Partout où quelque chose remue sur cette longue traînée de poussière, rendue plus subtile encore après six mois de sécheresse, on voit s’élever des nuages, et quand le moindre vent passe sur la campagne, la tête alourdie des vieux arbres semble se dissoudre en fumée.
Eugene FromentinFootnote 1Introduction
This article examines legal aspects of climate-induced forced displacement in the Sahel region of North Africa. As is observed below, such displacement has been ongoing for a number of years but continues to increase to alarming levels. The forcibly displaced can be divided into two categories: firstly, those who by virtue of seeking refuge in another State may have a claim to refugee status under international law, sometimes referred to as cross-border migrants;Footnote 2 and secondly, those who are uprooted from their homes but remain within the borders of their own disaster-affected country and are therefore classified as internally displaced persons (IDPs).Footnote 3 The conventional stance is that refugee status does not encompass individuals displaced because of natural disasters or environmental catastrophes whatever the cause, be they sudden-onset events, such as volcanic eruptions or flooding, which may pose an immediate threat to life; or slow-onset events, such as desertification or rising sea levels, which may eventually make life untenable.Footnote 4 Consequently, “cross-border displacement stemming from natural disasters and the effects of climate change has … been identified as a normative gap in the international legal protection regime”.Footnote 5 This article argues first that the position in international law may not be as clear-cut as the traditional view supposes in light of regional regimes, and explores recent trends towards the legal recognition of the rights of people displaced because of climate change. It then examines the response to climate-induced displaced persons, particularly in terms of domestic legislation, of five Sahel States that form the focus of the article: Burkina Faso, Mali, Niger, Chad and Mauritania.
The Sahel is a semi-arid region of sub-Saharan Africa that experiences a hot, sunny and dry climate all year round. It is bordered by the Sahara Desert to the north and savannahs to the south, and stretches from Sudan in the east to Senegal in the west, taking in all or parts of Chad, Niger, Burkina Faso, Mauritania and Mali.Footnote 6 In recent decades the Sahel has experienced drought, desertification and soil loss,Footnote 7 which the United Nations (UN), in partnership with African countries, is attempting to reverse.Footnote 8 Such slow-onset environmental degradation, which may be attributable partially to local human activity but is also attributable to global climate change,Footnote 9 has given rise to food insecurity.Footnote 10 It has additionally contributed to increased communal violence and armed conflict situations, possibly involving organized armed groups,Footnote 11 leading to the forced displacement of hundreds of thousands of people across the region.Footnote 12 The Office of the UN High Commissioner for Refugees (UNHCR), the UN refugee agency, recognizes the threat posed by climate change to the displaced. In its Global Compact for Refugees, the UNHCR acknowledges that “climate, environmental degradation and natural disasters increasingly interact with the drivers of refugee movements”.Footnote 13
The Sahel assumed a higher priority for the UNHCR in 2020. On 23 July 2020, the African Development Bank (AfDB), UNHCR and the G5 Sahel (Burkina Faso, Chad, Mali, Mauritania and Niger)Footnote 14 signed an agreement to allocate $20 million to the COVID-19 response across the Sahel region.Footnote 15 The UNHCR has provided emergency shelter to over 81,000 displaced people and amid COVID-19, its work has helped over 338,000 people to receive essential health-care services in the Central Sahel.Footnote 16 Additionally, with schools closed, 12,000 displaced and host community children have continued their education through distance learning.Footnote 17 At the end of March 2021 the total population of concern for the UNHCR amounted to 3,861,555 individuals, including refugees, asylum-seekers, refugee returnees, IDPs and IDP returnees, in five countries of the Sahel, which are analyzed in this article: Burkina Faso, Mali, Niger, Chad and Mauritania. Excluding returnees, the forcibly displaced numbered 877,773 asylum-seekers and refugees and 2,170,655 IDPs.Footnote 18
The definition of refugee according to the 1951 Refugee Convention
The first issue addressed in this article is whether the cross-border climate-induced displaced persons in the Sahel are entitled to refugee status under international law. The established definition of a refugee in international law is found in the 1951 Convention relating to the Status of Refugees (Refugee Convention). As is well known, this instrument defines a refugee as someone who, inter alia, leaves or is unable to return to his or her country of nationality as a result of a “well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion”.Footnote 19 There are therefore three essential elements to satisfying the test for refugee status: first, an individual, well-founded fear of persecution;Footnote 20 secondly, being outside of one's country of origin or habitual residence; and thirdly, an inability or unwillingness to rely on the protection of that country or to return there due to a fear of persecution.Footnote 21 While the established definition has been subject to judicial interpretation over the years so that, for instance, gender-related violence,Footnote 22 including female genital mutilationFootnote 23 and forced sterilization,Footnote 24 and sexual orientationFootnote 25 have become accepted as falling within the Refugee Convention's grounds for recognizing refugee status, it would ordinarily strain the text beyond breaking point to read into it that natural or environmental disasters in and of themselves, including climate change as a subcategory, are one such ground, even if one invokes the doctrine of evolutive interpretation.Footnote 26 The fact that a conscious decision was seemingly taken to exclude peoples fleeing natural disasters would render such a reading extremely unlikely.Footnote 27 However, the UNHCR is of the view that climate-induced displaced persons do not qualify as refugees “unless they also have well-founded fear of persecution for one of the reasons stated”.Footnote 28 A causal link must therefore be established between the environmental disaster and the persecution,Footnote 29 described by the UNHCR as “nexus dynamics”.Footnote 30 A possible scenario might be flooding caused by the deliberate destruction of dykes or a dam;Footnote 31 another would be discrimination against as a member of a social group in the distribution of disaster relief.Footnote 32 Nevertheless, unlikely as it may seem, it has been suggested that nature could be viewed as the “persecutor”,Footnote 33 but logically, persecution, and/or the fear of it, such as fear for one's life, must be generated by human agency and by definition cannot be carried out by random and inanimate acts of nature, however calamitous.Footnote 34 The view has therefore been expressed that,
implicitly, the [Refugee] Convention … excludes those who are displaced across a state border due to drought, flood or loss of income induced by deforestation. People fleeing such environmental changes would not qualify for refugee status even under liberal interpretations of prevailing legal norms.Footnote 35
This strict interpretation has been upheld by national courts.Footnote 36 A decision of the New Zealand Court of Appeal (NZCA), rejecting the submission that a climate-induced displaced person could qualify for refugee status, is apposite.Footnote 37 The case concerned Mr Teitiota and his wife from the Pacific Island State of Kiribati, who were in New Zealand unlawfully and whose application for refugee status and protected person status on the grounds that climate change would make living in Kiribati untenable had been turned down by the New Zealand Immigration and Protection Tribunal (NZIPT).Footnote 38 The NZIPT held that Teitiota was not a victim of “forced” displacement but had moved voluntarily, and that persecution required human agency under both international law and the relevant New Zealand legislation.Footnote 39 With specific reference to natural disasters and environmental degradation, while such events could entail serious human rights issues, the criteria in the Refugee Convention had to be met, which in the New Zealand context meant establishing egregious violations of core human rights with a sufficient link to a Refugee Convention ground.Footnote 40 Teitiota appealed the decision, arguing, inter alia, that environmental degradation in the form of coastal erosion and sea-level rise meant that there was no future for him and his family in Kiribati.
