2021 – by Emma Cooper

As climate change and subsequent environmental disasters continue to force people to leave their homes, policymakers and aid organizations must acknowledge that relocation is more difficult for vulnerable populations and low-income communities. Climate migrants are “involuntary movers,” but it is important to investigate the traumas and challenges of “involuntary stayers” in the context of climate crises as well in order to create robust support networks. 

In instances of climate-induced displacement, the ordinary stresses of moving are compounded with the stresses of an environmental catastrophe. Not only must migrants account for the significant financial, social, and physical tolls of moving, but also consider the specific implications of the crisis facing their home. Flooding, fires, and other disasters related to climate change require rapid evacuation, forcing migrants to make split-second decisions about their material possessions in order to survive. A 2016 study by the U.S. Global Change Research Program found that many people who are exposed to climate disasters experience a plethora of serious mental health consequences, including depression, anxiety, and post-traumatic stress disorder. The same study also indicated that children, older adults, and economically disadvantaged individuals are at a higher risk for mental health consequences as a result of exposure to climate disasters. These groups face an additional factor of compounding stress as a result of forced migration which can create additional barriers to relocation that are particularly problematic when an environmental catastrophe posits immediate danger. 

The social, political, and economic factors that hinder flight in the aftermath of an environmental crisis are apparent in Flint, Michigan, where the 2014 decision to reroute the city’s water supply through the lead-contaminated Flint River has left the city in an ongoing water crisis. This disaster exacerbated an exodus of residents that has left particularly vulnerable populations behind. The city has seen a population decrease of over 23% since 2000, a lingering symptom of long-term disinvestment that stems from the collapse of Detroit’s auto industry in the late 1960s. As auto industry jobs left the area, affluent white families fled Flint and moved into the suburbs, a textbook example of white Flight. Flint’s low-income residents and communities of color had limited pathways to relocation due to redlining, a racially discriminatory zoning policy that was widely practiced in mid-century America, economic barriers and were left with no choice but to stay. Financial distress has plagued Flint since this collapse: the 2020 average median income was almost $25,000 below the Michigan state average, which is already about $5,000 less than the national average. Buying enough bottled water to meet the weekly needs of your family is a mandatory and significant expense in Flint that tightens budgets and sets the ordeal of moving out of reach for many. 

Money is not the only thing that forces people to become “involuntary stayers”. The daily burden of the water crisis has a time cost, for cooking, cleaning, and showering with bottled water require countless errands and energy. “The rhythm of the family is disrupted,” says Dr. Tam Perry, a professor of social work and anthropology at Wayne State University in Detroit. Dr. Perry has been studying the impact of the Flint water crisis on older adults since 2014. Through her ethnographic approach to research in Flint, she has observed the ways in which everyday rituals and cultural practices have been altered to demand more effort, such as the process of cooking collard greens, a vegetable with great historical and traditional significance in Black culture going back to the American civil war. Preparing collard greens is a “source of comfort” and a way for people to “hold onto their cuisine in the face of a crisis,” says Max Smith, a social worker and research assistant to Dr. Perry. However, due to the resource-intensive preparation process, the sheer number of plastic water bottles needed to wash and boil collard greens makes the recipe prohibitive for those who need to conserve water in order to literally survive. This illustrates the cultural damage that can be created by environmental catastrophes for “involuntary stayers” and “involuntary movers” alike, as migrants may also experience feelings of cultural severance upon moving. 

Though the contamination of Flint’s water supply was not the direct result of climate change, it stands as a pertinent example of environmental racism and neglect of human rights in a low-income community that is akin to many places currently confronting climate-induced displacement. Warming climates and gradually rising sea levels will produce evacuations over a long-term scale and in this way, Flint provides an important case study to inform future community displacement planning and migration patterns. The burden of the climate crisis will continue to fall most heavily upon low-income areas and communities of color. Governments, NGOs, and other organizations working at the forefront of these issues must consider this disparity in their mitigation approaches to ensure that there is adequate support for vulnerable populations that may not otherwise see relocation as financially, politically, or physically feasible, even in the face of a climate disaster. 


Emma Cooper is a Michigan native currently studying at the University of California, Berkeley. This discussion of the cultural toll of environmental disasters builds upon an interview with Dr. Tam Perry, a professor at Wayne State University in Detroit, Michigan who has been conducting research on the social impact of the Flint Water Crisis since 2015, and Max Smith, a social worker in the Detroit area, who served as a research to Dr. Perry on several projects.

The Role of Domestic Courts in Climate Litigation: A Case for Intergenerational Justice in the United Kingdom

green grass covered mountain under cloudy sky during daytime

9 March 2021 – by Stephanie Hader

We are looking ahead, as is one of the first mandates given to us as chiefs, to make sure every decision we make relates to the welfare and well-being of the seventh generation to come, and that is the basis by which we make decisions in council. We consider: Will this be to the benefit of the seventh generation. This is a guideline.

– Iroquois Nation maxim [1]

INTRODUCTION

The 2019 student ‘Strikes 4 Climate Action’ in Australia were a testimony to the urgency of redirecting the climate change discourse to the foreground of political and judicial decision-making. The current warming trend, as was outlined in the IPCC Fifth Assessment Report, is significant because “most of it is extremely likely to be the result of human activity since the mid-20th century and proceeding at a rate that is unprecedented over decades to millennia”.[2] The scientific evidence is unequivocal. If natural habitats are not protected to the extent that the integrity of all their ecological functions are maintained, we are facing a dim future. As existing in a temporal dimension, precautionary action to protect the ‘right to a healthy environment’ must be taken in the face of uncertainty.

Thousands of primary and secondary school students marched the streets in cities across Australia, attesting that “the youth are rising, we are not compromising”.[3] And they certainly shouldn’t. The judiciary has a prevailing role in responding to their plea. It is with this contention that this paper will argue that all generations – including children and legitimate representatives of future persons –  should be regarded as co-equal in court procedures. In extending the common law rules of standing to all generations, climate litigation will finally have its place in court. This form of intergenerational equity will set new enforceable standards for governments to act as fiduciary trustees in the protection of our shared environment. The outcome will be the reduction of CO2 emissions and slowed or reversed species endangerment.

Scope and Definitions

I will narrow my analytical scope to the role of domestic courts in common law jurisdictions, with an emphasis on Public Law in the United Kingdom. For argumentative purposes, this paper will heavily draw ideas, decisions and principles from other jurisdictions as climate change is a phenomena with consequences that transcend institutional boundaries. The analysis will mostly be anchored in legal philosophy, and will thereby be less technical in nature. The first section of the paper will address our relationship to the environment, followed by our relationship to future generations and lastly to governments. This essay purports to humbly act as a policy paper in appealing to judges, particularly in the United Kingdom, to amend the common law rules of standing. Judgements that contemplate intergenerational elements not only bolster environmental standards, but also exert a persuasiveness that eclipses state borders.

PART I: OUR RELATIONSHIP WITH THE ENVIRONMENT

All of our actions and inactions affect the global ecosystem and its intricate webs. As humans, we have the capacity to shape and destroy our own natural habitat. According to the I=PAT equation, the environmental impact (I) is caused by a very large and ever-increasing human population, the increase in economic growth per capita affluence (A) and the application of resource-depletion and pollution technology (T).[4] The results exposed that the environmental change sweeping the world is occurring at a much faster pace than previously thought. The United Nations High-level Panel on Threats, Challenges and Change has officially cautioned environmental deterioration as one of the ten most serious threats to the human race.[5] Efforts must be made on all fronts to counteract the irreversible damage done to Earth – a planet we all call home.

Impact of Climate Change

The current statistics concerning climate change are alarming and “no longer academic”.[6] We are confronted with the depletion of our resources, the destruction of entire ecosystems and habitats, the extinction of wildlife and a distressing increase in air pollution. The Global Environmental Outlook’s Regional Assessments paint a bleak picture of the severity of the issue. In Latin America, “nitrous oxide emissions increased by 29% between 2000-2010”.[7] In the Pan-European region, they found that “land-use related emissions, nitrogen oxides and particulate matter persist at high levels and are still increasing”.[8] While overall greenhouse emissions have reduced, the increasing per-capita consumption of final goods and services still remains a “major obstacle to a low-carbon economy”.[9] On a global scale, around half of the world’s original forests have disappeared, despite their integral role in producing oxygen. Due to their ability to act as a carbon sink, it is estimated that 15% of greenhouse gas emissions are the result of deforestation.[10] The quality of our natural atmosphere is severely affected by these changes.

