Blog post written by Prof. Elisa Fornalé and Ms Aylin Yildiz (World Trade Institute, University of Bern). This post forms part of a series of blog posts examining the implementation of the Global Compact for Safe, Orderly and Regular Migration.
The factors compelling people to leave their country of origin are complex: conflicts, violence, human rights violations, and persecution all play a role. At the end of 2018, there were 70.8 million forcibly displaced people worldwide, of whom only 29.5 million were displaced externally. In the case of internal displacement, which accounts for the overwhelming majority of forced displacements worldwide, almost two-thirds were triggered by disasters in 2018.
Objective 2 of the Global Compact for Migration (GCM) aims to respond to this complex aspect of human movement by minimizing the “adverse drivers” and “structural factors” that compel people to leave their country of origin. Neither of these concepts are defined in the GCM; however, some of the relevant commitments relate to poverty eradication, food security, and sustainable development. Furthermore, Objective 2 specifically focuses on State commitments in relation to “natural disasters, the adverse effects of climate change, and environmental degradation”. The following obligations are explained to highlight actions States can take towards achieving the overall aim of Objective 2, which is the creation of conditions “for people to lead peaceful, productive and sustainable lives in their own country”.
The right to life
Article 6(1) of the International Covenant on Civil and Political Rights states that:
Every human being has the inherent right to life. This right shall be protected by law. No one shall be arbitrarily deprived of his life.
The right to life is also enshrined in Article 3 of the Universal Declaration of Human Rights; Article 6 of the Convention on the Rights of the Child; Article 9 of the International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families; Article 10 of the Convention on the Rights of Persons with Disabilities; and Article 2 of the Convention on the Prevention and Punishment of the Crime of Genocide.
In General Comment No. 36 (CCPR/C/GC/36) 2018, the UN Human Rights Committee noted that:
[t]he obligation of States parties to respect and ensure the right to life extends to reasonably foreseeable threats and life-threatening situations that can result in loss of life.
This duty covers all persons who are within the territory of the State, as well as all persons subject to its jurisdiction, which means all persons over whose enjoyment of the right to life the State exercises power or effective control.
The UN Human Rights Committee elaborated further, stating that:
Implementation of the obligation to respect and ensure the right to life, and in particular life with dignity, depends, inter alia, on measures taken by States parties to preserve the environment and protect it against harm, pollution and climate change caused by public and private actors[…]. Environmental degradation, climate change and unsustainable development constitute some of the most pressing and serious threats to the ability of present and future generations to enjoy the right to life.
Accordingly, States are obliged to:
[E]nsure sustainable use of natural resources, develop and implement substantive environmental standards, conduct environmental impact assessments and consult with relevant States about activities likely to have a significant impact on the environment, provide notification to other States concerned about natural disasters and emergencies and cooperate with them, provide appropriate access to information on environmental hazards and pay due regard to the precautionary approach (Paragraph 62 of the General Comment No. 36 (CCPR/C/GC/36) 2018)
[D]evelop, when necessary, contingency plans and disaster management plans designed to increase preparedness and address natural and man-made disasters, which may adversely affect enjoyment of the right to life, such as hurricanes, tsunamis, earthquakes, radio-active accidents and massive cyberattacks resulting in disruption of essential services (Paragraph 26 of the General Comment No. 36 (CCPR/C/GC/36) 2018)
[T]ake appropriate measures to protect individuals against the deprivation of life by other States, international organizations and foreign corporations operating within their territory or in other areas subject to their jurisdiction […] taking due account of related international standards of corporate responsibility and of the rights of victims to obtain an effective remedy (Paragraph 22 of the General Comment No. 36 (CCPR/C/GC/36) 2018)
Indicator:
The duty to protect the right to life extends to reasonably foreseeable threats and life-threatening situations that can result in loss of life, including cases of environmental degradation, climate change and unsustainable development. States are obliged to take appropriate measures, such as developing and implementing substantive environmental standards in accordance with international environmental law, and creating disaster management plans designed to increase preparedness and address natural and man-made disasters. These obligations are held vis-à-vis all persons subject to States’ jurisdiction, in other words, all persons over whose enjoyment of the right to life the State exercises power or effective control. Furthermore, States are responsible to protect such persons against the activities of other States, as well as against the activities of international organizations and foreign corporations operating within their territory or in other areas subject to their jurisdiction.