An appeal against the NZIPT's decision that the factual circumstances meant that Teitiota did not qualify for refugee status under the Refugee Convention eventually reached the NZCA. It was submitted on behalf of Teitiota that the “word ‘refugee’ constitutes and incorporates those who are refugees by way of climate change and its effects”.Footnote 41 The NZCA held that the domestic legislation, which incorporated both the definition of refugee under the Refugee Convention and that of protected person under the International Covenant on Civil and Political Rights (ICCPR), had been correctly interpreted to exclude such persons, and that the categories of refugee and protected person required persecution by a “human agency”.Footnote 42 It has therefore been remarked that
the use of the term refugee in Mr Teitiota's circumstances [was] conceptually inaccurate and ‘misconceived’, in that the factual circumstances provided no evidence to support the legal interpretation and ‘bring him within the Convention’. On considering the definition, it was not difficult for the courts to conclude that Mr Teitiota did not satisfy the definition of a ‘refugee’ for the purposes of the Convention.Footnote 43
It is difficult to disagree with this assessment, and neither did an examination of the facts give rise to fears over Mr Teitiota's human rights if he was returned to Kiribati.Footnote 44 The NZCA was not unsympathetic to the plight of climate-induced displaced persons, but it observed that ultimately, “climate change and its effect on countries like Kiribati is not appropriately addressed under the Refugee Convention”.Footnote 45 Whilst the Supreme Court of New Zealand upheld the decisions of the lower courts denying leave to appeal, it agreed with them that it could not be definitively ruled out that climate change or environmental disasters “could never create a pathway into the Refugee Convention”.Footnote 46 The UNHCR has welcomed the fact that the door has been opened to the possibility of relying on the Refugee Convention in such circumstances but has warned against a narrow interpretation of the effects of climate change to the exclusion of other considerations, since the authorities could find the Refugee Convention inapplicable.Footnote 47
International law, in the guise of the Refugee Convention as traditionally understood, may therefore be of limited relevance to persons who are forcibly displaced because of natural disasters. An argument made on human rights grounds may, however, stand a chance of success, and this will be considered below. In light of the somewhat narrow interpretation of the concept of a refugee under the Refugee Convention, States have acted at the regional level to broaden the definition of refugee, particularly in Africa and the Middle East.
The OAU Convention on Refugees
Particularly significant in this context was the adoption by the Organization of African Unity (OAU, now African Union) of the 1969 Convention on Refugees in Africa (OAU Convention).Footnote 48 The OAU Convention is vitally important to the five Sahel States mentioned above, which are parties to it. The OAU was of the view that the existing international law, as enshrined in the 1951 Refugee Convention, did not adequately reflect the singular difficulties facing Africa as a result of decolonization, such as wars of national liberation and minority rule, which had given rise to mass exoduses and the displacement of whole populations, in addition to the persecution of particular individuals involved in the liberation struggle.Footnote 49 However, the OAU Convention complements, rather than replaces, the Refugee Convention in Africa.Footnote 50
For present purposes, the OAU Convention's main innovation is that it broadens the concept of the refugee.Footnote 51 Article 1(2) of the OAU Convention extends the definition of refugee to include persons fleeing “external aggression, occupation, foreign domination or events seriously disturbing public order in either part or the whole of [their] country of origin or nationality”.Footnote 52 This definition was designed to cover flight brought about by the liberation struggle, and placed emphasis on an objective test of fear of persecution.Footnote 53 Furthermore, it has been argued that the OAU definition does not require “calculated”, directed intent but can also apply to “accidental situations”.Footnote 54 This broader and more liberal regime was motivated, as stated in the preamble to the OAU Convention, by “the need for an essentially humanitarian approach towards solving the problems of refugees”.Footnote 55 However, this wider definition is not without its critics, who consider that it contains elements of “vagueness and ambiguity”.Footnote 56 There has been considerable debate as to whether or not population displacement because of natural disasters was initially envisaged as coming within the protective scope of the definition,Footnote 57 and there is persuasive support for the stance that it appears to have been limited to human-made disasters.Footnote 58 Could it nevertheless be said that this understanding has evolved subsequently so that it has become accepted that climate-induced displaced persons would qualify as refugees for the purposes of the OAU Convention?Footnote 59 The key phrase is “events seriously disturbing public order”. It is argued that “public order” refers to disorder caused by social and political unrest, breaches of the peace, riots, violent demonstrations etc., rather than natural calamities,Footnote 60 but there does not seem to be any insuperable reason why this phrase should not be capable of being interpreted to include those fleeing public disorder because of natural catastrophes.Footnote 61 The UNHCR has emphasized that a vital element is the effect of the disorder rather than the cause, be it human-made or natural.Footnote 62 Yet, crucially, there appears to have been little support for this approach in Africa itself.Footnote 63 The African Charter on the Rights and Welfare of the Child contains an explicit reference to “natural disasters”, albeit limited to internally displaced children.Footnote 64 Whether this development may cause a rethinking of the above narrative, in that the interpretation of the relevant treaties, as living instruments, may have evolved since to encompass those affected by natural disasters, remains an open question. There is evidence to suggest that a reversal in the legal attitude is under way.Footnote 65
The UNHCR has drawn attention to another issue concerning Article 1(2) of the OAU Convention. The provision in question requires a person to have been “compelled” to leave their place of habitual residence. According to the UNHCR, a high threshold must be met: climate change or a disaster must have an effect or impact on the person's place of habitual residence and compel or force the person to leave their country – i.e., it must have put the person at risk of serious harm. Whether the effects of climate change or disasters are severe enough to compel a person to leave and seek protection in another country – namely, whether a risk of serious harm is established – depends on how the disaster unfolds and develops; the geographical proximity of the disaster to the person's place of habitual residence; how it affects their life, physical integrity, liberty and enjoyment of other human rights; and how the State responds.Footnote 66 As such, while a disaster may by definition seriously disrupt public order, it will only warrant refugee status when the State, including with international assistance, is unable or unwilling to address its impacts on the State and its societal order and population.
