ll.m. final thesis in natural resources and international ... · ll.m. final thesis in natural...
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LL.M. Final Thesis
in Natural Resources and International Environmental Law
Environmentally displaced persons at the crossroads of environmental,
human rights, asylum and economic law
A European perspective for a future framework
Christina Ninfa Daszkiewicz
Supervisor: Maria Elvira Méndez Pinedo
October 2018
2
Contents
Contents ....................................................................................................................................................1
Abstract ....................................................................................................................................................6
Acknowledgments ....................................................................................................................................7
Abbreviations ...........................................................................................................................................8
1. Introduction ..........................................................................................................................................9
1.1 Historical, geopolitical and philosophical approach ..................................................................10
1.1.1 Historical approach to environment and migration ............................................. 10
1.1.2 Anthropocene and EDP ........................................................................................ 11
1.1.3 Environmental justice, global justice and EDP .................................................... 12
1.2. Objective, Scope, Relevance and Limits of the Research Project .............................................12
1.2.1 Objective .............................................................................................................. 13
1.2.2 Scope and limits of EDP ...................................................................................... 13
1.2.3 Fields of law ......................................................................................................... 14
1.2.4 Relevance and danger of an EU perspective ........................................................ 14
1.3 Methodology, sources and structure ...........................................................................................15
1.3.1 Methodology ........................................................................................................ 15
1.3.2 Sources ................................................................................................................. 16
1.3.3 Structure ............................................................................................................... 16
2. The definition barrier of EDP .............................................................................................................19
2.1. Are there EDP? Minimalist and maximalist approach ..............................................................19
2.1.1 Maximalist approach ............................................................................................ 19
2.1.1.1. Definition of maximalist ...........................................................................................20
2.1.1.2 Popularisation of alarmist numbers ............................................................................20
2.1.1.2.1 Popularisation of EDP for environmental funding ...............................................20
2.1.1.2.2 Popularity of EDP through the media ..................................................................21
2.1.2. Minimalist approach ........................................................................................... 21
2.1.2.1 Definition of minimalism ...........................................................................................21
2.1.2.2 Lack of diffusion of minimalism approach ................................................................21
2.2 Who is an EDP? Difficulties of identification ............................................................................22
2.2.1 Diversity of climate change factors ..................................................................... 22
2.2.1.1 Rapid-onset events .....................................................................................................22
2.2.1.2. Slow-onset events .....................................................................................................23
2.2.2. Distinctive migration parameters under EDP ..................................................... 23
3
2.2.2.1 Temporal parameter: long-term and short-term migration .........................................24
2.2.2.2 Geographical parameter: internal or international displacement ...............................24
2.2.2.3 Duress parameter: forced and voluntary migration ....................................................24
2.2.3. Vulnerability and adaptation ............................................................................... 24
2.2.3.1 Vulnerability...............................................................................................................25
2.2.3.2 Adaptive capacity and resilience ................................................................................25
2.3 What terminology? Research of an appropriate legal term ........................................................26
2.3.1. Climate or environmental refugees ..................................................................... 27
2.3.2. Environmental migration and environmentally displaced persons ..................... 28
2.4 EU and research on EDP ............................................................................................................29
2.4.1 EACH-FOR .......................................................................................................... 30
2.4.2 The Nansen Initiative ........................................................................................... 30
2.4.3 COST IS1101 ....................................................................................................... 31
2.4.4 MECLEP .............................................................................................................. 31
2.5 Conclusion ..................................................................................................................................31
3. Environmental law approach to the EDP ...........................................................................................33
3.1. EU’s international cooperation in the environmental field and the EDP ..................................34
3.1.1. TFEU and the worldwide environment ............................................................... 34
3.1.1.1 Codification of the protection of worldwide environment as an objective of the EU 34
3.1.1.2 Shared competence in international environmental cooperation ...............................34
3.1.2. Global responsibility founded on moral hazardous behaviour ........................... 36
3.1.3. Global responsibility founded on international environmental leadership ......... 37
3.2 Institutionalisation of EDP in the international environmental field ..........................................37
3.2.1. Absence of EDP in the mitigation phase ............................................................. 38
3.2.2 Appearance of the EDP in the adaptation phase .................................................. 39
3.2.3 Institutionalisation of EDP in the development of loss and damage ................... 40
3.2.3.1 Loss and damage based on the limits of adaptation ...................................................40
3.2.3.2 The Task Force on Displacement under the Warsaw International Mechanism on
Loss and Damage ...................................................................................................................41
3.2.3.3 EDP and liability: sensitive loss and damage elements in the Paris Agreement ........43
3.3 Principles of EU environmental law as a potential basis for the EDP .......................................44
3.3.1 Polluter Pays Principle ......................................................................................... 44
3.3.1.1 Ex post obligation ......................................................................................................45
3.3.1.2 Global insurance scheme ...........................................................................................45
3.3.2 Precautionary principle ........................................................................................ 46
4
3.3.2.1 Element of uncertainty ...............................................................................................46
3.3.2.2 Human aspect .............................................................................................................47
3.3.2.3 Territorial jurisdiction ................................................................................................47
3.3.3 No-harm principle ................................................................................................ 48
3.4. Conclusion .................................................................................................................................49
4. European Human Rights approach to EDP ........................................................................................51
4.1 Preliminary remarks on the EU and international human rights bodies of texts ........................51
4.1.1 International human rights bodies of texts and the EU ........................................ 52
4.1.1.1 International human rights treaties and institutions ...................................................52
4.1.1.2 The ECHR and the EU ...............................................................................................53
4.1.1.2.1 The ECHR in the EU after Lisbon .......................................................................53
4.1.1.2.2 The dynamic interpretation of the EctHR in favour of EDP? ..............................54
4.1.2 Human rights and climate change ........................................................................ 55
4.1.2.1 Human rights and climate change at the international level ......................................55
4.1.2.2 Human rights and climate change at the EU level .....................................................56
4.2 Advantages in using a human rights approach ...........................................................................57
4.2.1 The element of universality .................................................................................. 57
4.2.1.1 Foundation of universality .........................................................................................57
4.2.1.2 ECtHR treatment of non-nationals' rights ..................................................................58
4.2.1.3 EU treatment of non-nationals’ rights ........................................................................59
4.2.2. The element of extraterritoriality ........................................................................ 60
4.2.2.1 Tension between concepts of extra-territoriality and jurisdiction ..............................61
4.2.2.1.1 Jurisdiction clauses in human rights treaties ........................................................61
4.2.2.1.2 Different types of interaction between extra-territoriality and jurisdiction .........62
4.2.2.2 Institutional and jurisprudential approach ..................................................................63
4.2.2.2.1 EU and extra-territorial jurisdiction .....................................................................63
4.2.2.2.2 EctHR and ICJ on extraterritoriality ....................................................................64
4.2.3. The element of duty ............................................................................................ 65
4.2.3.1 The obligation to respect ............................................................................................66
4.2.3.2 The obligation to protect and fulfil ............................................................................66
4.3 Examples of human rights to found an EDP protection .............................................................67
4.3.1 The importance of political rights in EDP: the case of participatory rights ........ 68
4.3.2 Rights and principles that could constitute the foundation of entry .................... 68
4.3.2.1 Right to an adequate standard of living......................................................................69
4.3.2.2 Rights triggering the principle of non-refoulement ...................................................70
4.4 Conclusion ..................................................................................................................................70
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5. European asylum law approach ..........................................................................................................72
5.1 Geneva Convention and EDP .....................................................................................................72
5.1.1 Geneva Convention and the EU ........................................................................... 72
5.1.1.1 Geneva Convention in the EU Treaties ......................................................................73
5.1.1.2 Geneva Convention according to the CJEU...............................................................73
5.1.2 EDP facing the Geneva Convention .................................................................... 74
5.1.2.1 A protocol to the Geneva Convention? ......................................................................74
5.2 Alternative forms of protection in EU law .................................................................................75
5.2.1 Evolution of EU's institutional competence in asylum policy ............................. 75
5.2.2. Temporary Protection Directive .......................................................................... 76
5.2.2.1 Temporary protection .................................................................................................76
5.2.2.2 Eligible displaced person ...........................................................................................77
5.2.2.3 Mass influx condition ................................................................................................78
5.2.2.4 An equitable burden sharing system ..........................................................................79
5.2.2.5 Non-implementation of the Temporary Protection Directive.....................................79
5.2.3. Qualification Directive ........................................................................................ 81
5.2.3.1 Subsidiary protection or complimentary protection? .................................................82
5.2.3.2 Conditions of application ...........................................................................................83
5.2.3.2.1 Presumption of a safe and democratic EU ...........................................................84
5.2.3.2.2 Eligible beneficiaries of subsidiary protection .....................................................85
5.2.3.2.3 Serious harm ........................................................................................................86
5.2.3.2.4 Actors of persecution ...........................................................................................86
5.2.2.2.5 Actors of protection..............................................................................................87
5.2.3.2.6 Internal protection alternative ..............................................................................88
5.2.3.3 International theory application .................................................................................89
5.2.3.4 National transposition ................................................................................................90
5.3 Examples of possible EDP asylum protection: a national and international perspective ...........91
5.3.1. EDP in express EU national provisions .............................................................. 91
5.3.1.1 The temporally limited Swedish Aliens Act ...............................................................91
5.3.1.2 The Finnish Aliens act and its two regimes of protection ..........................................92
5.3.1.3 Italy’s temporary protection due to natural disasters .................................................93
5.3.2. Environmental provisions in hypothetical interpretations of national law ......... 93
5.3.3. Examples of other regional instruments.............................................................. 94
5.4 Conclusion ..................................................................................................................................95
6. Economic law and labour migration approach ...................................................................................97
6.1 EDP as adaptation strategy .........................................................................................................98
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6.2 WTO, human rights and labour standards ..................................................................................99
6.2.1 Evolution of WTO's function ............................................................................... 99
6.2.2 Interaction of WTO with human rights ................................................................ 99
6.2.2.1 Difference of nature of WTO rights: the case of the principle of non-discrimination99
6.2.2.2 Human rights frame of WTO and principle of due diligence ...................................100
6.2.2.3 Human rights and labour standards in WTO ............................................................101
6.3. EU and the process of integration of human rights and the environment in
international economic law ......................................................................................... 101
6.3.1 EU's external trade policy: influence of a global actor ...................................... 101
6.3.1.1 EU as a global trade leader ......................................................................................101
6.3.1.2 EU's influence on global trade regulations ..............................................................102
6.3.2 EU, promoter of international legal migration ................................................... 103
6.3.2.1 South-EU migration as EDP framework ..................................................................103
6.3.2.2 Promoting south-south migration by supporting regional agreements ....................103
6.4. Involvement of the private sector in an EU EDP framework ..................................................104
6.5. Conclusion ...............................................................................................................................105
7
Abstract
Environmentally displaced persons are often considered to be the human price of climate
change. This situation calls for legal protection, based on human rights and global security
concerns. This thesis focuses on the European Union’s possible legal contribution regarding
environmentally displaced persons. The subject itself raises difficulties as firstly, it is hard to
identify the link between climate change and migration patterns. This form of displacement is
not exclusively due to climate change impact. It also constitutes a response to a more
structural problem, based on global (economic) inequalities. Secondly, there are challenges
regarding the scope of the identification of the category, due to the diversity of people affected
(migration can be long-term or short-term, internal or involves crossing borders, etc.); and
thirdly, there are no agreements in the research community on the particular term to use for
this category of people, as every denomination carries different legal implications. However,
these difficulties should not be used as an excuse not to articulate a legal framework for
environmentally displaced persons.
Within the European legal landscape, there is no express legislation concerning
environmentally displaced persons. This research aims at identifying the different legal tools
in European law that could be used to establish a European legal framework for
environmentally displaced persons. Environmentally displaced persons are at the crossroad of
multiple fields of law. The literature pointed out that the fragmentation of law hindered the
foundation of a framework for environmentally displaced persons. Therefore, this thesis puts
in perspective several fields of law fundamental to this subject: environmental law, human
rights law, asylum law and economic law in relation with labour migration. Each one of these
fields has tools which would prove useful, if not used in isolation. The combination of legal
principles from different fields of law would therefore constitute a stronger foundation for
such a framework.
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Acknowledgments
This thesis is dedicated to my parents: a refugee and a migrant who found a home in Europe.
I would like to thank my supervisor, Maria Elvira Méndez Pinedo, for her support during
the drafting of this thesis. I also would like to express my sincere gratitude to Alexander
Dobeson, Johannes Müllerlei and Jack Threlfall Hartley for thoroughly and passionately
proofreading and commenting on this text. More generally, I am greatly indebted to all my
friends for the kindness and support they showed during the writing process of this thesis.
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Abbreviations
AWG-LCA Ad Hoc Working Group on Long-term
Cooperative Action
CJEU Court of Justice of the European Union
COP Conference of Parties
EACH-FOR Environmental Change and Forced
Migration Scenarios
ECHR European Convention of Human Rights
EctHR European Court of Human Rights
ECOWAS Economic Community of West-African
States
EDP Environmentally Displaced Persons
EU European Union
TEC Treaty Establishing the European
Community
TEU Treaty on European Union
TFEU Treaty on the Functioning of the European
Union
MECLEP Migration, Environment and Climate
Change: Evidence for Policy
NGO Non-governmental organizations
UN United Nations
UNFCCC United Nations Framework Convention on
Climate Change
WTO World Trade Organization
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1. Introduction
In November 2017, the Guardian published an article entitled “Climate change ‘will create
world's biggest refugee crisis’”.1 A month later, another article shouted ‘Devastating climate
change could lead to 1m migrants a year entering EU by 2100’.2 This is only a late echo of the
Intergovernmental Panel on Climate Change warning from 1990, stating that ‘the gravest
effects of climate change may be those on human migration as millions are displaced by
shoreline erosion, coastal flooding and severe drought’.3
27.8 million people were displaced by conflict, violence and disasters in 2015. Disasters
alone displaced circa 19.2 million people across 113 countries in 2015, according to the
Internal Displacement Monitoring Centre. The number of environmentally displaced persons
(EDP) is more than twice the number of people who were displaced due to conflict and
violence.4 However, this number only includes EDP displaced internally – meaning within the
borders of a country – and those whose displacement is due to rapid-onset events, meaning
disasters. EDP whose displacement crosses international borders and is due to slow-onset
environmental degradation is hard to record. The impact of this migration on the EU cannot
be estimated either. Nonetheless, the lack of precise estimation should not be an excuse not to
consider it as a legal issue, EDP protection is essential for human rights and global security. It
raises a challenge regarding a wide range of legal principles, which are considered throughout
this thesis. The aim of this thesis is to identify the different EU legal instruments that could be
used to establish an EU legal framework for EDP.
This introduction presents firstly, a historical, geopolitical and philosophical approach to
the environment and migration (1.1); secondly, the scope, limits and relevance of an EU
approach to an EDP legal framework (1.2.); and thirdly, the methodology, sources and
structure of the present thesis (1.3).
1Matthew Taylor, ‘Climate change 'will create world's biggest refugee crisis'’ The Guardian (London, 2
November 2017) <https://www.theguardian.com/environment/2017/nov/02/climate-change-will-create-worlds-
biggest-refugee-crisis> accessed 30 April 2018. 2Fiona Harvey, ‘Devastating climate change could lead to 1m migrants a year entering EU by 2100’ The
Guardian (London, 21 December 2017) <https://www.theguardian.com/environment/2017/dec/21/devastating-
climate-change-could-see-one-million-migrants-a-year-entering-eu-by-2100> accessed 30 April 2018. Although
this thesis adopts an EU perspective, the subject is also relevant to Iceland, as the country is part of the Schengen
Area. 3 Intergovernmental Panel on Climate Change, ‘Policymakers' Summary of the Potential Impacts of Climate
Change’ (Report from Working Group II to the Intergovernmental Panel on climate Change, Australia, 1990) 20. 4Internal Displacement Monitoring Centre, ‘Annual Report 2016’ (Geneva, September 2017)
<http://www.internal-displacement.org/assets/publications/2017/201709-annual-report-2016.pdf > 9.
11
1.1 Historical, geopolitical and philosophical approach
As presented in the historical approach to the environment and migration (1.1.1), the impact
of the environment on migration patterns is nothing new. However, the reason why EDP
constitute a new legal challenge – and even more for the EU - because this issue occurs in an
era which scholars refer to as the Anthropocene (1.1.2), therefore raising questions of
environmental and global justice (1.1.3).
1.1.1 Historical approach to environment and migration
The first theories on migration were elaborated at the end of the 19th century. These first
theories took environmental conditions as factors in migration into account. However, the
environmental factor soon disappeared from these studies. It was only reintroduced to
migration studies in the 1990s.5
Nevertheless, many tales of migration, displacement or exodus due to natural disasters
have been recounted since Antiquity. For instance, take the case of the north coast of Peru,
cradle of the Moche civilisation since the 2nd century. In the 7th century, climate fluctuations
and torrential rains due to El Niño contributed to the end of this civilisation: thousands of
people starved to death and the rest of the affected population migrated to safer areas.6 To take
an example from a different time and continent, Voltaire described in Candide the infamous
earthquake that destroyed Lisbon in 1755: a natural disaster that provoked a well-documented
population displacement. Another famous example can be found in John Steinbeck's The
Grapes of Wrath. He describes the long exodus towards the west, of farmers from Oklahoma,
Texas and Arkansas, during the Dirty Thirties. During this period, strong dust storms,
alongside severe waves of drought damaged the ecology and agriculture of northern American
prairies. Migration has always been a response to environmental changes affecting
livelihood.7 And this is also for case for seasonal environmental changes. Migration as a
response to environmental change has therefore traditional components. In this context, it is
5Dina Ionesco, Daria Mokhnacheva and François Gemenne, The Atlas of Environmental Migration (Routledge
2017) 2. 6‘El dramático final de la civilización Mochica’ National Geographic España (Madrid, 14 November 2012)
<http://www.nationalgeographic.com.es/historia/grandes-reportajes/el-dramatico-final-de-la-civilizacion-
mochica_6641/4> accessed 30 April 2018. 7International Centre for Migration Policy Development, ‘'Climate Refugees' Legal and policy responses to
environmentally induced migration’ (Study requested by the European Parliament, Directorate General for
internal policies, Policy Department C: Citizens' rights and constitutional affairs, civil liberties, justice and home
affairs, Brussels, 2011) <http://www.europarl.europa.eu/RegData/etudes/etudes/join/2011/462422/IPOL-
LIBE_ET(2011)462422_EN.pdf> accessed 30 April 2018, 22.
12
part of the ‘normal societal process’8, rather than an exception. However, climate change
seems on the one hand, to contribute to wider population displacement; and on the other hand,
to disrupt traditional migrations. For instance, in Sahel, the alteration of rainy seasons and the
intensification of drought affect the traditional migration and route of nomadic pastoralists.9
As the historian Berlioz stated: ‘to understand a disaster, it has to be put back in its social,
economic, and political context’.10
This contextualisation is therefore necessary to understand
the climate change impact on migration.
1.1.2 Anthropocene and EDP
Many geologists and historians consider that we have now entered the era of the
Anthropocene. The Anthropocene can be defined as a new geological epoch, where people do
not adapt anymore to the geology of their surroundings but are the major force of
transformation on the planet. Climate change is part of the Anthropocene, and EDP became a
symptom of it.11
In this context, EDP have also been called ‘Refugees of the Anthropocene’.12
However, rather than being the era of men, the Anthropocene represents the era of a few
men.13
This statement presumes that the responsibility of climate change relies on the
polluting activities of a minority of men and companies. Gemenne points out that while only
few men became the main actors of the Earth´s transformation, many people become victims
of these transformations.14
This raises questions about climate change responsibility and
therefore, environmental justice regarding EDP.
8Silja Klepp, ‘Climate Change and Migration’ (Oxford Research Encyclopaedias, April 2017)
<http://climatescience.oxfordre.com/view/10.1093/acrefore/9780190228620.001.0001/acrefore-9780190228620-
e-42> accessed 26 April 2018. 9Ionesco, Mokhnacheva and Gemenne (n 5) 72.
10In original in French: ‘Pour comprendre une catastrophe, il faut la replacer dans son contexte social,
économique, politique’ from Jacques Berlioz, ‘Les lendemains des catastrophes naturelles au Moyen Âge. Actes
du 16ème colloque de la Villa Kérylos à Beaulieu-sur-Mer les 14 & 15 octobre 2005’ (2006) 17 Cahiers de la
Villa Kérylos 165, 166. 11
Giovanni Bettini, ‘(Climate) Migration as Symptom in the Anthropocene Home (Climate) Migration as
Symptom in the Anthropocene’ (School of Geosciences of the University of Edinburgh, January 2018)
<https://www.ed.ac.uk/geosciences/news/events-and-seminars/2018-01-25t160000-2018-01-25t173000/climate-
migration-symptom-anthropocene> accessed 30 April 2018. 12
François Gemenne, ‘Chapter 18: The refugees of the Anthropocene’ in Benoît Mayer and François Crépeau
(eds), Research Handbook on Climate Change, Migration and the Law (Edward Elgar Publishing 2017) 394. 13
François Gemmene, ‘The Anthropocene and its Victims’ in Clive Hamilton, François Gemenne and Christophe
Bonneuil (eds), The Anthropocene and the Global Environmental Crisis: Rethinking modernity in a new epoch
(Routledge 2015) 170. 14
ibid.
13
1.1.3 Environmental justice, global justice and EDP
The historical responsibility, alongside the unequal process of development between
developed and developing countries, can constitute a first foundation of environmental justice.
Environmental justice has many debatable definitions. It can nonetheless be defined as the
equitable distribution of environmental goods15
and prevention of disproportionate burdens
imposed by harmful environmental conditions. According to Caney, there are two different
ways to think about climate justice. Climate justice can be conceptualised as Burden-Sharing
Justice or Harm-Avoidance Justice.16
The first approach founds climate justice action on the
culpability of states regarding climate change. The second approach bases climate justice
action on the probable consequences of climate change itself. While the two approaches could
coexist, Caney urges to mainly adopt an understanding of climate justice as Harm-Avoidance
Justice, to make sure that the goal is achieved.
EDP are deprived of environmental goods and live a disproportionate burden due to
environmental conditions. This unequitable distribution of goods in terms of costs and
benefits constitute an injustice, according to Rawls' definition of justice.17
Firstly, the
displacement itself creates inequalities, such as loss of property, home, means of subsistence,
community networks, work, etc. Secondly, this creation of inequalities is itself based on an
unequal economic system. The lack of adequate legal structures, environmental policies, and
sanctions participates in this impoverishment of affected populations. This environmental
injustice is therefore closely linked to the global economic, political system and power
structure.18
It is fundamental to acknowledge the role of global inequality in this process.
Mota Borges asks if these global inequalities are not the foundation for the obligations of
states to grant legal protection to those EDP, in particular those who cross borders.19
1.2. Objective, Scope, Relevance and Limits of the Research Project
This section firstly presents the objective of this research project (1.2.1). The scope and limits
15
Helen Kopnina and Eleanor Shoreman-Ouimet, ‘Introduction: Environmental Anthropology of Today and
Tomorrow’ in Helen Kopnina and Eleanor Shoreman-Ouimet (eds), Environmental Anthropology: Future
Directions (Routledge 2013) 3. 16
Simon Caney, ‘Two kinds of climate justice: avoiding harm and sharing burdens’ (2014) 22 Journal of Political
Philosophy 125, 125-126. 17
Mota Borges offers an analysis of EDP in relation with Rawls' definition of justice, defined as an equitable
distribution of goods in terms of costs and benefits, according to Rawls's definition of Justice. Isabel Mota
Borges I, ‘Environmental Displacement and John Rawls' ‘General Conception’ of Justice’ (2016) 9
Environmental Justice 77, 78. 18
ibid 79. 19
ibid 81.
14
of this research project are mainly determined by the EDP subject (1.2.2). The subject touches
a wide range of fields of law (1.2.3), and this is where both the relevance and danger of an EU
perspective (1.2.4) lies.
1.2.1 Objective
This research aims at identifying the different legal tools in EU law that could be used to
establish an EU legal framework for EDP. This EU legal framework is orientated towards the
protection of EDP, once the displacement has already happened. The protection in this thesis
is considered on two different levels: firstly, as a right of entry in the EU, and secondly, as a
structural protection giving right to a displacement. The EU could therefore create safe legal
channels for migration.20
Based on this understanding of protection, the research question is
the following: what legal instruments or principles can constitute a foundation for EU
obligations regarding EDP protection?
Important gaps regarding EDP have been acknowledged by the literature. This task is like
the study of a fishnet. If we consider a fishnet as holes held together by strings, this thesis
focuses on the strings rather than the holes.
1.2.2 Scope and limits of EDP
The definition and delimitation of EDP is a debatable subject, further discussed in this thesis.
Nonetheless, for practical research purposes in this thesis, EDP has been limited to
international crossing-borders migration and long-term displacement.
Research shows that EDP mainly occurs within national borders. When EDP happens
within national borders, the obligations of states are clearer and clarified by relevant soft law
instruments and guidelines. The Guiding Principles on Internal Displacement21
and the Inter-
Agency Standing Committee Operational Guidelines on the Protection of Persons in
Situations of Natural Disasters22
are part of these instruments. However, when EDP cross
international borders, the foundation of state’s obligations regarding their protection is not
clearly determined anymore. Hence the need of further research regarding EDP crossing
international borders.
20
MECLEP Infographics on Migration as Adaptation to Environmental and Climate Change (Environmental
Migration Portal) <http://www.environmentalmigration.International Organization for Migration.int/infographics>
accessed 30 April 2018. 21
UN High Commissioner for Refugees, Guiding Principles on Internal Displacement [1998] ADM 1.1,PRL 12.1,
PR00/98/109. 22
Brookings-Bern Project on Internal Displacement, Inter-Agency Standing Committee Operational Guidelines
on the Protection of persons in Situations of Natural Disaster (2011).
15
More literature can be found on short-term EDP, than long-term slow-onset EDP.
Nonetheless, EDPs cannot be reduced to victims of climate change in need of humanitarian
aid.23
It is the reason why the focus of the thesis is mainly on long-term slow-onset EDP, and
fields of law such as disaster management and humanitarian law are excluded here.
1.2.3 Fields of law
EDP are at the crossroad of multiple fields of law. Cournil identified four specific areas of law
concerned: human rights law; refugee and internally displaced persons law; environmental
law; and humanitarian law along with the law of the protection of persons in the event of
disasters.24
This thesis excludes the analysis of disaster management and humanitarian law, as
justified in the previous sub-section. Nonetheless, it puts in perspective several fields of law
fundamental to this subject: environmental law, human rights law, asylum law and also labour
migration law. Despite the rather different fields of law researched, each one of these fields
has tools, which would prove useful, if not used in isolation. The combination of legal
principles from different fields of law would constitute a stronger foundation for an EDP EU
framework. It is the first time that all these fields are analysed in the same research in
connection with EDP, as usually labour migration law is not considered.
1.2.4 Relevance and danger of an EU perspective
In the 2008 draft report of the Parliamentary Assembly of the Council of Europe (PACE)
called ‘The problem of environmental refugees’, Ducarme urged Europe to be a pioneer
regarding EDP.25
He justifies his position arguing that the consistency of the EU framework is
ready to welcome this issue. The EU is a global policy leader, in the human rights field as
much as in the environmental law field. It promotes legal principles internally and externally
that could turn out to be useful for an EU EDP framework.
Nonetheless, a larger international support than the EU is necessary to implement
solutions, as EDP is an international matter. The EU shall develop relations and build
partnerships with third countries and international organisations, and promote multilateral
23
Shweta Jayawardhan, ‘Vulnerability and Climate Change Induced Human Displacement’ (2017) 17
Consilience: The Journal of Sustainable Development 103,134. 24
Christel Cournil, ‘Migrants Environnementaux: Circulation des normes et réseaux d'acteurs de la gouvernance’
in Christel Cournil and Chloé Vlassopoulos (eds), Mobilité humaine et environnement: Du global au local (Quae
2015)13. 25
Aurélie Sgro, ‘Towards recognition of environmental refugees by the European Union’ (2008) 6 REVUE
Asylon(s) <http://www.reseau-terra.eu/article844.html> accessed 30 April 2018.
16
solutions, as stated in article 21 TEU. Furthermore, the EU has proven to be in favour of
transnational legal solutions and breaking down borders.26
This, however, can raise issues of imperialism.27
On the one hand, article 21 TEU sets the
cooperation with those countries and organisations which share similar principles to the EU.
Promoting EU values through cooperation can be interpreted as missionary.28
On the other
hand, an EU legal framework for EDP can presume control over non-subjects29
of the EU
legal order. Not to fall into this pit, EU law should not be considered as an isolated system,
but rather alongside international law.
1.3 Methodology, sources and structure
This section presents the methodology (1.3.1), sources (1.3.2), and structure (1.3.3) of the
present research.
1.3.1 Methodology
This research uses different kinds of methodology: it uses descriptive, analytical and
conceptual methodologies, but is also an applied research.30
Firstly, it is an applied research as
it aims at finding hints of solutions to an immediate problem. It is a research on law in context,
as it considers the case of crossing-border migration in relation to climate change. For this
reason, this research is also interdisciplinary and uses sociological publications as sources.
Secondly, this research describes the current state of EDP regarding different legal
instruments. It aims at detecting EDP in legal agreements, treaties and jurisprudence.
However, EDP is mainly absent from the EU positive legal landscape. This is why the
analytical and conceptual research are fundamental here. On the one hand, the analytical
approach provides a critical evaluation of the material in relation with the new legal challenge
that is EDP. This leads to a re-evaluation of this legal material. On the other hand, the
conceptual methodology enables reinterpretation legal concepts and principles for a better
integration of EDP in an EU legal framework.
The analysis of the relevant EU legal framework in relation with EDP can take different
forms. A first method would be analysing the different legal instruments and organising them
26
Aravind Ganesh, ‘The European Union's Human Rights Obligations towards Distant Strangers’ (2016) 37
Mich. J. Int'l L. 475, 535. 27
ibid 531. 28
ibid 531. 29
ibid 535. 30
Paul Chynoweth, ‘Legal research’ in Andrew Knight and Les Ruddock (eds), Advanced Research Methods in
the Built Environment (Blackwell 2008) 30-31.
17
according to the different steps of the regulation of EDP. The regulation of EDP can be
divided according to prevention, assistance, protection and resettlement. A second way would
analysing their relevance and organising them based on the different kind of EDP. However,
the lack, on the one hand, of a homogenous framework and on the other hand, of a clear
definition of EDP make these two first methods of analysis and organisation unsteady and
artificial.
This is the reason why the present thesis analyses and organises the relevant framework in
a third way: according to the relevant fields of law. The relevant fields chosen are
environmental law, human rights law, asylum law and labour migration law. Each field of law
is considered as a unit in each chapter: this constitutes a fragmented approach. However,
fragmentation of law hinders the foundation of an EDP framework. Therefore, an isolated
approach is inadequate. This is why, inside each chapter, there are references to the other
fields of law, to link them together.
1.3.2 Sources
This thesis uses different sources of law: doctrine, directives, treaties and jurisprudence. EDP
is not explicitly mentioned in any legislation of the EU internal system. This has two
consequences regarding the sources used. Firstly, EDP rationales are researched in the
legislation and policies. Secondly, this thesis mainly relies on doctrinal analysis, rather than
legislation.