This unbalanced relationship with the environment has led to a “decline in agricultural productivity; increased risk of floods and droughts; threats to food security; increased demand for water; and negative effects on biodiversity”.[11] In North America, global warming “exacerbated the five year drought in Texas by 15-20%” and the 2010 heatwave in the northern hemisphere resulted in 54,000 cumulative excess deaths”.[12] Climate change is exerting multiple interlinked pressures and health threats upon society and “it is clear that the frequency of such events will increase as the climate warms”.[13] Rising temperatures are shifting our planet into an ominous state that is rapidly becoming less hospitable to human life. Costello described climate change as the “largest health threat of the 21st Century”.[14] In this way, all members of the human family “have an interest, and a responsibility, to act to ensure we protect what we all value: a healthy future for both people and nature”.[15] The global average temperature cap has been set by the United Nations Paris Agreement to be well below 2°C. [16] Remaining under this stipulated standard is the crux of the challenge.

Right to a Healthy Environment

A right ensuring that such a future is attainable can appear in many different forms and may be invoked in circumstances where a specific environmental violation incurs serious health consequences. There is a universality claim to such an argument, as our relationship with the natural environment is part and parcel of our existence. A right formed on such a basis transcends cultural relativism, political ideologies, and social constructs. Nature is fundamental, if not indispensable to our survival (at least until we invent an artificial alternative). Ergo, this paper is written on the premise that even if the terminology adopted differs across contexts, the right to a sustainable environment is enshrined in our laws in one format or another. Since this right is a natural right we enjoy as members of the same species, in the case that it is only vaguely construed, there is a strong presumption that it should be read in favor of its existence. Therefore, despite the United Kingdom not expressly providing for a positive right to a healthy environment, an individual claim to a violation brought on these grounds is still reasonable due to its universal potency.

References to rights that have an indirect bearing on the environment can be found in both domestic and international legal instruments. Whilst the Universal Declaration of Human Rights, the International Covenant on Economic, Social and Cultural Rights (ICESCR), and the International Covenant on Civil and Political Rights (ICCPR) do not explicitly mention the right to a healthy environment per se, it can still be inferred through a liberal analysis of the language adopted. An example is the ‘right to life’ mentioned in Article 6 of the ICCPR.[17] In the Indian case Subhash Kumar v State of Bihar, the judges extracted the environmental element in declaring “that the right to a healthy environment was an integral part of the right to life”,[18] enshrined in Article 21 of their Constitution.

Another strand of evidence in support of its universality can be found in United Nations’ sponsored declarations and conferences. The Stockholm Convention on Persistent Organic Pollutants expressly announced in 1972 that “humans have the fundamental right to freedom, equality and adequate conditions of life in an environment of a quality that permits a life of dignity and well-being”.[19] Twenty years later, the Rio Declaration on Environment and Development similarly stated that “human beings are entitled to a healthy and productive life in harmony with nature”.[20] Such a long-standing standard in customary international law upholds the assumption that despite the lack of a well-defined right, all persons merely by virtue of their humanity are entitled to an ecologically sound environment and the natural resources it offers. As Sax pointed out, “certain interests are so particularly the gifts of nature’s bounty that they ought to be reserved for the whole of the populace”.[21]

Other manifestations to a right to a healthy environment have also developed in the course of judicial decision-making. In a famous judgement in 1997 concerning the Gabcikovo Nagmaros Project, it was held that due to the global development of new environmental norms, both states, namely Hungary and Slovakia, “are equally entitled to the preservation of their human right to the protection of their environment”,[22] for “it is a sine qua non for numerous human rights such as the right to health and the right to life itself”.[23] Likewise in Columbia and South Africa, domestic courts held the right to a healthy and sustainable environment to be categorically absolute.[24] The Colombian Constitutional Court coined it as being a “precondition to life itself and must be guaranteed even in the face of uncertainty as to the risk of violating the right”.[25] From these examples flows the rationale that a right to a healthy environment is universal and imprescriptible in nature. Accordingly, its legal force can also triumph in the United Kingdom.

Finally, all generations should enjoy equal access to its benefits. Future inhabitants are in this instance defined not as an abstraction, but as consisting of individuals, that are human beings; that is, we can safely assume that they share the same properties to humans today.[26] Their mere incapacity to legally invoke the right to a robust environment, does not affect the existence of such a right. It is thereby not only universal, but also intergenerational. This paper is not committed to the claim that “future generations by definition do not exist now and they cannot now, therefore, be the present bearer or subject of anything, including rights”.[27] Instead it will adopt an unconstrained view that the human right to healthy environment is applicable to all of mankind; past, present and future.

PART II: INTERGENERATIONAL JUSTICE

The previous section established the extremity of the climate change crisis. Naturalist David Attenborough goes so far as to suggest that “the collapse of civilization is on the horizon”.[28] It also concluded that all of mankind has a right to a healthy environment. How this affects our relationship to future generations will be addressed below. 

Two initial points must be made. First, due to the fact that the most destructive effects of climate change are yet to come, children and future generations will experience its most lethal impacts. As they too have a right to a secure environment, adequate climate action is just as much, if not more, their concern than it is ours. Despite this, the voices of children and future generations are mostly left unheard. This paper makes an attempt to address this issue.

Second, a correlating duty to protect the environment naturally derives from the inference that a right to a healthy environment exists. Domestic courts can fulfill this duty in setting stringent environmental standards through public interest litigation. At its core is the “right to demand protection from public authorities in case of any breach or compromise or right”.[29] With such a judicial system in place, measures are available to the public if authorities mishandle the pursuance of a sustainable ecosystem. Provided that the “right to effective judicial protection is one of the cornerstones of societies governed by the rule of law and judicial access is a key aspect of that right”,[30] it has immense power to effectively serve the best interests of the public.

Issue of Standing

It is of great concern that domestic courts in the United Kingdom are currently unable to hear climate change cases on the ground that there is no clear correlation between a plaintiff and the injury caused by rising temperatures. It is either a) that the intended plaintiff does not have sufficient interest in the particular injury, or b) that those who will suffer the injury are unable to be identified as plaintiffs. The issue at hand is one of legal standing (locus standi), which refers to the ability of a particular individual or pressure group to bring legal action in a court of law. It is a matter of “threshold inquiry in the determination of the appropriateness of judicial intervention”.[31] In other words, locus standi is “a place of standing; standing in court; a right of appearance in a justice or before a legislative body on a given question”.[32] Fundamentally, it is about the right to be heard.

The Injury

The first issue is concerned with linking the injury to the legal or natural person. Section 31(3) of the Supreme Court Act 1981 in the United Kingdom provides that “no application for judicial review shall be made… unless… the applicant has sufficient interest in the matter to which the application relates”.[33] This is interpreted more liberally for pressure groups like Greenpeace and Friends of the Earth amongst others. Individuals must demonstrate that they have a sufficient interest in the decision they are preparing to challenge.

There is an inherent inability to prove interest in a case where the violation is concerned with environmental degradation or climate change. Due to its complex nature, it is extremely difficult to prove how exactly the ‘injury’ has affected an individual. The applicant must normally “show that the challenged conduct has caused that injury in fact”.[34] However, as there are many different layers of impact, responsible public bodies may not be held accountable for a specific course of action that has the capacity to cause serious consequences for a large group of people in the future.[2] 

The presence of this obstacle is clear in the following cases. In Balmer-Schafroth and Others v Switzerland, “applicants failed to show that the operation of the power station at issue exposed them personally to a danger that was not only serious but also, specific, above all, imminent”.[35] A similar conclusion was drawn in Stichting Greenpeace v EC Commission in which the Court of First Instance declared Greenpeace’s action inadmissible, as it was not directly involved with the controversy in question. It was held that “while environmental protection is one of the fundamental objectives of the community”,[36] it does not automatically confer a right on a natural person that is enforceable by law. The environmental violations were not only too remote, but also not deemed to be an issue of public importance at the time.

