The planet's first legal think tank dedicated to climate migrants
Category: The Archive
Contrary to common stereotyping, climate change does not solely constitute melting ice caps in Antarctica. Extreme weather conditions worldwide such as floods in Bangladesh, hurricanes in the U.S., and Australian wildfires are the result of human-caused climate change.
The Institute for Economics and Peace (IEP), a think tank that produces annual global terrorism and peace indexes, said 1.2 billion people lived in 31 countries that are not sufficiently resilient to withstand these ecological threats. At Earth Refuge, we hope to confront this crisis through targeted research, international advocacy and legal recourse.
This Archive is a collection of papers, think pieces and insights from legal experts, environmentalists, and anyone with experience or interest in this field.
If you would like to contribute, please submit your piece, idea or any questions you may have to [email protected]. The format for submission can be anything from a paper or a webinar to a podcast. The minimum length for written pieces is 400 words and must be submitted as a Word document. For articles, please hyperlink sources and for longer academic pieces, use end notes.
Thank you for all your support – here’s to securing a future for the planet and its people 🌏
This thesis was submitted to SOAS in 2021 – by Ayesha Shingruf
Abstract
The onset of extreme weather events is creating drastic challenges for people around the world. Studies have shown strong links of climate change with the displacement of people, suggesting that the world will experience unprecedented levels of climate refugees. Because of the increase in the severity and frequency of intense weather conditions, refugee movements will be seen both internally and across international borders. This poses a serious question within international and domestic laws for their ability to offer protection to those displaced by climate change. By offering a case study of South Asia – a region containing some of the world’s most vulnerable countries to climate variability – this paper examines regional laws and policies as well as specific international principles as they relate to refugees. In particular, this research looks at the potential of the Warsaw International Mechanism (WIM) for Loss and Damage to arrive at possible pathways to safeguard rights for climate refugees. Using a human rights based-approach, this paper maintains that the principle of loss and damage will create channels for legal protection to those fleeing their homes due to the harsh changes in their environment.
What inspired you to write and research this piece?
I was born and raised in Lahore, Pakistan. For years, urban cities in Pakistan have consistently ranked as being the most polluted in the world, and some regions have experienced intense flooding and heatwaves. Similar patterns can be seen in India and Bangladesh as well. South Asia is collectively suffering the consequences of this global crisis on its agriculture, economy, human health, and livelihoods as we speak. There is a sense then, of people wanting to move to a different place to live a healthier and safer life. Those who pay attention to this crisis know that migratory movements caused by climate change are already occurring. Unfortunately, such movements will only increase in severity owing to the rise in temperatures coupled with regional conflicts. I wanted to address the fact that there is an absence of legal tools that can offer protection to climate refugees, and explore different frameworks that would help in safeguarding their human rights.
What impact do you hope this research will have?
There is minimal literature and discourse on climate refugees within the context of South Asia. This is alarming because the region is one of the most vulnerable to the impacts of climate change. My only hope is that this drives significant conversation so that attention is paid to this looming threat. This is a collective fight, and a lot of research needs to be carried out to arrive at efficient policies for climate refugees. I look forward to students and academics exploring more pathways that can legally aid climate refugees in the future.
Ayesha Shingruf is a research fellow in climate change education and sustainability at Nottingham Trent University. She is interested in exploring the interplay of climate change, migration, and conflict. Ayesha completed her postgraduate degree in human rights law from SOAS, University of London. In her free time, Ayesha enjoys yoga, surfing, trying new foods, and reading a lot of poetry.
No edits have been made to maintain the author’s tone of voice.
This thesis was submitted to the University of Sussex in 2021 – by Louisa Gaus
Abstract
The influence of climate change on migration flows is a highly disputed topic, furthermore, the discourse about whether migration is a failure to adapt or an adaptive strategy emerges. The Republic of Kiribati has imminent adaptation needs due to the high dependency of the population on local ecosystems for subsistence and income, prevailing development issues, rapid population growth, and projected climate change impacts. The previous and current administrations deployed otherwise opposing adaptation approaches. Namely, ex situ adaptation, which inevitably leads to relocation, and in situ adaptation policies, approaches deployed ‘in the place’ of residence. Nevertheless, the significant negative implications of a sole prioritisation of one of these approaches suggest an alternative policy. This research argues, alongside other scholars, the emergent need for a hybrid adaptation policy. The aim is to answer the question if in situ and ex situ adaptation approaches can be harmonised or are due to their inherent characteristics incompatible in practice, and, from a practical perspective, what challenges such a hybrid adaptation policy encounters. The findings suggest that, in theory, in situ and ex situ adaptation approaches can be harmonised. However, due to the practical limitations stemming from the economic challenges and the lack of international law frameworks supporting cross-border migration, these adaptation approaches cannot yet be united into a hybrid adaptation policy in Kiribati.
What inspired you to write and research this piece?
In my opinion, the polarized debate about ex situ and in situ adaptation leaves little space for flexible decision-making. This inspired me to explore this what-if scenario of a hybrid adaptation policy practically.
What impact do you hope this research will have?
Hopefully, this research inspires us to think about climate change and migration not as a ‘fight or flight’ situation, but as an issue which is handled with a solution-oriented perspective and flexible short- and long-term planning.
Growing up in a small town in Southern Germany, I was always curious about other parts of the world. In my community, I engaged from a young age in youth work, such as leading a youth group. In 2015, after graduating from school, I underwent a Voluntary Social Year in the Republic of Kiribati. This stay awakened my passion for climate action and working in an international environment. After returning from overseas in 2016, I followed that passion and started studying ‘International Relations’ at the Rhine-Waal University of Applied Sciences. In 2019, I had the opportunity to intern at the Regional Program for Climate Change and Energy Security of the Konrad Adenauer Foundation and the Hong Kong-America Center in SAR Hong Kong.
