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Overcoming the Challenges Posed by the Pacific Island States´ Legal System for a Successful Response to Climate Change

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Overcoming the challenges posed by the Pacific island states´ legal system for a successful response to climate change

Analyzing the connections between climate change, migration and human rights

Table of content

Purpose of the document

Summary of recommendations

Abbreviations and Acronyms

Introduction

Recommendations

Recommendation 1: Develop a legal and political framework at state and regional level to deal with climate-induced migration

Recommendation 2: Develop, strengthen and promote interstate relations among the Pacific countries

Recommendation 3: Build on legal infrastructure to develop a coherent harmonized system unique to Pacific countries

Recommendation 4: Recognize and address consequences of climate change as a permanent issue in the region with immediate and long term impacts

Recommendation 5: A Human Rights-based approach towards customary and state law

Recommendation 6: Promote full civil participation through a continuous dialogue with local communities

Recommendation 7: Conduct further research on human rights and migration in the wake of climate change in the Pacific

Research Team

Purpose of the document

This policy brief highlights the main findings of the research project by United Nations University Institute for Environment and Human Security (UNU EHS) and the AXA Research Fund.

The research explores the connection between the international response to climate change, migration and human rights. Taking the Pacific Region as geographic scope, Fiji and Vanuatu, two of the countries affected by climate change, serve as case studies to further deepen into the process of international environmental law implementation in the region. The existence of two legal systems in the Pacific islands, the custom, traditional law originally derived from indigenous communities and the national o state law, introduced by colonial powers, is a potential source of conflicting perspectives that could challenge the implementation of international standards. This report aims at looking at these potential discrepancies, identifying gaps and legal risks, and analyzing their impact on human rights, migration and the overall response to climate change.

Findings build on field research conducted in Fiji and Vanuatu, chosen due to the similarities in their legal system, which comprises of a sample of 39 surveys answered by the local population as well as semi-structured interviews with representatives of the government and international bodies in the region, legal experts and chief police officers.

In light of the findings, this report formulates seven policy recommendations for both the Pacific island states and the international community with which to further advance in successfully addressing climate change and climate induced migration building on custom and state law from a human rights perspective.

Summary of recommendations

Recommendation 1: Develop legal and political frameworks at state and regional level to deal with climate-induced migration in the Pacific region.

Recommendation 2: Develop, strengthen and promote interstate relations among Pacific states to strengthen governmental collaboration.

Recommendation 3: Build on legal infrastructure to develop a coherent harmonized system unique to each island state and address existing gaps to foster accountability.

Recommendation 4: Recognize and address the consequences of climate induced migration as a permanent issue in the region with immediate and long-term impact.

Recommendation 5: Address the existing discrepancies among custom and state law in line with human rights international standards in order to facilitate the implementation of a human rights-based response to climate change.

Recommendation 6: Promote full civil participation through a continuous dialogue among state authorities and local communities so as to facilitate a bottom-up approach in which to engage communities in the policy making process.

Recommendation 7: Conduct further research and collection of data on human rights and migration in the wake of climate change in the Pacific in order to facilitate informed decision-making and development of international and national policy on the issue.

Abbreviations and Acronyms

CAT – Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment

ICCPR – International Covenant on Civil and Political Rights

FRDP – Framework for Resilient Development in the Pacific

SIDS – Small Island Developing States

SLR –  Sea Level Rise

SPREP – Secretariat of the Pacific Regional Environment Programme

UNFCCC – United Nations Framework Convention on Climate Change

Introduction

Human migration is expected to be one of the greatest consequences of climate change. Voluntary and forced, short- and long-term, within and across borders, when driven by climate change, migration takes different forms. This is especially the case in the Pacific Islands, a region that is already suffering loss and damage from climate change and in which migration, traditionally a “way of life”, is turning into an urgent need for many people as island environments become less able to support the communities that depend on them. Addressing climate change can no longer be postponed.

The international community has taken important steps for action. The UNFCCC Paris Agreement on Climate Change, signed by 195 countries at the 2015 United Nations Climate Change Conference, is a clear evidence of the existing awareness regarding global warming. With the strongest references to human rights of any existing international treaty so far, the Paris Agreement goes a step further in linking the international response to climate change to migration and to the need to ensure the protection of people´s rights. Indeed, there is an increasing awareness that all efforts taken to tackle direct and indirect consequences of climate change can only be maximized if adopted within a comprehensive, human rights approach.

In the Pacific, regional leaders have taken a leading role in voicing their concerns about the impact natural disasters and change in climate are having on their Small Island Developing States (SIDS).[1] 12 out of 14 the Pacific Islands Forum countries were among the first ones that submitted their ratification. “We congratulate and commend our member countries for their leadership in not only signing but also taking that extra crucial step to ratify the Agreement, helping to ensure it will come into force”, said Kosi Latu, Director-General of the Secretariat of the Pacific Regional Environment Programme (SPREP)[2].