Recent African Union (AU) treaties deserve mention in this context. The Protocol on Older Persons seeks to ensure that older persons in situations of, inter alia, natural disaster are a prioritized group for assistance.Footnote 67 The Protocol on Persons with Disabilities in Africa contains a similar provision, obliging States Parties to take measures to protect persons with disabilities in situations of, inter alia, forced displacement, humanitarian emergency and natural disaster.Footnote 68 In the absence of any specifics, the rights in both treaties must be presumed to apply in all cases of displacement. According to the Protocol on Free Movement of Persons, States Parties may establish specific procedures for the movement of specific vulnerable groups, including refugees and, impliedly, IDPs, in addition to the measures provided for by international, regional and subregional instruments, which must, however, be compatible with obligations assumed under such instruments relating to their protection.Footnote 69 It has been suggested that the Protocol could become a substitute for refugee protection among States Parties, particularly through the abolition of visa requirements, but doubt has been cast on the viability of this viewpoint.Footnote 70 In this regard, the Protocol appears to add little to the current state of affairs since States are free, subject to their international obligations, to determine rights of entry for refugees and other displaced persons.
The Arab Convention on Refugees
The Arab Convention on Regulating Status of Refugees in the Arab Countries (Arab Convention on Refugees) adopted by the League of Arab States also expands the definition of refugee.Footnote 71 Unlike the ambiguity surrounding the relevance of the OAU definition discussed above, the Arab Convention on Refugees defines a refugee as any person “who unwillingly takes refuge in a country other than his own … because of the occurrence of natural disasters or grave events resulting in major disruption of public order”.Footnote 72 Natural disasters are explicitly recognized as a ground for determining refugee status. Because the phrase “natural disasters” is not defined, it can reasonably be argued that persons forcibly displaced because of natural disasters come within the scope of this provision. It should also be observed that in order to qualify for refugee status a person must have moved “unwillingly”, comparable to the element of compulsion in the OAU definition.
The Kampala Convention
Persons who, because of forced or involuntary movement, find themselves in a refugee-like situation but do not qualify for refugee status under international law because they remain within national frontiers – namely, IDPs – have long existed in a legal limbo.Footnote 73 As has been previously stated, the Refugee Convention does not apply to IDPs. According to the UNHCR, there were over 16.5 million IDPs in Africa by mid-2018, and the Sahel is a problem area.Footnote 74 The OAU had taken steps to deal with the plight of IDPs;Footnote 75 according to the African Charter on the Rights and Welfare of the Child,Footnote 76 children displaced by, inter alia, natural disasters are entitled to protection and humanitarian assistance. But the ground-breaking development was the adoption by the AU in 2009 of the Convention for the Protection and Assistance of Internally Displaced Persons in Africa (Kampala Convention).Footnote 77 The basic premise of this instrument seems to be that all persons have a right to be protected against arbitrary displacement.Footnote 78 The Kampala Convention reiterates the basic principle that the primary (though not exclusive) duty and responsibility for providing protection and humanitarian assistance to IDPs within their territory or jurisdiction rests with States.Footnote 79 This extends to taking measures to protect and assist IDPs.Footnote 80
The Kampala Convention defines IDPs as
persons or groups of persons who have been forced or obliged to flee or to leave their homes or places of habitual residence, in particular as a result of or in order to avoid the effects of armed conflict, situations of generalized violence, violations of human rights or natural or human-made disasters, and who have not crossed an internationally recognized State border.Footnote 81
The broad scope of the definition adopted by the Kampala Convention is notable; it expressly refers to circumstances such as natural disasters. Internal displacement is defined as “the involuntary or forced movement, evacuation or relocation of persons or groups of persons within internationally recognized state borders”.Footnote 82 Clearly, and following from the previous paragraph, forced displacement because of natural disasters comes within the scope of this definition, and this is also apparent from other treaty provisions. The Kampala Convention protects against arbitrary displacement, which includes forced evacuations caused by natural disasters where the evacuations are not necessitated by health and safety reasons.Footnote 83
The Protocol on the Protection and Assistance to Internally Displaced Persons
The Kampala Convention was not the first treaty to address the plight of IDPs, however. That distinction goes to the sub-regional Protocol on the Protection and Assistance to Internally Displaced Persons (Great Lakes Protocol) adopted in 2006 by the International Conference on the Great Lakes Region (ICGLR).Footnote 84 In broad terms, the Great Lakes Protocol places a stress on “the protection function of member states, who bear the primary responsibility” for IDPs.Footnote 85 Arguably, the primary objective of the Great Lakes Protocol is the incorporation of the Guiding Principles on Internal Displacement into national law.Footnote 86 What is important for present purposes is that it explicitly applies to environmentally displaced persons. Article 1(4) defines internally displaced persons as, inter alia, those who have had to flee because of natural disasters. Furthermore, States Parties are required, where possible, to “mitigate the consequences of displacement caused by natural disasters and natural causes”.Footnote 87
A human rights approach?
Human rights may offer a gainful route to the protection of persons forcibly displaced because of natural disasters.Footnote 88 In this context, it is important to note that the African Charter on Human and Peoples’ Rights (African Charter) applies to displaced persons.Footnote 89 The argument that a nexus exists between the protection of the environment and the realization of human rights is increasingly gaining traction.Footnote 90 Additionally, the UNHCR has recognized that human rights violations can amount to persecution.Footnote 91 Human rights that may be at stake include a number of first- and second-generation rights, such as the right to life, the right to water, the right to food and the right to health.Footnote 92 It is now clearly established in human rights law that States have assumed both positive and negative obligations in this regard and that consequently, environmental hazards that have adverse effects on human beings and are caused, directly or indirectly, by State action or inaction may lead to a breach of the State's human rights obligations.Footnote 93 The European Court of Human Rights (ECtHR) pioneered this concept through the employment of the doctrine of implied rights,Footnote 94 and recent developments have continued this approach of securing environmental protection via the interpretation of other rights, with particular emphasis being placed on the right to life.Footnote 95 However, it should be observed that in the context of natural hazards “beyond human control”, the ECtHR grants States a considerable margin of appreciation.Footnote 96 A decision of the UN Human Rights Committee is especially significant in this regard. In Teitiota v. New Zealand, the applicant, having had his claim for asylum as a refugee or protected person rejected by the New Zealand authorities (as detailed above) and having exhausted all domestic remedies, complained that by removing him to Kiribati, New Zealand had violated his right to life under Article 6 of the ICCPR.Footnote 97 The Human Rights Committee made the point that environmental degradation and climate change “constitute some of the most pressing and serious threats” to the right to life.Footnote 98 While the threat to Kiribati was a slow-onset one, the Committee accepted that the situation there could become incompatible with the right to life.Footnote 99 It determined that in protecting the right to life, States had to take account of “reasonably foreseeable threats and life-threatening situations”.Footnote 100 While the Committee concluded that on the facts New Zealand had not violated the applicant's right to life in that there was no prospect of imminent harm, this decision is nevertheless important because of its reasoning on the impact of climate change.
