Implementation and application of comparative legal norms like the Global Compact

for Safe, Orderly and Regular Migration and the Global Compact for Refugees in
environmental scenarios.

INTRODUCTION
The effects of climate change, disasters, and environmental degradation has led to a sharp
rise in forced migration numbers. People in order to support their livelihoods are choosing or
are forced to migrate to avoid current or anticipated dangers.1 Environment induced migration
has recently become a cause of grave concern for the international community. It was only in
2014 when the 5th assessment report of the IPCC working group II recognised that millions of
people would be permanently displaced from their homes due to a rise in sea level in near
future2.

It stated as, “Twelve million people could become displaced by sea level rise by 2030 in four
major coastal areas in the U.S. Globally, and without investment in adaptation measures, a
rise of 0.5m in sea level implies a likely land loss of 0.877 million km2 by 2100, displacing as
many as 72 million people. A more extreme 2.0m change in sea level would result in the loss
of 1.789 million km2, displacing 187 million people, or 2.4 per cent of global population,
mostly in Asia”.3 The Global Estimates report of 2015 by the Internal Monitoring Centre
states that approximately 26.4 million people are being displaced each year since 2008 due to
disasters caused by natural hazards.4

The main cause of concern arises when the migration is of cross-border in nature. Migrants
who wish to migrate and settle in another country due to climate change lack international
law backing to support their cause. National immigrations laws of each country have certain
restrictions on entry of a migrant/non-citizen. While refugees from war or persecution are
protected under international law, there is no clear recognition of protection of a refugee
related to climate change.5

1
McAdam, Climate Change, Forced Migration, and International Law, p 52; Renaud, Dun, Warner & Bogardi,
A Decision Framework for Environmentally Induced Migration, 1; Biermann & Boas, Preparing for a Warmer
World: Towards a Global Governance System to Protect Climate Refugees, p 69.
2
IPCC, Fifth Assessment Report, Working Group II, chapter 12, p.14, available at http://goo.gl/7uWvQF
3
Ibid
4
Global Estimates 2015: People Displaced by Disasters. (http://www.internal-
displacement.org/publications/global-estimates-2015-people-displaced-by-disasters)
5
Warner, Global Environmental Change and Migration: Government Challenges, p 403
NON-RECOGNITION OF CLIMATE CHANGE MIGRANTS UNDER 1951
CONVENTION
Climate change Migrants don’t qualify as refugees under the definition of the 1951
convention relating to the Status of Refugees. Article 1A(2) of the 1951 Refugee Convention
lays down the definition of Refugee i.e. someone who:
“[O]wing to well-founded fear of persecution for reasons of race, religion, nationality,
membership of a particular social group or political opinions, 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, or who, not having a nationality and being outside of the country of his
former habitual residence as a result of such events, is unable or, owing to such fear, is
unwilling to return to it.”6
Although climate oriented disasters lead to forced migration but they do not constitute as
persecution under International law definition. Hence, it is not possible for climate change
migrants to seek benefit of the protections offered by the said convention, and therefore, it is
not applicable on cross-border climate change migrants.7 The result of this being that there is
no international body where climate based migrants can seek asylum. It is a gap in
international law which jeopardises their rights, entitlements and protection.8

A classic example of this rule can be found in the case of Teitiota v Chief Executive Ministry
of Business, Innovation and Employment9, where the court has rejected claim of Mr. Teitiota,
which were based on climate change under the Convention definition. The court stated that,
“The Tribunal does not believe that the element of an attitude or motivation can be identified,
such that the conduct feared can be properly considered persecution for reasons of a
Convention characteristic as required.”10 The court further added that “there is no evidence
that the Government of Kiribati is failing to take steps to protect its citizens from the effects
of environmental degradation to the extent that it can.”11

