A Human Rights-Based Approach to Protection of Environmentally Displaced Persons

This speech was delivered at the Nansen Conference on Climate Change and Displacement on June 7, 2011 in Oslo, Norway.

I would like to very much thank the Norwegian government and people of Norway for inviting me to this Conference and for their continued support to the mandate on the human rights of IDPs. I am also honoured to have assumed the mandate from a distinguished jurist and humanitarian, Professor Walter Kälin, and would like to show my appreciation for his outstanding work.

The Nansen Conference on Climate Change and Displacement in the 21^st Century is an occasion to mark and commemorate the genius of Nansen’s remarkable humanitarian contribution to the cause of those in need of international protection. At the time of Nansen’s involvement in the 1920s, international law protected individuals as nationals of states, and as foreign nationals or aliens lawfully admitted by third states. The protection of minorities within states as a special category of nationals had just emerged in the peace treaties concluded after the First World War in 1918-1919. Nansen’s innovation lay in the recognition in international law of the protection of refugees as a special category of persons in need of international protection on the basis of having lost the protection of their state of origin.

In the 21^st Century the parameters circumscribing those in need of international protection have expanded beyond refugees. Nansen was not to know that his innovative approach to international protection would apply to internally displaced persons as well,  i.e., those who would not cross an international boundary but would paradoxically be a special category of protection within their own states. An early precursor to that development lay in the constitution of the International Refugee Organisation in 1946, which had inclusively referred to ‘displaced persons’. As Richard Plender later explained, it was then not thought that, on grounds of sovereignty, the basis of the jurisdiction to act in international law would also include internally displaced persons.

But developments in international human rights law since 1945 placed sovereignty squarely within the framework of responsibility for the international protection of human rights by states. In relation to protection and assistance to internally displaced persons, sovereignty as responsibility was the cornerstone of the evolution of protection and assistance in the 1990s as envisioned by Francis Deng.  With Walter Kälin’s guidance, this vision crystallized into the Guiding Principles on Internal Displacement in 1998, under which national authorities have the primary duty and responsibility to provide protection and humanitarian assistance to internally displaced persons within their jurisdiction (Guiding Principle 2(1), AU Convention Article 5(1).  Such primary responsibility descends directly from international human rights law.

The Guiding Principles therefore reflect important areas of existing international human rights law, international humanitarian law, and international refugee law by analogy. Walter Kälin gave further impetus to the Guiding Principles as a basis for dialogue with states in dealing with internal displacement, and as a tool for durable solutions to internally displaced persons.

In 2005 the World Summit of Heads of States adopted the Guiding Principles as the internationally recognized framework for protection and assistance to internally displaced persons. A year later, the International Conference on the Great Lakes adopted a Protocol in 2006 under which the Guiding Principles became legally applicable with binding force, and thereby generated a continent wide process leading to the adoption of the African Union Convention for the Protection and Assistance of Internally Displaced Persons in Kampala in 2009. These developments mean that international law now recognizes internally displaced persons as a special category of protection, building on the path chartered by Nansen in relation to refugees in the 1920s.

Human Rights and the Environment

It should be appreciated that the values, ethics, and purposes of human rights and those of the environment are not diametrically opposed. At the core of human rights lies the treatment and preservation of humanity as a common interest, on the basis of human dignity, in accordance with international standards of conduct, treatment, responsibility, and accountability. Preservation of the environment is a common cause of humanity based on inter-generational equity, precautionary measures, and sustainable development.

Primary responsibility for the protection of human rights lies on the state to respect or ensure respect for human rights in accordance with pertinent international obligations, whether negative or positive. The threshold of responsibility is earmarked by prevention, actual protection, and redressing harm or damage in the event of violation. Underlying this threshold is responsibility for the failure to act or protect when risk or harm is reasonably foreseeable, or when there is causation as to the risk, harm, or damage itself. As human rights jurisprudence shows, these elements encapsulate responsibility for early or timely warning, preparedness, mitigation, and disaster risk reduction measures, in relation to existential threats posed by the environment.