It is significant that the right to a healthy environment is recognized as an autonomous right in regional human rights treaties.Footnote 101 The jurisprudence of the Inter-American Court of Human Rights (IACHR) is particularly relevant, especially a recent opinion which has affirmed the right to a healthy environment as “fundamental for the existence of humanity”.Footnote 102 Climate change was also explicitly mentioned in the opinion, asserting that the right to a healthy environment is both an individual and collective right that includes current and future generations.Footnote 103 In addition, the IACHR observed that one of the rights at risk from environmental change is the right not to be forcibly displaced.Footnote 104
Having examined the status, and certain rights accruing thereby, of people displaced as a result of climate change in international law, this article now focuses on the response to the climate crisis in the Sahel – firstly, by the international community, and secondly, in terms of domestic legislation by the five Sahel States.
International responses to climate-induced displacement
For many years, the UN has been expressing concern that climate change could lead to increased displacement and migration in the Sahel region.Footnote 105 In January 2021, the AfDB pledged to mobilize up to $6.5 billion over five years to advance the Sahel's landmark initiative, the Great Green Wall Initiative (GGWI), launched by the AU in 2007.Footnote 106 Once that goal is reached, the GGWI should assist in providing a solution to many threats faced not only by Africa but also by the entire world, such as climate change, drought, famine, conflict and migration. The GGWI creates a barrier against climate change running across the Sahel region. To date,Footnote 107 notable successes have been achieved, including the restoration of 5 million hectares of land in Niger that will deliver an additional 500,000 tonnes of grain per year, enough to feed 2.5 million people.Footnote 108 This will help to alleviate the damage caused by the floods of October 2019 around the Komadugu Yobé River; these caused the displacement of some 23,000 persons, who lost hectares of their soil.Footnote 109 Another success of the GGWI has been the 3 million hectares of land that have been rehabilitated in Burkina Faso through a farming technique known as Zai, in which pits are dug in the soil during the preseason to catch water and concentrate compost.Footnote 110
In October 2020, the UNHCR warned of disastrous consequences in the Sahel region, in what was declared the world's fastest-growing displacement and protection crisis.Footnote 111 Commitments expected to be made at a Ministerial Roundtable for the Central Sahel on 20 October in Copenhagen restored a sense of urgency to a region facing a number of challenges. The Roundtable adopted both financial announcements and non-financial commitments. In the first case, twenty-two States, plus the European Union (EU) and Education Cannot Wait, the first global fund dedicated to education in emergencies and protracted crises,Footnote 112 pledged to allocate $725.4 million to help the Sahel for 2021 and beyond.Footnote 113
Additionally, eight European States (Denmark, France, Germany, Italy, the Netherlands, Norway, Sweden and the United Kingdom) plus the International NGO Forum in Burkina Faso (INGO Burkina Faso) adopted several non-financial commitments. Several of these commitments directly affect displacement in the region – for example, developing an efficient nexus approach for responding to displacement (Denmark, Italy, Norway, Sweden), and making displacement a priority in bilateral development cooperation with displacement-affected States in the Sahel (Denmark).
Other commitments have been undertaken, for example, to support climate-resilient access to services and infrastructure for refugees, enabling them to pursue self-reliance and contribute to local socio-economic development (Denmark), and to sustain engagement in support of durable solutions, whenever opportunities for ending displacement arise in the Sahel (Denmark, INGO Burkina Faso). Also, humanitarian access and the promotion and implementation of international humanitarian law (France, Germany, Netherlands, Norway, Sweden, United Kingdom, INGO Burkina Faso), and the protection from human rights abuses (Italy, Norway, Sweden, United Kingdom, INGO Burkina Faso) found space on the list of commitments.Footnote 114 Consequently, the co-chairs of the Roundtable, apart from highlighting that the effects of climate change, including as a driver of displacement, should be addressed as a priority, stressed that displacement should be considered a priority both in humanitarian action and in development cooperation, which should be carried out in close collaboration with government authorities and, to the greatest extent possible, within the framework of national development strategies, as called for in the Global Compact on Refugees (GCR).Footnote 115
In its own words, the GCR is a “framework for more predictable and equitable responsibility-sharing, recognizing that a sustainable solution to refugee situations cannot be achieved without international cooperation”. The GCR may aid refugee protection in Africa because its four objectives address the three principal protection challenges prevailing on the continent. The objectives of the GCR are to ease pressures on host countries, enhance refugee self-reliance, expand access to third-country solutions, and support conditions in countries of origin for return in safety and dignity. The GCR seeks to achieve these objectives through the mobilization of political will and arrangements facilitating more equitable and sustained contributions among States and other relevant stakeholders.Footnote 116
First among the three principal protection challenges in Africa is the scale of the refugee problem, coupled with limited resources. In this context, the GCR's first objective of easing pressures on host countries and its third objective of expanding third-country solutions are critical. Second, refugees in Africa frequently find some of their most important rights systemically violated. The GCR's second objective, regarding enhanced refugee self-reliance, speaks to rights including education and employment. Thirdly, refugee situations in Africa are often protracted. The GCR's fourth objective of supporting conditions for return in safety and dignity can help address this challenge.Footnote 117 The GCR builds on the sentiments expressed in the 1969 OAU Convention of harm, fear, and international and intergovernmental assistance to facilitate returns, by incorporating “humanitarian, peacebuilding, and development interventions”.Footnote 118 This formula is reflective of the 2030 Agenda for Sustainable Development GoalsFootnote 119 and, together with mechanisms for livelihood and economic opportunities, facilitates dignified repatriation.Footnote 120
African States have demonstrated their commitment to addressing refugee and migration-related problems in Africa in many international and regional fora. This includes participating in the development and drafting of both the GCR and the Global Compact for Safe, Orderly and Regular Migration (GCM).Footnote 121 The GCM, in its Objective No. 2 (“Minimize the adverse drivers and structural factors that compel people to leave their country of origin”), also deals with the effects on migration of natural disasters, the adverse effects of climate change, and environmental degradation. It does so by, inter alia, seeking to integrate displacement considerations into disaster preparedness strategies and to promote cooperation with neighbouring and other relevant countries (para. j), developing mechanisms at the regional level to address the vulnerabilities of persons affected by natural catastrophes, in order for them to have access to humanitarian assistance (para. k). Finally, the GCM is also aimed at developing approaches to address the challenges of migration movements in the context of ecological disasters. It does this by taking into consideration recommendations from State-led consultative processes, such as the Agenda for the Protection of Cross-Border Displaced Persons in the Context of Disasters and Climate Change.Footnote 122 This document highlights, for example, that in several disaster situations in Africa, migration officials have exercised their authority specially to allow on their territories groups of forcibly displaced persons fleeing disasters who lack domestic legal protection, providing for at least a temporary protection addressing ecological disasters.Footnote 123 In the framework of the adoption of the GCM, the government of Niger, for example, has reaffirmed that the country has embraced a strategy to adapt to climatic changes and the degradation of soil.Footnote 124 Niger's National Plan of Adaptation of Agriculture in the Context of Climatic Change was adopted in April 2020. It highlights the will of the government of find a solution to ease the lives of populations obliged to relocate because of climatic circumstances that are unfavourable to agriculture and, as such, to the livelihoods of those populations.Footnote 125 In general terms, the goal of addressing the environmental challenges in the Sahel region, characterized by forced displacement, was taken up by the UN Economic and Social Council (ECOSOC) in 2018.Footnote 126
