Implementation of the sui generis category and the protection regime

5 TOWARDS A SUI GENERIS PROTECTION OF ENVIRONMENTALLY DISPLACED PERSONS

5.3 Implementation of the sui generis category and the protection regime

(Posner & Sunstein, 2007; Farber, 2008). The division of responsibilities following measurable parameters would raise awareness of the environmental damage caused by states and prompt countries to reduce their environmental footprint (Moberg, 2009, p. 1121; Hickel, 2020).

5.3 Implementation of the sui generis category and the protection regime

The regime of protection of environmentally displaced persons could be based on legally binding mechanisms or soft law mechanisms, which although they are not legally enforceable, create politically binding obligations. These international instruments serve as a common framework, and they guide the behavior of states and ensure legal certainty.⁵⁰

5.3.1 Universal implementation of the sui generis categorization and mechanisms of protection The creation of a legally binding mechanism – such as an international treaty or a convention – is regulated in the 1969 Vienna Convention on the Law of Treaties;⁵¹ and it expresses consent of states to regulate an aspect of their relations, creating rights and obligations between the parties (Vienna Convention on the Law of Treaties, 1969, Art. 2.1.A). The creation of an international legally binding mechanism to establish the categorization of environmentally displaced persons and a regime of protection would require various necessary steps that would entail a considerable amount of time and compromise between states (Höing & Razzaque, 2012, p. 33; Lennartz et al., 2021).⁵² Nonetheless, it is an essential measure as it would serve to create a common framework, the behavior of states, and it would establish the essential characteristics that encourage the creation of shared knowledge and understanding about the topic of environmental displacements (Cohen &

Bradley, 2010, p. 25).

50 Legal certainty is one of the pillars of law (Radbruch in Leawoods, 2000, p. 490), and it refers to the ability to predict with accuracy and certainty the consequences of actions in legal terms, i.e., before acting knowing the legality of the actions, or in the case of unlawful actions, knowing the consequences.

51 The Vienna Convention on the Law of Treaties was drafted and signed the 23 May 1969 and it entered into force the 27 January 1980. It is an international mechanism that regulates international agreements and establishes guidelines for the drafting, signature, amendment, interpretation, ratification, and other operational issues of treaties. As of 2021, 116 states are parties to this convention. Henceforth referred to as the 1969 Vienna Convention.

The creation of an international legally binding mechanism could become a double-edged sword.

The measures and duties could either motivate states to act fast and efficiently to protect the environmentally displaced persons; or they could be counterproductive as such a measure could encourage more reticent countries to abstain from it, due to the legally binding consequences of their acts, the rigidity of the obligations, and possible disciplinary mechanisms of international law, such as economic sanctions, freezing assets, banning imports and exports, military assistance, or investments and financing (McAdam, 2012; d’Aspremont, 2019; Hellquist, 2019; Aaken &

Simsek, 2021). Additionally, “the political, economic and social costs associated with /the creation of/ a new Convention will be a disincentive to many states” (Höing & Razzaque, 2012, p. 34). The lack of a political will can deter the creation of an international legally binding mechanism to protect environmentally displaced persons. For all these reasons, a new treaty is unlikely to materialize (Kraler et al., 2011, p. 44; Lennartz et al., 2021).

On the other hand, the creation of a soft law mechanism – e.g., guidelines, guiding principles, resolutions, or declarations of the UN General Assembly – can be done through flexible procedures.

The soft law mechanisms are not legally binding as states do not explicitly consent to be bound by them, however, these quasi-legal mechanisms are politically binding because they are created by states to guide and influence their conduct regarding individual issues or issue-areas (Tammes, 1983, p. 190; Warner, 2010). The soft law instruments have been used extensively in international law as a way of adapting to the broadening field of international relations, as this miscellany of actors created “an international setting that requires diversified forms and levels of law-making”

(Chinkin, 2000, p. 22). Various soft law mechanisms are particularly prominent in the promotion and protection of human rights (Orchard, 2010; Tomuschat, 2016) because they can be quickly produced and they can serve as an alternative in cases where the delay and the lack of agreement in the international political arena would make the traditional hard law mechanisms an impossible option (Shelton, 2000, p. 13; Lennartz et al., 2021).

