Abstract
In international law, new norms can emerge through the identification and development of effective practices. This article examines Swedish, Finnish and, less closely, other Nordic countries’ contributions to the slow process of norm emergence in relation to cross-border displacement in the context of disasters and climate change. It focuses on Sweden and Finland’s early adoption, and subsequent judicial application, of a legal provision establishing a right to international protection for persons unable to return home in the context of an ‘environmental disaster’. As calls are growing for European countries to take more concerted action to address this phenomenon, we examine why this pioneering approach never became an ‘effective practice’, and how this experience can nonetheless inform the emergence of new norms at the European level. Drawing on norm development theory, we argue that progressive interpretation and application of existing international protection standards, combined with the initiation of a European consultative process dedicated to identification and development of effective practices that are attuned to regional displacement dynamics, is more likely to contribute to norm emergence than the creation of new categories of international protection as attempted in Sweden and Finland.
1 Introduction
Reflecting a common tradition of solidarity,1 Nordic countries have in the past earned a reputation for implementing asylum policies that are more generous than what is required under international law.2 Although many of the provisions that once characterized Nordic approaches as ‘generous’ now form part of the common European minimum standards, the innovative international protection categories introduced by Sweden and Finland in the 1990s in anticipation of large numbers of people being displaced across borders in the context of disasters and climate change never gained traction, either within the Nordic region or beyond. With the adverse impacts of climate change increasingly evident around the world, the question of how European countries should respond has not been answered at the regional level. Could the Swedish and Finnish approaches provide inspiration for the development of new norms across Europe?
Responding to the unanswered call by the Parliamentary Assembly of the Council of Europe in 2009 to examine Finnish and Swedish legislation and case law “to see whether they could serve as examples of best practice or even models for a new sub-paragraph explicitly recognising cross-border environmentally displaced persons in Europe”,3 this article traces the life-cycle of the provisions, and examines the Swedish jurisprudence, drawing on a comprehensive review of judicial decisions from 2006–2015. Observing that the implementation of the provision, like its Finnish equivalent, appears not to have resulted in a single grant of international protection, attention turns to addressing the question how this experience may nonetheless inform the development of new norms relating to the legal status of people displaced in the context of disasters and climate change in Europe. The article concludes that progressive interpretation and application of existing international law, combined with identification and development of effective practices under domestic law provides a more coherent platform for gradual norm emergence than advocating for new international protection categories similar to those introduced in Sweden and Finland. Norm emergence can potentially be accelerated through a European regional dialogue that can promote this approach.
1.1 The Protection Gap and Effective Practices
Detailed legal doctrinal work conducted by academics4 as well as by the UN High Commissioner for Refugees5 and the UN Human Rights Committee6 establishes that existing international law does not, apart from in a very narrow range of scenarios, establish a non-refoulement obligation in relation to people displaced across borders in the context of disasters and climate change.7 Key challenges include the very high harm threshold under both refugee law and international human rights law, and the need to establish a connection between the risk of serious harm and discrimination based on one or more of the five Convention reasons found at Article 1A(2) of the Refugee Convention. Reflecting a more ad hoc approach, individual states have developed more or less ‘effective practices’ for addressing the phenomenon, and new norms at predominantly sub-regional level have emerged.
Responding to the growing recognition of both the prospect of an increase in the number of people displaced across borders in the context of disasters and climate change, and the limitations of the existing international legal framework, a new group of norm entrepreneurs emerged around 2011 to form the Nansen Initiative on Disaster Induced Cross-Border Displacement. The Nansen Initiative was “a bottom-up, state-led consultative process with multi-stakeholder involvement” whose mission was “to address the challenges of cross-border displacement in the context of disasters and the effects of climate change”.8 In 2015, following a series of sub-regional consultations, 109 states, including the Nordic states of Sweden, Finland, Denmark and Norway plus many other EU and Council of Europe Member States, and the EU itself, endorsed the Agenda for the Protection of Cross-Border Displaced Persons in the Context of Disasters and Climate Change (the Protection Agenda).9 The process was expressly not designed to develop new biding legal instruments, focusing instead on the identification and consolidation of ‘effective practices’. Consultations took place in Latin America and the Caribbean, the Horn of Africa, the Pacific, South Asia, and Southeast Asia, and focused on specific regional and sub-regional displacement dynamics and the existing and potential future ways of addressing the associated challenges.10
Importantly for the purposes of this article, the Nansen Initiative revealed that displacement in the context of disasters and climate change is not a unitary phenomenon that can be addressed by a single international legal approach. Responses are most likely to be effective when they are developed at regional, sub-regional and national levels, rather than in the form of an international treaty or soft law instrument, due to varying environmental, institutional and economic dynamics.