The difficulties in establishing a causal link between the commission or omission of the public body and the individual or group can lead to courts declaring a case inarguable. Given the inability to establish a direct aggrievance, actions of environmental degradation which are practiced and condoned can be overlooked by the judicial branch on the ground that the violation itself has not yet manifested into a danger grave enough for the party in question to allow court proceedings to commence. As per Lord Denning, “the court would of course not listen to a mere busybody who was interfering in things which did not concern him”.[37]

The Plaintiff

The second issue is concerned with the inability of the standing doctrine to link environmental harm to children and future generations. Despite the inevitable impact of climate change circumventing generational boundaries, youth without representation and the unborn are unable to voice their complaints in court. The future person does not fit into the “regular” concept of a legal person, as the law does not yet have the capability to address and represent an entity which does not yet exist.[38] In the case of Faroque v Bangladesh for example, the court whilst weighing the issue of a pollution-free environment, did not grant locus standi to future generations, simply on the grounds that the Constitution of Bangladesh does not expressly provide them with any rights.[39]

The shortcoming of the courts in articulating the definition of a non-subject has meant that there is no enforceable duty of care for the health and wellbeing of future generations. In this legal reality, the right to a healthy environment, which one pertains by virtue of being a person, cannot be invoked insofar as there is no actual person who may benefit from it. This strict view of the principle that legal personhood is “based on the biological birth and death of the human being”[40] violates the basic fundamental assumption that there will, all singularities aside, be a future generation. In the face of climate change, this narrow understanding of locus standi – that the ‘individual’ in the Supreme Court Act 1981 is merely defined as legal construct rather than a legal person – must be overcome, This will allow room for alternative interpretations. 

locus standi for Future Generations

The way in which both of these encumbrances can be addressed appropriately when considering climate change is through the integration of intergenerational justice into the domestic law of the United Kingdom. It will not only urge “agents to act now on the basis that the antecedent will at some point in the future come true”,[41] but will also establish a link between the plaintiff and the injury so that legal representatives of future generations will be granted the capacity to institute and commence legal proceedings. In recognizing that justice must be achieved across generations, courts can effectively play a role in preserving the future state of the environment from current impairment. This is a normative discussion and will be based on the premise that “in order to care about the future it is necessary that there be a future”.[42]

Philosophy of Intergenerational Justice

To avoid animosity, I will address the ethical element of intergenerational justice and ask whether we have a moral duty to ensure that the right to a healthy environment will also be enjoyed by future generations; otherwise it may be difficult to justify a sacrifice for the sake of a future which has not yet manifested.[43] While there is a strong presumption that there is such a duty, it must first be briefly defended that there is also a general willingness to support the preservation of the existence of humankind. I will base my value judgement on two grounds: that the “human species should survive, and that future generations are entitled to live in dignity”.[44] This notion fortunately “strikes a deep chord with all cultures, religions and nationalities”.[45]

First, from a moral standpoint, it can be assumed that the ‘human species should survive’. As Professor Weiss argued, “the interest in survival is deeply rooted in the thinking of all peoples”.[46] In this way, there is a greater moral force than a mere obligation of present generations.[47] As discussed in the previous section, it has become apparent that humans now have the capacity to shape their natural surroundings on such a scale that warrants scrutiny. We are changing our global environment irreversibly, with “profoundly damaging effects on the robustness and integrity of the planet”.[48] To an extent, humans can now “collectively decide to let the human race peter out”.[49] In the past we only had little discretion over the natural process in which humans replenished the earth. These developments in our powers inevitably changed the nature of human action.[50] With the fate of mankind in our hands, comes the moral responsibility to ensure its survival, at least in part.

Secondly, it also seems fair to assume that ‘future generations are entitled to live in dignity’. For this quality of life to manifest, three basic principles of intergenerational equity must be satisfied according to Weiss: the conservation of options, conservation of quality and conservation of access.[51] If left ignored, we are “threatening the survival of humankind under conditions worthy of human beings”.[52] The reason that we are morally obliged to play an implicit role in shaping their future is that there exists an unspoken “partnership among those who are living, those who are dead and those who are to be born”, [53] as was phrased by Edmund Burke. At present we are holding the earth on trust for all generations to come, just as previous generations did for us, and it is by virtue of this relationship that we must “realize and protect the welfare and well-being of every generation”.[54] As Weiss elegantly put it, “all generations are inherently linked to other generations, past and future, in using the common patrimony of earth”,[55] and it is with this regard that we can say that the right to a healthy environment spans across all generations.

Intergenerational Justice in International Law

Intergenerational justice is not only normative in nature, as versions of it can also be found in international treaties and conventions. The UN Framework Convention on Climate Change (UNFCCC), for example, has a clear provision for the principle of intergenerational equity. Article 3 states that “the parties should protect the climate system for the benefit of present and future generations of humankind, on the basis of equity and in accordance with their common but differentiated responsibilities and respective capabilities”.[56] Similarly, the Brundtland Commission maintains that “sustainable development is development that meets the needs of the present without compromising the ability of future generations to meet their own needs”.[57] It was only a year before this report was released that there was a quest for “all Governments and peoples of the world to discharge their historical responsibility, collectively and individually, to ensure that our small planet is passed over to future generations in a condition which guarantees a life in human dignity for all”.[58] Evidently, the concept of intergenerational equity is not  novel, and is instead deeply anchored in customary international law. 

Intergenerational Justice in Case Law

The above analysis creates a strong argument for the introduction of intergenerational equity into domestic bodies in the United Kingdom. Internationally, some cases have already been successful in pleading the interest of future generations. In Diego Cali & Figli Srl v Servizi Ecological Porto Di Genova SpA, the ECJ stated that the prevention of pollution serves the interests of not only current, but also future generations.[59] In Nauru v Australia, the ICJ linked the rights of future generations to the liability for environmental damages. [60] Most importantly, in Minors Oposa v Department of Environment and Natural Resources in the Philippines,[61] the courts allowed a claim based directly on the concept of intergenerational responsibility. These cases show that there is already a willingness to contemplate the welfare of all generations in court decisions.

I will briefly focus on the Minors Oposa case, as the decision by the Philippines Supreme Court has the conceptual capacity to serve as a transferable model to common law jurisdictions. The facts of the case are as follows: the plaintiffs sought an order from the government to discontinue timber licensing agreements, as the grave environmental damages resulting from deforestation were “causing adverse effects, disastrous consequences, serious injury and irreparable damage … to the Plaintiff minor’s generation and to generations yet unborn”.[62] In response, the judges held that future generations should also be warranted legal personhood in the eyes of the court. They reasoned that “we find no difficulty in ruling that they can, for themselves, for others of their generation and for succeeding generations, file a class suit. Their personality to sue in behalf of succeeding generations can only be based on the concept of intergenerational responsibility insofar as the right to a balanced and healthful ecology is concerned”.[63] Intergenerational environmental interests were deemed sufficiently worthy of judicial protection.

In taking this strong position, the Philippines has thus welcomed climate litigation into its legal narrative. In doing, it plays an active role in reducing the detrimental effects of climate change. In granting locus standi to legitimate representations of future generations the Supreme Court has successfully imputed the missing link between the plaintiff and the injury. Applicants are now affected by the violation in question and thus have sufficient interest in the matter. Further, the next generations who will bear the brunt of the climate change impact will have a voice in court so that representatives will be granted the ability to defend the right to a healthy environment in their name.

Climate change is forcing a paradigm shift in the way that our eco- and legal-systems cooperate. The judgement passed down by the Philippines Supreme Court is a commendable decision in whereby the courts effectively responded to emerging norms. This paper encourages all common law jurisdictions to follow in their footsteps. It is only if future generations can hold public bodies accountable that climate change can be addressed with the judicial attention it deserves. 