Yet, legal constraints might challenge the implementation of international climate law in the region. The Pacific islands have two existing systems of law: the national or state law, which covers the executive or legislative level, and the traditional, customary law of clans, families or tribes, referred to as the Kastom law, governing local community law. Customary law is diverse by nature as each community has its own customs. Both systems enjoy constitutional and judicial recognition to a varying extent for each island and together set the rules by which people are governed.

In this context, migration flows of people seeking refuge from changing climate patterns and increased extreme weather conditions are, as this research demonstrates, challenging some of the core values of custom for both those moving and receiving communities. The degree to which custom -and its people- are welcoming to migrants varies among Pacific states just as in the case of Fiji and Vanuatu (see Graph 1). Given the relevance of customary law, this has a significant impact on how these new comers are treated.

Graph 1. “According to custom, outsiders from different islands are welcome on the island.”

Not only migration, other aspects further reflect the traditional values and beliefs of the community: the perception and respect of human rights of both migrants and host community members, the relevance of traditional custom decision-making bodies as opposed to the state system, and the overall awareness on risks posed by climate change as well as the perception of the government´s response to it. Usually, international norms emanate from the legislative or executive level and into the community. As such, implementing international norms following a typical top-down approach into the domestic law might be challenged by the existence of the second system of law at local level, which serves communities as a solid ground on which to interpret and build their understanding of new norms. Through the filter of Kastom law, international efforts might very much differ in their initial purpose and expected results.

In this context, this research project provides several policy recommendations with which to strengthen national and regional policy dealing with these issues with the aim of providing solid conditions on the ground with which to successfully accommodate and implement the international response to climate change in a way that custom and the right of local communities, climate induced-migration and human rights for all are addressed.

Recommendations

Recommendation 1: Develop a legal and political framework at state and regional level to deal with climate-induced migration

The movement of people in the Pacific due to the effects of climate change is sadly a growing issue that needs our collective attention. The region must come together and work out a strategy for how to best ensure that the rights and wellbeing of our Pacific sisters and brothers who are facing displacement and relocation are protected and nurtured. This must include those who do not want to move[3]. Dame Meg Taylor, Secretary-General of the Pacific Islands Forum Secretariat, called for a collective strategy in the recent regional meeting which brought together Pacific leaders to discuss priorities under their commitments to international and regional policy frameworks on climate-induced migration and displacement.

Building on existing frameworks at region and global level, such as the UNFCCC Paris Agreement on Climate Change, the Framework for Resilient Development in the Pacific (FRDP) and the 2030 Agenda for Sustainable Development, Pacific leaders reckoned their responsibilities to advance in the protection of their people´s human rights and in securing access to decent living conditions. Endorsed by Pacific leaders in September 2016, FRDP[4] was developed as single, integrated regional framework on climate change and disaster risk management, replacing previous separate frameworks and establishing a programmatic approach which addresses interlinked causes and effects of climate change-related impacts. Indeed, it touches upon the need for an inclusive approach for all stakeholders, also civil society, and upon the relevance of “pre-existing cultural and social beliefs about the roles, functions, responsibilities and social standing of different groups within societies, and resulting practices”.[5] Also the Paris Agreement constituted an important step towards integrating approaches to minimize and address climate-induced displacement as it understood the various connections between climate change and human mobility. However, in these policy frameworks, there is still a need to recognize and address the existence of a strong custom law at local and community level. There can be no successful resilient development without the total involvement of local communities, their values, beliefs, and practices -of those staying and those on the move.

To date, the lack of a definition of consensus for people migrating due to extreme weather conditions does not only embody a major obstacle for the protection of their rights but further constitute a gap in the existing legal framework, challenging implementation of international standards. The case studies carried out very much exemplified the need for a common definition and understanding of the term to successfully implement initiatives targeting migration in the region. As findings for both islands presented in Graph 2 show, people strongly supported the creation of a classification system by which migrants would be granted different protection depending on their reason to migrate, be it economic, political or due to environmental disasters. The lack of a common definition recognizing the vulnerability of climate migrants at the legal level as well as the absence of a common understanding of migrant rights on the ground might challenge all measures and implementation efforts at the local level.

Graph 2. “There should be a system of classification by which migrants are categorized on the basis of the reason for their migration, whether economic, political or due to climate change and environmental disasters. Different protections should be afforded to these categories.”

At the national level, despite the general awareness of the risks posed by climate change and the expressed willingness of leaders to act, most Pacific countries in the region do not have national policies on climate change and migration. This lack of legal and policy infrastructure further challenges implementation of international standards, treaties and programmes, as it serves as vacuum in which national governments cannot be held accountable. For migration to be a safe option for those vulnerable to climate change, countries need to develop national laws integrating voluntary and forced migration and relocation in the broader context of development, disaster risk management and adaptation.

Indeed, migration -gradual or relocation- as adaptation has not been embraced as a policy option yet[6], providing room for countries to further explore ways in which to foster the positive aspects of displacement. For example, regulating seasonal migration and creating schemes for seasonal work programmes would enable families to cope with changing climate patterns as well as provide some channels for the development of regular, safe and human rights-based labor conditions. However, given the strong community ties custom upholds, this approach would further require states to develop integration policies with which to promote acceptance of new comers into the receiving societies. The lack of such policies has so far encouraged those migrating to look for support mainly in social and family networks.[7]  Therefore, efforts aimed at integrating migrant communities will need to build on custom and tradition of both incoming and hosting society in order to respect social structures yet enhance social cohesion and educate in the culture of human rights.

