Climate migration in current law-models


1. Introduction

With the rapid speed of climate change it is possible that climate migration will become a problem in the near future. Climate migration is already there, floods cause people to leave their homes. For example Majuli — one of the largest river islands in the Bramaputra river in India — disappears with each and every monsoon.[1] The Bramaputra river takes large bites out of Majuli, during the monsoon homes are being destroyed.

The Bramaputra river taking bites out of Majuli

There is a documentary which is fun to watch but it hits you as well. This one man tries to stop the destruction of Majuli by planting a forest the size of Central park, New York.[2] Due to climate change the monsoons get heavier and the rivers get higher and higher forcing the people to migrate. If we keep emitting this much co2 beloved islands as the Maledives and Palau could disappear. The former president of the Maledives said in 2013[3]: “If carbon emissions continue at the rate they are climbing today, my country will be underwater in seven years.”

Are the current law-models enough to help reduce climate change (climate migration)? The models I will use are primarily the European law models. Is there climate migration law needed or is it fine as is? Is your right to life or right to family- and private life infringed, if you die respectively have to migrate because of climate change, when your home state does not mitigate against or adapt with climate change? Is it possible states could be held liable for actions they do not take? By addressing certain agreements or common norms I will explain the possibility of article 2 ans 8 European Convention of Human Rights (ECHR) infringement, state liability and torts against the state. I will take The Netherlands as an example to explain these questions with a hypothetic situation that The Netherlands is flooded. Further, I will address issues as mitigating and adapting in climate change. After all this comes the conclusion.


2. Why is this a transnational issue?

According to four criteria I will discuss whether this is a transnational problem or not. The four criteria are as follows:

- Does it involve different jurisdictions?

- Are there private actors and public actors?

- Multiple sub-disciplines of law are applicable

- Interdisciplinary perspective

Climate change itself involves in different jurisdictions. Climate change is not bound by boarders or rules. Climate migration due to climate change can lead to emergency situations where large groups of humans and animals have to migrate (to perhaps a foreign country). For instance, due to a flood. This could occur anywhere; different jurisdictions would have to cope with a huge migration of humans and animals. Because it is hard to discuss rights of animals I will leave this out of the picture and focus on the human rights section. To cope with large scaled migration different jurisdictions have to work together. So, different jurisdictions are involved.

With the act of changing the climate for the benefit of a country there are public actors as well as private actors involved. The government by itself cannot reach the goals of agreements such as the Paris agreement (moreover in the following chapters). They need the huge influence of companies who emit the most Co2. So, there is a collaboration needed with public- and private actors. In the situation of doing something about climate change public- and private actors are almost intertwined. They together to prevent the climate migration.

There are multiple sub-disciplines touched when it comes to climate migration due to climate change. Civil law could be a thing when companies have a contract with the state, to not emit Co2 or to emit a certain amount of Co2, and they do not keep their promises. Tort law against the state can be applicable as well (more on this in chapter 5) The human rights of the European Convention on Human Rights could play a part when a country does not do anything about climate change (more on this in chapter 3). Furthermore, a state can probably be held liable for its actions (more on this in chapter 4).

On many perspectives climate migration due to climate change is a problem. Socially climate migration does its impact on the family life scale also friend could be lost due to migration. People who have to migrate could end up in a different culture. This could be a culture they do not like or are really not used to. Cultures will clash and that is a problem. Political opinions can stall a progress in climate change, thus political perspectives are a transnational problem. Because certain choices could affect the whole world.


3. Right to life and right to family- and private life

The right to life (article 2 ECHR) and the right to family- and private life (article 8 ECHR) are written in the European Convention on Human Rights. The articles guarantee those rights; a state cannot infringe these human rights. Although paragraph 2 of both articles say that the rights can be limited by the government when they meet the criteria. The criteria will be lied down in this chapter. I will put the articles to the test and see if a right to life and/or right to family- and private life is infringed.

When it comes to testing the right to life and the right to family- and private life you have to look at both the positive obligation and the negative obligation of the state. This is what a state must do respectively must not do. They both come with different tests such as the fair balance test for the positive obligation and the two fase test for the negative obligation.

