Sea-level rise and international law - Bruce Burson

I have been asked to talk to you today about how the work of two institutions with which I am associated, the International Law Association and the NZ Immigration and Protection Tribunal, has examined the capacity of international law to respond to the current and anticipated effects of sea-level rise on population movement - or human mobility - as it is generally come to be known. 

Indeed, in somewhat prescient terms, as early as 1992, the Intergovernmental Panel on Climate Changed warned in its very first assessment report that ‘the gravest effects of climate change may be those on human migration’. There is no doubt that that, already, every year millions of people are forced to leave their homes because of disasters.  In fact, on average, over twice as many persons are newly displaced annually by disasters than through conflict and violence.  While are displaced internally, some move across borders. 

The science is also clear that climate change increases both the intensity and frequency of sudden-onset events such as hurricanes, and causes or exacerbates slow-onset processes such as sea-level rise.  And given more and more persons are exposed to hazards negatively impacted by climate change, human mobility linked to climate change is also expected to increase.

What this all means is that, whether or not the gravest effect of climate change, what is certain is that the movement of people due to climate-related environmental stressors such as sea-level rise will likely be of the greatest humanitarian challenges of the 21st century.

However, many factors determine who moves where and when in response to hazards such as sea-level rise, and interventions are thus required across a range of domains. This includes the domain of international law.

That sea-level rise was something which resonated within the domain of international law was recognized by the ILA in 2008 with the formation of the Baselines Committee. By 2012, that Committee had recognised that the international law implications of sea level rise transcended Law of the Sea issues, and encompassed issues of:

• statehood
• national identity
• refugee status
• state responsibility
• access to resources; and
• international peace and security. 

The Committee on International Law and Sea Level Rise, of which I am a member, was established in November 2012 with a two-part mandate: 

• to study the possible impacts of sea-level rise and identify the implications under international law with particular reference to situation of small island and low-lying states; and
• to develop proposals for the progressive development of international law in relation to the possible loss of all or of parts of state territory and maritime zones due to sea-level rise, including the impacts on statehood, nationality, and human rights.

The Committee agreed to divide its work thematically into two main stages. The first stage would involve two parallel streams of study: on engaging with Law of the Sea issues, and the other on migration and human rights issues.  The second stage would then involve the study of the statehood question and broader issues of international security. As it has turned out, the last questions have not been substantially tackled by the committee as a whole, although aspects have been referred to in the work to date.  While the committee agreed that, as a starting point, there should be some presumption of continued statehood, given the exact modalities for continued statehood or some other form of international legal personality were matters of great political sensitivity, it determined that should proceed cautiously. That said, it is hoped that this work can be developed under a renewed mandate.

It is in my opinion vitally important see the work of the committee as to human mobility in the context of climate change within wider trajectory of the issue on the international plane. A clear fracture in international law occurred in 2009 at COP 15 in Copenhagen, with the failure of the international community to agree a successor to the Kyoto Protocol on GHG emissions.

Our attempts, including having a two-day, whole-of-government conference here in Wellington, to sensitise negotiators to the need to have reference to human mobility included in the text of the hoped for successor protocol crashed and burned with everything else.

However, since this fracture in 2009, there has occurred something of a tremor, if not a seismic shift in thinking, with the issue becoming  increasingly mainstreamed in relevant international process and agreements.

Within the UNFCCC processes, this has occurred most notably with the Cancun Adaptation Framework adopted in 2010 at COP 16. Its paragraph 14(f) called for “voluntary measures to enhance understanding, coordination and cooperation with regard to climate change induced displacement, migration and planned relocation, where appropriate, at national, regional and international levels.”

This was a critical moment in the trajectory of this issue on the international plane.  It provided perhaps the single most important hook, agreed to by states themselves, upon which all further developments at the international level have in some way hung.

Outside the UNFCCC, perhaps the most significant development was the creation of the Nansen Initiative in 2012. Following the failure at Copenhagen, the issue of human mobility in the context of climate change was effectively outsourced to a sub-group of interested states, lead Norway and Switzerland. Between 2013 - 2015, the Initiative held a number of sub- regional consultations, with its first being in the Pacific, held at Rarotonga. These consultations, and commissioned research, sought to identity and document existing examples of state best practice. 

Its structure included not just a steering group of states, but also an advisory body of technical experts of which I was lucky enough to be a member.  As an advisory body, we were clear in our view that there would be no new treaty drafted at the end of this process. Rather we recommended to the steering group two courses of action:

First, the development a soft law instrument in the form of toolbox of operational and policy responses, backed up by a clear normative framework.  This document, known as the Protection Agenda  ,was endorsed by 109 governmental delegations – New Zealand included – in October 2015.. 