Recommendation 2: Develop, strengthen and promote interstate relations among the Pacific countries

With diverse cultural, socio-economic, and political context, yet sharing similarly complex legal systems, Pacific Island States face common challenges and responsibilities in regards to climate change. Acknowledging the region´s vulnerability and the expected increasing challenges posed to the countries´ environments, sustainable developments and future survival -and aware of the uniqueness and existing differences among islands- states should work together in advancing joint solutions, wherever possible, for the successful implementation of international law with which to protect their people and advance in the response towards global warming. More dialogue on climate change and migration among Pacific islands is needed.

For that purpose, cooperation at both the governmental and regional level is crucial along existing regional and international initiatives and beyond. In that sense, regional leaders need to continue working on Pacific-tailored approaches combating climate change and developing disaster preparedness, response and recovery that allows for the protection of human security. For instance, the Pacific Plan for Strengthening Regional Cooperation and Integration[8], aimed as living document formulating the region’s strategy for closer cooperation between Pacific countries, expanded in 2009 its main pillars to incorporate two emerging issues: responding to climate change, and improving livelihoods and well-being. In this context, a potential regional framework on human mobility and climate change, integrated in the framework of Pacific Regionalism[9] that built on both customary and state law would fill in the legal gap at the international level, address the rights of climate migrants at the regional level, and guide states in addressing this complex issue in a comprehensive manner at the national level.

Besides targeting legal gaps, Pacific island countries will need to make great efforts to implement commitments made to regional and international environmental treaties. Benefitting from the existing initiatives led by the Secretariat of the Pacific Regional Environmental Programme (SREP), the development and strengthening of strong bilateral and multilateral relations would facilitate the exchange of information and expertise, and allow countries to gain a mutual understanding on how to successfully incorporate human rights-based adaptive strategies into their national action plans and sectoral planning.

Besides building regional expertise in the development of adaptation technologies, other potential outcomes from working together with regional and international agencies could be the development of strong meteorological services with which to, together, advance in the protection of the life of Pacific communities. Even though this report suggests that communities are well aware of the risk posed by natural disasters to their life, they are not familiar with the meaning of crop insurance schemes or other type of insurances that would protect their livelihood in case of natural hazard. In this regard, countries should examine the potential of regional climate change insurance arrangements and further coordinate the consolidation and distribution of information on climate change.

Given their shared challenges when addressing climate change and the context of often colliding custom and state law, a strong regional cooperation among Pacific states would facilitate the identification of common challenges and the development of joint solutions for the implementation of international treaties in the region. Collaboration and mutual support would foster the commitment to international standards and encourage the development of environment and migration strategies incorporating a human rights approach.

Recommendation 3: Build on legal infrastructure to develop a coherent harmonized system unique to Pacific countries

The relationship between custom and the state very much defines the governance of every-day life of Pacific people. Custom and state-made law coexist within the state, resulting in a “hybrid” system comprising of courts and a wide range of community justice bodies[10], in most cases not interrelated or linked. For instance, with a different degree by country, routine disputes are very often resolved at the community level (see Graph 3) within a variety of institutions with local autonomy operating entirely according to custom or by a mixture of custom and standard court process. While in some cases these bodies are state endorsed or statute established, others operate without any type of state oversight.[11] Indeed, most difficulties in applying the two strands of the legal system mainly arise in practice. In this context, the need for developing a more coherent legal system unique to the Pacific states becomes evident.

 

Graph 3. “Chiefs/ community leaders have more of a say [than State Court] in the resolving of disputes”

The development of a strong and independent jurisprudence unique for each Pacific state needs to build on a solid understanding of the principles of justice in both custom and state law. Pacific nations have to find ways through which to better accommodate the two strands of the legal system in order to promote the equitable development of custom and the appreciation of human rights in culturally relevant terms. The government, the legislature, the courts and entire communities will need to work together in finding transformative solutions for the harmonization of custom and human rights norm to which all can relate.

This need is reflected in the perception of community members themselves of legal bodies in their island: the general lack of a strong opinion on them and the belief that they would not treat them fairly in case of disputes evidences the disruption among the two systems on the field. Only around 30% of the respondents in both islands considered it easy to file a case before the State court, suggesting obstacles to access to justice. At the same time, more than half of the people asked in Vanuatu did not seem to have a formed opinion on the ruling of the State Court, whereas in Fiji only 53% of those interviewed confirmed a fair treatment by the State Court[12].

These findings highlight the need for an improved development of the judiciary, especially in Vanuatu, island in which custom and the rule of community leaders still prevail and access to the state mechanisms of justice is not the norm. Thus, rising awareness of the existence of such mechanisms on the one hand and empowering people to actually access legal rights and services through the relevant key justice institutions on the other would increase access to legal services and help people understand, familiarize themselves and gain confidence in the legal system. Building the required infrastructure to place such mechanisms physically close to communities as well as allowing complaints in local language would be further means by which to increase access to justice and to recognize and embrace customary ties.