In light of the GCR, several African States, but only Chad belonging to the Sahel, are currently rolling out the new Comprehensive Refugee Response Framework (CRRF). The CRRF is the first of two annexes to the New York Declaration for Refugees and Migrants adopted in September 2016 at a high-level meeting of the UN General Assembly. It is a comprehensive set of commitments to be implemented in situations involving large-scale movements of refugees. It lists a number of actions and best practices in four areas: reception and admission measures (para. 5), support for immediate and ongoing needs (para. 6), support for host countries (para. 8), and enhanced opportunities for durable solutions (paras 9–16).Footnote 127 Through the New York Declaration, States commit to assisting displaced persons in countries that are experiencing natural disasters, recognizing the importance of the Agenda for the Protection of Cross-Border Displaced Persons in the Context of Disasters and Climate Change (para. 50). The UN Secretary-General has also noted that many people are compelled to leave their homes for reasons that do not fall within the refugee definition contained in the Refugee Convention.Footnote 128
How domestic legislation and policy in the Sahel tackle the plight of climate-induced displaced persons
On 3 May 2018, the Republic of Chad announced its formal implementation of the CRRF through a letter signed by the minister of territorial administration, public security and local governance.Footnote 129 The application of the CRRF aims to strengthen the pursuit of protection, assistance and solutions for refugees and other displaced populations, and for the communities that host them.Footnote 130 In the framework of the CRRF, the Chadian government also decided to implement a national law governing the status of refugees and asylum-seekers, which was adopted on 23 December 2020.Footnote 131 This law does not present any provision on climate-related displaced persons, although it is highlighted that asylum can also be “economic”, in case of unemployment and/or lack of remuneration in the country of origin.Footnote 132 However, it is true that Article 3(2) of the Chadian law, on the definition of refugee, adopts the “expanded” definition provided in Article 1(2) of the OAU Convention that gave rise to debate as to whether it also includes persons forcibly displaced because of natural disasters.Footnote 133 The Chadian government has long had a humanitarian action plan in place to ensure the safety of settlements for displaced persons and the availability of education, health care and food.Footnote 134
The Central Sahel countries of Burkina Faso, Mali and Niger are the epicentre of the forced displacement crisis. The number of IDPs inside Burkina Faso increased from 87,000 in January 2019 to more than 1 million in December 2020. Burkina Faso, among the poorest countries in the world and one of the most susceptible to climate risks, faces a major internal security crisis.Footnote 135 Despite relatively favourable rains in 2020, food insecurity and malnutrition remain at alarming levels, most worryingly in the areas affected by insecurity.Footnote 136 Worsening insecurity and natural disasters have sparked an unprecedented internal displacement crisis, affecting all thirteen regions of the country. Burkina Faso is also hosting some 19,400 refugees and asylum-seekers, most of whom are from Mali.Footnote 137 In 2009, the government of Burkina Faso adopted a National Multi-Risk Disaster Preparedness and Response Plan in which is detailed the legal framework by which people made vulnerable by ecological disasters are protected within the country.Footnote 138 This plan was updated for the period 2013–2014Footnote 139 and was imitated by similar documents issued in Chad,Footnote 140 Mali,Footnote 141 MauritaniaFootnote 142 and Niger.Footnote 143 In the Burkinabe National Plan, it is interesting to note that in the list of legal instruments by which people are protected during natural catastrophes, the Kampala Convention, which Burkina Faso ratified in July 2012, does not appear.
In contrast, the 2014 Burkinabe Law on the Prevention and Management of Catastrophes plays a key role in protecting the displaced because of environmental disasters.Footnote 144 While its Chapter 6 (Articles 50–59) deals with displacement and resettlement of people obliged to flee because of catastrophes, Chapter 7 (Articles 60–62) specifically focuses on the possible humanitarian crisis derived from the displacement. Local communities play an important part in the case of resettlement because they not only assist displaced persons but also should facilitate the integration, even if temporary, of the displaced into the socio-economic fabric of the host population (Article 57). Additionally, Article 62 calls for cooperation with bordering States in cases where the humanitarian crisis is cross-border. Article 61 makes it clear that the prevention of a humanitarian crisis is essential in order to avoid it becoming a humanitarian “catastrophe” (Article 61).The 2014 law supplements the 2008 Law on the Status of Refugees in Burkina Faso, which does not mention forced displacement because of natural disasters.Footnote 145 In the case of both natural and human-induced disasters, the National Emergency Assistance and Rehabilitation Council (Conseil National de Secours d'Urgence et de Réhabilitation, CONASUR) provides support for the survival of the population during such events, particularly in the form of food and material assistance.Footnote 146
An important reference for Burkina Faso in protecting the displaced is the report of the 2005 World Conference on Disaster Risk Reduction, held in Kobe, including its resolutions. Through this document, States and relevant stakeholders made an effort to ensure that local programmes for displaced persons do not intensify the risk of threats to the displaced.Footnote 147
In 2019, Niger adopted a new National Disaster Risk Reduction Strategy (Stratégie Nationale de Réduction des Risques de Catastrophe, SNRRC). The SNRRC recognizes that Niger is vulnerable to the effects of various hazards, including floods and droughts, and that these phenomena are the consequences of its geographical location and the changing nature of the climate. A land-use planning policy encouraging the settlement of populations in areas at risk of environmental degradation has also exacerbated the condition of displaced persons. The SNRRC lists droughts as the most frequent climate phenomenon in the country and the main cause for conflicts over natural resources such as water.Footnote 148 It should be noted that the concept of IDPs is relatively new in Niger, becoming prominent with the Boko Haram insurgency. As such, people displaced in the context of floods have not necessarily been perceived as IDPs unless they have also been displaced by conflict. These considerations had implications for the implementation of Niger's 2018 Law on the Protection and Assistance of Internally Displaced Persons, suggesting the need to raise awareness among important stakeholders concerning their obligations towards IDPs affected by natural catastrophes.Footnote 149