In my Bachelor’s thesis, which was submitted in 2020, I researched the impacts of climate change on public health. In 2020, inspired by my past experiences and studies, I started my Master’s degree in ‘Climate Change, Development and Policy’ at the University of Sussex and Institute of Development Studies in Brighton, UK. The result thereof is my thesis on adaptation policies in the Republic of Kiribati. Currently, I am interning at the Gesellschaft für Internationale Zusammenarbeit in Berlin, Germany, and am eager to further engage myself in climate action. In my free time, I enjoy climbing, hiking, doing DIY projects (such as cutting my friends’ hair), and playing the violin and the ukulele.
No edits have been made to maintain the author’s tone of voice.
This thesis was submitted to the University of Pennsylvania in Spring 2021 – by Rachel Steinig
Abstract
Climate change has already begun causing displacement. This isn’t a new problem: since 2008, an average of 24 million people have been displaced each year by catastrophic weather disasters. There are currently at least 100 million forcibly displaced people worldwide – this is the highest level on record ever. However, climate migrants are not considered refugees under international law, according to the definition of a refugee adopted in the 1951 Geneva Convention on Refugees, and thus lack legal protections. In my thesis I investigated the role of existing bilateral and regional agreements to provide protection and asylum for climate refugees. My research question was: what are the conditions under which states agree to legally binding instruments to accommodate climate-induced migration? I collected nine case studies of bilateral and regional agreements that have either been implemented and have provided protection for climate-displaced persons or have been proposed but never implemented. My study presents somewhat of a grim picture for climate-displaced persons. None of my nine case studies provided a convincing example of the feasibility of using current regional or bilateral agreements to accommodate climate-induced displacement. In addition, most governments proved unwilling to even acknowledge climate displacement as a phenomenon.
What inspired you to write and research this piece?
Climate-induced displacement will only be increasing throughout time, and the fact that people displaced by climate change are not considered refugees under international law means that an increasing number of displaced people will be without legal protection or remedy. There isn’t a lot of existing research on the intersection of climate change, migration, and international law, so through my study I wanted to contribute to the budding literature on this topic and explore the feasibility of a potential solution to the lack of international legal protections for climate-displaced persons.
What impact do you hope this research will have?
Climate-included displacement is a phenomenon that will only be increasing in severity throughout time and requires attention and action at the local, national, and international levels. A key takeaway from my study is that there are no easy answers or solutions to climate-displacement, and that countries of destination will likely oppose the acknowledgement of and accommodation of climate-displaced persons. I hope that my study will positively contribute to the literature and that the amount of research on this topic will increase throughout time.
Rachel Steinig (they/she) works with asylum-seekers in Tijuana as a Project Coordinator with the Border Rights Project of Al Otro Lado, a bi-national legal aid nonprofit. They graduated from the University of Pennsylvania in 2021 with a bachelor’s degree in Political Science, a concentration in International Relations, and triple minors in Latin American and Latinx Studies, Spanish, and Modern Middle Eastern Studies.
She spent the summer after graduation volunteering at a migrant shelter on the Mexico-Guatemala border. In July they will be moving to central Mexico to work as a Human Rights Accompanier with the organization Peace Brigades International. They are dedicated to working in solidarity with asylum-seekers to combat the structural racism and violence of our immigration system and to advocate for a world without borders. She plans on working in international human rights law.
No edits have been made to maintain the author’s tone of voice.
On 22 June 2021, an international expert drafting panel commissioned by the Stop Ecocide Foundation shared its proposal for a fifth crime under the Rome Statute of the International Criminal Court (ICC). After approximately a year of negotiations, the new legal definition for the term “ecocide” emerged and was highly praised by a number of environmentalists. However, many are concerned about how the crime of ecocide could be prosecuted in practice.
The New Proposed Definition
The panel of international lawyers defined ecocide as“unlawful or wanton acts committed with knowledge that there is a substantial likelihood of severe and either widespread or long-term damage to the environment being caused by those acts”. If the introduction of this definition is welcomed and the efforts to criminalise ecocide are successful, the ICC would effectively be able to hold accountable those responsible for major ecological harms, such as governments and corporations.
The panel described “wanton” to mean: “reckless disregard for damage which would be clearly excessive in relation to the social and economic benefits anticipated” and “severe” as: “damage which involves very serious adverse changes, disruption, or harm to any element of the environment, including grave impacts on human life or natural, cultural, or economic resources”.According to Phillipe Sands, who co-chaired the expert panel, the definition catches “the most egregious acts”, such as major oil spills and transboundary nuclear accidents.
The History of Ecocide
The battle for the recognition of ecocide as an international crime has been a lengthy and challenging process.
The term ecocide was first used in the 1970s, particularly in relation to whether the US was creating an ecocide in Vietnam during the war. In 1970, when speaking at the Conference on War and National Responsibility, Professor Arthur W. Galston suggested that there should be “a new international agreement to ban ecocide”. In 1972, at the United Nations (UN) Conference on the Human Environment, Swedish Prime Minister Olof Palme explicitly described the Vietnam War as an “ecocide”. In 1985, the concept of ecocide resurfaced with a failed attempt to add ecocide to the Genocide Convention. Furthermore, the UN’s International Law Commission decided not to include “environmental crime” as an independent crime in its Code of Crimes against the Peace and Security of Mankind.
In 2016, there was a shift in focus for the ICC, mainly in response to criticism for its unwillingness to investigate major environmental crimes at the time. The ICC’s Office of the Prosecutor, under former ICC Prosecutor Fatou Bensouda, published a policy paper which stated that the ICC would “prioritise” the prosecution of governments and individuals for environmental crimes, such as illegal exploitation of natural resources and land-grabbing.