Indeed, a harmonized system of both state and customary law would further serve the prevention of human rights abuses and combat the perception of systemic injustice as it would also make punishment consistent. For that, the development of effective, accountable and inclusive institutions along with capacity-building measures would certainly increase people´s trust and, as a result, access to justice. Initiatives such as the Fiji Access to Justice Project[13], which aims at strengthening the Legal Aid Commission, the Judicial Department and non-governmental organizations contribution to deliver accompaniment access to justice services is a good example of what the road for all Pacific islands should be in the future. Also in Fiji, in recognizing the significant role of police in respecting, promoting and protecting the rights of all citizens, human rights became part of the Fiji Police Force´s Curriculum in 2015. With the aim of helping develop a police force that is “accountable, transparent, gender aware and supportive of human rights” in accordance with international human rights standards for policing and in compliance with domestic legislative framework, thirty-five police force members attended a human rights training workshop in Suva.[14] This is the first of a series of trainings happening across all divisions within Fiji Police Force.

While increased access to justice is guaranteed, the positive contributions of community justice bodies should be considered when supporting and building on the legal infrastructure in each Pacific country. With the role of community leaders strongly embedded– 90% in Vanuatu and 63% in Fiji said to prefer going to the community leaders rather than the police in case of dispute- as well as respected -60% of the respondents in Vanuatu and 63% in Fiji considered them to be just-, community justice bodies are likely to remain a fundamental part to the administration of justice. In fact, as expressed in Graph 4, this would be the wish in both countries. In that sense, training and assistance to improve their service delivery as well as their understanding of human right standards would strengthen their role within the legal system and promote their role in the harmonization of custom law and human rights.

Graph 4. “Local community leaders should be involved in decision-making to safeguard my interests.”

The development of customary law has been largely disregarded in the Pacific jurisprudence. Yet, as law is owned by people and only efficient if they can relate to the values and principles it encompasses, developing a comprehensive and consistent system to the Pacific island states is a clear need. By building on custom, state law and human rights, this harmonized system would constitute a decisive step for the protection of rights of all people. Moreover, it would allow accountability and assign clear responsibilities which are, in the event of climate change, more urgent than ever.

A legal framework for Non-Governmental Organizations

The harmonization process of custom and state law might provide evidence of existing legal gaps in Pacific islands systems that further hinder the efficient implementation of international standards. Indeed, if the aim is to build a coherent, comprehensive and unique system for Pacific countries, these gaps need to be addressed. The lack of regulatory policies for Non-Governmental Organizations (NGOs) is such a case.

At the moment, as previous studies[15] and also experts in the region interviewed for the purpose of this research point out, Pacific countries do not count on any protocol or legal framework between NGOs and the relevant state authorities. This creates a weak accountability of governments towards their citizens, since no control mechanisms, no coordination strategies nor clear priorities for a robust NGO engagement exist. In addition, the resulting lack of communication and information exchange among NGOs and the state could undermine the efficiency of projects and even lead to different results than expected, potentially also harming local communities by providing contradictory information on e.g. recommendation on what to plant next.

There is the clear need to develop a framework that would enable setting clear terms and strategies in order for international agencies to successfully carry out their activities in the region. Additional measures to improve coordination and accountability could involve requiring NGOs carrying out projects in the country to seek authorization or register with the national or local government, yet keeping the process very simple and seeking as little bureaucratic hurdles as possible in order not to create barriers or delays. As such, strengthened collaboration with national bodies would lead to better identification of vulnerable communities and improved aid distribution to those most in need. This context would provide a solid ground on which to foster protection of local communities and enable the implementation also of efforts coming from the international level.

Recommendation 4: Recognize and address consequences of climate change as a permanent issue in the region with immediate and long term impacts

Climate change is one of the main reasons for people to migrate worldwide. For Pacific island populations, whose vast majority reside in coastal areas and rely on natural resources for their livelihoods, this has a significant impact. Sea level rise (SLR), ocean acidification and the resulting reef degradation, impact on water resources, and increased intensity of hurricanes and cyclones are driving some island environments become less able to support the communities that depend on them. Tropical Cyclone Winston in 2016, described as the strongest tropical cyclone in Fiji´s history[16], and Cyclone Pam in 2015 are just two examples among a vast number of other events. They constitute a threat not only for agriculture and infrastructure but further to human security[17].

Nevertheless, there is little evidence to suggest that the movement of people in the region can be attributed exclusively to the impacts of climate change. Most of the human mobility in the Pacific, also in Fiji and Vanuatu, is caused by development opportunities and is socio-economic driven with people looking for better opportunities across borders (Graph 5). In fact, a report by the Pacific Islands Forum Secretariat/United Nations University in 2015 found that reasons for choosing to migrate were not always the direct consequences of climate change but rather a worsening of living standards, often indirectly linked to the impact of natural hazard risk events such as tropical cyclones, flooding and tsunamis[18]. In those cases where climate change is a cause for migration, it is in combination with factors such as the deterioration of lands, water and infrastructure. Any policy response to the issue of the movement of people in the Pacific, also international treaties addressing global warming, must consider the multiple drivers of people mobility and recognize that climate change is not just anenvironmental issue but one of human security.