6
The 1951 Convention relating to the Status of Refugees as modified by the 1967 Protocol, Article 1A (2)
7
UNHCR, the Environment, and Climate Change. (http://www.unhcr.org/540854f49.pdf)
8
Corendea, C., Legal Protection of the Sinking Islands Refugees, 2016.
9
Teitiota v Chief Executive of the Ministry of Business, Innovation and Employment [2015] NZSC 107 (20
July
2015, https://www.courtsofnz.govt.nz/cases/ioane-teitiotoa-v-the-chief-executive-of-the-ministry-of-
businessinnovation-and-employment/at_download/fileDecision.
The decision is also available through NZLII, at http://www.nzlii.org/nz/cases/NZSC/2015/107.html.
10
Ibid
11
Ibid.
It is only due to this reason that the international refugee law conventions are not an
appropriate forum for climate induced migrants. Migration due to climate change is not
considered a reason to be considered a refugee under the Article 1(A)(2) 1951 convention and
only those migrants who fear persecution under the five triggers shall receive protection
under the convention as we understand from the reading of the definition and the above
mentioned case.
Various efforts have been made to overcome this gap. One notable mention is the Nansen
Initiative, it is based upon a pledge which recognizes that forced displacement due to
disasters as a reality and probably the greatest challenge faced by international community. 12
This initiative has gained a considerable amount of popularity and in October 2015 as part of
this initiative, 110 countries approved an agenda for the ‘Protection of Cross-Border
Displaced Persons in the Context of Disasters and Climate Change’.13 The primary goal of
this protection agenda is to prevent displacement in the very first place and planning of
moving people in a strategic manner to safety, etc14. There are a total of ten Nansen
principles.

GLOBAL COMPACT FOR SAFE, ORDERLY AND REGULAR MIGRATION

(GCM) AND THE GLOBAL COMPACT FOR REFUGEES (GCR)

History
The global climate policy over the recent years has quickly progressed to consider migration
as issue but on the contrary, the global migration policy has been on a slower side to
recognize climate induced migration, although there have been acknowledgements for the
same but there lacks a solid plan of action.15 The New York Declaration for Refugees and
Migrants passed in 2016 is great milestone for the climate induced migrants as it formally
recognizes that climate and environmental factors are major causes of voluntary and forced
migration and the impacts of such migration movements should not be ignored.16 It was the
New York Declaration that lead the way for various nations to start negotiations on
international migration and eventually adopt the first UN negotiated Global Compact for
Safe, Orderly and Regular Migration (GCM)

12
Sumudu Atapattu, '“Climate Refugees” And The Role Of International Law' (Oxford Research Group, 2019)
https://www.oxfordresearchgroup.org.uk/blog/climate-refugees-and-the-role-of-international-law accessed 17
November 2019.
13
UNHCR, the Environment, and Climate Change. (http://www.unhcr.org/540854f49.pdf)
14
Ibid
15
'Mapping Human Mobility (Migration, Displacement And Planned Relocation) And Climate Change In
International Processes, Policies And Legal Frameworks' (Unfccc.int, 2019)
https://unfccc.int/sites/default/files/resource/WIM%20TFD%20II.2%20Output.pdf accessed 18 November
2019.
16
Ibid.
in December, 2018. The adaptation of GCM means a set of common guidelines and
approaches which all the member nations can follow within the UN framework.

The New York Declaration provides for the development of guidelines with respect to the
treatment of migrants in vulnerable situations.17 These guidelines are very relevant to climate
induced migrants because it includes scenarios of disasters and climate as most vulnerable
situations. The Declaration also provides for adaptation of the Global Compact for Refugees
(GCR) so that a more equitable sharing of burden and responsibilities related to supporting of
refugees can be achieved.

The Global Compact for Safe, Orderly and Regular Migration (GCM)
The GCM which was adopted in December 2018 is the first intergovernmental global
agreement developed on international migration. There were six rounds of negotiation
conducted among the UN Member States and the issue of environmental degradation and
climate change have been at the very core of these negotiations, with most nations’
supporting it to be a part of the GCM.18 The discussions covered a whole array of
environmental migration factors such as, “supporting climate adaptation efforts in countries
of origin; promoting better analysis and information sharing on the topic; harmonizing and
developing regional and sub regional mechanisms to address vulnerabilities of migrants
affected by climate impacts and natural disasters; developing or building national and
regional practices for admission and stay of migrants moving because of natural disasters;
and strengthening cooperation to identify potential visa options and solutions linked to
planned relocation of people, for those who cannot return to their countries.”19

GCM is non-legally binding document and functions on a cooperative approach for best
optimization of the benefits of Migrations. It comprises of 23 objectives for better managing
migration at local, national, regional and global levels.20 The ratified text contains multiple
references to environmental migration which provide a detailed understanding of the

