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Gogarty, Brendan --- "Climate-change Displacement: Current Legal Solutions to Future Global Problems" [2011] JlLawInfoSci 9; (2011) 21(1) Journal of Law, Information and Science 167

Climate-change Displacement: Current Legal Solutions to Future Global Problems



Recent scientific work indicates that the effects of climate change on population displacement are much greater than previously predicted. As of yet, there is no agreed framework for climate change displaced people. This article responds to the current information arising from climate change science and considers the most appropriate legal framework to deal with the looming threat of massive and unprecedented population displacement.

1 Introduction

In the 28 October 2011 edition of the respected international journal Science a consortium of scientists lead by de Sherbinin et al, warned that, ‘resettlement in response to climate [change] impacts [will] become virtually unavoidable in some regions of the world’.[1] That is not an entirely new assessment of the impacts of climate change; the Intergovernmental Panel on Climate-change (IPCC) for instance, has been warning since its establishment in the 1990s that climate-change would serve to ‘uproot’ millions of people worldwide.[2] However, much of the early work on climate-change has been dedicated to risk identification and risk minimisation strategies, particularly as they relate to anthropocentric risk factors such as carbon emissions.[3] Recently the focus has not so much shifted away from the causes of climate-change as broadened in recognition that its effects are, as Sherbinin et al stated, ‘unavoidable’.

The unavoidable nature of climate-change is causing a broadening of the climate-change agenda from cause to consequence, most notably in the 2010 session of the Council of the Parties (COP16) of the United Nations Framework Convention on Climate-Change (UNFCCC) at Cancun which saw the parties agree to take ‘measures to enhance understanding, coordination and cooperation with regard to climate-change induced displacement, migration and planned relocation, where appropriate, at the national, regional and international levels’.[4] Although this is a much weaker commitment than some had hoped, it is an important one for two reasons. First, because it marks a shift in contemporary international law and policy from being almost solely focused upon the causes of climate-change towards a broader platform that includes planning and managing for its consequences. Secondly, because it evidences an understanding that migration and displacement are not merely a direct consequence of climate-change itself, but part of the adaptation measures required to deal with climatic events.

COP16 therefore placed migration and displacement on the climate-change agenda. Yet it remains a very small part of that agenda and has, to date, only received a small proportion of the attention that has been dedicated to mitigation policies. What the de Sherbinin paper indicates is that imbalance — at least such a severe imbalance — needs revision. Climate-change displacement is an important and serious problem, the scale of which, they argue, is ‘underestimated’ by much of the international community.[5] In part that is because many have viewed displacement as a somewhat distant problem; the eventual consequence of long term impacts of climate change, such as sea-level rise and increased natural disasters. That view must be challenged: in part because the planet is warming faster than previously thought; in part because of the apparent increase in displacement causing global natural disasters;[6] but also because climate-change adaptation and mitigation strategies themselves will be an amplifier of displacement.

Given the marked increase in the severity and scale of the drivers of displacement arising out of climate change, there is a serious and pressing need to develop strategies and frameworks to properly manage the humanitarian, environmental and security risks that will arise from it. As the de Sherbinin consortium points out, managing climate-change displacement (CCD) will be a massive undertaking that will require cooperation and coordination on a global scale.[7] Their primary recommendation is therefore the establishment of ‘legal frameworks for climate-change resettlement to protect welfare and human rights of affected populations’.[8] What the consortium do not address — quite understandably given their expertise and audience — is just how such a legal framework should be structured or constituted. This is a question of some controversy and disagreement.

As will be discussed below, much of the tension about the appropriate framework derives from systemic fault-lines in existing international climate and migration frameworks. Advocates of a convention argue that the gaps and instability of existing frameworks militate towards the creation of a bespoke hard law system.[9] Opponents ironically cite the same problems as the basis for rejecting a new convention on the grounds that the lack of progress in existing climate-change frameworks is evidence that a new convention would not gain support and that creating such a convention would compound instabilities and fractures within existing frameworks. Such positions reflect the often intractable complexities involved in international law and diplomacy. However, such complexities must be resolved before moving forward to deal with the now unavoidable consequences of climate-change induced displacement. The de Sherbinin study reinforces that managing displacement on a comparably small regional scale has been fraught. However, climate-change impacts will not be regional but global and will therefore affect regions of much greater a magnitude. The remainder of this paper will consider the proper framework model for an appropriate response to this level of displacement.

2 Terminology

Before turning to human impacts of climate-change and the adequacy of current legal frameworks it is important to examine the terminology and taxonomical categories, which relate to human migration. Terms such as ‘migrant’, ‘displaced person’ or ‘refugee’ are often used synonymously and interchangeably, not only in common parlance but also in academic literature and government policy documents.[10] From a legal perspective however, such words have limited and relatively distinct meanings. They also describe regulatory brackets under which persons may invoke protection from states or international agencies.

As Muggah explains, whilst generally ‘taxonomic fluidity may be desirable’ within a legal setting ‘a more consistent and careful application of terminology ... is required’.[11] That is, for the most part, because of the assumptions upon which migration law is based, namely that human populations are, or should be relatively stable and fixed to territorial jurisdictions, and where that permanency is upset it creates serious social, economic and humanitarian burdens and risks.

The fundamental root of migration taxonomy lies in the distinction between voluntary and involuntary human movement.[12] The simple basis for such a distinction is that, logically, those who move voluntarily should bear the majority, if not the entirety of the burden arising from their migration, and should be able to justify the costs of their resettlement in the recipient jurisdiction. Such persons are considered to be displaced insofar as their movement is ‘forced’, ‘involuntary’ and ‘involves some form of de-territorialisation’.[13] As will be discussed below, this distinction is problematic and, in many cases can be largely illusory but it forms the basis for the application of most international and domestic migration law.

