31 December 2020 – by Robert Los
Introduction
According to the UNCHR, 79.5 million people were seeking refuge away from home at the end of 2019.[1] This migration is based on a variety of different motives and phenomena, including war, political, cultural or religious persecution as well as economic and humanitarian crises. According to development trends, change in climate is more and more often part of this bundle of motives.[2] The term ‘climate-induced migration’ includes both sudden migration due to extreme weather events, and slower population movements due to gradually developing long-term climate changes.[3] Due to the difficulty of determining a single reason for a person’s migration from this bundle of motives, the estimated figures for climate migrants by 2050 range from 25 million to 1 billion people.[4] Regardless of the exact number, which can deviate anyway due to unforeseen events, the problem is becoming more and more virulent. The international community will have to consider solutions to offer protection to the people affected. One proposed solution includes applying historical knowledge and reissuing a historical instrument.
This short essay explores this concept of a ‘climate passport’ for people compelled to leave their previous residence due to changes in climatic conditions, a concept suggested by the German Advisory Council on Global Change (WBGU) in 2018.[5] In the course of this essay, the historical dimension of the ‘Nansen‘-passport, the legal instrument upon which the WBGU bases its concept, and the moral embedding of the principle of a Climate Pass will be discussed. Subsequently, the legal side of the concept will be examined and finally it will be concluded that in legal theory an intergovernmental claim already exists.
Nansen-Passports
First of all, it is worth taking a brief historical look at the Nansen Pass. The event that triggered its creation was the Soviet government’s 1922 decision to revoke the citizenship of 800,000 Russian citizens living in exile. These 800,000 people fled from the ongoing fighting of the Russian civil war both during and after World War I, or chose exile in fear of suppression by the newly formed government and were scattered throughout Europe.[6] In response to this deficiency, the ‘arrangement with respect to the issue of Certificates of Identity for Russian Refugees’ was negotiated in Geneva from 3-5 July 1922 under the leadership of the then-High Commissioner for Refugees of the League of Nations, Dr. Fridtjof Nansen. The ratifying states were obliged to issue passports to the now stateless people so that cross-border movement was an option during their search for a new home. In this way, the trapping dynamics of statelessness were overcome.[7] In 1933, the agreement was broadened to include Armenian, Turkish and Assyrian refugees.[8] Until it was discontinued, the passport had secured guest rights in safe countries for hundreds of thousands of people[9] and was recognized by 52 countries in 1942.[10]
In 1938 the Nansen International Office for Refugees was awarded the Nobel Peace Prize for implementing this project.[11] To this day, this solution is still considered a successful individual counter-model to the concept of planned control of migration flows, which implementations historically all have failed.[12] Though the Nansen Pass no longer exists, its legacy lives on. The refugee travel documents issued today by states on the basis of the Geneva Convention for Refugees can be seen as the successors of the Nansen Pass.
Transferability of the Nansen principles to climate-induced migration
Since existing legal agreements do not explicitly provide for such an instrument or a similar one for climate-related migration, it is necessary to determine whether such an instrument is necessary and, if so, what form it should take.
Current legal protection of climate migrants
The first question to be asked is whether there is a need for such a legal protection instrument. This would not be the case if sufficient protection for climate refugees were already guaranteed by the prevailing legal norms and instruments.
Geneva Convention on Refugees
The basis for the protection of refugees in an international context is generally the Geneva Convention for Refugees of 1951 (GCR). With regard to climate migration, several issues arise concerning the scope of the Convention. Article 1 of the convention defines a refugee as follows:
‘As a result of events […] and owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence as a result of such events, is unable or, owing to such fear, is unwilling to return to it.’[13]
Besides the obvious omission of climate-induced migration, the definition raises other less obvious hurdles that preclude analogous application or a broad interpretation.
