Introduction¹

International, regional, national and sub-national initiatives to address human mobility in the context of disasters and climate change continued in 2022, with some notable developments particularly at the international level. However, the international legal dimension remains in a state of emergence, with international and regional policy and quasi-judicial processes gradually piecing together norms relating to preventing harmful displacement, protecting people during displacement, and facilitating durable solutions to displacement, but with very limited language reflecting any specific international legal obligations in this context.

Resolutions of the UN General Assembly, as well as global policy processes such as the Global Platform on Disaster Risk Reduction and regional processes such as the Asia-Pacific Ministerial Conference on Disaster Risk Reduction, continue to encourage predominantly national-level measures to address both internal and cross-border displacement. Treaty monitoring bodies highlight disaster displacement in general comments, and also consider the impact of disaster displacement on substantive rights, such as the right to culture under Article 27 of the International Covenant on Civil and Political Rights. However, apart from the concrete finding by the Human Rights Committee that the increased risk of climate-related displacement reflected a violation by Australia of the right to culture of inhabitants of the Torres Strait Islands owing to the country’s failure to take adequate steps to adapt to climate change,² developments in 2022 reflect an ongoing process of norm development, rather than any notable milestone. The recognition of the need for substantial further work by the ILC working group on sea level rise reflects the emergent character of international law in this space.³

With regional developments unfolding along the same lines as in previous years, the section this year focuses on the international level, before providing some highlights from the regional level.

1 International

A significant impetus for addressing human mobility in the context of disasters and climate change came from the IPCC Sixth Assessment Report on Impacts, Adaptation and Vulnerability,⁴ where migration, displacement and planned relocation were extensively examined.⁵ This report solidifies the evidence base linking human mobility to the adverse impacts of climate change.

International efforts to address human mobility in the context of disasters and climate change advanced at the 27th Conference of the Parties to the UN Framework Convention on Climate Change with the decision to develop a loss and damage fund and funding arrangements.⁶ The decision has a focus on addressing loss and damage, and proposes to take into account displacement, relocation and migration as gaps in the operationalization process.⁷ Another decision, the Sharm el-Sheikh Implementation Plan, reiterates the Paris Agreement’s call for Parties to respect, promote and consider their obligations with respect to human rights and migrants, and also highlights ‘forced displacement’ and ‘human mobility’ as examples of non-economic losses (NELs) associated with climate change.⁸ The first step is the establishment of a secretariat for the Santiago Network, which the Parties commit to achieving during 2023.⁹ Acknowledging human mobility in some contexts as reflecting loss and damage, as distinct from an adaptation strategy, opens some room for increased financial, technical and other support from countries most responsible for climate change, although the shape of any such mechanism will likely take years to consolidate.

The Task Force on Displacement under the UNFCCC Warsaw International Mechanism presented its workplan for 2022–2024 at COP27.¹⁰ The workplan reflects initiatives from a range of actors including the UNHCR, IOM, ILO, Platform on Disaster Displacement and others in areas relating to increasing the knowledge base and development and dissemination of tools, such as technical guidance on integrating linkages between human mobility and climate change into relevant national climate change planning processes.

The Co-Chair’s statement emerging from the 2022 Global Platform on Disaster Risk Reduction called for provisions to address disaster displacement and other forms of human mobility ‘to be included in national, local and regional disaster risk reduction policies and strategies …’. The statement further called for the risk of disaster displacement to ‘be assessed and reduced, including through addressing the underlying causes of such displacement and preparing for its adverse consequences’.¹¹ Similar recommendations are found in General Assembly Resolution 77/164 on Disaster Risk Reduction.

The emphasis on reducing displacement risk is echoed in Resolution 77/166 on Implementation of the United Nations Convention to Combat Desertification (UNCCD) in Those Countries Experiencing Serious Drought and/or Desertification, Particularly in Africa. The UNCCD itself issued a decision at its COP15 on ‘[t]he positive role that measures taken under the Convention can play to address desertification/land degradation and drought as one of the drivers that causes migration’ focusing on measures such as sustainable territorial development to strengthen rural-urban linkages and land and ecosystem restoration.¹²

A substantial report by the International Law Commission (ILC) on Sea Level Rise in Relation to International Law devoted extensive attention to the question of the protection of people affected by sea level rise. In this part of the report, the ILC examined international legal provisions and mapped the practice of states and international organizations, concluding that:

The current international legal frameworks – that is, the lex lata – that are potentially applicable to the protection of persons affected by sea-level rise are fragmented, mostly non-specific to sea-level rise but generally applicable in the context of disasters and climate change, and often of a soft-law character. Such international legal frameworks could be further developed in a more specific, coherent and complete manner in order to effectively protect persons who remain in situ or have to move because of the impact of sea-level rise.¹³

In addition to other points, the report calls for further work by the ILC, building on the Draft Articles on the Protection of Persons in the Event of Disasters, to answer the following question:

What principles are applicable or should be applicable to situations involving the evacuation, relocation, displacement or migration of persons, including vulnerable persons and groups, owing to the consequences of sea-level rise or as a measure of adaptation to sea-level rise? In particular, with regard to displacement and human mobility, what are or should be the obligations of States to protect and assist persons affected by sea-level rise, adopting both a rights-based and a needs-based approach, in the following areas:

• (i) prevention of displacement;

• (ii) assistance to remain in situ;

• (iii) establishment of principles for planned relocation;

• (iv) protection of persons in case of internal displacement and promotion of durable solutions;

• (v) protection options in case of cross-border displacement (such as humanitarian visas or temporary protection schemes);

• (vi) arrangements for regular migration (both temporary and long- term);

• (vii) the granting of refugee status or complementary protection if existing criteria are met?¹⁴

Echoing language from the 2018 Global Compact on Safe, Orderly and Regular Migration, General Assembly Resolution 74/176 on International Migration and Development called upon states to ‘[s]trengthen their efforts to enhance and diversify the availability of pathways for safe, orderly and regular migration, including in response to demographic and labour market realities, and for migrants in vulnerable situations, as well as those affected by disasters, climate change and environmental degradation’. Recognizing that ‘the availability and flexibility of pathways for regular migration remains limited in many cases’, the Heads of State and Government convened at the International Migration Review Forum resolved to strengthen efforts in this area.¹⁵ States also recognized that ‘[e]fforts to mitigate and adapt to the adverse effects of climate change have been insufficient’¹⁶ and called for aligning the Global Compact implementation with that of the Paris Agreement and the Sendai Framework for Disaster Risk Reduction.¹⁷

The Committee on Economic, Social and Cultural Rights recognised the potential of internal and cross-border migration to ‘increase tensions over the access to and use and tenure of land, with negative implications for human rights’.¹⁸ General Comment No. 26 further highlights the significant risk of displacement relating to climate change mitigation-related land grabbing, calling upon states to ‘avoid adopting policies to mitigate climate change, such as carbon sequestration through massive reforestation or protection of existing forests, that lead to different forms of land grabbing, especially when they affect the land and territories of populations in vulnerable situations, such as peasants or Indigenous Peoples’.¹⁹

The Human Rights Committee reached its decision in the case of Daniel Billy et al. v Australia, which included consideration of human mobility in relation to the right to culture under Article 27 of the International Covenant on Civil and Political Rights.²⁰ The applicants, indigenous inhabitants of the Torres Strait Islands, complained inter alia that the adverse impacts of climate change threatened to displace them from their islands, which would result in ‘egregious and irreparable harm to their ability to enjoy their culture’.²¹ The Committee found a violation of Article 27 owing to Australia’s failure to adopt adequate adaptation measures that would enable the applicants to continue to practice their right to culture on their islands, instead of, for example, on the Australian mainland.²² Australia has 180 days from the date of the decision to inform the Committee of measures taken to give effect to the Committee’s views.

The relationship between climate change, disasters and trafficking featured on the international agenda in 2022, with General Assembly Resolution 74/194 calling for states to ‘support and fund research and analysis to better understand the impacts of climate change, environmental degradation and disasters on women and girls, including in relation to trafficking in persons’.

Finally, expressly building on the 2021 launch of the Global Mayor’s Action Agenda on Climate and Migration, 2022 saw the adoption by United Cities and Local Government (UCLG) of the Lampedusa Charter for Dignified Human Mobility and Territorial Solidarity. The Charter identifies climate change as a key driver of human mobility into and within cities and articulates a vision of territorial solidarity that contrasts with state-centric border regimes. Endorsed in 2022 by the Global Taskforce of Local and Regional Governments, the Charter:

is a further milestone in a long path of local efforts and global advocacy to overcome border-centered approaches to migration and forced displacement. By placing the focus on people, the Lampedusa Charter establishes a notion of citizenship that acknowledges all communities as neighbors, as right holders and community developers.

As a global network of over 240,000 cities and local, regional, and metropolitan governments and their associations, UCLG, as well as other city networks, has a role to play in shaping international, (sub)regional and (sub)national responses to climate- and disaster-related human mobility.²³

2 Regional Developments

A notable development in Europe in 2022 was the release of the Commission Staff Working Document (CWD) on Addressing Displacement and Migration Related to Disasters, Climate Change and Environmental Degradation.²⁴ The document replaces the 2013 document of a similar name and was issued to coincide with the commencement of the EU chairmanship of the Platform on Disaster Displacement. Like its predecessor, the 2022 CWD focuses on displacement outside of the European Union, as distinct from movement into or within the EU. Policy areas in focus include humanitarian aid and development assistance, research and data collection, and climate change adaptation and disaster risk reduction. There is also discussion around EU support to partner countries working on the issue, and to the role played by the EU in relevant international initiatives, such as the Platform on Disaster Displacement. There is no mention of climate- or disaster-related human mobility into Europe.