Government and Intergenerational Equity

Once intergenerational responsibility is enshrined as a legal principle, in which all three parties (non-voting youths, adults and future generations) are contemplated as co-equal, a stricter standard for the government to protect the environment can then emerge. As per the Public Trust Doctrine, the sovereign holds the environment on trust for public use and owes the public the fiduciary duty to protect and maintain the natural resources it provides.[64] When a “state holds a resource which is available for the free use of the general public, a court will look with considerable skepticism upon any governmental conduct which is calculated … to subject public uses to the self-interest of private parties”.[65] Some interests, such as that of a healthy environment, are so intrinsically important to every citizen that “a government may never alienate trust property by conveying it to a private owner and that it might not affect changes in the use to which that property has been devoted”.[66] There is no reason why this judicial protection of public resources we enjoy today should not also extend to those who will be forced to bear environmental devastations greater than what we can realistically comprehend today. With such an observation in mind, it is imperative that future generations are given a voice in court proceedings, because it is only then that the preservation of the environment will be treated equitably alongside economic or short-term exploitations.

Offering future generations locus standi not only invites climate litigation into the courtroom but will also put pressure on governments acting as trustees to abide by higher environmental protection standards. In Australia, the judges in Gray v The Minister for Planning actively extracted the meaning of intergenerational equity from the Environment Protection and Biodiversity Conservation Act 1999 [67] and used it to assert the responsibility of the government to “ensure the health, diversity and productivity of the environment”.[68] Evidently, the intergenerational preservation of the environment is already being consulted across various authoritative institutions, both domestically and internationally. Implementing the principle of intergenerational equity into legal proceedings in the United Kingdom would in theory be no more than a natural extension of the courts’ compliance with climate action.

PART III: LIMITATIONS

Reservations about the consequences of allowing future generations to legitimately gain entry into the sanctuary of the courts must also be made. Before judges can even begin their attempt in accurately predicting the particular consequences of climate change that will violate the ‘right to a healthy environment’, the courts will have to unanimously agree that future agents will in fact exist and what their identity will be. They must set aside the view that “unborn people cannot have anything as they do not exist”.[69] Without much deliberation, there is certainly an inherent difficulty in deducing steadfast conclusions from mere predictions. This is a very substantial flaw in the theory of intergenerational justice. 

Sanklecha provides three requirements that must be fulfilled before intergenerational justice can be considered in its full capacity. Firstly, we must assume that there will “be agents who exist in the future at all”,[70] because if there were none, it would not be possible to assign a duty to present inhabitants of the planet to preserve it for the next. Secondly, these agents “must be of a certain sort”[71] that will demand rights that are synonymous to what understand to be fundamental. This means that the courts will have to predict their interests. Are the unknown unborn entitled to the exact same biological diversity that we currently enjoy? While for example, “depriving future generations of breathable air … would indeed be a violation of their moral obligations to posterity”, “depriving them of the opportunity to see live Dodos” might not be.[72]

Furthermore, their needs for survival may be drastically different to those we classify as  necessities today. Lastly, the courts must make an assumption about the number of agents. Only if meaningful conclusions can be drawn from these predictions of the future of mankind will we be able to justify the duties that the people of today will have towards the people of tomorrow.

CONCLUSION

Tackling this environmental crisis rests upon the commitment to equality across generations. Quoting the 1972 Stockholm Conference on the Human Environment, we have a “responsibility to protect and improve the environment for both present and future generations.” At a time when children are protesting across the globe in the name of climate action, institutions are urged to finally define and implement their promise. It is not merely about sporadic protective measures, but about a long-term solution to the destabilization of the earth’s climate system. As Albert Einstein said, “we cannot solve problems by using the same kind of thinking we used when we created them”.[73] Holding his words in high esteem, we must finally allow future generations an opportunity to voice their preferences for the future in the courts of law. What the foregoing shows is that intergenerational equity is not only a moral postulate but a legal framework for environmental change.[74] Enshrining this principle in the United Kingdom as an element of locus standi has the power to reflect an ethos that is planetary in scope.


Stephanie Hader is the Co-founder and Director of Earth Refuge.  She is a Penn LLM Graduate with experience in drafting government reports for both the Australian and German Parliament. Stephanie also holds a Juris Doctor from the University of Hong Kong.


References

[1] Oren, L. (2000) An Iroquois Perspective, in Environmental Discourse and Practice: A Reader, 15

[2] IPCC Fifth Assessment Report (AR5)

[3] Albeck-Ripka, L. (2018) Climate Change Protest Draws Thousands of Australian Students, New York Times

[4] Sherbinin, A., Carr, D. Cassels, S. & Jiang, L. (2009) Population and Environment, Annu Rev Environ Resour, Vol 32

[5] Lonergan, S. (1998) The Role of Environmental Degradation in Population Displacement, Environmental Change and Security Project Report, Issue 4, 11

[6] Weston, B. and Bach, T. (2009) Recalibrating the Law of Humans with the Laws of Nature: Climate Change, Human Rights, and Intergenerational Justice, Vermont Law School Legal Research Paper Series, No. 10-06, 60

[7] UN Environment (2016) Latin American Region, Global Environment Outlook 6 Regional Assessments, 35

[8] UN Environment (2016) Pan-European Region,  Global Environment Outlook 6 Regional Assessments, 66

[9] Ibid. 53

[10] Rawles, S. (2018) Deforestation, WWF-Canon

[11] Kebede, A.S., Dunford, R., Mokrech, M., Audsley, E., Harrison, P.A., Holman, I.P. and Wimmer, F. (2015) Direct and indirect impacts of climate and socio-economic change in Europe: A sensitivity analysis for key land-and water-based sectors, Climatic Change 128(3-4), 1

[12] Safronov, A., Fokeeva, E., Rakitin, V., Grechko, E. and Shumsky, R. (2015) Severe wildfires near Moscow, Russia in 2010: Modeling of carbon monoxide pollution and comparisons with observations

[13] Trenberth, K.E., Fasullo, J.T. and Shepherd, T.G. (2015) Attribution of climate extreme events, Nature Climate Change, Vol. 5, Issue 5, 8

[14] Costello, A., Abbas, M., Allen, A., Ball, S., Bell, S., Bellamy, R., Patterson, C., Friel, S., Groce, N., Johnson, A. et al. (2009) Managing the health effects of climate change, The Lancet

[15] Carrington, D. (2014) Earth has lost half of its wildlife in the past 40 years, says WWF, The Guardian

[16] United Nations Framework Convention on Climate Change (2018) The Paris Agreement

[17] United Nations (1966) Article 6 of the International Covenant on Civil and Political Rights

[18] Subhash Kumar v State of Bihar (1991) High Court of Judicature at Patna Criminal Miscellaneous No 55717

[19] UNEP (1972) Stockholm Convention Protecting Human Health and the Environment from Persistent Organic Pollutants

[20] UNESCO (1992) The Rio Declaration on Environment and Development

[21] Sax, J.L. (1969) The Public Trust Doctrine in Natural Resource Law: Effective Judicial Intervention, Michigan Law Review, Vol. 68, 484

[22] The Gabcikovo Nagmaros Project Hungary/Slovakia (1997) Reports of Judgements, Advisory Opinions and Orders, International Court of Justice

[23] Ibid.

[24] Fundepublico v Mayor of Bugalagrande and Others (1991) held in favor of the right to a healthy environment as a fundamental human right. The court made reference to rights contained in the Colombian Constitution and also to “recent developments in international law”. In South Africa, Wildlife Society of Southern Africa and Others v Minister of Environmental Affairs and Tourism of the Republic of South Africa and Others (1996), the right to healthy environment was affirmed in that the court stated that the applicants had locus standi to bring the action pursuant to sections 7(4)(b) and 29 of the Interim Constitution of 1993.