Beyond the voluntary /involuntary distinction, current international legal frameworks tend to distinguish between the drivers of the migration and its final destination. Specifically, to be classified as a refugee under the 1951 Convention Relating to the Status of Refugees and its 1967 Protocol[14] (herein together referred to as the ‘Refugee Convention’), a person must establish:

a) a ‘well founded fear’ of being persecuted;

b) the persecution relates to one of the established grounds under the convention, namely because of their ‘race, religion, nationality, membership of a particular social group or political opinion’; and

c) have migrated from the territory of one sovereign state to the territory of another to escape the persecution.[15]

A person seeking, but not yet determined to meet these criteria, who has already fled their jurisdiction is ordinarily referred to as an ‘asylum seeker’.[16] If all three elements are made out at the point of determination the person will be categorised as a ‘refugee’ under international law, which obliges ratifying states to afford specific legal status and relevant protections thereunder. In the absence of all three elements the person will generally be described as either a ‘voluntary migrant’ (if the first two elements are not established) or ‘internally displaced’ person (if the third is not made out). Importantly, internally displaced people must by definition still be forcibly ‘de-territorialised’, albeit ordinarily within the confines of a sovereign state boundary; the de-territorialisation must also be ‘involuntary’.[17] Unlike refugees, the definition is not limited to an exclusive set of drivers but is generally accepted to include displacement ‘armed conflict, situations of generalized violence, violations of human rights or natural or human-made disasters’.[18] Whilst some have suggested that the term ‘disasters’ does not include slow onset disasters, that does not reflect institutional practice or the relevant UN Agency positions and therefore it is taken to include all forms of natural disaster.[19]

This paper therefore uses the following definitions:

• ‘Migrant’: any person moving permanently or semi-permanently between two territorial locations;

• ‘Displaced’: is taken to refer to any person who has been forcibly de-territorialised by any agent, regardless of whether they have crossed an international border.

• Internally Displaced Persons (IDPs): are those who have not crossed a border.[20]

• ‘Refugee’: is taken to refer to a person meeting the elements required by the Refugee Convention set out above.

3 Environmental Displacement

It is estimated that more than half the displaced people in the word have been forced to flee as a result of environmental factors,[21] such as natural disasters, long-term environmental degradation, industrial accidents and ecosystem damage from war,[22] and more recently due to large industrial or environmental projects.[23] None of these drivers are included as relevant criteria for the purposes of the Refugee Convention and as a result, those who are displaced because of them are not considered ‘refugees’ for the purposes of international law.[24] If persons cross an international border as a consequence of such drivers they are therefore considered to be ‘voluntary’ migrants, notwithstanding the fact they were forced or pushed from their homes by environmental causes. This has led to a four-decade-long campaign by scholars,[25] NGOs, peak UN bodies[26] and governments[27] to recognise ‘environmental refugees’ within the Refugee Convention; it has however been an ultimately futile one. The reasons for this are two fold: first because environmental factors are viewed by critics as secondary and not dominant causative factors in forced migration;[28] and second, on the occasions they are the dominant driver, they only produce temporary displacement unless there is a failure of an anthropocentric system, at which point that failure becomes the dominant causative driver.[29]

The first of these arguments is based on the notion of multi-causality, especially in relation to slow-onset disasters and environmental degradation. Critics have consistently argued that people rarely, if ever, move away from their homes simply on environmental grounds, but rather do so due to a complex overlapping set of hazards arising from them.[30] When, for instance, is a person ‘forced’ to move because of a drought, the famine it causes or the social instability it creates? Refugee scholars argue that, realistically most people in this situation will leave the area of risk in anticipation of the hazard, rather than being actually driven by it.[31] The exception to the above-stated rule is, of course, rapid onset disasters or industrial accidents. In this respect however, critics point out that: first, people fleeing natural disasters usually do so within the territorial boundaries of states; and second their displacement is ordinarily only temporary, insofar as the dominant concern of such displaced people, and arguably their governments or those who come to their aid, is to repatriate them to their homes once the hazard has abated.[32] By this argument those displaced by rapid onset disasters only need temporary sanctuary to literally weather out the storm rather than to migrate permanently or semi-permanently to an extraterritorial refuge.

Underlying the antagonism to the legal recognition of environmental refugees is the view that transnational de-territorialisation is predominantly a result of anthropocentric systems and not natural ones. As Bogardi states, ‘the term “environmental refugee”...[masks] what are often compound motives behind migration and implicitly laying the blame on nature when often the policies and practices of people are the cause of displacement’.[33] In other words, third state responsibility should only arise when the dominant causative factor is the failure of primary state responsibility. From the refugee perspective, this is evidenced by conflict or persecution on behalf of a state which is a product of the mismanagement or misattribution of natural resources or international aid. Such views are highly artificial and make flawed assumptions about state beneficence to properly manage limited resources.[34]

The majority of environmentally-displaced people come from regions where governments lack the financial or structural capacity to deal with slow or rapid-onset disasters.[35] Even the most well-meaning states in these areas are unable to feed their populations, and international aid is both insufficient to cover the gap, but also logistically unable to reach all the areas it is needed. People in such situations must move to where the food and the resources are to survive. It is perhaps, cynically, for this reason that states are reluctant to extend the Refugee Convention to include environmentally displaced people.

As Loescher notes, the current refugee framework already sits in ‘perilous balance between the protection of refugees and the sovereign prerogatives and interests of [member] states’.[36] As Newbold concludes, much of the reluctance to extend existing frameworks to environmentally displaced people derives from the ‘fear within the developed world that this would open a floodgate of refugees into a system that is already strained by the existing number of political refugees’.[37]

4 The Climate Refugee Debate

It is now accepted by peak science, policy and governance bodies[38] that climate-change will cause the displacement of human populations beyond the natural and anthropocentric drivers that already exist. This will occur mostly because of:

• Impacts upon ‘water availability, ecosystems, agricultural productivity, disaster risk, and sea level’;

• Competition for land and resources arising from such impacts; and

• As, per de Sherbinin et al, climate-change and mitigation projects themselves. These include ‘dams for hydropower and water storage, biofuel plantations, seawalls, coastal defenses, and water reallocation projects’ all of which are likely to lead to migration and displacement.[39]

According to the Secretary General of the United Nations General Assembly (UNGA), such factors are predicted to directly or indirectly create anywhere between 50 and 350 million displaced people.[40] That in turn has given rise to a debate about the need for international law to recognise ‘climate refugees’. Given the fact most of the underlying drivers of migration are climactic, the debate on climate-change displaced persons (CCDPs) has taken a largely similar path to that relating to the environmental debate that immediately preceded it.

On one side of the CCDP debate are the so-called ‘maximalists’ who assert that climate-change will be a direct driver of population displacement.[41] Conversely, ‘minimalists’ argue that any displacement will be indirect or multifaceted,[42] and that ‘migration represents a failure of adaptation’.[43] Neither position is particularly compelling.