According to the definition, a cross-border element is required, with the consequence that international refugee law only applies when a refugee leaves their country of origin and therefore the protection of internally displaced persons is primarily the responsibility of the affected state.[14] This leads to the exclusion of a significant number of climate migrants, since the majority – approx. 80%[15] – do not cross the borders of their country of origin during their first climate-related movement.[16] [17]
Another decisive criterion in the definition of a ‘refugee’ is the existence of persecution, which itself must be based on a severe violation of human rights of a characteristic mentioned in the GCR.[18] For a climate migrant to fulfil the ‘persecution’ requirement, a favorable and broad understanding of climate-induced destruction would be necessary in order to attest the emission of greenhouse gases (GHG) to a degree of wrongdoing comparable to political, religious or cultural persecution. Moreover, environmental change is unlikely to selectively affect (or persecute) one cultural, political or religious group alone.[19] A simple analogy can therefore not achieve the desired goal. This is particularly true because expanding the scope to include climate refugees would require a complete reversal of the paradigms underlying the GRC.[20] Until now, refugee law has protected people who flee persecution in their own state and thus seek protection elsewhere. However, climate migrants mainly need protection from actors in their own states.[21]
Climate migration is thus only covered by the GRC in more extreme cases. Unless special conditions are met – for example, if state actors deliberately destroy the environment in order to take targeted action against certain groups of people[22] – the Convention cannot be said to provide adequate protection to climate migrants. Although an amendment to the Convention in favor of environmental refugees is increasingly demanded and discussed, actual implementation of this is unlikely.[23] This prognosis is supported by current political developments[24] and the argument that an amendment could lead to a weakening of the existing international consensus on the GRC.[25]
Other international or regional treaties
Turning to other agreements, disillusionment arises quickly. Auspicious was the Global Compact for Safe, Orderly and Regular Migration, which resulted from the New York Declaration for Refugees and Migrants by the UN General Assembly of 2016.[26] The Compact cites climate change as a cause of flight and calls for international cooperation.[27] But even before its ratification in December 2018, the agreement already lost significance due to the withdrawal of the USA in 2017[28] – not only an important player in world politics, but also one of the largest emitters.[29] Criticism and headwind also came from the ratifying states. In the face of this, the German Federal Government assured that the Compact would not be a legally binding agreement.[30] This was however not enough for critics of the Compact, so that even before ratification the Federal Constitutional Court ruled out the possibility of a legally binding agreement in interim legal protection.[31] Thus, this initially promising agreement rapidly degenerated into so-called ‘soft law’: agreements that may have moral or political effect but are not legally enforceable.[32]
The proposal of a Global Pact for Environment, which aims to securitize central principles of international environmental law, goes in a similar direction. Among other things, it is intended to establish the right to a healthy environment, which is fertile ground for individual rights of climate migrants.[33] Whether the Pact, which is to be signed at the Earth Summit 2022,[34] will ultimately be legally binding and therefore overcome the status of soft law is still unclear, but there is room for doubt.
There are also some agreements that exist to protect refugees at a regional level, but save for the Arab Refugee Convention[35], even these by definition do not cover environmentally induced migration, or apply solely to internally displaced persons.[36] While the Arab Refugee Convention[37] and most other agreements targeting internal migration share the fate of international agreements due to their legally non-binding character,[38] the African Kampala Convention is an exception to this norm. It is a legally binding agreement that creates a framework for the protection and distribution of internal migrants and obligates ratifying states to protect affected persons.[39]
The idea of timely migration in the form of the Climate Pass
What all these agreements have in common is the provision of reactive or retrospective protection for migrants affected by climate change. The concept of the Climate Pass developed by WBGU, on the other hand, aims to facilitate active, early, and thus dignified migration from affected regions.[40] Such a passport would grant the holders not only the right to be admitted by other countries, but rights similar to those of citizenship. The WGBU makes a distinction in order to identify the states that are obliged to admit refugees and those individuals that would be entitled to a passport.
The ‘polluter-pays’ principle should be applied to ensure that climate migrants are fairly distributed amongst the receiving states.[41] So, those states that are responsible for a large part of the anthropogenic contributions to climate change should shoulder most of the burden. It is imperative that both historically cumulated emissions and current per capita emissions should be taken into account. According to these factors, WBGU proposes the 10 nations with the highest historical cumulative emissions and the 15 nations with the highest per capita emissions as primarily responsible. This is because these countries bear a considerable moral responsibility for the origin of many causes of migration. The gross domestic product, area and population density of the respective countries are recommended as additional indicators.[42] For reasons of effective protection, however, a further evaluation criterion should be the extent to which the potential host country is affected by climate change themselves. If, for example, Sint Marteen or Trinidad & Tobago – both amongst the 15 countries with the highest per capita emissions[43] – are themselves threatened by climate change,[44] protection in a less affected country such as Germany seems more appropriate. After all, the Climate Pass is not intended to shift problems but to offer a dignified future to the migrants by solving them.