Since the adoption of the Protection Agenda, a range of predominantly sub-regional agreements have been adopted in Latin America, the Caribbean, Africa and the Pacific.11 Less momentum is evident in Asia, North America and Europe, although existing mechanisms, such as Temporary Protected Status in the USA, warrant recognition.12 Some of the effective practices identified in the Protection Agenda, and reflected in some of these agreements, include:
- –Prioritizing and expediting the processing of regular migration categories for foreigners from affected countries following a disaster, or waiving certain admission requirements for such categories
- –Relying upon regular (sub-)regional or bilateral free movement schemes to permit the temporary entry and stay of disaster displaced persons
- –Suspending deportation or extending or changing a person’s existing migration status on humanitarian grounds
- –Reviewing asylum applications of and granting refugee status or similar protection under human rights law to displaced persons in disaster contexts who meet the relevant criteria under applicable international, regional, or national law
The Protection Agenda does not provide a definition of ‘effective practices’, but from the description of the types of measures envisaged, this article adopts the following working definition: An effective practice relating to cross-border displacement in the context of disasters and climate change is a measure grounded in domestic, regional or international law or policy that is designed to facilitate the entry and stay of affected persons in a host country at least in part owing to adverse environmental conditions prevailing in the country of origin or habitual residence. Although Cullen notes that effective practices are ‘complementary, not dichotomous’ to international law, we consider the examples of ‘effective practices’ contained in the Protection Agenda to include those that are designed as part of a state’s understanding of its obligations under international law.13 In order for a practice to be considered ‘effective’, it must not contravene the state’s obligations under international law.
1.2 Nordic Approaches
2a § A person otherwise in need of protection in this law is a non-citizen who in other cases than those set out in 1 or 2 §§ finds herself outside the country that she is a citizen of because he or she
- 1.needs protection because of an external or internal armed conflict or because of other serious tensions in the home country feels a well-founded fear of being exposed to serious harm or
- 2.is unable to return to her home country because of an environmental disaster.
The provision was framed as an alternative source of international protection for people who do not satisfy the requirements for recognition as a refugee or as a person in need of subsidiary protection.
The similarly-worded Finnish provision was found at section 88a of the 2004 Finnish Aliens Act,16 until its removal in 2016.17 The specific inclusion of disaster displacement was added in 1999,18 although this category was implicit in the general concept of a person in need of protection reflected in section 31 of the 1991 Aliens Act.19
As two of only three European Union Member States to have adopted this kind of provision, Sweden and Finland provide important insights at a time when calls are increasing at the regional level for the development of new norms of international protection to address cross-border displacement in the context of disasters and climate change.20
Other Nordic countries have also taken legal and policy measures to address cross-border displacement in the context of disasters and climate change, although without taking the step of introducing a new category of international protection. Denmark, for instance, is known to have issued residence permits to people affected by famine in Afghanistan.21 Preparatory works for new immigration legislation in Norway acknowledged the need to be able to issue some form of residence permit to people displaced in the context of disasters,22 and the Borgarting Court of Appeal recognized drought as a significant factor precluding internal relocation in a case concerning a person from Somalia who sought international protection in the context of the 2011 famine.23 Importantly, considering the focus of this article on norm development, it warrants noting that Norway, together with Switzerland, took the lead in launching the Nansen Initiative in 2011, and continues to participate as a member of the Steering Committee of the successor initiative, the Platform on Disaster Displacement. One item in the Steering Committee’s action plan is to ‘promote policy and normative development to address gaps in the protection of persons at risk of displacement or displaced across borders’, but the work plan focuses on the Americas, Africa, Asia and the Pacific, with no initiatives addressing European dynamics.24
1.3 Calls for New Norms at European Level
… international arrangements and cooperation for anticipating and managing climate-induced migration by bridging protection gaps via recognising climate-induced migration as a legal base for granting asylum and by providing safe and legal migration pathways or humanitarian corridors for people forced to flee by a sudden or slow onset disaster …25
… [t]he industrialised member States of the Council of Europe carry a particular responsibility to those countries, especially the countries of the “global South” affected by man-made climate change, and should therefore provide appropriate asylum for climate refugees.
In particular, the Assembly encourages the European Union to use the ongoing amendment process outlined in its Policy Plan on Asylum for better addressing the protection gap in cross-border environmental displacement. Finnish and Swedish legislation and case law should be examined to see whether they could serve as examples of best practice or even models for a new sub-paragraph explicitly recognising cross-border environmentally displaced persons in Europe.26
This article answers that call, and concludes that the Finnish and Swedish provisions do not serve as examples of best practice. With research and media reports from Austria,27 Germany,28 France29 and Sweden30 demonstrating that individuals are increasingly seeking international protection, as well as other ways of entering or remaining in a European host country, in the context of disasters and climate change, there is a clear need to understand regional disaster displacement dynamics, and to identify and develop effective practices for addressing this phenomenon. Despite reaching the conclusion that Finnish and Swedish provisions do not serve as examples of best practice, their history nevertheless provides important insights of relevance to the development of new norms in the European context.
2 The Origins of the Swedish ‘Environmental Disaster’ Provision
10.7 Governments are encouraged to consider requests for migration from countries whose existence, according to available scientific evidence, is imminently threatened by global warming and climate change.31
… very serious disasters can mean that people have to flee their home country in order to survive and recover. The Chernobyl disaster is an example of such a catastrophe, even if in that case it did not immediately necessitate an escape from one’s homeland, but only at a later stage and to a moderate extent. Other types of environmental disasters may be more long-term. Examples of such catastrophes may be that whole island nations become impossible to live on due to rising sea levels. This issue was raised at the 1994 UN conference in Cairo on population issues. It requires long-term measures that should be able to be taken through international burden-sharing.32
What on the surface appears as a natural disaster, for instance drought, can on closer inspection reveal itself to be based on the fact that civil war and misplaced agricultural policy has eliminated survival margins for vulnerable populations. Drought seldom leads to famine disasters in wealthy countries with functioning distribution mechanisms, or even for wealthy people in drought affected countries.33
Responding to a request from the Swedish Migration Agency, the Proposition first states that “it is not possible in advance to comprehensively define the group”, but then goes on to identify four important considerations that help to clarify the kind of person who ought to be covered by the provision. First, it must be “a question of a sudden disaster”. Second, it must “appear contrary to the requirements of humanity to, at least immediately, send a person back to the country where the disaster took place”. Third, the Proposition affirms that “cases where, for instance, an ongoing deterioration in the conditions for producing food in a country bring about serious problems meeting basic needs are not covered”. Finally, “of particular interest in this category is whether there is the so-called internal flight alternative … In such a situation there is of course no need for asylum (fristad) in Sweden.”34 These criteria provide the sole source of guidance that judges have subsequently relied upon since the provision entered into force in 1997.