Watersnoodsramp 1953

The member state has the obligation to prevent climate disasters as floods or draughts. This is the positive obligation. For the Netherland floods are the most obvious. 60 percent of the country lies below the sea level, therefore more than half of the Netherlands will have to be evacuated when the dikes brake because the sea level is rising. Parts of The Netherlands already have been flooded during the Watersnoodramp in 1953. This is the MUST DO for the Netherlands to prevent infringement of citizens’ rights. The fair balance test is just a balance between interests, the interests by the state and the interests by the citizens.

The states could have an economic interest in not doing anything against the climate change. It will be very expansive to strengthen dikes and to take other measurements. The Netherlands also makes a profit of taxes and they profit from trade. The citizens in the 60 percent region would have the fear to die or migrate and get separated from their family and friends. If you look at previous jurisprudence such as the Hatton-case[4] an economic defence by the state in a fair balance test is almost impenetrable. The interests by the citizens are mostly subjective and cannot be proven. Therefore, I think the state can infringe the articles 2 and 8 ECHR. There is no difference in mitigating or adapting here. Mostly the fair balance is more in favour for the member state. Luckily there is a negative obligation with a far more complex test.

The member state has the obligation to stop acting in contradiction with the articles 2 and 8 ECHR by not aggravating or ignoring climate change. This is a negative obligation. Aggravation can be many things such as opening a new power plant driven by coal or increasing the speed limit from 120 km/h to 130 km/h.[5] There is also digging for gas in Groningen, deforestation in The Netherlands as a whole, increasing the size of the Port of Rotterdam and Schiphol Amsterdam or by increasing frequency and so on. These are all MUST NOT DO’s for The Netherlands to retain the citizens’ rights. The two fase test has two fases one is the scope and the second is the limitation, both have criteria to follow through.

The expression must be under the scope of the articles 2 section 1 and 8 section 1 ECHR. The expression by the citizen is living respectively living in their own society not bound by rules of the state in private or with family. These expressions are under the scope of the articles 2 section 1 and 8 section 1 ECHR.

The limitations — not doing anything against or to adapt climate change — must be in accordance to law, necessary and proportionate for one or more legitimate aims. The Sunday times case[6] says that the law has to be accessible and foreseeable. There is no law that states The Netherlands must not do something about climate change. If you look at the Paris agreement as law and article 21 of the Dutch convention the contrary is true. The Paris agreement states that we must reduce our carbon emission. Article 21 of the Dutch convention says the state has an obligation to make the state habitable for everyone. This is a so-called doctrine of trust (moreover this in the next chapter). So, this is where the two fase test ends in favour of the citizens. Even if The Netherlands makes law for such a movement, the legitimate aim for doing so will fail. I cannot see that The Netherlands can formulate a legitimate aim to not do anything about climate change and endangering citizens’ right to life and right to family- and private life. The Netherlands fails on every level of the two fase test.

The Handyside case[7] says the European Court of Human Rights (ECHR) is subsidiary to a member state. The margin of appreciation of a member state can overrule a failed two fase test. There are some factors that indicate a large or small margin of appreciation, such as: 1) better placed argument: a member state knows best what to do (which gives a larger margin), 2) European consensus (which gives a smaller margin) and 3) the nature of the case. In Europe there is a large consensus on climate change. States must change their habits to reduce carbon emission by 20–40 percent. This gives The Netherlands a small margin of appreciation and therefore the state must listen to the ECHR.

If a state is doing nothing on climate change and the two fase test fails miserably for the state should they be held liable? My opinion is yes. If a state doesn’t take action in climate change, they should be forced. They should be forced because it has such an important impact. In the next chapter I will explain if it is even possible.


4. State liability

The Francovich case[8] shows us that a state can be liable for their actions under three criteria. The state must have acknowledged the right, there has to be causality between the action (or non-action) and the damage and there has to be a sufficiently serious breach. By accepting the EHRC The Netherlands acknowledged the articles 2 and 8 ECHR as rights. not doing anything about climate change gives us a non-action with the consequence that, in a hypothetic situation, citizens might have to migrate because of floods. Floods caused by non-climate change can be seen as the cause for damages.