1.3.3 Structure
This research is divided into six parts. The present introduction constitutes the first part of the
thesis. The second part of this thesis presents the vivid debate on the categorisation and
terminology of EDP. This part comprises the emergence of the concept, the context of its
spread, the difficulty of a definition due to the diversity of what the concept covers and the
debate between maximalists and minimalists regarding the reality (mis)represented by the
concept. The understanding of this sociological debate and context is of primal importance as
it holds consequences in the legal field, for example regarding the legal terminology of the
category. Surprisingly, a majority of policymakers and legal academics adopted an alarmist
perspective.
The third part presents an analysis of the international and European environmental legal
instruments. The international scene favours the environmental law forum to discuss EDP.
EDP slowly became part of official international legal negotiations through the Conference of
18
Parties (COP). This part analysis this gradual international evolution and acknowledges that
there is little EDP talk on environmental law grounds within the EU. Nonetheless, this part
also looks at EU principles of environmental law. The aim of the conceptual analysis of these
principles is to find a foundation for EU obligation to protect EDP. The analysis of these
principles show to be more relevant and stronger when considered along with principles of
European human rights law and refugee law.
The fourth part deals with the international and European human rights instruments. As
opposed to environmental law, human rights treaties contain vertical obligations, meaning
between state and citizens, rather than just between states. Does this make it a more suitable
instrument to found an EU EDP framework? Firstly, this part analyses features inherent to a
human rights-based system that make it a valuable instrument for EDP protection. Secondly,
this part considers rights that could virtually be the foundation for an EU protection.
Nonetheless, human rights law does not have any specific provision for EDP. Exclusively
relying on a human right would fail to found a framework for EDP. However, the existing
human rights and obligations prove to be in theory relevant instruments in the context of EDP.
The fifth part is about the international and European refugee law. This field draws the
most attention in the literature in relation with EDP. This part considers protection under the
Geneva Convention31
and the EU alternative system of protection for asylum seekers who do
not fall under the Geneva Convention. The Temporary Protection Directive32
and the
Qualification Directive33
set these alternative protections. None of them refers directly to EDP
or environmental threats, but they offer broader grounds to apply for protection than the
restrictive persecution of the refugee definition.
The sixth part of this thesis presents the international and European economic law and
labour migration approach. There is little legal literature including labour migration as a pillar
of analysis for an EU EDP framework, compared to the previous approaches. The labour
migration law approach is the position currently held by EU policy makers on EDP. This part
also acknowledges the change occurring in the international landscape regarding governance.
31
UN General Assembly, Convention Relating to the Status of Refugees [1951] (the Geneva Convention). 32
Council Directive (EC) 2001/55/EC of 20 July 2001 on minimum standards for giving temporary protection in
the event of a mass influx of displaced persons and on measures promoting a balance of efforts between Member
States in receiving such persons and bearing the consequences thereof [2001] OJ L 212 (the Temporary
Directive). 33
Council Directive (EC) 2004/83/EC of 29 April 2004 on minimum standards for the qualification and status of
third country nationals or stateless persons as refugees or as persons who otherwise need international protection
and the content of the protection granted [2004] OJ L 304/12 (the Qualification Directive); Council Directive
(EC) 2011/95/EU on standards for the qualification of third-country nationals or stateless persons as
beneficiaries of international protection, for a uniform status for refugees or for persons eligible for subsidiary
protection, and for the content of the protection granted (recast) [2011] OJ L 337.
19
As the power of states evolves and actors in the governance multiply (companies, civil society,
etc.), this multiplication could also have an impact on the apprehension of EDP, and therefore,
also on a potential EU framework.
The findings of this research offer an interpretation of the current state of law, for an EDP
protection de lege de ferenda.
20
2. The definition barrier of EDP
As in any nascent field, ‘unsure of its identity, a certain amount of conceptual and semantic
chaos is unavoidable’34
; and the EDP issue is no exception to that rule. Although the
expression of environmental refugees can been traced back to the 1970's35
, the legal field
around is very recent, and shows signs of this conceptual and semantic chaos.
Firstly, there is no agreement on the causal link and on the consequences of climate
change on migration patterns. Hence a strongly divided sociological debate around EDP. Two
sociological schools can be identified: minimalist and maximalist (2.1). Secondly, there is no
agreement on the delimitation of the category: what should be covered under the legal term?
(2.2). Thirdly, there is a lack of consensus regarding the choice of the legal term to use and its
legal consequences (2.3). The two latter sections deal with fundamental problems of the field
regarding the category itself: the object of study and its signifier. The aim of this chapter is to
provide a critical summary of the current discussion in these two ongoing debates, and does
not have the pretension to bring any solution.
2.1. Are there EDP? Minimalist and maximalist approach
The first disagreement regarding EDP is about how environmental factors affect migration
patterns. The problem here is to know if climate change is or can be an identifiable direct
cause of migration. In this debate, two schools led the debate on the identification of climate
change as cause of migration: the maximalist (2.1.1) and the minimalist (2.1.2), as identified
by Suhrke.36
2.1.1 Maximalist approach
Despite having only little literature in its favour, the maximalist approach (2.1.1.1) managed
to popularise alarmist numbers (2.1.1.2) of EDP, amongst policy makers and the population.
34
John Henry Merryman, ‘Comparative Law and Social Change: On the Origins, Style, Decline and Revival of
the Law and Development Movement’ (1977) 25 American Journal of Comparative Law 457, 457, as cited in
Benoít Mayer, ‘Critical perspective on the identification of 'environmental refugees' as a category of human
rights concern’ in Dimitra Manou, Andrew Baldwin, Dug Cubie, Anja Mihr and Teresa Thorp (eds), Climate
Change, Migration and Human Rights: Law and Policy Perspectives (Routledge 2017) 28. 35
James Morrissey, ‘Rethinking the 'debate on environmental refugees': from 'maximilists and minimalists' to
proponents and critics'’ (2012) 19 Journal of Political Ecology 36, 36. 36
Astri Suhrke, ‘Environmental Degradation and Population Flows’ (1994) 47 Journal of International Affairs
473, 474.
21
2.1.1.1. Definition of maximalist
The maximalist approach (also referred to as the alarmists) argues that EDP are clearly
identifiable, considering that climate factors can themselves be identified as main factors of
migration. EDP is conceptualised as an unavoidable direct consequence of climate change.
This position was mainly supported by NGOs and environmental scholars37
, who participated
in spreading alarmist numbers. Less literature supports this view, compared to the minimalist
approach. Nonetheless, the maximalist approach gained more popularity amongst the media
as it is more simplistic and schematic. However, this approach soon turned EDP into a
security topic.
2.1.1.2 Popularisation of alarmist numbers
EDP has more than once been qualified of migratory wave.38
The numbers circulating and
cited of potential EDP differ from one source to another, from one political discourse to
another. However, they still all represent a significant number. As underlined by Youngs39
, the
estimation varies from six million displaced people each year to one billion. However, there
are only a couple of studies supporting these figures. The popularisation of these numbers has
started for environmental funding reasons (2.1.2.1) and keeps on spreading through the media
(2.1.2.2).
2.1.1.2.1 Popularisation of EDP for environmental funding
Most data on EDP is based on the work of conservation biologists, Myers and Kent.40
Their
1995 report was the only quantified estimate of environmental refugees. Nonetheless, these
numbers became popular in policy makers’ circles. Baldwin explains that the popularisation
of these numbers began with scientists and environmental activists who needed more support
in their research and attracted more interest towards environmental protection when using the
EDP subject.41
The subject of migration constitutes a good opportunity when seeking for
support of policy makers as it triggers a moral panic, as the sociologist Bauman42
puts it, and
is a source of ‘anxiety in collective imaginary and consciousness’.43
37
Ionesco, Mokhnacheva and Gemenne (n 5) 6. 38
Andrew Baldwin, Chris Methmann and Delf Rothe, ‘Securitizing ‘climate refugees’: the futurology of climate-
induced migration’ (2014) 2 Critical Studies on Security 121,124. 39
Richard Youngs, Climate Change and European Security (Routledge 2015)10. 40
Mayer (n 34) 28. 41
Baldwin, Methmann and Rothe (n 38) 123. 42
Zygmunt Bauman, ‘The migration panic and its (mis)uses’ (Social Europe Blog, December 2015)
<https://www.socialeurope.eu/2015/12/ migration-panic-misuses> accessed 30 April 2018. 43
Giovanni Bettini, Sarah Louise Nash and Giovanna Gioli, ‘One step forward, two steps back? The fading
22
2.1.1.2.2 Popularity of EDP through the media
The maximalist approach gained popularity amongst the media44
due to its simplistic and
schematic features. A recent example of the media taking the alarmist climate refugees
argument can be found in the Syrian crisis45
, reducing it to environmental factors;
transforming it into a first representation of future climate change impact on migration.46
Nevertheless, the visibility EDP gained through media, appearance in policy reports, charity
advertising or political campaigns empowered the category with real political implications.
2.1.2. Minimalist approach
The minimalist approach (2.1.2.1) lately became the main approach regarding EDP in
academia. However, due to a lack of diffusion (2.1.2.2), it has not penetrated significantly the
law and governance circles.
2.1.2.1 Definition of minimalism
The minimalists (also known as the sceptical) argue for the consideration of a multitude of
factors in the migration and the impossibility to reduce the cause of migration to the only
environmental factor. Therefore, the identification of EDP is hardly possible. EDP is mainly
considered as a theoretical possibility, and has not yet found a clear empirical category of
people.47
This approach has the support of migration scholars, and social sciences
academia.48
It started to gain a major influence in the international policy circles.49
2.1.2.2 Lack of diffusion of minimalism approach
Baldwin, Methmann and Rother50
state that this debate has been settled for now. The
minimalist position became predominant in the field, supported by more empirical evidence.
However, the predominant position has not been efficiently transposed in law and governance,
where the maximalist position remains influential. Mayer51
explains this by the disciplinary
compartmentalisation and lack of communication between the different fields. This prevented
contours of (in)justice in competing discourses on climate migration’ (2017) 183 Geographical Journal 348, 348. 44
Sanaz Honarmand Ebahimi, ‘Climate change is not a threat to our national borders: A study on policy experts’
perception on climate change – human migration nexus’ (Master, University of Twente 2017) 86. 45
Jan Selby, Omar S. Dahi, Christinae Frôhlich and Mike Hulme, ‘Climate change and the Syrian civil war
revisited’ (2017) 60 Political Geography 232. 46
Bettini, Nash and Gioli (n 43) 349. 47
Baldwin, Methmann and Rothe (n 38) 121. 48
ibid 122. 49
ibid124. 50
ibid122. 51
Mayer (n 34) 29.
23
the diffusion of minimalist ideas from empirical to normative research.52
This is why only few
legal authors have considered the minimalist critique. It is therefore important to keep this in
mind for the conclusion of the thesis.
Nonetheless, the debate is not as polarised as it seems, as on both sides, authors agree that
environmental change can play a role in human mobility patterns, as much as other factors.
The extent of these roles is in debate here. They also agree on the wide range of types of
mobility it creates depending on duress, temporal and geographical parameters.53
Nevertheless, this raises difficulties in the delimitation of the EDP category.
2.2 Who is an EDP? Difficulties of identification
EDP covers a wide range of migration types; and there are hardly any common denominators
for all these different types of EDP.54
In the process of identification of EDP, both
fundamental elements in relation with the environment and displacement are problematic to
define. On the one hand, there is a diversity of climate change factors (2.2.1.). On the other
hand, multiple types of migration can be understood as being EDP (2.2.2). Climate change
factors are not the only factors that produce EDP: it is important to acknowledge the
vulnerability, adaptation capacity and resilience of affected populations (2.2.3).
2.2.1 Diversity of climate change factors
There is a wide range of climate change factors affecting migration patterns. The most
common distinction adopted regarding climate change factors is the one between rapid onset
(2.2.1.1) and slow onset events (2.2.1.2.).55
Both types of events have increased and are
expected to keep increasing in the next years due to climate change.
2.2.1.1 Rapid-onset events
A rapid onset event may be defined as a single event, limited in time. It can last hours, up to
days.56
The report of the EU Parliament on climate refugees gives several examples of such
events that have an impact on migration patterns, such as storms, floods, tropical cyclones.57
52
ibid. 53
Morrissey (n 35) 43. 54
Mayer (n 34) 36. 55
United Nations Framework Convention on Climate Change, Slow onset events Technical paper
(FCCC/TP/2012/7 2012) 7. 56
ibid. 57
International Centre for Migration Policy Development (n 7) 21.
24
These events often force people to abandon their homes to protect themselves against any
harm or death. The number of people affected by these events is hard to estimate.
The migration response to these events is mostly short-term and internal.58
When fleeing
rapid-onset events, most people stay within their country and return home as soon as they can
to reconstruct their lives.
2.2.1.2. Slow-onset events
Slow-onset events present a gradual evolution. The changes happen over years or with a high
frequency.59
The main slow-onset events affecting migration patterns are drought,
desertification, land degradation and sea-rise (although sea-rise can be considered as a hybrid
between rapid-onset and slow-onset as it is deeply affected by storms and floods60
). The
identification of migration and number of people affected is even harder to establish, as
changes are gradual and slow, and therefore hard to observe.
Nonetheless, it is now commonly admitted that slow-onset events affect migration patterns.
However, similarly to rapid-onset events, the migration response is expected to be short-
distance61
, if not internal. Nonetheless, the rapid-onset or slow-onset feature is not the only
element determining the migration response: social and political factors, as the disaster
response from the authorities, can influence the migration in this context and could lead to a
long-term displacement.62
2.2.2. Distinctive migration parameters under EDP
Mainly, three types of distinctions are used to understand the divide within the EDP
category.63
The first one is based on a temporal parameter: leading to a long-term and short-
term migration distinction (2.2.2.1). The second distinction is founded on a geographical
parameter. This allows a distinction to be made between internal and international
displacement (2.2.2.2). The third one is based on a duress parameter: it creates the distinction
between forced and voluntary migration (2.2.2.3). Nonetheless, there are other parameters that
58
International Centre for Migration Policy Development (n 7) 21. 59
United Nations Framework Convention on Climate Change (n 49) 7. 60
International Centre for Migration Policy Development (n 7) 27. 61
ibid 22. 62
ibid 21. 63
Etienne Piguet, Antoine Pécoud and Paul de Guchteneire, ‘Introduction: migration and climate change’ in
Etienne Piguet, Antoine Pécoud and Paul de Guchteneire (eds), Migration and climate change (Cambridge
University Press 2011) 15.
25
can also help understand the division within EDP, such as individual and collective, planned
and unplanned.64
2.2.2.1 Temporal parameter: long-term and short-term migration
The first division distinguishes short-term and long-term migration, temporary and permanent
displacement. In its Recommendations on statistics of international migration, the UN gives a
precise period for these different categories. A temporary displacement is less than three
months. A short-term migration is between three months to one year. A long-term migration
represents more than a year away from home.65
2.2.2.2 Geographical parameter: internal or international displacement
The geographical parameter establishes the distinction between internal migration and
international displacement. Most of EDP happens and will happen internally, within the
border of one state, rather than through international migration crossing borders.66
Nonetheless, most of the research focus on cross-border migration67
, including the present one.
2.2.2.3 Duress parameter: forced and voluntary migration
The distinction between forced and voluntary migration in relation to EDP is the most
complex and debated.68
While there can sometimes be a clear distinction between forced and
voluntary migration, EDP mostly varies across a continuum from forced to voluntary’.69
2.2.3. Vulnerability and adaptation
As mentioned in the previous sections, environmental events are not the only parameters to
take into account to explain migration patterns of EDP. Social, economic, cultural and
political factors should be considered too. This is where the concepts of vulnerability (2.2.3.1),
adaptation, and resilience (2.2.3.2) are relevant.
64
Mayer (n 34) 36. 65
Klepp (n 8). 66
Gregory White, Climate change and migration. Security and borders in a warming world. (Oxford University
Press 2011) 47. 67
United Nations, Recommendations on statistics of international migration (ST/ESA/STAT/SER.M/58/Rev.1
1998) as cited in Klepp (n 8). 68
Klepp (n 8). 69
Lori M Hunter, ‘Migration and environmental hazards’ in Graeme Hugo (ed.), Migration and climate change.
(Edward Elgar 2013) 297, as cited in Klepp (n 8).
26
2.2.3.1 Vulnerability
EDP is not exclusively founded on climate change disasters, and cannot be thought separate
from social, economic, cultural and political factors. When these factors present inequities, it
exacerbates the ecological vulnerability of communities, and therefore, contributes to EDP.70
Vulnerability71
is defined as ‘the degree to which a system is susceptible to, and unable to
cope with, adverse effects of climate change, including climate variability and extremes’72
by
the Intergovernmental Panel on Climate Change. Nonetheless, this definition does not include
explicitly social, economic, cultural and political factors: it is an ecological definition. There
are different ways to define the vulnerability concept. To acknowledge the importance of the
socio-economic factors, a more context dependant definition is necessary. The United Nations
Office for Disaster Risk Reduction defines vulnerability as ‘the characteristics and
circumstances of a community, system or asset that make it susceptible to the damaging
effects of a hazard’.73
The different definitions have a strong political stand, whether they
introduce these factors or not.
However, it is important not to confuse vulnerability with lack of agency74
of the affected
population. There is a risk of stereotyping when using this concept. Yet, the EDP's experience
is to some extent a proof of their agency and ability to adapt.
2.2.3.2 Adaptive capacity and resilience
EDP has a debated relationship with the concept of adaptation. Is migration a result of the
failure of adaptation? Or is it itself an adaptation strategy? The recent position of the EU
regarding EDP presumes that migration is reconsidered as an adaptation strategy, as it is
articulated in terms of labour market.75
Nonetheless, even when considered an adaptation
strategy, migration is an extreme form of adaptation in response to environmental events.76
In
70
ibid 134. 71
Not to be mistaken with the legal concept of vulnerability in human rights law, which applies to specific
categories of people with special needs, rather than considering vulnerability as a structural situation. For more
information on the legal concept of vulnerability in EU law, see Asylum Information Database, ‘The concept of
vulnerability in European asylum procedures’ (2017)
<http://www.asylumineurope.org/sites/default/files/shadow-
reports/aida_vulnerability_in_asylum_procedures.pdf> accessed 30 April 2018. 72
Intergovernmental Panel on Climate Change, ‘Climate Change 2007: Impacts, Adaptation and Vulnerability.
Contribution of working group II to the fourth assessment report of the Intergovernmental Panel on Climate
Change’ (Cambridge University Press, 2007) 883. 73
United Nations Office of Disaster Risk Reduction, ‘Terminology’ (February 2017)
<https://www.unisdr.org/we/inform/terminology> accessed 30 April 2018. 74
Asylum Information Database (n 71) 12. 75
See section 6 of this thesis. 76
Jayawardhan (n 23) 135.
27
addition, a part of the population affected by climate change simply will not have the
resources to migrate. Does the EDP category exclude these people?
Adaptive capacity is defined as ‘the ability of a system to adjust to climate change
(including climate variability and extremes) to moderate potential damages, to take advantage
of opportunities, or to cope with the consequences’ by the Intergovernmental Panel on
Climate Change.77
Jayawardhan explains that a reduced adaptive capacity can lead to EDP;
and that a lower resilience leads to a reduced adaptive capacity.78
The author opts for the
following definition of resilience: ‘the ability of communities to absorb external changes and
stresses while maintaining the sustainability of their livelihoods’.79
Therefore, a first way for
states to deal with EDP would be to reduce vulnerability and strengthen adaptation capacity
and resilience.
The impact of climate change on migration patterns is acknowledged. Nonetheless, it is
not the only factor that should be taken into account. Pre-existing conditions of vulnerability
and adaptation capacity of communities are parameters that affect importantly the response to
these events. Indeed, as Jayawardhan stated: ‘an extreme environmental event becomes a
disaster when it affects vulnerable communities’.80
Therefore, it is essential not to reduce
migration to climate change factors, as it is a structural issue.
2.3 What terminology? Research of an appropriate legal term
The problem of identification of EDP goes alongside the problem of legal terminology. There
is still no consensus on the legal term to use. The first concrete reference to a term to describe
these affected populations appears in 1949: Vogt calls ‘ecologically displaced persons’
migrants on the move during the Dirty Thirties.81
Nowadays, a multitude of (debatable) terms
can be found in relation to this specific type of migration. They vary around two axes: the
environmental/climate cause and the refugee/migration/displacement type. It goes from
climate refugee, environmental refugee, environmental displaced migrant, climate-induced
refugee, ecological migrant, environmentally induced migrant, climate migrant, eco-migrant,
77
Intergovernmental Panel on Climate Change (n 72) 869. 78
Jayawardhan (n 23) 114. 79
Cecilia Tacoli, ‘Crisis or Adaptation? Migration and Climate Change in a Context of High Mobility’ in José
Miguel Guzman, George Martine, Gordon McGranahan, Daniel Schensul and Cecilia Tacoli (eds), Population
Dynamics and Climate Change (United Nations Population Fund 2009)109, as cited in Jayawardhan (n 23).114. 80
Jayawardhan (n 23) 135. For instance, the earthquakes in Haiti and Chile in 2010 has a similar magnitude but a
different impact on the local populations: in Chile, less victims and the infrastructures remained. See Andrew D
Pinto, ‘Denaturalizing ‘natural’ disasters: Haiti’s earthquake and the humanitarian impulse’ (2010) 4 Open Med
193. 81
Morrissey (n 35) 36.
28
eco-refugee, climate-induced migrant, environmental migrant, ecological refugee,
ecologically displacer person, to environmentally displaced person82
, and so on. This section
will focus on the popular climate/environmental refugees (2.3.1) and environmentally induced
migration and environmentally displaced persons (2.3.2), which is the term chosen in this
thesis.
2.3.1. Climate or environmental refugees
The term was first used in the 1970s, by Lester Brown.83
However, Myers and UNEP
researcher El-Hinnawi brought it into mainstream.84
El-Hinnawi defines environmental
refugees as:
those people who have been forced to leave their traditional habitat, temporarily or permanently,
because of a marked environmental disruption (natural and/or triggered by people) that
jeopardized their existence and/or seriously affect the quality of their life. By ‘environmental
disruption’ in this definition is meant any physical, chemical and/or biological changes in the
ecosystem (or the resource base) that render it temporarily or permanently, unsuitable to support
human life.85
The use of this expression gives to EDP a sense of urgency and expresses the forced
aspect of EDP, contrary to the term ‘migrant’.86
Nonetheless, it seems inappropriate in relation
to the migrant itself, the factors of immigration and refugee law.
Regarding the migrant, it articulates EDP as a social problem. Morrissey underlines that
this term presents EDP as a vulnerable and hapless victim and at the same time as a
resourceful agent able to destabilise entire nation states.87
Regarding the factors of immigration, the term environmental/climate refugee
depoliticises EDP. It emphasises the environmental factors, at the expense of socio-economic
factors.88
Therefore, the term oversimplifies the issue, giving a ‘simplistic, one-sided and
misleading’89
perspective.
82
Ionesco, Mokhnacheva and Gemenne (n 5) 6. 83
He is the founder of the World Watch Institute. Saunders P, ‘Environmental refugees: the origins of a construct’
in Philip Anthony Stott and Sian Sullivan (eds), Political Ecology: Science, Myth and Power (Arnold 2000) as
cited in Morrissey (n 35) 36. 84
ibid. 85
Essam El-Hinnawi, Environmental Refugees (United Nations Environment Programme 1985) 4. 86
Sgro (n 25). 87
Morrissey (n 35) 41. 88
Etienne Piguet, ‘From ‘primitive migration’ to ‘climate refugees’: The curious fate of the natural environment
in migration studies’ (2013) 103 Annals of the Association of American Geographers 148, 155. 89
Stephen Castles, New issues in Refugee Research. Working Papter No. 70. Environmental Change and Forced
Migration: Making Sense of the Debate (United Nations High Commissioner for Refugees 2002) 8.
29
In relation to refugee law, this term threatens the protection under the legal terminology
refugee as defined in the Geneva Convention. The term refugee refers to this precise category
of subject in international law, discussed in section 5.1.2 of this thesis. As for now, EDP does
not fill all the necessary conditions to be granted the refugee status. Firstly, EDP includes
forced and voluntary migration, while there is an element of forcedness necessary to the
refugee status. Secondly, refugee status presume an international crossing-border migration,
while EDP are predicted to be mostly internal displacement.
The UN High Commissioner for Refugees does not recognize the category of
environmental refugees, nor its legal protection. The people of Kiribati (a population very
susceptible to become EDP due to the sea-level rise affecting the island and lack of
appropriate infrastructures) also radically reject the term environmental refugees.90
They
created a program to manage prospective relocation of the population under the motto
‘migrate with dignity’91
, and reject the refugee.92
2.3.2. Environmental migration and environmentally displaced persons
While the term refugee is highly contested, alternative versions refer to migration or
displacement. The International Organization for Migration adopted the term environmental
migrant and defined it as:
persons or groups of persons, who, for compelling reasons of sudden or progressive changes in
the environment that adversely affect their lives or living conditions, are obliged to leave their
habitual homes, or chose to do so, either temporarily or permanently, and who move either
within their country or abroad.93
The Parliamentary Assembly of the Council of Europe also recommends the adoption of
the International Organization for Migration's term and definition.94
However, the term
migration does not do justice to the population affected who were forced to move, nor to the
multicausality of EDP.
90
Silja Klepp and Johannes Herbeck, ‘The politics of environmental migration and climate justice in the Pacific
region’ (2016) 7 Journal of Human Rights and the Environment 54, 66. 91
Office of the President of the Republic of Kiribati, ‘Relocation’ (Kiribati Climate Change)
<http://www.climate.gov.ki/category/action/relocation/> accessed 30 April 2018 92
‘Pacific Islanders reject 'climate refugee' status, want to 'migrate with dignity', SIDS conference hears’ ABC
News (Sydney, September 2014) < http://www.abc.net.au/news/2014-09-05/pacific-islanders-reject-calls-for-
27climate-refugee27-status/5723078> accessed 30 April 2018. 93
International Organization for Migration, Discussion note: Migration and the Environment (MC/INF/288
2007)1-2. 94
Klepp (n 8).
30
The United Nations Environment Programme uses the terminology ‘environmentally
induced population movement’.95
Although this term gives space to multicausality, it is said to
be too vague.96
For this reason, the term EDP is preferred. Firstly, it allows not to confuse
EDP's rights with conventional refugees. Secondly, the reference to displacement puts an
emphasis on the forcedness of migration. Thirdly, it underlines the multicausality of EDP, as it
is ‘a general category of migration movements where the environmental factor is decisive, but
not necessarily unique’.97
Kolmannskog defines EDP as ‘those forcibly displaced at least
partly because of a natural disaster’.98
Jayawardhan points out that even if imperfect, it
‘allows for considerations of climate change, human agency, and governance, when analysing
the multicausal nature of environmental displacement’.99
EDP is also the term adopted by the UN High Commissioner for Refugees and by the EU
institutions100
, in the context of their research.
2.4 EU and research on EDP
Although EDP is not mentioned anywhere in EU's internal legal system, the EU actively
participates in the research on EDP. The EU funded Environmental Change and Forced
Migration Scenarios (EACH-FOR) (2.4.1), the Nansen Initiative (2.4.2), COST IS1101 (2.4.3),
or Migration, Environment and Climate Change: Evidence for Policy (MECLEP) (2.4.4).
Furthermore, in 2011, the EU identified the necessity of new legal frameworks and
modifications of the existing ones, during the consultation ‘Migration and Climate
Change’.101
The same year, a study was ordered by the Directorate General for Internal
Policies and its Policy Department of Citizens’ Rights and Constitutional Affairs, entitled
‘Climate Refugees: Legal and Policy Responses to Environmentally Induced Migration’.102
This study constitutes a resourceful text for this thesis.
95
ibid. 96
International Centre for Migration Policy Development (n 7) 29. 97
Piguet E, New issues in Refugee Research. Research Paper No. 153. Climate change and forced migration
Debate (United Nations High Commissioner for Refugees 2008) 4. 98
Vikram Kolmannskog, ‘Climate Change, Environmental Displacement and International Law’ (2012) 24
Journal of International Development 1071, 1072. 99
Jayawardhan (n 23) 107. 100
European Commission, ‘Environmentally Displaced Person’ (European Commission)
<https://ec.europa.eu/home-affairs/content/environmentally-displaced-person_en> accessed 30 April 2018 101
Christel Cournil, ‘Chapter 1 Overview of the Relationship between Human Rights and Climate Change’ in
Directorate-general for External Policies of the Union (ed), Human Rights and Climate Change: EU Policy
Options (EU 2012) 22. 102
International Centre for Migration Policy Development (n 7).
31
2.4.1 EACH-FOR
Between 2007 and 2009, the EU funded EACH-FOR project, under the European
Community’s Sixth Framework Programme for Research. Seven European research institutes
participated in the project. The aim of EACH-FOR was to test the research hypothesis that
‘there is a discernible environmental signal in human migration patterns today’.103
To do so,
they firstly investigated ‘correlations between migration and environmental degradation’.
Secondly, they produced ‘a series of case studies investigating the correlation between
environmental degradation and migration patterns’.104
Before this project, there were very few
empirical studies on the matter.105
The study found correlations between migration and environmental degradation.
Nevertheless, it also insisted on the multicausality of EDP. In relation to this project, the
European Commission was mainly interested in knowing if environmental degradation could
intensify migration patterns towards the EU. The study did not confirm this hypothesis.106
Nonetheless, EACH-FOR's methods of investigation received heavy criticism. Wagner
accuses these methods to be ‘biased’ to prove that ‘environmental variables had played a role
in mobility decisions’.107
2.4.2 The Nansen Initiative
The Nansen Initiative108
was launched in 2012 by Switzerland and Norway, as a side event to
UN High Commissioner for Refugees’ Executive Committee. It benefits from the European
Commission's funding. While it is the first intergovernmental action towards the protection of
EDP, it also includes academic institutions and civil society members. Therefore, to build a
knowledge based on good practices, they organise inter-governmental regional consultations
and civil society meetings. The aim of the project is to ‘build consensus among states on the
elements of a protection agenda, which may include standards of treatment’. Their research is
of particular significance for a human-right based approach of EDP.
103
Koko Warner, Tamer Afifi, Alex De Sherbinin, Susana Adamo and Charles Ehrhart, ‘Environmental change
and forced migration scenarios: methods and findings from Nile Delta, Sahel and Mekong Delta’ in in Etienne
Piguet, Antoine Pécoud and Paul de Guchteneire (eds), Migration and climate change (Cambridge University
Press 2011) 192 as cited in Morrissey (n 35) 39. 104
Morrissey (n 35) 39. 105
Han Entzinger, Jill Jäger and François Gemenne, ‘Le project EACH-FOR’ (2010) 1284 Hommes et
migrations 10. 106
ibid. 107
Morrissey (n 35) 39. 108
International law professor Walter Kälin leads the project. He is also the former UN rapporteur on the human
rights of internally displaced persons.
32
2.4.3 COST IS1101
Between 2012 and 2016, the EU funded the project COST IS1101 Climate change and
migration: knowledge, law, policy, and theory. Human geographer Andrew Baldwin led the
project. It aimed at improving the understanding of the correlation between climate change
and migration; but also at informing and offering empirical and theoretical knowledge to state
and non-state actors, regarding legal and policy research. Finally, it built a broad Europe-
based social science research network concerning climate change and migration.109
Various
articles published under this project are used throughout this thesis.
