The International Legal Protection of Environmental Refugees: A human rights-based, security and State responsibility approach

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The International Legal Protection of Environmental Refugees: A human rights-based, security and State responsibility approach

By J.M.M. van der Vliet
Eleven International Publishing May 2020

Specifications

ISBN-13
9789462361393
Publisher
Eleven International Publishing
Publication
May 2020
Format
Paperback
Jurisdiction
Netherlands ? Countri(es) for reference only

Details

Climate change and other forms of environmental degradation, such as earthquakes and soil erosion, in combination with other factors (such as poverty, lack of government action and armed conflict) can lead to forced migration. The protection of these environmental refugees requires a different approach than that of 'traditional war refugees'. Most environmental refugees are internally displaced. As a result, developing countries that are hit hardest by the negative effects of climate change, also have to deal with high numbers of internally displaced persons. These countries rely on international support to be able to bear the costs of mitigation- and adaptation measures.

The current legal system not only offers insufficient protection for environmental refugees, but also offers insufficient opportunities for support by the international community. Principles and rules of international environmental law, human rights law and State responsibility can be used in an instrumental way to co-finance and support local measures. This thesis argues for the combination of a human rights-based, security and State responsibility approach to create medium and long-term protection regimes for environmental refugees that makes use of the possibilities to prevent migration or, if inevitably, manage migration.