When it comes to the question of who is to receive the Climate Passport, a system of prioritization will also have to be conducted, this time according to a time component. Although all those affected should have the right to such a humanitarian instrument, the first step will be to protect those people who will be affected by climate changes at the earliest possible stage. In particular, inhabitants of flat island states are to be mentioned. The exact identification of the particularly affected areas is to be carried out by a commission of scientific experts.[45]
Finally, it should be mentioned that the Climate Pass is not a silver bullet solution to problems caused by climate change. Rather, it is intended to flank other climate protection measures, and the WBGU points out that it can even support the achievement of other goals. For example, a country that feels overburdened by the obligation to admit refugees could be incentivized to reduce its emissions. The principles developed and presented here are to be understood as guidelines that require concrete implementation. First and foremost, the signatory states would have to agree on measures and guidelines on how to deal with migrants before and after the period of flight in order to prevent migrants from having a precarious existence in the destination country. The focus of these guidelines should not be solely on economic factors. Cultural and social disruption must also be addressed.[46] The WBGU would prefer the drafting of an international agreement, for instance, an additional protocol to the Paris Convention of 2015.[47]
Obligation under international law of the issuing states to assume responsibility
The WBGU forms its argument upon the moral obligation of states arising out of responsibility and thus hopes for the creation of an international agreement. It is possible, however, that an intergovernmental obligation under international law already exists.[48] This would be favorable due to the fact that there is little evidence of an upcoming international consensus in view of the actual political situation, including a failure by many states to meet the Paris Agreement climate targets.[49]
Basis of liability
In order to establish a binding obligation upon emitting states, a legal basis is necessary by which these states are liable for climate damage caused by emissions. Although the major emitters have recognized responsibility in the Paris Convention, one searches in vain for liability rules.[50] It is worth noting that it has been stated that the agreement should not prejudice liability issues.[51]
This leaves recourse only to the liability rules of general international environmental law,[52] in particular by applying the rules of customary law on the ‘Responsibility of States for Internationally Wrongful Acts’ (ARS). Of primary interest here is the liability norm of Art. 31 ARS, which states the following:
‘1. The responsible State is under an obligation to make full reparation for the injury caused by the internationally wrongful act.
2. Injury includes any damage, whether material or moral, caused by the internationally wrongful act of a State.’[53]
Whether a presumed violation of law is present, is once again determined by general international law. Here, above all, the international environmental law and its fundamental principle formulated in the IGJ evaluation on the use of nuclear weapons is of importance.[54] It essentially establishes that all states are obliged to refrain from activities on their own territory that damage or destroy the environment of other states.[55] As Frank notes, such damages would be rewarded in the case of the loss of entire habitats according to the international legal definition of environmental damage.[56]
The problem of causation and evidence
The question of liability is followed by the classic problem of causation. Since scientifically calculated climate models are only prognoses, the legal requirements for evidence and causality in environmental law disputes must be addressed.
In its commentary on the ARS Draft, the ILC positions itself in such a way that in the event of serious and irreversible damage, full scientific certainty of causation is not required.[57] A North American court of arbitration provided a more concrete definition, as it defined its requirements as ‘clear and convincing evidence of the damage’ in Trail Smelter of 1939 and 1941.[58] What constitutes the exact inner nature of the terms, however, was not answered by the court. Wolfrum classifies this criterion between the criteria ‘preponderance of evidence’, where sufficient probability is already adequate, and ‘beyond reasonable doubt’, which presupposes the removal of any reasonable doubt,[59] so that a high degree of persuasiveness of the evidence – but no conclusive certainty – is required for clear and convincing evidence.
It is likely that these requirements could be met by today’s climate projections from internationally recognized scientists, because even if they cannot provide an exact prediction of the future, they make substantial and sufficiently concrete statements. Nevertheless, it is doubtful whether the arbitral tribunal intended to apply this newly created criterion to claims for damages. This doubt is supported by the fact that the court only adopted this standard in the second part of the judgment when assessing preventive claims and felt compelled to give specific reason for this, and that ‘preponderance of evidence’ was already adequate for prove of damage.[60] So, there are good reasons for applying the preponderance of evidence, but since the WBGU Climate Passport also contains preventive purposes, the stricter interpretation should be considered. Because current climate predictions are sufficient under the stricter interpretation, a decision in dispute at this point is not decisive for the purposes of this essay.
For the existence of a causality link in the sense of the conditio sine qua non formula, Art. 47 ARS requires first a breach of duty by the state itself. At the same time, however, a contributory causality is sufficient.[61] Whether a state’s greenhouse gas emissions are a contributory cause depends on whether the damage caused by climate change can be attributed to it via an individualized causal chain.[62] As Sands/Peel note, GHG-emissions lead to higher concentrations of greenhouse gases in the atmosphere worldwide.[63] Consequently, a contributory cause for climatic changes is given for damages, which can be attributed to this increased concentration in the upper atmosphere. This will be applicable to ‘slow onset’- effects but cannot yet be conclusively answered for extreme weather events due to difficulties in providing evidence.[64]
The limitations of the court in Trail Smelter that excluded such environmental impacts that are ‘too indirect, remote and uncertain’ are irrelevant to the question of liability causation. The court only wanted to limit the scope of damage and exclude general indirect, economic damage, since it is ‘purely speculative’.[65]
Obligation of result or obligation of conduct?