Graph 5. “The reasons for this migration of people from neighboring islands are mainly economic (seek better jobs, better livelihoods, etc.)”

Pacific leaders have long been aware of the threat climate poses to their people´s livelihood and took the lead in advocating for addressing climate change at an international level. Yet, at the local level, Graph 6 shows that preventive measures from the government have been limited: communities expressed the lack of adequate training and technical support by the state government so they could minimize their losses in case of disaster. To a larger extent in Vanuatu than in Fiji, this space has been taken over by community leaders, who have been the ones discussing ways to prepare for a natural disaster with community members and informing them of various options to secure their assets. Also within the response to climate change coming from the international community, community leaders have a relevant role to play. They could be granted a stronger role as contact point between community and state government, inform and educate communities on measures to protect their livelihoods and serve as valuable partners in capacity-building among peoples.

Graph 6. “I think the state government provides me with adequate training and technical support so I know how to make sure my losses are minimum if a disaster strikes.”

Indeed, even though discussions at the local level contribute to creating awareness among people and to the islands disaster risk management as a whole, this does not suffice. Training of local people and technical assistance need to be well targeted at community needs and be well coordinated among all actors involved so as to increase local capacity. Capacity building requires a bottom-up approach, a key component also expressed in the Paris Agreement, and actually listening to community needs would not only increase readiness to act in case of disaster but further improve local trust in their governments´ support.

In the same way, governments need to understand their responsibility to protect people´s lives and take an active role in developing a holistic, inclusive and people-centered approach to targeting disaster preparation and response. Cross-cutting themes include a lack of livelihood opportunities and access to resources such as land, rising income disparity and growing poverty.[19] To date, most adaptation projects have focused on existing current environmental problems.[20] However, as long-term habitation is threatened, this also involves population displacement. The difficulties of dealing with forced displacement were best exemplified by the Kiribati Ministry of Foreign Affairs: “Climate induced relocation and forced migration is inevitable for Kiribati and planning is already underway. Aid needs to put some focus on this issue, but is mostly left behind only due to the fact that it is a future need and there are more visible needs here and now.”[21]

The deep people-land connection

In the Pacific islands, land is not only relevant from an economic point of view and means of livelihood and source of income, it also has a fundamental cultural and psychological meaning to islanders. Strongly linked to custom and often inherited from family ancestors, land is near to inalienable. Almost all independent Pacific states recognize this in their constitutions, with up to 90% of land held in customary forms of tenure.[22] As a result, it cannot be bought nor sold, individuals do not have the rights to do so. In the cases where land is exchanged, it is usually under traditional arrangement[23]. From this perspective, forced relocation is extremely problematic. The movement of a complete community to a new land involves breaking the connection between person and land on the one hand, and requires making land from another community available for resettlement at the place of destination on the other.

As could be expected, Vanuatu and Fiji people emphasized their belief that the government had no right to take away their land if it required it. Indeed, evidence from this research shows that, in case of land expropriation by the government, an economic compensation to those giving up their land would not be considered as a valid measure by community members. 70% of people in Vanuatu and 58% in Fiji stated that, also in case of monetary compensation, they would still not be willing to see outsiders occupy the land of their ancestors. Although people in both islands stated that such a compensation would encourage them not to be hostile towards those living in their land, their feelings about the migrants as intruders wouldn’t change. Thus, findings suggest that economic compensation as means of integration could be problematic, and that governments need to look for other ways to promote integration.

Therefore, given the high emphasis on traditional authority and customary land tenures, any reform to land laws encompassed in the process of harmonization of state and custom law needs to build on custom ideas, values and practices. Not only at national level, also the international community needs to acknowledge this deep connection to land of Pacific islanders along the right to all people to a secure living when drafting response to issues of climate change and forced migration. Relocation processes need to be more participatory in order for social and cultural cohesion as well as human rights of those being resettled to be respected.

Sustainable agriculture

Customary law and tradition concerning the environment do not always go hand in hand with sustainability. In fact, they might not always be compatible. As climate patterns and environment conditions change, people look for new ways of making their livelihood. In Vanuatu, kava plantations have become one of the country´s primary source of income, as the island acts as the main exporter to neighboring countries[24]. However, large kava plantations are also reported to be one of the main causes for massive deforestation in the island. So far, because individuals have a direct and immediate economic benefit from it, no measures have been taken to change this. The ecosystem and the environment will continue to suffer.

In what concerns sustainable agriculture, the implementation of the Paris Agreement is essential for the achievement of the Sustainable Development Goals and provides a roadmap to climate actions. In fact, the close alignment of the climate and sustainable development agendas emphasizes the need to consider them integral components to achieve a low-carbon, climate-resilient future. [25] And yet, in the Pacific, there is a high risk that custom challenges the whole concept of sustainable agriculture and use of land.