In December 2020, Chad adopted its new National Strategy and Action Plan for Disaster Risk Management. One of the objectives of this new strategy is to prevent the risk of new natural disasters and, as a consequence, new displacement of populations as well. In order to do that, this document seeks to encourage Chadians to adopt a culture of prevention of risks of possible new environmental calamities through the cooperation of all the stakeholders involved in such a process of prevention. The principles that guide this new cultural approach are numerous: they include the development and strengthening of the mechanisms of emergency relief and the promotion of resilient attitudes in the communities concerned, guaranteeing the right of prevention and risk reduction of natural disasters for all, because the protection of the well-being of people remains of paramount importance.Footnote 150 Interesting to note is the fact that the Chadian authorities envision local integration of the displaced (both refugees and IDPs) because their return to their place of origin seems undesirable in the short to medium term.Footnote 151
Looking at the domestic legislation on refugees of the remaining three countries under scrutiny,Footnote 152 in Mauritania, State Decree No. 22 of 2005 clarifies in its first part the conditions for acquisition and loss of the status of refugee. It creates a National (Consultative) Commission for Refugees that can recommend decisions on recognition of refugee status to the minister of the interior based on positive individual assessments by the UNHCR (Article 5). In the second part, the Mauritanian law enunciates the rights and obligations of refugees, tapping into the provisions of the OAU Convention (ratified by Mauritania in 1972) and the Refugee Convention and its New York Protocol (both ratified by Mauritania in 1987).Footnote 153 No mention is made to forced displacement due to environmental catastrophes; similarly, the National Strategy on Migration, implemented in October 2010, lacks any specific reference to such a situation.Footnote 154
The Malian legislation on refugees, dating back to 1998, does not contain any provision on forced displacement because of ecological disasters, having a similar structure to the Mauritanian legislation.Footnote 155 Contrary to what happened in Mauritania, the Malian Refugee Law did not create any National Commission on Refugees; that was, however, created by a specific, later decree.Footnote 156 While Mali ratified the OAU Convention in 1981, the Refugee Convention had already been ratified in 1973 and its New York Protocol on the same date. In the context of the constitutionalism of the Sahel, specificity is given by Article 16 of the Malian Constitution, which provides the duty of all citizens to offer support in the event of a natural disaster.Footnote 157
Niger's National Law on the Status of Refugees follows the examples of the other two countries in terms of absence of any provision providing for forced displacement because of natural disasters. It is the oldest law among the three countries, having been promulgated in 1997.Footnote 158 Niger also adopted the principal international legal instruments on refugees a long time ago, having ratified the OAU Convention in 1971, the Refugee Convention in 1961, and the latter's New York Protocol in 1970.
The principal refugee protection legal instruments of the five countries under discussion do not seem fit to address the concerns raised by the mounting problems of climate-induced displacement. That is why the present authors urge a revision of these documents (through the creation of new instruments or amendments to the existing ones) to incorporate the circumstance of displacement due to natural catastrophes – a situation that evidently was not taken into consideration by the drafters of the refugee law instruments currently in force.
Efficacy of subregional legislation and policy in the Sahel in tackling the plight of climate-induced displaced persons
At a subregional level, the five States are parties to the Community of Sahel–Saharan States (CEN-SAD), whose Treaty Establishing CEN-SAD, in its Article 1, considers free movement of people as a core objective of the subregional economic community. It stipulates that the same rights, advantages and obligations granted to a member State's own citizens should be applied to nationals of the signatory countries, in conformity with the provisions of their respective constitutions. Implementation of this specific objective has been stagnant, but a number of CEN-SAD member States have been increasingly liberalizing their policies and have successfully implemented schemes to foster the intraregional movement of people; those countries that have overlapping memberships with the Economic Community of West African States (ECOWAS) tend to be further along in liberalizing their cross-border mobility restrictions. Burkina Faso, Mali and Niger are also ECOWAS members. The recognition of the need for economic integration, including the free flow of persons, goods and services, stimulated the enactment of the ECOWAS Protocol relating to Free Movement of Persons, Residence and Establishment in 1979.Footnote 159 The first phase of the Protocol guaranteed free entry of citizens from member States without visa for ninety days and was ratified by all member States in 1980. The second phase of the Protocol, concerning the right of residence, became effective in July 1986, and all member States ratified it.Footnote 160 In contrast, the right of establishment is contained in the 1990 Supplementary Protocol on the Implementation of the Third Phase of the ECOWAS Protocol.Footnote 161 The Supplementary Protocol entitles nationals of member States to settle or establish in ECOWAS States and to carry out business activities under the same conditions that apply to nationals of the host State.Footnote 162 However, the Supplementary Protocol, much like the 1979 Protocol, did not include any special provision concerning forced displacement because of natural disasters in the region. To further develop its policy of mobility within the region, ECOWAS introduced subregional passports in 2000.Footnote 163 While these passports aims to facilitate the movement of people, the challenge remains that those most vulnerable to climate change are frequently the most disadvantaged and least able to move.Footnote 164
On the other hand, the governments of Burkina Faso, Chad, Mali, Mauritania and Niger have made a commitment to place the protection of displaced people and their host communities at the core of their actions. On 12 October 2020, these governments launched the Bamako Process, an intergovernmental platform for concrete and rapid actions to strengthen coordination between security and humanitarian actors and to ensure humanitarian access, protection and assistance to affected populations. The five areas of intervention on which the process focuses are: “1) Humanitarian access and civil-military coordination 2) Protection in the context of the UN framework for the prevention of violent extremism 3) Access to asylum in the context of mass influx and mixed movements 4) Solutions for refugees, IDPs and other civilian population 5) Access to civil registration, identity document[s] and nationality”.Footnote 165 This intergovernmental process represents the implementation of the conclusions adopted during the 2019 Regional Dialogue among the five countries that also produced the Bamako Declaration, in which the representatives of the five governments showed their willingness to reinforce cooperation in order to enhance the protection of the forcibly displaced in the region. Although the topic of the environmentally displaced has not been explicitly mentioned, several of the recommendations apply to the category of forced displacement because of climate-induced disasters too. For example, the governments agreed to strengthen coordination between humanitarian actors on the ground and local authorities in order to more easily have access to persons in affected areas of the region. In addition, they agreed to reinforce partnership with local communities in situations of emergency to fill possible lacunae where access by humanitarian actors is limited or difficult, and to put in place an alert system allowing for better coordination between countries in the case of cross-border movement. Finally, the governments of the five countries committed to implementing the Kampala Convention, given that those countries had already ratified it.Footnote 166