Challenges in Applying the Ecocide Term
The ICC only has jurisdiction over natural persons, so it does not have jurisdiction to investigate and prosecute corporations. Therefore, where there has been alleged corporate involvement in ecocide, a corporation itself cannot stand before the court because (legally speaking) it is not a natural person. A further hurdle would be which of its corporate officers would be held accountable for the alleged crime of ecocide.
Additionally, a member of the expert panel, Christina Voigt stated that regardless of the exact wording to be adopted by State Parties, altering the Rome Statute to include the crime of ecocide will not be an easy accomplishment. Voigt notes that there will be difficulty in building broader political support and global cooperation around the definition. Thus, it appears that formulating a legal definition is just the first step: a member state needs to propose it to the ICC, thereafter it would need to be approved by a majority of ICC States. If the law is adopted into the Statute, harming nature or the planet will start to feel similar to harming humans. Nonetheless, the process of debating the definition will most likely take numerous years, while some argue it could take decades.
States such as France, Belgium, and Canada have voiced their support for ecocide to be recognised as a crime. However, it is important to note that the world’s top polluters, such as the United States, China, and India, are not members of the ICC.
The ICC is an autonomous and permanent court, established to investigate, prosecute, and try individuals accused of committing the most serious crimes of concern to the international community – namely genocide, crimes against humanity, war crimes, and the crime of aggression. The ICC does not replace national criminal justice systems, it complements them. It can investigate and, where warranted, prosecute and try individuals as a “last resort”, for instance, where proceedings are unduly delayed.
The proposed definition could be a historical development for the entire world as environmental damage is growing dramatically. The existence of “ecocide” will amplify the issue of the environment. If ecocide were to be recognised in international law, corporations, as well as governments, would be held responsible for environmental damage. They would be forced to take the issue seriously and would not escape the consequences without punishment. Immediate action should be taken by including “ecocide” as the fifth international crime against peace.
Mary Rizk is currently undertaking the Bar Professional Training Course at BPP Law School. She holds an LLM from Queen Mary, University of London. Mary has a particular interest in international human rights, criminal, and social justice issues.
In September 2021, after four years of negotiations, Australia’s Queensland government returned four national parks to the Aboriginal Eastern Kuku Yalanji peoples. Spanning some 400,000 acres, these parks include the UNESCO World Heritage-listed Daintree Rainforest – the world’s oldest remaining rainforest.
The Eastern Kuku Yalanji peoples and the Queensland government will jointly manage the land for the foreseeable future. However, the overall goal is for the Eastern Kuku Yalanji peoples to become the sole and autonomous proprietors of their Indigenous land.
“The Eastern Kuku Yalanji people’s culture is one of the world’s oldest living cultures,” says Meaghan Scanlon MP, Queensland’s Minister for Environment, the Great Barrier Reef, and Science and Youth Affairs. “This agreement recognises their right to own and manage their Country, to protect their culture, and to share it with visitors as they become leaders in the tourism industry.”[1]
A month after Australia returned land to the Eastern Kuku Yalanji peoples, the United States (US) government restored full federal protective rights to the Bears Ears and Grand Staircase-Escalante monuments in southern Utah.[2] The previous administration, which was seeking to extract the land’s fossil fuels, had drastically reduced the size of the Bears Ears monument by up to 85%, as well as halving the area of the protected Grand Staircase-Escalante. This was the single largest rollback of public lands protections in the history of the US. These lands, which span more than 3 million acres, are vital pieces of culture and history for many Indigenous peoples, including the Hopi, Navajo, Uintah and Ouray Ute, Ute Mountain Ute, and Zuni tribes.[3]
What’s more, the US government and local officials continue to bolster protections for Native lands which facilitate the transition of ownership back to Indigenous communities. In December 2020, the Trump administration signed legislation which initiated the relinquishment of more than 18,000 acres of the National Bison Range to the Salish and Kootenai tribes. [4] In October 2021, around five acres of land were transferred to the Rhode Island Narragansett tribe. It was on this same land that the Indigenous Narragansett peoples survived near-annihilation at the hands of English colonisers in 1675.[5]
As a result of land reconciliation, not only can Indigenous communities return as rightful owners of their Native lands, they can also improve local environmental protection efforts.
The Positive Impacts of Land Reconciliation
For Australia’s Eastern Kuku Yalanji people, reclaiming their land is the first step towards long-term, sustainable social and economic growth.
“Our goal is to establish a foundation to provide confident and competent people with pathways and opportunities for mentoring, training, apprenticeships, work experience, and employment for our Eastern Kuku Yalanji Bama,” says Eastern Kuku Yalanji Traditional Owners Negotiating Committee Member Chrissy Grant. “[The goal is] to fill positions from a wide range of skilled trades, land and sea management, hospitality, tourism, and research so that we are in control of our own destinies.”
The Eastern Kuku Yalanji tribe has lived sustainably on these lands for some 50,000 years. The Kuku Yalanji Aboriginal culture is based on a deep respect for nature, with a heavy dependency on the ecosystem’s natural cycle. Their Indigenous expertise is vital in implementing sustainable conservation efforts, as well as protecting natural resources against climate stressors.
According to Meaghan Scanlon, these national parks will “protect important Aboriginal cultural sites, diverse ecosystems (including rainforests, woodlands, wetlands and mangroves), and form part of the Wet Tropics World Heritage Area, which is recognised as the second most irreplaceable World Heritage site on Earth.”
In Montana, the Salish and Kootenai tribes have a long history with managing local bison ranges, and their approach is seemingly more beneficial than previous federal tactics. “We treat the buffalo with less stress, and handle them with more respect,” says Tom McDonald, an Indigenous person and Fish and Wildlife Division Manager for both tribes.[6] The Salish and Kootenai tribes are also co-managing migrating bison herds from Yellowstone National to US Forest Service land.