The minimalist view flies in the face of accepted predictions by peak science bodies and UN agencies of the massive number of people[44] that will become displaced as a consequence of climate change. Given the humanitarian and environmental consequences of such amplified displacement and the recognition of the UN High Commissioner for Refugees that climate-change will undermine ‘traditional distinctions between refugees, internally displaced people, and international immigrants’[45] the minimalist argument about the multi-causality appears somewhat artificial. The arguments that it will not create a security threat to member states similarly contradicts the considered reasoning of the UN Secretary General that climate-change is a ‘threat multiplier’ which will ‘raise issues of sovereignty, rights and security’. Ultimately climate-change will create massive displacement, be it directly or indirectly and that displacement will create regional if not global instability; the question is what should be done about it.

The maximalist view, however, is also problematic. It often tends to cast climate-change as a new problem, whereas it is ultimately an amplifier of existing problems and therefore will amplify existing political intransigence arising from such problems. Arguing for a new category of climate refugees will be as, if not more, frustrating and frustrated as the long-standing argument for the inclusion of a category of ‘environmental refugees’ within the Refugee Convention. Indeed, even though the UN Secretary General recognised the serious security threat of climate change, migration was seen as a product of multiple overlapping factors and climate-change migration was viewed through the prism of normative models of environmental migration, namely as intrinsically linked with domestic and international conflict over disappearing territory, reduced resources, state instability and food security. Similarly, despite the fact the UN High Commissioner for Refugees has recognised that climate-change will undermine traditional distinctions, that recognition has done little to change the political realities within the organisation in its policy or in the field.[46] Indeed, although UNGA Res. 63/281 of 2008 has committed UN organisations to ‘consider and address the threats posed by climate change’ they have tended to so within their existing silos and little work has been achieved to deal with the much larger macro-management problem that de Sherbanin and others are warning of.

5 The Consequences of Unmanaged Displacement

As Muggah notes, ‘forced displacement presents one of the greatest challenges to humanity in the twenty-first century. It distorts regional, national and local economies and tears apart communities and families.’[47] Cerna’s Impoverishment Risks and Reconstruction model identifies: landlessness; joblessness; homelessness; marginalisation; food insecurity; increased morbidity; loss of access to common property resources; and community disarticulation as the main risks to displaced populations.[48] Muggah has added the further risks, which include: ‘loss of education, loss of political participation and violence’[49] and Cardozo et al point out that the ‘short and long-term mental health effects of displacement may be immense’.[50]

Displaced persons can also create problems in the places they resettle, particularly where that resettlement is unmanaged or undermanaged.[51] Some have argued that refugees are ‘exceptional resource degraders’ as a consequence of their poverty, short time horizons, lack of local environmental knowledge and traumatised psychological status.[52] Certainly a range of studies indicate that refugee populations will compound, if not cause environmental and resource stresses on local environments and systems,[53] especially where they are housed in refugee camps.[54] Others have argued that detrimental impact on host environments is not inevitable and ‘the degree and extent of degradation depend on a variety of factors’,[55] not least the resources they bring with them, the amount of support provided to them when they arrive, their concentration and permanency.

Ultimately the question of a displaced population’s impact on the host territory will be dependent on the effective management of their resettlement, especially during its initial stages.[56] Providing humanitarian assistance, particularly for basic needs in the initial stages of resettlement is pivotal to reducing environmental impacts; otherwise displaced people are forced to rely on local ecosystems for food, water and fuel.[57] In the long term it is important to work towards reducing the size and population intensity of refugee camps, providing employment, social and welfare services, education training, clear lines of authority and managerial responsibility, community engagement and working towards community integration will all greatly minimise the risks and impacts of resettlement.[58] Failure to achieve such measures will exacerbate existing risks for displaced populations as well as host communities and environment they move into, which can lead to tension, friction and conflict.[59]

Effectively resettling displaced populations in a manner that reduces risks and impacts upon them and their host territory/community requires effective, coordinated and informed macro-management. That process must begin at the point of displacement, but also continue through resettlement and into long-term to ensure effective integration and stabilisation of displaced and host communities. Despite a general recognition of this by the international community, large-scale displacement management remains fraught. As noted above, the largest proportion of displaced people in the world have been environmentally displaced, and, not falling under existing frameworks, languish in refugee camps for significant periods of time. According to the UNHCR, approximately 7.2 million displaced people were in ‘protracted situations’ at the end of 2010,[60] and in the previous year it reported ‘resettlement benefits a small number of refugees ... less than 1 per cent of the world’s refugees directly benefit from resettlement.’[61] Such protracted displacement, the UNHCR argues poses ‘a major challenge to UNHCR and its partners, to host countries, the refugees themselves and the international community at large’.[62]

Given most displaced people come from developing countries and are displaced internally, or to adjacent countries who similarly have few resources,[63] macro-management failures may be attributed to ‘scarcity of resources, political instability, and weak governance and justice systems’ which all contribute towards poor management of displacement and resettlement.[64] Yet, in many situations managerial failure is also to blame, even within states that have forcibly moved people for development or environmental projects — and hence in situations where there was a longer lead-time for planning for the management. As Cerna argues, forced environmental displacement is ‘often carried out in ways that cause the affected populations to end up worse off’.[65] There is little in the way of systematic accepted management approaches to such resettlement and even less in the way of coordinated responses to them.

As the de Sherbinin consortium point out, ‘resettlement is a complex process, with major challenges emerging immediately after displacement’ and ‘resettlement praxis is only beginning to benefit from systematic study of past resettlement efforts, let alone application of this knowledge to the peculiarities of climate-related resettlement.’[66]

Climate-change will multiply the scale and severity of existing displacement. It will reduce the territory which can be relied upon to resettle displaced persons — ‘land scarcity, measured by population density’ is the greatest threat to successful resettlement[67] — and will therefore be, as the UN Secretary General concluded a ‘threat multiplier’. It is therefore imperative that a pre-emptive and coordinated framework be developed that responds to the migration and displacement consequences of climate change.

6 Moving Forward

Given the serious problems presented by CCDP and lack of progress and normative gaps in existing frameworks to deal with it, maximalist academics have argued for highly complex multilateral CCDP Conventions that would plug normative gaps and provide a bespoke international framework for short and long term CCDP problems.[68] Such an approach is highly attractive and provides a solution to the multiplicity of problems faced and created by CCDPs. Unfortunately, however, it is one that is pragmatically flawed.