Second, the Initiative, via the steering group, its envoy and the advisory committee would feed into ,but not duplicate, existing relevant process and events by framing key messages on how disaster-related mobility should be addressed within each context. This has proven to be a successful strategy, and we can see reference to mobility in the context of disasters referenced in a number of soft-law instruments:

• 2016 New York Declaration
• Global Compact on Migration, the text of which contains multiple references to migration linked to disasters
• The Sendai Framework on Disaster Risk Reduction
• The 2030 Agenda for Sustainable Development

This soft-law approach to the development of international law has sat alongside periodic and sometimes vociferous calls for a hard-law treaty approach - either by amending the 1951 Refugee Convention or by some stand-alone treaty providing for a binding legal regime for persons routinely, if erroneously in current legal terms, described as climate change refugees.

However, the lesson I have taken from the last 10 or so years of engagement at the international level in is that, whatever one may think about the desirability of a hard-law treaty, politically it is not feasible. Treaty making is hard work.  It is extraordinarily difficult to get states to agree to binding treaty obligations.

Further, opening the Refugee Convention to renegotiation by an international community increasingly preoccupied with protecting borders from some undesirable ‘other’ is fraught with danger, and may result in net protection losses rather than the hoped-for protection gains.

But leaving aside politics and focusing on the law, I am of the view that existing relevant multilateral treaties contain norms which may be able to be adapted to meet the specific challenges posed by sea-level rise.  I think it is important for us as international lawyers, to carefully consider how we can reshape or repurpose existing wheels before we seeking to invent new ones.

It was this vision of the optimal way forward which has informed the work of the ILA committee on sea-level rise.  Our main output has been a soft-law instrument called the Sydney Declaration of Principles on The Protection of Persons Displaced in the Context of Sea Level Rise, adopted at the recent ILA conference in Sydney.   

In keeping with the committee’s mandate to progressively develop international law, the Declaration has sought to mould existing protection-related norms and standards to the specific context of sea-level rise. In terms of progressive development of international law, there are two main norms which I wish to speak to today, which in many ways underpin the entire Declaration.

The first has its foundation in the disaggregation of state obligations under international human rights law into a typology of duties to protect and respect and fulfil human rights. This typology has been increasingly recognised as imposing an obligation to respect and protect human rights in the context of disasters generally. For example:

• in the Guiding Principles on Internal displacement
• by the International Law Commission in its Draft Articles on the Protection of Persons in the event of Disasters
• in several General Assembly Resolutions; and
• in judicial decisions.

Taking these developments, Principle 1 of the Sydney Declaration provides that States have the primary duty and responsibility to provide protection and assistance to persons with habitual residence in territories under their jurisdiction who are affected by sea level rise.  This obligation involves taking both preventative and remedial actions. Complementing this, Principle 2 provides that States have a duty to respect, on a non-discriminatory basis, the human rights of persons under their jurisdiction who move in the context of sea level rise.

The Sydney Declaration then applies human rights principles in relation to specific forms of population movement which either already do, or are anticipated to feature, in the context of sea-level rise, such as evacuations, migration, and planned relocations. 

In respect of the latter, the Declaration recognises that the duty to protect and respect human rights may give rise to obligations to facilitate, on request, the planned relocation of communities. It also recognises that these often are problematic and require in-depth consultation and planning to avoid greater vulnerability, impoverishment, and social fragmentation of communities.

But a territorial and jurisdictionally -based duty to protect persons from the negative impacts of sea-level speaks, fundamentally, to the domestically focused obligations of States.  While important in its own right in terms of what international law may say about future action for New Zealand in the region, it only takes us so far.   And this brings me to the second key norm underpinning the Sydney Declaration: the principle of cooperation.  

While in many ways an imperfectly realised norm of international law, cooperation is nevertheless a core objective of the UN Charter. It is reflected in many other international instruments. Significantly, given it is rights to adequate housing, food and shelter which are routinely gravely affected when a disaster strikes, the 1966 International Covenant on Economic Social and Cultural Rights also specifically identifies cooperation between states as being essential to the realisation of those rights. 

Cooperation is also key to the international climate change regime. There, the duty to cooperate finds an analogue in the principle of common but differentiated responsibility, a norm premised on the need for the international community to take collective responsibility for a problem of its own making.

For good reason, then, Principle 4 of the Sydney Declaration  identifies cooperation is identified as a key norm in the context of human mobility and sea-level rise. 

We can already see evidence of this norm in action in the form of the 1992 FRANZ agreement, under which New Zealand, France and Australia agree to coordinate disaster reconnaissance and relief when requested by partner countries in the Pacific. It also underpins existing bilateral humanitarian relief and recovery operations.  However, in terms what cooperation may mean for shaping future action by New Zealand to help our Pacific neighbours deal with the adverse impacts of sea-level rise, the Sydney Declaration also projects the scope of norm outwards, setting out a range of areas in which cooperation between states may manifest beyond disaster relief and recovery operations, and the provision of development assistance to promote adaption or resilience at household and community levels.