2.4.4 MECLEP
From 2014 to 2016, the EU funded the MECLEP, under the Thematic Programme on
Migration and Asylum with 1.9 million EUR.110
The project is made of three components:
research on climate change and migration, promotion of national dialogue, and capacity-
building. In this context, MECLEP created the first training manual for policymakers on the
links between migration, environment and climate change.111
The project focuses on six states
for its case study: Dominican Republic, Haiti, Mauritius, Papua New Guinea and Kenya and
Vietnam; and aims at promoting lasting partnerships between them.
This project also established the Environmental Migration Portal: Knowledge Platform on
People on the Move in a Changing Climate in 2015. It seeks to provide ‘a one-stop service
website to promote new research, information exchange and dialogue, intended to fill the
existing data, research and knowledge gaps on the migration-environment nexus’112
. Since
2017, its maintenance is funded by the International Organization for Migration. This
platform has been a major database for this thesis.
2.5 Conclusion
The relationship between climate change and migration is complex. While the impact of
climate change on migration patterns is recognised, the extent of this impact is still in debate.
109
COST European Cooperation in Science and Technology, ‘ISCH COST Action IS1101: Climate Change and
Migration: Knowledge, Law and Policy, and Theory’ (COST European Cooperation in Science and Technology,
May 2011) <http://www.cost.eu/COST_Actions/isch/IS1101> accessed 30 April 2018 110
University of Bielefeld, ‘MECLEP’ (University of Bielefeld) <https://www.uni-
bielefeld.de/(en)/tdrc/ag_comcad/research/MECLEP.html> accessed 30 April 2018 111
International Organization for Migration ‘Training manual’ (Environmental Migration Portal)
<http://www.environmentalmigration.International Organization for Migration.int/training-manual> accessed 30
April 2018 112
International Organization for Migration, ‘About the Portal’ (Environmental Migration Portal)
<http://www.environmentalmigration.International Organization for Migration.int/about-portal> accessed 30
April 2018
33
Even if in debate, it is fundamental to acknowledge the role of socio-economic factors,
vulnerability and adaptation capacity regarding EDP when building a legal framework.
The importance of the socio-economic factors is the reason why the term EDP will be
used throughout this thesis (rather than environmental refugee, for instance). This term allows
for consideration of multicausality, but also puts the emphasis on the forcedness of the
migration. It also sets a clear distinction from conventional refugees. The EU institutions
adopted the same terminology in their research.
The term EDP allows us to move over the definition barrier for now, and to start the
research of EU legal instruments that could be used to found an EU legal framework for EDP.
34
3. Environmental law approach to the EDP
Within the EU legal landscape, there is no legislation concerning EDP. Nevertheless, as
underlined in the previous chapter, the EU has invested in programs of research and analysis
to better understand that phenomenon hard to define. While the EU has a silent official
approach to the EDP in its internal legal order, its approach in external relations is different. In
the international environmental field, the EU is a leader and shapes the international legal
order (3.1). Therefore, it is fundamental to understand the international environmental forum's
approach to the EDP (3.2) to understand the EU's approach to the EDP. This forum is
embodied in the United Nations Framework Convention on Climate Change (UNFCCC) and
the COP. However, being an infrastructure of public international law, it focuses on
obligations between states rather than towards individuals: this raises questions on the
adequacy of the instrument for EDP.113
Nonetheless, the UNFCCC offers one of the only
arenas of discussion putting the emphases on the planning and financing of implementation of
measures in relation with EDP.114
There are of course other international organisations
relevant to EDP. However, the aim and infrastructure of the UNFCCC make it ‘a probable
source of new governance methods to address climate related migration and displacement’.115
The EU has no voting rights but participates as a Regional Economic Integration
Organisation.116
This status allows it to be a full party at the multilateral environmental
agreement when it falls under its competence, as in the case of UNFCCC.
The UNFCCC, along with environmental international law principles, creates
environmental legal obligations in the EU. Within these principles, common but differentiated
responsibilities and respective capabilities principle, polluter-pays principle, precautionary
principle, no-harm principle and solidarity principle could prove to be relevant to the EDP
legal framework117
(3.3).
113
Bonnie Docherty and Tyler Giannini, ‘Confronting a Rising Tide: A Proposal for a Convention on Climate
Change Refugees’ (2009) 33 Harvard environmental law review 349, 358. 114
Koko Warner, ‘Human migration and displacement in the context of adaptation to climate change: the Cancun
Adaptation Framework and potential for future action’ (2012) 30 Environment and Planning C: Government
and Policy 1061, 1072. 115
Rosemary Lyster and Maxine Burkett, ‘Climate-Induced Displacement and Climate Disaster Law: Barriers
and Opportunities’ in Rosemary Lyster and Robert Verchick (eds), Climate Disaster Law: Barriers and
Opportunities (Edward Elgar Publishing Ltd 2018) 12. 116
This category was created specifically for the EU. 117
Maxine Burkett, ‘Reading between the Red Lines: Loss and Damage and the Paris Outcome’ (2016) 6
Climate law 118, 120.
35
3.1. EU’s international cooperation in the environmental field and the EDP
The international environmental cooperation and global environment is formalised as an
objective of the EU in the TFEU (3.1.1). This corroborates internally the importance of the
EU in the international environmental field, and the necessity to understand EDP at this
different scale. The importance of the role of the EU raises the question of its responsibility
regarding climate change, and EDP more precisely. Such a responsibility could be founded on
its moral hazardous behaviour (3.1.2) regarding pollution, or on its leadership position (3.1.3).
3.1.1. TFEU and the worldwide environment
With the TFEU, the worldwide – and not only regional - environment finds a place in the
internal legal order of the EU (3.1.1.1). Like all environmental issues, necessary international
cooperation to support the worldwide environment is based on a shared competence between
the EU and the member states (3.1.1.2).
3.1.1.1 Codification of the protection of worldwide environment as an objective of the EU
After the signing of the Lisbon treaty, the largest part of the principle articles under the
environmental title – article 191-193 - remained unchanged.118
The international dimension of
the promotion of the environment already existed in the TEC before the signing of the Lisbon
Treaty. However, an emphasis on climate change as an example of regional and worldwide
environmental problem of the EU has been included in the article 191(1). In principle, TFEU
Article 191 gives space to extraterritorial environmental objectives. TEU article 21(2) also
gives an international and extraterritorial dimension to the environmental objective to:
(d) foster the sustainable economic, social and environmental development of developing
countries, with the primary aim of eradicating poverty;
(f) help develop international measures to preserve and improve the quality of the environment
and the sustainable management of global natural resources, in order to ensure sustainable
development.
3.1.1.2 Shared competence in international environmental cooperation
The EU is mandated to take action by the EU treaties. This is the principle of conferral, stated
in the article 5(1). The articles 191, 192 and 193 lay the extent of the competence of the EU in
environmental matters. The EU has a strong mandate regarding climate change mitigation
policy.119
As stated in TFEU article 4(2)(e), in relation to the environment, there is a shared
118
Hans Vedder, ‘The Treaty of Lisbon and European environmental law and policy’ (2010) 22 Journal of
Environmental Law 285, 285. 119
Christina Eckes, ‘EU climate change policy: can the Union be just (and) green?’ in Dimitry Kochenov and
36
competence between the EU and member states. Paragraph 4 of article 191 states the
modalities of cooperation with third countries in relation to the EU and the member states'
competence. The member states competence remains, parallel to the EU's:
within their respective spheres of competence, the Union and the member states shall cooperate
with third countries and with the competent international organisations. The arrangements for
Union cooperation may be the subject of agreements between the Union and the third parties
concerned. This shall be without prejudice to member states' competence to negotiate in
international bodies and to conclude international agreements.
TFEU article 191(4) lays an explicit legal basis for the EU's international relations.
However, the Court of Justice of the European Union (CJEU) limited the applicability of this
article as a legal basis.120
This article was therefore abandoned as a legal basis for external
environmental agreements, based on the ERTA principle.121
Measures are instead founded on
article 192. The Kyoto Protocol illustrates this: the proposition of the Commission122
initially
based the Protocol on article 174(4) EC (now TFEU article 191(4)), while the Council123
decided in the end to base it on 175(1) EC (now TFEU article 192(1)).124
Buck states that
TFEU Article 191(4) confers the EU the competence to conclude administrative cooperation
agreements125
, while TFEU article 192 is the foundation of the EU's competence to conclude
multilateral environmental agreements.
However, the Lisbon treaty introduced a new provision regarding the exclusive
competence of the EU. It is the codification of the ERTA rule. The article lays three scenarios
for EU's exclusive competence. First situation: ‘when its conclusion is provided for in a
legislative act of the Union’. Second situation: when it is ‘necessary to enable the Union to
exercise its internal competence’. Third situation: ‘insofar as its conclusion may affect
common rules or alter their scope’. Buck underlines that it is nevertheless something to be
Fabian Amtenbrink (eds), The European Union's Shaping of the International Legal Order (Cambridge
University Press 2013)195. 120
Opinion of the Court 2/00, re Caratagena Protocol [2001] ECR I-9713, para 44. 121
The ERTA rule consists in the recognition of the exclusive external competences of the EU when the
conclusion of an international agreement affects internal legislation or alters its scope. 122
European Commission, ‘Proposal for a Council Decision concerning the approval, on behalf of the European
Community, of the Kyoto Protocol to the United Nations Framework Convention on Climate Change and the
joint fulfilment of commitments thereunder’ COM(2001) 579 final, introductory paragraph. 123
Council of the EU, ‘Decision of 25 April 2002 concerning the approval, on behalf of the European Community,
of the Kyoto Protocol to the United Nations Framework Convention on Climate Change and the joint
fulfilment of commitments thereunder’ 2002/358/EC, introductory paragraph. 124
Catherine Barnard C and Steve Peers, European Union Law (Oxford University Press 2017) 750. 125
Matthias Buck, ‘The EU'S representation in multilateral environmental negotiations after Lisbon’ Elisa
Morgera (ed), The External Environmental Policy of the European Union: EU and International Law
Perspectives (Cambridge Press 2012) 88.
37
determined case by case, but that it seems likely that elements of international environmental
negotiation leads to exclusive Union competence.126
As for the EU's ability to participate to a multilateral environmental agreement, an
Regional Economic Integration Organisation clause is added to the agreement so the EU can
participate in as a full party for what falls under its competence. However, there are situations
where the clause is not included but the EU's competence is affected. In this case, based on
the duty of loyal cooperation of TEU article 4(3), Member states have the obligation to act in
the Union's interest.
As for the EU representation in international environmental matters, the Commission
represents the Union externally, as stated in TEU article 17(1) and 27(2). This is a change
brought by the Lisbon Treaty. Treaties used to be silent on this matter: so representation was
carried by an individual chosen from the Presidency of the Council, the Commission or any
member state.127
All these post-Lisbon measures strengthen the representation of the EU internationally and
gives the EU a wider competence when it comes to international environmental affairs.128
3.1.2. Global responsibility founded on moral hazardous behaviour
The EU currently positions itself as a leader in regional and global environmental governance.
As a consequence, to understand the EU treatment of EDP, it is necessary to understand the
larger environmental international legal negotiation arena. If the EU is a leader in the global
environmental field, should it take responsibility for all the matters related to the field,
including EDP?129
A first possible foundation of the EU responsibility would be moral and
historical. It is articulated in the introduction of Lambert's 2002 report on Refugees and the
Environment: The Forgotten Element of Sustainability. The EU is made of states which count
amongst the biggest polluters. It is more likely that the population of the EU will not be the
one suffering the most from the impact of climate change, as opposed to the population of
developing countries130
(for infrastructural as much as geographical reasons). Based on this
126
ibid 86. 127
ibid 78. 128
ibid 95. 129
Tessa Schmeding, ‘Environmental migration: a global issue under European Union leadership?’ (Master,
Institut européen des hautes études internationales 2011) 23-24. 130
Jason Samson, Dominique Berteaux, Biran J McGill, Murray M Humphries, ‘Geographic disparities and
moral hazards in the predicted impacts of climate change on human populations’ (2011) 20 Global Ecology
and Biogeography 532, 532.
38
moral hazard behaviour, the EU should assist those more vulnerable countries, not part of the
main polluting contributors, and which are most affected by the impact of climate change.131
3.1.3. Global responsibility founded on international environmental leadership
A second reason that would support the EU responsibility regarding this matter is its leading
role in the international environmental forum. Since the early 90s, the EU took the role of
leading participant in the UNFCCC132
, as much as in the Intergovernmental Panel on Climate
Change, whether it is through discussions or through financing. This leading role has been
strengthened after the US failed to sign the Kyoto protocol133
, and frequently fails to ratify
environmental treaties.134
Regarding the Kyoto Protocol, Eckes points out that elements in it
‘mirror the Union's internal mode of governance through targets, timetables and action
plans’135
, and also reporting procedures. This is a characteristic of the EU's ‘strong
compliance assessment mechanism’.136
Not only does the EU have a leadership position, but
it also shapes the international environmental law.
Bäckstrand and Ole Elgström identify the latest leadership strategy of the EU as being
‘bridge building’137
: sharing the desire of developing countries to adopt legally binding
regimes while at the same time finding compromises with the traditional veto parties, such as
the US or China. This position makes the EU a motor for the development of international
environmental law, including the elaboration of a framework for EDP. As mentioned in the
following section, the EU is more supportive in this context of the inclusion of provisions that
could be helpful for EDP such as loss and damage or facilities for the EDP than other
developed countries.
3.2 Institutionalisation of EDP in the international environmental field
As underlined in the previous chapter, the subject of EDP has been a heated debate for
decades in the field of sociology and human geography. However, it took more time to
materialise in the field of international environmental law. The Intergovernmental Panel on
Climate Change described human mobility as ‘the greatest single impact of climate change’ in
131
Jean Lambert, ‘Refugees and the Environment: The Forgotten Element of Sustainability’ (Greens/European
Free Alliance in the European Parliament. Brussels, Belgium, 2002) 2. 132
The EC co-signed the UNFCCC alongside its member states. 133
Schmeding (n 129) 28-29. 134
Buck (n 125) 78. 135
Eckes (n 119) 197. 136
ibid. 137
Karin Bäckstrand and Ole Elgström, ‘The EU's role in climate change negotiations: from leader to ‘leadiator’’
(2013) 20 Journal of European Public Policy 1369, 1383.
39
its first report. At the 1992 Rio de Janeiro Conference, four ecosystems were determined as
dangerously threatened, due to their position as coastal zones, islands below the sea-level or
due to desertification or deforestation. These scenarios could constitute triggers for EDP.138
Despite the awareness of the importance of the subject, ‘human mobility has been couched as
a low-controversy issue’139
, as underlined Koko Wagner. But slowly, migration became an
existing, yet marginal subject in the world of climate change legal negotiations.
The evolution of the international approach of EDP, and more generally human migration,
is parallel to the evolution of the international approach to climate change. Two different
periods can be distinguished in this approach. The mitigation approach to climate change is
the major feature of the first period (3.2.1). In this period, EDP and human migration are
absent from official texts and negotiations. The second period is characterised by the adoption
of the adaptation approach (3.2.2). Focusing more on the impact of climate change, this new
approach gave the opportunity to EDP to be considered, although still marginally. The
insufficiency of the adaptation approach is leading to the elaboration of a mechanism of loss
and damage (3.2.3), which embraces and institutionalises the EDP
3.2.1. Absence of EDP in the mitigation phase
The first period goes from the early 1990s to 2007. In 1990, the Intergovernmental Panel on
Climate Change presents its first report which sets climate change -and in the margins, human
mobility- as an international issue. During this period, mitigation was the main approach to
solve the climate change issue: the underlying idea was that climate change can still be
avoided by reducing carbon emissions. Therefore, mitigation can be defined as the ‘programs
and policies to reduce greenhouse gas emissions and emissions from land-use and forestry’.140
EDP and human migration were not part of official texts during the first period. However, the
Alliance of Small Island States (a coalition of forty-four states made of small-islands and low-
lying coastal countries) insisted in its proposals on the consequences that the sea-level rise
would have on low-lying countries, eventually leading to human migration.141
They also
138
Dmitry V Ivanov and Damir K Bekyashev, Environmental Migration in International Law (Cambridge
Scholars Publishing 2016) 12. 139
Warner (n 114) 1062. 140
Laura Schäfer and Sönke Kreft, ‘Loss and Damage: Roadmap to Relevance for the Warsaw International
Mechanism’ (Germanwatch 2014) 4 as cited in Will Burns, ‘Article & Essay: Loss and Damage and the 21st
Conference of the Parties to the United Nations Framework Convention on Climate Change’ (2016) 22 ILSA
Journal of International & Comparative Law 414. 141
Vanuatu, Negotiation of a Framework Convention on Climate Change (United Nations Framework
Convention on Climate Change 1991) as cited in Burns (n 140) 419.
40
introduced already at this period proposals of loss and damage regimes, in the form of
insurance pools.142
3.2.2 Appearance of the EDP in the adaptation phase
The second period starts around 2006-2007, with the release of the Stern review in 2006 and
the Intergovernmental Panel on Climate Change's ‘Fourth assessment report’, presenting the
climate change's negative consequences on human society. The approach to climate change
drastically changed as the already existing impact of climate change was acknowledged.
Mitigation became an insufficient solution. This is the reason why adaptation was made an
official approach during the COP 13, through the adoption of the Bali Action Plan.143
In this
context, starting from the 2007 Bali Climate Change Conference, EDP, and more precisely
climate-induced migration slowly became part of official state negotiations.144
Since then, the
issue was part of the travaux préparatoires of the following COPs, allowing ‘a structured and
inclusive discussion’.145
The Bali Action Plan created the Ad Hoc Working Group on Long-term Cooperative
Action (AWG-LCA). Its task is to reflect on proposals submitted by parties and observers to
enhance action on adaptation and mitigation. The AWG-LCA compiled all the submissions in
an assembly text for the COP14 in Poznan. This text mentioned the migration topic for the
first time, under the explicit formulation ‘migration and displacement’. The wording switched
to climate refugees in the draft text presented by the AWG-LCA in June 2009. However, the
United States objected against this terminology146
, which led to a more nuanced choice of
words at the COP15 in Cancun.
In the Cancun Adaptation Agreement, the EDP topic is placed in a subparagraph, as a
piece of the bigger adaptation picture. Paragraph 14(f) invites states to take ‘[m]easures to
enhance understanding, coordination and cooperation with regard to climate change induced
142
Burns (n 140) 419. 143
UNFCCC, 'Report of the Conference of the Parties on its thirteenth session, held in Bali from 3 to 15
December 2007 Addendum Part Two: Action taken by the Conference of the Parties at its thirteenth session'
(2007) FCCC/CP/2007/6/Add.1. However, there is no clear definition of adaptation. This is due on the one
hand to the differences between UNFCCC’s and Intergovernmental Panel on Climate Change’s definitions of
climate change; on the other hand, it is also due to the relative adaptive capacity depending on the region.
Nonetheless, the European Commission clarified the goal of adaptation policies is to anticipate ‘the adverse
effects of climate change and tak[e] appropriate action to prevent or minimise the damage they can cause’ as
cited in Anne-Sophie Tabau, ‘Chapter 4 European Union Internal Climate Policies from the Perspective of
Human Rights’ in Directorate-general for External Policies of the Union (ed), Human Rights and Climate
Change: EU Policy Options (EU 2012). 144
Cournil (n 24)15. 145
Warner (n 114) 1074. 146
ibid 1067.
41
displacement, migration and planned relocation, where appropriate, at national, regional and
international levels.’147
This is an openly divergent position from the Alliance of Small Island States. In its
proposals, the Alliance of Small Island States positioned migration and displacement in a
context of liability and compensation.148
On the contrary, the Cancun Adaptation Agreement
puts it in a context of cooperation, and nationally driven solution.149
3.2.3 Institutionalisation of EDP in the development of loss and damage
The limits of the adaptation approach constitute the foundation of the loss and damage
(3.2.3.1). Acknowledged by the international forum, the Warsaw International Mechanism on
Loss and Damage was established. Under its competence, the COP21 mandated the creation
for The Task Force on Displacement (3.2.3.2), which institutionalises EDP. However,
alongside liability, EDP remains a sensitive subject in the context of loss and damage (3.2.3.3).
3.2.3.1 Loss and damage based on the limits of adaptation
The adaptation approach also has its limits. It assumes that communities and individuals can
adapt to the impact of climate change. However, some of these impacts will be too intense for
any kind of adaption infrastructure, such as desertification.150
Another example: plans of sea
walls in Maldives or Tuvalu will fail according to the same civil engineers who planned
them.151
Communities will need compensation for these losses. The existence of loss and
damage in relation to climate change impacts is officially recognised, whether in relation with
extreme weather events or slow onset events. This is where a loss and damage mechanism
shows its adequacy and necessity. However, no definition of loss and damage is set by the
UNFCCC, nor other legal instruments.152
Warner defines it as ‘negative effects of climate
variability and climate change that people have not been able to cope with or adapt to’.153
Burkett clarifies that the concept covers unavoided or unavoidable non-economic losses,
147
UNFCCC, 'Work undertaken by the Conference of the Parties at its fifteenth session on the basis of the report
of the Ad Hoc Working Group on Long-term Cooperative Action under the Convention' (2010) FCCC/CP/2010/2,
14. 148
MJ Mace and Roda Verheyen, 'Loss, Damage and Responsibility after COP21: All Options Open for the Paris
Agreement' (2016) 25 RECIEL 197, 209. 149
Warner (n 114) 1066. 150
Maxine Burkett, ‘Loss and Damage’ (2014) 4 Climate Law 119, 122. 151
ibid 123. 152
UNFCCC, 'Current knowledge on relevant methodologies and data requirements as well as lessons learned
and gaps identified at different levels, in assessing the risk of loss and damage associated with the adverse
effects of climate change' (2012) FCCC/TP/2012/1, para 31. 153
Koko Warner and Kees Van der Geest, ‘Loss and damage from climate change: local-level evidence from nine
vulnerable countries’ (2013) 5 International Journal of Global Warming 367, 369.
42
which are the consequence of slow-onset events.154
The lack of such a mechanism in the
UFCCC has been labelled a ‘gaping hole’ by the Alliance of Small Island States.155
The COP15 laid the basis of the Work Programme on Loss and Damage.156
Developed in
the following COP in Durban, it is truly the 2012 Eighteenth Conference of the Parties (COP
18) in Doha that mandated the creation of an institution to better understand the non-
economic loss and damage, which includes migration and displacement.157
The discussion on
loss and damage has been reduced to the ‘determination of liability’ and ‘financial
compensation’.158
This distracts from primal legal challenges, such as the loss of statehood
and EDP.159
The EU's position at this stage was supportive of this concept. The EU Climate
Commissioner Connie Hedegaard’s stated that the EU was ‘open to find a solution on loss and
damage’, but that the idea was ‘not really mature enough’.160
3.2.3.2 The Task Force on Displacement under the Warsaw International Mechanism on
Loss and Damage
Following the Doha mandate, the Warsaw international mechanism for loss and damage
associated with climate change impacts (Warsaw international mechanism) was established in
December 2013 (COP19). On the foundation of article 8 of the Paris Agreement and
paragraph 50 of the Decision Adopting the Paris Agreement161
, the COP21 mandated the
Warsaw international mechanism with the creation of the Task Force on Displacement. This
task force will present its draft recommendations on the issue at the COP24 Katowice Climate
Change Conference in December 2018. However, the Warsaw international mechanism
154
Burkett (n 117) 119. 155
Subsidiary Body on Implementation, Submission of Nauru on behalf of the Alliance of Small Island States,
'Views and information on elements to be included in the recommendations on loss and damage in
accordance with decision 1/cp.16' (2012), 1. 156
UNFCCC, 'Report of the Conference of the Parties on its sixteenth session, held in Cancun from 29 November
to 10 December 2010 Addendum Part Two: Action taken by the Conference of the Parties at its sixteenth
session' (2010) FCCC/CP/2010/7/Add.1, Decision1/CP.16. 157
UNFCCC, 'Report of the Conference of the Parties on its eighteenth session, held in Doha from 26 November
to 8 December 2012 Addendum Part Two: Action taken by the Conference of the Parties at its eighteenth
session' (2012) FCCC/CP/2012/8/Add.1. 158
Juan P. Hoffmaister, Malia Talakai, Patience Damptey and Adao Soares Barbosa, ‘Warsaw International
Mechanism for loss and damage: Moving from polarizing discussions towards addressing the emerging
challenges faced by developing countries’ (Loss and Damage in Vulnerable Countries Initiative, 6 January
2014) < http://loss-and-damage.net/4950> accessed 30 April 2018 159
Burkett (n 150) 129. 160
Kim Chipman and Alex Morales, ‘Islands Seek Funds for Climate Damage at un Discussions’ (Bloomberg, 4
December 2012) < https://www.bloomberg.com/news/articles/2012-12-03/islands-seek-funds-for-climate-
damage-at-un-talks> accessed 30 April 2018 161
UNFCCC, 'Report of the Conference of the Parties on its twenty-first session, held in Paris from 30
November to 13 December 2015 Addendum Part two: Action taken by the Conference of the Parties at its
twenty-first session' Decision 1/CP.21, para 50.
43
presents its report on the development of its work plan to the COP every year. This
intervention is a major step contributing to the institutionalisation of the EDP subject, as it
puts it now in the centre of the climate change negotiations. The work plan of the Warsaw
international mechanism is spread over five years. The EDP subject will therefore be formally
part of the negotiations for at least the next five years.162
The draft recommendations of the Task force will be based on an assessment of the policy
and practice regarding displacement on a national and an international level, on data
assessment and on the elaboration of a framing and linkages. The UNFCCC presents the task
force as using an inclusive approach to the displacement issue. Considering the diversity of
subjects and fields of law that the framing of EDP includes, such an approach is necessary.
This inclusive approach is manifested through the diversity of its perspectives of analysis, as
well as the members and actors involved in the task force, as presented in the following
graph163
.
162
International Organization for Migration, ‘Newsletter November 2017’ (International Organization for
Migration, November 2017) <http://mailchi.mp/67fb1517b921/environmental-migration-newsletter-nov-
2017> accessed 30 April 2018. 163
UNFCCC, 'Task Force on Displacement at a glance' (UNFCCC August 2017)
<unfccc.int/files/adaptation/groups_committees/loss_and_damage_executive_committee/application/pdf/tfd_
brochure_nov_2017.pdf> accessed 6 May 2018.
44
The graph shows that the inclusive approach is made of the combination of seven
different perspectives. This approach combines different fields of law, such as environmental
law through the adaptation perspective; migration law through the human mobility
perspective; or humanitarian law through the humanitarian perspective. The Task Force
includes members coming from at least eleven different institutional bodies: the UN
Development Programme, the International Labour Organization, the UN High Commissioner
for Refugees, the International Federation of Red Cross and Red Crescent Societies, the
Advisory Group on Climate Change and Human Mobility, the UNFCCC NGO constituency
group of ‘Local government and municipal authorities’, the Adaptation Committee of the
UNFCCC, the Least Developed Countries Expert Group of the UNFCCC, and the Executive
Committee of the Warsaw International Mechanism of the UNFCCC. Despite the range of
diversity of its members, the inclusive approach of the Task Force seems to have neglected to
include a major category of actor and stakeholder in relation to EDP: corporations.164
3.2.3.3 EDP and liability: sensitive loss and damage elements in the Paris Agreement
In the context of negotiation of loss and damage provisions in the Paris Agreement, EDP was
a key element.165
EDP was very present in the draft texts: for example, some of the first drafts
of the loss and damage provisions included the creation of a ‘climate change displacement
coordination facility’. Its role would have been to deal with the needs of EDP and to plan
relocations. Contested by Australia, the facility was removed from the later versions. Some of
these later versions would not even mention EDP at all.166
The loss and damage and EDP
provisions of the decision are the result of a nuanced compromise between these two opposite
positions.
Burkett emphasizes the importance of these loss and damage provisions (article 8) as they
‘affirm the parties’ commitment to loss and damage and recognise adaptation’s constraints and
the failures of mitigation efforts to date’.167
However, they prove to be insufficient for two
reasons. The first reason is the silence on the funding of the infrastructure of loss and damage.
Article 8 does not mention anything in relation to any kind of funding, nor does article 9 –
which is the article setting the financial resources for developing countries.168
The second reason is the issue of liability, which has been radically excluded from the loss
and damage provision, as shows article 8, and paragraphs 48 to 52 of the accompanying
164
About the involvement of corporations regarding EDP, see section 6.4. 165
Burns (n 140) 427. 166
Burkett (n 117) 124. 167
ibid 122. 168
ibid.
45
Decision text169:
‘article 8 of the Agreement does not involve or provide a basis for any
liability or compensation’.170
The liability issue has been a very sensitive topic with a divide
between Alliance of Small Island States and developed countries. The more nuanced EU
position on the matter of loss and damage was, however, sceptical regarding liability.171
The
radical exclusion of liability from loss and damage provisions of the Paris Agreement has
been heavily criticised. One of the main arguments is that liability could not be excluded as it
can be founded on principles of international environmental law, such as the principle of no-
harm, polluter-pays, common but differentiated responsibilities or the principle of equity.172
Therefore, paragraph 52 cannot exclude liability in relation to loss and damage. Not only
this, but these principles could also be a ground for building an EDP legal framework within
the EU. A revision of the exclusions of liability is itself not excluded to happen in the
following COPs.173
3.3 Principles of EU environmental law as a potential basis for the EDP
Principles of environmental law shape environmental policies and offer a justification for
environmental legislation: this is an undisputed statement.174
The first paragraph of article
191(2) TFEU codifies both the precautionary principle and the polluter pays principle. These
principles are meant to orientate environmental regulation. This includes regulations with an
extraterritorial dimension, whether it is the action itself that is external or its effects.175
Therefore, polluter pays principle (3.3.1), precautionary principle (3.3.2), and no-harm
principle (3.3.3) are options to explore in the founding of an EU EDP framework.
3.3.1 Polluter Pays Principle
Polluter pays principle was conceived as an economic principle. Its aim is to ensure the
internalisation of negative environmental externalities. It is one of the oldest EU
environmental principles. First formulated by the Organisation for Economic Co-operation
and Development in 1972, a year later it was part of the European Community’s first ‘Action
Programme on the Environment’. It is now incorporated in article 191(2) TFEU. The
European Council clarified that principle, explaining that it ensures ‘that prices reflect the real
169
ibid 123. 170
UNFCCC (n 161) para. 52. 171
Burkett (n 150) 126. 172
Burkett (n 117) 120 173
Burns (n 140) 431. 174
Ludwig Krämer, EU Environmental Law (Sweet & Maxwell, 7th ed, 2011) 15. 175
Eckes (n 119)194
46
costs to society of consumption and production activities and that polluters pay for the
damage they cause to human health and the environment’.176
The use of the polluter pays
principle to found a framework for EDP implies a principle of historical responsibility for
developed countries. Two hints of EDP framework are presented here based on the polluter
pays principle: an ex post obligation (3.3.1.1) and a global insurance scheme for EDP
(3.3.1.2).
3.3.1.1 Ex post obligation
Polluter pays principle could apply as monetary compensation, based on an ex post obligation
for states to compensate EDP. Eckerley bases this compensation on ‘each state’s relative
causal contribution to the loss and damage suffered, measured in terms of total cumulative
emissions rather than current aggregate or per capita emissions’.177
Ian Clark, in The
Vulnerable in International Society, argues that admitting EDP could be considered ‘as part of
the price that can fairly be exacted by application of a polluter pays principles’.178
Nevertheless, the cumulative emissions raise the issue of the ‘excusable ignorance’,
presuming that the polluters were not aware of the harmful effects of their activities.179
Nonetheless, Krämer reminds that it is nearly impossible to identify a polluter post facto, in
the case of environmental damages caused by cumulative actions of a large number of
polluters, as it is the case in climate change.180
This impossibility could be problematic to use
polluter pays principle as the foundation of an EU EDP framework.