In contrast, the European Parliament tackles climate- and disaster-related mobility into and within Europe in its Resolution of 15 September 2022 on the Consequences of Drought, Fire, and Other Extreme Weather Phenomena: Increasing the EU’s Efforts to Fight Climate Change:

Stresses that the EU must be ready for climate-induced displacement and recognises the need for adequate measures to be taken to protect the human rights of populations under threat from the effects of climate change; considers that such displacement should be addressed at an international level; calls on the Commission and the Member States to cooperate on the development of an international framework to address climate-induced displacement and migration both at international forums and in the EU’s external action; encourages the Commission and the Member States to work together to support people who have been displaced due to climate change and who are no longer able to live in their places of residence; underlines that the UN Human Rights Committee has ruled that states must take into account the human rights impacts of the climate crisis in the country of origin when considering the deportation of asylum seekers.²⁵

The phenomenon is somewhat more indirectly addressed in resolutions relating specifically to EU external relations. In its recommendation of 14 September 2022 to the Commission and the Commission Vice-President/ High Representative of the Union for Foreign Affairs and Security Policy on the Renewed Partnership with the Southern Neighbourhood – A New Agenda for the Mediterranean,²⁶ ‘the impact of climate change’ is included as a dimension of the migration dynamics between the EU and countries in the Southern Neighbourhood. Similarly, European Parliament Recommendation of 5 October 2022 to the Council, the Commission and the Vice-President of the Commission/High Representative of the Union for Foreign Affairs and Security Policy on the EU Strategic Relationship and Partnership with the Horn of Africa describes ‘natural disasters and the consequences of climate change’ as being ‘at the root of the considerable refugee and displaced populations in most regions’ before endorsing the Khartoum Process, the Global Compact for Safe, Orderly and Regular Migration and the work of the Regional Ministerial Forum on Migration for the East and Horn of Africa as relevant processes for addressing cross-border movement, including towards Europe.

The Co-Chair’s Statement from the 2022 Asia-Pacific Ministerial Conference on Disaster Risk Reduction highlighted the relevance of ‘planned evacuation and spontaneous movement away from at-risk and disaster areas’ as constituting ‘critical strategies to protect lives’ and called on governments ‘to review legal, policy, strategic frameworks and plans to better integrate measures that avert, minimise and address disaster displacement and support durable solutions’.²⁷

As part of the Pacific Climate Change Migration and Human Security Programme (PCCMHS),²⁸ Pacific States under the Pacific Island Forum continued consultations on developing a draft regional framework to address disaster and climate-related human mobility. A regional consultation on ‘Promoting a Regional Approach to the Challenges of Human Mobility in the Context of Disasters and the Adverse Effects of Climate Change in the Pacific’ was held in Fiji in December 2022.²⁹ Amongst other topics, discussions focused on the harmonization of approaches to humanitarian entry and stay in the context of disasters and climate change.³⁰

In Africa, Member States of the Intergovernmental Authority on Development (IGAD) and the East African Community (EAC) convened an Inter-Ministerial Conference on Migration, Environment and Climate Change, which resulted in the adoption of the Kampala Ministerial Declaration on Migration, Environment and Climate Change.³¹ Although most of the commitments focus on measures to address internal mobility, Member States also commit to establish an IGAD-EAC and States of the East and Horn of Africa Inter-Ministerial Working Group on Climate Change, the Environment and Migration.

The ASWAN Forum for Sustainable Peace and Development brought together high-level officials from African countries, development partners, international and regional organizations, international and regional financial institutions, representatives from civil society, think tanks, and the private sector to discuss ‘how Africa can advance a green, transformative recovery agenda.’³² The Conclusions document contains a section on ‘Advancing Durable Solutions to Address the Climate-Displacement Nexus and Sustaining Peace in Africa’. Here, the African Union, Regional Economic Communities/Regional Mechanisms are encouraged to, amongst other measures, ‘prioritize a preventative approach when tackling climate displacement’ and ‘enhance regular migration pathways to alleviate the socioeconomic impact of climate change and create opportunities for those displaced due to climate change’.³³

In the Americas, Resolution 3.21 of the Inter-American Commission on Human Rights and the OAS (released in 2022) called upon States in the region to address environmental mobility through a human rights-sensitive approach. The Resolution states:

Faced with migrant workers and others who mobilize for reasons directly or indirectly associated with climate change, States must guarantee due process during the procedure leading to the recognition of their migratory status, and in any case guarantee their human rights, such as the safeguard of non-refoulement while their status is determined.

Thus, in a year when internal displacments in the context of disasters and climate change reached 32 million³⁴ and where heatwaves, floods, droughts and storms and other hazards impacted 185 million people,³⁵ human mobility is rightly assuming prominence on international and regional agendas. However, notwithstanding the normalization of the topic, which just a decade ago was considered highly sensitive,³⁶ people (at risk of being) displaced in this context still face substantial gaps in legal protection, even as non-binding recommendations and similar mechanisms point the way forward in some areas.