Native peoples generally take a more sensitive and familial approach to handling bison populations. Their techniques include keeping bison families together, mitigating the likelihood of stampedes, and ultimately reducing stress placed on the animals. These Indigenous animal handling techniques have helped to improve conservation efforts and management of the land, as well as the welfare of the animals which inhabit it.
In Rhode Island, the Narragansett tribe will be recognised as the stewards of their Indigenous land, utilising their traditional ecological knowledge to preserve it. “We agreed to protect it; we agreed to steward it,” says Morgan Grefe, Executive Director of the Historical Society. “We’re here in continuation of that promise—to see that this land is protected and stewarded in a way that we could never have accomplished ourselves”.[7]
These examples indicate the in-depth expertise that Indigenous peoples have for their Native land, as well as their cultural mastery in preserving natural resources. According to a United Nations review of more than 300 studies, rates of deforestation in South America were 50% lower in areas under Indigenous control when compared to areas managed by non-Native communities.[8] Protecting these forests is vital for mitigating the threats of climate change and preventing the extinction of regional wildlife.
World leaders are also beginning to acknowledge the significance of Indigenous expertise in lessening the effects of climate change. At COP26, the US, the UK, Germany, the Netherlands, and several private donors collectively pledged to provide US $1.7 billion to support Indigenous and local communities in tackling climate change and protecting biodiversity.[9] The funds have the potential to help Native communities build their own infrastructure, resolve territorial disputes, and support land reforms, among other endeavours.
Opportunities for Further Reconciliation
Beyond the expertise that Indigenous communities provide, transferring stolen land back to its owners is a moral obligation. The Indigenous peoples mentioned here have been dispossessed, abused, neglected, and in the case of the Narragansett tribe, nearly annihilated. This pain cannot be healed by simply acknowledging these wrongdoings – it requires a long-term commitment to restore what rightfully belongs to Native communities. The returning of Indigenous land is the first step in showing such commitment.
Hayden King, the Executive Director of the Yellowhead Institute and co-writer of the text Land Back, describes the returning of Native land through the perspective of the Beausoleil First Nation tribe as more than just returning property. “It’s also about revitalising Indigenous life, because we’re thinking about land as everything in unity, we’re thinking about our languages… our culture… our family, and social organisations connected to the land.”[10]
The returning of land is not only an opportunity for reconciliation, but a path for the autonomous growth and reestablishment of Indigenous communities. As Brian Lightfoot Brown of the Narragansett Tribe states, the land “is so deeply ingrained in who we are”.[11]
As world leaders gradually continue to rightfully recognise the benefits of including Indigenous communities in environmental preservation programmes, the fact that Native peoples are given back their land and resources is not just transactional. It’s an opportunity to plant the seeds of growth and restoration, while the land still remains fertile.
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.
References
[1] The Queensland Cabinet and Ministerial Directory. (2021, September 28). 160,000 hectares returned on path to reconciliation. Ministerial Media Statements. Retrieved January 18, 2022.
[2] Shivaram, D. (2021, October 8). Biden restores protections for bears ears monument, 4 years after Trump downsized it. NPR. Retrieved January 18, 2022.
[3] 7 big questions: What’s happening with bears ears and other national monuments? The Wilderness Society. (2021, August). Retrieved January 18, 2022.
[4] U.S. Department of the Interior. (2021, January). Secretary Bernhardt Signs historic secretarial order to transition the National Bison Range into Tribal Trust for the Flathead Indian Reservation. Indian Affairs. Retrieved January 18, 2022.
[5] Associated Press. (2021, October 27). Tribe Given Land Where Ancestors Survived Near-Annihilation. U.S. News & World Report. Retrieved January 18, 2022.
[6] Robbins, J. (2021, June 3). How returning lands to Native Tribes is helping protect nature. Yale E360. Retrieved January 18, 2022.
[7] Nunes, A. (2022, January 17). Site of ‘great swamp massacre’ returned to Narragansett Indian tribe. The Public’s Radio. Retrieved January 18, 2022.
[8] Carrington, D. (2021, March 25). Indigenous peoples by far the best guardians of forests – UN report. The Guardian. Retrieved January 18, 2022.
[9] Sutherland, L. (2021, November 3). $1.7 billion pledged in support of indigenous and local communities’ land tenure. Mongabay Environmental News. Retrieved January 18, 2022.
[10] Monroe-Kane, C. (2021, December 20). How the land back movement is reclaiming land stolen from indigenous people. Wisconsin Public Radio. Retrieved January 18, 2022.
[11] Brown, B. L. (2021, November 15). Long overdue: Sacred site returned to the Narragansett. Indian Country Today. Retrieved January 18, 2022.
Brazil is home to the largest rainforest in the world, the Amazon, where many Indigenous communities reside. Although deforestation has been rampant in Brazil for decades, it has soared to new heights under the administration of Jair Messias Bolsonaro, the current President. In recent years, he has proposed several controversial laws which would result in further deforestation, irreparably affecting the lives of Indigenous communities across Brazil.
One such proposal which is of particular concern amongst Brazilian and international communities is Bill 490/ 2007. The Bill, which has been sitting before congress since it was proposed by President Bolsarono in 2007, was approved under the Constitution and Justice Committee in June 2021, and is currently pending before the House of Deputies.
The Amazon is home to more than 30 million people in its entirety, including several hundred Indigenous tribes. Research suggests that these communities have lived in the Amazon for around 5,000 years without causing any detectable loss or disturbance to local wildlife. Despite the fact that many Indigenous communities have been impacted in one way or another by outsiders, most continue to live in harmony with the environment through traditional, sustainable ways of utilizing the land.