To transform the soft law mechanisms into legally binding instruments, they need to be adopted into national law by each state, thus, states would remain the “implementing actors and will retain authority for classifying and administering assistance” to those whom the soft law mechanism seeks to protect (Warner, 2010, p. 6), and the implementation of the mechanism would be dependent partially on the commitment of states. However, the universal acceptance, constant use,

and uniform recognition of the soft law mechanism by actors can lead to the creation of customary law.⁵³ Customs express the needs and values of the international community, are deduced from the practices and behavior of states, and reflect a consensus-based approach to decision making (Shaw, 2008, pp. 72–76). Customary law can create universally binding legal obligations and considering the participation of states in the process of creation of customary rules, they encourage compliance.

Thus, the soft law mechanism regulating environmental displacement could become legally binding with time.

5.3.2 Regional level of protection of environmentally displaced persons

Although necessary, the universal framework of protection for the environmentally displaced persons would require a complementary regional level of protection to achieve maximum efficacy and to compensate for the foreseen fallouts in subchapter 5.3.1 (Hailbronner, 2002; Palit, 2016).

The regional level of protection would be based on a universal framework to ensure a consistent and uniform application of the sui generis regime (Cohen & Bradley, 2010, p. 14). Implementing a regional level would simplify the execution of a protection regime for the environmentally displaced persons, as it would ease the decision-making process, and create legally binding obligations for a smaller number of states within a region (Warner, 2010).

The creation of regional agreements requires negotiation and discussion about the content of the treaty, as well as consent and compromise towards the legally binding obligations following the stipulations of the 1969 Vienna Convention (1969, Art. 1). However, due to the reduced number of parties present in the negotiation and the shared regional interests, the states are more likely to assimilate the responsibilities imposed by the regional regime of protection. The regionality enhances the solidarity towards states “taking into account their common but differentiated responsibilities and respective capabilities, and specific national and regional development priorities, objectives and circumstances” (United Nations Climate Change Conference, 2010, Art.

14), which facilitates reaching an agreement on the topic (Cohen & Bradley, 2010, p. 31; Warner, 2010).⁵⁴ The regional agreement would be centered on establishing a series of conditions that would

53 Customs are rules of behavior that occur “subconsciously within the group and are maintained by the members of the group by social pressures and with the aid of various other more tangible implements” (Shaw, 2008, p. 72).

54 The UN Climate Change Conference was held in Cancún, Mexico from 29 November to 10 December 2010, under the UN Framework Convention on Climate Change, in which all the member countries assisted. The outcome of the UN Climate Change Conference was an agreement on the urgency and importance of climate change as a threat to

simplify the environmental displacement with a predetermined reception policy while ensuring the protection of rights of the affected persons (Kraler et al., 2011, p. 48; Palit, 2016).

Amongst the regions that are more prone to suffer from environmental damage there have been some attempts at regional agreements that cover environmental displacement in various ways. E.g., Australia, New Zealand, and some island states in Oceania participate in inter-Pacific labor mobility schemes that facilitate the migration of qualified workers to Australia and New Zealand (Government of Australia, 2018; Higuchi, 2019). South America and the Caribbean region have integrated strategies and policies for the cases of environmental displacement, internal displacement, and disaster risk (Abeldaño Zuñiga & Fanta Garrido, 2020). Particularly, El Salvador has approved the admission of foreigners “in cases of anthropogenic disaster, epidemics, natural phenomena, humanitarian matters” (ICMPD, 2021, p. 17).

The Asian Development Bank was created to implement frameworks for addressing environmental displacement; however, most of its efforts are translated into academic and theoretical studies, advisory services, and support to projects for its developing member states (ADB, 2021). The African Union states enacted the Convention for the Protection and Assistance of IDPs.⁵⁵ The 2012 Kampala Convention aims to prevent and mitigate the causes of environmental displacement, and it established a legal framework for solidarity and cooperation between the states to combat displacement and address its consequences (Kampala Convention, 2012, Art. II). Amongst the regional agreements that currently deal with environmental displacement, the 2012 Kampala Convention provides the most extensive and holistic mechanism to deal with human displacement in the context of climate change and environmental degradation. However, the 2012 Kampala Convention has not yet identified effective mechanisms to reduce the impact of environmental degradation, to mitigate and prevent further displacements.