[25] Fundepublico v. Mayor of Bugalagrande and Others (1991) Judgment No. T-4 15/92, First Chamber of Appeal, Constitutional Court, Santafe de Bogota, Colombia

[26] Weiss, E.B. (1990) Our Rights and Obligations to Future Generations for the Environment, The American Journal of International Law, Vol. 84, No. 198, 205

[27] De George, R. (1981) The Environment, Rights, and Future Generations, In Responsibilities to Future Generations, Environmental Ethics, New York: Prometheus Books, 161

[28] Carrington, D. (2018) David Attenborough: Collapse of Civilization is on the Horizon, The Guardian

[29] Pecaric, M. (2012) Public Interest and the Question of locus standi, Belgrade Law Review, No. 3, 318

[30] Ibid. 319

[31] Haskett, D.J. (1981) Locus Standi and the Public Interest, Canada-United States Law Journal, Vol. 4, Article 4, 40

[32] Blacks Law Dictionary (1990) St.Paul Mina: West Printing Co, 941

[33] Supreme Court Act (1981) United Kingdom

[34] Lee, J. (2000) The Underlying Legal Theory to Support a Well-defined Human Right to a Healthy Environment as a Principle of Customary International Law, Journal of Environmental Law, 331

[35] Balmer-Schafroth and Others v Switzerland (1997) European Court of Human Rights

[36] Stichting Greenpeace v EC Commission (1998) European Court of Justice

[37] R v Paddington Valuation Office ex parte Peachey Property Corporation Ltd (1965) 2 All ER 836

[38] Haaf, L.T. (2016) Future Persons and Legal Persons: The Problematic Representation of the Future Child in the Regulation of Reproduction, Laws Vol. 5, No. 10

[39] Farooque v Government of Bangladesh (2001) National High Court, Source UNEP

[40] Haaf, L.T. (2016) 10

[41]Sanklecha, P. (2017) Our obligations to future generations: the limits of intergenerational justice and the necessity of the ethics of metaphysics, Canadian Journal of Philosophy, Vol. 47, Issue 2-3, 232

[42] Ibid. 231

[43] Sanklecha, P. (2017) 233

[44] Gündling, L (1990) Our responsibility to future generations, American Journal of International Law, Vol. 84, Issue 1, 209

[45] Weiss, E.B. (1992) In Fairness To Future Generations and Sustainable Development, American University International Law Review, Vol. 8, Issue 1, 20

[46] Weiss in Gündling, L. (1990) 209

[47] Ibid. 210

[48] Weiss, E.B. (1990) 198

[49] Ibid.

[50] Sanklecha, P. (2017) 232

[51] Gündling, L (1990) 209

[52] Ibid. 208

[53] Burke, E (1970) Reflections on the Revolution in France, Works of Edmund Burke, London

[54] Weiss, E.B. (1990) 200

[55] Weiss, E.B. (1990) 199

[56] United Nations Framework Convention on Climate Change (1992) Article 3.1, FCCC/INFORMAL/84

[57] Brundtland Report (1987) Report of the World Commission on Environment and Development: Our Common Future, A/42/427

[58] The Nairobi Declaration (1982) UNEP Report of the Governing Council. A/37/25

[59] Diego Cali & Figli Srl v Servizi Ecological Porto Di Genova SpA (1997) Tribunale di Genova, European Court Reports

[60] Nauru v Australia (1992) International Court of Justice, Reports of Judgements, Advisory Opinions and Orders

[61] Minors Oposa v Secretary of the Department of Environmental and Natural Resources (1994) Supreme Court of the Philippines, 33 ILM 173

[62] Minors Oposa v Secretary of the Department of Environmental and Natural Resources (1994)

[63] Ibid.

[64] ‘Public Trust Doctrine’ definition as per the Wex Legal Information Institute

[65] Ibid. 490

[66] Sax, J.L. (1969) 486

[67] Environment Protection and Biodiversity Conservation Act of 1999 (EPBC) Australia

[68] Gray v The Minister for Planning (2006) NSWLEC 720

[69] Beckerman, W. (2006) The impossibility of a theory of intergenerational justice, Handbook of intergenerational justice , 54

[70] Sanklecha, P. (2017) 231

[71] Ibid. 231

[72] Beckerman, W. (2006) 58

[73] Kevin Harris, Collected Quotes from Albert Einstein (1995), available at http://rescomp.stanford. edu/~cheshire/EinsteinQuotes.html.

[74] Gündling, L (1990) 208

[75] O’Shea Carre in Albeck-Ripka, L. (2018)


The Navajo Nation: A Case Study on Food Colonialism and Environmental Justice

4 March 2021 – by Eliana Stern

Introduction

Food is and always has been our most intimate connection to our natural environment—a source of security, spirituality, and sustenance. The emergence of modern agriculture is most commonly linked to the First Agricultural Revolution, marked by the domestication of grain in the Fertile Crescent, around 10,000 years ago. However, not only did this feat occur independently (and nearly simultaneously) in countless regions around the world, but human societies have been shaping and manipulating landscapes to produce food for a far longer period of history.

While the domestication of grain may have laid the foundation for our modern global food system—allowing for a rapid increase in centralized power, taxation, and even the beginnings of export agriculture—it was predated by a myriad of sustainable agricultural techniques that are still utilized by countless cultures around the world today, such as controlled burning or the “slash and burn” technique, pruning, and harvesting wild seeds and roots. Evidently, many histories have converged to establish the food systems we experience today. The Industrial Revolution catalyzed the mechanization of agriculture, agricultural processing, and distribution, while the discovery of the Haber-Bosch process and the subsequent Green Revolution of the mid-1900s allowed for the massive surge in large-scale monoculture and factory farming, thus establishing the chief characteristics of our current global food system.

But this food system is far from perfect. Despite the reality that roughly one-third of all food produced globally for human consumption (~1.3 billion tons/year)[1] ends up uneaten and decomposing in landfills, broad regions across the world still suffer from chronic hunger and food insecurity, a term defined by the United States Department of Agriculture (USDA) as “a lack of consistent access to enough food for an active, healthy life”[2]. Meanwhile, decades of agricultural intensification via monoculture and the use of synthetic fertilizers have led to crises of mass desertification, eutrophication, and groundwater depletion—challenges that disproportionately harm small farmers and marginalized groups rather than the large agricultural companies that instigated them. As the agricultural industry becomes more central to the discussion of climate change, due to both its use of fossil-fuel based fertilizers as well as the substantial methane footprint of Concentrated Animal Feeding Operations (CAFOs), the idea of sustainable or regenerative agriculture is emerging more in mainstream debate as a possible solution.

It is ironic that the principles and practices of groups that have historically been exploited and dismantled in the name of Western ‘progress’ may very well be the foundation for our path to salvation. In telling the story of one such group, the Navajo Nation, I hope to call attention to the central role that food plays in the conversation of environmental justice, and the necessity of dismantling historical structures of colonialism in order to build a sustainable future.

A Brief History of the Navajo Nation

The largest Native American reservation in the United States (US), the Navajo Nation spans about 16 million acres, or ~25,000 square miles, and extends into the states of Arizona, New Mexico, and Utah.[3] Despite representing one of the first and only instances in history during which the US government allowed indigenous people to return to their ancestral land, the history of Navajo sovereignty is long and rife with violence.