Many of the other effects of deforestation – including habitat destruction, loss of biodiversity, disappearance of endangered species, loss of the rainforest’s influence on climate, and dampening of its ability to absorb emissions – are relatively well known. However, the devastating impact on Indigenous communities of damaging such precious land is often largely ignored by mainstream media.
This article attempts to shed some light on the discriminatory proposals contained within the above Bill, and, were it to be passed, explore its likely impacts at a human rights level.
Why is Brazil’s 490/2007 Bill So Detrimental to Indigenous Communities?
In pushing for this Bill, President Bolsonaro has argued that Indigenous communities are preventing development of the Amazon. Furthermore, there are several troublesome proposals contained within it which seek to erode the rights of Indigenous communities.
If this Bill were passed, it would prevent Brazil’s Indigenous communities from obtaining legal recognition of their traditional lands if they were not physically present there on October 5, 1988, or if they had not initiated any legal proceedings to claim it by that date. The Constitution of Brazil, on the other hand, recognizes Indigenous peoples’ right to “the lands they traditionally occupy” without any time limits or arbitrary cut-off date.
In addition, the Bill not only prevents Indigenous peoples from claiming additional land in order to expand already demarcated territories, but it also permits the government to remove Indigenous reserves. These reserves are the lands provided to Indigenous peoples by the government to protect their livelihoods and promote their cultural survival, which is especially crucial given that many Native Brazilians live entirely off the local land through a hunting, gathering, and cultivating crops. Under this proposal, the government would be able to eradicate these reserves and repossess land when it believes that it is no longer required for the cultural survival of the Indigenous communities.
What’s more, the Bill also allows the Brazilian government to find energy resources, set up military bases, develop strategic roads, and implement commercial agriculture on protected Indigenous tribal lands, without any prior discussion with the affected peoples. Once again, this deviates from the rights inscribed within the Brazilian Constitution, specifically Article 231(3) which prohibits any mining on Indigenous land without prior consultation with Indigenous peoples. Furthermore, international standards also necessitate effective consultation with Indigenous peoples in good faith to obtain their free consent before approving any project that would affect their livelihoods in any manner. For instance, Article 15(2) of The Indigenous and Tribal Peoples Convention, 1989, to which Brazil is a signatory, requires governments to establish procedures through which they shall consult the Indigenous peoples about the projects in their lands.
Violations of Indigenous Rights Under National and International Law
It is clear that to remove, exploit, or otherwise compromise land owned by and lived on by Indigenous people is not only a violation of national and international law, but also amounts to forcible displacement. Yet it appears that there is no recourse within this Bill for Native peoples to oppose these harmful plans.
President Bolsonaro not only continues to encourage mining and farming on Indigenous protected lands, but has now also approved acut to the environment ministry budget. The opening up of Indigenous land for commercial agriculture and mining would increase the already rampant deforestation of the Amazon Rainforest, with grave repercussions for not only those whose families and ancestors have lived there for millennia, but also for the planet as a whole.
The demarcation and protection of Indigenous lands is not only important for upholding the rights of Indigenous Brazilians, but is also an effective measure for slowing down deforestation in Brazil. Several studies have shown that measures for securing tribal lands, like demarcation of Indigenous property, are in themselves effective in slowing down rates of deforestation. It is important to note that President Bolsonaro has not approved any demarcation of Indigenous land since January 2019.
Indigenous peoples are dependent on Native lands for their livelihoods and cultural survival. If passed, the Bill would make it impossible for these communities to have their land rights recognized, and would also undermine those rights which are granted to them by the Brazilian constitution, along with international conventions like 1989 The Indigenous and Tribal Peoples Convention. It is hoped that this Bill, particularly its most harmful elements, will be prevented from passing, in order to safeguard the rights of Indigenous people across the Amazon and beyond.
Shambhavi Kant is a third year law student at Rajiv Gandhi National University of Law, Punjab. She is extremely interested in the field of Human Rights and likes to write about similar topics.
Shambhavi also has a profound interest in animal rights protection.
On Saturday 13th November, the 2021 United Nations Climate Change Conference (COP26) drew to a close after 2 weeks of charged negotiations between almost 200 nations. The “Glasgow Climate Pact” was adopted late on Saturday evening, but the final hours of negotiations weren’t without some setbacks.
The biggest of these revolved around coal, with both India and China having opposed early drafts of the deal due to concerns about the language used around the world’s most polluting fossil fuel. They pushed for an updated version to include a watered-down commitment to a “phase-down” of coal, rather than the original “phase out”.
Scientists have repeatedly warned that global heating beyond 1.5°C above pre-industrial temperatures could lead to irreversible changes in our climate system. Coal emissions are central to discussions around keeping below 1.5°C, as coal is currently responsible for more than 40% of annual CO2 emissions. As such, the diluted language of “phase down” has been met with resistance by climate activists, as it weakens the commitment to getting rid of the use of coal completely. The change of language was a cause for celebration for many coal advocates, since “phase down” represents a “green light for more coal production”, in the words of pro-coal Australian senator Matthew Canavan.
The pledges on emission cuts set out in the pact have been widely criticized, as analysis has shown that they fall short of what is required to meet the 1.5°C of warming agreed at the Paris Climate Accord. A study for the Climate Action Tracker website shows that if the 2030 targets announced at COP26 are implemented in their entirety, temperatures are still projected to rise to 2.4°C by 2100. Warming above 2°C will lead to more extreme droughts, increased Arctic sea ice loss, and almost complete loss of coral reefs, compared to 1.5°C. The Tracker also calculates an “optimistic scenario” which assumes “full implementation of all announced targets” including long-term strategies. This scenario still overshoots the Paris agreement goal, with projected warming sitting at 1.8°C by 2100.