The decision is arguably the starting point for the question of liability. Both an obligation of result as well as an obligation of conduct are being discussed. The latter would require a violation of due diligence to avoid environmental damages in other states. When answering this question, three judgments of international law are relevant to the outcome.
As mentioned, Trail Smelter is the starting point. The court of arbitration concluded that there was both an obligation of conduct and an obligation of result with the two differentiated according to the nature of the claim. The first would thus apply to the prevention of environmental damage on foreign territory, while the latter would apply to the compensation of damage.[66] The court also clarified that the implementation of preventive measures does not exclude a claim for compensation.[67]
Those supporting a general obligation of conduct rely primarily on the Pulp Mills ruling from the ICJ[68]. It is true that the court was examining the due diligence of the Uruguayan environmental audit system and even reprimands it for shortcomings. However, this position overlooks that the court explained its decision already with lacking causality and thus with its judgement no statement about the arrangement kind of the obligation was made.[69]
But most recently, with both the ICJ rulings in the proceedings Costa Rica v. Nicaragua and Nicaragua v. Costa- Rica,[70] the court has tipped the balance in one direction by again taking up the differentiation from Trail Smelter. In both decisions, the court makes a strict distinction between ‘procedural obligations’ regarding avoidance of possible environmental hazards on the territory of other states and ‘substantive obligations concerning transboundary harm’ regarding compensation. Exclusively on a ‘procedural level’ the court requires a violation of due diligence. According to the reasons for the judgement, liability depends solely on the causality and the extent of the damage. [71]
For the Climate Pass, this implies that different requirements may apply depending on when its validity is enforced between countries. In the WBGU’s ideal scenario, it should also facilitate preventive migration. This would mean that the state to which the claim is made would have to violate its duty of due diligence. The ICJ sets strict standards for this duty. The Court states that the ‘determination of the content of the environmental impact assessment should be made in light of the specific circumstances of each case’,[72] reinforcing its ruling in Pulp Mills.[73] If the investigation reveals possible environmental damage, the acting state is obliged under international law to find a solution in good faith with the affected states to eliminate or minimize the risk.[74] According to current scientific findings on climate change, such a risk can be affirmed without too much difficulty, so that even in the case of a procedural due diligence requirement, there is an obligation imposed on the emitting states.
The only question that remains is how the content of the obligation can be structured.
Content and Scope of Liability
This last question can again be divided into two parts: first, are the states jointly and severally liable and second, what exactly is the liability of the states?
States as joint and several debtors
The question of whether states are jointly and severally liable in addition to their own partial responsibility is answered by Art. 47 ARS:
‘1. Where several States are responsible for the same internationally wrongful act, the responsibility of each State may be invoked in relation to that act.’[75]
In the commentary on the ARS, the authors give examples of when such a joint interaction exists. On the one hand, this is supposed to be the case if states act in a way in which they are considered to be acting together from an external perspective. For instance, through the action of a common organ.[76] This possibility alone could be sufficient under international agreements in which the states have recognized joint responsibility.[77] On the other hand, it can also occur when several states contribute to the pollution or damage of an object or area. Here the pollution of a river is mentioned as an example. As Frank correctly states, the case is very similar to that of greenhouse gas emissions. Here too, several actors contribute to the pollution of an environmental medium with corresponding consequential damage. Joint and several liability must therefore be assumed.[78] As drawn from national legislation, Art. 47 ARS in its second paragraph also permits a later internal equalization of all liable states.[79]
Content of Liability
With regard to the preventive intent of the Climate Pass, a claim for compliance could arise from the mirroring of the prevention obligation under Art. 3 ARS. For this purpose, Art. 2 (a) in conjunction with Art. 3 ARS presupposes that considerable damage is imminent and that there is a high probability of its occurrence.[80] Although it would be possible to subsume climate damage and the resulting migration as imminent damage with a high probability of occurrence, it seems highly questionable whether this claim could constitute an active obligation on the part of emitters in addition to a claim to cease and desist from greenhouse emissions. Prevention will principally mean to refrain from damaging behavior. Irreversible environmental processes that have already been set in motion and are resulting in damage are then more a question of the justification of the extent of the damage in a claim for compensation. Additionally, it is important to note the difficulty of identifying and proving a single motive from a bundle of causes for displacement in this instance.
