Caribbean Trade Law and Development

Category: Migration

  • Climate refugees: A new reality for Caribbean Small States?

    Climate refugees: A new reality for Caribbean Small States?

    Alicia Nicholls

    For many people, the decision to leave one’s place of birth, family, friends and possessions for lands unknown is not one that is lightly taken. But this is a decision an increasing number of people will be forced to make. In 2018, a groundbreaking World Bank report entitled ‘Groundswell: Preparing for Internal Climate Migration’ estimated that in three regions of the world (Sub-Saharan Africa, South Asia and Latin America), just over 143 million people – or 2.8 percent of these regions’ population – could be internally displaced due to the effects of climate change by 2050. The year 2050 may seem like a long time away, but already in the Caribbean, we bear witness to the impact of displacement due to climate change.

    How climate change causes displacement

    Climate change is, without doubt, one of the biggest threats facing the planet and mankind. The Geneva-based Internal Displacement Monitoring Centre (IDMC) estimates that over the period 2008-2018, approximately 265.3 million people worldwide were internally displaced due to disasters. The IMDC further noted that Small Island Developing States (SIDS) were disproportionately affected by natural hazards. As climate change worsens, this number is increasing.

    Climate change causes displacement in several ways. Firstly, rising sea levels cause coastal erosion. Kiribati, an archipelagic nation in the Pacific comprising some thirty low-lying atolls, is on the frontlines of the climate crisis. Rising sea levels have already claimed some of its land area and it is estimated that the island nation will be uninhabitable within decades as whole islands could disappear.

    Secondly, hurricane damage can displace entire populations. The whole island of Barbuda (part of the island nation of Antigua & Barbuda) had to be temporarily evacuated following Hurricane Irma in 2017. A reported 130,000 Puerto Ricans (4% of the population) have left that US island territory in the aftermath of Hurricane Maria, according to the US Census Bureau.

    In September this year, the island of Abaco in the Bahamas was rendered virtually ‘uninhabitable’ due to category-five Hurricane Dorian which lingered above the island for hours unleashing torrential rain and storm surges. Thousands of Abaco residents had to be evacuated to Nassau, the capital of the Bahamas.

    Thirdly, changes in weather patterns can make some places uninhabitable due to drought, declining water supply and falling crop yields which force residents to move to more inhabitable and productive places. Sea level rise can also lead to saltwater infusion into natural aquifers, rendering the water undrinkable.

    Displacement due to climate change can affect any country. But the problem is exacerbated in SIDS like those in the Caribbean, the Asia-Pacific and the Indian Ocean, some of which are either low-lying and/or have small land areas. Even in some SIDS with larger land areas and/or more mountainous land topographies, the population and major infrastructure tend to be concentrated primarily along coastal areas putting them at risk to storm surges during storms and sea level rise.

    Whereas in a larger country like the US, for example, displaced populations can move to another State, inhabitants of small islands have no such luxury. For many SIDS, the threat of their homeland being rendered uninhabitable and eventually disappearing is a real one.

    What can be done?

    Firstly, it is important to tackle the root cause of climate-caused displacement – climate change. From individuals, to households, to businesses, to municipalities, to countries, we all have to make cutting our emissions and adopting environmentally friendly habits our imperative.

    We must pressure our leaders to honour the commitments they made upon signing the historic Paris Agreement in 2015. It is incumbent on SIDS to hold the international community to account, to not just aim for limiting global average temperature increases to no greater than 2 degrees Celsius above pre-industrial levels, but the more ambitious goal of 1.5 degrees. The previously mentioned World Bank Report noted that global action now could reduce the number of people forced to move due to climate change by as much as 80 percent.

    Secondly, while the term ‘climate refugee’ is used to describe natural persons who are displaced from their homelands by the adverse impacts of climate change, it is not a recognized term in international law. It also should be noted that while used interchangeably, ‘migrant’ and ‘refugee’ are two different concepts.

    The Convention Relating to the Status of Refugees of 1951 (Geneva Convention on Refugees), ratified by over 140 countries worldwide, only recognizes as a ‘refugee’ a person who is outside his or her country of nationality or habitual residence and who is unable or unwilling to return because of a “wellfounded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion”. Therefore, only persons falling under this definition are regarded under international law as ‘refugees’ and are entitled to the rights and protections under the Convention.