3.3.1.2 Global insurance scheme
To apply polluter pays principle to EDP means to internalise it as a negative
environmental cost in the economic system. Adopting this perspective, Hanke proposes a
global insurance scheme.181
A first model would consider migration as compensation. The
right to enter a state would constitute the compensation, but also a Pigovian tax on the
polluting state.182
A second model considers migration as a cause of compensation. Polluters
would contribute to a mandatory compensation fund proportional to their greenhouse gas
176
Rafael Reuveny, Will H Moore, ‘Does Environmental Degradation Influence Migration? Emigration to
Developed Countries in the Late 1980s and 1990s’ (2009) 90 Social Science Quarterly 461, 476. 177
Robyn Eckersley, ‘The common but differentiated responsibilities of states to assist and receive ‘climate
refugees’’ (2015) 14 European Journal of Political Theory 481, 485. 178
Ian Clark, The Vulnerable in International Society (Oxford University Press 2013) 146. 179
ibid. 180
Krämer (n 170) 26. 181
Philip C Hanke, ‘Climate Change, Environmental Damage and Migration: A Law and Economics Perspective’
in Klaus Mathis and Bruce R Huber (eds), Environmental Law and Economics Volume 4 (Springer 2017) 437. 182
This presumes that EDP would migrate to the polluting states.
47
production. This scheme has the advantage of involving corporations, often not considered in
the EDP discussion.183
However, reducing EDP to an environmental cost raises the problem of
monetisation of an invaluable subject and also ignores the human rights of EDP.
3.3.2 Precautionary principle
Where the polluter pays principle might not apply because of lack of certainty, the
precautionary principle might. In the international environmental policy, the earliest statement
establishing this principle is article 15 of the Declaration of the 1992 UN Conference on
Environment and Development. In EU law, its legal basis started in the Article 130R (then
Article 174(2)) of the 1992 Maastricht Treaty. However, it was first explicitly referred to in a
European Commission communication from 2000.184
It has been criticised for being vague
and incoherent as a legal basis: there is indeed no single approach to the principle.185
Following the Rio version, three pre-requisites are necessary to apply the precautionary
principle. Firstly, the identification of potentially adverse effects, meaning serious or
irreversible damage; secondly, a scientific evaluation; and thirdly, scientific uncertainty. When
applied to the EDP, three main problems appear: the element of uncertainty (3.3.2.1), the
human aspect of EDP (3.3.2.2) and the territorial jurisdiction of the principle (3.3.2.3).
3.3.2.1 Element of uncertainty
The first problem is the uncertainty in identifying a polluter as a responsible in the case of
EDP. The precautionary principle is built on scientific uncertainty. Does that uncertainty also
include the uncertainty of the identification of the responsible? The Commission states that in
order to use the precautionary principle, it is necessary to be ‘capable of assigning
responsibility for producing the scientific evidence necessary for a comprehensive risk
assessment’.186
Therefore, the uncertainty applies to the element of damage and not to the
identification of the responsible. However, uncertainty raises proof problems. This uncertainty
cannot be based on hypotheses that are not scientifically confirmed.187
The risk must be
183
The incorporation of corporations will be discussed in the last section in the context of an international
economic law and labour migration approach to EDP. 184
European Commission. Communication from the Commission on the Precautionary Principle. Brussels:
Commission of the European Communities (2000) COM(2000) 1final. 185
Science Communication Unit UWE Bristol, ‘Science for Environment Policy. The Precautionary Principle:
decision making under uncertainty’ (European Commission DG Environment 2017).5. 186
European Commission (n 184) para 3. 187
Case T-229/04 Kingdom of Sweden v Commission of the European Communities [2007] ECR 2007 II-02437,
para 147.
48
‘adequately backed up with scientific data’.188
This could be problematic considering the
debate regarding EDP’s scientific data, its link with climate change and its multicausal aspect.
3.3.2.2 Human aspect
The second problem relates to the human aspect of the damage related to climate change in
the EDP case, as the understanding of the precautionary principle applies originally to the
environment. Nevertheless, as clarified by the Commission, in practice, the scope of the
precautionary principle is wider than this. It also covers ‘EU legislation concerning food and
human, animal and plant health’.189
In the same line as the Commission's communication, the
CJEU applied the precautionary principle to human health, therefore giving it a human
dimension.190
3.3.2.3 Territorial jurisdiction
The third problem is that protection under this principle does not extend outside the state's
jurisdiction. Nonetheless, Eckes reminds the extra-territorial dimension of EU principles
according to article 191: the principle applies also for regulations that is external or that has
external effects.191
Poon elaborates a theoretical use of the precautionary principle192
along with the non-
refoulement principle as a legal framework of protection for the EDP.193
She proposes to
apply the extraterritorial scope of the non-refoulement principle to the precautionary principle.
This spatial extension of the scope of the precautionary principle should allow covering the
EDP. The principle of non-refoulement applies extra-territoriality in a specific way: it
attributes state responsibility to a state where it is proven that agents have acted under a state’s
effective control and authority. In the same line, Poon suggests that the precautionary
principle applies to the state when individual polluters – who contributed to the effects of
climate change - have acted under the direct ‘effective control and authority’ of the state. This
allows, firstly, identifying a responsible polluter. Secondly, the state operating its effective
control over the polluter is left with a duty to take precautionary actions.
188
Case T-13/99 Pfizer Animal Health SA v Council of the European Union [2002] ECR II-03305, para 144. 189
European Commission (n 178) para 3. 190
The CJEU first case linking human health and precautionary principle was about the British bovine
spongiform encephalopathy in Case C-180/96 United Kingdom of Great Britain and Northern Ireland v
Commission of the European Communities [1998] ECR 1998 I-02265. 191
Eckes (n 119) 194. 192
The theoretical use follows a more general interpretation of the precautionary principle, therefore not strictly
sticking with the EU interpretation of the principle. 193
Jenny Poon, ‘Chapter 10: Drawing upon International Refugee Law: The Precautionary Approach to
Protecting Climate Change Displaced Persons’ in Simon Behrman and Avidan Kent (eds), Climate refugees:
beyond the legal impasse (Routledge 2018) 164.
49
3.3.3 No-harm principle
The existence of the no-harm principle (or preventive principle) was recognised in the 1938
Trail Smelter Arbitration194
and the 1996 International Court of Justice Nuclear Weapons
case195
. It is laid down in the principle 21 of the 1972 Stockholm Declaration196
. Principle 2
of Rio Declaration197
, article 3 of the Convention on Biological Diversity (Article 3)198
and
preambular recital 8 of UNFCCC199
repeat the principle. In EU law, TEC article 174(2)
recognises the no-harm principle. According to this principle, a state is bound to prevent,
reduce and control the risk of environmental harm to other states.200
Regarding territorial application, this environmental principle is transboundary. The
transboundary qualification does not presume a common border between two states.201
Therefore, the territorial jurisdiction does not constitute an issue, as in the case of the
precautionary principle. However, EDP does not fit the traditional conception of
transboundary pollution. Firstly, due to the burden of proof and certainty. This is mainly due
to EDP’s multicausality and lack of immediate link between cause and effect. This is
exacerbated by the fact that this principle does not give space to the element of uncertainty as
the precautionary principle does, as the no-harm principle presumes a known risk. For this
reason, this principle is said to be less malleable than the precautionary principle.202
As for the human aspect, this principle was originally intended to apply in the EU in case
of industrial pollution203
and resource exploitation. Nonetheless, a detrimental effect on
human health, if broadly measurable in monetary terms, can lead to the application of the no-
harm principle.204
An extension of the no-harm principle to a broader human approach could
be considered, such as an application of the principle to extra-territorial human rights
violations. De Schutter, in his Commentary to the Maastricht Principles, supports this
approach.205
A combined approach between this principle of environmental law and human
194
Trail Smelter case [1941] 3 RIAA 1905. 195
International Court of Justice, Legality of the Threat or Use of Nuclear Weapon (Advisory Opinion) (1996) 35
I.L.M. 814. 196
UN General Assembly, United Nations Conference on the Human Environment [1972] A/RES/2994. 197
UN General Assembly, United Nations Conference on Environment and Development [1992]
A/CONF.151/26. 198
United Nations, Convention on Biological Diversity [1992] 1760 U.N.T.S. 69. 199
UN General Assembly, United Nations Framework Convention on Climate Change [1994] A/RES/48/189. 200
Ian Brownlie, Principles of Public International Law (Oxford University Press, 7th ed., 2008) 275. 201
UN General Assembly, ‘Report of the International Law Commission: Draft articles on Prevention of
Transboundary Harm from Hazardous Activities, with commentaries’ (2001), article 2(c). 202
Science Communication Unit UWE Bristol (n 181) 4. 203
Nicolas de Sadeleer, ‘The Principle of Prevention’ in Nicolas de Sadeleer (ed), Environmental Principles:
From Political Slogans to Legal Rules (Oxford University Press 2002) 68. 204
UN General Assembly (n 201) article 2 commentary para 4. 205
Olivier de Schutter, Asbjørn Eide, Ashfaq Khalfan, Marcos Orellana, Margot E. Salomon, and Ian Seiderman,
50
rights law would offer a stronger legal foundation and fit an EDP framework better as the EU
operates in a human rights-based framework. This will be discussed in detail in section 4.
Polluter pays principle, precautionary and no-harm principle do not seem to create any
positive legal obligations for the EU legislator as for now.206
The previous analysis offered
new paths of interpretation that would favour a legal framework for the EDP based on
environmental law. The approach taken by Poon and de Schutter is relevant in the sense that it
combines different fields of law. This is particularly appropriate as EDP covers different fields
of law, which will be considered in the following parts of this thesis.
3.4. Conclusion
The primary aim of international environmental law is the protection of the environment.
Nonetheless, EDP gradually became part of official international negotiations starting from
2007, at the Bali Climate Change Conference.207
It is however the COP21 Paris Agreement
that is considered to be a landmark regarding EDP, mainly due to the creation of the Task
Force on Displacement under Warsaw International Mechanism on Loss and Damage and its
loss and damage provisions including EDP. The COP23 encourages Parties to actively engage
in the work in the decision CP.23 para 13(c) of the WIM Excom, by ‘incorporating or
continuing to incorporate the consideration of extreme weather events and slow onset events,
non-economic losses, climate change impacts on human mobility’.208
While the international scene seems to privilege the environmental law forum to discuss
the matter of EDP, it seems that the EU tends to adopt a different approach internally.
Nonetheless, it is still important to consider EU environmental principles as potential
instruments to found an EU EDP framework. This section reviewed the polluter pays principle,
the precautionary principle and the prevention principle. The polluter pays principle could be
the theoretical foundation of a compensation scheme. However, both the polluter pays
principle and the no-harm principle have a limited relevance, as they are based on certainty
rather than the notion of risk. This is why the precautionary principle is relevant, due to its
element of uncertainty. Doing a cross-analysis of the precautionary principle with the
principle of non-refoulement, adds an extra-territorial dimension to this principle of
‘Commentary to the Maastricht Principles on Extraterritorial Obligations of States in the area of Economic,
Social and Cultural Rights’ (2012) 34 HUM. RTS. Q. 1084, 1095-96. 206
Johan Arvidsson, ‘Getting the price right: Exploring the legal possibilities of taxing meat and dairy
consumption in the EU on environmental grounds’ (Bachelor Thesis, Lund University 2016) 1. 207
Cournil (n 25) 15. 208
UNFCCC, 'Report of the Executive Committee of the Warsaw International Mechanism for Loss and Damage
associated with Climate Change Impacts' (2017) FCCC/SB/2017/L.5 Draft decision -/CP.23.
51
environmental law. Therefore, a cross-analysis strengthens options for an EU EDP framework
de lege ferenda.
There is little talk of EDP on environmental law grounds. One hypothesis explaining this
is the traditional conception of environmental law as protecting the environment. However, in
the EU, environmental law is not secluded as proves its interaction with the human health
objective. Another hypothesis could explain it considering that the international
environmental law develops in a different way, or different pace, than the EU environmental
law due to its soft law nature. At the international level, discussions are slowly assimilating
loss and damage principles. At the European level, the adaptation approach is only being
adopted. The EU environmental law is still in the idea of protecting and adaption; loss and
damage principles are not yet incorporated. Therefore, a dialogue on what is a global, non-
economical environmental loss is yet hardly possible internally on this ground. It is necessary
to research complementary or alternative grounds in other fields of law.
52
4. European Human Rights approach to EDP
Unlike environmental law, human rights treaties present vertical obligations, between state
and citizens rather than between states. The environmental field and the human rights field
have traditionally been thought of as two independent spheres of rights. Van der Bank
distinguished three common approaches between environmental protection and human
rights.209
A first approach would be the instrumentalisation of environmental protection to
fulfil human rights standards. A second approach would be to instrumentalise the legal
protection of human rights to achieve environmental protection. A third approach would be to
interfuse both legal sets. The previous chapter was an attempt at developing the first approach:
protection of EDP built on conventional environmental obligations. This chapter aims at
seeking a foundation for EDP protection within the EU human rights system.
As Zetter and Morrisey stated: ‘environmental stress in general and climate change
potentially impinge on the enjoyment of this wide range of domestic and internationally
protected rights’.210
Environmental displacement disrupts livelihoods, separates families and
splinters society. It is more likely to affect vulnerable groups, such as women, children and
old people.211
Therefore, the protection of EDP’s fundamental rights can be analysed on
several levels.
In this context, it is necessary to make some short preliminary remarks on the relationship
between the EU and the relevant texts connected to international human rights, as well as
human rights and climate change more generally (4.1). Subsequently, the features and
principles specific to a human rights–based approach that are relevant to EDP (4.2) are
considered. Finally, examples of rights that could virtually be the foundation of the
displacement are examined (4.3).
4.1 Preliminary remarks on the EU and international human rights bodies of texts
To understand the relevance of a human rights framework regarding EDP, it is necessary to
first understand the position of the EU regarding international human rights treaties and
209
Marjoné Van der Bank, ‘Sustainable Development: The Human Rights Approach to Environmental Protection
in South Africa’ (2015) 9 International Journal of Social, Behavioral, Educational, Economic, Business and
Industrial Engineering 672, 672. 210
Roger Zetter and James Morrissey, ‘Environmental stress, displacement and the challenge of rights protection’
in Susan F. Martin, Sanjula Weerasinghe, Abbie Taylor (eds), Humanitarian Crises and Migration: Causes,
Consequences and Responses (Routledge 2014) 68. 211
Rafiqul Islam and Jahid Hossain Bhuiyan, An Introduction to International Refugee Law (Brill 2013) 231.
53
institutions (4.1.1). Thereafter, an overview of the relationship between human rights and the
environment (4.1.2) is given in order to understand the relevance of a human rights-based
approach of EDP.
4.1.1 International human rights bodies of texts and the EU
The EU founding treaties do not refer to any fundamental rights. To counterbalance this, the
CJEU gave fundamental rights the status of general principles of Community law.212
However,
the Lisbon Treaty strengthened the human rights protection system of the EU. It gave
fundamental rights the status of general principles.213
It also gave a legal value similar to the
Treaties to the Charter of Fundamental Rights of the European Union214
, the EU's main
human rights instrument.
However, to understand the relevance of a human rights framework regarding EDP, it is
necessary to first understand the position of the EU regarding international human right
treaties and institutions (4.1.1.1), and the European Convention for the Protection of Human
Rights and Fundamental Freedoms215
(4.1.2), as CJEU uses them as sources.
4.1.1.1 International human rights treaties and institutions
The CJEU referred to international treaties as a source of general principles of human rights.
International treaties, ratified by all member states, must be considered a source of
fundamental rights in the EU, according to the Lisbon Treaty. Relevant treaties are: the 1948
Universal Declaration of Human Rights216
, the1959 ECHR, the 1965 International
Convention on the Elimination of All Forms of Racial Discrimination217
, the 1966
International Covenant on Civil and Political Rights218
, the 1966 International Covenant on
Economic, Social and Cultural Rights219
, the 1979 International Convention on the
Elimination of All Forms of Discrimination Against Women220
, the 1984 Convention against
Torture221
, the 1989 Convention on the Rights of the Child222
and the 2007 Convention on the
212
CJEU, case 29-69 Erich Stauder v City of Ulm [1969] ECR 419. 213
Cournil (n 95) 24. 214
European Union, Charter of Fundamental Rights of the European Union [2012] 2012/C 326/02 (The Charter). 215
Council of Europe, European Convention for the Protection of Human Rights and Fundamental Freedoms, as
amended by Protocols Nos. 11 and 14 [1950] (ECHR). 216
UN General Assembly, Universal Declaration of Human Rights [1948] 217 A (III). 217
UN General Assembly, International Convention on the Elimination of All Forms of Racial Discrimination
[1965]. 218
UN General Assembly, International Covenant on Civil and Political Rights [1966]. 219
UN General Assembly, International Covenant on Economic, Social and Cultural Rights [1966]. 220
UN General Assembly, Convention on the Elimination of All Forms of Discrimination against Women [1979]
A/RES/34/180. 221
UN General Assembly, Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or
54
Rights of Persons with Disabilities223
. All these instruments guarantee the protection of human
rights within the jurisdiction of the EU.
Although the UN High Commissioner for Refugees is not an EU institution, it is important
to remember its supervisory role when it comes to EU asylum policy. Article 17 of the
Amsterdam Treaty confirms this role, establishing the consultative role of the UN High
Commissioner for Refugees on asylum matters. Its comments and conclusions are therefore
used as a reference in the following chapters.
4.1.1.2 The ECHR and the EU
The ECHR constituted an influential instrument in the making of the human rights protection
system in the EU. While the Lisbon treaty gave force to the Charter, it is necessary to
understand where the ECHR stands after Lisbon (4.1.1.2.1) for understanding its relevance
regarding an EU legal framework for EDP. Regarding this framework, the dynamic
interpretation of the European Court of Human Rights (EctHR) could constitute a key element
in favour of EDP (4.1.1.2.2).
4.1.1.2.1 The ECHR in the EU after Lisbon
The ECHR constitutes a source of law in the EU, for the CJEU and for the EU legal system
more generally. It provided ‘guidelines for the Court in laying down those fundamental rules
of law which are part of Community law, though the Convention does not bind, and is not part
of the law of, the Community as such’.224
The Charter – initiated in 1999 - drew on the ECHR,
alongside international instruments, and common constitutional traditions of the member
states. Nevertheless, the Charter did not make the role of the ECHR obsolete in the EU legal
system.
Although the treatment of human rights is a new phenomenon in the EU, the EU can offer
higher standards of protection than the ECHR. Article 52(3) of the Charter states that although
the meaning and scope of the Charter rights guaranteed by the ECHR remains the same, ‘this
provision shall not prevent Union law providing more extensive protection’.
While article 6 of the Lisbon Treaty gives its force to the Charter, it also obligates the EU
to access to the ECHR. This accession could have an impact on the strengthening of a human
Punishment [1984]. 222
UN General Assembly, Convention on the Rights of the Child [1989]. 223
UN General Assembly, Convention on the Rights of Persons with Disabilities [2007] A/RES/61/106. 224
Case C-159/90 Society for the Protection of Unborn Children Ireland Ltd v Stephen Grogan and others [1991]
ECR I-04685, Opinion of AG W. Van Gerven, para 30.
55
rights based approach framework for EDP.225
Nonetheless, so far, the EU did not access the
ECHR, and the CJEU rejected the 2015 draft accession.226
The main reasons of this rejection
are the insufficient protection of the EU's specific protection and the CJEU's exclusive
jurisdiction.
4.1.1.2.2 The dynamic interpretation of the EctHR in favour of EDP?
The EU can offer broader protection of human rights than the ECHR through the
establishment of higher standards. Nonetheless, when it comes to discrimination based on
nationality (an important type of discrimination regarding EDP), the protection under the
ECHR is wider than the one under EU law, as underlines the coming section 4.2.2.2. It was
already pointed out that the ECHR constitutes a source of law for the EU. Furthermore, the
EctHR also constitutes a source of law in the EU system. However, the EU is not bound to
follow the letter of the ECHR, nor the case law of the EctHR.227
The CJEU has exclusive
jurisdiction on the interpretation of EU law. Nevertheless, a specific aspect of the EctHR
system is worth mentioning for EDP: its dynamic and evolutive interpretation. This method of
interpretation was phrased in the 1978 case of Tyrer v. the United Kingdom:
the Convention is a living instrument which, as the Commission rightly stressed, must be
interpreted in the light of present-day conditions. In the case now before it the Court cannot but
be influenced by the developments and commonly accepted standards in the penal policy of the
member states of the Council of Europe in this field.228
The dynamic interpretation of the EctHR could therefore constitute an important feature in
the context of EDP. EDP is a new challenge in contemporary law, and the legal gap around it
could use reinterpretation, or new interpretation of the available instruments which could be
used to fill this gap. The jurisprudence of the EctHR constitutes a source for the EU, and
inspires EU legislation. Fahey describes this as a 'norm-cascade' phenomenon in EU law. She
points out the existence of such a norm-cascade when there is an EU-ECHR law equivalence,
explicitly taken from the ECHR by the EU. She defines this equivalence as ‘the legislature's
efforts to explicitly 'pin' EU law to ECHR norms, case law and standards in EU legislation’.229
225
For instance, regarding the difference in the treatment of extraterritorial obligation between the two Courts,
discussed in 4.2.3. 226
Rafał Manko, ‘EU accession to the European Convention on Human Rights’ (European Parliament Think
Tank 2012)
<http://www.europarl.europa.eu/thinktank/en/document.html?reference=EPRS_BRI%282017%29607298>
accessed 30 April 2018. 227
Tawhida Ahmed and Israel Jesus Butler, ‘The European Union and Human Rights: An International Law
Perspective’ (2006) 17 EJIL 771, 771. 228
Tyrer v UK Application No. 5856/72 (ECHR, 25 April 1978) para 31. 229
Elaine Fahey, The Global Reach of EU Law (Routledge 2017) 83.
56
This is a first advantage in using a human rights approach within an EU perspective of legal
framework for EDP.
The influence of the EctHR regarding the EDP framework is even more important as it is
progressively integrating environmental problems under its human rights protection.230
The
interaction between human rights and climate change in the legal field is still new, in the EU
as much as in the international arena. The understanding of this interaction, at both levels, is
necessary to develop a human rights based approach for an EDP framework.
4.1.2 Human rights and climate change
The following sections present an overview of the legal relationship between human rights
and climate change at the international level (4.1.2.1), and at the EU level (4.1.2.2).
4.1.2.1 Human rights and climate change at the international level
At the international level, the Office of the United Nations High Commissioner for Human
Rights promoted a human rights-based approach for climate change. They were aiming for the
introduction of human rights principles in the UNFCCC.231
The relationship between human
rights and climate change started to be valued in the 7th session of the Human Rights Council
in March 2008.232
In its resolution 7/23 on ‘human rights and climate change’, the Human
Rights Council explicitly stated for the first time233
that ‘climate change poses an immediate
and far-reaching threat to people and communities around the world and has implications for
the full enjoyment of human rights’. Furthermore, in its 2009 resolution 10/4, the Human
Rights Council recognised the impact of climate change on human rights, underlining that
‘human rights obligations and commitments have the potential to inform and strengthen
international and national policymaking in the area of climate change’. Resolution 20/9234
,
resolution 23/8235
and resolution 29/15236
state concerns about the impact of climate change
on human displacement.237
230
Sgro (n 25). 231
Jane McAdam and Marc Limon, Policy Report. Human Rights, Climate Change and Cross-Border
Displacement: The Role of the International Human Rights Community (Universal Rights Group 2015) 8. 232
ibid 6. 233
Mizan R Khan, Towards a Binding Climate Change Adaptation Regime: A Proposed Framework (Routledge
2013) 151. 234
‘Recognises the adverse effects of climate change as contributors to environmental degradation and extreme
weather events, which may, among other factors, contribute to human displacement’ in UN Human Rights
Council, ‘Resolution 20/9. Human rights of internally displaced persons’ (2012) A/HRC/20/L.14 para 26. 235
‘Expresses concern at the displacement caused by natural disasters, exacerbated by the expected effects of
climate change and by poverty, and recognised the need for a human rights-based approach’ in UN Human
Rights Council, ‘Resolution 23/8. Mandate of the Special Rapporteur on the human rights of internally displaced
persons’ (2013) A/HRC/RES/23/8 para 11.
57
The Cancún Agreements and its preambular paragraphs 7 and 8 achieved the first explicit
reference to the protection of human rights. The latter states ‘parties should, in all climate
change related actions, fully respect human rights’. However, the opposition to this human
rights provision was important. McAdam explains that it is ‘a belief that human rights should
be dealt with by the Council and climate change by the COP, and ‘never the twain shall
meet’.238
Despite this inclusion, McAdam characterises this a ‘broad failure’ 239
, as these
provisions did not have any significant practical follow up.240
4.1.2.2 Human rights and climate change at the EU level
When it comes to the relationship between human rights and climate change in the EU, three
different levels of applications can be distinguished. Firstly, the Charter constitutes a legal
framework to any measures. This means that legal responses to climate change have to be
compatible with the Charter. Therefore, a human rights-based approach needs to be
considered already in the elaboration phase of responses, but also in their application. When
applying EU law, member states must consider the Charter, according to the subsidiarity
principle, stated in Article 51. Article 2 TEU also states that the EU ‘is founded on the values
of respect for human dignity, freedom, democracy, equality, the rule of law and respect for
human rights, including the rights of persons belonging to minorities.’
Secondly, the Charter carries one express reference to the environment. Article 37 states
that ‘a high level of environmental protection and the improvement of the quality of the
environment must be integrated into the policies of the Union and ensured in accordance with
the principle of sustainable development.’ This article was criticised for not introducing a
right to a healthy environment, a subjective right that could be invoked by individuals.241
Unsatisfied with this one weak reference, Cournil underlines the need to ‘create an explicit
link between environmental protection and human rights within a European instrument’.242
Thirdly, the Charter offers protection to different human rights, which could potentially be
violated by the impact of climate change, which is relevant to EDP. The Charter protects a
broad range of rights, from the three different rights generations.
236
‘Expresses concern that climate change has contributed to the increase of both sudden-onset natural disasters
and slow-onset events and that these events have adverse effects on the full enjoyment of all human rights’ in
UN Human Rights Council, ‘Resolution 29/15. Human rights and climate change’ (2015) A/HRC/29/L.21 para 1. 237
McAdam and Limon (n 231) 19. 238
ibid 8. 239
ibid 9. 240
As for the evolution towards the recognition and reference to EDP in the UNFCCC, see previous chapter. 241
Cournil (n 101) 24. 242
ibid.
58
4.2 Advantages in using a human rights approach
In its report on the relationship between climate change and human rights, the United Nations
High Commissioner for Human Rights stated that ‘irrespective of whether climate change
effects can be construed as human rights violations, provide important protection to the
individuals whose rights are affected by climate change’.243
This section will review the main
general human rights features that make it a relevant instrument to EDP, such as the element
of universality (4.2.1), the element of extra-territoriality (4.2.2), and the element of duty
(4.2.3).
4.2.1 The element of universality
The universality of human rights has a theoretical and express foundation (4.2.1.1). The
concept of universality extends to the one of equality of application of human rights, and
therefore non-discrimination between citizens and non-citizens. The non-citizen category is
perhaps the most relevant here for EDP, as it includes asylum seekers, rejected asylum seekers,
refugees, migrants; and EDP remains to be legally defined. International human rights law is
limiting more and more the states' power to treat non-citizens differently from citizens.
Nonetheless, jurisprudence of EctHR (4.2.1.2) show that this treatment differs case by case. It
is also the case in EU law (4.2.1.3)
4.2.1.1 Foundation of universality
States must guarantee human rights in an equal manner towards every individual. This comes
from the philosophical presumption that human rights are natural rights, and therefore
belonging to all. Regarding international human rights law, article 2(1) of the International
Covenant on Civil and Political Rights confirms this universality. At the EU level, it is set in
the Preamble of the Charter: ‘the Union is founded on the indivisible, universal values of
human dignity, freedom, equality and solidarity’.
However, human rights law allows for some distinctions. One of the distinction that might
affect the most EDP is the one between citizens and aliens. At the international level, such a
distinction is allowed if proportionally justified. Nevertheless, states still have the
responsibility to promote, protect and fulfil human rights, for all people within their territory
or jurisdiction, regardless of citizenship.244
The Committee on the Elimination of Racial
243
UN Human Rights Council, ‘Report of the Office of the United Nations High Commissioner for Human
Rights on the relationship between climate change and human rights’ (2009) A/HRC/10/61, para 71. 244
Jane McAdam, ‘Should I stay or should I go? Shaping International responses to climate change, disasters and
displacement’ (University of New South Wales Law, April 2017)
59
Discrimination Committee stated the necessary guarantee of equality between citizens and
non-citizens in its General Recommendation XXX on discrimination against non-citizens.245
In this line, Soysal argued already in 1994 that in Europe, rights were attached to
personhood, as opposed to citizenship, including both citizens and non-citizens246.
.Although a
premature statement247
, it is true that the CJEU increasingly requires EU member states to
treat citizens and non-citizens who are legally resident equally, including when it comes to
social rights.
4.2.1.2 ECtHR treatment of non-nationals' rights
Prohibition of discrimination based on nationality was slowly becoming a general principle of
international and European human rights law.248
In the ECHR, article 14 establishes the right
to non-discrimination. The protection against discrimination provided by the ECHR is limited
to the scope of the rights under its text. The ECtHR allows for differential treatment, if
justified. The criteria of such a justification were stated in the James Case.249
The differential
treatment must firstly, have an objective and reasonable justification, secondly, pursue a
legitimate purpose, and thirdly, be proportional. The justification is not the same whether the
differential treatment is related to a provision allowing the member state to have a margin of
appreciation or not.
The case Koua Poirrez against France is an example of non-discrimination regarding third
rights generation. The applicant, who was an Ivory Coast national, had seen his benefit
application for disability declined, on the basis that such benefits where only for French
nationals. The ECtHR concluded that there was a case of discrimination as this differential
treatment was only based on national origin, while the applicant had all the necessary legal
criteria to receive the benefit.
However, the most relevant to EDP is the case of admission and expulsion of non-citizens.
The protection under the ECHR is said to be theoretically wider than the one under EU law
<http://www.law.unsw.edu.au/news/2017/04/should-i-stay-or-should-i-go-shaping-international-responses-
climate-change-disasters> accessed 30 April 2018There is however a strong exception regarding the right to
vote. 245
Siobhan McInerney-Lankford, ‘Climate change, human rights and migration: a legal analysis of challenges
and opportunities’ in Benoît Mayer and François Crépeau (eds), Research handbook on climate change,
migration and the law (Edward Elgar Publishing 2017) 144. 246
Yasemin Nuhoglu Soysal, Limits of Citizenship: Migrants and Postnational Membership in Europe
(University of Chicago 1994) 164. 247
Kate Nash, The Political Sociology of Human Rights (Cambridge University Press 2015)143. 248
Olivier de Schutter, ‘Links between migration and discrimination’ (Publications Office of the European Union,
Luxembourg, 2009) 78. 249
James and ors v UK, Merits, App No 8793/79 (ECHR, 21 February 1986) para 50.
