Blog post by Gursimran Bakshi, a penultimate student at the National University of Study and Research in Law, Ranchi.
The nature of any society is exposed at its margins.
Covid-19 highlights global disparity
As the global front is struggling to deal with the unprecedented public health emergency of Covid-19, certain groups such as refugees, stateless persons, and internally displaced persons are in a much more vulnerable condition than ever due to the subversive standard of health related socio-economic protection granted to them. Right to physical and mental health of highest attainable standard is an obligation on member-states under Article 12 of International Covenant on Economic, Social, and Cultural Rights (ICESCR).
The General Comment No.14 on Article 12 of ICESCR observes:
The right to health is not confined to health care and embraces a wide range of socio-economic factors that promote conditions in which people can lead a healthy life, and extends to the underlying determinants of health, such as food and nutrition, housing, access to safe and potable water and adequate sanitation, safe and healthy working conditions, and a healthy environment.
Four essential factors in the realization of the right to health were identified in the comment as: availability, accessibility (includes physical, economic, and information based), acceptability and quality.
Particularly during the last decade, there has been an exponential rise in migration due to climate-change. According to the Global Report on Internal Displacement 2020, around 23.1 million people experienced climate related displacement by the end of 2019. Moreover, the UN rapporteur has observed that climate change threatens to undo the last 50 years of development, global health and poverty reduction.
It is pertinent to note here that degrading climatic conditions are more acutely felt in developing countries where social injustice and economic inequality is exacerbated, often contributing to a situations of lack of infrastructure, wide-spread hunger and displacement. According to a report prepared by UN Special Rapporteur on extreme poverty and human rights, Mr. Philip Alston, it is estimated that more than 120 million people may face ‘climate apartheid’ by 2020. Climate apartheid is a term used to highlight the unequal gaps between the rich and the poor in terms of their realization of socio-economic such as right to health, food, shelter, and water, as well as their ongoing coping mechanisms for climate change.
Amid this pandemic, a large number of persons continue to be forcibly displaced due to climate-induced harms and those crossing international borders often find themselves deprived of the indispensable socio-economic protection as they are not recognized as refugees under the 1951 Convention on the Status of Refugee (Refugee Convention) and thus, lack the socio-legal protection associated with such a status.
In this blog post, I am concerned about the need to grant complementary protection based on international human rights framework to persons displaced due to climate-induced harms. The Covid-19 pandemic denotes the right to health as an irrefutable socio-economic right and without its due realisation, the political and civil rights such as the right to life would not have the same impact. In a situation where political and civil rights are rendered as vulnerable, the need to extend complementary protection becomes necessary. Complementary protection is based on the overarching and basic objective of international human rights framework to redress the failure of state’s protection, and guarantees basic human rights essential for survival.
Climate induced displacement and its implications
According to the latest Climate Change Vulnerability Index (CCVI) released by Verisk Maplecroft, places such as Lagos, Haiti, Kiribati; Yemen, Manila, United Arab Emirates are most vulnerable to climate change. Some common factors attributable to climate change includes the rapidly increasing population, large-scale dependency on natural resources, limited economic and financial capacity, and widespread poverty and hunger. However, in some places these factors are associated to the economic gap between the rich and the poor in the country.
Kiribati has been in limelight because of Ioane Teitoita who in 2015 sought asylum in New Zealand on the grounds of the rise in sea levels and lack of potable water that made his survival difficult on the island. His asylum application was rejected by all domestic courts in New Zealand which led him to challenge the decision before the United Nations Human Rights Committee in 2020. According to his argument, the lack of compliance to the socio-economic rights coupled with severe climatic conditions threatened his right to life (Article 6 of ICCPR). The committee rejected his case and observed that his survival was difficult but not impossible and hence, there was no immediate and imminent threat to his life.
However, the committee made striking observations on the socio-economic rights. According to the committee, the claim for international protection against the climate-induced harm coupled with the lack of adherence to socio-economic rights needs to be imminent and urgent that it essentially hampers the realization of political and civil rights. In the dissenting opinion made by the member of the committee, Duncan Laki Muhumuza observes that the situation in Kiribati remains inconsistent to the right to life with dignity and successful claim against climate-induced harms could be maintained where personal and reasonably foreseeable risk is felt.
Even though Mr Teitoita’s case was rejected, the decision undoubtedly sets a global precedent that a person cannot be sent back to his home country where he might face persecution based on climate-induced harms as his expulsion would invoke the international human rights obligation of a state to prohibit degrading or inhuman treatment. This specific obligation is known as principle of non-refoulement under Article 33 of the Refugee Convention.
Fundamentally, the lack of international protection to climate based migrants is a normative gap of the Refugee Convention. The protection under the Refugee Convention is limited to those persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion. Since, the grounds of protection are limited, many states have extended protection to other categories based on humanitarian grounds (complementary protection) that could bridge the existing gap of the Convention.