    Refugees have several rights and protections under the Geneva Convention on Refugees and other international conventions. These include the right of non-refoulement (not to be returned to the place where his/her life or freedom would be threatened due to any of the reasons listed in the Convention), right to education, employment, housing, freedom of movement, freedom of religion, inter alia.

    The UN Global Compact for Safe, Orderly and Regular Migration, signed by over 160 countries in 2018, was the international community’s first step towards recognising the concept of climate migrants for the first time. In light of growing numbers of displaced persons due to armed conflicts, political crises and natural disasters, this international agreement sought to create a global response for better managing migration. However, not only is the agreement non-binding, but several major countries have opted not to ratify it due to immigration concerns. The agreement is also limited to migrants, and does not explicitly recognise ‘climate refugees’.

    Countries’ asylum laws also do not currently recognize or protect ‘climate refugees’. It is, therefore, of interest to see one Democratic candidate, Julian Castro, in the current US Presidential election in 2020 commit to expanding US immigration law to provide recognition and protection for ‘climate refugees’.  In a report it was noted that “while the EU has so far not recognised climate refugees formally, it has expressed growing concern and has taken action to support and develop resilience in the countries potentially affected by climate-related stress”.

    The battle will not be easy. Climate-caused displacement is coinciding with a global migration crisis and a groundswell of nationalism, xenophobic sentiment and closing borders across the world, particularly in the US and western Europe. Just this week, in a sad but unsurprising move, the Trump Administration refused to grant temporary protection to Bahamians fleeing the post- Hurricane Dorian devastation in their homeland. However, as the countries most responsible for anthropogenic (manmade) climate change, the ‘Global North’ has a moral obligation to assist those poorer countries which are the most affected and least culpable for climate change, not only in terms of facilitating our mitigation and adaptation, but assisting our displaced people.

    The reality is that unless urgent action is taken to reduce global greenhouse gas emissions to limit climate change, we all may become climate refugees one day. Caribbean countries should join with other sympathetic nations to lobby for increased global action and lasting solutions to climate change, and the climate migration crisis. This includes calling for the explicit recognition of, and protections for, climate-displaced persons both in international law and the domestic law of countries.

    Alicia Nicholls, B.Sc., M.Sc., LL.B., is an international trade and development consultant with a keen interest in sustainable development, international law and trade. You can also read more of her commentaries and follow her on Twitter @LicyLaw.

    DISCLAIMER: All views expressed herein are her personal views and do not necessarily reflect the views of any institution or entity with which she may be affiliated from time to time.

  • A step towards progress between Haiti and the Dominican Republic?

    Alicia Nicholls

    The news this week of progress in the talks at Jimani between Haiti and the Dominican Republic to address, inter alia, the long-standing migration issue between the two countries is welcomed news. The fragile diplomatic relationship between the Dominican Republic and Haiti took a sharp turn for the worse in the latter part of last year following a controversial ruling by the DR’s Constitutional Court  on September 23.

    The DR’s Constitutional Court had been called on to consider an application made by Ms. Juliana Deguis Pierre that the Electoral Office be ordered to issue her with a national ID card which she had been denied on the basis that she was the child of Haitian parents and not Dominican. Ms. Pierre was born and raised in Los Jovillos, an area in Yamasa municipality (in Monte Plata province) where many persons of Haitian origin live. Denying her request, the Court ruled that Ms. Pierre was not a Dominican citizen but a child born of ‘foreigners in transit’. Using the case as an opportunity to elaborate on Dominican nationality law, the Court applied the restriction on the jus soli principle per Article 18 of the 2010 Constitution, holding that under Dominican law birth on Dominican soil did not automatically confer citizenship on an individual and that for a person born after 1929 to be deemed a citizen of the Dominican Republic, he or she must have been born to at least one parent with legal status in the country. All other persons who did not meet this criterion would be classified as being ‘extranjeros en transito” (foreigners in transit) and therefore as never having had Dominican citizenship.  A copy of the court’s judgment can be read here (in Spanish).