As specious as the minimalist arguments are, they are grounded in the entrenched modalities of an international legal order dominated by notions of sovereignty and territoriality. If climate-change will magnify environmental risks — which are already the most prominent source of forced displacement — then it is likely to magnify the political intransigence about environmental migration and displacement.

States, particularly wealthy ones, will continue to insist on controlling their borders. They will still expect migrants to bear the burden of their re-territorialisation and will continue to limit the categories which give rise to state responsibility to alleviate such burdens. In other words, they will continue to rely on taxonomical categories and emphasise dominant causation within them. As Castles rightly notes, we will not escape legal, definitional taxonomies, no matter how artificial they are, because they ‘reflect and reproduce power, and none more so than the refugee definition’.[69]

6.1 The Causation Issue

It is extremely hard, if not impossible to distinguish between climate-induced disaster or degradation and purely ‘natural’ disasters. Proving that climate-change, rather than regular, cyclical, or even aberrant weather events is the cause of the displacement will require complex scientific and technical determinations. It will also require longitudinal data and prospective risk analysis to determine whether the hazards will create semi-permanent or permanent displacement. Finally, it will require socio-political determinations about whether the de-territorialisation must necessarily have been across a state-boundary. As the de Sherbinin consortium warn, even if such weather events are a direct result of climate-change, many will view the displacement as a failure of adaptation by governments, rather than climate-change directly.[70] McAdam takes this one step further, questioning whether ‘singling out a category of “climate-displaced people” in any international treaty’, is appropriate because, she argues, ‘much of the “responsibility” for movement... may be ... attributable to international structures (economic and political) that perpetuate an ever-growing divide between rich and poor countries, rather than to acts or omissions of the government in the country of origin’.[71]

To expect a CCDP to meet the evidential burden of establishing causation in such circumstances would be impractical, if not impossible. Those persons would be unlikely to have access to the requisite information, let alone analytical capacity to build a case relating to it. Even if states were willing to accept the costs of the evidential burden, the complexities would remain because climate-change would need to be determined as the causative element against all the abovementioned considerations. As McAdam argues, CCDP causation creates ‘difficulty and inconsistency in decision making’ and greatly impacts the efficiency and therefore fairness of state refugee processing frameworks.[72]

A CCDP Convention framed in contemporary terms — in particular insofar as the evidential burden is on those seeking refuge to prove they meet the relevant protection criteria — would be an impracticable if not impossible source of protection for people fleeing across state borders. To expect such persons to have access to the requisite information, let alone analyse, interpret and build a case upon it, is unrealistic in the extreme. Even if states were willing to accept the costs of the evidential burden, the complexities would remain because climate-change would need to be determined as the causative element against all the above stated considerations.

CCDP Convention advocates have responded to causation problems by arguing firstly that evidential burdens could be overcome by creating a multilateral body to undertake en masse assessments of at-risk areas with a higher threshold of proof for individual causation to ease regulatory burdens, and to make signing up to a proposed convention more palatable to states.[73]

Of course, the primary problem with the en masse solution is that it does not overcome the normative bias for a case-by-case assessment of those seeking asylum, the view infamously encapsulated by former Australian Prime Minister John Howard when he stated ‘[w]e'll decide who comes to this country and the manner by which they come’[74], notwithstanding most people of the asylum seekers he was referring to came from Afganistan, which any en masse analysis would show to be the most dangerous place in the world, especially for the women aboard the boats. More than a decade after that statement, little of the xenophobic public attitude that catered to such political positions has changed.

Even if we are to recognise that such designations are the appropriate mechanism, they are not an argument for a CCDPC Convention, insofar as they critically overlap with existing competencies in the UNFCCC. That framework is specifically centred upon risk analysis of climate-change and works with a range of agencies to provide geo-spatial assessments of CCDP risks.[75] It is also capable of predicting, managing and providing a cooperative legal framework for CCDPs.

That is not to say en masse designations are not an extremely useful and important tool in climate-change mitigation and adaptation. Indeed the de Sherbanin paper reinforces the necessity of developed macro-geo-spatial risk assessments and policies relating to displacement. However, the need for such designations does not axiomatically create the need for a CCDP Convention, at least insofar as proponents view such a convention as providing the foundation for a new international organisation to provide such designations and macro-manage displacement. This is something the current UNFCCC framework already provides for. A new climate-change displacement specific organisation and treaty which supported it would critically overlap and compete with the existing UNFCCC framework.

6.2 UNFCCC Migration and Displacement as Adaptation

The current UNFCCC provisions are broadly expressed to cover both climate-change mitigation and adaptation. Article 4, for instance, requires inter alia that all parties ‘[c]ooperate in preparing for adaptation to the impacts of climate-change’; consider the ‘relevant social, economic and environmental policies and actions, and employ appropriate methods ... to minimizing adverse effects”; and that developed countries “assist the developing country Parties ... in meeting costs of adaptation to those adverse effects.”

COP16 saw a long and protracted argument about migration and displacement under the UNFCCC. The resulting Cancun Agreement ‘invites’ parties to undertake ‘measures’ to: ‘enhance understanding, coordination and cooperation with regard to climate-change induced displacement, migration and planned relocation, where appropriate, at the national, regional and international levels’.[76] This is hardly a concrete commitment but it shows an acceptance amongst the parties that migration and displacement fall within the purview of adaptation under the remit of the Convention.[77] Importantly, those parties include the G20 nations which are both some of the biggest polluters but also the most important funding sources for the international legal order, especially as it relates to refugees and the environment. Whilst the UNFCC has been criticised for its ‘common but differentiated’ approach to ‘non annex’ parties, especially India, China and Russia, it should be noted that Article 4 still imposes commitments upon those member states.

6.3 Undermining the Current Framework

The UNFCCC therefore has the potential to support CCDP provisions and the potential support for such provisions being included as part of adaptation strategies by member states. However, creating a specific CCDP Convention may undermine moves from within the UNFCCC or possibly conflict with them should they progress further. That should be avoided.