In this sense, a significant step forward has been taken by Niger, which in 2018 became the first African country to adopt a law on the protection of IDPs.Footnote 167 Law No. 2018-74 on the Protection and Assistance of Internally Displaced Persons received a great impulse from the local Ministry on Humanitarian Action and Disaster Management, which in early 2018 created a specific committee to develop a law on IDPs in the country.Footnote 168 Even more recently, the Ministry of Justice has confirmed that Law 2018-74 allows the country to promote more solidarity and cooperation among Nigeriens in view of finding durable solutions for the plight of IDPs.Footnote 169
Law 2018-74 aims at the promotion and strengthening of measures to prevent, mitigate and eliminate conditions that could lead to internal displacement.Footnote 170 This law, having as a reference the Kampala Convention as well as Resolution 1998/50 of the UN Human Rights Commission,Footnote 171 considers as IDPs also people fleeing their place of origin or habitual residence because of natural catastrophes (Article 2(1)). Law 2018-74 is very detailed when it comes to “vulnerability” because, in its Article 2(8), it clearly refers the meaning of the term “vulnerability” to the connotation given to this word by the 2018 domestic law determining the principles of social protection.Footnote 172 In the case of an environmental catastrophe, the relevant national authorities adopt all necessary measures to prevent the risk of internal displacement (Article 7), and if the displacement is inevitable, national authorities should do their best to reduce its effects (Article 9). Of particular relevance is Article 31, which concerns offences against IDPs. Arbitrary displacement in the context of environmental calamities is included among punishable offences. Such offences include forced evacuation in the event of natural disasters or due to other triggers, if the evacuations are not required with respect to the safety and health of the persons affected. The sanction is the same for both offences: fifteen to thirty years in jail and a fine of 3 to 7 million Central Africa francs. After the adoption of Law 2018-74, Niger adopted two decrees as part of efforts to implement it, in April 2020. One of these decrees concerns the modalities of application of Law 2018-74 and is be to implemented by the Ministry of Humanitarian Action and Disaster Management.Footnote 173 The second adopted decree concerns the organization and modalities of operation of the National Coordination Committee for the Protection and Assistance of IDPs established under Article 26 of the IDP law.Footnote 174
In paragraph 8 of Resolution 1998/50, the Human Rights Commission thanked governments that invited the representative of the UN Secretary-General to visit their countries and assess the situation of IDPs. At the somewhat belated invitation of Niger, the UN Special Rapporteur on the Human Rights of IDPs visited the country (18–24 March 2018), stressing that IDPs should be consulted in all initiatives relating to their situation (para. 32), and applauding the creation, in 2016, of the above-mentioned Ministry of Humanitarian Action and Disaster Management. This ministry is one of the institutional pillars entrusted with responding to the situation of IDPs in the country.Footnote 175 Among other tasks, it is also entrusted with elaborating and implementing all projects concerning hospitality towards IDPs in the region where they are displaced and reintegration of IDPs into their regions of origin.Footnote 176
In 2009, the Special Rapporteur also visited Chad (3–9 February). On this occasion, the Special Rapporteur realized that displacement towards areas with an already fragile ecosystem would have put pressure on the limited resources in those areas. Without any intervention by the government in, for example, halting the illegal cutting of trees and the over-utilization of land for grazing, the situation would certainly have deteriorated. This could have resulted in even more limited availability of primary resources (arable land, water, wood) for both locals and IDPs. Such limited availability would have triggered potential civil conflicts and, as a consequence, new displacements.Footnote 177 However, in his report, the Special Rapporteur did not indicate any possible concrete solutions to limit the growing number of climate-induced IDPs. Chad, which recently saw the passing of the long-standing President Idriss Deby (1991–2021),Footnote 178 has struggled for a long time to accommodate IDPs, particularly in the eastern part of the country. In 2019, the number of IDPs in Chad because of conflict and violence was more than six times the amount of IDPs because of natural disasters.Footnote 179 Unfortunately, governmental action to integrate IDPs in the host regions (given that it was impossible to send them back home) has somewhat failed to meet expectations, but national and international actors hope that a new momentum can be gained in order to find lasting solutions to the plight of the internally displaced.Footnote 180 At the same time, the Chadian government has been solicited by non-governmental organizations, international organizations and UN agencies engaged in protection work in humanitarian crises to elaborate a plan of action to identify the challenges involved and provide for some concrete response, and to review its domestic laws in light of the plight of IDPs.Footnote 181 A detailed and coherent plan is needed to address the growing number of IDPs that are starving in the areas around Lake Chad.Footnote 182 Many of the populations living around the lake have been displaced because of conflict a number of times, spending their savings during the displacements. Crop diversification, important to ensure that there is enough food, is less possible as farmers no longer have enough financial resources to plant multiple crops in different locations.Footnote 183
Community outreach on gender-based violence is also needed given that many of the IDPs in the country are women.Footnote 184 This action should be coupled with an effort to improve the access of IDPs to health-care facilities and schools.Footnote 185 In 2013, given the delicate situation of IDPs in the country, the AU organized in N'djamena a workshop on the domestic legal implementation and application of the Kampala Convention in Africa. The workshop dedicated a working group to the particular condition of IDPs in Chad. The working group has elaborated a series of recommendations covering what we have already analyzed here, and it has also sought the promulgation of some domestic legislation on the protection of IDPs, though Chad has not yet adopted this legislation.Footnote 186
As noted above, Burkina Faso is another country that has recently experienced a rise in the number of IDPs. According to CONASUR, by the end of 2020 the country had 1,074,993 IDPs.Footnote 187 A consultation with communities of IDPs in Burkina Faso, carried out by the UNHCR and other organizations in the field in 2020, revealed that the concerns and requests of IDP communities are similar throughout the country. IDPs have levelled criticism at the government's efforts to prevent displacement and foster social dialogue.Footnote 188 Moreover, IDPs note the exclusion of women, elders and persons with physical disabilities from decisions concerning their situation. Additionally, IDPs also noted a low rate of access to education. In contrast, IDP communities declared that they had received sufficient information about the COVID-19 pandemic. However, given their living conditions, the implementation of measures such as social distancing and regular hand-washing was problematic.Footnote 189 This was already noted in a July 2020 report by the UN Office for the Coordination of Humanitarian Affairs (OCHA), which also stressed the necessity of building more shelters to avoid overcrowding in the existing ones.Footnote 190