Many poorer countries were left feeling disappointed by the pact, as they felt their concerns around “loss and damage” were not adequately addressed. “Loss and damage” refers to rich countries, who are predominantly responsible for climate change, paying poor countries to compensate them for climate change caused damage which disproportionately affects poorer nations.
Throughout the conference, vulnerable nations emphasised how the climate crisis has already impacted them. A particularly powerful message came from Tuvalu’s foreign minister, Simon Kofe, who made his address to delegates standing knee-deep in seawater, highlighting the impact sea-level rise is having on the low-lying Pacific Island nation.
A group of 55 nations particularly vulnerable to the impacts of climate change, formed the Climate Vulnerable Forum (CVF). At the start of COP, CVF had issued a call for a “Climate Emergency Pact”, which called for at least $500bn in climate finance during 2020-2024, for mitigation and adaptation.
During the closing of the conference, COP26 President Alok Sharma apologised for the pact, saying that he was “deeply sorry” for how the process unfolded and the lacklustre commitments from the international community regarding coal. COP26 concluded with the promise that all countries will return to the negotiating table in a year’s time in Egypt to re-examine national plans.
Evelyn Workman graduated with a Master’s degree in climate physics from Utrecht University in 2020. This degree program allowed her to marry her passions for both physics and climate change. In October 2021 she started a PhD program at the British Antarctic Survey due to her eagerness to pursue further scientific research within the field of climate change. During her PhD studies she will be investigating methane in and above polar oceans.
This article was originally published in the Earth Refuge Archive as part of our collaboration with Human Rights Pulse on the COP26 Summit.
On the penultimate day of COP26, a representative from the Climate Action Network presented Scottish First Minister Nicola Sturgeon with an award called ‘Ray of the Day’. This symbolized recognition for a long overdue action: during the conference, Scotland became the first country in the world to contribute to a Loss & Damage fund, to help countries in the Global South respond to damage caused by climate change. Initially limited to one million pounds, shortly before the award was presented, First Minister Sturgeon even doubled the amount. A great act that deserved the rousing applause in the room as well as the award. Right?
What Constitutes a ‘Loss’ or ‘Damage’?
The term ‘Loss & Damage’ refers to destruction which has already occurred that can be attributed to climate change, despite mitigation and adaptation efforts. ‘Losses’ are permanent and cannot be recovered; loss of human life, extinction of biological species or destruction of cultural assets or culturally important places are among them. ‘Damages’ however, are reversible, at least in theory; examples might include damaged infrastructure or monetary losses from a collapse in the economy.
The History of Loss and Damage
Loss & Damage first came up in international policy in 1991, when the Alliance of Small Island States promoted climate insurance in the drafting of the United Nations Framework Convention on Climate Change (UNFCCC), which can be understood as the most important international agreement aiming to reduce anthropogenic harm to our climate system. Though the term ‘insurance’ did in fact make it into the UNFCCC document as an option requiring consideration , it took more than two decades for a Loss & Damage mechanism to actually be created.
Following protracted, acrimonious negotiations, the Warsaw International Mechanism for Loss and Damage associated with Climate Change Impacts (WIM) was finally drafted in 2013. Its main task is to promote “implementation of approaches to address loss and damage associated with the adverse effects of climate change…in a comprehensive, integrated and coherent manner.”[i] In reality however, the means of WIM are limited to research and dialogue, not implementation at all. And whilst research and the initiation of conversations surrounding climate-induced loss and damage are two urgently needed components in the response to climate change, WIM makes no direct provisions for liability or compensation for loss and damage. Therefore, it must be stated that WIM is by far not as meaningful as the originally proposed climate insurance mechanism.
The case is similar for the so-called Santiago Network, which was established as part of the WIM in 2020. It is focused on ‘the implementation of relevant approaches [for averting, minimizing and addressing loss and damage] at the local, national and regional level, in developing countries that are particularly vulnerable to the adverse effects of climate change”[ii]. Though for too long the lack of implementation of any compensation or liability mechanisms has hindered global progress in this sphere, in a positive move, COP26 discussions have now provided steps towards the operationalization of the Santiago Network.
COP26
At COP26 itself, the words of sympathy were consistently strong, with everyone claiming that they really do want to help. However, it seems that nobody wants to pay for it. Not only is this completely unacceptable, but it’s also tragically ironic. The Global North, with their reticence to contribute financially, is responsible for an unbelievable 92% of climate change[iii], and has made gigantic economic profits through some of the most environmentally damaging activities. To the Global South, on the other hand, devastating damage has been done, with almost no recompense, financial or otherwise. People, cultures, and animal species are dying, local economies are collapsing, and people are forced to flee their homes. Loss & Damage is not about charity, but rather about reparation payments. The money that the affected countries and their populations require should be seen as a duty; something that is owed to them as opposed to a goodwill gesture.
At a side event at the conference, an NGO representative shared his difficult mission back home in Norway. The Norwegian government appears to be of the belief that by agreeing to contribute to what are known as adaptation payments of 100 billion USD per year, they will no longer be required to talk about Loss & Damage, being under the impression that the two payments basically constitute the same thing. The reality couldn’t be further from the truth, though the distinction is actually quite simple.
Adaptation aims to increase resilience in affected areas in a way that makes it possible to live with the consequences of climate change. Examples might include new crop varieties that can cope with changes in precipitation, or the construction of sea walls to protect against rising sea levels. Loss and damage payments, on the other hand, are due when such adaptation measures have failed. For example, if agriculture becomes completely impossible because of droughts, or people are forced to leave their homes and possessions behind because of flooding. Hence, the adaptation fund (which in itself is far from being provided fully) cannot be used as an excuse for not providing money for the Loss & Damage fund.