These regional sui generis regimes have a very limited range and there are “significant gaps in policies and mechanisms to address /the environmental displacement/ issues” (Abeldaño Zuñiga &

humankind and the planet, and it set out some measures of long-term cooperative action in order to achieve the objective of the Convention, such as the Green Climate Fund.

55 The African Union Convention for the Protection and Assistance of Internally Displaced Persons was drafted and approved on 23 October 2009, and it entered into force the 6 December 2012. It is a Convention between the Member States of the African Union that established a commitment to protect and support IDPs in the African continent, and to set up measures to prevent further displacements by addressing the prevention of natural disasters. As of 2021, 55 states are parties to this convention. Henceforth referred to as the 2012 Kampala Convention.

Fanta Garrido, 2020, p. 98). The existing regional policies cover extensively how to prevent future losses; however, in most cases, there are no clear guidelines on the implementation of planned environmental displacement (Heslin et al., 2019). To increment the effectiveness of regional sui generis regimes, those policies need to focus on the complexities of the displacement as an adaptive measure to environmental degradation, and they should design appropriate, long-term, and durable solutions to the environmental degradation issue, as it is the root of environmental displacements (Zambrano et al., 2019). However, the damages in the environment are a universal issue that needs to be addressed globally to achieve maximum efficacy. Regional agreements lack the means to create and implement measures that could affect – globally or even regionally – the decay of the environment, improve the existing environmental issues, and prevent further damages that trigger displacements. Thus, if there is no global effort to prevent and mitigate environmental damages, any regional effort to deal with environmental displacement would become moderately useful but not efficient, as it would only be able to temporarily manage a consequence of a much bigger global issue.

58 6 CONCLUSION

Environmental issues and migration patterns are among the most studied, discussed, and regulated topics in the international community. Yet, there is not much agreement as to how the environment affects migration patterns. Environmental degradation has impacted the lives of millions of individuals who are forced to resettle in an act of adaptation and resilience. However, the identified numbers of these migrants do not reflect the actual dimensions of this issue. Given the complexity of environmental displacements, it is impossible to establish a figure that is not merely a rough approximation. Most researchers of this phenomenon agree that the numbers might be (much) higher, and some even estimate that the total can be as much as double the accounted number. The extent of the problem is indeed reaching alarming numbers, but the issue has not been adequately addressed in the international community.

This has resulted in a gap in the protection of the people affected by environmental degradation.

This lack of protection is evident in environmentally displaced persons, especially in the cases of individuals who are forced to displace due to ‘slow-onset’ incidents. The goal of this research was to establish how to fill the protection gap and to grant assistance to the people forced to displace because of environmental degradation. The literature and the policymakers attribute the failure of proper addressing of the issue to the complexity and the heterogeneity of environmental displacements. There are substantial inconsistencies on the matter, in terms of the level of protection, the categorization, and the classification of environmentally displaced persons.

Particularly, in the legislation, the measures taken to aid the affected persons are often conflicting in between regions (and even opposing in some cases), and frequently the measures are unconnected to the specific needs of the affected persons. The lack of coherence and efficiency in the measures enacted to protect the environmentally displaced persons has guided this thesis toward answering the question of how to grant protection to environmentally displaced persons.

This thesis sought to deal with the issue of understanding why, despite the efforts of academics and legislators, there is not a regime of protection for environmentally displaced persons. The thesis follows a normative goal, as it seeks to find a solution within public international law for this new category of individuals, and it aims to establish how to fill the protection gap to the people forced to displace because of environmental degradation. This research parted from the hypothesis that

the lack of adequate legislation on the topic was not a lack of will, but a lack of understanding of the phenomenon.

In order to properly investigate this lack of protection, it is essential to introduce the social constructivist theoretical framework, as it provides a tool for socially constructing reality. Social constructivism highlights the relevance of shared knowledge and identities in the creation and legitimization of normative realities. In the case of environmentally displaced persons, the lack of consensus about the categorization created a gap in the shared knowledge that hindered the creation of mechanisms of protection. Moreover, categorizing the affected people is imperative, as any term used to address the affected people is tied to legal and political implications and it shapes the shared understanding of the phenomenon of environmental displacement. Also, throughout this thesis, it has been highlighted that using a certain discourse to refer to the environmental displacement has the potential to ascertain the struggles and vulnerability of the affected persons, validate the identity of environmentally displaced persons as forced migrants, and legitimize the creation of norms and legal regimes to protect the affected persons.