The right to an adequate standard of living, including adequate food, clothing and housing, and continuous improvement of living conditions
This right is enshrined in Article 25 of the Universal Declaration of Human Rights; Article 11(1) of the International Covenant on Economic, Social and Cultural Rights; Article 27 of the Convention on the Rights of the Child; Article 14 of the Convention on the Elimination of All Forms of Discrimination against Women; and Article 28 of the Convention on Rights of Persons with Disabilities.
What constitutes an adequate standard of living has been expressed in General Comment 12 of the UN Committee on Economic, Social and Cultural Rights (CESCR, General Comment 12, 1999). It states that what is adequate is “to a large extent determined by prevailing social, economic, cultural, climatic, ecological and other conditions”, while sustainability “incorporates the notion of long-term availability and accessibility”.
The right to adequate food obliges every State to:
ensure for everyone under its jurisdiction access to the minimum essential food which is sufficient, nutritionally adequate and safe, to ensure their freedom from hunger (Paragraph 14 of the CESCR, General Comment 12, 1999).
Although the right to adequate food will have to be realized progressively, States have a core obligation to take necessary actions to mitigate and alleviate hunger, even in times of natural or other disasters (Paragraph 6 of the CESCR, General Comment 12, 1999). States are accorded with a margin of discretion in choosing their approaches to implementation at the national level, however some of their concrete duties include:
- Formulation of national strategies which are based on human rights principles and aim to ensure food and nutrition security for all (Paragraph 21 of the CESCR, General Comment 12, 1999)
- Systematic identification of policy measures and activities relevant to the situation and context (Paragraph 22 of the CESCR, General Comment 12, 1999)
- Setting verifiable benchmarks for subsequent national and international monitoring (Paragraph 29 of the CESCR, General Comment 12, 1999)
- Providing an environment that facilitates implementation by all members of society, non-governmental organizations, civil society organizations, and the private business sector (Paragraph 20 of the CESCR, General Comment 12, 1999)
In the case of children, Joint General Comment No. 3 of the Committee on the Protection of the Rights of All Migrant Workers and Members of their Families and No. 22 of the Committee on the Rights of the Child (CMW-C/GC/3-CRC/C/GC/22) states that Article 27 of the Convention on the Rights of the Child, which recognizes the right of every child to a standard of living adequate for the child’s physical, mental, spiritual, moral and social development, is connected to Articles 2 (principle of non-discrimination) and 6 (right to life) of the same Convention. Accordingly, State parties should ensure that children have “a standard of living adequate for their physical, mental, spiritual and moral development”. The same standard is applicable to children in the context of international migration. This is further supported by the statement made by the Committee on Economic, Social and Cultural Rights on the duties of States towards refugees and migrants under the International Covenant on Economic, Social and Cultural Rights (E/C.12/2017/1), according to which:
all children within a State, including those with an undocumented status, have a right to receive education and access to adequate food and affordable health care.
In order to implement this duty, comprehensive child protection systems at the national and local levels should mainstream into the programmes of child protection bodies, and of the authorities responsible for migration, in order to systematically assess and address the impacts on and needs of children in the context of international migration at every stage of policymaking and implementation (Paragraph 14 of E/C.12/2017/1). The Committees recommend the following policies and practices to be implemented:
– Comprehensive, inter-institutional policies between child protection and welfare authorities and other key bodies, including on social protection, health, education, justice, migration and gender, and between regional, national and local governments;
– Adequate resources, including budgetary, aimed at ensuring effective implementation of policies and programmes; and
– Continuous and periodic training of child protection, migration and related officials on the rights of children, migrants and refugees and on statelessness, including intersectional discrimination (Paragraph 18 of E/C.12/2017/1).