Thus, long-term plans and policies for sustainable development and environmental management need to increase the sustainability of islands while building on core principles of custom. Adaptation to changing ecosystems will require entire populations to consider sustainability from the ground and explore ways with which to build their livelihood in respect of nature. Awareness-building in the school environment might help interiorize these ideas and contribute to alleviate the impact directly caused by local populations.

Recommendation 5: A Human Rights-based approach towards customary and state law

Pacific leaders have often referred to two important goals: maintaining local values, traditions and custom, and implementing human rights[26]. These concepts, however, are frequently perceived as conflicting. Custom provide people in the Pacific much of their sense of identity and belonging as well as essential governance and dispute-resolution mechanisms[27]. At the same time, human rights provide these nations, especially those in the most vulnerable situations, with protection and support. And yet, human rights can be seen as threat to Pacific custom while custom might be perceived as a threat to individual freedom and universal human rights. Traditional societies and customary groups do not have a culture of individual rights but place the highest value on communal rights. They maintain their social cohesion and structure through a culture of duties, loyalty and contribution to the common survival.[28] Although commitment with international rights standards at the national level show state efforts to guarantee human rights, strong embedded cultural ties interfere and make it hard for these principles to be embraced by local communities.

Evidence from this research gathered in Fiji and Vanuatu points at the discrepancies between international commitment by the state and human rights culture on the ground at the local and community level, suggesting that custom does indeed act as barrier for the top-down implementation of external concepts to people. Lack of knowledge on international standards and norms by community leaders who do not apply them in community justice bodies and communication problems from the state to educate on these standards, quoted in previous reports[29], might contribute to the little human rights culture developed throughout time. Nevertheless, findings of the present research to some extent challenge these assumptions by showing that community members are, at least in what concerns their right to life, aware of the state´s obligation to protect their right to a basic standard of life, so that they have enough food, their children have access to school, they have a stable income and can get treatment if they are sick (see Graph 7). In this same way, they also stated by a large majority that in case such right was not upheld, they could go to the State court, suggesting their familiarity with their rights and their means of claiming such rights. This suggests that rather than a lack of knowledge, communities choose to continue functioning under custom law. The fact that in Vanuatu most respondents stated that cruel punishments by community chiefs made them more respectable in front of the community (5% Strongly Agree, 70% Agree, 5% No opinion, 20% Disagree) further reinforces traditional beliefs as reason not to totally adopt human rights.

Graph 7. “I think the State should protect my right to live a basic standard of life, so that I have enough food, my children have access to go to school, I have a stable income and I can get treatment if I am sick.”

Thus, if the global response towards climate change is to be inclusive of all peoples, it needs to acknowledge the existence of custom alongside human rights and, where possible, incorporate it effectively. There is a clear need for the development of a harmonizing framework with which to respect custom yet guarantee the protection of rights of all Pacific people. Along civil and political rights, cultural rights of Pacific people need to be recognized and respected. As such, Pacific states need to explore ways in which custom and human rights can be harmonized, e.g. by looking at the underlying values of both, so that within the respect of human rights, custom continues to reflect the values and beliefs of Pacific tradition. The proposed Pacific Charter on Human Rights[30] could be an opportunity to do so.

Avoiding the cultural reality is not a solution to the problem of parallel systems. States need to recognize their obligation to the protection of both host communities and migrants, to treat them with dignity and respect and to guarantee this happens in their entire territory. International refugee law might not include environmental threats as factors of persecution or conflict[31] but this does not exempt states from addressing the needs and rights of all the people fleeing from the impact of climate change under their jurisdiction. In the case of SIDS, most of them poor and with limited resources, governments need to understand that despite their interest in economic growth, sustainable economic growth will not happen without the realization of political, economic, civil and cultural rights. In fact, economic growth and the recognition of rights can go hand in hand and might indeed be the only option for Pacific islands.

In this sense, a human rights-based approach to migration in regards to climate change is key. Newly developed policies and frameworks addressing climate induced migration need to align with human rights standards, place migrants at the very center and carefully consider the special needs of marginalized communities and vulnerable groups. Measures such as including migrants in “relevant national action plans and strategies” could be a significant step forward.[32]

However, it also needs to be stressed that for an efficient human rights-based strategy to climate change, cooperation and engagement of all actors involved is vital at national, regional and international level. Initiatives aiming at educating on human rights and capacity-building need to build on a deep understanding of how communities perceive their own individual rights in their daily lives as compared to custom practices. Communities need to be seen as a key partner in developing a human-rights approach to migration and climate change and recognized as the ground on which to build a robust response for the near and long-term future.

The case of torture

Vanuatu is a party to five of the nine core human rights treaties, including the International Covenant on Civil and Political Rights (ICCPR)[33] and the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT)[34]. On the contrary, Fiji has not formally ratified the ICCPR. Indeed, even though the Constitution and the Crimes Decree forbid torture and other ill-treatment, extensive immunities such as the Public Order Act Amendment Decree (POAD) authorized the government in Fiji to use whatever force it deemed necessary to enforce public order. In a clear expression of willingness to break with the past practices of serious human rights violations[35], Fiji signed the Convention Against Torture (CAT)[36] in March 2016 and created a Human Rights commission.