A claim for damages already incurred is less problematic. According to Art. 31 ARS, the obligated state owes full reparation for damage that has been sustained. Under international law, this also includes adequately caused indirect damage.[81] Thus, the loss of one’s livelihood due to climatic change caused by temperature or sea level rise is also included. Art. 35 ARS basically establishes that damages must be compensated in the form of in rem restitution. Frank argues that in case of climate migration this would require states to help climate migrants to continue living a dignified life in a new environment.[82] This interpretation is supported by the basic principle arising out of Factory of Chorzow. Accordingly, states are obliged:
‘to wipe out all consequences of the illegal act and to reestablish the situation which would, in all probability, have existed if that act had not been committed ‘.[83]
Conclusion
In conclusion, it can be said that the WBGU’s concept of a Climate Passport, at least in part, has an anchoring in international law in addition to a moral anchoring in the ‘polluter-pays’ principle. This anchoring could in turn establish an obligation for states to implement the goals of a Climate Passport at least indirectly. This would apply at least to instances in which damage in the concrete form of habitat destruction by climatic change has already occurred.
Whether there is an obligation arising as a counterpart to the prevention prohibition to participate beyond this is doubtful. However, in view of the ideal version of the Climate Pass, this leaves the legal obligation with the following unsatisfactory ‘procedural’ hurdles, which run the risk of undermining the actual objective, namely, to enable early and humane migration.
The first hurdle is that the claim exists only between states. As a result, people who are actually affected by the changes would have to trust that their government would bring a claim on their behalf. This presupposes that the states not only recognize the dramatic situation of their own people, but also admit their own inability and powerlessness to remedy it. In states that are particularly badly affected, this may seem tangible as a last resort, but in states that are affected by ‘slower’ catastrophes in particular, political power mechanisms are pushing this solution further into the distance. The probability that such a claim will be asserted too late for large sections of the affected population, or at least too late to enable dignified migration seems highly probable. An aggravating factor is that in the majority of cases the current global political reality would prefer monetary support at contractual level until the very last moment rather than actual participation in a project like the Climate Passport. Monetary support in the sense of adaptation at home can certainly have a positive effect and is probably preferable to fleeing to farther-flung parts of the world for socio-cultural reasons. That is provided, of course, that these regions have the capacity and opportunities to shoulder these groups of people. From the perspective of legal protection, however, a securitized right in the form of a recognized Climate Passport is preferable for individuals.
Another hurdle is judicial enforcement. Individual legal disputes can delay ad-hoc decisions for an unnecessarily long time and make it difficult to enforce existing claims. An individual case-by-case approach to such a complex global situation in court cannot be the desired outcome and common goal of the international community.
An international agreement would therefore be compelling not only for reasons of protection, but also for reasons of effectiveness. Standardization would facilitate processes and would indeed establish a ‘lighthouse’ of humanity,[84] as WBGU was aiming for with the proposal of this concept. Without standardisation, such a lighthouse, would have to be fought for continuously on a case-by-case basis and and would not radiate enough light to create an impact.
Robert Los is 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] UNCHR (2020): Global Trends – Forced Displacement in 2019.
[2] Rigaud/Sherbinin/ Jones/Bergmann/Clement/Ober/Schewe/Adamo(Mccusker/Heuser/Midgley (2018): Groundswell – Preparing for Internal Climate Migration; WBGU – Wissenschaftlicher Beirat der Bundesregierung Globale Umweltveränderungen (2008): Welt im Wandel: Sicherheitsrisiko Klimawandel. Hauptgutachten; WBGU (2014): Klimaschutz als Weltbürgerbewegung. Sondergutachten.
[3] WBGU (2018): Zeitgerechte Klimapolitik: Vier Initiativen für Fairness, p. 25.
[4] Ionesco/Mokhnacheva/Gemenne (2017): The Atlas of Environmental Migration; cf. WBGU (2018): Zeitgerechte Klimapolitik: Vier Initiativen für Fairness, p. 25.
[5] WBGU (2018): Zeitgerechte Klimapolitik: Vier Initiativen für Fairness, p. 24 et seqq.
[6] http://www.arkivverket.no/eng/Using-the-Archives/Online-Exhibitions/The-Nansen-Passport/Nansen-the-humanist (Last Access: 21.11.2020).
[7] League of Nations, Arrangement with respect to the issue of certificates of identity to Russian Refugees, 5 July 1922, League of Nations, Treaty Series Vol. XIII No. 355, https://www.refworld.org/docid/3dd8b4864.html (Last Access: 21.11.2020).
[8] League of Nations, Arrangement of 12 May 1926 relating to the Issue of Identity Certificates to Russian and Armenian Refugees, 12 May 1926, Treaty Series Vol. LXXXIX, No. 2004.
[9] WBGU (2018): Zeitgerechte Klimapolitik: Vier Initiativen für Fairness, p. 24.