In 1864, after the US defeated Mexico and gained control over the vast territory recognized today as California and the Southwest United States, Colonel Kit Carson established a “scorched earth policy”[4]: an order to burn all Navajo homes and crops, and to steal or kill their remaining livestock. Starved and outnumbered, members of the Navajo tribe were then brutally removed from their ancestral lands and forced to march at gunpoint in what is known as “The LonThe Navajo Nation: A Case Study on Food Colonialism and Environmental Justiceg Walk”: a series of 53 forced marches over the course of two years from Arizona to Bosque Redondo, New Mexico. The initial 18-day, 300-mile journey led to the deaths of at least 200 Navajo men, women, and children[5]. It is worthy to note that while “The Long Walk” consisted of seven different paths and at least 50 separate groups, the eventual journey of the Navajo tribe back to their homeland merged together to forge one large group that was said to trail for ten miles.[6] 

Following four long years of imprisonment, a treaty signed with the US in 1868 permitted remaining Navajos to return to a designated portion of their ancestral land. The treaty declared Navajo Nation as independent from the US, and granted its population 3.5 million acres which, after the signing of a series of other treaties from 1878-1991, expanded to the 16 million acres Navajo Nation stretches today[7].The Navajo people call themselves Diné, which translates literally to “the people”[8]. Their independent government is broken down into executive, judicial, and legislative branches, all of which are largely informed by Diné Bibee Nahaz’aanii Bitsésiléi, or Navajo Fundamental Law—principles that have guided the tribe since long before colonization. To quote the Diné Policy Institute, “Earth, sky, plants and all living things in existence live according to Diné Bibee Nahaz’aanii Bitsésiléi… [which calls] for the appropriate respect, reverence and protocol of offering for the accessing of natural elements, including our food sources.”[9]

The Remnants of Colonialism and the Makings of a Modern Day Food Desert

At present, there are a total of 13 grocery stores on the Navajo Nation[10]. Despite being roughly the size of West Virginia and home to a population of 174,000 people, the availability of nutritious food on the Navajo Nation is rare. The average resident must drive upwards of three hours to reach the nearest grocery store[11]. Due to the difficulty this transportation barrier presents, many residents fill most of their caloric needs at local convenience stores or trading posts, which are filled with highly-processed, low-nutrition foods like chips and soda. The acute inaccessibility to nutritious food on the Navajo Nation also applies to traditional Navajo foods—a disconnect which is compounded by the historical loss of knowledge on how to grow and harvest traditional Navajo crops, as well as the difficulty of procuring both land and water on the Navajo Nation due to the complex web of tribal and federal land use policies.[12]

These substantial barriers to accessing healthy food, combined with high rates of unemployment and a predominance of low-wage jobs has led to a massive epidemic of food insecurity on the Navajo Nation. Whereas the Diné historically lived off the land using sustainable subsistence lifestyles, “decades of assimilation, forced relocation and dependence on federal food distribution programs”[13] have rendered the Nation a food desert, which the USDA describes as a region which “often [features] large proportions of households with low incomes, inadequate access to transportation, and a limited number of food retailers providing fresh produce and healthy groceries for affordable prices”[14]. As a result, in 2015 approximately 26,000 Navajo people (or 22% of the total population) were reported to be living with diabetes, and another 75,000 residents reported as prediabetic[15]. Obesity rates ranged in different regions of the Nation from 23-60%.[16]

Aside from the implications these conditions have for public health and equity in the US, the Navajo Nation’s food system is central to the discussion of environmental justice due to its clear association with colonialist frameworks, as well as the current exacerbating effects imposed by climate change. In the discussion of justice, terminology holds utmost significance, particularly in determining collective understanding and attitude towards the injustice at hand. It is important to note, then, that the term food desert contains appreciable flaws in defining the systems of environmental injustice on the Navajo Nation and elsewhere. Whilst the term implies that a region with “inadequate access to transportation, and a limited number of food retailers providing fresh produce”[17] arises as such in its natural state of being—deserts, after all, are naturally-occurring biomes around the world—it fails to encompass the very intentional history of invasion, displacement, segregation, and unjust zoning laws that have led to the existence of food deserts today.

Instead, I will subscribe to the term food apartheid, coined by physical therapist and food activist Karen Washington. The word apartheid references the government-sanctioned racial segregation in South Africa, and is therefore used to acknowledge the various intentional actions, decisions, and policies that have led to the inaccessibility to high-quality, nutritious food in marginalized communities. As Washington affirms,

food apartheid looks at the whole food system, along with race, geography, faith, and economics. You say food apartheid and you get to the root cause of some of the problems around the food system. It brings in hunger and poverty. It brings us to the more important question: What are some of the social inequalities that you see, and what are you doing to erase some of the injustices?”[18]

Part Three: Collective Healing and Foundations for an Equitable Food System

After clarifying her definition of food apartheid, Washington goes on to discuss the path to a possible solution: the concept of food sovereignty. Washington notes that the term “was really founded by indigenous people in Central and South America when they were fighting for governance”. Specifically,

“the organization Via Campesina coined the term ‘food sovereignty’. They were fighting for land ownership and they were fighting for resiliency, so we should make sure that we pay respect to those indigenous people who have been fighting for so long.”[19]

The Diné Policy Institute has since defined food sovereignty as,

“the right of people to define their own policies and strategies for sustainable production, distribution, and consumption of food, with respect to Diné culture, philosophy, and values, and is considered to be a precondition for food security on the Navajo Nation. Diné Food Sovereignty empowers Diné people by putting the Diné people, cooks, farmers, ranchers, hunters, and wild food collectors at the center of decision-making on policies, strategies, and natural resource management.”[20]

While food sovereignty may very well seem to be a logically fixed component of Navajo sovereignty, underlying federal laws and allocation of resources have prevented this concept from becoming a reality. However, recent external forces—namely, the Coronavirus pandemic and the increasing stressors of climate change on drought conditions and soil health—have led to a renaissance of traditional Navajo farming on the Nation, and a subsequent push for greater Navajo Food Sovereignty.

Tyrone Thompson, a Navajo farmer determined to fuel a movement of food sovereignty on the Navajo Nation, explains that

“as we see the shelves [of grocery stores] emptying of food and toilet paper we kind of reconnect to our roots. Some of the tools that were given by our elders and our ancestors—our planting stick and our steering sticks—those are our weapons against hunger and poverty and sickness”[21].

Thompson has since taken to social media in order to spread the knowledge of traditional Navajo farming techniques, making it easier and more accessible for Navajo residents to yield their own fresh fruits and vegetables. This movement, spearheaded by Thompson and other Navajo leaders and community leaders, works to both fortify the security and independence of the Navajo Nation through a restoration of their traditional food sources, as well as to reconnect a new generation of Navajo residents to the cultural roots and practices that they have historically been separated from. Thus, food sovereignty is a tool to jointly combat both hunger and intergenerational trauma.

Similarly, Cynthia Wilson, Traditional Foods Program Director of the nonprofit organization Utah Diné Bikéyah, launched Seeds and Sheep in the spring of 2020. This is a program with the goal of getting drought-resistant seeds and female ewes (and potentially even lambs) into the hands of Navajo residents interested in returning to a subsistence lifestyle. In May, Wilson wrote that

“launching the ‘Seeds and Sheep’ program is an act of food justice to show the Earth and universe that we are shifting back to cultural solutions to address the COVID-19 pandemic, climate crisis, and oppression on our food systems…colonization, cultural appropriation, and assimilation has put our subsistent life ways into dormancy… restoring our flocks of sheep and expanding seed sovereignty is a way to reclaim our self-sufficient food systems, economy and connection to the land.”[22]

Wilson’s Seeds and Sheep initiative points to Navajo Food Sovereignty as a possible path towards a food system in Navajo Nation that is equitable, resilient to climate change, and incorporates both intergenerational healing and reclamation of cultural values. Beyond that, it indicates an encouraging grassroots movement of reconnection with sustainable practices and the utilization of traditional ecological knowledge (TEK) in order to combat systemic environmental injustice.

Conclusion

Today’s global food system has a long way to go in order to meet its foremost goals of worldwide equity, sustainability, and resilience. With climate change wreaking havoc on the agricultural industry due to rising temperatures and subsequent regional droughts or floods, it is crucial that we make a concerted effort to reinforce our methods of food production in a way that is both adaptive to our changing climate, and has minimal negative environmental effects such as desertification, eutrophication, and excessive greenhouse gas emissions. As new innovations in agriculture such as hydroponics and indoor farming gain more popularity and exploration in public discourse, I believe that we must give at least the same amount of attention and resources to restoring some of the traditional practices in sustainable agriculture that have been utilized effectively for millennia—including crop rotation, cover cropping, farming biodiversity, integrated pest management, and more.

With respect to the Navajo Nation, the greatest tools to counter the current system of food apartheid may simply be the vast stores of TEK and sustainable farming techniques that have been denoted in Diné Bibee Nahaz’aanii Bitsésiléi for generations. As Cynthia Wilson wrote, “the resources are already in our communities, and now the pandemic is showing us the need to rely on our culture more than ever”[23].