Author’s Note
It is noted that Scotland’s contribution to the climate fund is a step forward, albeit only a baby step. But at least a start has been made. However, I find it more than questionable that Scotland is being applauded, and its contribution being positioned as a great act of philanthropy. In reality it is only a partial fulfilment of the state’s international duty, and in the grand scheme of things, I believe it constitutes relatively very minor progress towards what is right, just and long overdue. In contrast, there isn’t enough applause for the young people who are fighting tirelessly for climate justice and who were the ones able to persuade Scotland’s First Minister Sturgeon to at least take this first step. I do trust that they will continue their fight and this step will soon be followed by many others.
Ole ter Wey is currently studying International Law and Human Rights at the UN-mandated University for Peace in San José, Costa Rica. He previously lived with a local community in Kiribati for over a year. There, he experienced first hand the consequences of climate change endangering the existence of an entire state. It was then that he began thinking about how to address forced migration and dedicated his Liberal Arts Bachelor to the topics of migration and integration.
This article was originally published in the Earth Refuge Archive as part of our collaboration with Human Rights Pulse on the COP26 Summit.
[ii] UNFCCC (2019): Warsaw International Mechanism for Loss and Damage associated with Climate Change Impacts and its 2019 review, paragraph 43. https://unfccc.int/documents/209506
[iii] Hickel, Jason (2020): Quantifying national responsibility for climate breakdown: an equality-based attribution approach for carbon dioxide emissions in excess of the planetary boundary, page e399. In: The Lancet Planetary Health, Volume 4, Issue 9, September 2020, Pages e399-e404. https://doi.org/10.1016/S2542-5196(20)30196-0
COP26, the 26th UN Climate Change Conference of the Parties, took place in Glasgow from the 31st October – 12th November 2021, and was branded as an attempt to “unite the world to tackle climate change”.
Though undoubtedly an important goal, the Conference’s agenda neglected a vital consequence and aspect of climate change: climate migration, potentially harming the sustainability of the negotiations and giving the impression that one of the most frightening consequences of climate change is being ‘swept under the rug’.
The main target of the UN climate change conference was to solidify the targets presented in the 2015 Paris Agreement, namely, to limit warming of the Earth’s temperature to 1.5 °C from pre-industrial times. The published aims of the negotiations are to:
Reduce emissions
Strengthen adaptation and resilience to climate impacts
Scale up finance and support.
The summit’s introductory document, website, and published targets hardly mentioned climate-induced migration. The only time where one could see negotiations approach the topic was on a single day under the theme of “adaptation, loss and damage”, whilst other agenda items ranged from the World Leader’s Summit to discussions relating to finance, energy, nature, science, and innovation,
Whilst this commentary does not intend to down-play the importance of such a conference as a positive first step, it must be acknowledged that to sideline climate-induced displacement is to ignore some of climate change’s most devastating impacts upon individuals, cultures and communities. Though COP26 mentions that “the international community must unite and support people who are most vulnerable to the impacts of the changing climate”, there do not appear to be any elements of this conference dedicated to those who are, and will be, forced to flee their homes as a result of increasingly hostile climates.
The approach of the United Kingdom
The UK’s leadership page itself is mainly focused on the economic aspect of climate change and its following ‘Green Revolution’, with every target or accomplishment listed on its presentation being associated with either economics or finance. Whilst it is true that long-term, durable solutions to the climate crisis do require financial backing, emphasising the economics at the expense of a focus on the lived experiences of the individual severely undermines the possibility of developing tenable solutions which are inclusive of people across the globe, living in countries with differing economic ‘buying power’.
Moreover, Boris Johnson’s statement that “securing a brighter future for our children and future generations requires countries to take urgent action at home and abroad to turn the tide on climate change” is firmly juxtaposed with the UK’s policy towards refugees, specifically the Home Office’s recently proposed ‘New Plan for Immigration’. At a time when the UK seeks to penalise, criminalise, and limit protections for those fleeing their homes as a result of persecution and violence, it seems sadly fitting that provisions for those made to leave their homes for environmental reasons are also neglected. Hostile attitudes towards climate migrants, and of displaced persons in general, occur for a multitude of reasons that are often shared across nations, including a denial of the existence of environmental refugees and also a generally negative attitude towards immigration.
For the UK at least, it seems difficult for the former to change whilst the latter still holds true; all the time that hostile policies are continually implemented towards those fleeing persecution, furthering the rights of those displaced through the effects of climate change will be an uphill battle. This is despite the fact that Western Nations are often disproportionately involved in the perpetuation of the factors which drive both forms of displacement.
The consequences of failure to address climate migration
Given that there are so many topics relating to climate change to cover, and such a long road ahead before rights are upheld for those forced to leave their homes, why is it necessary to include climate change migration issues in today’s discourse? The answer is simple: there is no time to wait. Climate migration will be one of the most important contemporary issues of the next 50 years as climate change causes environmental degradation in more and more areas of the world.
For example, today 1% of the world is a barely liveable hot zone, meaning that humans could not live in these areas due to their extreme weather conditions – specifically heat. By 2070 that zone could go up to 19% – almost a fifth of the planet. This means that more and more people across this type of territory will be displaced due to the destruction of their habitat, whilst others will be forced to flee due to flooding, natural disasters, extremes of weather, and rising sea levels. People have already begun to flee, not only from natural disasters and short-term environmental damage, but also from slow onset environmental decay.
In Southeast Asia the agriculture sector is suffering as rainfall patterns and droughts become more intense, causing the displacement of around 8 million people who have moved toward the Middle East, Europe and North America. The World Bank’s Groundswell Report suggests that by 2050, if no action is taken, there will be more than 143 million climate change migrants in sub-Saharan Africa, South Asia, and Latin America alone.