60
when it comes to discrimination based on nationality.250
Nonetheless, the EctHR allows
differentiation depending on the nature of the right involved.251
This differentiation is
tolerated in case of expulsion.252
The case Moustaquim against Belgium is an example of the
admitted proportionality of a differential treatment when it comes to deportation. In this case,
a Moroccan national was convicted for criminal offences, and for this reason, was about to be
deported. While EU nationals cannot be deported, the EctHR stated that this treatment was
reasonable and justified, as the EU constitutes a ‘special legal order’.253
Brouwer and de Vries
also stress that when the applicant is stateless or has refugee status, it makes the case for equal
treatment stronger.254
4.2.1.3 EU treatment of non-nationals’ rights
Article 18 TFEU covers the prohibition of discrimination on nationality grounds. Article 21(2)
of Charter also ensures it. It presumes equal treatment of EU citizens regardless of their
member state of origin. This equal treatment of EU citizens and their family members is
founded on the principle of freedom of movement, and the Citizenship Directive 2004/38.255
The article 18 TFEU is based on article 12 EC. CJEU interpreted article 12 EC as not
applying to non-EU citizens, in the Vatsouras judgment.256
However, since the Lisbon Treaty
and the Charter, the CJEU did not offer a clear interpretation of the meaning of the article 18
TFEU.257
250
Icelandic human rights centre, ‘An overview of the case law on the prohibition of discrimination of the CJEU
and the ECtHR’ (Icelandic human rights centre) <http://www.humanrights.is/static/files/Itarefni/an-overview-
of-the-case-law-on-the-prohibition-of-discrimination-of-the-CJEU-and-the-ecthr-emilie.pdf> accessed 30
April 2018. 251
Evelien R Brouwer and Karin M de Vries, ‘Third-country nationals and discrimination on the ground of
nationality: article 18 TFEU in the context of article 14 ECHR and EU migration law: time for a new
approach’ in Marjolein van den Brink, Susanne Burri and Jenny Goldschmidt (eds), Equality and human
rights: nothing but trouble? (SIM 2015) 133. 252
It is also tolerated in case of access to the profession of a lawyer as in Bigaeva v. Greece Application No
26713/05 (EctHR, 28 May 2009); or access to ‘resource-hungry public services’ as in Ponomaryovi v.
Bulgaria Application No 5335/05 (EctHR. 21 June 2011). 253
Moustaquim v. Belgium Application No 12313/83 (ECHR, 18 February 1991) 49. 254
Brouwer and Vries (n 251) 134. 255
European parliament and Council Directive (EC) 2004/38/EC on the right of citizens of the Union and their
family members to move and reside freely within the territory of the member states [2004] OJ L158/77
(Citizenship Directive) replacing Council Directive (EC) 64/221/EEC on the co-ordination of special
measures concerning the movement and residence of foreign nationals which are justified on grounds of
public policy, public security or public health [1964] OJ 056. 256
Brouwer and Vries (n 251) 123. 257
For an analysis of the recent case-law unclear on the interpretation of article 18 TFEU, CJEU, Case C-45/12
Radia Hadj Ahmed v. Office national d’allocations familiales pour travailleurs salaries [2013]
ECLI:EU:C:2013:390. See Brouwer and Vries (n 251) 141.
61
Early asylum and migration law from the 1990s strengthened this differentiation between
EU citizens and non-EU citizens.258
The main goal of this legislation was to prevent migration.
The importance of fair and equal treatment of legally residing non-EU citizens was mentioned
for the first time in the 1999 Tampere Conclusions. Nonetheless, Brouwer and de Vries
underline the abandoning of the goal of achieving equal rights for non-EU citizens.259
The
foundation of the goal of equal treatment also changed. Equal treatment used to be a tool of
protection of human rights. Nowadays, the EU uses it as an instrument to attract highly skilled
migrant workers or researchers.260
Hence the importance of also considering international
economic law and labour standards in relation with EDP, as does part 6 of this thesis.
EU migration law carries equal treatment clauses for non-EU citizens, regulating
conditions for entry and their legal status.261
Since 2003, EU's directives and bilateral
agreements with third countries have introduced further more equal treatment clauses –
notably in the field of labour and social rights.262
4.2.2. The element of extraterritoriality
State action must be founded on jurisdiction. Classical international law defines different
types of jurisdiction: territoriality, nationality, universality, or the protective principle.263
Ganesh points out that in the context of ‘a massive humanitarian disaster causing hordes of
refugees to pour into the European Union’, we could imagine invoking the universality,
passive personality, or protective principles ‘to justify measures to address foreign violations
of socioeconomic rights like the right to food’.264
This is precisely the task at hand in this
section: considering an extraterritorial jurisdiction to justify and found an EDP framework.
The Centre for International Environmental Law qualifies extraterritorial obligations as
the ‘missing link in the universal human rights protection system’.265
Does the universality of
human rights lead to extra-territorial human rights obligation? This is a central question
regarding a human rights based approach to EDP, as an extra-territorial responsibility could
constitute a foundation for its framework. This question has emerged with strength in the past
258
Brouwer and Vries (n 251) 135. 259
ibid 136 260
ibid. 261
ibid 124. 262
Bernard Ryan and Virginia Mantouvalou, ‘The Labour and Social Rights of Migrants in International Law’ in
Rubio-Marin (ed), Human Rights and Immigration (Oxford University Press 2014) 15. 263
Ganesh (n 26) 485. 264
Ganesh (n 26) 485. 265
Center for International Environmental Law, ‘Maastricht Principles on Extra-Territorial Obligations of States’
(Center for International Environmental Law 2015) <www.ciel.org/project-update/extra-territorial-
obligations-etos/> accessed 30 April 2018.
62
decade, although extra-territorial actions of states are nothing new. Research on this question
revolves mainly around civil and political rights, as there is more case law and material on
these compared to socio-economic rights.266
The theoretical problem set by the element of extra-territoriality lies in its relationship
with the concept of jurisdiction under human rights law (4.2.2.1). The tension, characterising
this relationship, is partly due to the need of a realistic approach to human rights. If extra-
territorial, how can the effectiveness of such a jurisdiction be ensured? There is also no legal
definition of the notions of extraterritoriality and jurisdiction. Therefore, the evolution of this
problem depends primarily on jurisprudence and an institutional approach (4.2.2.2).
4.2.2.1 Tension between concepts of extra-territoriality and jurisdiction
Jurisdiction clauses in human rights treaties (4.2.2.1.1) are not consistent in defining the
extraterritorial aspect of human rights. Consequently, a theoretical approach is necessary.
Different types of interaction between extra-territoriality and jurisdiction (4.2.2.1.2) will be
considered, to understand which is more suitable for an EDP framework.
4.2.2.1.1 Jurisdiction clauses in human rights treaties
Regarding jurisdiction in international law, the Vienna Convention on the Law of Treaties is
applicable to human rights treaties. Its article 29 states ‘unless a different intention appears
from the treaty or is otherwise established, a treaty is binding upon each party in respect of its
entire territory’. Therefore, the Vienna Convention does not exclude an extraterritorial
application of human rights treaties. Human rights treaties often contain jurisdiction clauses.
The aim of this clause is to identify the individuals or groups of individuals to whom the
states are obligated.267
Abrisketa and Casa explain that firstly, criteria to identify jurisdiction
are ‘casuistic and variable’; secondly, the wording of jurisdiction clauses always differs;
thirdly, states stand on different positions regarding this matter.268
Some would expressly
reject any extraterritorial scope of their human rights obligations.269
266
Marko Milanovic, ‘Extraterritorial Application of Human Rights Treaties: An Overview’ (Blog of the
European Journal of International Law, November 2011) <https://www.ejiltalk.org/extraterritorial-
application-of-human-rights-treaties-an-overview/> accessed 30 April 2018 267
Joana Abrisketa and María Nagore Casas, ‘Extraterritorial Application of Human Rights Treaties’ (Oxford
Bibliographies Online, Apil 2016) < http://www.oxfordbibliographies.com/view/document/obo-
9780199796953/obo-9780199796953-0136.xml> accessed 30 April 2018. 268
ibid. 269
ibid.
63
4.2.2.1.2 Different types of interaction between extra-territoriality and jurisdiction
Extraterritorial jurisdiction can be understood in different ways. On the one hand, it can
represent a restrictive interpretation based on state control over citizens out of its territory. On
the other hand, it can be understood as a control and authority over individuals, including both
citizens and non-citizens.
Milanovic drew three different models of relationship between jurisdiction and extra-
territoriality. The first one is a ‘spatial model of jurisdiction’, where jurisdiction is defined
according to territory.270
The second one is a ‘personal model of jurisdiction’, defining
jurisdiction according to state authority and control over individuals.271
The third one is a
mixed model, where jurisdiction differs according to the type of obligations (positive or
negative) under a human rights treaty.272
He concludes that the first two models are not viable.
The first one is too restrictive, and ‘tends to collapse into the personal model’.273
The second
one relies on an arbitrary criterion.274
Defining jurisdiction as authority and control over
individuals, Milanovic underlines that ‘any state act capable of violating the individual’s
rights would appear to qualify as such authority and control’.275
Therefore, he defines
jurisdiction depending on the state's capability to violate a right. For this reason, his mixed
model is the most appropriate, providing the best balance between universality and
effectiveness.276
His conclusion is partly beneficial for EDP, as he admits a larger interpretation of
extraterritorial jurisdiction, extended to individuals who are not only citizens. On this
theoretical basis, states would owe an obligation to EDP. However, this depends on the type of
obligations at stake, if positive or negative, according to Milanovic.277
Founding the
extraterritoriality exclusively on negative obligations drastically reduces the possibility of
foundation for a state's action towards EDP. Nonetheless, Ganesh argues that negative and
positive obligations are under the same jurisdictional rules, meaning that both should be taken
into account. Furthermore, Ganesh’s states that human rights obligations are ‘owed
universally to everyone’278
, as he also argues that they are determined at the merits.279
270
Marko Milanovic, Extraterritorial Application of Human Rights Treaties (Oxford University Press 2011) 129. 271
ibid 206. 272
ibid 119. 273
ibid 134. 274
ibid 207. 275
Milanovic (n 266). 276
Milanovic (n 270) 219. 277
However, there is not a strict separation between negative and positive obligation. Ibid 215. 278
Ganesh (n 26) 525. 279
ibid.
64
Following this reasoning regarding EDP, it would mean that control of the EU over people or
an area would need to be proven on the first place to found an EDP framework based on
human rights obligations.
4.2.2.2 Institutional and jurisprudential approach
Due to the lack of definition of jurisdiction, the EU's (4.2.2.2.1), EctHR, and ICJ's position on
extraterritoriality (4.2.2.2.2) are fundamental.
4.2.2.2.1 EU and extra-territorial jurisdiction
The EU has a peculiar relationship with the notion of jurisdiction and extra-territoriality. On
the one hand, the EU does not have its own sovereign territory. On the other hand, the
language it articulates is a ‘language of competences, allocation of powers and application’280
,
rather than jurisdiction. As mentioned previously, the Charter and general principles constitute
the heart of the EU's fundamental rights. The Charter does not contain any provisions on
jurisdiction, nor territory. TEU contains territorial clauses for the Treaties, as TEU article 52
and TFEU article 355. Articles 3(5), 21 and 23 define the EU’s external action. However,
TEU articles 2, 6, and 21 illustrate the general scope of the Charter.281
Moreno-Lax and
Costello argue that the silence of the Charter regarding jurisdiction implies that human rights
obligations ‘track all EU activities, as well as member state action when implementing EU
law’.282
Therefore, the Charter applies every time an EU body exercises its competence and
power283
, regardless of the geographical space. The application of fundamental rights to the
development of external action is supported by article 21 of the Lisbon Treaty. The EU law
does create legal effects outside its territory, especially in the fields of competition, finances,
and environmental regulation.284
Furthermore, the requirement of the Charter to observe and
promote human rights could therefore constitute an element of foundation for a human rights
based EDP framework.
The jurisdiction approach adopted in the American Airlines and airlines association
case285
(ATAA) by the CJEU is groundbreaking and nothing excludes the application of this
280
Violeta Moreno-Lax and Cathryn Costello, ‘The Extraterritorial Application of the EU Charter of Fundamental
Rights: From Territoriality to Facticity, the Effectiveness Model’ in Steve Peers, Tamara Hervey, Jeff Kenner
and Angela Ward (eds), The EU Charter of Fundamental Rights (Hart Publishing 2014)1679. 281
ibid 1661. 282
ibid 1658. 283
For an analysis of the case law on the expansive notion of the scope of EU fundamental rights law related to
all EU competence, see ibid 1681. 284
Ganesh (n 26) 475-476. 285
CJEU, Case C-366/10 Air Transport Association of America and Others v Secretary of State for Energy and
Climate Change [2011] ECR I-13755.
65
case to human rights obligations. In this case law, ATAA challenged the validity of the
Directive 2008/101/EC. This Directive subjected foreign airplane operators to the same gas
emissions regulations as European operators. The CJEU concluded that the Directive did not
infringe any principle of customary law, nor international agreements. Ganesh underlines that
a part of the literature considers the CJEU laid down a new theory of territorial jurisdiction in
this case law. De Baere and Ryngaert argue that the goal of this new theory is to enable states
or regional organisations to protect ‘global public goods that are insufficiently protected by
international solutions’.286
This applies with two conditions: firstly, that the global public
goods at stake are dealt with in international instruments, which have a global reach; secondly,
that a territorial link can be identified.287
The EU has human rights obligations towards distant strangers, including a positive
obligation to protect288
, as for example in the case of the right to life. These obligations are
founded on territorial extension, through the authority the EU has over a territory or people.
Besides a historical responsibility, such an authority and control could be researched on
economic grounds.
4.2.2.2.2 EctHR and ICJ on extraterritoriality
The EctHR has the richest jurisprudence regarding extraterritorial application of human rights.
In its Article 1, the ECHR states the obligation of states to ‘secure to everyone within their
jurisdiction the rights and freedoms defined in Section I of this Convention’. When referring
to ‘everyone’, the ECHR admits a wide interpretation of the individuals benefiting from this
right. It does not limit it to citizenship.289
The EctHR has recognised the extraterritorial effects
of the ECHR, when a state exercises an effective control over an individual or a territory.290
However, the EctHR does not have consistent jurisprudence in the matter. In the Bankovic
case, it reduced extraterritorial responsibility to territories – rather than people - over which a
state had effective control: ‘from the standpoint of public international law, the jurisdictional
286
Geert De Baere and Cédric Ryngaert, ‘The CJEU’s Judgment in Air Transport Association of America and the
International Legal Context of the EU’s Climate Policy’ (2013) 18 Eur Foreign Aff Rev 389, 401. 287
Ganesh (n 26) 491. 288
ibid 530. Regarding this territorial link, Scott distinguishes extraterritoriality from territorial extension.
Extraterritoriality puts obligations on persons without the requirement of territorial link. Territorial extension
depends upon ‘the existence of a relevant territorial connection’. According to Scott, territorial extension is
therefore the approach put forward by the CJEU. Joanne Scott, ‘Extraterritoriality and Territorial Extension
in EU Law’ (2014) 62 AJIL 87, 112. 289
Francesca Bignami and Giorgio Resta, ‘Human Rights Extraterritoriality: The Right to Privacy and National
Security Surveillance’ in Eyal Benvenisti and Georg Nolte (Eds) Community Interests Across International
Law (Oxford University Press forthcoming 2018); based on GWU Law School Public Law Research Paper
No. 2017-67 <https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3043771> accessed 30 April 2018, 16. 290
Milanovic (n 270). This is the case in Loizidou v. Turkey, Merits, Application No 15318/89 (ECHR 28
November 1996) para 52.
66
competence of a state is primarily territorial’.291
This decision was later rejected in Issa v
Turkey.292
Ten years after Bankovic, Al-Skeini became the leading decision of the EctHR in this
matter. Its relationship with Bancovic's concept of jurisdiction exclusively based on territory
is ambiguous. The Court considered the exercise of effective control over a territory293
to
found the jurisdiction. However, it considered it as an exception. The EctHR applied a
territorial model but with a wider interpretation. The EctHR also recognised that the
establishment of a jurisdiction is not similar to the establishment of a state’s responsibility for
an internationally wrongful act under general international law.294
The ICJ, and human rights institutions including the Human Rights Council, also support
the existence of extraterritorial responsibility when it comes to human rights law violations295
,
in situations where the state has an effective control. The ICJ confirm its approach in its
advisory opinion on the Legal Consequences of the Construction of a Wall in the Occupied
Palestinian Territory.296
Combining the element extra-territoriality with the obligation to respect inherent to human
rights, McInerney-Lankford asserts that states are bound ‘not to create situations in other
countries that force people to migrate as a result of climate change’.297
The obligation to
respect is one of the elements that constitutes one of the advantages to use a human right-
based framework for EDP.
4.2.3. The element of duty
The main advantage in using human right as an approach is that it introduces the concept of
duty. This duty exists whether the state's actions contributed to climate change or not.298
The
element of duty is outlined as follows: the negative obligation to respect (4.2.3.1), and the
positive obligations to protect and fulfil (4.2.3.2). The extraterritoriality of these duties is
fundamental in their application to EDP. In the previous section, it has been shown that the
extraterritoriality of these obligations does not depend on their negative or positive character,
291
Banković and ors v Belgium and ors Application No 52207/99 (ECHR 12 December 2001) para 59. 292
Issa and others v Turkey Application No 31821/96 (EctHR. 16 November 2004); Sarah Joseph,
‘Extraterritorial Human Rights Duties’ in Sarah Joseph (ed), Blame it on the WTO? : A Human Rights
Critique (Oxford University Press 2011) 250. 293
Al-Skeini and Others v United Kingdom Application No 55721/07 (ECHR 7 July 2011) para 149. 294
ibid, para 166. 295
Joseph (n 292) 249. 296
ibid. 297
ibid. 298
McInerney-Lankford (n 245) 141.
67
but rather on a case-by-case analysis. Therefore, their extraterritoriality will not be discussed
any further in this section.
4.2.3.1 The obligation to respect
EU policies have to respect human rights, based on TEU article 21(1).299
The EU must ensure
its policies do not have a negative impact on human rights in other states. The obligation to
respect human rights translates as the obligation not to violate human rights, by diminishing
or depriving individuals of their enjoyment.300
Regarding mitigation policies and EDP, the obligation to respect presumes ‘a state’s
actions not to accelerate climate change which undermines the existing access to rights or that
creates situations in which people are forced to migrate’.301
This obligation also covers the no-
harm principle, discussed in section 3.3.3. As applied to EDP, it means that a state cannot
create in other countries situations that lead to EDP.
Regarding adaptation policies, McInerney-Lankford asserts that the EDP concern should
impregnate the entire range of policies adopted by states. This also means that climate change
policies cannot be adopted at the expense of EDP. In relation to this, in 2016, a UN expert
warned against ‘cherry picking’ among the Sustainable Development Global Goals, stating
that ‘[r]ather than treating all 17 Goals in the 2030 Agenda on equal footing to protect the
most marginalized and vulnerable and enhance their situation, we are already witnessing some
goals getting more support than others’.302
Nonetheless, the author notices that this obligation
to respect does not provide any specific or additional protection to EDP.303
It only reinforces a
dialogue and framework in relation with action that accelerate climate change, that enhances
the conditions of departure of EDP.
4.2.3.2 The obligation to protect and fulfil
Concerning the obligations to protect and fulfil, the EU provisions are ‘much more muted’.304
The EU does not use the terms protect and fulfil in its vocabulary, but rather ‘promote’ or
299
Lorand Bartels, ‘The EU’s Human Rights Obligations in Relation to Policies with Extraterritorial Effects’
(2014) 25 EUR J INT’L L 1071, 1074. 300
McInerney-Lankford (n 245) 146. 301
ibid 147. 302
United Nations sustainable Development, ‘Warning against ‘cherry-picking’ among Global Goals, UN experts
say human rights cannot be ignored’ (United Nations sustainable Development July 2017)
<https://news.un.org/en/story/2016/07/534232-warning-against-cherry-picking-among-global-goals-un-
experts-say-human-rights> accessed 30 April 2018 303
McInerney-Lankford (n 245) 150. 304
Bartels (n 299) 1074.
68
‘contribute to the protection of human rights’.305
However, the EU exists within international
human rights law. Therefore, this triptych – respect, protect, and fulfil - entirely applies to the
EU.
Under the obligation to protect, the states' duty is to act to protect citizens from climate
change's impact306
, including natural disasters, but also private actions infringing on human
rights. States have two kinds of duty: duty to take preventive action, and duty to take remedial
action. McInerney-Lankford defines on the one hand, the preventive action in the context of
EDP as stopping or preventing ‘third-party causes of climate change that force individuals or
groups to migrate’.307
This means to find a balance between environmental protection and
other legitimate societal interest. On the other hand, this obligation is the foundation to take
remedial action when migration has already happened.
As for the obligation to fulfil, it is about pragmatic actions, such as the adoption of legal
frameworks to protect individuals from environmental harm interfering with human rights.
McInerney-Lankford stresses the importance of this obligation to ensure socioeconomic rights
for EDP, taking the examples of rights to health, food and adequate housing.308
However, are
there any particular human rights that could be the foundation of a specific protection for the
EDP?
4.3 Examples of human rights to found an EDP protection
Human rights have the specificity to apply in case of violation. In the case of EDP, two levels
of violation can be delimited: firstly, climate change violating human rights of the affected
populations; and secondly, human rights violated by the implementation of responses to
climate change309
and EDP. This section will mainly consider the first kind of violation, as it
could found a legal framework for EDP. Kälin urged the Human Rights Council to trigger
debates on the interpretation of existing human rights law obligations that ‘can be interpreted
in a manner that helps protect the rights of people displaced across borders in disaster
contexts’.310
He further asks if existing human rights law obliges states to open borders to
EDP.311
This section's aim is to present reflections in relation to this question. It is therefore
important, firstly, to remind of the importance of the guarantee of political rights of EDP in
305
These terms are displayed in TEU article 3(5). 306
McInerney-Lankford (n 245) 153. 307
ibid 154. 308
ibid 160. 309
Cournil (n 101) 20. 310
As cited in McAdam and Limon (n 231) 22. 311
ibid.
69
the receiving state (4.4.1). Secondly, rights and principles that could offer EDP a right of entry
and protection in the EU will be discussed (4.4.2).
4.3.1 The importance of political rights in EDP: the case of participatory rights
Human rights obligations lay down a minimum standard that a receiving state has to respect
regarding EDP within their jurisdiction. During and after the displacement, the safety, security,
and dignity are in the centre of the needed protection. Along with these material rights,
political, civil, economic and cultural rights have to be ensured: they have a primal
importance in the process of decision-making and empowerment, as they enable the
participation of the displaced persons in resettlement decisions. Consent and cooperation of
affected populations is essential in the making of the legal responses to EDP. The
effectiveness of the legal measures also depends on these elements. Therefore, these
participatory rights can strengthen the design and application of an EDP framework. The
United Nations High Commissioner for Human Rights underlined the importance of ‘effective
participation of individuals and communities in decision-making processes affecting their
lives’312
, along with a necessary ‘access to administrative and judicial remedies in cases of
human rights violations’.313
Zetter and Morrissey point out that in practice, there is more emphasis on the need of
protection of material rights.314
This tends to reduce the discourse of the protection of
fundamental rights to this material category, ignoring the more challenging issue of the
guarantee of political rights in the process of displacement. Hence the importance to
remember this topic as a necessity in the making of an EU legal framework for EDP.
4.3.2 Rights and principles that could constitute the foundation of entry
In the context of the more general interaction between climate change and human rights,
Cournil identified six fundamental rights affected: the right to life, the right to adequate food,
the right to water, the right to health, the right to adequate housing and the right to self-
determination.315
While these same rights are violated in the context of EDP, they offer a
limited foundation for an EDP framework understood as a right to enter the EU. McAdam
points out that there are two main human rights that are recognised as triggers to a right of
312
UN Human Rights Council (n 243) para 81. 313
ibid para 83. 314
Zetter and Morrissey (n 210) 68. 315
ibid.
70
entry when violated316
: the right to life and the right not to be subjected to torture or to
inhuman or degrading treatment or punishment. Violation of these rights alongside the
principle of non-refoulement (4.3.2.2) can create a right of entry. The right to an adequate
standard of living will nonetheless be considered first (4.3.2.1).
4.3.2.1 Right to an adequate standard of living
The right to an adequate standard of living is recognised in article 11 of the International
Covenant on Economic, Social and Cultural Rights. It includes the right to adequate housing,
the right to food, the right to water and the right to social security. Adequacy ‘is to a large
extent determined by prevailing social, economic, cultural, climatic, ecological and other
conditions’.317
Jayawardhan argues that this right justifies ‘the need for permanently resettling
EDPs’318
, concluding that ‘a commitment to international human rights includes a
commitment to resettling EDPs’.319
Does this general statement find an echo in EU law?
In EU law, there is no provision precisely on the right to an adequate standard of living.
Article 4(1) of the European Social Charter recognises ‘the right of workers to remuneration
such as will give them and their families a decent standard of living’ and article 31 a right to
housing. However, the formulation of article 4(1) applies specifically to a social situation as it
refers to workers and remuneration. This right sets a minimum income standard and works in
the context of labour law. It presumes that the individual already is already based in the EU.
Therefore, it cannot be the foundation of a right of entry on these terms. The right to housing
is not founded on such a restrictive situation, but this is still insufficient to found a right of
entry.
The Geneva Convention also sets a right to housing in article 21 and social security for
refugees in article 23. However, these rights are only accessories to the initial right to stay.
Falstrom concludes that these provisions cannot lead on their own to a positive obligation for
states to provide a right of entry to their territory.320
Nonetheless, she states that these
provisions can be the foundation of a separate document for EDP.321
They also constitute a
foundation for international assistance, on humanitarian grounds. Nonetheless, a recent
element contests Falstrom’s conclusion. In the 2013 AF (Kiribati) case, the New Zealand
316
Jane McAdam, Climate Change, Forced Migration, and International Law (Oxford University Press 2012), 55. 317
UN Human Rights Council, CESCR General Comment No. 12: The Right to Adequate Food (Art. 11) (1999)
E/C.12/1999/5 comment 12. 318
Jayawardhan (n 23) 137. 319
ibid. 320
Dana Zarthner Falstrom, Stemming the Flow of Environmental Displacement: Creating a Convention to
Protect Persons and Preserve the Environment´´ (2002) 13 COL. J. INT’L L. & POL’Y 1, 23-26. 321
Ibid 25.
71
Immigration and Protection Tribunal dealt with a Kiribati citizen applying for the status of
refugee based on environmental degradation due to sea-level-rise. In relation to this request,
the court of New Zealand assessed the violation of fundamental human rights, including the
right to an adequate standard of living.322
Economic, social and cultural rights are usually
interpreted as having a weaker normative force than civil and political rights. Nevertheless,
reaching a threshold of deprivation of these rights can be considered as persecution.323
Therefore, these rights – including the right to adequate standard of living- could be
considered as a foundation for an EDP framework, with the right institutional support.
4.3.2.2 Rights triggering the principle of non-refoulement
The right to life (article 2 of the Charter) and the right not to be subjected to torture or to
inhuman or degrading treatment or punishment (article 4 of the Charter), imply that a state
must take positive and negative measures to protect individuals. Their ability to trigger the
principle of non-refoulement when violated is recognised.
Article 19(2) of the Charter lays the principle of non-refoulement, derived from article 2
and 3 of the ECHR. It states that ‘no one may be removed, expelled or extradited to a state
where there is a serious risk that he or she would be subjected to the death penalty, torture or
other inhuman or degrading treatment or punishment’. This principle applies to refugees, but
also to persons with subsidiary protection. Therefore, to know its relevancy regarding EDP, it
is necessary to know if EDP could be covered by the refugee status or a subsidiary protection
under EU law. This will be the task of the following chapter.
4.4 Conclusion
The case of EDP does not adhere to traditional institutional legal reasoning, as it deals with
different fields of law. Exclusively relying on a human right would fail to found a framework
for EDP. Human rights law does not have any specific provision for EDP. However, the
existing human rights and their respective obligations prove to be in theory relevant
instruments in the context of EDP. It is the nature of the human rights field that makes it
relevant to EDP, due to its element of duty, its element of universality and the positive
extraterritorial obligations it sets when a state has effective control over a territory or people.
The best use of human rights in relation to EDP would be firstly, as a mandatory framework
of action. It already frames EU’s internal and external action. Secondly, it proves to be
322
New Zealand Immigration and Protection Tribunal AF (Kiribati) [2013] 800413 (25 June 2013)para 73-74. 323
Especially when associated with a discriminatory element.
72
stronger in combination with other fields of law. When combining human rights law and
environmental law, some elements can be found at a theoretical level. Nevertheless,
considering the current legal framework, both systems have 'no clear relationship to the
other'.324
Therefore, this combination is for now very limited. Considering the problem of
fragmentation, states should not only avoid conflicts between these two regimes, but also
consider them together.
Hence, the importance of mainstreaming human rights across other policies and
programmes.325
And this even more as human rights institutions do not have the necessary
capacity, nor mandate, nor expertise to address solely these kinds of challenge. As an example
at the international level, the Human Rights Council sits only 10 weeks per year and the
human rights pillar receives around 3% of the UN's organisation’s regular budget.326
McAdam
and Limon emphasised the importance of Special Rapporteur on human rights and the
environment in bridging both fields.327
This idea could also be adopted at the EU level:
appointing a representative to monitor and promote a human rights-based approach to climate
issues.
Human rights law contributed to something else important for a potential EU EDP legal
framework. It expanded the state's protection obligations beyond the 1951 Geneva
Convention. This expanded protection allows persons that do not fall under the ‘refugee’
category to be considered. It follows Kälin's suggestion that when ‘return cannot be
reasonably expected from the persons concerned, e.g. if the country of origin does not provide
any assistance or protection at all or far below international standards as long as the
displacement lasts’328
, a temporary stay should be granted at least. This is the subject of the
following chapter.
324
McInerney-Lankford (n 245) 164. 325
McAdam and Limon (n 231) 20. 326
ibid. 327
Iiid. 328
Kälin W, ‘Displacement Caused by the Effects of Climate Change: Who Will Be Affected and What Are the
Gaps in the Normative Framework for Their Protection?’ (Brookings October 2008)
<https://www.brookings.edu/research/displacement-caused-by-the-effects-of-climate-change-who-will-be-
affected-and-what-are-the-gaps-in-the-normative-framework-for-their-protection/> accessed 30 April 2018.
73
5. European asylum law approach
Similarly to human rights law, refugee law does not offer any provision protecting specifically
EDP. The majority of the literature heavily contests the term environmental refugee, as
discussed in section 2.3.1. However, the emergence of a new kind of ‘refugee’ might imply
the need for re-adaptation of practices to respond to these new challenges.329
It is in the hands
of the international community and the EU to respond to these situations. The emphasis on the
international community here is due to the primal importance of the Geneva Convention
regarding refugee regulation: this has a direct impact on the solutions that the EU can offer to
EDP.
Therefore, it is still necessary to consider the EDP under the protection of the Geneva
Convention (5.1). The EU is not limited to the Geneva Convention, although it is bound to it.
The EU has extended the protection it offers to alternative subsidiary and temporary
protection (5.2). With this extension, the Common European Asylum System offers four
different statuses of protection330
: applicant status, temporary protection (according to the
Temporary Protective Directive), subsidiary protection (according to the Qualitative
Directive), and refugee status (according to the Geneva Convention).