Aligning domestic legislation accordingly is a crucial step towards developing a culture of respect to human rights. Nevertheless, legal commitment to international standards or lack thereof at the national level is not necessarily reflected at the community level. As such, the percentage rate of those justifying the use of torture by the community leader in Vanuatu was of 80%, despite the countries efforts towards human rights. Only 16% of those interviewed in Fiji were supportive of torture, as shown in Graph 8.

Graph 8. “Punishments that are cruel, inhuman and a form of torture are justified; they prevent criminal activity and keep me safe.”

These obstacles to the respect of human rights standards constitute a significant barrier in the regional protection towards the impact of climate change. With little financial resources on their own, island states often depend on the international community to be able to economically face people´s needs. The Paris Agreement, for instance, requires commitment and respect towards human rights prior to granting access to funds with which to address climate change. Given the enormous vulnerability of Pacific people to extreme weather conditions already tangible today, this situation does not only undermine the overall response to climate change on the ground but leaves entire communities, especially those already on the move, unprotected.

Recommendation 6: Promote full civil participation through a continuous dialogue with local communities

Dialogue among state authorities and local communities might be challenging as the latter are usually spread all over the islands, face different realities and needs, and have their own custom. Yet, also especially for those resulting varying situations, local communities need to be recognized as crucial partner through which to gain a deep insight into their individual realities. Indeed, from an early stage, local communities have a key role to play and should “be engaged as key actors in designing plans, activities and solutions that are of relevance to them”[37].

Promoting full civil participation though periodic consultations on different topics would set up a bottom-up channel, as opposed to the usual top-down direction in which implementation of international treaties occurs. It would help Pacific governments, on the one hand, give the opportunity to communities to voice their concerns and feel engaged and, on the other, allow governments to understand first-hand the needs of their people and give response to those issues. In regards to human rights and openness to migration, it would grant governments the access to understand the standpoint of each individual community and target its approach accordingly, further allowing to develop successful integration measures.

Evidence from this research suggests that, indeed, communication between communities and their community leaders on the one side and the government on the other need to be developed and improved. In both Fiji and Vanuatu, to some extent, people agreed with the statement that the government took into consideration the opinions and views of the community leaders. However, this was not perceived as resulting in significant provision of solutions to their needs. In fact, in the two islands, community leaders where not seen as able to support people in hardship such as not having food, employment or medicines and communities were very divided when deciding whether governments were able to solve these problems. In this context, developing appropriate mechanisms for inclusive and periodic stakeholder consultations, also with those in more remote areas, would enable better targeted responses.

Given the fact that the issues of climate induced migration and the resulting direct and indirect consequences are culturally and politically sensitive, these consultations would need to be accompanied by a solid dissemination of information for communities to take informed decisions. The development of a strong communication system, more concretely by providing internet connection as well as committing to functioning of radio stations, would foster that. All in all, granting communities a real say and some level of control over the development of policies in their island state would make them feel more engaged, would provide relevant information to governments and other actors involved and would, in sum, be in benefit of all parties involved.

Recommendation 7: Conduct further research on human rights and migration in the wake of climate change in the Pacific

Climate change is often referred to as the defining challenge of our time. Indeed, it presents increasingly challenges to people in the Pacific region. Already experiencing the adverse effects of changing climate patterns and extreme weather conditions, large numbers of Pacific people, potentially even entire nations, face displacement from their homes and livelihoods. And yet, despite the efforts by the international community to tackle the issue, little is known of how efficiently international climate law is actually addressing the complex connection between climate change, migration and human rights.

In that sense, building on the findings of this and few other reports on this triangle, more research needs to be done on how the existence of two legal systems, firstly intended to respect and recognize custom as legal source, might be undermining people´s human rights. Customary law is often not only not written and thus difficult to ascertain but also diffuse and diverse. Yet, governments need to explore and interiorize the way in which communities understand their own and other people´s rights, the discrepancies among the two legal systems and how this affects members of the community. This needs to be the starting point from where to develop a framework that guarantees human security for everybody, also for those losing their land, source of income or livelihood.

Indeed, currently, the probable local-level effects on Pacific island territories and countries are poorly understood. What is known is that the variable impact on livelihood, land and habitat security across the region and within countries will force people to adapt and move to secure their survival. The tropical cyclone Pam brought devastation to Vanuatu in March 2015 and forced a quarter of its population to flee their homes. The cyclone was also felt in other islands, leaving around 166,000 people on 22 islands in need of emergency assistance, including nearly 65,000 internally displaced people (IDP) who required emergency shelter.[38] While nations recover from the damage and loss caused by cyclones and typhoons, they experience food insecurity as they need to find new ways to plant their corps, new places to fish and adapt to a new livelihood, sometimes in a different place than before.