Readers of this journal will likely be aware of the problems created by overlapping or conflicting international treaty regimes for international data flows and privacy.[78] Similar problems with conflicting substantive law conventions in other areas such as international civil procedure, environmental law,[79] law of the sea[80], intellectual property[81] and trade[82] are well documented.[83] Conflicting parallel treaties can greatly impact on international cooperation and progress towards common goals. They can create disunity and differing standards, with the potential that those who contribute most to the problem might favour or justify their behaviour based on the convention with the lower standard. As a general rule we should be promoting harmonisation and centralisation of international law, not creating parallel or differing standards under multiple conventions.[84]

The UNFCCC is an extremely important multilateral agreement that has placed climate-change on the agenda and driven domestic and international policy, albeit in the face of belligerent opposition. However, that framework is experiencing systemic instability and is at risk of losing the support of pivotal nation states.[85] It is important to avoid alternative conventions in such circumstances, especially ones that are much narrower in focus or apply lower standards.

Article 3(3) of the UNFCCC requires all parties to take ‘precautionary measures to ... mitigate [climate-change’s] adverse effects’ even where there is ‘lack of full scientific certainty’. This inclusion of the precautionary principle was highly contested and hard fought despite it being frowned upon by large polluters such as the US and Australia. Importantly, Article 3 makes no mention of the common but differentiated responsibilities that are found in other articles of the Convention that have given rise to so much controversy.

Because CCDP Convention advocates have had to deal with the causation problems and criticisms in international migration law, they have necessarily engaged a much higher threshold in their proposed convention. For instance Hodgkinson et al recommends a greater than 90% ‘very likely’ test that climate-change factors were the cause for the displacement.[86] In other words, adaptation strategies involving migration and displacement under the maximalist convention model would only be engaged where there is full, or nearly full scientific certainty; a position that runs contrary to the precautionary principle. At best this serves to create differing standards at international law about the use of precaution and scientific evidence. At worst it threatens to draw states already dissatisfied with the UNFCC towards a much narrower convention with lower standards and no obligation to reduce emissions.

6.4 IDPs

The final argument put forward by maximalist CCDPC Convention advocates is that such a convention would largely focus on IDPs, thereby reducing international migration as a consequence of climate-change and therefore state resistance to a CCDPC Convention.

I have already dealt with this argument above, inasmuch as the lack of hard law represents a lack of political will to enter into new treaties covering IDPs, especially where the potential volume of people covered is in the tens if not hundreds of millions. Indeed, a CCDPC Convention that is largely focused on creating new financial commitments that have no direct benefits — insofar as it will ultimately be seen to provide aid to third states to manage their internal problems — is unlikely to gain traction in the current global economic environment, if ever.

7 Building on an Existing Foundation Framework

The UNFCCC is an existing framework which provides for equitable redistribution of financial resources, technical knowledge and logistical support between the most and least developed countries on climate-change.[87] It has an existing funding and technology transfer mechanism to facilitate adaptation strategies and projects in developing countries.[88] It has a range of specialist bodies which can assist CCDP risk analysis, including: the IPCC; Global Environment Facility Technology Executive Committee; and Least Developed Countries Expert Group. Furthermore, the UNFCCC framework envisions working in cooperation with other UN organisations at the annual Conference of the Parties,[89] and more generally through institutional linkages with the Convention Secretariat.[90] That has ensured important interaction with peak UN Bodies responsible for both refugees and IDPs, and the development of the climate-change agenda within these arenas. In particular, the contributions of the UNHCR, the International Organisation for Migration (IOM), UN-OCHA as well as a range of NGOs and other peak bodies were pivotal to placing migration and displacement on the adaptation agenda at COP16. Continued work to synthesise the various overlaps in the UNFCCC adaptation practices interface gateway under the Nairobi Work Programme will continue this trend and should be encouraged.[91]

7.1 A UNFCCC Model

The preferable response to the de Sherbinin consortium’s call for ‘legal frameworks for climate-change resettlement to protect welfare and human rights of affected populations’ is not a new CCDPC Convention, but rather redoubled efforts to create new frameworks on migration and displacement as an adjunct to adaptation work under the existing UNFCCC Convention. That could be either by an additional multi-state protocol or, as Williams argues, a series of regionally based protocols to the UNFCCC.[92] Such protocols could:

• Establish a new coordinating body for migration and displacement within the UNFCCC framework or expand the mandate of the abovementioned existing bodies;

• Provide funding, support, modelling data and for anticipatory, managed displacement within countries as an adaptation device via National Adaptation Plans;

• Support the role of cluster oversight organisations such as UN-OCHA for climate-change induced rapid onset disasters;

• Act as a cluster for existing UN Organisations with a role in climate-change risk resilience;[93]

• Provide a platform for the re-affirmation of the Guiding Principles as a component of state practice and work with UNHCR and UNEP to expand the principles to cover perceived gaps relating to long-term environmental degradation;

• Provide a legal platform (via COP Agreement/regional protocol) for the affirmation of state responsibility to provide a safe haven from sudden onset disasters;

• Provide a mechanism (via COP Agreement/multilateral protocol) for the affirmation of and response to de-territorialised sovereign states, particularly small island developing states (SIDS);

• Build on, or provide funding mechanisms to purchase land and negotiation mechanisms, into agreements with sovereign states for SIDS or other countries at genuine risk of losing territory as a consequence of sea-level rises; and

• Permit states to enter into regional protocols to share the burden of CCDP migration over the long term as an adaptation to climate-change in line with Williams’ recommendations.

This protocol-based approach to CCDPs is to be preferred to new convention models. Indeed it reflects most of the laudable recommendations that form the basis of those models, covering the same identified gaps, and using similar structures, but places them into an existing framework that has both the capacity and the support of the international community.

Critics of such a model argue that the failure to reach consensus on mitigation targets at Copenhagen and the continuing related problems with the Kyoto Protocol mean other protocols are doomed to failure. However, that assumes states will respond with the same intransigence to adaptation protocols as mitigation ones and this may not be the case.

Domestic populations are increasingly aware of the very proximate dangers presented by climate-change and are placing increasing pressure on their governments to do something about it. Yet at the same time the world’s population is growing in size, consuming more energy and resources, making such emissions reductions is economically and, ironically, politically unpalatable. An additional protocol on displacement would permit states to take multilateral action with respect to the consequences of climate-change, whilst continuing to work towards the resolution of how to reduce its causes. That is an approach which is working at the domestic level in Australia where attempts to introduce a carbon cap on industry stymied, but a carbon tax, which permits continued emissions but places monies into management strategies has not. Whilst arguably not the best solution, it is one that has served to translate political debate forward into practical solutions. That is something which is very much needed at the international level.