Although the Qualification Directive sets out standards of subsidiary protection at EU
level, the protection varies between member states. It is then necessary to consider EDP
protection under asylum law at another legal and geographical level. The last section will
therefore review examples of possible EDP asylum protection, at a member state level, but
also at an international level (5.3).
5.1 Geneva Convention and EDP
Firstly, a brief overview on the relationship between the EU and the Geneva Convention
(5.1.1), followed by a comment on its four criteria in relation to EDP (5.1.2).
329
Livia Elena Bacaian, ‘The protection of refugees and their right to seek asylum in the European Union’
(Master thesis, Institut européen de l'université de Genève 2011) 60. 330
Hemme Battjes, European Asylum Law And International Law (Brill 2006) 219.
74
5.1.1 Geneva Convention and the EU
The Geneva Convention constitutes the founding framework of international refugee law, but
also EU refugee law, as proves its position in the EU Treaties (5.1.1.1). The CJUE confirmed
its fundamental role as a ‘source of general principle’ in EU law (5.1.1.2).
5.1.1.1 Geneva Convention in the EU Treaties
Originally, the 1993 Maastricht Treaty states in its article K.2 that the EU asylum provisions
have to comply with two major Conventions: the ECHR and the Geneva Convention. Then in
1996, the Council of the EU adopted a joint position based on Article K.3 of the Maastricht
Treaty on the “Harmonized Application of the Definition of the Term ‘Refugee’ in Article 1 of
the Geneva Convention”.331
This joint position was adopted to make sure that member states
act in compliance with the Geneva Convention's definition of refugee and its interpretation
according to the UN High Commissioner for Refugees.332
Afterwards, the TFEU, in its article
78(1), stated that a Common European Asylum Policy must be developed in accordance with
the Geneva Convention and other relevant treaties. All member states have ratified the
Geneva Convention and its 1967 Protocol.
5.1.1.2 Geneva Convention according to the CJEU
The CJEU concluded that the Geneva Convention and its Protocol must be considered as a
source of general principle in EU law, in the case Salahadin Abdulla and B and D. The CJEU
confirmed that the interpretation and the application of EU law has to be consistent with the
Geneva Convention. The Court had to rule on the interpretation of the article 3 (on member
states setting more favourable standards than the Directive), article 11 (on cessation of the
refugee status) and article 12(2)(a), (b) and (c) (on exclusion from refugee status) of the
Qualification Directive. As Ragheboom underlines333
, the CJEU proceeds to a three steps
argument to emphasize the importance of the Geneva Convention regarding EU law. Firstly,
the CJEU uses article 78 TFEU334
as a legal basis, stating that any common policy on asylum,
subsidiary protection and temporary protection should be developed in accordance with the
Geneva Convention. Secondly, the CJEU refers to the Recital 3 of the Qualification
331
Council Joint Position of 4 March 1996 defined by the Council on the basis of Article K.3 of the Treaty on
European Union on the harmonized application of the definition of the term 'refugee' in Article 1 of the Geneva
Convention of 28 July 1951 relating to the status of refugees [1996] 96/196/JHA, OJ L 63. 332
Bacaian (n 329) 16. 333
Ragheboom H, The International Legal Status and Protection of Environmentally-Displaced Persons: A
European Perspective (Brill Nijhof 2017) 75. 334
CJEU, Joined Cases C-57/09 and C-101/09 Bundesrepublik Deutschland v B and D [2010] ECR I-10979,
para 76.
75
Directive335
, labelling the Geneva Convention as a ‘cornerstone of the international legal
regime for the protection of refugees’. Thirdly, the CJEU cites recitals 16 and 17, making it
clear that the purpose of the Directive is to guide member states when applying the Geneva
Convention.336
5.1.2 EDP facing the Geneva Convention
Article 1 of the Geneva Convention defines a refugee as a person who ‘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’. This
definition establishes three conditions. Firstly, the presence of the asylum seeker outside his
home country; secondly, a well-founded fear of persecution; and thirdly, the incapacity to
benefit from the protection of his own state.
The notion of persecution constitutes the main problem regarding EDP for two reasons.
On the one hand, this notion implies discriminatory persecution. Therefore, a risk of harm is
insufficient. On the other hand, environmental degradation is excluded from the notion of
persecution.337
Furthermore, the refugee system under the Geneva Convention is based on
individual recognition and is for this reason less appropriate to the EDP.338
The European Parliamentary Research Service Blog states that ‘the definition of refugees
was actually intended to exclude internally displaced persons, economic migrants, victims of
natural disasters’.339
5.1.2.1 A protocol to the Geneva Convention?
Two solutions could be considered to use the Geneva Convention in favour of EDP. Firstly,
the Geneva Convention could be modified in order to extend its protection to EDP. However,
there is a risk of weakening the refugee status if the Convention is modified, as pointed out
European institutions and experts.340
335
ibid, para 77. 336
ibid. 337
Sgro (n 25). 338
McAdam (n 316) 9. 339
European Parliamentary Research Service Blog, ‘Refugee Status Under International Law’ Rights’ (European
Parliament Think Tank 2015) <https://epthinktank.eu/2015/10/27/refugee-status-under-international-law/>
accessed 30 April 2018 340
Sgro (n 25).
76
Secondly, a new protocol to the Geneva Convention could be adopted, as suggested by the
2005 Limoges project.341
This would not be a first: a protocol was added to the Geneva
Convention in 1967, to remove geographic and time limitations. Sgro underlines that this
solution might lead to, on the one hand, a risk of implosion of the right of asylum. On the
other hand, it would build an inequality between EDP crossing borders and internally
displaced persons, as the latter would not be considered under the Geneva Convention.342
Nonetheless, the EU added additional types of protection, for those who do not qualify as
refugee under the Geneva Convention. These alternative means of protection contain
subsidiary and temporary protection in the event of a mass influx of people. This last element
seems appropriate in relation to Sgro's second criticism of the Geneva Convention. However,
can EDP claim protection under these alternative provisions?
5.2 Alternative forms of protection in EU law
The evolution of the EU asylum policy and legal framework has somehow been surprising
(5.2.1). It led to the creation of the Temporary Protection Directive (5.2.2), and the
Qualification Directive (5.2.3). They are considered the only actual legislation that could be
currently applied to EDP in the EU.
5.2.1 Evolution of EU's institutional competence in asylum policy
The importance of the EU regarding the EDP matter is also due to the power and competence
EU institutions regarding asylum policy. This power is the result of a surprising evolution of
EU asylum law. Kaunert and Léonard point out that in 2000, a restrictive development of the
asylum policy was expected.343
National policy-makers engaged in European cooperation for
asylum policy to avoid national obstacles when trying to establish stricter migration
controls.344
The Maastricht Treaty gave national Ministers of the Interior a large control over
asylum policies through the Justice and Home Affairs third pillar345
, restricting the position of
EU institutions (CJEU, European Parliament or European Commissions).
341
Appel de Limoges, ‘Appel de Limoges sur les réfugiés écologiques (et environnementaux)’ (2006) 4 Revue
Européenne de Droit de l'Environnement 454 342
Sgro (n 25). 343
Christian Kaunert and Sarah Léonard, ‘The development of the EU asylum policy: venue-shopping in
perspective’ (2012) 19 Journal of European Public Policy 1396, 1399. 344
Virginie Guiraudon, ‘European integration and migration policy: vertical policy-making as venue shopping’
(2000) 38 Journal of Common Market Studies 38 251, 252. 345
Virginie Guiraudon, ‘The constitution of a European immigration policy domain: a political sociology
approach’ (2003) 10 Journal of European Public Policy 263, 270.
77
However, Kaunert and Léonard explain that this expected restrictive development did not
happen for two reasons. On the one hand, the 1999 Amsterdam Treaty and the Lisbon Treaty
have strengthened the roles of the EU institutions.346
For instance, article 73 of the
Amsterdam Treaty gave the CJEU the competence to rule on the interpretation of Treaty
provisions on asylum, but also on the interpretation of the EU institutions acts founded on
these provisions. This participated in the judicialisation of asylum matters.347
Nevertheless,
this competence came with significant limitations.348
Another example: article 294 TFEU that
subjects the adoption of any asylum legal instrument to the ordinary legislative procedure.
National Ministers of the Interior do not still have the influence they had under the pillar
system, which was abandoned with the Lisbon Treaty. As for the European Commission, its
competence has been extended: it can now draft proposals in relation to different aspects of
EU asylum policy.349
In this surprising context, the Temporary Protection Directive and the Qualification
Directive could currently be considered as potential legal instruments regarding EDP. These
two directives are part of the first phase of creation of the Common European Asylum System,
alongside two other key directives –the Asylum Procedures Directive350
and the Reception
Conditions Directive351
. The aim of the first phase was to adopt common minimum standards
regarding asylum matters.352
5.2.2. Temporary Protection Directive
The first potential legal instrument for EDP is the Temporary Protection Directive. After the
Amsterdam Treaty came into force, it was the first EU directive to be adopted. It provides a
temporary protection (5.2.1.1) in case of mass influx (5.2.1.3) of displaced people (5.2.1.2) in
exceptional circumstances. This instrument is of particular interest, as EDP is anticipated and
perceived as being a mass-scale displacement. The granting of an en masse status to EDP
could offer a more relevant framework. In addition, this Directive seems to offer a more
equitable burden sharing mechanism (5.2.1.4). However, in practice, the Temporary
Protection Directive has never been implemented (5.2.1.5).
346
Kaunert and Leonard (n 343) 1404. 347
ibid 1406. 348
bid. 349
ibid. 350
Council Directive (EC) 2005/85/EC of 1 December 2005 on minimum standards on procedures in Member
States for granting and withdrawing refugee status [2005] OJ L 326. 351
Council Directive (EC) 2003/9/EC of 27 January 2003 laying down minimum standards for the reception of
asylum seekers [2003] OJ L 31. 352
Ragheboom (n 333) 103.
78
5.2.2.1 Temporary protection
Article 2(a) defines the temporary protection as:
procedure of exceptional character to provide, in the event of a mass influx or imminent mass
influx of displaced persons from third countries who are unable to return to their country of
origin, immediate and temporary protection to such persons, in particular if there is also a risk
that the asylum system will be unable to process this influx without adverse effects for its
efficient operation, in the interests of the persons concerned and other persons requesting
protection
No possibility of permanent protection is brought up. This protection is problematic for
EDP subjected to long-lasting changes of their environment of origin, such as the
disappearance of an island.353
Those subjected to slow-onset environmental degradation can
witness a population leaving the degraded territory gradually, and not in a mass influx –
which constitutes the necessary criteria to be eligible for temporary protection. The
Temporary Protection Directive could be a potential instrument of protection for
environmentally displaced people, in case of disaster, for example354
, but does not seem
adequate for the long term type of EDP.
5.2.2.2 Eligible displaced person
Potential beneficiaries of the Temporary Protection Directive are referred to as displaced
persons. Article 2(c) defines a displaced person is as:
third-country nationals or stateless persons who have had to leave their country or
region of origin, or have been evacuated, in particular in response to an appeal by
international organisations, and are unable to return in safe and durable conditions because
of the situation prevailing in that country, who may fall within the scope of Article 1A of
the Geneva Convention or other international or national instruments giving international
protection, in particular:
(i) persons who have fled areas of armed conflict or endemic violence;
(ii) persons at serious risk of, or who have been the victims of, systematic or generalised
violations of their human rights
353
Lilian Yamamoto and Esteban Miguel, Atoll Island States and International Law. Climate Change
Displacement and Sovereignty (Springer-Verlag Berlin Heidelberg 2013) 248. 354
Matthew Scott, ‘Refuge from climate change-related harm: Evaluating the scope of international protection
within the Common European Asylum System’ in Céline Bauloz, Meltem Ineli-Ciger, Sarah Singer, and
Vladislava Stoyanova (eds), Seeking Asylum in the European Union: Selected Protection Issues Raised by the
Second Phase of the Common European Asylum System (Brill 2015) 209.
79
There is no definition of endemic violence in the Directive. However, the definition of
armed conflict has been discussed by the CJEU, in relation to the Qualification Directive. In
the 2009 judgment Meki Elgafaji, Noor Elgafaji v Staatssecretaris van Justice, the CJEU
clarified the ambiguous provision of article 15(c) of the Qualification Directive on the
definition of serious harm. The Court stated that the only criterion to assess the actual
existence of a serious and individual threat is the existence of sufficiently intense violence in
an armed conflict.355
Considering the Qualification Directive was first adopted to expand the
protection of the Temporary Protection Directive, it is legitimate to interpret a consistency
between both. Therefore, in the light of this 2009 judgment, we could conclude that endemic
violence could be qualified based on its sufficient intensity.
In addition, the phrasing ‘in particular’ underlines it is a non-exhaustive open definition.
The notion is large enough to cover at least partially some EDP, although environmental
situations are not explicitly mentioned in this article. Kolmannskog and Myrtad support this
position, arguing that EDP could benefit from this temporary protection in case of sudden
mass influx due to an environmental crisis.356
This temporary protection does not exclude the beneficiaries from applying for asylum
and refugee status, as specified in the article 3(1).
5.2.2.3 Mass influx condition
This Directive is specific to cases of mass influx. Article 2 (b) defines mass influx as the
‘arrival in the Community of a large number of displaced persons, who come from a specific
country or geographical area, whether their arrival in the Community was spontaneous or
aided, for example through an evacuation programme’. This instrument is therefore not
applicable regarding individuals who are not part of a mass influx of displaced persons. The
Qualification Directive is the one handling these situations: the UN High Commissioner for
Refugees advocated that individuals who are not part of a mass influx, but fleeing a country
for similar reasons to those stated in the Temporary Protection Directive should also be
granted protection, for consistency reasons.357
355
CJEU, Case C-465/07 Meki Elgafaji, Noor Elgafaji v Staatssecretaris van Justice [2009] ECR I-00921, para
43. 356
Vikram Kolmannskog and Finn Myrstad, Environmental Displacement in European Asylum Law (Brill 2009)
4. 357
UN High Commissioner for Refugees, ‘Comments on the European Commission's proposal for a Directive of
the European Parliament and of the Council on minimum standards for the qualification and status of third
country nationals or stateless persons as beneficiaries of international protection and the content of the
protection granted COM(2009)551’ (2010) 17.
80
There is no defined number to qualify a mass influx. According to article 5, the
Commission is the only EU organ which can initiate a proposal for this qualification.
Following the proposal, the Council votes, according to the qualified majority voting
procedure stated in article 5(1). A decision of the Council is necessary to qualify a mass influx
of displaced people and trigger the implementation of the Directive.358
The Council would
need to specify the groups and date to which the temporary protection regime would apply.
5.2.2.4 An equitable burden sharing system
The determination and limitation of these groups is under the exclusive authority of the
Council.359
The Council has the ability to take measures to ensure an equitable share of the
admission: the Temporary Protection Directive, as points out Ineli-Ciger, offers a more
equitable burden sharing mechanism than the Dublin system.360
However, member states have
the ability to offer temporary protection to additional groups of displaced persons, if their
displacement is caused by the same reasons and are from the same designated geographical
area, as set in article 7. The decision of the Council would be binding for all member states.
This does not imply that member states have to admit a set number of displaced people. Each
member state would evaluate its own admission capacity, as stated in article 25. This means
that on the one hand, a member state can volunteer to have some beneficiaries transferred to
its territory. On the other hand, a member state can also declare that its admission capacity is
none.361
In this regard, when drafting the Directive, the European Parliament proposed a
provision for member states to grant beneficiaries access to their territory. The Council did not
adopt it.362
However, the same article 25 establishes the share of the reception of the eligible
beneficiaries of the temporary protection based on ‘a spirit of Community solidarity’.
5.2.2.5 Non-implementation of the Temporary Protection Directive
Until now, the EU Council has never made the necessary decision for its implementation,
including for the Arab Spring mass migration of 2015-2016, as reminds Mayer 363
, nor for the
358
Michèle Morel and Nicole de Moor, ‘Migrations climatiques: quel rôle pour le droit international ?’ (2012) 88
Cultures & Conflits 61, 76. 359
Nuria Arenas, ‘Concept of Mass Influx of Displaced Persons in the European Directive Establishing the
Temporary Protection Scheme’ (2005) 7 EJIL 435, 447. 360
Meltem Ineli-Ciger, ‘Has the Temporary Protection Directive Become Obsolete?: An Examination of the
Directive and its Lack of Implementation in view of the Recent Asylum Crisis in the Mediterranean’ in
Céline Bauloz, Meltem Ineli-Ciger, Sarah Singer, and Vladislava Stoyanova (eds), Seeking Asylum in the
European Union: Selected Protection Issues Raised by the Second Phase of the Common European Asylum
System (Brill 2015) 236. 361
ibid. 362
ibid. 363
Benoît Mayer, The Concept of Climate Migration: Advocacy and its Prospects (Edward Elgar 2016)109.
81
Syrian mass migration still currently happening364
. During the 2000s Iraq and Afghanistan
migration crisis, the Council of Ministers considered triggering the Directive.365
However, the
European Commission decided this situation did not constitute and actual mass influx.366
Considering the Temporary Protection Directive was never implemented, not even in the case
of an armed conflict, it is unlikely that the Directive will be applied in the case of mass influx
of EDP.367
According to Ineli-Ciger, one of the reasons the implementation never happened is the
belief that once implemented, it would ‘create a pull factor for migrants seeking access to the
EU’.368
On the one hand, the Council has the authority to limit the pull factor by limiting the
scope of the temporary protection.369
On the other hand, several studies challenged this belief,
showing displaced persons fleeing situations of conflict looking for a secure place rather than
a wealthier state, therefore only moving to the nearest safe place.370
The second reason of the non-implementation is the decisive vote of the Council of
Ministers, a political body.371
The necessary qualified majority of the vote of the Council is
problematic. Ineli-Ciger offers two possible solutions that could help the implementation of
the Temporary Protection Directive. One of them is to lower the qualified majority
requirement.372
The second one is to amend the activation mechanism of the Directive, by
using an objective definition of mass influx (as a fixed number), instead of making it
364
In relation to the mass migration due to the Syrian conflict, the EU and Turkey agreed on strengthening their
cooperation to manage the migration through an EU-Turkey Action Plan in 2015. This action plan has not been
made public. Nevertheless, it contains a clause to return back to Turkey migrants going from Turkey to Greece.
This raises concerns regarding the safety of Turkey as a third country to send back migrants. For this reason, the
NGO Access Info Europe questioned the compatibility of the EU-Turkey Action Plan with international human
rights law and refugee regime. The NGO requested access to the action plan, based on overriding public interest.
The European Commission refused the request. In the 2018 Access Info Europe case, the CJEU supported the
secrecy of the European Commission, based on the high sensitivity of the issue. Access Info Europe appealed.
This case raises serious questions regarding conditions of return of migrants and the 2011 Grand Chamber
judgment M.E, as exposed section 5.2.3.2.1. CJEU, Case T-851/16 Access Info Europe v European Commission
[2018] ECLI:EU:T:2018:69; Päivi Leino and Daniel Wyatt, 'No Public Interest in Whether the Eu-turkey
Refugee Deal Respects Eu Treaties and International Human Rights?' (European Law Blog February 2018)
<http://europeanlawblog.eu/2018/02/28/no-public-interest-in-whether-the-eu-turkey-refugee-deal-respects-eu-
treaties-and-international-human-rights/> accessed 10 May 2018. 365
Anja Klug, ‘Regional Developments: Europe’ in Andreas Zimmermann (ed), The 1951 Convention Relating
to the Status of Refugees and Its 1967 Protocol: A Commentary (Oxford University Press 2011) 133. 366
Ineli-Ciger (n 360) 241. 367
Kolmannskog and Mystad (n 356) 313-326. 368
Ineli-Ciger (n 360) 226 369
ibid 236. 370
ibid 234 371
ibid 226 372
ibid 245
82
dependent on the Council’s decision.373
This way, the Temporary Protection Directive would
be triggered whenever this objective criterion would be fulfilled.
In the last years, the EU adopted alternative mechanisms for mass influx situation
management, as the early warning mechanism of the article 33 of the Dublin III regulation.
These recent developments in European asylum policies show a will to avoid the
implementation of the Temporary Protection Directive, more and more considered as a
‘measure of last resort’.374
5.2.3. Qualification Directive
The main idea of the Qualification Directive was to provide similar protection to persons
fleeing from situations as the one covered by the Temporary Protection Directive, focusing on
individual claims. Therefore, the Qualification Directive constitutes an instrument to
harmonise the Geneva Convention and the Temporary Protection Directive regarding the
treatment of individuals. It synthetizes the existing EU refugee and asylum policies375
and
codifies ad hoc practices of complementary protection376
, as stated in its Recital 34.
To correct deficiencies identified through reporting, monitoring and peer-review results,
the Qualification Directive was amended in 2011, in the second phase of the Common
European Asylum System. Ragheboom points out that this way of proceeding in policy-
making, by a recursive revision, is an experimentalist form of governance, ‘an important
feature’ in asylum policy-making.377
This is proof of the flexibility and functional evolution of
EU law in this field. Its 2011 recast did not introduce any new category of persons eligible for
international protection. Its main purpose was to ensure better harmonisation, coherence and
consistency with international law.378
The experimental aspect of the Directive makes it an ideal candidate in the search of a EU
legal framework for EDP. Therefore, it is necessary to firstly, identify the nature of the
protection offered: is it a subsidiary protection or complimentary protection (5.2.2.1)?
Secondly, the conditions of application of this protection in relation with EDP (5.2.2.2) will be
reviewed. While in this sub-section, a focus is given to the application of the Qualification
373
ibid 245 374
ibid 244. 375
International Centre for Migration Policy Development (n 7) 51. 376
Tom Syring, ‘The Sirens and the Emperor: The European Union between Attraction and Intervention’ in
Susan Akram and Tom Syring (eds), Still Waiting for Tomorrow: The Law and Politics of Unresolved Refugee
Crises (Cambridge Scholars Publishing 2014) 257. 377
Ragheboom (n 333) 104. 378
Hemme Battjes, ‘Chapter 7: Piecemeal Engineering: The Recast of the Rules on Qualification for International
Protection’ in Vincent Chetail, Philippe De Bruycker and Francesco Maiani (eds), Reforming the Common
European Asylum System The New European Refugee Law (Brill 2016) 239.
83
Directive to the case of EDP, the following section explores the other side of the dynamic
between this Directive and EDP: an interpretation of the Qualification Directive in the light of
recent international case law on EDP is given (5.2.2.3). However, when it comes to its EU
national transposition and interpretation (5.2.2.4), this Directive has failed in harmonizing the
Common European Asylum System; therefore weakening the power of the EU in asylum
matters.
5.2.3.1 Subsidiary protection or complimentary protection?
Mayer insists on the distinction between subsidiary and complimentary. A complementary
form of protection would imply an extension of the protection regime under the Geneva
Convention.379
In this case, it is not an extension of the protection regime, as the individuals
who would fall under article 15 of the Qualification Directive would benefit from a different
protection: in his words, a less protective status.380
However, on the one hand, the Recital 24 of the Qualification Directive qualifies it as
complementary, and so does the Explanatory Memorandum on the Guiding Principles of this
directive.381
On the other hand, we could understand that this form of protection is
complementary based on the progressive interpretation of the definition of refugee. A
progressive interpretation of the definition of refugee adapts to the changing forms of
persecution. Following the progressive interpretation position, the aim of this regime is to
adapt the regime to cases that do not fall under any of the five Geneva grounds to qualify a
refugee, meaning new forms of persecution. These new forms of persecutions allow
expanding the regime to what could be considered new forms of refugees, or de facto refugees.
Changing forms of persecutions leads to a de facto change of the definition of refugees, but so
far, no legal change of the definition. Covering new forms of refugees, the regime of
protection should be similar, and therefore complimentary.
Nevertheless, in the 2012 judgment M., the CJEU clarified that the nature of the rights
attached to the refugee status and those attached to the subsidiary protection are different.382
The refugee status grants broader rights and economic and social benefits than the subsidiary
protection. Also, according to the 2001 proposal of the European Commission for this
379
Mayer (n 362) 107. 380
ibid. 381
European Commission, ‘Explanatory Memorandum on the Guiding Principles of the Qualification Directive’
(2002) COM/2001/0510 final 5. 382
Case C-277/11 M. M. v Minister for Justice, Equality and Law Reform and Others [2012]
ECLI:EU:C:2012:744, para 92.
84
Directive, member states mostly considered this subsidiary protection to be temporary.383
This
interpretation shows the primacy of the Geneva Convention.384
However, in the context of the
drafting of the recast, the European Commission stated in 2009 that this initial assumption
that subsidiary protection was temporary was shown to be inaccurate, having presenting that
the ‘limitations of the rights of beneficiaries of subsidiary protection which can no longer be
considered as necessary and objectively justified’385
have to be removed. In this line, the
European Commission proposed a complete uniformisation of the benefits attached to both
international protection statuses.386
The recast Qualification Directive did not entirely follow
the line of the European Commission as there was only a partial uniformisation.387
But the
recast Directive 2013/32 on common procedures for granting and withdrawing international
protection388
has eliminated some of these differences between refugees and beneficiaries of
subsidiary protection: the duration of residence permits, as well as access to social welfare,
health care and labour market. There is at least an approximation between the content of
refugee protection statuses and the subsidiary protection, as supported by the UN High
Commissioner for Refugees.389
As laid down in Chapter VII of the Qualification Directive,
the same rights and freedoms apply to all beneficiaries of the international protection under
the Qualification Directive.
5.2.3.2 Conditions of application
It is necessary to first examine the identification of the eligible beneficiaries of this subsidiary
protection (5.2.2.2.2), to assess if it can cover EDP. The Qualification Directive is truly
innovative390
for two main reasons. On the one hand, it allows a broader interpretation of what
can be considered acts of persecution.391
On the other hand, it introduces the possibility that
acts of persecution can be perpetuated by non-state actors. The qualification of serious harm
383
European Commission, ‘Proposal for a Council Directive on Minimum Standards for the Qualification and
Status of Third Country Nationals and Stateless Persons as Refugees or as Persons Who Otherwise Need
International Protection’ (2001) COM(2001)510 final para 29. 384
ibid para 4. 385
European Commission, ‘Proposal for a Directive of the European Parliament and of a Council on Minimum
Standards for the Qualification and Status of Third Country Nationals or Stateless Persons as Beneficiaries of
International Protection and the Content of Protection Granted (Recast)’ (2009) COM(2009) 551 final/2 para
8. 386
ibid para 34-42. 387
Céline Bauloz, Géraldine Ruiz, ‘Chapter 8: Refugee Status and Subsidiary Protection: Towards a Uniform
Content of International Protection’ in Vincent Chetail, Philippe De Bruycker and Francesco Maiani (eds),
Reforming the Common European Asylum System The New European Refugee Law (Brill 2016) 243. 388
European Parliament and Council Directive, 2013/32/EU of 26 June 2013 on common procedures for
granting and withdrawing international protection [2013] OJ L 180. 389
UN High Commissioner for Refugees (n 357) 16-17. 390
Kaunert and Leonard (n 343) 1404. 391
ibid 1402.
85
(5.2.2.2.3) and actors of persecution (5.2.2.2.4) are of fundamental importance in relation to
EDP. This will be followed by an analysis of the qualification of actors of protection
(5.2.2.2.5) and the condition of the absence of internal protection alternative (5.2.2.2.6) as a
condition to use the Directive's protection.
However, beforehand, a few words on the presumption that rules the Qualification
Directive: a presumption of a safe and democratic EU (5.2.2.2.1), as the Directive only
applies to third-country nationals.
5.2.3.2.1 Presumption of a safe and democratic EU
The definition of the refugee in the Qualification Directive is not worded exactly as the
definition in the Geneva Convention, but broadly reflects it.392
The Qualification Directive
only applies to third-country nationals. This means that the status of refugee cannot be granted
to a member states national. This presumes all member states constitute safe democratic
countries, respecting fundamental human rights and that the Common European Asylum
System is built on mutual trust. This presumption is stated in the Protocol 24 TFEU, on
asylum for nationals of member states of the EU. This different policy for EU member states
nationals has been highly criticised, also by the UN High Commissioner for Refugees. It
infringes on the principle of non-discrimination based on race, religion or country of origin of
article 3 of the Geneva Convention.393
For this reason, the European Council on Refugees and
Exiles recommended to member states, in its information note about the recast Qualification
Directive, to extend the application of the definition of refugee and persons eligible for
subsidiary protection to any person.394
The 2011 Grand Chamber judgment M.E. and others395
has surprisingly adopted a
different position regarding this presumption. In this case, an asylum seeker opposed their
transfer from the UK to Greece – transfer regulated by the regulation ‘Dublin II’. The asylum
seeker argued the existing risk of subjection to inhuman treatments. The CJEU reminded the
392
María-Teresa Gil-Bazo, 'Refugee status, subsidiary protection, and the right to be granted asylum under EC
law', in New Issues in Refugee Research 136 (UN High Commissioner for Refugees 2006) 9. 393
UN High Commissioner for Refugees, ‘Position on the Proposal of the European Council Concerning the
Treatment of Asylum Applications from Citizens of European Union Member States’ (1997), para 8. 394
European Council on Refugees and Exiles, ‘Information Note on the Directive 2011/95/EU of the European
Parliament and of the Council of 13 December 2011 on standards for the qualification of third-country
nationals or stateless persons as beneficiaries of international protection, for a uniform status for refugees or
for persons eligible for subsidiary protection, and for the content of the protection granted (recast)’ (2011) 4. 395
CJEU , Joined Cases C-411/10 and C-493/10 N. S. v Secretary of State for the Home Department and M. E.
and Others v Refugee Applications Commissioner and Minister for Justice, Equality and Law Reform. [2011]
ECR I-13905.
86
presumption that all member states constitutes safe countries396
, including Greece. However,
it concluded that in practice, it could happen that there is a risk when being transferred that
the individual may be subjected to inhuman treatment, when a member state is experiencing
major problems.397
If there is a real risk, the asylum seeker should not be transferred.398
The CJEU recently adopted a similar position regarding European Arrest Warrants. Firstly,
in the 2013 Melloni judgment, the CJEU stated that higher fundamental rights protection
standards in a member state do not constitute a ground to refuse the execution of a European
Arrest Warrant399
. In other words, member states could not set higher fundamental rights
standards than the EU in the context of a European Arrest Warrant400
. This conclusion is based
on a system of mutual trust between member states, despite differences in levels of protection
of fundamental rights between member states, and between member states and the EU.
However, in the 2016 Aranyosi and Caldaruru case, the CJEU stated that if there is a risk of
violation of Article 3 of the ECHR, the European Arrest Warrant must be deferred401
. With
this last case, the CJEU did not contest Melloni’s conclusion: higher fundamental rights
protection standards in a member state still do not constitute a ground to refuse the execution
of a European Arrest Warrant. Nevertheless, in practice they are grounds to postpone the
execution of the warrant, until the situation in the State ordering the warrant improves. If there
is a real risk, the prisoner should not be transferred.
5.2.3.2.2 Eligible beneficiaries of subsidiary protection
The subsidiary protection applies when the threat cannot be qualified under the Geneva
Convention grounds to apply for refugee status. Therefore, there is first an evaluation of the
claim based on the Geneva criteria of the refugee status. If the claim fails to fulfil these
criteria, it is considered in the lights of the subsidiary protection. In the article 2(f), the
‘person eligible for subsidiary protection’ is defined as:
a third country national or a stateless person who does not qualify as a refugee but in respect of
whom substantial grounds have been shown for believing that the person concerned, if returned
to his or her country of origin, or in the case of a stateless person, to his or her country of former
habitual residence, would face a real risk of suffering serious harm as defined in Article 15, and
to whom Article 17(1) and (2) do not apply, and is unable, or, owing to such risk, unwilling to
avail himself or herself of the protection of that country.