The pandemic, coupled with civil strife, drought and floods, has also affected the situation of IDPs in Mali, of which there were almost 300,000 in early 2021.Footnote 191 In 2020, the AfDB allocated an amount of about $50 million to help Mali assist IDPs in the context of the pandemic.Footnote 192 In March 2021 it allocated a further $150,000 to help IDPs in the country, providing them with food, access to drinkable water and more durable shelters, as well as identifying women at risk of gender-based violence.Footnote 193 In May 2015, the Ministry for Humanitarian Action, Solidarity and Reconstruction of the North published a national strategy on how to manage the situation of IDPs in the country. The Ministry developed this strategy based on the mandate given to it by National Decree No. 280 of 2014.Footnote 194 In this framework, it was stressed that the reintegration process of IDPs into their regions of origin is of fundamental importance.Footnote 195 The same goal was previously highlighted by the document Orientations et priorités du gouvernement (Malien) pour la période 2013–2018.Footnote 196 However, further studies on reforming the governmental architecture have made Decree 280 not applicable, at the same time weakening the competencies of the Ministry.Footnote 197 Moreover, although the Malian government ratified the Kampala Convention on 16 June 2010, the Technical Committee for the Domestication of the Kampala Convention in Mali is still working on its domestication.Footnote 198 Further, the adoption of the Kampala Convention does not preclude the necessity of adopting a number of legislative amendments to complement coherently the norms introduced by the Convention.Footnote 199
Finally, Mauritania is the country with the lowest number of IDPs in the region: 6,600 in 2019, all due to natural disasters (mostly floods, but some because of earthquakes).Footnote 200 However, the problem of IDPs in the country is not yet perceived as a matter of urgency by local institutions that until now have never provided, for example, an institutional framework dealing (fully or partially) with the situation (Mauritania ratified the Kampala Convention on 5 March 2015).Footnote 201 As such, for example, IDPs are not mentioned in the Periodic Report that the country submitted to the African Commission on Human and Peoples’ Rights (ACHPR) in March 2017,Footnote 202 and nor has the ACHPR noted this missing information in its observations replying to the report.Footnote 203 In 2017, the most recent report of activities of the Mauritanian commissioner for human rights and humanitarian action was published, but that publication also fails to make any mention of IDPs.Footnote 204 A major initiative envisaging the protection of IDPs is sought and is expected to be developed by the Mauritanian institutions as soon as possible.
The AU has intervened in the Sahel, drafting a strategy for the region. However, the commitments regarding displacement in the region have been broad, limited to assisting in mobilizing funds for indigent populations, including IDPs and refugees.Footnote 205 Yet the AU recognizes that the degradation of the environment caused by climate change and other natural disasters, for example droughts and floods, is one of the factors affecting development scenarios in the region.Footnote 206 For this reason, another task of the AU is to assist in the establishment of coordination centres for the management of natural disasters.Footnote 207 The AU has also noted that in situations of natural disaster, the right to freedom of movement and residence of persons, as enshrined in Article 12(1) of the African Charter, should not be restricted unless the law provides restrictions that are essential to respond to the threat to the health, safety or life of affected persons. Following the emergency, these persons have the right to return to their places of habitual residence unless those places of residence are still dangerous for the returnees.Footnote 208
Conclusion
In Africa, climate change has consequences in terms of human displacement, and its impact has progressively increased over the years. However, given the complex relationship between displacement and climate change, it is worth recalling that climatic hazards do not automatically lead to displacements.Footnote 209
The Sahel region is experiencing adverse effects because of climate change. This is turn is displacing thousands of people, some into neighbouring countries, others within the affected States. One of the questions this article has sought to answer is whether cross-border, climate-induced forcibly displaced persons are entitled to refugee status under international law. This article is in accord with the weight of opinion that persons forcibly displaced because of natural disasters cannot, on that basis alone, satisfy the criteria for refugee status under the Refugee Convention. The situation with regard to the OAU Convention is less clear-cut since its refugee definition may be open to an interpretation that extends to situations affected by climate change. Opinion on this question is divided, although it seems that the arguments in favour of a liberal and inclusive interpretation are gaining ground.Footnote 210 In cases where people do not qualify as refugees but are clearly susceptible to harm, complementary forms of protection should be offered by States.Footnote 211 However, it is arguably feasible that the criteria for refugee status could be satisfied on human rights grounds, including the right to life, the right to non-discrimination, the right to liberty and security of persons, the right to food, the right to water, the right to housing and the right to a healthy environment, amongst others.Footnote 212 The position with regard to IDPs is given legal certainty by the Kampala Convention; African States have the primary responsibility to prevent displacement and protect the displaced.Footnote 213 The UN Environment Programme has suggested that forced displacement in the Sahel can be minimized by investing resources in disaster risk reduction and climate change adaptation to enhance the resilience of local communities while simultaneously strengthening humanitarian action to meet the challenges of climate change, for example by enacting measures to ensure assistance and protection for people displaced by environmental factors.Footnote 214
Given the difficulties that persons forcibly displaced because of natural disasters face in meeting the grounds for refugee status under the Refugee Convention, a relevant question for States is whether the Refugee Convention should be amended to include climate change as such a ground.Footnote 215 Alternatively, an additional protocol to that effect could be drafted. (Similar considerations arise in relation to regional treaties.) While such steps would help to address the issue, one key challenge is the political will for such change.
At the subregional level, the ICRC believes that more importance should be given to institutions such like the G5 Sahel. Among its objectives, this institution guarantees conditions of security amid its member States and offers a strategic framework of intervention to enhance the living standards of its population, at the same time promoting durable and inclusive development in the Sahel.Footnote 216 Within this framework, in November 2020 a meeting in Bamako (Mali) confirmed that the challenges posed by climate change and natural disasters remain one of the top priorities for the G5 Sahel, presently and in the future, because, as these phenomena cause displacement of populations, they may negatively impact on the development of the five countries.Footnote 217
In 2016, President Roch M. C. Kabore of Burkina Faso stated: “Facing these plights [natural disasters, among others], the aspiration of leaving [one's place of origin] is natural and legitimate. Better still, it is a fundamental human right.”Footnote 218 This is why he appealed not only for subregional and regional (African) cooperation, but, more generally, for world cooperation.Footnote 219 It is clear that an improvement in relations in the context of the G5 Sahel will certainly have positive effects on the policies of its five member States vis-à-vis the conditions of persons forcibly displaced because of natural disasters. In this regard, in 2000 Zachary Lomo argued that many African States have failed to enact laws indispensable to creating the institutional frameworks to give effect to the international human rights protection regime. While we may not agree with this statement (indeed, after twenty-one years, perhaps Lomo has changed his mind on this point), we believe he is still correct when affirming that many people throughout the continent are not always aware of their rights, and are thus vulnerable to manipulation and coercion.Footnote 220