8 Concluding Remarks

Maximalist arguments for a bespoke CCDPC are based on well accepted scientific modeling, considered and reasoned regulatory responses structured on international risk equity and reasoned principles of risk management. They would most probably be the most effective mechanism to deal with the looming humanitarian disaster of CCDPs if they didn’t have to operate within the confines of an international legal order which is based on sovereignty. Sovereignty demarcates geo-spatial boundaries that are largely irrational, it speaks to insularity, xenophobia and the short-sightedness of political systems within member states and it relies on commitments from entities whose primary economic, social and moral commitments lie with their domestic populations rather than the world at large.

Whilst the last century has seen the international order evolve to be much more globally focused it is still fundamentally based on the principle of sovereignty. The impact of that foundation principle on global action against global threats like climate-change was evident at Cancun and looks to continue on to undermine efforts to mitigate climate-change at COP 17 in Durban. The self-serving and myopic positions adopted by member states at those conferences provide evidence of the ultimate failure of a CCDPC not support for it. States are unlikely to sign up to new conventions which increase their duties to non-citizens, especially where it creates regulatory and financial burdens if there are no direct, proximate and tangible benefits to them. That is especially so when they have already committed to providing similar support under a separate convention framework.

Of course all of these arguments stand equally against states accepting further protocols or structural changes under COP Agreements to the UNFCCC relating to migration and displacement. However, unlike aspirational CCDPCs, member states are locked into the UNFCCC process, legally, financially, structurally and most importantly politically. Walking away from that process — or indeed continuing failures to come to a consensus under it — would be damaging for national governments, especially in the developed world. An additional protocol or protocols on CCDPs would permit them to show commitment to solving the long term consequences of the problem thereby alleviating some of that domestic political pressure.

Hence, as bleak as the UNFCCC landscape may currently appear, it is there that pressure must be placed — not least through the 1,409 NGOs and 86 IGOs that have observer status — and efforts must be made to build responses within that framework. Trying to build frameworks outside of it will distract from those efforts and possibly serve to create competing conventions and principles on climate action; that must be avoided. Given the de Sherbinin consortium’s warning that one of the major sources of displacement will be climate-change mitigation and adaptation strategies themselves, there is more evidence than ever supporting the efficacy of dealing with all of these issues in one single framework. Their further warning of the complexities of macro-managing such displacement merely compounds the need to use a well established system that possesses more than two decades of institutional knowledge, scientific and technical resources and the commitment of almost every state in the world to combating climate change.

[1] A de Sherbinin et al, ‘Preparing for Resettlement Associated with Climate-change’ (2011) 334(6055) Science 456, DOI: 10.1126/science.1208821.

[2] IPCC, Houghton, Jenkins and Ephraums (eds), Climate Change: The IPCC Scientific Assessment, Contribution of Working Group I to the First Assessment Report of the Intergovernmental Panel on Climate Change (Cambridge University Press, 1990).

[3] IPCC, Metz et al (eds), Contribution of Working Group III to the Fourth Assessment Report of the Intergovernmental Panel on Climate Change (Cambridge University Press, 2007) (‘IPPC 4A’).

[4] Conference of the Parties to the United Nations Framework Convention on Climate Change, Action Taken by the Conference of the Parties at its Sixteenth Session, (Addendum Pt 2 to the Report of the Conference of the Parties on its sixteenth session, held in Cancun from 29 November to 10 December 2010) FCCC/CP/2010/7/Add.1, (15 March 2011) 5 (‘COP16’).

[5] de Sherbinin et al, above n 1, 456.

[6] Koko Warner et al, In Search of Shelter: Mapping the Effects of Climate Change on Human Migration and Displacement, Report for the United Nations University Institute for Environmental and Human Security, CARE, Center for International Earth Science Information Network of Columbia University, UNHCR and the World Bank, (May 2009).

[7] ScienceDaily, Governments Must Plan for Migration in Response to Climate Change, Researchers Say (27 October 2011)


[8] de Sherbinin et al, above n 1, 457.

[9] Hodgkinson et al, list a range of academic authors who have made such suggestions, see Hodkinson et al, Hour When the Ship Comes in: A Convention for Persons Displaced by Climate-change (2009) A Convention for Persons Displaced by Climate Change, 9


[10] Robert Muggah, ‘A Tale of Two Solitudes: Comparing Conflict and Development Induced Internal Displacement and Involuntary Resettlement’ (2004) 41(5) International Migration, DOI: 10.1111/j.0020-7985.2003.00259.

[11] Ibid 7.

[12] Graeme Hugo, ‘Environmental Concerns and International Migration’ (1996) 30(1) International Migration Review 105, 107.

[13] Ibid.

[14] The Convention was then supplemented with the 1967 Protocol relating to the Status of Refugees, which incorporated all elements of the Convention’s definition of ‘refugee’ except the requirement that the events giving rise to displacement have occurred before 1 January 1951.

[15] Article 1(2).

[16] United Nations High Commissioner for Refugees (UNHCR), 2008 Global Trends, (June 2009) 3-6 <> .

[17] Muggah, above n 10, 4.

[18] See UN-OCHA, Operational Guidelines,

<> UNHCR, Summary of Deliberations on Climate-change and Displacement (April 2011) <> .

[19] UN-OCHA, above n 18; UNHCR, above n 18.

[20] Which extend to ‘armed conflict, situations of generalized violence, violations of human rights or natural or human-made disasters.’ (Guiding Principles on Internal Displacement, Introduction, para 2). See UN-OCHA above n 18; UNHCR, above n 18.

[21] United Nations University - Institute for Environment and Human Security (UNU-EHS), As Ranks of ‘Environmental Refugees’ Swell Worldwide, Calls Grow for Better Definition, Recognition, Support (2005) UNU EHS,

<> .

[22] David Keane, ‘The Environmental Causes and Consequences of Migration: A Search for the Meaning of “Environmental Refugees”’ (2004) 209 Georgetown International Environmental Law Review 211.

[23] de Sherbinin et al, above n 1.

[24] Aziz Ahamed and Andrew Simms, ‘Should the UN actively embrace the concept of environmental refugees?’ (2002) 32(3) The Ecologist 18.

[25] Ergon Kunz, ‘The Refugee in Flight: Kinetic Models and Forms of Displacement’ (1973) 7(2) International Migration Review 125; Norman Myers, ‘Environmental refugees in a globally warmed world’ (1993) 43 Bioscience 752; Rajendra Ramlogan The Developing World and the Environment: Making the Case for Effective Protection of the Global Environment (University Press of America, 2004).