With the use of terms like ‘fristad’, which in Swedish is closely connected with the concept of political asylum, and incorporation of concepts like the internal flight alternative, this guidance clearly directs decision-makers to consider principles deriving from international refugee law and international human rights law when applying the provision, raising questions about which group of persons might find protection under this category who would not find protection under existing international law. Curiously, the emphasis on sudden onset disasters is at variance with the general description of the global challenge of displacement in the context of disasters and climate change presented in other parts of the Proposition, as well as the report that preceded it.
The Proposition holds out the possibility that the government will produce guidelines on granting both temporary and permanent residence permits for this category. However, such guidance appears never to have been produced. Importantly, the Proposition confirms that Swedish jurisprudence had yet to deal with a case that would fall within the provision, resulting in the design of a new category of international protection with little or no grounding in evidence on the dynamics of cross-border displacement in the context of disasters and climate change.35
3 (Non)Implementation
This section draws on a review of 102 appeals brought to the Swedish Migration Court in which individuals expressly relied on the fear of being exposed to disaster-related harm in support of an application to enter or remain in Sweden. This comprehensive review presents relevant cases from 2006, when electronic records from the newly established Migration Court are available, through 2015, after which, as noted above, the disaster displacement provision was suspended.
Cases were diverse and encompassed a range of hazards including sudden onset events like floods and earthquakes, as well as slower onset processes, particularly drought. Claims from countries such as Somalia and Afghanistan reflect the intersection of disasters and armed conflict. Claims were brought by people from a wide range of other countries, with notable numbers from Balkan countries in the context of large-scale flooding in 2014, and Nepal and Iran in the context of earthquakes. Claims were also brought from as far away as El Salvador, New Zealand, Japan and Haiti. Some people travelled to Sweden in close temporal proximity to the disaster, whilst others travelled much later. Many claims were submitted by people who were already in Sweden at the time the disaster unfolded. Only a minority of cases (approximately 20 per cent) identified a fear of disaster-related harm as the primary reason for seeking international protection. More often, the disaster element of the claim was included as an additional ground complementing more prominent claims based on a fear of being persecuted or otherwise exposed to serious harm at the hands of a human actor.
Notably, not all cases in which individuals pointed to a fear of being exposed to disaster-related harm were advanced as claims for international protection. Twenty-five cases related to appeals under immigration categories, such as seeking flexibility in the rules requiring certain immigration applications to be lodged from outside Sweden or relating to the impact of disasters on a foreign student’s ability to complete a course of study required for a visa extension. The disaster displacement provision was not considered in any of these appeals, and all were dismissed. The remaining 77 cases related to international protection, with three cases combining immigration and international protection elements. Of these, 87 per cent were dismissed; one appeal resulted in the recognition of refugee status; five resulted in the grant of subsidiary protection; one was recognized as being eligible for the grant of a residence permit on compassionate grounds; and three cases were remitted to the Migration Agency for further consideration. That means that there were only seven cases where these claims led to a grant of a residence permit. Of these, only one determination, which recognized eligibility for subsidiary protection, considered the relevance of the disaster in any detail (and the outcome did not turn on this), one considered the disaster in a cursory manner, and the remaining five did not consider the disaster at all.
An examination of these decisions, which typically also append decisions of the Migration Agency, reveals a pervasive lack of engagement by executive and judicial decision-makers with the disaster-related aspects of claims. Decision-makers at the level of the both the Swedish Migration Agency and the Migration Court often failed to expressly consider the disaster when reaching a decision about eligibility for international protection. Indeed, after accounting for four cases relating to claimants who were not believed to be from the drought-affected area of Somalia, only seven decisions, or less than 1 per cent of the appeals, contained detailed consideration of the disaster.
Fifty-two per cent of judicial decisions did not consider the disaster. For instance, in a case that involved children, including at least one child with disabilities, a family who had fled Bosnia-Herzegovina within a month of the 2014 floods saw this part of their claim entirely ignored by both the Migration Agency and the Migration Court, notwithstanding the fact that the flood was identified as one of the reasons they left Bosnia-Herzegovina.36 This statistic is difficult to explain when the legal framework expressly provides for international protection in the context of an ‘environmental disaster’.37 In a further 38 per cent of cases, judicial decision makers only engaged in a cursory manner with the disaster, with decisions generally failing to reflect careful consideration of individual facts against available country of origin information.