    The principle in Dominican immigration law of “foreigner in transit” is not new as it was included in the Constitution of 1929 and in subsequent constitutional reforms, including as recently as in Article 18.3 of the reformed constitution of January 26, 2010. However, prior to the 2010 Constitution, citizenship in the Dominican Republic was conferred on an absolute jus soli basis as evidenced by the language used in previous constitutions, which excluded any reference to the requirement of being born of Dominican parentage. The Court’s retroactive ruling which applies the jus sanguinis principle, established in Article 18 of the 2010 Constitution, to those born after 1929 (and not just to those born after 2010) leaves several generations of Dominicans of foreign descent in a legal limbo as to their status. The retroactive application by the Court of Article 18 to this case seems especially harsh given that the 2010 constitution itself does not indicate that it is meant  to apply retroactively, evidenced by Article 18.2. which states that “Dominicans [also] include those who enjoyed nationality before the entry into force of the Constitution”. A copy of the 2010 Constitution may be found here (in Spanish).

    While persons born to parents of other nationalities will be affected, it is persons of Haitian descent who make up the overwhelming majority of persons to whom this ruling would apply.  Some human rights groups estimate that as many as 200,000 persons of Haitian descent may be affected by the ruling. Haiti and the Dominican Republic, which share the Caribbean island of Hispaniola, have always had a tense and complicated relationship which has its roots in the colonial era and in subsequent historical events. These events include the 22-year Haitian occupation of the Dominican Republic in the immediate post-colonial period before the latter attained its independence, and the slaughter of thousands of Haitians by the Trujillo dictatorship in 1937. The socioeconomic disparities between the two states and their cultural, religious, linguistic and racial differences, a legacy of colonialism, have only helped to further deepen the gulf between these two sister nations. A constant source of tension between the two states has been undocumented Haitian migration to the Dominican Republic. Ever since the 1920s when Haitian workers were actively recruited to work in the Dominican Republic’s sugar industry, the Dominican Republic has been an attractive employment market for seasonal and long-term Haitian workers searching for a better life for themselves and their families. Many of those affected by the ruling include Haitians who had been brought in to work on Dominican farms during the 1920s and their descendants born and raised in the DR.

    Haitian emigration to the Dominican Republic has helped to foment anti-Haitian sentiment among some Dominicans, a sentiment which is also boosted because of the Dominican Republic’s own racially stratified society where darker skin is still synonymous with being poor and uneducated.

    The immigration policy of states is always a touchy subject because of the importance it has for national security. Indeed, it is no doubt that inherent in being a sovereign nation is the right of the state to protect its borders. Both customary international law and the Montevideo Convention of 1933 provide that no state has the right to intervene in the internal or external affairs of another. Further, international law gives states the right to dictate their own policies in regards to conferring nationality.

    However, these rights are not absolute as they are subject, inter alia, to the various international human rights treaties which States, like the DR, have acceded to, and by which they agree to respect human rights and to be held accountable for any violation thereof. The human rights implications of the constitutional court’s ruling cannot be overlooked on the basis that the ruling is solely in the province of the DR’s internal affairs. The ruling has been condemned by CARICOM states (of which Haiti is a member) and by various human rights groups as being ‘racist’ and ‘xenophobic’ in nature and with potentially devastating human rights consequences.

    Although Dominican authorities deny that the ruling leaves anyone stateless and argue that a plan for naturalisation of affected persons would be implemented, the Court’s retroactive application of Article 18 of the 2010 Constitution does have the effect of stripping those affected of citizenship, depriving them of the rights inherent with nationality, such as the right to vote, the ability to get married and the right of access to basic services such as education, employment and health care, and bringing with it the possibility of expulsion from the land of their birth. Like Juliana Deguis Pierre, many of those three generations of Haitians who are affected were born in, and have lived in the Dominican Republic all their lives, have little or no ties to Haiti and speak no Haitian creole.  In light of the ruling, CARICOM has agreed to indefinitely defer consideration of the Dominican Republic’s longstanding application to accede to CARICOM.

    Happily, it appears tentatively that some progress is being made to address this unfortunate state of affairs. Both countries have agreed to establish a Joint Commission to discuss not just issues relating to migration, but also matters of trade, the environment, security, among others. The Dominican Republic has stated that it will as shortly as February 27th bring legislation to address the situation of those born in the Dominican Republic but who currently have no documentation. It is hoped that such legislation will undo the human rights injustice which this ruling portends, affirming the right of those affected to Dominican nationality and being a needed step towards addressing and correcting  the discrimination which many native born Dominicans of Haitian  descent continue to face.

    Alicia Nicholls is a trade policy specialist and law graduate. She can be followed on Twitter at @Licylaw.