17
Global Migration Group (GMG) through the Office of the High Commissioner for Human Rights (OHCHR)
(2017), Principles and Guidelines, supported by practical guidance, on the human rights protection of migrants
in vulnerable situations, available from www.ohchr.org/EN/Issues/Migration/Pages/VulnerableSituations.aspx.
18
'Mapping Human Mobility’ supra note 13, pg 17
19
Ibid
20
Environmental Migration Portal - Environment and Climate Change in the Global Compact for Safe, Orderly
and Regular Migration (GCM), available from www.environmentalmigration.iom.int/environment-and-climate-
change-gcm.
challenges faced under the same. The references are made under “Objective 2: Minimizing
the adverse drivers and structural factors that compel people to leave their country of
origin”21, which contains a section solely dedicated to the subject titled, “Natural disasters,
the adverse effects of climate change, and environmental degradation”22. A few references
can also be found in “Objective 5: Enhance availability and flexibility of pathways for
regular migration.”23

The text in under objective 224 identifies sudden-onset and slow-onset natural disasters,
environmental degradation and adverse effects of climate change as root cause for migration
movements. The text acknowledges multiple causes for migration and links interaction of
environmental causes with political, economic and demographic causes. The document also
provides response to these causes such as appropriate measures taken by the countries of
origin to make migration a choice rather than a necessity, 25 preparedness for disasters,
reduction of risks and disaster response and facilitating movements of population. It
recognizes that these responses need to be prioritized in countries of origin in order to reduce
the causes of migration. It also emphasizes the need to work on regional level to address the
causes of migration. The text in objective 526 acknowledges that return of migrants might not
be possible in certain cases and that there is a need of strengthening of planned relocation and
visa options which need to be a part of migration management. The text also recognizes the
need of investing in strengthening data analysis and research to address environmental
migration challenges.27

Global Compact for Refugees (GCR)

The New York Declaration mandated the UNHCR to develop a Global Compact for
Refugees (GCR), based upon the Comprehensive Refugee Response Framework (CRRF).
The UNHCR has developed the GCR in consultations with the UN member states. The GCR
does not have any new legal protections, standards or obligations. The purpose of the
compact is to improve

21
Ibid.
22
Ibid.
23
Ibid.
24
Ionesco, D. and M. Traore Chazalnoël, Migration, Environment and Climate Change Division, IOM (2018),
The Global Compact for Safe, Orderly and Regular Migration (GCM) - Perspectives on Environmental
Migration, available from www.environmentalmigration.iom.int/environment-and-climate-change-gcm.
25
Environmental Migration Portal, supra note 18
26
Ibid
27
Ionesco, D. and M. Traore Chazalnoël, supra note 22
the ways through which the world responds to the needs of the refugees. 28 The GCR consists
of two components i.e., Comprehensive Refugee Response Framework (CRRF), as contained
in the annex to the New York Declaration; and ii) a Programme of Action (PoA). The object
of CRRF is to set out operational framework for responding to the refugee situations based on
best practices, whereas, the PoA aims to promote more equitable sharing of responsibility
among the international community and identify areas where host countries require support.29

The text of GCR recognizes the interaction of causes of refugee movements with climate,
environmental degradation and natural disasters.30 It also states that people who are displaced
across borders due to natural disasters, measures will be taken into account with respect to
national laws and regional instruments as applicable. All assistance shall be provided by the
relevant stakeholders including the UNHCR and the International Organization for Migration
(IOM).31

Gaps in the two compacts

Since these two compacts have only come into the picture recently it is only obvious that
there would be some gaps in their implementation and application in real life scenarios. A
few major gaps which were identified are as follows:
National Sovereignty- The objectives and principles of GCM promote international
Cooperation and respect for national sovereignty and human rights.32 The issue at hand is that
the GCM does not mention about anything as to how to coordinate and integrate these rights
and principles. It is a very obvious fact that when a nation’s national sovereignty is on the
line it is unlikely to cooperate. The states choose to protecting their rights of the citizens first
as compared to providing refuge. A prime example of this scenario is the backing out of USA
from the GCM in December 2017. The primary concerns mentioned by it were around the
issue