As regards climate change, the organizing approach encompasses common but differentiated responsibilities of countries at different levels of development. Common responsibilities should be understood to rest on international cooperation and partnerships to deal with the consequences of climate change at national, regional, and international levels. The duty to cooperate is also evident in human rights.

However, where displacement occurs due to environmental causes, differentiated responsibility would entail that there is a primary responsibility to act to save lives and protect human rights on the part of the state in which such environmental causes trigger displacement, or where measures of evacuation or relocation to safety are necessary, or where the effects of displacement take place. Whereas the threshold of responsibility in international environmental law would lie on causation or harm, international human rights law would add to the quantum of that responsibility the foreseeability of such risk or harm and damage resulting from it.

Human Rights, Internal Displacement, and the Environment

The regime of the Guiding Principles on Internal Displacement and the African Union Convention for the Protection and Assistance of Internally Displaced Persons provide a framework for a human rights-based approach to protecting and assisting internally displaced persons, which is relevant to climate change induced displacement.

This is explicit in the definition of internally displaced persons in which the reference to ‘persons who have been forced or obliged to flee or to leave their homes or places of habitual residence, in particular as a result of or in order to avoid the effects of ….violations of human rights or natural or human made disasters…’ is poignant.

Further scope can be gleaned from the definition of ‘internal displacement’ in the African Union Convention as meaning ‘the involuntary or forced movement, evacuation or relocation of persons or groups of persons within recognized state borders’. If recast in broad terms, displacement going by this definition would mean ‘the involuntary or forced movement, evacuation or relocation of persons or groups of persons within or outside states.’

Prevention and mitigation are covered by Guiding Principle 5 and Article 4(1) of the AU Convention in so far as there is a requirement of prevention and avoidance of conditions that might lead to displacement of persons by respect and ensuring respect for obligations under international law, which are sufficiently broad to cover international environmental law, while specifically mentioning human rights and humanitarian law in all circumstances. It is a particular objective if the AU Convention to prevent, mitigate, prohibit and eliminate root causes of internal displacement in Article 2(a).

This objective stems from the preamble to the Convention, which expresses determination to adopt measures  aimed at preventing and putting an end to the phenomenon of internal displacement by eradicating the root causes as well as addressing displacement caused by natural disasters, which have a devastating impact on human life, peace, stability, security, and development.

Prohibition on arbitrary displacement extends to environmental factors under Guiding Principle 6(c) and Article 4(f) of the AU Convention, such that persons shall not be displaced in cases of natural or human made disasters or other causes, unless the safety and health of those affected requires their evacuation. This prohibition extends to large scale development projects which are not justified by compelling and overriding public interests, as detailed under Guiding Principle 6(c).

In this regard, Principle 7 applies prior to any decision requiring the displacement of persons to explore all feasible alternatives to avoid displacement altogether. In the context of obligations relating to protection from displacement, Article 4(2) of the AU Convention establishes an obligation to devise an early warning system in areas of potential displacement and to establish and implement disaster risk reduction strategies, emergency preparedness and management measures, and, where necessary, provide immediate protection and assistance to internally displaced persons.

Above all, Article 5(4) of the AU Convention specifically requires measures to be taken to protect and assist internally displaced persons who have been internally displaced due to natural or human-made disasters, including climate change.

In conclusion,  it is important to harmonize the language of climate change or climate related disasters with the terminology and consequences of slow onset and sudden impact disasters, including geophysical disasters. Apart from that, the humanitarian implications of the inclusion of climate induced displacement in the context of climate change in the Cancun Agreements should mean that displacement as a measure of adaptation should be divorced from the politics of climate change on the understanding that it is a special category alongside, but separate from migration and planned relocation under paragraph 14(f) of those Agreements.