Table of Contents

1. INTRODUCTION
1.1 Objective of the study
1.1.1 Overall study objective
1.1.2 Basic premises of the study
1.1.3 Academic and societal contribution of the study
1.1.4 Added value of the study compared with existing research
1.2 Structure and research questions
1.3 Methodology
1.4 Scope and limitations
PART I – CONCEPTUALIZING ENVIRONMENTALLY FORCED MIGRATION
2. THE CONCEPT OF THE ENVIRONMENTAL REFUGEE
2.1 Framing the concept of environmental refugees
2.1.1 Early academic research
2.1.2 Acceptance of the concept by stakeholders
2.1.3 The scope of ratione personae and materiae
2.1.4 Working definition
2.2 Types of environmental refugees in this research
2.2.1 Sudden-onset disasters
2.2.2 Slow-onset disaster
2.2.3 Armed conflict
2.2.4 Environmental contamination
2.2.5 Planned resettlement
2.3 Approaches to environmental refugees
2.3.1 The rights-based approach
2.3.2 The security approach
2.3.3 The responsibility approach
2.4 Conclusion
PART II – THE INTERNATIONAL LAW FRAMEWORK
3. THE RIGHTS-BASED APPROACH
3.1 The human rights framework
3.1.1 General limitations of the human rights framework
3.1.2 Substantive rights
3.1.3 Procedural rights
3.1.4 Vulnerable groups
3.2 The Internally Displaced Persons framework
3.2.1 The Guiding Principles on Internally Displaced Persons
3.2.2 Inter-Agency Standing Committee Framework on Durable Solutions for Internally Displaced Persons
3.2.3 Regional regimes on IDP protection
4. SPECIFIC PROTECTION POSSIBILITIES FOR DIFFERENT TYPES OF ENVIRONMENTAL REFUGEES WITHIN THE RIGHTS-BASED APPROACH
4.1 Sudden-onset disasters
4.1.1 The human rights framework
4.1.2 The Internally Displaced Persons framework
4.1.3 Conclusion on sudden-onset disasters
4.2 Slow-onset disasters
4.2.1 The human rights framework
4.2.2 The Internally Displaced Persons framework
4.2.3 Loss of State territory and the legal framework
4.2.4 Conclusion on slow-onset disasters
4.3 Armed conflict
4.4 Environmental pollution
4.4.1 The human rights framework
4.4.2 The Internally Displaced Persons framework
4.5 Planned resettlement
4.5.1 Out of harm’s way
4.5.2 Development displacement
4.5.3 Forced evictions
4.5.4 Conclusion
5. THE SECURITY APPROACH
5.1 Cross-border migration
5.1.1 The Refugee Convention relating to the Status of Refugees
5.1.2 Regional refugee instruments
5.2.2 Other forms of complementary protection
5.2.3 Conclusion on cross-border migration
6. SPECIFIC PROTECTION POSSIBILITIES FOR DIFFERENT TYPES OF ENVIRONMENTAL REFUGEES WITHIN THE SECURITY APPROACH
6.1 Sudden-onset disasters
6.1.1 Refugee protection
6.1.2 Non-refoulement
6.1.3 Temporary protection
6.1.4 Internal migration
6.2 Slow-onset disasters
6.2.1 Refugee protection
6.2.2 Non-refoulement
6.2.3 Temporary protection
6.2.4 Internal migration
6.2.5 Low-lying small island States
6.3 Armed conflict
6.4 Environmental pollution
6.5 Planned resettlement
7. THE RESPONSIBILITY APPROACH
7.1 Responsibility under the climate regime
7.1.1 Human mobility in the climate change negotiations
7.2 Responsibility under the UN Convention on the Law of the Sea
7.3 Responsibility under international human rights law
7.4 Responsibility under general principles of public international law
7.4.1 The ‘no-harm’ principle
7.4.2 The precautionary principle
7.4.3 The polluter pays principle
7.4.4 The principle of common but differentiated responsibilities
7.4.5 Transparency, public participation and access to information and remedies
7.5 Invoking State responsibility
7.5.1 Forum and standing
7.5.2 Damaging activity and attribution
7.5.3 Causation
7.5.4 Allocation of loss
7.6 The principle of sustainable development
7.6.1 The Sustainable Development Goals
8. SPECIFIC PROTECTION POSSIBILITIES FOR DIFFERENT TYPES OF ENVIRONMENTAL REFUGEES WITHIN THE RESPONSIBILITY APPROACH
8.1 Sudden-onset disasters
8.2 Slow-onset disasters
8.3 Armed conflict
8.4 Environmental contamination
8.5 Planned resettlement
9. GENERAL CONCLUSION ON THE LEGAL INTERNATIONAL FRAMEWORK
9.1 Conclusion on the rights-based approach
9.2 Conclusion on the security approach
9.3 Conclusion on the responsibility approach
PART III – CREATIVE INTERPRETATION AND EXTRAPOLATION
10. THE RIGHTS-BASED APPROACH
10.1 Right to a healthy environment
10.1.1 A freestanding right to a healthy environment
10.1.2 Substantial rights presupposing a healthy environment
10.1.3 Rights of nature
10.1.4 The environment as a public good within the context of economic and social rights
10.2 Procedural rights
10.2.1 Right to information
10.2.2 Right to public participation
10.2.3 Right to remedy
10.3 Positive extraterritorial State obligations
10.3.1 Transboundary harm
10.3.2 Duty of cooperation
10.3.3 R2P
10.4 Internally displaced persons
11. THE SECURITY APPROACH
11.1 The refugee framework
11.1.1 Broader interpretation of the Refugee framework
11.1.2 Extension of the Refugee Convention
11.1.3 The Global Compact on Refugees
11.2 The complementary protection framework
11.2.1 Non-refoulement
11.2.2 Temporary protection
11.2.3 Subsidiary protection
11.3 Voluntary migration
11.3.1 The Global Compact for Safe, Orderly and Regular Migration
11.4 Development of new instruments
11.4.1 Drafting a new convention
12. THE RESPONSIBILITY APPROACH
12.1 International Environmental law
12.2 Human rights
12.3 Responsibility
12.3.1 Loss and damage
12.3.2 Compensation funds
12.3.3 Insurance
PART IV – COMBINING APPROACHES
13. OVERLAPPING APPROACHES
13.1 The rights-based and security approach
13.2 The rights-based and responsibility approach
13.2.1 Justice
13.3 The security and responsibility approach
14. A CONTEXT-ORIENTED AND DYNAMIC INTERPRETATION FOR DIFFERENT TYPES OF ENVIRONMENTAL REFUGEES
14.1 Sudden onset disasters
14.2 Slow-onset disasters
14.3 Armed conflict
14.4 Environmental contamination
14.5 Planned resettlement
15. GENERAL CONCLUSION
BIBLIOGRAPHY
TABLE OF TREATIES
TABLE OF CASES
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