Indicator:
The core international human rights agreements enshrine the right to an adequate standard of living, including adequate food, clothing and housing, and continuous improvement of living conditions. What is meant by adequate depends on the prevailing social, economic, cultural, climatic, ecological and other conditions. Yet, States are obliged to take necessary measures. For instance, in the case of the right to an adequate food, States’ national policies should systematically identify the policy measures and activities relevant to the situation and context with the aim to ensure food and nutrition security for all. Furthermore, as the case study on the applicability of this right to children shows, States must realize that an adequate standard of living is connected to the right to life and the principle of non-discrimination. All children within a State, including those with an undocumented status, have a right to receive education and access to adequate food and affordable health care. In order to implement this duty, States must make comprehensive, inter-institutional policies, allocate adequate resources and provide continuous and periodic training of relevant officials on the rights of children, migrants and refugees and on statelessness.
The right to leave
The implementation of Objective 2 ambitiously calls for all people to be allowed to improve their lives and meet their aspirations in their country of origin. This commitment must not hinder individuals’ choices to move, which can be made for a multiplicity of reasons.
Article 13(2) of the Universal Declaration of Human Rights 1948 states that: “Everyone has the right to leave any country, including his own, and to return to his country”.
Similarly, Article 12(2) of the International Covenant on Civil and Political Rights 1966 states that: “Everyone shall be free to leave any country, including his own”.
In its General Comment No. 27 (CCPR/C/21/Rev.1/Add.9), the UN Human Rights Committee states that: “Liberty of movement is an indispensable condition for the free development of a person”.
Freedom to leave a State may not be made dependent on any specific purpose or on the period of time the individual chooses to stay outside the country (Paragraph 8 of CCPR/C/21/Rev.1/Add.9). However, according to Article 12(3) of the International Covenant on Civil and Political Rights, this freedom can be restricted to protect national security, public order (ordre public), public health or morals and the rights and freedoms of others. Such restrictions should be prescribed by law using precise criteria, and must not violate the essence of the right or confer unfettered discretion on those charged with their execution (Paragraph 13 of CCPR/C/21/Rev.1/Add.9). Furthermore, the restriction must be necessary and the principle of proportionality must be conformed to, according to which the least intrusive instrument amongst those which might achieve the desired result must be adopted.
The recent border control externalization policies of the EU have been examined in light of their conformity with the right to leave (Council of Europe Issue Paper, October 2013). An exemplary measure which has been condemned as contrary to the prohibition of collective expulsion under Article 4 of the Protocol No. 4 to the European Convention on Human Rights is “push-backs” (Ibid).
Push-backs are measures which States take […] to prevent people entering their territory by pushing them back into the territory which they just left or tried to leave (Ibid).
Such operations can be carried out at sea or at land borders (Ibids). These measures constitute a serious interference with the exercise of the right to leave.
Indicator:
The right to leave is a fundamental human right, expressed in the Universal Declaration of Human Rights and the International Covenant on Civil and Political Rights. The States’ commitment to minimize the adverse drivers and structural factors that compel people to leave their country of origin must go hand in hand with the right of everyone to leave any country, including their own. Restrictions on this right must be restricted to the exceptions provided under Article 12(3) of the International Covenant on Civil and Political Rights. Border control externalization policies, such as push-back measures, have been condemned as constituting serious interference with the right to leave. In order to achieve Objective 2 of the GCM, States must ensure that their policies refrain from placing obstacles on individuals seeking to leave a country.
Natural disasters, the adverse effects of climate change and environmental degradation
The International Law Commission Draft Articles on the Protection of Persons in the Event of Disasters (A/71/10) were adopted by the United Nations General Assembly in 2016 (A/CN.4/703). These draft articles are viewed as constituting a comprehensive framework for response to and reduction of risks associated with disasters, and for the protection of persons. Moreover, a convention titled “Protection of Persons in the Event of Disasters” is currently being elaborated by the International Law Commission, and will be submitted to the United Nations General Assembly upon completion. The draft articles apply beyond natural disasters to include “complex disasters”, which would cover situations of environmental degradation and the adverse effects of climate change. There are eighteen draft articles, which aim to:
facilitate the adequate and effective response to disasters, and reduction of the risk of disasters, so as to meet the essential needs of the persons concerned, with full respect for their rights.
Human rights
The commentary on the draft articles explains that:
the general reference to human rights encompasses human rights obligations expressed in relevant international agreements and those in customary international law.