This thesis emphasizes the importance of the use of certain terms to reflect certain interests, such as the actors’ position on the obligations concerning the displacement of the affected people. Thus, this research has proven that it is essential to determine a categorization and terminology determine the stance of environmental degradation and climate change as pressing issues in the international agenda, or views of the actors on the affected people. The assertion of the use of one term over others to refer to the affected people causes the support or rejection of certain political implications and discourses. However, aside from the terminology, this thesis has highlighted two main issues with the categorization of environmentally displaced persons, that are a setback to grant them protection. First, is the lack of awareness of the effects of environmental degradation. Second, is the misunderstanding of the phenomenon of environmental displacements.

The lack of awareness of the immeasurable ways in which environmental degradation affects displacements has been a recurring topic throughout this thesis –particularly, referring to the slow-onset effects. Not all forced displacements are triggered by sudden natural disasters, like volcanoes, tsunamis, or earthquakes. In fact, the – seemingly small – changes in the natural landscapes and the ecosystems (such as the slow increase in the temperature, the rise of sea level, or the loss of biodiversity) have a greater impact on the livelihood of individuals in the long term. Such is the

case of the increase of the global temperature, which over a longer period of time has had a butterfly effect leading to the rise of sea level, the acidification of the sea, the death of corals, which ultimately has led to the sinking of islands in the Pacific. This implies that legislators and academics should be aware of how the environment can affect individuals to prevent the seemingly small changes from deteriorating into bigger more drastic issues.

The second problem of the categorization is related to the misunderstanding of the phenomenon of environmental displacements. Environmentally displaced persons are those who are forced to migrate due to a series of environmental damages that affect their livelihood – regardless of the type of deterioration. Most of the previous efforts to protect environmentally displaced persons used a vague and inaccurate characterization of the affected persons, i.e., the one that only depicts the forcefulness when the link of environmental damage is indisputable. However, the most common causes of environmental displacements are those in which at first glance the link between the displacement and the environmental damage can be less than evident. Thus, it prevents a substantial part of environmentally displaced persons from seeking aid and protection. For this reason, this thesis has focused on finding the (missing) link between the environmental damage and the displacement in cases of slow-onset disasters, as the inclusion in the category of those individuals affected is fundamental to creating a coherent categorization of environmentally displaced persons.

The thesis then goes on to recognize the unifying traits of environmentally displaced persons which creates the legitimating discourse for the affected people. When comparing the case studies of the states of Tuvalu and the Republic of Kiribati, some parallelisms arise regarding the displacement patterns and can be attributed as general characteristics of environmentally displaced persons. The environmental displacement in both cases affects the natural resources to the point that it has a direct effect on their livelihood. This has triggered displacement flows to more developed regions – within the state territory or not. The need to displace and their sensible position regarding the effects of the environment showcases the vulnerability of the group. This is especially noticeable considering the inability to shield themselves from the consequences of environmental degradation and climate change and the lack of political authority to influence the behavior of the states. This reinforces the powerlessness and political vulnerability that legitimizes their need to receive

international protection, given their inability to do anything else but adapt to the changes in their habitat and displace.

The thesis then turns to investigate whether the affected persons can be included in the existing categories of forced migrants – refugees, internally displaced persons, and stateless persons.

However, this research has highlighted that the inclusion of some environmentally displaced individuals in the other categories would require the modification of the current categories and the regime of protection, which has been deemed inefficient; and without any modification, the categories only serve as temporal or partial protection. Also, correlating environmentally displaced persons with other groups of forced migrants is counterproductive, as it creates a temporary and partial solution to a limited number of affected persons, and it gives a false sense of achievement, which can delay the creation of a much-needed sui generis regime of protection.

In document UNIVERZA V LJUBLJANI FAKULTETA ZA DRUŽBENE VEDE (Strani 53-95)