People Moving in the Context of Environmental Change: The Cautious Approach of the European Union

in European Journal of Migration and Law
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With growing evidence that environmental factors are becoming more and more important in driving migration, many different actors have taken position on so-called ‘environmental migration’ in recent years. Lately, also the European Union (eu) started to approach this topic. While it is still far away from offering a self-standing policy on the issue, the eu has started a process of deliberation with the publication of a Commission Staff Working Document (cswd) in April 2013. This article provides an overview of the related policy process and analyses which rationales are shaping it. It further pursues a stocktaking exercise with regard to existing eu asylum and migration policies and explores which roles the eu could play in the context of environment-related migration and displacement under the existing ‘repertoire’ of eu asylum and migration policy and analyses it in light of the newly published cswd. The paper concludes that the Commission takes in its cswd a very cautious approach and that the policy process was shaped by similar factors as the area of asylum and migration.

People Moving in the Context of Environmental Change: The Cautious Approach of the European Union

in European Journal of Migration and Law

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References

7

European Commission (2013) Commission Staff Working Document: Climate change environmental degradation and migration Accompanying the Communication ‘An eu Strategy on adaptation to climate change’ 16 April 2013 swd (2013) 138 final (hereinafter: cswd).

18

European Commission (2007) Adapting to climate change in Europe – options for eu action Green Paper sec(2007) 849 pp. 20–21.

20

See Somerville (2011) ‘Environmental migration governance: debate in the European Union’ Migration and Global Environmental Change Foresight October 2011 available online at http://www.bis.gov.uk/assets/foresight/docs/migration/policy-development/11-1151-pd17-environmental-migration-governance-european-union.pdf (accessed 5 February 2014).

23

Council of the European Union (2011) Council conclusions on eu Climate Diplomacy 3106th Foreign Affairs Council meeting Brussels 18 July 2011 p. 1.

24

European Commission (2011) Summary of Stakeholders Responses to the Public Consultation on the Global Approach to Migrationhome/O2/kt-cd/ares (2011) 855778 Brussels 22 July 2011 pp. 7–8. There were 88 responses to the survey.

25

European Commission (2011) The Global Approach to Migration and Mobility Communication from the Commission to the European Parliament the Council the European Economic and Social Committee and the Committee of the Regionscom(2011) 743 Brussels 18 November 2011 pp. 6–7.

27

European Council (2009) The Stockholm Programme – An open and secure Europe serving and protecting citizen 14449/09 jai 679 Brussels 16 October 2009 p. 42.

29

Council of the European Union (2013) Conclusions of the Council and of the Representatives of Governments of the Member States meeting within the Council on the 2013 un High-Level Dialogue on Migration and Development and on broadening the development-migration nexus 12415/13 Brussels 19 July 2013 p. 6.

30

Council of the European Union (2013) p. 13.

38

Geddes and Somerville (2012) at 1020.

39

Vlassopoulos (2012) at 64.

41

European Commission (2013) Maximising the Development Impact of Migration Communication from the Commission to the European Parliament the Council the European Economic and Social Committee and the Committee of the Regions com(2013) 292 final Brussels 21 May 2013 p. 2.

42

Vlassopoulos (2012) at 61.

46

Council of the European Union (2013) Conclusions on an eu strategy on adaptation to climate change Environment Council meeting Luxembourg 18 June 2013.

49

A. Weinar (2011) eu Cooperation Challenges in External Migration Policy’ eu-us Immigration Systems 2011/02 Robert Schuman Center for Advanced Studies San Domenico di Fiesole (fi): European University Institution pp. 1–2.

54

Boswell (2003) at 622.

56

G. White (2011) Climate Change and Migration New York ny: Oxford University Press p. 66.

59

Vlassopoulos (2012) at 61.

60

Lavenex and Kunz (2012) at 452–453.

71

M.-T. Gil-Bazo (2006) Refugee status subsidiary protection and the right to be granted asylum under ec law New Issues in Refugee Research: Research Paper No. 136 p. 1.

76

In particular McAdam (2012); Kolmannskog and Myrstad (2009).

103

McAdam (2012) at 72 with reference to the English Court of Appeal in rs (Zimbabwe) v. Secretary of State for the Home Department [2008] ewca Civ 839 para. 31: ‘[. . .] since there is only one legal test for Article 3 assessment of harm should not depend ‘on whether the ‘lack of sufficient resources’ in the receiving State occurs as a consequence of some malign influence by that State or because of benign matters. The effect on the individual is the same in either case and it either reaches the threshold set by the ECtHR or it does not.’ As a matter of human rights law this is the correct approach.’ Mantouvalou criticises that ‘N. v. uk constitutes a statement that the dignity of the poor and needy foreigner amongst us does not carry equal worth to ours who are privileged enough to live in affluent communities and who are not prepared to make an effort to rescue them even at a relatively low cost’ (V. Mantouvalou ‘N v. uk: No Duty to Rescue the Nearby Needy?’ 72 The Modern Law Review (2009) 815–843 at 827ff ).

105

E.g. Kälin and Schrepfer (2012) at 35ff; Kolmannskog and Myrstad (2009).

106

Kälin and Schrepfer (2012) at 36.

107

J. McAdam (2012) Climate Change Forced Migration and International Law Oxford: Oxford University Press p. 66.

115

Clayton (2011) at 767–769.

116

See also Kälin and Schrepfer (2012) at 36.

117

McAdam (2012) at 76.

118

McAdam (2012) at 103ff.

119

McAdam (2012) at 77ff. McAdam excludes solely cases in which the argumentation is based on the withdrawal of treatment (D. v. uk) from the scope of application of Article 15(b) of the Directive. However if arguing in line with other scholars viewing the ECtHR case D. v. uk as the relevant approach for persons moving in the context of environmental change the wording of Article 15(b) Qualification Directive would pose a major challenge.

120

McAdam (2007) at 55 referring to Note from Presidency to Asylum Working Party Discussion Paper on Subsidiary Protection 13167/99 asile 41 (19 November 1999).

122

McAdam (2012) at 103f.

123

Kolmannskog and F. Myrstad (2009). They argue that environmental disasters are related with vulnerability and actions or omissions of different actors before during and after a natural risk.

126

Peers (2011) at 295–297. eu asylum law is linked to eu visa policy (the list of States whose nationals need visas contains many ‘refugee-producing countries’) eu rules on external border controls eu law on irregular migration eu external relations policy and development policy. eu law on irregular migration comes into play ‘as regards attempts to ensure that persons never reach eu Member States’ territory the criminalization of the smuggling of persons and the eu’s desire to ‘externalize’ its policies on irregular migration’. Apart from that in the asylum seeker’s country of origin ‘the Community’s development policy often addresses refugee issues explicitly through funding programmes and clauses in development policy agreements with third States’ and the ‘eu has elaborated a policy designed to assist neighbouring or transit States with large number of refugees on their territory with a view to discouraging the refugees from contemplating travel onwards to the eu.’

128

Wouters (2009) at 25.

129

McAdam (2012) at 76.

155

J. Crisp (2003) Refugee Protection in Regions of Origin: Potential and Challenges Migration Policy Institute. Crisp questions already back in 2003 – before the concept of rpps has officially been introduced – whether the transfer from domestic asylum systems to overseas development budgets of industrialised states can lead to a ‘speedy transformation of such troubled locations into havens of peace safety and economic growth’.

164

Haddad (2008) at 200.

165

Haddad (2008) at 202.

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