396
ibid para 79. 397
ibid para 81. 398
ibid para 94. 399
European Arrest Warrant is a subject completely regulated by EU law 400
CJEU, Case C-399/11 Melloni v Ministerio Fiscal [2013] ECLI:EU:C:2013:107. 401
CJEU, Joined Cases C-404/15 and C-659/15 PPU Aranyosi and Căldăraru v Generalstaatsanwaltschaft
Bremen [2016] ECLI:EU:C:2016:198.
87
The inclusion of EDP in this category of persons eligible for subsidiary protection
depends on the interpretation of the definition of serious harm. In the Explanatory
Memorandum on the Guiding Principles of the Qualification Directive, the European
Commission acknowledged the progressive interpretation of the definition of refugee, in
particular in relation to the changing forms of persecution.402
Whether or not environmental
grounds constitute a changing form of persecution is debatable.403
However, the cross-
reference to the article 15 already provides a limitation for the serious harm that seems to
exclude EDP.
5.2.3.2.3 Serious harm
Article 15 sets three grounds of serious harm. Firstly, based on ‘(a) death penalty or
execution’; secondly, grounded on ‘b) torture or inhuman or degrading treatment or
punishment of an applicant in the country of origin; thirdly, founded on ‘(c) serious and
individual threat to a civilian's life or person by reason of indiscriminate violence in situations
of international or internal armed conflict’.
The first two categories are the translation of international human rights law obligations,
while the third one is an innovation, and somehow more ambiguous. The phrasing of the
paragraph is paradoxical, as it requires the proof of an individual threat in the context of an
indiscriminate violence. For this reason, the French National Consultative Commission on
Human Rights recommended to change the phrasing of article 15 (c), to properly offer
protection to asylum seekers coming from countries where chaos and conflict prevail.404
In
addition, the reference to ‘individual’ reduces the scope of application, as intended by the
drafters of the Qualification Directive.405
The limitation of the scope in this article goes
together with Recital 35, stating that ‘risks to which a population of a country or a section of
the population is generally exposed do normally not create in themselves an individual threat
which would qualify as serious harm’. Partly because of this lack of clarity, the Qualification
Directive was not uniformly transposed amongst member states. For instance, eight of them
decided to change the phrasing of the article 15, to leave out the term ‘individual’.406
402
European Commission (n 381) 13. This position regarding the progressive interpretation of the definition is
shared by the UN High Commissioner for Refugees. 403
Morel and de Moor (n 358). 404
Commission Nationale Consultative des Droits de l´Homme, ‘Avis sur les conditions d’exercice du droit
d’asile en France (2006) <http://www.cncdh.fr/sites/default/files/06.06.29_avis_droit_dasile.pdf> accessed 30
April 2018 para 31. 405
Ragheboom H (n 333), p.134. 406
European Commission, ‘Report on the application of Directive 2004/83/EC of 29 April 2004 on minimum
standards for the qualification and status of third country nationals or stateless persons as refugees or as persons
88
5.2.3.2.4 Actors of persecution
The second innovative element of the Qualification Directive is the extension of actors
perpetuating persecution or serious harm. Article 6 enumerates these actors: firstly, ‘(a) the
state’; secondly, ‘(b) parties or organisations controlling the state or a substantial part of the
territory of the state’; and thirdly ‘(c) non-state actors, if it can be demonstrated that the actors
mentioned in points (a) and (b), including international organisations, are unable or unwilling
to provide protection against persecution or serious harm as defined in Article 7’. The
innovation lies in the third element. It is inspired from the protection theory, as opposed to
accountability theory in which asylum is limited to those who fear state persecution.407
The
protection theory argues that non-state actors can be the origin of a persecution. Nevertheless,
the non-state persecution is conditioned by the inability or unwillingness of the state in
providing a meaningful protection against it.
The Geneva Convention remains silent on the nature of the persecutor. It never required
the state or any institution of the government to be the perpetuator of the persecution as a
precondition to grant refugee status.
5.2.2.2.5 Actors of protection
Article 7 establishes two possible actors of protection: the state in paragraph (a) and ‘parties
or organisations, including international organisations, controlling the state or a substantial
part of the territory of the state; provided they are willing and able to offer protection in
accordance with paragraph 2’ in paragraph (b).
Incorporating non-state actors as actors of protection, and not only persecution, is
controversial and has been criticised by academics, NGOs and more particularly by the UN
High Commissioner for Refugees in its Comments on Proposal for recast.408
Traditionally,
states are the only entities able to provide protection in international refugee law.409
The
European Council on Refugees and Exiles commented that for practical reasons, non-state
actors should be removed from this definition.410
Academics have underlined the tension of
this provision with the Geneva Convention, which requires that protection comes from the
who otherwise need international protection and the content of the protection’ (2010) COM(2010)314 final 9. 407
Jennifer Moore ‘Whither the Accountability Theory: Second-Class Status for Third-Party Refugees as a Threat
to International Refugee Protection’ in Joanne Van Selm, Khoti Kamanga, John Morrison, Aninia Nadig and
Sanja M. Špoljar-vržina (eds), The Refugee Convention at Fifty: A View from Forced Migration Studies
(Lexington Books 2003) 113. 408
UN High Commissioner for Refugees (n 357) 4-5. 409
Satvinder S Juss, The Ashgate Research Companion to Migration Law, Theory and Policy (Routledge 2013)
222. 410
European Council on Refugees and Exiles (n 394) 6-7.
89
state, in its article 1A(2).411
According to Battjes, considering that international organisations
can provide protection is incompatible with the Geneva Convention.412
Not only is there a
tension between the Geneva Convention and this provision, but a tension also exists within
the article itself: between paragraph 1 and paragraph 2.413
Paragraph 1 multiplies the actors of
protection, while paragraph 2 sets the standard of protection to one of an ‘effective and of a
non-temporary nature’. Battjes underlines that the only durable protection can be provided by
the state. This is one of the major problems pointed out by the UN High Commissioner for
Refugees: the authority of non-state actors is usually temporary and has only a limited ability
in law enforcement.414
The position taken in this article of the Qualification Directive is more proof of the
functional and pragmatic asylum governance, as in a globalized world, states are no longer the
only ones having the ability of protecting citizens.
5.2.3.2.6 Internal protection alternative
International protection under the Qualification Directive can be triggered for an individual
only if there is no internal protection alternative. Article 8(1) of the present Directive clarifies
internal protection alternative in the country of origin, if the applicant ‘(a) has no well-
founded fear of being persecuted or is not at real risk of suffering serious harm’ or ‘(b) has
access to protection against persecution or serious harm as defined in Article 7; and he or she
can safely and legally travel to and gain admittance to that part of the country and can
reasonably be expected to settle there’.
This provision does not rely on the mere existence of an alternative internal protection, but
on the accessibility of this protection in the particular case of the applicant. This element was
added in the 2011 recast. The 2004 version of article 8 evaluated the internal protection
alternative ‘notwithstanding technical obstacles to return to the country of origin’. In its
proposal for the recast of the Qualification Directive, the European Commission refers to the
case law of the EctHR, Salah Sheekh.415
In this 2007 judgment, the EctHR stated that in
relation to Article 3 on the prohibition of torture, ‘the person to be expelled must be able to
411
Battjes (n 330) 209. 412
ibid 210. 413
Paragraph 2 states that ‘Protection against persecution or serious harm must be effective and of a non-
temporary nature. Such protection is generally provided when the actors mentioned under points (a) and (b) of
paragraph 1 take reasonable steps to prevent the persecution or suffering of serious harm, inter alia, by operating
an effective legal system for the detection, prosecution and punishment of acts constituting persecution or serious
harm, and when the applicant has access to such protection. 414
ibid. 415
European Commission (n 385) 7; Salah Sheekh v. The Netherlands Application No 1948/04 (ECHR 11
January 2007) para 141.
90
travel, gain admittance, and settle there’. As Lehmann concludes, this amendment of the 2011
recast seeks to comply with international law.416
The European Council on Refugees and
Exiles offered a wide interpretation of the term ‘settle’ of the last paragraph of article 8(1).
According to this interpretation, the term should be considered through ‘the assessment of
different factors’, such as the possibility of economic survival in the part of the country that
could offer internal protection.417
This element is of major importance for EDP due to
environmental degradation.
Paragraph (b) deals with the criteria to qualify alternative internal protection in the
country of origin. The old article 8(1) only had a reference to a ‘no well-founded fear of being
persecuted or no real risk of suffering serious harm’ to be found in the part of the country of
origin - now present in the paragraph (a) of the recast article. The European Commission has
challenged this negative criterion. The European Commission proposed instead to replace it
with a positive obligation of ‘access to protection’418
against persecution or serious harm in a
part of the country of origin. Therefore, the absence of fear or real risk of suffering serious
harm would not have been enough to qualify the internal protection exception. The adopted
article of the recast Qualification Directive constitutes a compromise of both negative and
positive criteria. Lehmann notes that the protection under the article has not increased due to
this compromise.419
As for the negative criterion, there is no definition of a ‘well-founded
fear’.
5.2.3.3 International theory application
In line with the protection theory, Scott gives an interpretation of the Qualification Directive
in the light of a case law from New Zealand on the Geneva Convention.420
The author justifies
his international interpretation method of the EU directive based on the reference to the
Geneva Convention in Recital 4421
of the Qualification Directive, and because it constitutes
guidance to the Geneva Convention for member states of the EU. The Qualification Directive
must be interpreted according to the member states’ obligations within an international legal
416
Julian M Lehmann, ‘Availability of Protection in the Country of Origin: An Analysis under the eu
Qualification Directive’ in Céline Bauloz, Meltem Ineli-Ciger, Sarah Singer, and Vladislava Stoyanova (eds),
Seeking Asylum in the European Union: Selected Protection Issues Raised by the Second Phase of the
Common European Asylum System (Brill 2015)211. 417
European Council on Refugees and Exiles (n 394) 7. 418
European Commission (n 406) 7. 419
Lehmann (n 416) 211. 420
Scott (n 354) 210. 421
ibid.
91
framework. Therefore, any other interpretation of this same document could bring theoretical
clarification on a interpretation of the provisions.
Scott analysed the reasoning of the New Zealand Immigration and Protection Tribunal in
the case AF (Kiribati). This 2015 judgment dealt with a citizen from Kiribati who claimed he
was entitled to have the status of refugee on the grounds of ‘changes to his environment in
Kiribati caused by sea-level-rise associated with climate change’.422
While the claim was
rejected, the Supreme Court did not reject the possibility of recognizing a refugee or personal
protection on ‘environmental degradation, whether associated with climate change or not’.423
The court did this by analysing the concept of persecution in an extensive way. In this, it
followed the decision of the court of first instance, stating that the concept of persecution also
includes a failure to take steps to reduce the risk of harm, perpetuated by a non-state actor.424
However, the Supreme Court confirmed that there was no serious harm in this situation, and
that no evidence showed that ‘the government of Kiribati was failing to take steps to protect
its citizens from the effect of environmental degradation to the extent it can’.425
Therefore, a
failure of the state to protect its citizens from environmental degradation could be interpreted
as a form of persecution, and fulfil the Geneva criteria to qualify a refugee or the
Qualification Directive criteria for protection.
Nonetheless, the extension of the interpretation of the Qualification Directive to
environmental grounds does not seem to be likely in a near future. There are recent proposals
to amend the Qualification Directive, following the migration crisis that pointed out the
weaknesses of the Common European Asylum System.426
The European Commission
submitted two reform packages427
and a proposal for a new Qualification Regulation428
in
2016. The reform packages put an emphasis on the principle of responsibility and solidarity.
As for the new Qualification Regulation, it codifies the latest CJEU jurisprudence on the
matter. The importance of the CJEU in the making of asylum legislation confirms the
422
New Zealand Immigration and Protection Tribunal, AF (Kiribati) [2013] 800413 (25 June 2013) para 2. 423
New Zealand Supreme Court Teitiota v Chief Executive of the Ministry of Business, Innovation and
Employment [2015] 107 (20 July 2015) para 13. 424
ibid para 54. 425
ibid, para 12. 426
European Commission, ‘Who qualifies for international protection’ (European Commission)
<https://ec.europa.eu/home-affairs/what-we-do/policies/asylum/refugee-status_en> accessed 30 April 2018. 427
European Commission, 'Towards a Reform of the Common European Asylum System and Enhancing Legal
Avenues to Europe' (2016) COM(2016) 197 final. 428
European Commission, ‘Proposal for a Regulation of the European Parliament and of the Council on standards
for the qualification of third-country nationals or stateless persons as beneficiaries of international protection,
for a uniform status for refugees or for persons eligible for subsidiary protection and for the content of the
protection granted and amending Council Directive 2003/109/EC of 25 November 2003 concerning the status
of third-country nationals who are long-term residents’ (2016) COM(2016) 466 final.
92
judicialisation of the asylum policy. The CJEU could therefore be a pioneering actor in the
making of an EU legal framework for EDP. Nevertheless, the new proposals do not consider
the possibility of extending serious harm to environmental and climate change grounds.
5.2.3.4 National transposition
The Qualification Directive was not transposed in a uniform way amongst the EU member
states. It has failed in harmonizing the Common European Asylum System. Not only is the
transposition not uniform, but also, the interpretation of the provisions lack uniformity.
Member states play on the ambiguous character of 15 (c) to give a restrictive interpretation to
the provision. The European Parliament, when assessing the implementation and transposition
of the Qualification directive, came to the conclusion that some member states, namely France,
Germany and Sweden, were interpreting the individual threat criteria, as if it meant that the
individual had to prove a greater risk than the rest of the population from his state of origin.429
The 2016 European Commission's draft for a new Qualification Regulations aims to achieve
better harmonisation, to ensure a ‘convergence of asylum decisions’.430
Member states are also free to have more favourable standards, to determine who
qualifies for international protection. However, their standards must be compatible with the
Temporary and Qualification Directive.
5.3 Examples of possible EDP asylum protection: a national and international
perspective
While there is no mention of EDP in EU law, it is necessary to also consider potential EU
national legal frameworks, whether through express references to displacement in relation
with the environment (5.3.1), or environmental provisions in hypothetical interpretation of
national law (5.3.2). EDP being an international situation, a short overview of other regional
instruments around the world (5.3.3) will be given, in order to know how it is legislated in
other places.
5.3.1. EDP in express EU national provisions
Nordic countries, namely Sweden (5.3.1.1) and Finland (5.3.1.2), are often cited as exceptions
when it comes to protection of EDP. Italy also introduced environmental grounds for
protection in its legal system (5.3.1.3).
429
Ragheboom (n 333) 139. 430
European Commission (n 426).
93
5.3.1.1 The temporally limited Swedish Aliens Act
The 2005 Swedish Aliens Act, Chapter 4 Section 2(a), provides a third kind of protection,
besides the refugee status and the subsidiary protection of the Qualification directive. This
provision grants permit of residence to persons ‘otherwise in need of protection’.431
This
protection regime applies to people who do not fulfil the Geneva criteria, nor the threshold of
armed conflict currently necessary to the eligibility of the subsidiary protection of the
Qualification directive. In this legal framework, the Swedish Aliens Act expressly applies to
fleeing persons who are outside their country and enable to return to their countries of origin
due to environmental disasters. It applies on an individual basis, and not on a mass influx
basis. Environmental disasters are here understood as sudden environmental catastrophes,
thus excluding slow onset EDP.432
The ‘otherwise in need of protection’ regime does not offer
long-term resident status, as stated in chapter 5a, Section 4. These provisions have never been
applied in Sweden.433
In 2016, Sweden limited its Aliens Act with a temporary law434
, as a consequence of the
2015-2016 mass migration. The new law entered in force 20 July 2016, and will remain in
force for the next three years. As stated in paragraph 16, the temporary law removed the third
type of protection for persons ‘otherwise in need of protection’. The temporary law makes
Swedish asylum system line up with the European standards. Therefore, environmental
disasters do not constitute a ground to apply for any type of protection for at least the next
three years.
5.3.1.2 The Finnish Aliens act and its two regimes of protection
The Finnish Aliens act of 2004435
offers two kind of protection based on environmental
grounds of a disaster or a catastrophe. They constitute alternatives to the refugee status and
subsidiary protection, thus extending the scope of EU law in their national asylum system.
The first one is laid in Section 88a (323/2009), and is regulated under humanitarian
protection. This option deals with the protection on an individual basis. To be eligible for this
humanitarian protection, the alien firstly needs to be residing in Finland. Secondly, he cannot
be eligible on the grounds of asylum status, nor on subsidiary protection grounds. Thirdly, he
cannot return to his country of origin. Fourthly, the inability of the alien to return to his
431
Sweden: Aliens Act (‘Utlänningslagen’) [2005] 2005:716. 432
International Centre for Migration Policy Development (n 7) 57. 433
Thomas G Weiss and Rorden Wilkinson, International Organization and Global Governance (Routledge 2014)
676. 434
Sweden: Law on temporary restrictions regarding the possibility to obtain a residence permit in Sweden (‘Lag
om tillfälliga begränsningar av möjligheten att få uppehållstillstånd i Sverige’) [2016] 2016:752. 435
Finland: Aliens Act (‘Ulkomaalaislaki’) [2004] 301/2004.
94
country of origin has to be based on an environmental catastrophe or a bad security situation.
The first permit granted will be temporary. The option to obtain a continuous residence permit
remains open, if grounds that were the foundation of the first permit still exist after three years,
as stated in section 113. If they still exist after four years, a permanent residence permit could
be granted, as laid down in section 56 (380/2006).436
The second protection offered is stated in Section 109, and constitutes a Temporary
protection, in the context of mass influx. Eligible persons in need of international protection,
have to be unable to return to their countries of origin safely. The criteria is assessed within
the context of massive displacement of people in the country or in the neighbouring areas.
The reason for this displacement can be inter alia, an environmental disaster. The duration of
the temporary protection is three years in total. None of these instruments has been used so far
in relation to environmental grounds.
5.3.1.3 Italy’s temporary protection due to natural disasters
Along with these two member states, the only other European country who expressly
mentions environmental displacement as ground for protection is Italy, as pointed out the
2011 European Parliament report.437
In article 20 of the Italian Legislative Decree 286 on
consolidated text of provisions governing immigration and the status of the foreigners438
,
natural disasters are considered possible grounds to adopt exceptional temporary protection
measures. This provision, however, has never been used either. Hence, disaster-related and
temporary nature does not make it a good candidate to protect slow-onset long-term
displacement.
5.3.2. Environmental provisions in hypothetical interpretations of national law
No other member states consider in their legislation that environmental reasons are sufficient
grounds to be eligible to any kind of protection. However, the 2011 European Parliament
report opens the door to possible interpretation of national legislation.439
While in eight
member states (Spain, Greece, Netherlands, Denmark, Hungary, Germany, Poland and United
Kingdom), the report did not find any legal provision that could be the basis of an
interpretation that could include environmental grounds, it did in seven others. Under the
436
Mc Adam (n 294) 111. 437
International Centre for Migration Policy Development (n 7) 56. 438
Italy: Consolidated Immigration Act (‘Testo Unico sull'Immigrazione’) [1998] Legislative Decree No 286. 439
International Centre for Migration Policy Development (n 7) 56-59.
95
Belgian Immigration Act440
, a regularisation mechanism is established. This mechanism can
accept all categories of persons as applicants for exceptional circumstances, which could
include environmental grounds. Besides Belgium, the highlighted provisions of the several
member states could be divided in two categories. The first kind of provision is based on
humanitarian grounds, while the second is related to a wider interpretation of one of the EU
protection directives previously presented.
Concerning Bulgaria, Ireland and Malta, EDP could be considered under, respectively,
‘humanitarian reasons’ (article 9(3), point 8 of the Bulgarian Aliens Act)441
, ‘humanitarian
considerations’ (section 3(6) of the 1999 Irish immigration act)442
or a Temporary
Humanitarian Protection System (which constitutes an administrative policy and is therefore
not a law).
Lithuania and Latvia legal’s legal systems contain violation of human rights as grounds to
apply for subsidiary protection: in the article 40 and 87 of the Lithuanian law on Legal Status
of Aliens443
and in the article 4(3)(3) of the Latvian Act on Granting International Protection
to Aliens.444
EDP could be considered on these grounds. The relationship between violation of
human rights and environmental displacement needs to be assessed: whether the
environmental displaced itself is considered as a violation, whether it is the environmental
degradation, whether the environmental degradation affected other human rights, or the action
of the state regarding the environmental degradation affected the displaced persons human
rights. As for Slovakia, article 29 of law 480/2002 on Asylum445
offers wider grounds to apply
for temporary protection that could also be interpreted as including EDP: ‘impacts of a
humanitarian disaster or permanent or mass violation of human rights’. However, this
provision depends on the vote of the Council, and has never been used.
None of these provisions presented by the report have so far been used in relation to EDP
yet. Although Denmark does not have any legal instruments regarding asylum policy that
embraces EDP, the member state has granted humanitarian asylum to EDP from Afghanistan-
440
Belgium: Law on access to the territory, stays, establishment and expulsion of foreigners (‘Loi sur l'accès au
territoire, le séjour, l'établissement et l'éloignement des étrangers’) [1980] 1980121550. 441
Bulgaria: Foreigners in the Republic of Bulgaria Act (‘ЗАКОН за чужденците в Република България’)
[1998] No. 153/23.12.1998. 442
Ireland: Immigration Act [1999] No 22. 443
Lithuania: Law on the Legal Status of Aliens (‘Įstatymas dėl Užsieniečių Teisinės Padėties’) [2004] No IX-
2206. 444
Latvia: Act on Granting International Protection to Aliens (‘Välismaalasele rahvusvahelise kaitse andmise
seadus’) [2006] RT I 2006, 2, 3. 445
Slovakia: Law on asylum and on change and amendments of some acts (‘Zákon o azyle a o zmene a doplnenÌ
niektor˝ch z·konov’) [2002] 480/2002.
96
mainly families with young children and single women- due to drought, between 2001 and
2006446
.
5.3.3. Examples of other regional instruments
Other regional instruments also provide a larger refugee definition than the Geneva
Convention. This extension of the regime constitutes a complementary form of protection,
such as the 1969 Organisation of African Unity Convention Governing specific aspects of
Refugee Problems in Africa. It expands it to ‘every person who, owing to […] events
seriously disturbing public order in either part or the whole of his country of origin or
nationality, is compelled to leave his place of habitual residence in order to seek refuge in
another place’.447
The mention of threats founded on ‘serious disturbance of public order’
could include environmentally based threats448
, if serious enough to disrupt public order.
However, African governments state that such an obligation has never arisen from this
Convention. Nevertheless, regional practice allowed temporary cross-border migration due to
natural disasters.449
In addition, a dynamic interpretation is not excluded.450
Another example
can be found in the 1994 Arab Convention on Regulating Status of Refugees in Arab
Countries, as it explicitly mentions ‘the occurrence of natural disasters or grave events
resulting in major disruption of public order in the whole country or any part thereof’451
. Yet,
the Convention has not proven its potential so far452
regarding EDP.
5.4 Conclusion
The Geneva Convention proved to be inefficient regarding EDP. The definition of refugee it
offers is based on the concept of persecution, and therefore excludes EDP. Modifying the
Convention runs the risk of weakening it. Adding a protocol to it could be another way of
including EDP, but the political will to do so is absent. More generally, the relevance of a
refugee status for EDP is questionable. Firstly, it would contribute to developing inequality
between international EDP and internally displaced people. Secondly, this might lead to a risk
446
Mc Adam (n 316) 110. 447
Organization of African Unity, Convention Governing the Specific Aspects of Refugee Problems in Africa (10
September 1969) 1001 UNTS 45. 448
Karoline Popp, ‘Regional Policy Perspective’ in Etienne Piguet and Frank Laczko (eds), People on the Move
in a Changing Climate: The Regional Impact of Environmental Change on Migration (Springer 2014) 248. 449
McAdam (n 316) 48 450
Walter Kälin and Nina Schrepfer, 'Protecting People Crossing Borders in the Context of Climate Change
Normative Gaps and Possible Approaches' (United Nations High Commissioner for Refugees 2012)
PPLA/2012/01, 36. 451
League of Arab States, Arab Convention on Regulating Status of Refugees in the Arab Countries [1994]
article 1. 452
Ibid.
97
of implosion of the asylum system. Thirdly, this might negatively affect political refugees. As
underlined by the UN High Commissioner for Refugees, ‘lumping both groups together under
the same heading would further cloud the issued and could undermine efforts to help and
protect either group and to address the root causes of either type of displacement’.453
The EU offers alternative systems of protection for asylum seekers who do not fall under
the Geneva Convention. They are established under the Temporary Protection Directive and
the Qualification Directive. Both directives do not refer directly to EDP or environmental
threats, but offer broader grounds to apply for protection than the restrictive persecution of the
refugee definition. The Temporary Directive also seems appropriate as it applies in case of
mass influx – which is often the context in which it is presumed that EDP will happen.
However, the Temporary Protection Directive has never been applied and the political will to
do so cannot be demonstrated. As for the Qualification Directive, it welcomes non-state actors
to be considered as actors of persecution. Nevertheless, recent amendment proposals to the
Qualification do not consider the express inclusion of environmental grounds.
A similar situation is found in other regions in the world. Instruments of complementary
protection show elements of application to EDP based on broad interpretation. Nonetheless,
there remains a lack of political will.
The environmental, human rights and asylum law approaches offer instruments that can
deal with EDP only hypothetically and indirectly, ‘par ricochet’.454
Due to its two key-
directives, EU asylum law gets the most attention from the literature in relation with EU law
and EDP. However, within EU policy, the approach that seems the most popular nowadays
regarding EDP is the one of international economic law and labour standards.
453
UN High Commissioner for Refugees (2002), ‘The Environment: A critical Time’ 127 Refugees 13. 454
Christel Cournil and Pierre Mazzega, ‘Reflexions prospectives sur une protection juridique des réfugiés
écologiques’ (2007) 23 Revues Européennes des Migrations Internationales 7,7.
98
6. Economic law and labour migration approach
Refugee law scholar Islam reminds us that during the Cold war, there were skilled-labour
shortages in the West.455
In this context of industrialisation and economic development, new
working hands were always welcome. Therefore, refugees and economic migrants were
equally admitted in these countries, with no discrimination regarding the difference of their
status.
Nowadays, the importance of labour migration law regarding EDP does not come across
as as obvious as in the previous fields of law analysed, but is founded on three reasons. The
first reason is the recent development in the grasp of this phenomenon by European policy
makers.456
EDP are more and more incorporated in a discourse on economic migrants and
apprehended as such. This first reason is therefore based on a policy recontextualisation: a
political context that has repercussions on the studied category. The second reason is the
importance of economic factors -both for EDP and for the state of origin. Nonetheless, this
has to beconsidered in relation to vulnerability and adaptability. This second reason
recontextualises EDP along the lines of socio-economic factors. It is in a way the most
important reason of the three, as EDP tend to be reduced to a consequence of climate change.
The third reason is the importance of a global network and international actors to apprehend
and constitute a framework to this multi-factor phenomenon.
The need to address EDP in the framework of international migration negotiations has
been underlined by the International Organization for Migration in 2017.457
This presumes
that EDP is not considered by Intergovernmental Panel on Climate Change as a failure of
adaptation, but rather a form of adaptation.
This approach in relation to labour migration law has been heavily criticised. Opponents
considered that approaching EDP as a form of adaptation tragically excludes injustices458
and
human rights violations. Nonetheless, proponents to EDP as adaptation argue in favour of the
facilitation of labour migration through international economic law. International economic
law (mainly trade law) can constitute an effective EU framework for EDP, and, paradoxically,
a vehicle for human rights and labour standards (including labour migration and labour rights).
455
Islam and Bhuiyan (n 211) 227. 456
ibid 26. 457
The International Organization for Migration organised in November 2017 a High-Level Panel Discussion
titled ‘Opportunities to Address Migration and Climate Change in the Global Compact for Safe, Orderly and
Regular Migration’. International Organization for Migration (n 162). 458
Bettini, Nash and Gioli (n 43) 6.
99
The first section will explain the presumption under the international economic law and
labour migration approach in regard to EDP as adaptation strategy (6.1). The second section
will deal with the World Trade Organization (WTO), human rights and labour standards (6.2),
setting the necessary international stage to understand the EU’s potential legal impact on EDP.
Then, the EU and its process of integration of human rights and environment in international
economic law (6.3) will be reviewed. Finally, this part will conclude with a short note on the
necessary involvement of the private sector in an EU EDP framework (6.4).
6.1 EDP as adaptation strategy
There are two ways of understanding environmentally induced migration as adaptation
strategy. The first one is to understand EDP as inevitable, due to extreme environmental
conditions. The second one is to understand migration not as inevitable, but as the best option.
This presumes on the hand, that populations affected staying on site see their vulnerability
increase; and on the other hand, that migration is voluntary. When voluntary, migration is said
to produce more benefits for receiving and sending communities than involuntary EDP.459
In
both cases, facilitating labour migration is thought to create opportunities for EDP to take
advantage of their migration potential.
Taking advantage of a migration potential means, for example, to access different social
networks of information, but also to transfer human, social and financial capital to the
community of origin. The EU Global Approach to Migration and Mobility program
underlined that this transfer had a positive impact on development.460
In relation to this, the
EU can maximise the development impact of EDP for their communities of origins by
implementing measures to facilitate these transfers. Therefore, EDP could use their migration
potential to be effective development actors.461
Nevertheless, the understanding of EDP as adaptation strategy, and its negative
consequences, remains limited. Opponents argue that the labour migration law approach itself
ignores human rights issues and vulnerabilities. However, it is the understanding of EDP as
adaptation, and not labour migration law that ignores human rights issues and pre-existing
vulnerabilities. Therefore, it is necessary to frame EDP as adaptation strategy within a human
rights-based approach. A labour migration law approach could help spreading both an
environmental and human rights-based approach.
459
European Commission, 'Commission Staff Working Document: Climate change, environmental degradation,
and migration' (2013) SWD(2013) 138 final, 26. 460
European Commission, ‘The Global Approach to Migration and Mobility’ (2011) COM(2011)743 final, 6. 461
European Commission (n 459) 27.
100
6.2 WTO, human rights and labour standards
Labour standards and international economic law can constitute an effective framework for
EDP, and promote at the same time a human rights-based approach. Nevertheless, linkages
between human rights and trade law are complex. Before arguing for an EU approach of this
matter, it is necessary to understand the global legal framework of international trade law. The
WTO is the main actor of the creation of global market framework. While WTO's first aim is
to reduce trade barriers, its functions have expanded (6.2.1). What does this expansion mean
for its relationship with human rights and labour standards? (6.2.2)
6.2.1 Evolution of WTO's function
Today, economic and trade law and policy constitute ‘the prime instruments of foreign
policy’462
, regulated by the WTO. From a classical point of view, promoting other policies
than trade – such as environment, human rights or labour standards – is not a concern of the
WTO, let alone the foundation of an EDP framework. The aim of the General Agreement on
Tariffs and Trade463
can be summed up as the reduction of trade barriers. However, such an
interpretation of the WTO's function is nowadays insufficient.464
WTO's function has grown
to be more constitutional in a globalising economy.465
Does this bear the responsibility of
human rights and labour standards in international economic law?