[10] Marrus (2013): Nansen-Pass. In: Diner, D., Enzyklopädie jüdischer Geschichte und Kultur 44.
[11] https://www.nobelprize.org/prizes/peace/1938/nansen/lecture/ (Last Access: 21.11.2020).
[12] Oliver-Smith/de Sherbinin (2014): Resettlement in the twenty-first century. Forced Migration Review 45, p. 23–25; cf. WBGU (2018): Zeitgerechte Klimapolitik: Vier Initiativen für Fairness, p. 24.
[13] Article 1A II of Convention relating to the Status of Refugees.
[14] cf. Nümann(2019): Rechtliche Schutzmöglichkeiten für ‘Klimaflüchtlinge’, bpb-Dossier ‘Migration und Klimawandel’, https://www.bpb.de/gesellschaft/migration/kurzdossiers/283563/rechtliche-schutzmoeglichkeiten-fuer-klimafluechtlinge- (Last Access: 21.11.2020).
[15] Adger/Pulhin/Barnett/Dabelko/Hovelsrud/Levy/Oswald Spring/Vogel (2014): Human security, p. 767.
[16] EACH-FOR Environmental Change and Forced Migration Scenarios (2009): Synthesis Report, S. 72; Nümann(2019): Rechtliche Schutzmöglichkeiten für ‘Klimaflüchtlinge’, bpb-Dossier ‘Migration und Klimawandel’.
[17] Later, further escapes – e.g. because of poverty – as late consequences of the first climate-induced flight are probably still regarded as flights for the respective reasons. This leads to problems in questions of liability under international climate law and will be discussed below.
[18] Nümann(2014): Umweltflüchtlinge? Umweltbedingte Personenbewegungen im internationalen Flüchtlingsrecht, p. 254 et seqq.
[19] Cf. Hathaway (1991): The Law of Refugee Status, S. 92 f.; Zimmermann/Mahler(2011): Article 1 A, para. 2 1951 Convention. In: Zimmermann: The 1951 Convention Relating to the Status of Refugees and its 1967 Protocol. A Commentary. Oxford und New York, p. 440.
[20] See McAdam (2010): Climate Change Displacement and International Law. Side Event to the High Commissioner’s Dialogue on Protection Challenges 8 December 2010, p. 2, www.refworld.org/pdfid/4d95a1532.pdf (Last access: 20.11.2020).
[21] cf. Nümann, Rechtliche Schutzmöglichkeiten für ‘Klimaflüchtlinge’, bpb-Dossier ‘Migration und Klimawandel’, 2019; McAdam (2009): From Economic Refugees to Climate Refugees?, Melbourne Journal of International Law, 2009, p. 592.
[22] One example of this is the draining of the marshlands in the 1990s by Sadam Hussain in Iraq in order to take action against the predominantly Shiite marsh Arabs; cf. Nümann(2014): Umweltflüchtlinge? Umweltbedingte Personenbewegungen im internationalen Flüchtlingsrecht, p. 313 et seqq.
[23] WBGU (2018): Vier Initiativen für Fairness, p. 24 et seqq.
[24] While the European Union and the USA deal ingloriously with migration in the Mediterranean and Central America respectively, projects to deal with climate migration are being put off. It is all the more fatal that Finland and Sweden have repealed their existing rules for climate refugees in the face of the refugee crisis in 2015; see Kraler/Katsiaficas/Wagner(2020): Climate Change and Migration, Legal and policy challenges and responses to environmentally induced migration.
[25] Hanschel (2017): Klimaflüchtlinge und das Völkerrecht. Zeitschrift für Ausländerrecht und Ausländerpolitik 1, p. 1–8; WBGU (2018): Vier Initiativen für Fairness, p. 24 et seqq.
[26] UN General Assembly (2016): New York Declaration for Refugees and Migrants. Resolution Adopted by the General Assembly on 19 September 2016. New York: UNGA.
[27] United Nations (2018): Global Compact for Safe, Orderly and Regular Migration. Final Draft. New York: UN.
[28] USA saw its sovereignty curtailed by the agreement, cf. https://www.theguardian.com/world/2017/dec/03/donald-trump-pulls-us-out-of-un-global-compact-on-migration (Last Access: 20.11.2020).
[29] Edenhofer/Jakob (2019): Klimapolitik – Ziele, Konflikte, Lösungen, p. 25.
[30] https://www.welt.de/politik/deutschland/article184525526/Antrag-von-SPD-und-CDU-Koalition-schliesst-eine-rechtliche-Wirkung-von-UN-Migrationspakt-aus.html (Last Access: 20.11.2020).
[31] BVerfG, Beschluss der 2. Kammer des Zweiten Senats vom 07. Dezember 2018 – 2 BvQ 105/18 -, para. 1-23.