There needs to be more human rights-based research on the economic, social, cultural, psychological and environmental costs of climate change-related migration for those on the move, host communities and those who choose to stay in their home land.  This report points at the contradictory feelings members of the community have towards migrants and their rights. Even though all people interviewed in Vanuatu strongly expressed the need to make place in their island for people forced to leave their homes due to natural hazards, up to 46% did not share this view in Fiji. Both communities did not see it as a responsibility of the state to help migrants as it should focus on its own citizens (95% agree in Vanuatu, 91% do so in Fiji) and pointed as the main reasons not to make space for people from neighboring islands at socio-economic reasons such as jobs and lands (33% total), different cultural practices (37% total), the inability of migrants to integrate (19%), and natural resources mainly land related (11%). These potential sources of conflict add to the communities´ perception of migrants as risk to retaining their own culture and way of life, potentially leading to social instability and conflict.

Indeed, climate change is a contributing factor to instability in the region. However, the extent of its multiplying effect where other interrelated factors and vulnerabilities force populations to migrate are present, remains vastly unknown.[39] Thus, as the Pacific suffers severely from damage and losses, island governments should support research at interdisciplinary and cross-disciplinary level so as to understand, address and combat these regional threats. For that aim, strengthening national capacity to support the collection and dissemination of information and analysis as to what the root causes are for people to migrate, the extent of the impact of climate change on migration and identifying vulnerable groups to extreme weather conditions are essential.

Along those lines, field research at the community level with which to listen to people´s opinions and experiences would shed some light on what each community´s needs are and help create channels to make assistance reach also those most in need. As mentioned in a previous report by United Nations University on the Pacific[40], collection of data on the scale and patterns of possible climate change-related migration continues to be scarce, making it hard for Pacific Governments to address the problem. Collecting household-level information requires a common methodology to evaluate environmental migration in the region which would need to be developed and agreed on in order to be able to compare data and address the issues from a regional perspective. A joint bottom-up approach would not only help the collection of data but alleviate the pressing need for knowledge on how adaptation, migration and environmental policy and strategies could be integrated and encompass both community and national perspectives.

Of special relevance are in this context the most vulnerable communities. For example, the gender implications of climate-change related migration are very much under researched and thus not well understood. Often, migration data are not disaggregated by gender, impeding further analyses of the gender implications of climate-induced migration. This need for additional research becomes especially urgent in the context of rigidly patriarchal societies like the Pacific ones, in which there are generally no laws specifically outlawing harmful practices against women[41]. Indeed, patriarchy extends from the rules governing domestic relations to land tenure[42], with many practices indirectly sanctioned as being part of customary law. For instance, a study in 2009 reported that in Fiji, as a response to perceived racism and ethno-nationalism, young girls were being married off to men who were overseas nationals in their parents´ hope to secure for them a materially good life overseas, without further considerations on their feelings or whether their lives were put at risk.[43] In Vanuatu, other instances involving the kidnapping and unlawful imprisonment of women rise what seems to be a persistent problem with the violation of women´s rights  in the region.[44] It is not clear whether these and other practices are still a recurrent pattern and more insight into the gendered characteristics of migration and other vulnerable populations within and beyond the Pacific is needed, in order to incorporate this information and a human rights-based strategy into migration and integration policies alike.

Research Team

Research Coordinator

Cosmin Corendea

Research Consultant

Marta Guasp Teschendorff


[5] Ibid

[6] MPI (2014): “Human Rights, climate change, environmental degradation and migration: a new paradigm”

[9] The framework for Pacific Regionalism: Pacific Regional Operations Business Plan 2015-2017, https://www.adb.org/sites/default/files/linked-documents/pacific-robp-2015-2017-sd.pdf

[12] When asked whether the State Court would treat them fairly in case of dispute, 65% people in Vanuatu said they had no opinion, 20% agreed, 15% disagreed. In Fiji, to the same question people strongly agreed to a 5%, agreed to a 53%, disagreed to a 32% and 10% stated to have no opinion.

[16] australia-news/2016/feb/20/cyclone-winston-virgin-australia-and-jetstar-cancel-services-to-and-from-fiji">https://www.theguardian.com/australia-news/2016/feb/20/cyclone-winston-virgin-australia-and-jetstar-cancel-services-to-and-from-fiji

[17] UN ESCAP (2014): “Climate Change and Migration Issues in the Pacific”, p.7

[23] Campbell, J. R. (2010): Climate-induced community relocation in the Pacific: the meaning and importance of land. In Climate Change and Displacement: Multidisciplinary Perspectives, J. McAdam, ed. Oxford: Hart

[28] Bennett T. W. (1995): “Human Rights and African Customary Law, Juta & Co Ltd, Cape Town, p.5

[38] Global report on international displacement 2016 – GRID 2016

[41] Jalal Imrana (2009): “Harmful practices against women in the Pacific Island countries: customary and conventional laws”, United Nations Division for the Advancement of Women, Pacific Regional Rights Resource Team (RRRT/SPC)

[42] Ibid

[43] UN ESCAP (2009): “Pacific Perspectives on the Commercial Sexual Exploitation and Sexual Abuse of Children and Youth”

[44] Jalal Imrana (2009): “Harmful practices against women in the Pacific Island countries: customary and conventional laws”, United Nations Division for the Advancement of Women, Pacific Regional Rights Resource Team (RRRT/SPC)



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