The Brasserie du Pecheur case[9] gives us some viewpoints to determine a sufficiently serious breach. Some of the viewpoints are: how intentional was the breach, what where the consequences, Could the state have known the consequences and what was the scope of their discretion. If floods would appear due to the lack of reducing the carbon emission The Netherlands was very intentional causing the situation because they already knew the importance of climate change. Things as the Urgenda case and the Paris agreement should be enough to see the importance. In this situation, they knew the consequences and had no excuse not to. They could choose if they would do anything about the floods but they didn’t. Their discretion should be high.

*Dark blue is land under sea level and light blue is land just above sealevel

If the situation of floods due to climate change without The Netherlands action would appear the state can be held liable for their non-action. It is really worrisome a not acting state can possibly ruin many lives. Urgenda (a climate organisation) knows this and tries to hold The Netherlands liable not doing anything in relation with the doctrine of trust. Urgenda cleverly used tort law in combination with article 21 of the Dutch convention to successfully hold The Netherlands liable. In the next chapter I will explain the Urgenda case some more and I will try to apply tort law to my hypothetic situation.


5. Tort law

Maybe a liability could be formulated in the form of a tort. Every jurisdiction has slightly different criteria to create a tort law case. This is why I only use the most common criteria to try and build a court case. There are four most common criteria to create a tort law case. The four criteria are as follows:

- An unlawful act (tort)

- Damage

- Responsibility

- Causation

The Urgenda case used as I said tort law in combination with article 21 of the Dutch convention. They used article 21 of the Dutch convention to formulate a tort. The Netherlands agreed to a reduction of carbon emission by 20–40 percent with Europe. The Netherlands was under the minimum required reduction. Urgenda used this to their advantage with the doctrine of trust. A tort was created! The doctrine of trust implied that The Netherlands has to make the country habitable for everyone. Not doing anything about climate change was an unlawful act.

In my flood-situation this argument could also be used to formulate an unlawful act. The damages would be future damages such as migrating, direct damages such as a destroyed house and immaterial damage such as trauma’s. The Netherlands is responsible for the unlawful act because they were not acting when they had to. The Netherlands can say that they are not responsible because it is mostly the private actors who emit. But this won’t work because public actors must act upon the private actors. Last but not least there has to be causality in the form of condition sine qua non. Would a flood happen if they did something about climate change? In the form of mitigation, it is really hard to argument against The Netherlands because they are not the only one who are supposed to stop emission. If they would stop emission completely and the rest of the world will not there could still be floods causing damage. In the form of adapting it is a bit easier. They could have built mechanisms — through geoengineering — to adapt and prevent things as floods. So, there is a little grey area when it comes to causation which makes it hard to choose a side. But I think I lean towards the citizens.


6. Conclusion

For the citizens, the current law-models look like enough to prevent or enforce climate change. For the state, it looks like they need really good arguments or laws to justify their non-actions. It is really disturbing organisations such as Urgenda have to step up against The Netherlands to enforce them doing anything about climate change. The Netherlands knows their position just like any other country. 60 percent of The Netherlands could be flooded and they only look at the money they could make. It is a horrible sight to see The Netherlands appealing against the case of Urgenda instead of doing something about the climate change which can save lives. The appeal can only save ego. Even if this case was unjust or unfavourable for The Netherlands they should just cope with it and come to action.

I was shocked how much could be done against a state when it comes to current law-models. My thoughts were that there needs to be more treaties or national law to enforce climate change. But it not so hard to argument against The Netherlands to prevent or enforce climate change. I hope there will be more Urgenda’s out there who fight against climate change.

[1] https://www.theguardian.com/travel/2015/feb/14/majuli-island-holiday-assam-india

[2] http://video.nationalgeographic.com/video/short-film-showcase/india-man-plants-forest-bigger-than-central-park-to-save-his-island

[3] http://geographyclass101.blogspot.nl/2013/04/impacts-on-maldives-due-to-sea-level.html

[4] ECHR the 8th of July 2003, 36022/97 (Hatton)

[5] http://www.urgenda.nl/themas/klimaat-en-energie/klimaatzaak/

[6] ECHR the 26th of April 1979, 6538/74 (Sunday times)

[7] ECHR the 7th of December 1976, 5493/72 (Handyside)

[8] CJEU the 19th of November 1991, C-6/90, C-9/90 (Francovich)

[9] CJEU the 4th of March 1996, C-46/93, CC-48/93 (Brasserie du Pecheur)