As climate stressors inevitably increase around the world in the coming years, challenges to small-scale agriculture such as increased drought or flooding will likely prompt more and more instances of climate change-induced migration, both domestically and potentially even internationally. Thus, it is important to view the food system in Navajo Nation not as an isolated circumstance, but as a representation of what may soon come on a much larger scale. It is imperative that we not only work to innovate and refashion our current agricultural practices, but also look to the vast quantities of indigenous knowledge in agroecology and sustainable agriculture in hopes of establishing a new global food system based on equity, cooperation, and longevity.


Eliana is Earth Refuge’s Archivist and sophomore at Stanford University majoring in Earth Systems, with minors in Arabic and Creative Writing. While on campus, Eliana could often be found planting, harvesting, and planning community events at the O’Donohue Family Stanford Educational Farm, where she serves as Vice President of Stanford RooTS.


References

[1] FAO. 2011. Global food losses and food waste – Extent, causes and prevention. Rome

[2] “Definitions of Food Security.” USDA ERS – Definitions of Food Security, www.ers.usda.gov/topics/food-nutrition-assistance/food-security-in-the-us/definitions-of-food-security.aspx.

[3] “Navajo Nation.” Navajo Area, Indian Health Service – The Federal Health Program for American Indians and Alaska Natives, www.ihs.gov/navajo/navajonation.

[4] Indian Health Service, “Navajo Nation.”

[5] “Navajo Sovereignty Day.” Navajo Code Talkers, 1 Oct. 2014, navajocodetalkers.org/navajo-sovereignty-day/.

[6] Navajo Code Talkers, “Navajo Sovereignty Day.”

[7] Navajo Code Talkers, “Navajo Sovereignty Day.”

[8] Indian Health Service, “Navajo Nation.”

[9] “Good Laws, Good Food: Putting Food Policy to Work in the Navajo Nation.” Navajo Food Policy Toolkit, The Harvard Law School Food Law and Policy Clinic, May 2015, www.navajohs.org/uploads/PressRelease/fb31f5d091d74bac8e18ac02e46455e6/Navajo_Food_Policy_Toolkit_May_2015.pdf.

[10] Kreider, Matilda. “13 Grocery Stores: The Navajo Nation Is a Food Desert.” Planet Forward, 10 Dec. 2019, www.planetforward.org/idea/13-grocery-stores-the-navajo-nation-is-a-food-desert.

[11] Kreider, “13 Grocery Stores.”

[12] “Diné Food Sovereignty: A Report on the Navajo Nation Food System and the Case to Rebuild a Self-Sufficient Food System for the Diné People.” Diné Food Sovereignty Report, Diné Policy Institute, Apr. 2014, www.dinecollege.edu/wp-content/uploads/2018/04/dpi-food-sovereignty-report.pdf.

[13] Morales, Laurel. “Navajo Nation Sees Farming Renaissance During Coronavirus Pandemic.” NPR, NPR, 28 July 2020, www.npr.org/2020/07/28/895735482/navajo-nation-sees-farming-renaissance-during-coronavirus-pandemic.

[14] Dutko, Paula, et al. “Characteristics and Influential Factors of Food Deserts.” Economic Research Service – USDA, USDA, Aug. 2012, www.ers.usda.gov/webdocs/publications/45014/30940_err140.pdf.

[15] Navajo Food Policy Toolkit, “Good Laws, Good Food.”

[16] Navajo Food Policy Toolkit, “Good Laws, Good Food.”

[17] Dutko et al. “Characteristics and Influential Factors of Food Deserts.”

[18] Brones, Anna. “Karen Washington: It’s Not a Food Desert, It’s Food Apartheid.” Guernica, 10 May 2018, www.guernicamag.com/karen-washington-its-not-a-food-desert-its-food-apartheid/.

[19] Brones, “Karen Washington.”

[20] Diné Policy Institute, “Diné Food Sovereignty.”

[21] Morales, “Navajo Nation Sees Farming Renaissance During Coronavirus Pandemic.”

[22] Wilson, Cynthia. “‘Seeds and Sheep’ Program in Response to Covid.” Utah Dine Bikeyah, 8 May 2020, utahdinebikeyah.org/seeds-and-sheep-program-in-response-to-covid/.

[23] Podmore, Zak. “Seeds and Sheep Program Is Distributing Drought-Resistant Seeds to Native American Families in San Juan County.” The Salt Lake Tribune, 14 May 2020, www.sltrib.com/news/2020/05/14/seeds-sheep-program-is/.


A Tale of Two Cities: The Complexity of Climate Migrants in North Carolina, USA

2 March 2021 – by Ben Chappelow

Due to its low elevation and vulnerable barrier islands, North Carolina is one of the more at-risk areas in the United States (U.S.) when it comes to sea level rise. It has the largest estuarine system on the U.S. Atlantic Coast, with over 2,300 square miles (3700 sq. km) of coastal land vulnerable to a one-meter rise in sea level. Current projections place more than 789,000 North Carolinian properties at risk in the next thirty years. In some places, tidal flooding has increased by 100 percent since 2000. Even before flooding, many residents will experience heftier down payments and inequities in insurance, which could increase household debt. Either way, North Carolina will experience an exodus of people moving westward. For some communities, a managed retreat is not so simple. Coastal areas like New Bern and Princeville can illustrate the pain and complexity U.S. climate migrants face due to rising sea levels.

New Bern

In 2018, Hurricane Florence swept through the coastal city New Bern, a storm that meteorologists claim was intensified by climate change. Flooding engulfed more than 800 homes, including multiple public housing complexes. Displaced residents in New Bern applied for temporary housing assistance and property loss reimbursements from the Federal Emergency Management Agency (FEMA), but for many of them, this didn’t solve the problem. Most FEMA reimbursements only last a few months, whilst opening new low-income housing is a multi-year process. Many New Bern locals ended up in shelters, crashing on floors, and renting motel rooms with their FEMA checks. 

The search for new homes isn’t a simple one. Private parties can prey on low-income migrants for a profit, and there are fewer affordable housing projects available to households with mixed income. In the state of North Carolina, it is legal for landlords to discriminate against applicants with ‘section 8’ vouchers (a federal subsidy on housing intended to ensure safe private housing for low-income residents). In Trent Court, New Bern’s housing project, landowners decided to demolish the damaged buildings despite former residents continuing to inhabit their old homes. 

Increasing storms and floods are displacing those who cannot afford to stay. Public housing residents, along with other poor, disabled, elderly, and vulnerable people are forming one of the first waves of climate migrants in the U.S. According to a 2017 report, 9 percent of public housing units and 8 percent of privately owned federally subsidized housing units in the U.S. sit in a floodplain. This is close to 500,000 units and approximately one million people. Many residents of government-subsidized housing in New Orleans, Miami, Houston, and Puerto Rico have already become climate migrants. With sea levels on the projection to rise, New Bern is posed to be one of the canaries in the coal mine for American citizens living in public housing. 

Princeville

For many communities, the problem is not only finding a new home but leaving their current one behind. Princeville, a small town of approximately two thousand people, was a symbol of resilience. It is believed to be the oldest town chartered by freed slaves, originally named Freedom Hill and established by freed slave and carpenter Turner Prince. Residents dealt with Jim Crow-era vigilante violence directed at a self-sufficient all-Black town. Its population remains 96 percent Black. 

Situated along the Tar River, Princeville experiences frequent flooding. This was one of the main reasons Black people in the 19th century were able to settle the land in the first place—white landowners did not want it. The relegation of Black people to flood-prone land and hazardous areas exposes them to greater levels of environmental threats. This inequality became clear when the town has battled two supposed “100-year storms” within the span of twenty years (i.e., Hurricane Floyd in 1999 and Hurricane Matthew in 2016). Homeowners faced a difficult decision: either remain in an increasingly hazardous floodplain or sell their homes to FEMA and risk an end to their community. 

Selling their property to FEMA would have prevented anyone from building again on their flood-prone land and led to a reduction in the town’s tax base. Many residents have relocated, but FEMA has helped fund multiple projects to rebuild county infrastructure for the locals who remain. In December of 2020, Princeville developed a comprehensive plan for redevelopment. Only time will tell if the town can withstand an increasing rate of storm surges and flooding.