Against the background of the relied upon earthquakes in April and May 2015, they are not considered to constitute such sudden disasters as can give rise to a residence permit in Sweden. When it comes to the earthquakes and aftershocks that happened after that, the Migration Court considers that they are not of the type or extent that is required for [the applicant] to be considered a person in need of protection.38
Bosnia and Hercegovina was affected by flooding during the spring and summer of 2014. There is no reason to doubt the information [provided by the applicants] that they lost their home and work in the floods. According to their own information the authorities have offered them emergency assistance with food and clothing. That the authorities temporarily do not have the resources to repair buildings is not such a situation that established a need for international protection. No information has been provided to suggest that the authorities in Bosnia and Hercegovina, with international help, are unable to offer sufficient help to those affected. The prevailing situation in the region is not of such an extent that it is to be considered an environmental disaster under the Aliens Act.39
Although it is not possible to form an independent view due to brevity of the decision records, it is not highly likely that the applicants in these cases would have been able to establish eligibility for international protection under the Refugee Convention or even the more expansive interpretation of the non-refoulement obligation articulated by the Human Rights Committee in Teitiota v. New Zealand (discussed in more detail in section 4 below). As we develop further in section 4, applying similar criteria based on principles underpinning refugee and subsidiary protection status, but with a requirement that the disaster be sudden onset, significantly diminishes the scope of application of the Swedish provision.
In what follows, possible structural explanations for the way judicial authorities engaged with claims for international protection in this context are considered, followed by legal doctrinal reflections.
Part of the explanation relates to how administrative law judges perceive their role in relation to the decision taken by the executive agency. Judgments that we reviewed almost always included the decision of the Migration Agency as an attachment, and several dismissed the appeals by simply articulating agreement with the conclusions reached therein.40 The extent to which Swedish judges are required to take steps to gather country of origin information in order to reach a robust decision remains the subject of debate,41 but in this regard it is worth noting that the Council on Legislation’s submission to the consultation leading up to the creation of the migration court system in 2006 argued that “assessments of protection need required non judicial knowledge about situations in foreign countries which the administrative courts could not be expected to possess”.42 Affirming that migration court judges do indeed struggle in this regard, Johannesson found that judges rely heavily on the evidence submitted by the Migration Agency, which they consider to have subject-matter expertise.43
In the cases we reviewed, extremely limited country of origin information was referenced, either in the decision of the Migration Agency or in the judgment of the Court. Looking closer at the lifos system of country of origin information, which is maintained by the Swedish Migration Agency and provides “the coi the judges refer to in most cases”, we found very limited disaster-specific country of origin information, and suggest that this partly explains the lack of granular consideration of claims.44 Just as decision-making relating to other kinds of claims for international protection, such as those based on sexual orientation and gender identity, has been affected by a lack of adequate country of origin information, our analysis of the Swedish caseload on disaster displacement reflects a similar impediment to the thorough consideration of individual claims.45
There is also a point to be made about how judges may perceive this kind of claim. In general, we take note of Johannesson’s argument that judges in the Swedish migration courts tend to adopt a sceptical approach to asylum claims in order to reinforce their status as impartial actors against what they perceive as a politically generous migration policy regime.46 Our own review found a number of judgments in which individuals seeking international protection in the context of disasters were equated with economic migrants.47
Compounding these structural factors is the general wording of the provision itself, coupled with the very narrow eligibility criteria articulated in the preparatory works, which together established a category of international protection that was no more generous than existing refugee and complementary protection provisions, and may even be understood as being more restrictive. First, the wording of the provision itself is vague. When is a person ‘unable’ to return because of an environmental disaster? The answer that is provided in the preparatory works is the notion of return being ‘contrary to the requirements of humanity’, which is not an international legal term of art, but does feature as far back as the 1957 Criminal Extradition Act in Swedish law.48 Courts have applied the provision as a barrier to extradition in a number of cases, and expressly align it with Article 3 of the European Convention on Human Rights.49
When the Article 3 threshold is applied in relation to the question of refoulement in the context of disasters and climate change, an applicant may be expected to establish that ‘the humanitarian grounds against the removal’ are both ‘very exceptional’ and ‘compelling’, in accordance with the Judgment of the Grand Chamber in N v. United Kingdom.50 Based on the facts recounted in the decision records, none of the claims that identified a fear of disaster-related harm appeared to come close to attaining this threshold.
In addition, according to the preparatory works, a person will only be ‘unable’ to return when the disaster is ‘sudden onset’, thereby expressly permitting return where the disaster arises from slower onset processes, like sea level rise, drought or other changes in weather patterns. With 43 per cent of the 102 cases relating to drought and famine, nearly half of all claims had no prospect of success under the disaster displacement provisions from the outset. The clearly-stated relevance of an internal relocation requirement further reduces the prospects of success for the remaining cases.
These factors help to explain why not a single person appears to have benefitted from Sweden’s pioneering disaster displacement provision. Although our review covers only cases determined by the Swedish migration courts, which were established in 2006, it is clear that similar challenges were faced by people seeking international protection under this provision when claims came before the previous quasi-judicial body – the Aliens Appeals Board (Utlänningsnämnden). A communication in the Swedish Parliament from 2001 raised the question why none of the approximately 600 people from El Salvador who had come to Sweden in the context of a devastating earthquake had benefitted from the provision, and called for an examination of whether the provision was being implemented as intended.51 However, following an explanation that the Migration Agency had examined conditions on the ground in El Salvador, the government decided not to pursue such an examination.
We do not discount the possibility that this provision might have had a different trajectory had it been introduced in a more adversarial jurisdiction where ambiguities about the scope of application might have been argued with recourse to more purposive forms of legal reasoning. In this regard, the Nordic judicial culture of loyalty to the legislator may well have conspired with the narrowly framed guidance in the preparatory works to make potentially expansive provisions entirely unworkable.52
4 Implications for Norm Emergence at the European Level
Swedish membership in the EU entails, in addition to new responsibilities, also a duty to participate in the development of the future common policy. A successful influence can give more weight to the principles that Sweden aims to achieve in migration policy.