28
UNGA. Report of the UN High Commissioner for Refugees Part II: Global Compact on Refugees, A/73/12.
September 13, 2018, para. 5. http://www.unhcr.org/en-us/excom/unhcrannual/5ba3a5d44/report-united-nations-
high-commissioner-refugees-part-ii-global-compact.html
29
Alice Yarnell and Alice Yarnell, 'Ensuring That The Global Compacts On Refugees And Migration Deliver
— Refugees International' (Refugees International, 2019)
https://www.refugeesinternational.org/reports/2018/11/19/ensuring-that-the-global-compacts-on-refugees-and-
migration-deliver#_ftnref8 accessed 18 November 2019.
30
'Mapping Human Mobility’ supra note 13, pg 25
31
Ibid
32
Alessandro Bufalini, 'The Global Compact For Safe, Orderly And Regular Migration: What Is Its
Contribution To International Migration Law? - QIL QDI' (QIL QDI, 2019) http://www.qil-qdi.org/the-global-
compact-for-safe-orderly-and-regular-migration-what-is-its-contribution-to-international-migration-law/
accessed 19 November 2019.
of sovereignty and lack of consistency of GCM with its immigration policies and principles. 33
The USA in their statement also stated that the GCM process represented the UN’s effort to
advance global governance at the expense of a nations sovereignty.34
GCM is soft law- As it is clearly mentioned in the document that the agreement is of non-
legally binding character, it brings with itself its own set of problems. Since it is soft law, the
issue then arises in determining the actual legal authority? What is the check on the
signatories? Are they abiding by the compact? Also since it is not binding in nature many
countries like USA and Hungry have already walked away from GCM and in fact introduced
extremely unwelcoming policies towards refugees. It is often seen that states don’t take non-
binding documents seriously.35

Vague commitments- GCM’s goals are very generically formulated and do not feature any
precise conducts.36 GCM tries hard to pay attention to the causes of migration such as climate
change and environmental degradation but there is no mention of the need to protect these
climate migrants. The compact due to its non-binding nature, has given broad discretion to
the states and it has left on them to decide till what extent are they willing to support the
cause. Such an agreement cannot hence become a customary international law practise for the
simple reason because of the different levels of actions taken by each member state.

Burden Sharing in GCR- The main aim of GCR is to provide basis for equitable and
predictable burden sharing responsibility among all UN member countries and other
stakeholders.37 Assuming the fact that a state hosting large number of refugees agrees to abide
by the compact, why would a state hosting a lot fewer refugees or no refugees would agree to
do the same? These states would not want to bear the burden of these states. Since it is a non-
binding agreement, states cannot be held accountable for not holding up their end of the
commitment. Although hard law may not be a solution but there needs to be certain fixed
guidelines with respect to the ratio of burden sharing. So that the arrangement can be
effective.

33
Rhoda Margesson, 'The Global Compact On Migration (GCM) And U.S. Policy' (Fas.org, 2019)
https://fas.org/sgp/crs/row/IF11003.pdf accessed 19 November 2019.
34
Ibid.
35
Alessandro Bufalini, supra note 30
36
Ibid
37
Meltem Ineli-Ciger, The Global Compact on Refugees and Burden Sharing: Will the Compact Address the
Normative Gap Concerning Burden Sharing?, Refugee Survey Quarterly, Volume 38, Issue 2, June 2019, Pages
115–138, https://doi.org/10.1093/rsq/hdz003
HYBRID LEGAL APPROACH
With the above mentioned gaps in GCM and GCR, it is clear that it is still a work in progress.
Although both the compacts mention the issue and causes of environment migration as an
utmost important issue but fail to provide any solid protection to climate migrants because of
the facts that they are non-binding in nature and both the compacts don’t have a clear set of
framework with respect to a limit of discretions a state can use while implementing GCM and
GCR guidelines into their domestic laws. It can be assumed as if even though a state may be
a member of both these compacts, it is up to the state whether to implement these guidelines
or not. Even if the state implements these guidelines it still does not provide any protection to
a climate migrants. It can be seen as if these compacts are only advisory in nature and does
not seem to have any powers over the actions of the state. The questions still looms is that
where do environment migrants go? They still don’t have any solid protection under
international law. The question now arises is that what approach show an environment
migrant take up in order to secure his rights? The answer to this question is Hybrid Law
Approach.

Hybrid Law approach was developed as a tool to counter the problems and gaps in refugee
law and environment cases and is now a well-established legal principle. 38 It is a legal
principle where environmental law, human rights and refugee (migration) law are applied
concurrently, indivisibly, interdependently, and interrelatedly and they examine climate
change as case study.39 The idea behind this approach is to create a causal link between the
environmental disasters and human rights of a person which then leads to displacement of the
inhabitants from the disaster struck area. The result of such an approach is that a environment
migrant can seek refuge event though the 1951 convention does not apply to them. Thus, a
combination of three laws is of great advantage to the cases of climate refugees who possess
very few legal remedies. Professor Cosmin Corendea provides an effective way to solve
migration problem via hybrid law approach, he states, “ a hybrid mechanism formed by the
environmental body of the United Nations, the human rights body and the UNHCR, under the
direct supervision of the Secretary- General, would represent a sustainable and efficient
solution. Such a new instrument would facilitate the redirection of three separate bodies’
actions as one direct act, a single interpretation and adaptation of the affected countries by
climate change. Nevertheless, the