Further, it has been recognised that the urgency of socio-economic protection cannot be hampered in the face of political and civil rights. In Soobramoney v. Minister of Health, the constitutional court of South Africa observed that there cannot be fallout of rights under ICESCR due to the mandatory realization of rights under International Covenant on Civil and Political Rights (ICCPR).
Climate change also acts as a catalyst to the suffering of people living in abject poverty in Yemen and other war-torn countries. According to the annual report on global hunger index, climate change seeks to jeopardize food security and production at an alarming rate in Central African Republic, Yemen, Chad, Madagascar, and Zambia. Last year more than 1.6 million people were displaced in Mozambique after the country was hit by cyclone Idai. It is one of the poorest countries in the world and has a history of severe droughts, pandemic, and slavery.
The above-mentioned examples are mostly of persons displaced within the country and require national protection. However, often such situations trigger cross-border movement for instance, the case of Mr Teitoita is essentially a case of breakdown of national protection that forced him to seek international protection as an asylum-seeker. It is the inability and unwillingness of the government to grant them protection that leads to a situation of cross-border migration and thus the need of complementary protection arises.
Mitigating climate induced displacement through Complementary Protection
Complementary protection draws its significance from the extraterritoriality of the non-refoulement obligation under the Refugee Convention. It was recognized through a European Directive that was superseded as the Directive on the Standards for the Nationals from the Third Country or Stateless to be Granted International Protection Status and the Unified Status and Protection to Refugees or People Endowed with Complementary Protection in 2011.
Complementary protection aims to fulfill the lex generalis (general law) obligation of international human right and acts as a bridge that connects International Law on refugees, International Law on migration and International Human Rights. It has been recognised as ‘subsidiary protection’ in European Union, and ‘persons in need of protection’ in Canada’s Immigration and Refugee Act 2002 under Section 95(1) (b) of the act. Moreover, New Zealand in 2017 announced that it would extent international protection to Pacific Islanders through an experimental humanitarian visa and such a system was also introduced for the first time by Brazil in 2012. On the other hand, US has extended a temporary refugee status scheme to those displaced by an environmental disaster or epidemic.
The development has been a result of the customary principle of non-refoulement and the obligations ‘Erga Omnes’ that is universal to all the states. Non-refoulement is a jus cogens norm and acts as a lex specialis (specific law that overrides a general law in situation of conflict between the two) in the context of International Refugee Law whereas it reaffirms the protection function of international human rights framework as a lex generalis to not expel vulnerable persons from a state.
Complementary protection thus acts a bridge that reduces the normative gap of the Refugee Convention. But it is important to understand that this kind of protection is not a mandatory obligation on the part of state. As noted, much of climate displacement remains predominantly within the country and thus the need of complementary protection does not arise. But due to the inability and unwillingness of the government to extend socio-economic protection as basic as housing, food, and clean water the situation can result cross-border migration. At the same time, states that are able to provide protection are often not concerned with the standard of protection. The standard of protection must be for a survival with dignity.
While some have highlighted concern that increasing the scope of complementary protection might open floodgate of claims based on different grounds to seek international protection such those based on generalised violence, this argument has been countered by the scholar B.S Chimni on the Third World Approaches to International Law. He observes that not every socio-economic violation would lead to a successful asylum claim or humanitarian visa as the applicant has to go through process similar to the Refugee Status Determination procedure.
The challenge at this moment is the growing rate of displacement as according to the World Bank Report, climate-based displacement could reach to one billion by 2050, many of whom may seek international protection. This brings us to the debate of universality of human rights in the international communities for the reasons that political and civil rights require mandatory realisation whereas socio-economic rights are based on progressive realisation of states. Because of this difference, often states do not place enough emphasis on securing socio-economic rights.
Covid-19 brings with itself the possibility of a global recession that would threaten employment, food security, health care systems and much more. Alongside the right to health, the implications of which are very apparent in the current situation, food security remains one of the most important socio-economic rights. The World Food Programme suggests that due to the the fallout from the Covid-19 pandemic, we may see more than 265 million people on the brink of starvation.
Persons displaced due to climate and environmental reasons often first migrate within their state and are in dire need of socio-economic protection, however a failure to secure such rights can see the movement move across borders, with the individuals seeking international protection. In the absence of a protection framework responsive to climate-based displacement, states tend to repatriate these groups of persons as happened in the case of Ioane Teitoita. However, many states are now willing to offer protection and adopt the complementary mechanism often in a form of humanitarian visa or temporal refuge that guarantees protection of essential socio-economic right from the perspective of international human rights framework.
Indeed the future holds the possibility of successful claims against climate-based persecution but the threshold of such violations would be rather collective considering the gravity of the situation and the reasonable threat it indicates. Until then, burden-sharing, collective responsibility and building resilience in a form of complementary protection would be the need of an hour.
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