However, although other categories originally included in Sweden’s ‘person otherwise in need of international protection’ category, such as persons fearing being persecuted on account of their sexual orientation or gender identity, now feature in the Qualification Directive, the idea that people displaced in the context of disasters and climate change should be entitled to international protection did not gain ground. There is evidence that Finland argued for the integration of a provision for environmentally-related displacement to be included in the Temporary Protection Directive, but this idea was rejected as having no basis in international law.53 Any ambition of contributing to the development of a European norm relating to international protection in the context of ‘environmental disasters’ was clearly unrealized, with no reference to disaster-related displacement in the Temporary Protection Directive, the EU Qualification Directive, or any of the earlier EU and Council of Europe resolutions and recommendations promoting a common European approach to complementary protection.54
4.1 Avoid Confusing Humanitarian Responses with International Protection Obligations
… the use of national immigration law in the Americas to resolve mobility challenges linked to the environment already represents fairly long-standing practice by some states in this region.56
Significantly, these provisions are not framed as international protection.
Framing a provision as a form of international protection cannot avoid being redundant, and thereby risks engendering conceptual confusion. What is the harm threshold if not ‘persecution’ or ‘serious harm’? What is the standard of proof and temporal scope if not a ‘well-founded fear’ ‘or substantial grounds for believing there is a real risk’? In short, how would any new provision be interpreted, if not with reference to existing international protection standards? A better approach would be to encourage consideration of environmental factors through guidance for decision-makers, and through progressive interpretation of existing international law. Any category of ‘protection’ that is less restrictive than existing forms of international protection should make the distinction clear, and avoid references to asylum, climate refugees and international protection.
If there is a case concerning a group of people [affected by disaster] who are in another country, paragraph 109 of the Aliens Act on the basis of temporary protection can be applied. If there is a case of an individual who has fled a disaster, a residence permit can be granted under paragraph 52 of the Aliens Act on the basis of individual compassionate circumstances or, if it is a question of a temporary impediment to return, even under paragraph 51 of the Aliens Act on impediments for leaving the country.59
The 2021 proposal of the Committee on the Future Swedish Migration Policy to remove the ‘person otherwise in need of international protection’ category, which contains the disaster displacement provision, asserts that the existing individual compassionate circumstances provision can be applied, reflecting a similar preference as Finland’s for abolishing international protection categories that diverge from those reflected in the Qualification Directive.
4.2 Norm Emergence in Europe
Gest et al. systematically analysed norm emergence in six contexts relating to migration and the protection of minorities, and identified agenda setting as the first in a six-stage process, followed by consolidation of support, institutional support, negotiation, adoption and commitment.60 This work sought to add depth to the first phase of Sikkink and Finemore’s life cycle model that moves from norm emergence, to norm cascade and then to internalization.61 Having witnessed the emergence of new norms across Latin America and the Caribbean, the Pacific and at the sub-regional level in Africa, there is good reason to reflect on the potential agenda-setting role of a European regional dialogue similar to those undertaken as part of the Nansen Initiative.
In line with Florini’s evolutionary model, we recognize that emergent norms will only become established where they do not conflict with the wider normative environment, and the wider social and political conditions are receptive.62 As anti-immigration sentiment remains high, and the Common European Asylum System is under pressure on many fronts, any emergent norm must negotiate an environment where states have very little interest in assuming additional responsibilities towards people in situations of cross-border displacement. The Swedish and Finnish disaster displacement provisions, which were framed as a form of international protection, did not sit comfortably within the wider normative environment. A majority of EU Member States have humanitarian categories, and understanding how these provisions have been or may be applied in relation to people unable to return home in the context of disasters and climate change would provide a foundation for the regional consultative process that we recommend in this article.
4.3 Developing International Law through Interpretation
Following this preference for a clear distinction between international protection and humanitarian responses, it is important to recall that international law also develops through interpretation. Venzke has noted how judicial decision-makers, as well as the unhcr, have developed international refugee law through a dynamic process of interpretation.63 Hathaway has reflected on the role of the trans-national judicial dialogue in developing international law.64 There is room for this process to continue in relation to people displaced across borders in the context of disasters and climate change.
Although pioneering at the time of its adoption in the 1990s, Sweden’s disaster displacement provision, particularly when read together with the preparatory works, now reads as imposing a higher threshold for international protection than what is required to engage the non-refoulement obligation under Article 6 iccpr, which is approximately equivalent to Article 2 echr on the right to life. The judgment of the Human Rights Committee in Teitiota v. New Zealand established that the non-refoulement obligation would be engaged in situations where conditions in the country of origin would expose the claimant to the denial of the right to life with dignity. The Committee, drawing on General Comment No. 36, explained that the right to life with dignity may be denied in situations where a person faces serious denial of their rights to food, water, shelter and other economic and social rights, including in the context of disasters and climate change, articulating a harm threshold well below the ‘very exceptional’ and ‘compelling’ humanitarian considerations by the European Court of Human Rights in N v. United Kingdom and reflected in Sweden’s ‘contrary to the requirements of humanity’ threshold.65 The Committee does not impose any restriction based on whether the harm would arise in the context of a sudden onset disaster or a slower onset process like sea level rise. This precedent is likely to be tested and developed further in coming years.