[32] Markard (2018): Migration wird erstmal das Thema aller, Der Tagesspiegel v. 18.11.2018; https://www.tagesspiegel.de/politik/un-migrationspakt-erstmals-eine-gemeinsame-haltung-der-welt-zu-migration/23648828.html (Last Access: 20.11.2020).
[33] WBGU (2018): Vier Initiativen für Fairness, p. 24 et seqq.
[34] United Nations (2019): Resolution adopted by the General Assembly on 30 August 2019.
[35] Art. 1 Arab Convention on Regulating Status of Refugees lists ‘natural disasters’ as a reason for migration.
[36] Kälin (2017): Klimaflüchtlinge oder Katastrophenvertriebene. German Review on the United Nations 65 (5), 207–212; cf. WBGU (2018): Vier Initiativen für Fairness, p. 24 et seqq.
[37] Kälin/Schrepfer (2012): Protecting People Crossing Borders in the Context of Climate Change. Normative Gaps and Possible Approaches. UNHCR, Division of International Protection, Legal and Protection Policy Research Series. Genf, p. 34. www.unhcr.org/4f33f1729.pdf (Last Access: 21.11.2020).
[38] Ferris/Bergmann (2017): Soft law, migration and climate change governance. Journal of Human Rights and the Environment 8 (1), 6–29.; cf. WBGU (2018): Vier Initiativen für Fairness, p. 24 et seqq.
[39] Art. 5 IV, 12 II African Union Convention for the Protection and Assistance of Internally Displaced Persons in Africa; cf. cf. Nümann(2019):Rechtliche Schutzmöglichkeiten für ‘Klimaflüchtlinge’, bpb-Dossier ‘Migration und Klimawandel’.
[40] WBGU (2018): Vier Initiativen für Fairness, p. 28.
[41] WBGU (2008): Welt im Wandel: Sicherheitsrisiko Klimawandel. Hauptgutachten.; WBGU (2009): Kassensturz für den Weltklimavertrag – Der Budgetansatz. Sondergutachten.
[42] WBGU (2018): Vier Initiativen für Fairness, p. 29 et seqq.
[43] Sint Marteen: 19,5 t CO2 per capita; Trinidad & Tobago: 34,2 t CO2 per capita; cf. WBGU (2018): Vier Initiativen für Fairness, p. 30.
[44] cf. for Trinidad & Tobago see World Health Organization (2020): Health & Climate Change – Country Profile 2020, Trinidad & Tobago; cf. For Sint Marteen see Gerges/Hirschfeld/Hutar/Salzman/Sorensen/Meyer (2018): Corruption in an Era of Climate Change: Rebuilding Sint Maarten after Hurricane Irma, Northwestern Public Law Research Paper No. 18-13, Available at SSRN: https://ssrn.com/abstract=3179203 (Last Access: 21.11.2020).
[45] WBGU (2018): Vier Initiativen für Fairness, p. 28.
[46] Serdeczny (2017): What Does It Mean To ‘Adress Displacement’ Under the UNFCCC? Discussion Paper No. 12.; cf. WBGU (2018): Vier Initiativen für Fairness, p. 29.
[47] WBGU (2018): Vier Initiativen für Fairness, p. 28.
[48] Individualized claims of migrants against emitting states are also being discussed. But there are considerable doubts; cf. Vöneky/Beck (2017): in Prölß, Internationales Umweltrecht, p. 166.
[49] Cf. for failing to meet climate targets see Climate Action Network Europe (2018): Off target Ranking of EU countries’ ambition and progress in fighting climate change.
[50] Frank (2019): Klimabedingte Migration, in: Neue Zeitschrift für Verwaltungsrecht 2019, p. 529.
[51] Art. 8 para 1 Paris Agreement, 2015; https://unfccc.int/files/essential_background/convention/application/pdf/english_paris_agreement.pdf; Nr. 53 Adoption of the Paris Agreement, 2015; https://unfccc.int/resource/docs/2015/cop21/eng/l09r01.pdf (Last Access: 21.11.2020).
[52] Frank (2016): Anmerkungen zum Pariser Klimavertrag aus rechtlicher Sicht, Zeitschrift für Umweltrecht 2016, p. 354.
[53] ILC, Responsibility of States for Internationally Wrongful Acts; https://legal.un.org/ilc/texts/instruments/english/draft_articles/9_6_2001.pdf (Last Access: 21.11.2020).
[54] Frank (2019): Klimabedingte Migration, in: Neue Zeitschrift für Verwaltungsrecht 2019, p. 531 et seqq.; Schmalenbach (2017): Verantwortlichkeit und Haftung, p. 215 et seqq., in: Prölß, Internationales Umweltrecht, 2017.