Concluding thoughts
Despite having good intentions and aims in terms of prevention and economics, the COP26 summit failed to mention this and its potentially dire consequences for the international effort to tackle human displacement. This could in turn lead to a lack of funds, resources, and political will to provide help to people who have witnessed the destruction of their homes. Climate change migration deserves more academic, policy and political attention, and COP26 is a perfect example of this. Those at risk of becoming displaced deserve protection from long-lasting environmental damage, and those already displaced deserve international support and access to their full human and legal rights. Alongside affected communities, it is up to activists, environmentalists, and the general population to bring attention to the cause of climate migration, and to establish a protection and assistance framework.
Johanna Wassong is in her final year, studying International Relations at the University of St Andrews in Scotland, specializing in human rights and refugee rights in sub–Saharan Africa. She is currently writing her dissertation on the refugee politics after the 1994 Rwandan genocide.
Johanna initially started working with refugees in her hometown Cologne, Germany during the European Migrant Crisis in 2015-2016 and was specifically confronted with the issues of environmental migration after the floodings in Ahrtal in Summer 2021.
This article was originally published in the Earth Refuge Archive as part of our collaboration with Human Rights Pulse on the COP26 Summit.
With more than 10 million inhabitants, Jakarta has become one of the largest metropolitan cities in the world. While the city has witnessed rapid economic development, many social and environmental issues are yet to be resolved – most critically, the fact that Jakarta is sinking at the rate of 10 centimeters per year. This ticking time bomb is expected to displace the majority of Jakarta’s population by 2050.
Understanding Jakarta’s existential threat is not an easy task. The issue spans from inadequate urban planning to lack of governmental preventive actions, in addition to massive groundwater loss. The latter is particularly problematic for a local population that relies on groundwater, since without it, Jakarta will be unable to provide access to clean water for its inhabitants.
The extraction of groundwater in Jakarta on a massive scale over the past six decades is one of the major reasons for its sinking. Water exists between sediment layers in the ground underneath Jakarta, and when this is removed in excessive, unregulated amounts, the sediment layers can collapse and compress together, reducing the elevation of affected areas on a dramatic scale. The heavily impacted coastal area of North Jakarta has already sunk 2.5 meters over the past decade and many fishing neighbourhoods have been destroyed.
Due to its seasonal heavy rain climate and limited open space for water absorption, Jakarta has faced many annual floods; the most detrimental flooding in 2020 alone left millions affected, thousands displaced and at least 26 dead. Research shows that global warming is also a factor behind instances of severe flooding across Greater Jakarta, with increasing rainfall and extreme monsoon storms making the current situation worse. A report by Indonesia’s Meteorology, Climatology and Geophysics Agency indicates that Jakarta’s rainfall has reached 335 millimetres per day – enough to classify as extreme rain. Furthermore, some areas in Jakarta that are already below sea level are on the verge of sinking entirely due to unstoppable global sea level rise.
While many anticipate that Jakarta only has until 2050 before the issue is irreversible, there are concerns that the tipping point could occur even sooner. As the hub of Indonesia’s economic activities, Jakarta offers many job opportunities for Indonesians, hence the city still experiences an influx of people. With the population of Jakarta increasing annually, new high-rise apartments and housing complexes in Greater Jakarta are rapidly being built, further limiting open spaces and groundwater usage, and accelerating Jakarta’s sinking rate.
Whilst this initially sounds promising, many activists and research institutes think differently. Moving the capital to Borneo Island might be damaging for Indonesia’s rainforest in building the city. In addition, an issue of indigenous rights of tribal communities in Borneo Island also emerges in the discussion. Thousands of indigenous people may be displaced from their tribal lands as large areas of the forest are cleared to build the new capital. Moving the capital to another island will also not necessarily resolve Jakarta’s problem of land sinkage, because many people might still be reluctant to move, meaning that Jakarta will remain the home of economic and industrial activities, all of which will continue to face the same threats.
Apart from this, the government is also building a sea wall across Jakarta’s coastline to prevent sea level rise’s impacts on Jakarta. It may minimize the effects of sea abrasion on Jakarta, but given that the main cause of Jakarta’s sinking is the lack of government-supplied drinking water, this will leave a key issue unsolved. Less than 60% of Jakarta inhabitants are covered by piped water infrastructure, and even this is centralized in wealthy areas.This means that for as long as the population remains reliant on groundwater and the government remains unable to find an alternative way to supply its citizens with clean water, then Jakarta’s sinking rate will be nowhere near declining.
Jakarta may well be on its way to becoming uninhabitable in the near future unless solutions are found without any further delay. While the responsibility rests mainly on the government, it is also imperative for Jakarta’s inhabitants to not further exacerbate the problems. As a collective, Jakarta’s residents can slow the rate of damage by adopting a more environmentally friendly lifestyle, for example by using public transportation more frequently, effectively managing their waste, and consuming water more efficiently. By increasing their environmental awareness, Jakarta’s residents can help to alleaviate the negative impacts of climate change on Jakarta’s sinking, meaning that an integrated educational and political approach will be key. Whether Jakarta’s collapse as a city will happen depends on the ability of all societal actors to cooperate together in preventing this occurrence.
Harry David is a LLM student on the Erasmus Mundus International Law of Global Peace, Security, and Development programme at the University of Glasgow. He holds a BA in International Relations from Universitas Gadjah Mada in Indonesia , and also completed a Human Security short course from Kyoto University in Japan.
Harry has worked as a junior policy researcher at a diplomatic mission in Jakarta and as an executive at the Roundtable on Sustainable Palm Oil (RSPO). He is passionate about sustainability, climate change, and human rights issues.
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