6.2.2 Interaction of WTO with human rights
To understand how trade law can constitute the foundation of EDP framework, it is necessary
to understand WTO's relationship with human rights. Firstly, the nature of WTO's rights and
freedom (6.2.2) differs from the nature of human rights. Nonetheless, human rights still
constitute an international frame for WTO measures (6.2.3). However, when it comes to
looking for human rights and labour standards in WTO law (6.2.3), there is no explicit
reference.
6.2.2.1 Difference of nature of WTO rights: the case of the principle of non-discrimination
There are essential distinctions to be drawn between WTO rights and human rights. WTO
rights are very narrow compared to human rights. Firstly, they exclusively relate to the
462
Thomas Cottier, The Challenge of WTO Law: Collected Essays (Cameron May 2007) 568. 463
GATT, General Agreement on Tariffs and Trade, Marrakesh Agreement Establishing the World Trade
Organization [1994] Annex 1A, 1867 U.N.T.S. 187, 33 I.L.M. 1153 (GATT). 464
ibid. 465
John H Jackson, ‘Global Economics and International Economic Law’ (1998) 1 Journal of International
Economic Law 1,1.
101
international economic sphere. Secondly, they only apply to limited people, as foreign traders.
Thirdly, the objects of the rights are economic commodities. On the contrary, human rights
law applies to all, and focuses on individuals and occasionally groups.
However, the principle of non-discrimination is essential to both WTO and human rights
regimes. It also constitutes an important instrument for the foundation of an EDP framework,
regarding labour standards. Nevertheless, the distinction established in the last paragraph
between the regimes also applies to the non-discrimination principle. In the WTO, the non-
discrimination rights apply to businesses. For instance, the Most Favoured Nation principle,
of article 1 of the General Agreement on Tariffs and Trade, protects foreign businesses from
discrimination in relation to other foreign businesses. The National Treatment principles, of
article 3 of the General Agreement on Tariffs and Trade, protects from discrimination in
relation to local businesses. These principles promote regulatory equality between economic
commodities. On the contrary, in human rights law, the non-discrimination principle promotes
a substantive equality between individuals. Although the two regimes use the same
terminology, there is a fundamental difference in the understanding of the term.
In EU law, the principle of non-discrimination is a hybrid of both systems. It applies to
businesses and traders. However, the application of this principle is also extended to
individuals, as it is for instance the foundation of bans on differential treatment based on
gender, race or religion. The hybrid interpretation of the EU constitutes a bridge between
WTO and human rights regime. It could also be the link between EDP, international economic
law, human rights and labour standards.
6.2.2.2 Human rights frame of WTO and principle of due diligence
The WTO itself is not a party to any international human rights treaty. Nonetheless, its
member states have duties under the Vienna Declaration and Plan of Action of 1993, as they
declared primacy of human rights obligations in Article 1. They also have duties under the
International Covenant on Economic, Social and Cultural Rights.
In this human rights frame, the human rights principle of due diligence applies. According
to the principle of due diligence, a state shall refrain from taking measures affecting the
enjoyment of human rights, including ‘unreasonable interferences with persons' livelihoods
and abilities to improve their own economic situation’.466
It is therefore relevant to EDP. This
negative obligation focuses on the impact of trade on vulnerabilities. The principle of due
466
Adam McBeth, International Economic Actors and Human Rights (Routledge 2010) 96, as cited in Joseph (n
292) 37-38.
102
diligence also applies to determine a state's responsibility. Failing to adopt reasonable actions
in relation with the WTO ‘foreseeably perpetuates ongoing poverty’.467
This constitutes a
violation of extraterritorial human rights obligations and, therefore, founds state’s
responsibility.468
6.2.2.3 Human rights and labour standards in WTO
The only explicit reference to human rights or labour standards in Article XX GATT is to
prison labour. Nonetheless, paragraph (b) of this article sets the exception of the protection of
human life or health. So far, WTO never interpreted paragraph (b) to cover policies not
explicitly mentioned.469
However, the environmental exception of paragraph (g) is the subject
of an evolutionary interpretation470
, lobbied by the EU. The global influence of the EU can
participate in introducing a human rights-based approach that would benefit EDP.
6.3. EU and the process of integration of human rights and the environment in international
economic law
The EU can create a safe channel of migration for EDP through international economic law
and labour standards. The EU enjoys the position of a global economic policy leader in its
external trade policy471
(6.3.1), and promotes international legal labour migration (6.3.2.) that
can constitute the foundation of an EDP framework. Its action in this field is also submitted to
a human rights framework, as shown previously in section 4.1.
6.3.1 EU's external trade policy: influence of a global actor
The position of the EU as a global trade leader (6.3.1.1) puts it in an advantageous situation
to influence global trade regulations (6.3.1.2), setting a structural framework in favour of EDP
protection.
6.3.1.1 EU as a global trade leader
The position of the EU as global leader and its influence on international environmental law
was underlined in section 3.1.3. This leading position and influence on the international scene
is even stronger when it comes to international economic law. The EU was firstly mainly
467
Joseph (n 292) 260. 468
ibid. 469
Christiane R. Conrad, Processes and Production Methods (PPMs) in WTO Law: Interfacing Trade and Social
Goals (Cambridge University Press 2011) 313-314. 470
Carlos Lopez-Hurtado, 'Social Labelling and WTO Law' (2002) 5 J. INT'L ECON. L. 719, 730. 471
For a comment on EU‘s internal legal system, labour migration, human rights and EDP, see section 4.2.2.3 on
EU and CJEU treatment of non-nationals’ right.
103
created as for economic reasons, aiming towards a single market. International economic law
and markets are therefore its strongest asset and the field on which it has the most influence.
For that reason, it is also in relation to this approach that the EU has more chances to have an
impact regarding an EDP framework. Bradford pointed out that the EU regulatory regimes do
set global standards. These standards pushes the international community to a race to the top
for better standards.472
In a 2010 resolution on international trade policy in the context of climate change
imperatives, the EU Parliament insisted regarding WTO that:
obligations and objectives under [multilateral environment agreements], such as the UN
Framework Convention on Climate Change, and other UN institutions [Food and Agriculture
Organization, International Labour Organization, International Organization for Migration] must
take precedence over the narrow interpretation of trade rules’473
and regretted the lack of
integration of, among others, ‘environmental protection including climate change, as well as
social justice and respect for all human rights.474
6.3.1.2 EU's influence on global trade regulations
A first example of the EU's influence on market standards has already been described in
relation with environmental law and greenhouse gas.475
Another example would be the
influence of the EU on standards of process and production methods. Process and production
methods are central in the process of linking trade to human rights and environment.476
In
principle, the WTO Appellate Body creates jurisprudence on the measures on process and
production methods. WTO Appellate Body's recommendations are final and binding.477
Nonetheless, Ganesh underlines that the EU asserts jurisdiction with the Appellate Body,
especially in cases involving regulatory measures related to advancing environmental goals.
In this dynamic between EU and Appellate Body, there has been a lack of consultation of
other WTO Members.478
This shows even more the institutional influence of the EU over
standards of a global market. The influence on market standards of the EU could expand to
advance a human rights-based approach. It could found and benefit an EU EDP framework.
472
Bradford calls this a ‘Brussels Effect’. Anu Bradford, ‘The Brussels Effect’ (2012) 107 NW U L REV 4, 8; as
cited in Ganesh (n 26) 497. 473
European Parliament, Resolution on international trade policy in the context of climate change imperatives
(2010/2103(INI)) (25 November 2010) C 99 E/94, para 1. 474
ibid. 475
See CJEU, Case C-366/10 Air Transport Association of America and Others v Secretary of State for Energy
and Climate Change [2011] ECR I-13755 in section 4.2.3.2.1 on EU and extra-territorial jurisdiction. 476
Thomas Cottier and Matthias Oesch, ‘Direct and indirect discrimination in WTO an EU law’ in Sanford E.
Gaines, Birgitte Egelund, Olsen,Karsten and Engsig Sørensen(eds), Liberalising Trade in the EU and the WTO:
A Legal Comparison (Cambridge University Press 2012) 166. 477
Unless all Members of the Dispute Settlement Body (the Council) agree to refute the adoption of the report. 478
Ganesh (n 26) 498.
104
6.3.2 EU, promoter of international legal migration
The EU promotes of legal migration and international mobility. The promotion of regional
and international mobility constitutes an EU goal under the Global Approach to Migration and
Mobility and the 2011 Agenda for Change on Increasing the Impact of EU Development
Policy. In this context, the EU aims at enhancing the legal labour migration of EDP between
south and EU (6.3.2.1), but also the development impact of south-south migration (6.3.2.2).
6.3.2.1 South-EU migration as EDP framework
The EU Commission advised the EU to consider ways to integrate ‘migration-as-adaptation’
as part of climate change adaptation strategy. The example given by the Commission is to
support partners to introduce migration in national adaptation plans.479
In this regard, the Temporary and Circular Labour Migration agreement between Spain
and Colombia is a good example. The project started with a Catalonian employers’ federation
who needed workers to take vacant positions in their agricultural business. The International
Organization for Migration later implemented the project and the EU funded it.480
This project
aimed at developing the flux of migrant workers, targeting, amongst others, communities that
were affected by regular environmental disasters. Vulnerability to natural disasters was a
criterion of selection to this program. This agreement could be a model for an EU EDP
framework. Nonetheless, the solutions offered were temporary.
6.3.2.2 Promoting south-south migration by supporting regional agreements
There are regional agreements promoting free movement of people - also for labour purposes
- such as the Mercado Común Del Sur or the Economic Community of West-African States
(ECOWAS). For instance, the EU invested 26 million EUR to promote the implementation of
ECOWAS. The provisions of ECOWAS do not mention explicitly EDP. Nonetheless, such
frameworks can be used as an EDP framework481
as they facilitate mobility. This, however,
presumes that the implementation of these provisions are effective in the first place, which is
not always the case.482
479
European Commission (n 459) 28. 480
Between 2006 to 2009, it was funded by the EU AENEAS programme. Ibid 29. 481
ibid 20. 482
ibid.
105
All of these regional agreements could contribute to an EDP framework. Nevertheless,
they are insufficient as for now. The EU Commission committed to researching labour
migration initiatives that could target more specifically vulnerable areas and EDP.483
6.4. Involvement of the private sector in an EU EDP framework
Multinational corporations are leading actors of international economic law. Therefore, they
should not be left aside from an international economic law and labour migration approach to
EDP. This sub-section does not analyse any principle of law that could found an EU EDP
framework. It aims at underlining the importance of the involvement of the private sector
regarding EDP. This sector is usually left out of the debate, and should be considered by the
EU. Therefore, this section challenges the traditional conception of corporations, considered
private and apolitical.484
To show the relationship between economic regulation, corporations and EDP, Gemenne
takes the example of the Rana Plaza.485
In April 2013, garment factories collapsed in
Bangladesh, resulting in the death of more than a thousand people he describes the
international response to the incident, as a global audience suddenly realised the working
conditions of these factories, but also the consequences on people on the other side of the
planet when buying garments. Similarly, there is a connection between corporations’ polluting
activities and EDP, here the consequence on the other side of the planet. This statement relates
to Bangladesh one more time, as this country is already the stage of regular EDP, due to its
vulnerability regarding climate change.
However, this comparison can be taken one step beyond the polluting responsibility of
corporations, as there is also a connection between working conditions, multinational
corporations’ behaviour and EDP. Multinational corporations are the main actors of
globalisation and therefore represent a significant contribution to global economic structures,
whether it is through their impact in their surroundings, or the rules they set in the functioning
of the corporation itself. The interaction of multinational corporations towards local
communities is not neutral to their vulnerabilities. The Rana Plaza example is the
demonstration of an exploitation of local vulnerabilities by multinational corporations.
However, multinational corporations can also use their power to reduce these vulnerabilities.
483
ibid 28. 484
Andreas Georg Scherer and Guido Palazzo, ‘Globalization and Corporate Social Responsibility’ in Andrew
Crane, Abagail Mcwilliams, Dirk Matten, Jeremy Moon and Donald Siegel (eds), The Oxford Handbook Of
Corporate Social Responsibility (Oxford University Press 2008) 420. 485
Gemenne (n 12) 404.
106
In relation to an EDP framework, this could mean helping international labour migration. For
instance, in the scenario of a multinational corporation established in a vulnerable community
with EDP, it could translate as a legal help for a transfer to one of the other places where the
corporation is established.
In relation with multinational corporations and EDP, Corporate Social Responsibility can
also play an important role. Corporate Social Responsibility can be defined as an obligation to
pursue a line of action enhancing values supported by society.486 Multinational corporations’
responsibility is essential to the realisation of human rights 487 : firstly, because of the
corporation’s proximity to victims and injustices; secondly, because of the corporation’s
capacity to intervene on site. These same two elements are important to found and implement
an EDP framework. Therefore, multinational corporations’ responsibility is also essential to
the realisation of an EDP framework and should be kept in mind in the creation of an EU EDP
legal framework.
6.5. Conclusion
International economic law and labour migration law can offer efficient foundations for an
EU EDP framework, by creating safe legal channels for migration between South and EU and
South-South. Nonetheless, international economic law needs to be considered alongside
human rights law and environmental law, for three reasons. Firstly, because without a human
rights framework, EDP is reduced to an adaptation strategy and ignores pre-existing
vulnerabilities. Secondly, because without human rights and environmental law, the classical
interpretation of international economic law could not offer any principles to frame EDP.
Thirdly, because the three fields of law combined provide a stronger framework through their
different principles, namely here the non-discrimination principle and the due diligence
principle. This is where an EU approach shows its strength. Not only due to the EU's global
influence on global market measures, but because the model of the EU itself is made of these
different fields of law and offers dynamic interpretations of these principles; interpretations
that would better fit the foundation of an EDP framework.
This chapter showed even more how overcoming fragmentation of law is necessary to
deal with new legal challenges, such as EDP. International economic law does not operate in a
legal vacuum: it has impacts on other fields of law and therefore should take them in
consideration. And this even more in a globalised world, where ‘the increased inter-
486
Howard R Bowen, The Social Responsibilities Of The Businessman, (Harper & Brothers 1953) 64. 487
Michael A Santoro, Profits And Principles: Global Capitalism And Human Rights In China, (Cornell
University Press 2000) 143.
107
dependence between states and between issue areas (e.g., trade and environment, human
rights and economic development) ma[kes] the strict separation between different fields of
international law all the more artificial’.488
Structural changes must be improved to better
found a framework for EDP, but also to reduce EDP in the first place.
488
Joost Pauwelyn, ‘Bridging Fragmentation and Unity: International Law as a Universe of Inter-Connected
Islands’ (2004) 25 Mich. J. Int’l L. 903.
108
7. Conclusions and recommendations In the introduction of this thesis, the author compared the task of this research to the study of
a fishnet: if we consider a fishnet as holes held together by strings, this thesis focuses on the
strings rather than the holes. The aim of this thesis was to identify different EU legal
instruments that could be used to establish an EU legal framework for EDP under the current
state of law. Therefore, considering the option of adopting an international instrument specific
to EDP is beyond the scope of this thesis. The thesis went through the analysis of four
different fields of law relevant to EDP in search of these instruments. The legal instruments of
the different fields of law studies are the strings of the fishnet.
Beforehand, I presented the current state of the debate that surrounds EDP (section 2).
Three questions are at the heart of the debate. Firstly, do EDP even exist? Secondly, if so, who
are they? Thirdly, what should they be called? The first question is about the linkages between
climate change and migration. Is there a type of displacement due to climate change? The
impact of climate change on displacement is recognised by academics. Nonetheless, the
nature and extent of this impact is still debated. However, EDP is never exclusively due to
climate impact. It is necessary to acknowledge the role of socio-economic factors,
vulnerability and adaptation capacity in EDP. The second question is about the identification
of EDP. EDP can theoretically cover a large category of people: those displaced due to rapid
natural disasters or slow onset events, those displaced internally or crossing borders, those
migrating voluntarily or forced to, etc. For practical research reasons, this thesis focuses on
EDP due to slow onset events and crossing international borders. As for the third question, it
is about the correct legal term to use. The term EDP allows considering multicausality and
puts an emphasis on the forcedness of EDP, while also drawing a distinction from
conventional refugees. EU institutions also use this term. However, this term is never
mentioned in any EU legal instrument.
The first field of law analysed was environmental law (section 3). Environmental law is
the privileged forum of discussion for EDP in international negotiations. The EU is a global
leader in this international environmental law scene. EDP became part of international
negotiations at the 2007 Bali Climate Change Conference. However, the 2015 Paris Climate
Change Conference was a breakthrough for EDP, as it created the Task Force on
Displacement under Warsaw International Mechanism on Loss and Damage and included
EDP in the Paris Agreement´s loss and damage provisions. Nevertheless, at the internal level,
the EU does not discuss EDP in relation to environmental law. This does not forbid
109
considering EU environmental principles as potential instruments to found an EU EDP
framework. Therefore, the author reviewed the polluter pays principle, the precautionary
principle and the prevention principle. The prevention principle did not reveal to be a relevant
instrument, especially because it needs to be based on certainty. The polluter pays principle
could be the theoretical foundation of a compensation scheme based on state historical or
current corporation’s polluting responsibility. The precautionary principle is the most relevant
of the three, because it is based on an element of uncertainty. It is even more relevant when
interpreted in the light of the principle of non-refoulement, which gives it an extra-territorial
dimension. The principle of non-refoulement belongs to human rights and asylum law.
Combining fields of law enables the development of a stronger EU EDP framework.
The second field analysed was human rights law (section 4). EDP see a wide range of their
human rights violated by displacement and its causes. Existing human rights and their
respective obligations are in theory relevant instruments in the context of EDP. Firstly, a
human rights approach has the advantage of possessing an element of universality. This means
that it applies to anyone, regardless of citizenship. Secondly, a human rights approach can set
positive extraterritorial obligations, when a state has effective control over a territory or
people. Thirdly, and most importantly, human rights law introduces a strong element of duty
with the mandatory triptych to respect, protect and fulfil. Human rights constitute a constant
mandatory framework for the EU's internal and external action. The human rights-framed
action of the EU grew even stronger after the Lisbon Treaty. This is why human rights law is
the most efficient for an EDP framework, when used as a constant frame of action. Hence, the
importance of mainstreaming human rights across other fields of EU law and policies.
However, precise human rights could also be interpreted to found an EDP framework. It is the
case of the right to life and the right no to be subjected to torture or to inhuman or degrading
treatment or punishment that can trigger the principle of non-refoulement when violated. In
addition, economic, social and cultural rights deserve more attention in the foundation of an
EU EDP framework.
The third field of law analysed was asylum law (section 5). The Geneva Convention is not
applicable to EDP. This is mainly because its definition of refugee is based on the concept of
persecution. To apply the Geneva Convention, it is therefore necessary to amend it or to add a
protocol. However, doing so would institutionalise an inequality between EDP crossing
international borders and internally displaced people on environmental grounds, as the latter
would not be considered under the protection of the Geneva Convention. Extending the
refugee status to cover EDP might also affect political refugees as it might blur the status,
110
overload the asylum system and prevent from addressing the causes of these two kinds of
displacement. However, for those who do not qualify for the protection of the Geneva
Convention, there are alternative systems of protection under EU law. The Temporary
Protection Directive and the Qualification Directive set these alternatives. On the one hand,
the Temporary Protection Directive applies in case of mass influx, and seems therefore
appropriate for EDP. On the other hand, the Qualification Directive introduces in the concept
of persecution non-state actors as possible perpetuators. Therefore, these two directives set
broader grounds of protection than the Geneva Convention. Nevertheless, none of them
mentions environmental grounds. A broad interpretation of these directives could eventually
cover EDP, but it is unlikely to happen on this ground. The lack of political will is a major
obstacle. For instance, the Temporary Protection Directive has never been applied. If asylum
protection is not an option, could EDP find better protection when considered as economic
migrants?
The fourth field of law analysed was economic law and labour migration (section 6). This
is the current approach of the EU towards EDP: facilitating labour migration through
international economic law. This approach presumes that EDP is a form of adaptation. Such
an approach carries the risk of ignoring human rights violations inherent to the situation of
EDP. However, on the contrary, this approach can promote a human rights-based approach
while offering elements of foundation of an EU EDP framework. International economic law's
relationship with human rights is complex. On the one hand, human rights should constitute a
framework for international economic law based on the principle of due diligence. At the EU
level, human rights is a framework of the EU's action, regardless of the field of action. On the
other hand, rights under international economic law strongly differ from human rights. This is
a major problem regarding the principle of non-discrimination, a principle fundamental to
both systems. Nonetheless, the EU system offers a hybrid interpretation of the principle of
non-discrimination. Through this principle, the EU constitutes a bridge between these two
systems of law. The EU also has an important influence on international economic law as
indicates its impact on standards of process and production method in relation with
environmental goals. It also promotes international and regional mobility between South and
EU and South-South, aiming at creating safe legal channels for migration.
To found a viable EU EDP legal framework, it is necessary to overcome fragmentation of
law and make cross-analyses between principles of these different fields of law. In this
perspective, this thesis contributes to a necessary multi-field approach to EDP. The cross-
analyses presented in this thesis offered stronger grounds of foundation: the precautionary
111
principle of environmental law interpreted in light of the principle of non-refoulement of
asylum law; the no-harm principle interpreted in relation with extraterritorial obligations of
human rights; the principle of non-discrimination of international economic law with the due
diligence principle of human rights law. These few elements offer hints for the foundation of
an EU EDP legal framework. Further research needs to be done to develop, on the one hand,
more cross-analyses, and on the other hand, to efficiently overcome fragmentation to be able
to apply these analyses. The EU is even more relevant as it can act as a bridge between
different fields (as in the case of the principle of non-discrimination in international economic
law and human rights law). As for now, the interactions between the principles of the different
fields of law studied that could be used for an EU EDP framework are summarised in figure 1.
This research project underlined that the holes of the fishnet are not the legal gap of
protection of EDP. The holes here are structural issues, based on global inequalities. EDP is
not an apolitical problem, nor an economically neutral problem. Two positions can be adopted
regarding this structural problem. The first one would be to reject completely the current
112
economic system enhancing the pre-existing vulnerabilities of future EDP. Nonetheless, this
first option is unrealistic. The second one is to make better use of the current economic system:
on legal economic grounds, solving these social and environmental issues. The second
approach would go in favour of the current international economic law and labour migration
law approach discussed in the EU. It would aim at adopting measures based on the proposed
legal principles, to balance the negative consequences of the global world economy.
Furthermore, combining international economic and labour migration law with environmental,
human rights and asylum concerns brings another necessary dimension to this issue: the
responsibilisation of economic operators, such as multinational corporations, underlined in
section 6.4.
To conclude this thesis, here are some recommendations addressed to the EU. There is
currently the urgent legal need of:
1. Deeper interaction between different fields of (EU) law: environmental law, human
rights law and economic law.
2. Mainstreaming of a human rights based approach (for instance, appointing a
representative to monitor and promote a human rights-based approach to climate issues and
economic issues)
3. Involvement of corporations in the legal dialogue around EDP.
4. Acknowledgment of the EDP category within the EU legal system.
5. Stronger stance in support of the financial clarification of loss and damage mechanism
of the Paris Agreement.
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Table of cases
CJEU cases
Case T-851/16 Access Info Europe v European Commission [2018] ECLI:EU:T:2018:69
Case C-366/10 Air Transport Association of America and Others v Secretary of State for
Energy and Climate Change [2011] ECR I-13755
CJEU, Joined Cases C-404/15 and C-659/15 PPU Aranyosi and Căldăraru v
Generalstaatsanwaltschaft Bremen [2016] ECLI:EU:C:2016:198
CJEU, Joined Cases C-57/09 and C-101/09 Bundesrepublik Deutschland v B and D [2010]
ECR I-10979
Opinion of the Court 2/00, re Caratagena Protocol [2001] ECR I-9713,
Case 29-69 Erich Stauder v City of Ulm [1969] ECR 419
Case T-229/04 Kingdom of Sweden v Commission of the European Communities [2007] ECR
2007 II-02437
Case C-465/07 Meki Elgafaji, Noor Elgafaji v Staatssecretaris van Justice [2009] ECR I-
00921
CJEU, Case C-399/11 Melloni v Ministerio Fiscal [2013] ECLI:EU:C:2013:107.
Case C-277/11 M. M. v Minister for Justice, Equality and Law Reform and Others [2012]
ECLI:EU:C:2012:744
Joined Cases C-411/10 and C-493/10 N. S. v Secretary of State for the Home Department and
M. E. and Others v Refugee Applications Commissioner and Minister for Justice, Equality
and Law Reform. [2011] ECR I-13905
114
Case T-13/99 Pfizer Animal Health SA v Council of the European Union [2002] ECR II-
03305
Case C-159/90 Society for the Protection of Unborn Children Ireland Ltd v Stephen Grogan
and others [1991] ECR I-04685, Opinion of AG W. Van Gerven,
Case C-180/96 United Kingdom of Great Britain and Northern Ireland v Commission of the
European Communities [1998] ECR 1998 I-02265
EctHR cases
Al-Skeini and Others v United Kingdom Application No 55721/07 (ECHR 7 July 2011)
Banković and ors v Belgium and ors Application No 52207/99 (ECHR 12 December 2001)
Bigaeva v. Greece Application No 26713/05 (ECHR, 28 May 2009)
Issa and others v Turkey Application No 31821/96 (ECHR. 16 November 2004)
James and ors v UK, Merits, Application No 8793/79 (ECHR, 21 February 1986)
Loizidou v. Turkey, Merits, Application No 15318/89 (ECHR 28 November 1996)
Moustaquim v. Belgium Application No 12313/83 (ECHR, 18 February 1991)
Ponomaryovi v. Bulgaria Application No 5335/05 (ECHR. 21 June 2011)
Salah Sheekh v. The Netherlands Application No 1948/04 (ECHR 11 January 2007)
Tyrer v UK Application No 5856/72 (ECHR, 25 April 1978)
115
Other cases
Trail Smelter case [1941] 3 RIAA 1905.
International Court of Justice, Legality of the Threat or Use of Nuclear Weapon (Advisory
Opinion) (1996) 35 I.L.M. 814.
New Zealand Immigration and Protection Tribunal AF (Kiribati) [2013] 800413 (25 June
2013)
New Zealand Supreme Court Teitiota v Chief Executive of the Ministry of Business,
Innovation and Employment [2015] 107 (20 July 2015)
116
Table of legislation
European Union legislation
European Union, Consolidated Version of Treaty Establishing the European Community
[1957]
European Union, Consolidated version of the Treaty on the Functioning of the European
Union [2007] 2008/C 115/01,
European Union, Consolidated version of the Treaty on European Union [2007] 2008/C
115/01
European Union, Charter of Fundamental Rights of the European Union [2012] 2012/C
326/02
Council Directive (EC) 64/221/EEC on the co-ordination of special measures concerning the
movement and residence of foreign nationals which are justified on grounds of public policy,
public security or public health [1964] OJ 056.
Council Directive (EC) 2001/55/EC of 20 July 2001 on minimum standards for giving
temporary protection in the event of a mass influx of displaced persons and on measures
promoting a balance of efforts between Member States in receiving such persons and bearing
the consequences thereof [2001] OJ L 212
Council Directive (EC) 2003/9/EC of 27 January 2003 laying down minimum standards for
the reception of asylum seekers [2003] OJ L 31
Council Directive (EC) 2004/83/EC of 29 April 2004 on minimum standards for the
qualification and status of third country nationals or stateless persons as refugees or as
persons who otherwise need international protection and the content of the protection granted
[2004] OJ L 304/12
European parliament and Council Directive (EC) 2004/38/EC on the right of citizens of the
117
Union and their family members to move and reside freely within the territory of the Member
States [2004] OJ L158/77
Council Directive (EC) 2005/85/EC of 1 December 2005 on minimum standards on
procedures in Member States for granting and withdrawing refugee status [2005] OJ L 326
Council Directive (EC) 2011/95/EU on standards for the qualification of third-country
nationals or stateless persons as beneficiaries of international protection, for a uniform status
for refugees or for persons eligible for subsidiary protection, and for the content of the
protection granted [2011] OJ L 337
European Parliament and Council Directive, 2013/32/EU of 26 June 2013 on common
procedures for granting and withdrawing international protection [2013] OJ L 180
Council of Europe´s legislation
Council of Europe, European Convention for the Protection of Human Rights and
Fundamental Freedoms, as amended by Protocols Nos. 11 and 14 [1950]
International legislation
UN General Assembly, Universal Declaration of Human Rights [1948] 217 A (III)
UN General Assembly, Convention Relating to the Status of Refugees [1951]
UN General Assembly, International Convention on the Elimination of All Forms of Racial
Discrimination [1965]
UN General Assembly, International Covenant on Civil and Political Rights [1966]
UN General Assembly, International Covenant on Economic, Social and Cultural Rights
[1966]
UN General Assembly, United Nations Conference on the Human Environment [1972]
118
A/RES/2994.
UN General Assembly, Convention on the Elimination of All Forms of Discrimination against
Women [1979] A/RES/34/180
UN General Assembly, Convention Against Torture and Other Cruel, Inhuman or Degrading
Treatment or Punishment [1984]
UN General Assembly, Convention on the Rights of the Child [1989]
UN General Assembly, United Nations Conference on Environment and Development [1992]
A/CONF.151/26
UN General Assembly, Convention on Biological Diversity [1992] 1760 U.N.T.S. 69.
UN General Assembly, United Nations Framework Convention on Climate Change [1994]
A/RES/48/189.
UN High Commissioner for Refugees, Guiding Principles on Internal Displacement [1998]
ADM 1.1,PRL 12.1, PR00/98/109
UN General Assembly, Convention on the Rights of Persons with Disabilities [2007]
A/RES/61/106.
Other international and regional legislations
GATT, General Agreement on Tariffs and Trade, Marrakesh Agreement Establishing the
World Trade Organization [1994] Annex 1A, 1867 U.N.T.S. 187, 33 I.L.M. 1153
League of Arab States, Arab Convention on Regulating Status of Refugees in the Arab
Countries [1994]
Organization of African Unity, Convention Governing the Specific Aspects of Refugee
Problems in Africa [1969] 1001 UNTS 45.
119
National legislation
Belgium: Law on access to the territory, stays, establishment and expulsion of foreigners (‘Loi
sur l'accès au territoire, le séjour, l'établissement et l'éloignement des étrangers’) [1980]
1980121550
Bulgaria: Foreigners in the Republic of Bulgaria Act (‘ЗАКОН за чужденците в Република
България’) [1998] No. 153/23.12.1998.
Finland: Aliens Act (‘Ulkomaalaislaki’) [2004] 301/2004
Ireland: Immigration Act [1999] No 22
Italy: Consolidated Immigration Act (‘Testo Unico sull'Immigrazione’) [1998] Legislative
Decree No 286
Latvia: Act on Granting International Protection to Aliens (‘Välismaalasele rahvusvahelise
kaitse andmise seadus’) [2006] RT I 2006, 2, 3
Lithuania: Law on the Legal Status of Aliens (‘Įstatymas dėl Užsieniečių Teisinės Padėties’)
[2004] No IX-2206
Slovakia: Law on asylum and on change and amendments of some acts (‘Zákon o azyle a o
zmene a doplnenÌ niektor˝ch z·konov’) [2002] 480/2002
Sweden: Aliens Act (“Utlänningslagen”) 2005:716
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