[26] United National Environmental Programme (UNEP) in 1985. UNEP defined environmental refugees as: ‘those people who have been forced to leave their traditional habitat, temporarily or permanently, because of a marked environmental disruption (natural and/or triggered by people) that jeopardized their existence and/or seriously affected the quality of their life’ Essam E Hinnawi, Environmental Refugees (UNEP, 1985) 4.

[27] Joann McGregor, ‘Refugees and the Environment’ in Richard Black and Vaughan Robinson (eds), Geography and Refugees: Patterns and Processes of Change (Wiley, 1993) 159.

[28] Diane Bates, ‘Environmental Refugees? Classifying Human Migrations Caused by Environmental Change’ (2002) 23(5) Population and Environment 465.

[29] Hugo, above n 12, 110-113.

[30] Ibid.

[31] See for instance, Bates, above n 28, 467; Kean, above n 22, 221.

[32] See discussion in Keane, above n 22, 220- 222.

[33] UNU-EHS, above n 21, 7.

[34] Kean, above n 22, 215.

[35] Developing countries are by far the most affected by both rapid onset and long-term natural disasters. See International Federation of Red Cross and Red Crescent Societies, World Disasters Report 20 (International Federation of the Red Cross and Red Crescent Societies, 1999); For instance, approximately 96% of deaths caused by natural disasters occur in the developing world. See J Jacobson, ‘Environmental Refugees, A Yardstick of Habitability’ (World Watch Paper No 86, World Watch Institute, 1988). Almost half of the world’s migrants come from vast rural areas of Africa which experience severe impoverishment, drought and desertification and almost 135 million people are at high risk of displacement. See Desertification and Migrations, Symposium 1994: ‘The Almeria Statement’ (11 February 1994) <> .

[36] G Loescher, The UNHCR and World Politics: A Perilous Path (Oxford University Press, 2002) 2.

[37] K Bruce Newbold, Population Geography: Tools and Issues (Rowman and Littlefield, 2010) 175; See also Jeanhee Hong, ‘Refugees of the 21st Century: Environmental Injustice’ (2001) 10 Cornell Journal of Law and Public Policy 323, 340, who argues that the reluctance can be attributed to fear of ‘open[ing] the door to a flood of refugees far beyond what the international community is able to manage’; David Keane ascribes the concern to both the floodgates and the perception that increasing the number of refugees so dramatically will dilute the protections provided to political refugees: Keane, above n 22, 214.

[38] Office for the Coordination of Humanitarian Affairs (OCHA) and the Internal Displacement Monitoring Centre (IDMC)/Norwegian Refugee Council, Monitoring Disaster Displacement in the Context of Climate Change (2009) 15.

[39] Ibid.

[40] UNGA, Climate Change and its Possible Security Implications: Report of the Secretary-General (11 September 2009) UN Doc A/64/350, 15; see also Myers, above n 25; IPPC 4A, above n 3.

[41] J Morrissey, Environmental Change and Forced Migration (Refugee Studies Centre, 2009).

[42] Ibid.

[43] de Sherbinin et al, above n 1.

[44] OCHA, above n 38.

[45] António Guterres, ‘Millions Uprooted’ (2008) 87(5) Foreign Affairs 90.

[46] Hall, who reviewed the developments within the UNHCR following the High Commissioner’s statements argues that, in fact, ‘no substantive changes’ occurred despite a series of policy papers and public statements on the intersection between climate change and displacement by the Agency over the past three years, and ‘from an operational perspective, UNHCR has made no significant changes to integrate climate change into its humanitarian work’: Nina Hall, ‘Climate Change and Institutional Change in UNHCR’ in Michelle Leighton, Xiaomeng Shen and Koko Warner (eds), Climate Change and Migration: Rethinking Policies for Adaptation and Disaster Risk Reduction (Studies of the University: Research, Counsel, Education’ Publication Series of UNU-EHS No 15/2011, 2011) 102, 110.

[47] Robert Muggah, ‘Through the Developmentalist’s Looking Glass: Conflict-Induced Displacement and Involuntary Resettlement in Colombia’ (2000) 13(2) Journal of Refugee Studies 133, 133, doi:10.1093/jrs/13.2.133.

[48] Michael Cernea, ‘Risks, Safeguards and Reconstruction: A Model for Population Displacement and Resettlement’ (2000) 35(41) Economic and Political Weekly 3659, 3662.

[49] Muggah, above n 47, 142.

[50] Barbara Cardozo et al, ‘Mental health, social functioning, and attitudes of Kosovar Albanians following the war in Kosovo’ (2000) 284(5) Journal of the American Medical Association 569.

[51] Rob J Hyndman, Managing Displacement: Refugees and the Politics of Humanitarianism (Minnesota University Press, 2000).

[52] Myers, above n 25, 752.

[53] Hermen Ketel, Tanzania: Environmental Assessment Report of the Rwandanese Refugee Camps and the Affected Local Communities in Kagera Region (PTSS Mission Report 94/29N, Dar es Salaam, UNHCR/FAO Environmental Assessment Mission, 1994); Nigel Allan, Impact of Afghan refugees on the vegetation resources of Pakistanis Hindukush-Himalaya (1987) 7(3) Mountain Research and Development 200; Richard Black, ‘Environmental change in refugee-affected areas of the Third World: The role of policy and research’ (1994) 18(2) Disasters 107; Karen Jacobsen, ‘Refugees’ Environmental Impact: The Effect of Patterns of Settlement’ (1997) 10(1) Journal of Refugee Studies 19, doi:10.1093/jrs/10.1.19; Karen Jacobsen, The forgotten solution: local integration for refugees in developing countries (2001) UNHCR Working Paper No 45 <> .

[54] UNCHS/UNEP, ‘Human Settlement and Environment Strategies for Action in the Continuum from Relief to Development’ (International Workshop, Nairobi, 25-27 April 1994).

[55] Jacobsen (1997), above n 53, 20.

[56] Walter Kok, ‘Self-settled Refugees and the Socio-economic Impact of their Presence on Kassala, Eastern Sudan (1989) 2(4) Journal of Refugee Studies 419, doi: 10.1093/jrs/2.4.419.

[57] Pius Yanda, Are the Environment Matters Viewed as Issues of Concern in Refugee Affected Areas in Western Tanzania? (University of Dar Es Salaam, 2001).