In order to contextualise the application of existing human rights obligations with respect to disasters, the commentary relies on non-binding texts, such as the Guiding Principles of Internal Displacement (OCHA, 2001). The commentary highlights the following obligations:
- States, international organizations, including regional integration organizations, and other entities enjoying specific international legal competence in disaster relief assistance are under an obligation to protect the human rights of those persons affected by disasters. However, the scope and content of the obligation varies among the actors.
- Human rights must be respected and protected; hence States’ obligations are not restricted to avoiding interference with people’s rights, but may extend to protection of their rights. One example provided in the commentary is that of States adopting a number of measures varying from passive non-interference to active interference, ensuring the satisfaction of individual needs, in line with the concrete circumstances.
- Although drawing up an exhaustive list of potentially applicable rights would not be feasible, certain rights are exemplified. For instance, with respect to the right to life, States are responsible for adopting positive measures to prevent or respond to disasters that cause loss of life.
- Other rights include the right to receive humanitarian assistance, the rights of particularly vulnerable groups to have their special protection and assistance needs taken into account, the right of communities to have a voice in the planning and execution of risk reduction, the right of all persons displaced by disasters to non-discriminatory assistance in obtaining durable solutions to their situation.
- States have an implied degree of discretion in the application of rights, in line with the treatment of derogable and non-derogable rights under international human rights law.
Humanitarian principles
The commentary on the draft articles states that:
the principles of humanity, neutrality and impartiality are core principles recognized as foundational to humanitarian assistance.
According to Article 6 of the draft articles, these principles must be realized “on the basis of non-discrimination, while taking into account the needs of the particularly vulnerable”. The commentary elaborates as follows:
- The principle of humanity has three elements: to prevent and alleviate suffering; to protect life and health; and to assure respect for the individual. In the specific context of disaster relief, human suffering must be addressed wherever it is found.
- In line with the principle of neutrality, assistance should be provided “without engaging in hostilities or taking sides in controversies of a political, religious or ideological nature”. Hence, disaster response must remain apolitical.
- The principle of impartiality has three elements: non-discrimination, proportionality and impartiality proper. Non-discrimination is “directed towards the removal of objective grounds for discrimination among individuals, such that the provision of assistance to affected persons is guided solely by their needs”. Proportionality “stipulates that the response to a disaster be proportionate to the scope of that disaster and the needs of affected persons”. Impartiality proper “reflects the principle that no subjective distinctions be drawn among individuals in response to disasters”. However, the commentary states that “the most urgent needs”, in line with priority given to the needs of the particularly vulnerable, must be met.
- The need for engagement of vulnerable groups in the design, implementation, monitoring and evaluation of assistance provided in the event of a disaster, as well as in preparing for the possibility of a disaster, is highlighted.
Indicator:
States are obliged to adopt positive measures to prevent or respond to disasters that cause loss of life according to human rights and humanitarian principles. Humanitarian principles have three components:to prevent and alleviate suffering; to protect life and health; and to assure respect for the individual. These components must be delivered in line with the principle of neutrality, impartiality, and non-discrimination and must take into account the needs of the particularly vulnerable. Whilst an exhaustive list of potentially applicable human rights is not feasible, States, international organizations, including regional integration organizations, and other entities enjoying specific international legal competence in disaster relief assistance are under an obligation to protect the human rights of those persons affected by disasters. To discharge these obligations, States can work more rigorously towards implementing their commitments under the Sendai Framework for Disaster Risk Reduction. The Sendai Framework is the UN’s 15-year plan to reduce disaster risk worldwide. Numerous implementation guides have been developed following multi-stakeholder consultations in order to concretize State action. From developing local national disaster risk reduction strategies to addressing disaster displacement, the guides offer practical guidance and good practice examples. One important recommendation for States is the integration of climate change adaptation, sustainable development and disaster risk reduction policies (UNDRR, ‘Words into Action Guideline: Developing National Disaster Risk Reduction Strategies’, 2019). National adaptation plans can be used as a framework for practical integration, and with the cooperation of all relevant stakeholders, human rights and humanitarian principles can be envisaged as values underpinning this framework.
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