For many of its residents, Princeville stands as more than their home, but as a land tied heavily to their history and culture. Uprooting their lives means more than a loss of property. For many groups, especially Native or Indigenous communities, the loss of one’s home can be harmful to one’s identity, and relocation may not be a remedy for that loss.

Current State of Migration in NC

For the financially well-off households impacted by natural disasters, western migration might be a smoother process. Real estate agents are more likely to flag down climate migrants who bring substantial financial resources with them to Western North Carolina. They will offer properties that will only increase in price with the influx of potential buyers. Wealthy out-of-state buyers have already been flocking to these mountains for years in search of second homes, and when surveyed, the vast majority of buyers claimed climate issues were a strong motivator. When more low-income households must move west, the limited supply of available property will likely skyrocket due to increased demand. Those who cannot afford the inflated prices will have a difficult time finding a place to live.

It is hard to say if the available resources North Carolina has to offer will ensure the safety of its citizens. The state does not have the best track record when it comes to confronting sea level rise. In 2012, NC-20 lawmakers passed a controversial bill that, according to policy manager Tancred Miller, “put a moratorium on using any official numbers, rates of sea level rise for state-level planning or state-level regulation.” In other words, the bill did not allow state and local agencies to base policy decisions on models that include the rapid accelerating effect of global warming. Instead, decisions had to be based on outdated historical data that places sea level rise projections much lower than what scientists claim. According to the Columbia Undergraduate Law Review, this bill “ignores crucial scientific evidence and has the potential to harm North Carolinians on the coast.” The North Carolina Coastal Federation claimed the bill “may result in unintended consequences for coastal property owners.” Current policies now fit later scientific reports, but the bill paints a picture of NC lawmakers’ hesitation to face the encroaching issues climate change brings. 

The many complexities of climate migration only magnify on the global scale as international communities seek refuge across national borders. Leaving one’s country carries with it further conflicts of culture and identity. If the U.S. hopes to lead in the effort to combat climate-induced displacement, it needs to learn from the issues face by its own citizens.  


Benjamin Chappelow is a writer and narrative designer in the Appalachian mountains, United States. As an immigration researcher and former Narrative Writer for the Climate Resilience Toolkit, he is focused on how the stories we tell dictate our behavior in an ecological crisis. When he is not writing, Benjamin is trying to teach his cat how to type so he won’t have to.

The Dormant Pioneer: An Overview of the Forgotten Status of Climate Migrants in EU Law

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.

Bhasan Char: Considering the Suitability of Relocating the Rohingya of Cox’s Bazaar

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.

Transitional Justice and Climate Change at a Glance: Possible Lessons for a Sustainable Future

18 February 2021 – by Vaughn Rajah

“Optimism is a strategy for making a better future. Because unless you believe that the future can be better, you are unlikely to step up and take responsibility for making it so.”
― Noam Chomsky

Transitional justice comprises the implementation of legal and non-legal measures in order to (1) address and acknowledge systemic human rights violations, (2) transition a society into a new manifestation of itself in which those violations no longer exist, and (3) render justice to victims of those previous violations[i].

This concept was likely not at the forefront of the minds of the architects of the Paris Agreement[ii]. Yet, the “spirit”, of transitional justice is imbedded in international environmental law. The international legal principle of common but differentiated responsibilities is premised on the notion that developed states must bear greater burdens in tacking climate change than developing states for two reasons: their greater historical responsibility for global warming, and their greater wealth[iii].

The Anthropocene is, however, not the first time humans have had to navigate complex historically rooted tensions about the ideal relationship between responsibility for past and future action. This article will provide an introductory analysis of the possible application of transitional justice mechanisms in addressing these tensions in the international climate context.

This article will analyse three fundamental mechanisms in the transitional justice toolkit, in the climate context: truth commissions, reparations and litigation.

Truth Commissions

Traditionally, truth commissions are instituted by new governments to establish their legitimacy by formally breaking with the past, and to create an opportunity for reconciliation or unification[iv]. Truth commissions can avoid some of the limitations and political difficulties of pursuing legal punishments for past actions. Their purpose is to investigate, document, and raise awareness of past harms as a form of acknowledgement, and to recommend strategies for addressing these harms, avoiding future recurrence, and supporting particular victims. Compared to prosecutions, truth commissions can more easily engage with systemic bases for harm. In the climate context, a possible avenue could be the creation of an UN-supported, but independent international climate truth commission, comprised of senior individuals in the climate policy and legal space to construct frameworks on historical responsibility[v]. In documenting experiences of climate consequences, representation would be key to the legitimacy of such a commission.

Reparations

Efforts to provide redress for historical atrocities and abuse are typically framed as “reparations”. Reparations can take many forms, and include material compensation, rehabilitation, symbolic gestures, and guarantees of non-recurrence[vi]. In the climate context,  reparations could feasibly take the form of short-term investments in local well-being and development, and long-term investments in capacity building and technological advancements in order to mitigate the worst effects of ecological disaster[vii]. Non-material reparations may encompass formal apologies and acknowledgments and are linked to the truth-seeking institutions discussed above. It would be imperative for climate reparation framework to adopt a “bottom-up” approach to adequately identify and implement solutions for the needs of recipients, particularly those most vulnerable to the effects of climate change.

Litigation

Legal remedies are not novel in the climate fight. Climate litigation is a growing phenomenon in domestic courts around the world[viii]. Climate change is driving activists and litigants to reimagine pre-existing legal norms in light of its many strands of contention and uncertainty. Increasingly, plaintiffs are advancing strong, rights-based arguments in the courtroom. A human rights-based approach is also a pillar of legal action in the transitional justice context[ix]. The importance of a rights-based approach goes beyond the mere winning of a case. It is also a “win” in this kind of strategic litigation when the publicity of a lawsuit elevates social consciousness regarding climate policy, steering attention on a mass scale towards the fundamental rights impacted by climate change.

Conclusion

However, strategic climate litigation aimed at expanding the Overton window is both vital and insufficient on its own. Without further fundamental and longer lasting reforms, it is unlikely that sufficient deterrence can be cultivated to ensure non-recurrence. Therefore, similar to the most effective examples of transitional justice policies, successful climate change mitigation strategies must implement a plurality of approaches in the pursuit of a sustainable society. Whilst transitional justice and climate policy do not correlate on an one-to-one scale, the international climate regime cannot afford to ignore ideas on how to build cooperation and effectively assign responsibility. Transitional justice may well be a relevant piece in solving that puzzle.


Earth Refuge Archivist and Human Rights Pulse core team member Vaughn Rajah is passionate about sustainability and human rights. His scholarship and writing focuses on international law, climate change and transitional justice.


References

[i] ICTJ. What is Transitional jusice? https://www.ictj.org/about/transitional-justice [Accessed 19 January 2021].

[ii]  Paris Agreement to the United Nations Framework Convention on Climate Change, Dec. 12, 2015, T.I.A.S. No. 16-1104.

[iii] Rio Declaration, Principle 7.

[iv] I Robinson. Truth Commissions and Anti-Corruption: Towards a Complementary Framework? International Journal of Transitional Justice, Volume 9, Issue 1, March 2015, Pages 33 – 50.

[v] S Klinsky.  The Global Climate Regime and Transitional Justice. Routledge Advances in Climate Change Research. 2018. Pages 95 – 100.

[vi] Climate Strategies. Why Explore “Transitional Justice” in the Climate Context? https://climatestrategies.org/wp-content/uploads/2016/10/Why-Explore-Transitional-Justice-in-the-Climate-Context.pdf [Accessed 20 January 2021]. Page 3.

[vii] As above, pages 4 – 5.

[viii] Sabin Center for Climate Change Law. http://climatecasechart.com/ [Accessed 21 January 2021].

[ix] E Anderson. Transitional Justice and the Rule of Law: Lessons from the Field. Case Western Reserve Journal of International Law, Volume 47, Issue 1, 2015, pages 305 – 317.