Similarly, although the scope of application will remain limited, international refugee law also applies in some circumstances where individuals face being persecuted in the context of disasters and climate change. unhcr’s Legal Considerations Regarding Claims for International Protection Made in the Context of the Adverse Effects of Climate Change and Disasters provides the most authoritative articulation of the scope of the Refugee Convention in this context. Highlighting the range of rights that can be adversely affected by climate change, the document affirms that “[b]oth in the short and longer-term, affected populations may be exposed to a risk of human rights violations that amount to persecution within the meaning of the 1951 Convention”.66
Thinking about the potential directions that a new European approach to cross-border displacement in the context of disasters and climate change might take, we see two complementary approaches. Measures designed to promote consistent development of jurisprudence applying international refugee law and international human rights law complement moves to promote the identification and development of effective practices that do not attempt to articulate a new category of international protection. Indeed, the Refugee Convention and the EU status of subsidiary protection both emerged through a process of consolidating ‘effective practices’.67 The range of effective practices identified under the Protection Agenda, and the multiple examples of humanitarian provisions collected by Cantor, provide a useful starting point, but further consultations in the European context may identify similar or additional practices that could be replicated and further developed.
5 Conclusion
This article examined the life-cycle of pioneering legal provisions from two Nordic countries that extended international protection to persons displaced across borders in the context of disasters and climate change. It asked whether these provisions, and the jurisprudence that they have generated, could provide guidance in response to calls at the European regional level for greater legal protection of ‘climate refugees’. Based on the fact that not a single person ever received international protection under either the Swedish or the Finnish provision, and in light of the structural as well as legal doctrinal impediments identified in the Swedish context, it was argued that attempts to formulate a new category of international protection for people displaced across borders in the context of disasters and climate change are likely to generate conceptual confusion and result in judgments that apply potentially even more restrictive criteria than what would otherwise be applied under existing international refugee law or international human rights law. Additionally, in the absence of timely and detailed country of origin information, decision-makers at executive and judicial levels will struggle to reach robust findings of fact against which to apply the relevant law.
Around the world, new norms are emerging to address cross-border displacement in the context of disasters and climate change. However, as disaster-related displacement dynamics vary, Europe will ultimately need to develop its own set of effective practices. A distinctive challenge in this regard concerns underlying principles. Those regions that have made the greatest advances in developing new norms are also those where mutual assistance is envisaged. In the igad sub-region of Africa, drought may trigger displacement of people from Somalia across the border with Ethiopia, but Ethiopians may also be displaced across the border with Somalia. In the Americas, hurricanes may trigger displacement between Panama and Costa Rica, and vice versa. This mutual interest principle underpins free movement arrangements operating within the European Economic Area as well, and Germans displaced by flooding are free to move to the Netherlands, and Italians impacted by an earthquake can move into France. Cross-border disaster displacement from outside Europe engages principles other than mutual assistance.
This article opened by highlighting how the principle of solidarity characterized Nordic innovation in the asylum context. Indeed, the Proposition that introduced Sweden’s disaster displacement provision opens by invoking ideals of respect for human rights and international solidarity. Having identified significant limitations in the letter of the law, the spirit that it reflected still has the potential to inspire the kinds of legal and policy measures that can lead to the development of effective practices for addressing cross-border displacement in the context of disasters and climate change in Europe. However, as ‘negative nation branding’68 has emerged to disseminate messages of hostility towards people in situations of displacement, invoking Nordic solidarity risks embracing nostalgia.69
This article has discussed three types of Nordic norms: cultural norms of solidarity, judicial norms of loyalty to the legislator, and legal norms relating to international protection. In the final analysis, none of these norms appear likely to inspire the emergence of effective practices relating to cross-border displacement in the context of disasters and climate change. Nevertheless, by providing concrete examples from jurisdictions where new categories of international protection have been designed, implemented and ultimately repealed, the Swedish and Finnish experiences contribute significantly to the evidence base concerning the kinds of measures that states might consider adopting in order to effectively address the phenomenon of cross-border displacement in the context of disasters and climate change. A European dialogue would provide an important platform for identifying and developing the cultural, judicial, and legal norms and associated effective practices adapted to a changing climate.
Acknowledgement
This article is based on research conducted in the context of the project ‘ClimMobil – Judicial and policy responses to climate change-related mobility in the European Union with a focus on Austria and Sweden’ (kr18ac0k14747) funded by the Austrian Climate and Energy Fund, acrp 11th Call. The project is implemented by the Ludwig Boltzmann Institute of Fundamental and Human Rights (Vienna/Austria) and the Raoul Wallenberg Institute of Human Rights and Humanitarian Law (Lund/Sweden).
T. Gammeltoft-Hansen, ‘The Do-Gooders’ Dilemma: Scandinavian Asylum and Migration Policies in the Aftermath of 2015’ in A. De Bengy Puyvallée and K. Bjørkdahl (eds.), Do-Gooders at the End of Aid: Scandinavian Humanitarianism in the Twenty-First Century (Cambridge University Press, Cambridge, 2021); R. Stern, ‘Proportionate or Panicky? On Developments in Swedish and Nordic Asylum Law in Light of the 2015 “Refugee Crisis”’ in V. Stoyanova and E. Karageorgiou (eds.), The New Asylum and Transit Countries in Europe during and in the Aftermath of the 2015/2016 Crisis (Brill, Leiden, 2019); P. Lawler, ‘Janus-Faced Solidarity: Danish Internationalism Reconsidered’, 42:1 Cooperation and Conflict: Journal of the Nordic International Studies Association (2007) pp. 101–126.