[58] Thayer Scudder, The Future of Large Dams: Dealing with Social, Environmental, Institutional and Political Costs (Earthscan, 2005); Jacobson (2001), above n 35; UNHCS/UNEP, above n 54.

[59] UNGA, above n 40, 17.

[60] UNHCR, Global trends 2010 (2011) 2 <> .

[61] UNHCR, Statistical Yearbook 2009 (2010) 36 <> (‘UNHCR 2009’).

[62] UNHCR, Global Trends 2008 (2010) 4 <> .

[63] UNHCR 2009, above n 61, 6.

[64] Jakob Kellenberger, Root causes and prevention of internal displacement: the ICRC perspective (2009) Statement by President of the ICRC to Special summit on refugees, returnees and IDPs in Africa, Kampala, Uganda, 23 October 2009 <> .

[65] de Sherbinin et al, above n 1, 3659.

[66] Ibid 457.

[67] Henrik Urdal, ‘People vs. Malthus: Population Pressure, Environmental Degradation, and Armed Conflict Revisited’ (2005) 42(4) Journal of Peace Research 417, 426, doi: 10.1177/0022343305054089.

[68] Hodgkinson et al, above n 9.

[69] Stephen Castles, Environmental change and forced migration: Making sense of the debate (New Issues in Refugee Research, Working Paper No 70, UNHCR, 2002) 9.

[70] de Sherbinin et al, above n 1, 457.

[71] Jane McAdam, ‘Swimming Against the Tide: Why a Climate Change Displacement Treaty is Not the Answer’ (2011) 23(1) International Journal of Refugee Law 2, 14.

[72] Ibid.

[73] Hodgkinson et al, above n 9.

[74] John Howard, (Speech to Federal Liberal Party Campaign Launch, Sydney, 28 October 2001) reported in Kazimierz Bem et al, A Price Too High: The Cost of Australia’s Approach to Asylum Seekers (2007) Oxfam Australia, <> .

[75] Especially in Arts 5,8,9,12, but also via the contributions to the Conference of the Parties by other UN bodies such as the UNU, which has provided climate-change risk mapping for the UNFCCC parties for well over a decade.

[76] COP16, FCCC/CP/2010/7/Add.1 (15 March 2011) 5

[77] Indeed, the UNU noted that UNU rep to COP16 ‘[n]ow that migration and displacement have been highlighted in the UNFCCC climate negotiations, policy makers increasingly ask what do governments need to know about the potential impacts of climate-change and human mobility in order to prepare their own appropriate legal, institutional, and governance approaches?’ UNU-EHS, ‘Climate and Environmental Change, Human Migration and Displacement: Recent Policy Developments and Research Gaps’ Ninth Coordination Meeting on International Migration Population Division Department of Economic and Social Affairs United Nations Secretariat, New York, 17-18 February 2011, UN/POP/MIG-9CM/2011/10 12 (February 2011) 4.

[78] Greg Tucker ‘Personal Information Transfers Abroad’ (1994) 5(1) Journal of Law, Information and Science 7; Herbert Burkert, ‘Public Sector Information: Towards a More Comprehensive Approach in Information Law?’ (1992) 3(1) Journal of Law and Information Science 47; Joel Reidenberg, ‘Conflicting International Data Privacy Rules in Cyberspace’ (1999-2000) 52 Stanford Law Review 1315.

[79] Rüdiger Wolfrum and Nele Matz, Conflicts in International Environmental Law (Springer and Heidelberg, 2003) 161.

[80] Edward W Allen, ‘A New Concept for Fishery Treaties’ (1952) 46(2) The American Journal of International Law 319.

[81] Sara Boettiger et al, ‘Intellectual Property Rights for Plant Biotechnology: International Aspects in P Christou and H Klee (eds), The Handbook of Plant Biotechnology (John Wiley & Sons, 2004).

[82] Lorna Dwyer, ‘Biopiracy, Trade, and Sustainable Development’ (2008) 19 Colorado Journal of International Environmental Law & Policy 219.

[83] See Silvia Ferreri (ed), Complexity of Transnational Sources (Reports to the XVIIIth International Congress Of Comparative Law, Washington, DC, 2010) 11; Ghafur Hamid et al, ‘WTO Rules versus Multilateral Environmental Agreements: The Search for Reconciliation’ (2008) 5 Macquarie Journal of International & Comparative Environmental Law 57.

[84] Wolfrum and Matz, above n 79, 158.

[85] Daniel Bodansky, The International Climate Change Regime: The Road from Copenhagen (2010) Policy Brief, Harvard Project on International Climate Agreements, Belfer Center for Science and International Affairs, Harvard Kennedy School <> Kwesi W Obeng, ‘Climate Change Negotiations: Durban a Critical Battleground’ Eurasia Review (online), 4 November 2011, <>.

[86] Hodgkinson et al, above n 9, 16.

[87] Articles 9-12. Reference?

[88] Least Developed Countries Fund (LDCF) to assist developing countries develop adaptation strategies, the Special Climate-change Fund for tech-transfer and adaptation, the Global Environment Facility Trust Strategic Priority for Adaptation which works on pioneering ‘on-the-ground interventions for adaptation’ and the Adaptation Fund under the Kyoto Protocol. See UN Framework Convention on Climate Change, Cooperation and Support (2011)


and UN Framework Convention on Climate Change, Bodies (2011)

<> .

[89] States must, under Article 7(l), seek and utilise, where appropriate, the services and cooperation of, and information provided by, competent international organisations and intergovernmental and non-governmental bodies.

[90] Conference of the Parties, Decision -/CP.11: Institutional linkage of the Convention secretariat to the United Nations,

< >.

[91] UNFCCC, Report of the Subsidiary Body for Scientific and Technological Advice (SBSTA) on its twenty-fifth session, held at Nairobi from 6 to 14 November 2006, FCCC/SBSTA/2006/11 (1 February 2007) [59].

[92] A Williams, ‘Turning the Tide: Recognising Climate-change Refugees in International Law’ (2008) 30 Law Land and Policy 502.

[93] As Warner et al argue, ‘[i]t is essential to enable organizations such as the UNHCR, the IFRCRC and the IOM to effectively fulfil their mandates in helping different parts of the population of people on the move.’ Koko Warner et al, Climate-change and Migration: Reflections on Policy Needs Reflections prepared for MEA Bulletin (27 February 2009) MEA Bulletin, Guest Article No 64 <> .

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