Important though such matters are, they do not exhaust the potential domain of cooperation as a relevant norm of international law.  Importantly, the Declaration identifies technical support as a domain for cooperation.  Action by New Zealand to enhance institutional capacities in the region can help Pacific States to discharge their own legal responsibilities and duties to protect and respect the human rights of persons affected by sea-level rise. It is not just by building stronger houses that we advance to cause of protection from sea-level rise in the region; it is also by building stronger intuitions.  And make no mistake, Pacific intuitions are often at the forefront of thinking about the content of their protection obligations are, as is evidenced by the recent Disaster Displacement policy in Vanuatu. However institutional capacities are often constrained.

The Sydney Declaration also explicitly recognises that migration policy responses are part of mix to which the duty to cooperate relates. It is not the place today to enter into discussion as to what forms such policy might take. Suffice it to say, however, that cooperation means that any migration policy response by New Zealand must be sensitive to the desire of pacific peoples to stay in ancestral lands for as long as possible, and to make voluntary choices about moving.

Turning  now to the work in the IPT, a series of cases involving claimants from Kiribati and Tuvalu required the Tribunal to confront the extent to which the Refugee Convention and the non-refoulment obligation arising under international human rights law, both of which had been domesticated under the 2009 Immigration Act, could provide protection to persons whose claims were grounded in concerns that sea-level rise would profoundly affect their ability  - and that of their children -  to continue live healthy and  dignified lives on their home island.

First, in terms of refugee protection, the IPT has been clear that legal concept of being persecuted which lies at the heart of the 1951 Refugee Convention requires some form of human agency; it was not possible for the environment to be the persecutor.

Nevertheless, the IPT was equally clear that broad generalisations in older case-law by senior common law courts that persons fleeing disasters were, as a class, outside the scope of refugee protection needed qualification. The Tribunal recognised that human agency in the context of environmental stressors can in some circumstances, create pathways into Convention-based protection. These included:

• where the post-disaster humanitarian space has become politicised.  Indeed, this principle was expressly applied in case involving Burma in wake of Cyclone Nargis; and
• where post-disaster humanitarian-relief has been distributed on a discriminatory basis.

In terms of complementary protection, the Tribunal has examined what the concept of an ‘arbitrary’ deprivation of life, meant in a disaster setting. It noted that the Human Rights Committee had interpreted the prohibition on arbitrary deprivation of life in a manner which meant it was not suspended simply because the state concerned is threatened by, or is experiencing, a natural disaster. Second, it noted there were two judgements where the ECtHR had found a violation of the right to life because the authorities had not discharged positive obligations to protect life against risks from known and imminent environmental hazards. Drawing these and other strands together, the Tribunal was satisfied there was a sufficiently strong basis in international human rights law to find that the concept of an arbitrary deprivation of life applied in the context of disasters. 

However, there are some important caveats. To be ‘arbitrary’, any deprivation of life must be attributable to some act or omission by the state for which it could be held accountable.  Further, The Tribunal echoed the concern articulated by ECtHR to avoid imposing an impossible or disproportionate burden on the authorities. Translating these statements into claims for protection grounded in concern about the impacts of sea-level rise, the Tribunal noted that it was simply not within the power of the Pacific Governments to mitigate the underlying environmental drivers of climate change.  To equate such inability with an omission to act, so as to found a claim for protection based on the prohibition on the arbitrary deprivation of life, went too far.  Such an approach places an impossible burden on those States.

The IPT has also considered how the prohibition on exposure to cruel inhuman and degrading treatment may apply by asking what constitutes a relevant ‘treatment’.  It took account case-law which had found the existence of some form of treatment in certain specific situations of socio-economic harm. From there, the Tribunal has identified forms of treatment in the disaster context which may, in theory, provide pathways into the existing complementary protection mechanism under the Immigration Act. These included:

• the exploitation of vulnerable disaster-displaced persons such though trafficking; and
• where State action multiplies or exacerbates risk, such as through:
• the denial of available humanitarian relief to disaster affected persons; or
• the arbitrary withholding of consent for necessary foreign humanitarian assistance.

In both instances, while other, difficult, hurdles would have to be crossed for a claimant to be successful, the Tribunal was clear that such actions – or omissions –  could constitute a relevant ‘treatment’ under international law, and by this means, a basic norm of international human rights law could project outwards into the disaster context, including disasters which derived from the adverse impacts of sea-level rise.

In conclusion, I think the work of both the ILA and the IPT reveals the dynamism of international law as a domain for action in dealing with the negative effects of sea-level rise.  My involvement in both has demonstrated to me how, despite the absence of a thematically specific hard-law instrument, the progressive development of international law within a series of overlapping but mutually reinforcing soft-law frameworks can substantially advance legal protection and provide an agreed basis for ongoing, coherent and cohesive state action at the bilateral, regional and global levels.  

My experience to date has taught me that, by this means, we may get further down the road than ever thought possible.

And while as international lawyers we must necessarily move cautiously and not overstate our claims as to the potential reach of existing norms, I do believe we have already in our hands many the concepts and principles which may help guide and shape New Zealand policy action into the future,  to the benefit of both New Zealand and to the Pacific region as  whole.