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pace, Resolution 1655(2009), Environmentally Induced Migration and Displacement: A 21st Century Challenge.
See for instance J. McAdam, Climate Change, Forced Migration and International Law (Oxford Univrsity Press, Oxford, 2012); M. Scott, Climate Change, Disasters and the Refugee Convention (Cambridge University Press, Cambridge, 2020); W. Kälin and N. Schrepfer, Protecting People Crossing Borders in the Context of Climate Change: Normative Gaps and Possible Approaches ppla/2012/01 (unhcr 2012).
unhcr, Legal Considerations Regarding Claims for International Protection Made in the Context of the Adverse Effects of Climate Change and Disasters (2020).
Teitiota v. New Zealand, (ccpr/c/127/d/2728/2016) 7 January 2020.
Important efforts to articulate an international legal obligation beyond non-refoulement continue. See for instance C. Gonzalez, ‘Migration as Reparation: Climate Change and the Disruption of Borders’, 66 Loyola Law Review (2020) p. 401–444.
Nansen Initiative, Secretariat, <www.nanseninitiative.org/secretariat/>, visited on 28 May 2021.
Platform on Disaster Displacement, Our Response, <www.disasterdisplacement.org/the-platform/our-response>, visited on 28 May 2021.
See Platform on Disaster Displacement, <www.disasterdisplacement.org/?s=conclusions>, visited on 30 August 2021.
See annual updates on developments at international and regional levels in M. Scott, ‘Migration/Refugee Law’ in volumes 1–3 of G. Bartolini et al. (eds.), Yearbook of International Disaster Law (Brill, Leiden), which cover the period 2018–2020.
See discussion of Temporary Protected Status in M. Scott, ‘Migration/Refugee Law’ in G. Bartolini et al. (eds) Yearbook of International Disaster Law, Volume 1 (Brill, Leiden, 2019), which describes measures taken by the Trump administration to revoke tps status from nationals of El Salvador, Haiti, Nicaragua and Sudan.
M. Cullen, ‘Disaster, Displacement and International Law: Legal Protections in the Context of a Changing Climate’, 8:4 Politics and Governance (2020), p. 271.
On suspension of the provision see Lag (2016:752) om Tillfälliga Begränsningar av Möjligheten att Få Uppehållstillstånd i Sverige. On repeal of the provision, see Regeringens Proposition 2020/21:191: Ändrade Regler i Utlänningslagen, p. 51.
Utlänningslag (2005: 716).
Ulkomaalaislaki 30.4.2004/301.
Laki Ulkomaalaislain Muuttamisesta 332/2016.
Laki Ulkomaalaislain Muuttamisesta 537/1999.
See Hallituksen Esitys Eduskunnalle Laiksi Ulkomaalaislain Muuttamisesta he 50/1998.
A. Kraler, C. Katsiaficas, and M. Wagner, Climate Change and Migration: Legal and Policy Challenges and Responses to Environmentally Induced Migration (European Parliament, 2020). The other country identified in the report is Italy. The European Migration Network, Comparative Overview of Protection Statuses in the EU and Norway (May 2020) identifies the Italian provision as Article 20bis of the Immigration Act (2018) and confirms the provision has been used once.
unhcr, Forced Displacement in the Context of Climate Change: Challenges for States Under International Law. Submission to 6th session of the Ad Hoc Working Group on Long-Term Cooperative Action under the Convention (awg-lca 6) (2009).
Ibid.
Borgarting Court of Appeal Decision of 23 September 2011- Abid Hassan Jama v. Utlendingsnemnda, 10-142363asd-borg/01.
Platform on Disaster Displacement, Platform on Disaster Displacement(pdd) Strategy 2019–2022, <www.disasterdisplacement.org/wp-content/uploads/2019/06/26062019-PDD-Strategy-2019-2022-FINAL_to_post_on_website.pdf> visited on 28 August 2021. The 2019–2022 work plan is available at Platform on Disaster Displacement, Platform on Disaster Displacement(dpp) Strategy 2019–2022 Annex I: Workplan <www.disasterdisplacement.org/wp-content/uploads/2020/01/31122019-Annex-I-PDD-Workplan-2019-2022-FINAL_compressed.pdf> visited on 28 August 2021.
M. Silvana González, Report on the Impacts of Climate Change on Vulnerable Populations in Developing Countries (2020/2042(ini)).
pace, Resolution 1655(2009), Environmentally Induced Migration and Displacement: A 21st Century Challenge.
M. Ammer, M. Mayrhofer and F. Hasel, ‘Human Mobility in the Context of Climate Change: Addressing the Normative Protection Gap in Austria’ in R. Bauböck, I. Josipovic, D. Karabegović, K. Shinozaki and W. Sievers (eds.), Migrationsforschung und Migrationsgesellschaft: Aktuelle Herausforderungen und neue Perspektiven, Jahrbuch Migrationsforschung 6 (Austrian Academy of Science Press, forthcoming).
C. Schloss, ‘Climate Migrants – How German Courts Take the Environment into Account when Considering Non-Refoulement’, Volkrechtsbloggen, 3 March 2021, <www.voelkerrechtsblog.org/climate-migrants/>, visited on 28 May 2021.