38
Corendea, C., Legal Protection of the Sinking Islands Refugees, 2016.
39
Ibid
General Assembly decisions would support its activities with decisions aimed to address
strictly the problem of the communities affected by climate change.”40

There are various international conventions which guarantee the right to clean environment to
people such as Article 24 of United Nations Covenant on Economic, Social and Cultural
Rights, Article 22 of United Nations Covenant on Civil and Political Rights, Article 24 of the
African Charter on Human Rights and People’s Right and Article 11 of the American
Convention on Human Rights.41 With an increasing risk of disasters due to human activities,
these disasters can be linked to the concept of state responsibility and a binding case can be
made under international and regional treaties holding the states responsible for the
environmental damage. When the right to clean environment is breached due to
environmental disasters, the state can be held accountable for violating the human rights of
the affected people. Right to clean environment is directly proportional to the Right to life of
people and violation of right to clean environment due to disasters may have a direct impact
on Right to life of person. Right to life is a jus cogen law and also a part of customary
international law and it can be found in various international and regional treaties such as:
 International Covenant on Civil and Political Rights (Article 6)
 Universal Declaration on Human Rights, 1948 (Article 3)
 Charter on Human and Peoples' Rights (Article 4)
 African Charter on the Rights and Welfare of the Child (Article 5)
 Protocol to the African Charter on Human and Peoples' Rights on the Rights of
Women in Africa (Article 4)
 European Convention for the Protection of Human Rights and Fundamental Freedoms
(Article 2)
 American Declaration of the Rights and Duties of Man (Article 1)
 American Convention on Human Rights (Article 4)
Once there is a link created between right to environment and right to life in cases of
disasters, it can be said that the state has failed to protect the affected people and thus it has
forced them to leave their state and cross borders. Since it is proved that there looms a threat
to a person’s life, then they can be provided protection under the principle of non-refoulment.
The principle

40
Corendea, Cosmin (2016) "Hybrid Legal Approaches Towards Climate Change: Concepts, Mechanisms and
Implementation," Annual Survey of International & Comparative Law: Vol. 21: Iss. 1, Article 5. Available at:
http://digitalcommons.law.ggu.edu/annlsurvey/vol21/iss1/5
41
Corendea, C, supra note 36
of non-refoulment is also a customary international law which states that a refugee cannot be
sent back to the state where he has fled from because of the existence of threats. When right
to life is threatened due to disasters related to climate change, the receiving states are then
under the obligation to ensure that the people are not sent back. Therefore, due to the
violation of peremptory norms, it is the State Responsibility to entertain these claims and
asylum claim can be based on violation of human rights and threat to life. This is how Hybrid
Legal Approach is used to fill a gap between environment migrants and International law.

The Hybrid Legal Approach was used in a recent case of Ad(Tuvalu). The case was decided
by the New Zealand Immigration and Protection Tribunal. Their stay application was not
granted under the 1951 convention but under humanitarian grounds.42 The tribunal was of the
opinion that an obligation lied on the state to ensure maintenance of right to life and
protection of people from disasters. The tribunal also observed that “exposure to the impacts
of natural disasters can, in general terms, be a humanitarian circumstance,”43

CONCLUSION
After analysing the 1951 convention, the GCM and GCR, it is clear that there is an urgent
need for a separate protocol for Climate refugees. The international community and various
other stake holders should come ahead and address this issue. It is clear that several factors
are affected due to environmental migration. Hence, the protocol should be created in such a
way that it caters to all affected factors. Most importantly it should address the gaps and
recognise asylum claim of the climate refugees. Till the time such protocol is not brought into
action, the Hybrid legal approach is the best method to approach such cases.

42
Rick Noak, Has the era of the ‘climate change refugee’ begun?, August 07, 2014,
https://www.washingtonpost.com/news/worldviews/wp/2014/08/07/has-the-era-of-the-climate-change-refugee-
begun/?noredirect=on&utm_term=.1e0ae924e41f
43
Jane McAdam, No “Climate Refugees” in New Zealand, BROOKINGS (Aug. 13, 2014),
www.brookings.edu/blogs/ planetpolicy/posts/2014/08/13-climate-refugees-new-zealand-mcadam