Blog post written by Dr Cosmin Corendea, Senior Fellow at the Centre for International Sustainable Development Law (CISDL). Cosmin will chair the ‘Environmental Refugees? Climate, Disasters and Protection’ panel at the upcoming RLI 3rd Annual Conference. The draft conference programme is online and registration for the event is now open.
Communities affected by climate change already develop a range of solutions and approaches to the impacts they face, including migration. However, in order to make these solutions and approaches sustainable, they must be supported by a legal framework. There is a need for the rule of law to be brought into the climate change process at the local, national and international level in order to protect rights, reduce risk, build resilience, empower people and facilitate positive migration. This blog post suggests that legal responses to address the impact of climate change on human security should employ a flexible and positive approach, in line with the recent developments of international law, such as the hybrid approach.
Recent empirical research conducted in relation to climate change and migration in the Pacific stresses inter alia, the significance of the international hybrid law, which has developed from a legal methodology, since 2007 when it was first elaborated, to now a well-accepted legal concept.
There are two main outcomes of such findings emphasising 1) the importance of a regional approach, as a more efficient legal implementation mechanism for the Paris Agreement (PA), and 2), the legal derogatory (based on a reciprocal cause-effect relationship) to address environmental degradation (where environmental degradation represents a larger notion including climate change) with concurrent reference to human rights and/or migration.
The derogation exists in practice and reflects reality, as the decision to migrate due to environmental triggers is not exclusively based on environmental reasoning, as it includes human rights access limitations as well as other factors, such as economical stressors, reduced access to medical services, etc. This interlinked and interconnected approach of environmental degradation, human rights and (forced) migration represents a change of paradigm, a concrete reconceptualisation of the States’ duty to protect and the common but differentiated responsibility application for both sending and receiving communities. This approach is known as international hybrid law where, in a simplistic description, environmental degradation may lead to human rights violations and in turn to human mobility (as an inclusive concept of migration, displacement and planned relocation).
In acknowledgement of households’ decisions to use migration as an adaptive tool when affected by environmental degradation, the hybrid approach expands any State responsibility (such as the duty to rescue) to a medium-long term approach, making it much more complicated and complex. Using the hybrid approach, States do not only have the obligation to address present migration humanitarian crises, but also to PREVENT future mobility impacts due to environmental rights breaches.
The hybrid application has already been used by different court decisions, which utilised the rights-based approach and the progressive interpretation of law (as a prerequisite of hybrid law). These decisions effectively enlarged the application of both domestic and international law in order to increase the protection granted and to serve the ultimate purpose of law – to address the needs of the people (in this case, the (vulnerable) people affected by climate change).
Moreover, in the very recent Climate Talks in Bonn, negotiators spent numerous hours to discuss the application of the Paris Agreement preamble on the operational part, in order to assure that human rights language (including ‘migrants rights’) becomes an integrated approach when developing the ‘rulebook’ for the PA implementation.
It is clear that in a ‘hostile world’ (where hostile may refer also to disasters as a result of human activity), people affected by environmental degradation / climate change need legal protection at local, domestic, regional and international level, and in particular, when deciding to migrate. It is also clear that hybrid law is designed to assist in increasing the protection of this group of people and is able to be applied in both mitigation and litigation processes. The use of hybrid law may eventually lead to concrete human-centered solutions, where protection has a natural preemptive and progressive behavior, and migration is not perceived as a ‘hostile’ negative process.
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