[55] ICJ (1996): Legality of the Threat or Use of Nuclear Weapons, ICJ Rep 1996, 226 (242) (para 29).
[56] Frank (2019): Klimabedingte Migration, in: Neue Zeitschrift für Verwaltungsrecht 2019, p. 532.
[57] ILC-Prev. Draft Art. 3 Com. (14).
[58] Trail Smelter Arbitration (USA v. Canada), Reports of International Arbitral Awards (1938/41), Vol. III, 1964 et seqq.
[59] Wolfrum (2013): International Courts and Tribunals, Evidence, In: Max Planck Encyclopedia of Public International Law 2013 para. 10 and para. 69 et seqq.
[60] Frank(2014):Klimahaftung nach Völkerrecht in Neue Zeitschrift für Verwaltungsrecht – Extra 11/2014, p. 4 et seqq.
[61] ILC, Responsibility of States for Internationally Wrongful Acts; https://legal.un.org/ilc/texts/instruments/english/draft_articles/9_6_2001.pdf (Last Access: 21.11.2020).
[62] Frank (2019): Klimabedingte Migration, in: Neue Zeitschrift für Verwaltungsrecht 2019 p. 531; dissenting: Vöneky/Beck (2017): Umweltschutz und Menschenrechte in Prölß, Internationales Umweltrecht, p. 133 et seqq.
[63] Sands/Peel (2018): Principles of International Environmental Law, p. 298.
[64] Rahmstorf/Schnellnhuber (2019): Der Klimawandel, p. 68 et seqq.
[65] Trail Smelter Arbitration, Reports of International Arbitral Awards (1938/41), Vol. III, p. 1931 f.
[66] Frank (2019): Klimabedingte Migration, in: Neue Zeitschrift für Verwaltungsrecht 2019, p. 532.
[67] Trail Smelter Arbitration, Reports of International Arbitral Awards (1938/41), Vol. III, p.1980.
[68] Pulp Mills on the River Uruguay (Argentina v. Uruguay), 20.4.2010, ICJ Reports 2010, p. 14.
[69] Frank (2019): Klimabedingte Migration, in: Neue Zeitschrift für Verwaltungsrecht 2019, p. 532.
[70] Certain Activities Carried out by Nicaragua in the Border Area (Costa Rica v. Nicaragua) u. Construction of a Road along the San Juan River (Nicaragua v. Costa Rica), Judgement, ICJ Reports, 2015, 615 et seqq.
[71] Frank (2019): Klimabedingte Migration, in: Neue Zeitschrift für Verwaltungsrecht 2019, p. 533.
[72] Certain Activities Carried out by Nicaragua in the Border Area (Costa Rica v. Nicaragua) u. Construction of a Road along the San Juan River (Nicaragua v. Costa Rica), Judgement, ICJ Reports, 2015, p. 707.
[73] Pulp Mills on the River Uruguay (Argentina v. Uruguay), 20.4.2010, ICJ Reports 2010, p. 83.
[74] Certain Activities Carried out by Nicaragua in the Border Area (Costa Rica v. Nicaragua) u. Construction of a Road along the San Juan River (Nicaragua v. Costa Rica), Judgement, ICJ Reports, 2015, p. 707.
[75] ILC, Responsibility of States for Internationally Wrongful Acts; https://legal.un.org/ilc/texts/instruments/english/draft_articles/9_6_2001.pdf (Last Access: 21.11.2020).
[76] cf. Frank (2019): Klimabedingte Migration, in: Neue Zeitschrift für Verwaltungsrecht 2019, p. 534.
[77] f.i. United Nations Framework Convention on Climate Change or the Paris Agreement
[78] Frank (2019): Klimabedingte Migration, in: Neue Zeitschrift für Verwaltungsrecht 2019, p. 534.
[79] ILC, Responsibility of States for Internationally Wrongful Acts; https://legal.un.org/ilc/texts/instruments/english/draft_articles/9_6_2001.pdf (Last Access: 21.11.2020).
[80] Frank(2014):Klimahaftung nach Völkerrecht in Neue Zeitschrift für Verwaltungsrecht – Extra 11/2014, p. 3 et seqq.
[81] cf. Art. 31 com. (9) u. (10) ARS.
[82] Frank (2019): Klimabedingte Migration, in: Neue Zeitschrift für Verwaltungsrecht 2019, p. 534.
[83] ICJ, Factory of Chorzow, Urt. v. 13.9.1928, PCIJ Series A No. 17 (Merits).
[84] WBGU (2018): Vier Initiativen für Fairness, p. 30.