J. Henley, ‘Man Saved from Deportation after Pollution Plea in French Legal ‘First’’, The Guardian, 12 January 2021, <www.theguardian.com/world/2021/jan/12/bangladeshi-man-with-asthma-wins-france-deportation-fight> visited on 3 September 2021.
The research underpinning this article.
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sou 1995:75 Svensk Flyktingpolitik i Globalt Perspektiv p. 148.
Proposition 1996/97:25 Svensk Migrationsrätt i Globalt Perspektiv, p. 59.
Ibid., p. 100.
Ibid., p. 99.
um112-15; um114-15; um115-15; um 120-15.
Swedish administrative law requires judges to provide written reasons for the decisions they reach, and this requirement is higher in migration law cases (mig 2006:1), but it is not uncommon for the reasoning to be brief or vague. See U. von Essen, Förvaltningsprocesslagen m.m.: En Kommentar, 7th edn. (Wolters Kluwer, Stockholm, 2017), p. 376.
um6177-16.
um5969-14.
See for instance um19749-10; um21475-10; um3425-14.
I. Cegrell-Karlander, Officialprincipen i Migrationsprocessen: Domstolens Utredningsansvar (PhD thesis, Uppsala University, 2021).
L. Johannesson, In Courts We Trust: Administrative Justice in Swedish Migration Courts (PhD thesis, Stockholm University, 2017), p. 83.
L. Johannesson, ‘Exploring the “Liberal Paradox” from the Inside: Evidence from the Swedish Migration Courts’ 52:4 International Migration Review (2018) pp. 1162–1185.
Johannesson, supra note 41, p. 114.
D. McDonald-Norman, ‘No One to Bear Witness: Country Information and lgbtq Asylum Seekers’, 33:2 Refuge (2017) pp. 88–100.
Johannesson, supra note 42.
See for instance um4198-12; um4260-12; um3571-15; um4410-15.
Lag (1957:668) om Utlämning för Brott.
See for instance Ö3765-02.
N v. United Kingdom (Appl. No. 26565/05) para. 42. See discussion of this threshold in M. Scott, ‘Natural Disasters, Climate Change and Non-Refoulement: What Scope for Resisting Expulsion Under Articles 3 and 8 of the European Convention on Human Rights?’, 26:3 International Journal of Refugee Law (2014) pp. 404–432.
Sveriges Riksdag, Skriftlig Fråga 2001/02:611.
P. Letto-Vanamo, ‘Courts and Proceedings: Some Nordic Characteristics’ in L. Ervo, P. Letto-Vanamo and A. Nylund (eds.), Rethinking Nordic Courts (Springer, Cham, 2021).
A. Skordas, ‘Temporary Protection Directive 2001/55/ec’, in K. Halibronner and D. Thym (eds.), EU Immigration and Asylum Law: A Commentary, 2nd edn. (Hart, Oxford, 2016). With thanks to Meltem Ineli Ciğer for bringing this material to our attention.
None of the recommendations or resolutions at EU and Council of Europe levels identified by J. McAdam in ‘The European Union Qualification Directive: The Creation of a Subsidiary Protection Regime’, 17:3 International Journal of Refugee Law (2005), p. 461, fn 2 contain reference to environment, disasters, or climate change.
Cf. R. Warren and D. Kerwin, ‘A Statistical and Demographic Profile of the US Temporary Protected Status Populations from El Salvador, Honduras, and Haiti’, 5:3 Journal of Migration and Human Security (2017) pp. 577–592.
D. Cantor, ‘Environment, Mobility, and International Law: A New Approach in the Americas’, 21:2 Chicago Journal of International Law (2021) p. 298.
Hallituksen Esitys Eduskunnalle Ulkomaalaislaiksi ja Eräiksi Siihen Liittyviksi Laeiksird he 28/2003, p. 183.
sou 2006:6, Skyddsgrundsdirektivet och Svensk Rätt, p. 168.
he 2/2016 Hallituksen Esitys Eduskunnalle Laiksi Ulkomaalaislain Muuttamisesta, p. 6.
J. Gest et al., ‘Tracking the Process of International Norm Emergence: A Comparative Analysis of Six Agendas and Emerging Migrants’ Rights’, 19:2 Global Governance (2013) pp. 153–186.
M. Finnemore and K. Sikkink, ‘International Norm Dynamics and Political Change’, 52:4 International Organization (1998) pp. 887–917.
A. Florini, ‘The Evolution of International Norms’, 40:3 International Studies Quarterly (1996) pp. 363–389.
I. Venzke, How Interpretation Makes International Law: On Semantic Change and Normative Twists (Oxford University Press, Oxford, 2012).
J. Hathaway and M. Foster, The Law of Refugee Status, 2nd edn. (Cambridge University Press, Cambridge, 2014).
hrc, General Comment No. 36 on 6 (2018) on Article 6 of the International Covenant on Civil and Political Rights, on the Right to Life (ccpr/c/gc/36).
unhcr, supra note 5.
Cf. McAdam, supra note 53.
T. Gammeltoft-Hansen, ‘Refugee Policy as ‘Negative Nation Branding’: The Case of Denmark and the Nordics’ in K. Fischer and H. Mouritzen (eds.), Danish Foreign Policy Yearbook 2017 (Danish Institute for International Studies, 2017).
For deeper reflections on nostalgia in this context, see G. Noll, ‘Nostalghia: A Nordic International Law’ 85 Nordic Journal of International Law, pp. 265–280.