By Tabitha Thijm

Climate-Forced Displacement of Indigenous People: Enforcement Challenges

By Tabitha Thijm*

ABSTRACT

Our global environment has been experiencing significant degradation caused by human activity through the destruction of ecosystems, decrease in quality of water and air as well as the depletion of natural resources and habitats. This ecological degradation has caused striking changes in weather conditions and is presently labelled as climate change. Sudden onset and slow-onset climate change events reinforce a perpetual interplay between socioeconomic, developmental, and disaster-related crises, often leading to displacements of the most vulnerable people. This article provides an exploratory ethnic study on climate forced displacement of Indigenous Peoples from a legal perspective and dissects the plausible factors that contribute to the persistent threat of anthropogenic ethnocide. The aim of addressing climate forced displacement of Indigenous Peoples is to attest to their kincentric-ecology and symbiotic approach to environmental crises and exemplifies the exigency of administering these methods into our Western systems. The history of Indigenous Peoples’ participation at UN Climate Change Conferences [COPs] over time, is a paradigm that reflects the ongoing inadequate representation of the minority group at momentous forums, and contests imperialistic patterns as a common denominator that accommodates marginalisation and lack of enforcement. Ultimately, this paper engages in the exploration of broadening the language of significant treaties such as the Rome Statute by introducing, for example, the terms ‘ecocide’ and ‘ethnocide’ to the core crimes, as a means to achieve durable solutions to climate change derived from the recognition of Indigenous Peoples rights and customs.

* LL.B. Candidate, International and European Law Program, The Hague University of Applied Sciences. 2022 issue 1 ILSA Law Journal 65

I. INTRODUCTION

‘Kaitiakitanga’ is a vital principle for the Maori people of New Zealand, which prescribes kincentric ecology through the protection and preservation of the environment as a gesture of respect towards ancestors and the future generation.1 This principle can be attributed to most Indigenous People groups, and asserts the intimate relationship they have with nature. Comprising of roughly 5% of the global population, Indigenous Peoples have managed to protect at least 80% of the Earth’s biodiversity and safeguard and manage at least 17% of the above-ground global carbon pertaining to their territories since 20202, all due to their kinship with nature. Lamentably, these territories are experiencing unfavourable impacts attributable to environmental degradation, and communities are struggling to retain their lands and resources. Additionally, Indigenous Peoples groups and other local communities are amongst those who face direct repercussions of climate change, which is often human-induced. This paper provides a superficial overlook on the Indigenous peoples experiences in light of climate chnage and examines what causes climate-forced displacement of Indigenous people, and how does the fortification of Indigenous Peoples rights promote the protection of the environment?

II. WHO ARE INDIGENOUS PEOPLE?

Indigenous people, also known as First Nation, Aboriginal Peoples, Native People and/or Autochthonous Peoples, are often described as a culturally ethnic group of people who are associated with the first inhabitants of a geographic region, and have a sacred relationship to nature. The UN developed a modern understanding and definition of the word ‘Indigenous People’.3 Virtually, Indigenous People are characterised as an individual who self-identifies as pertaining to a specific Indigenous group and has been accepted as such by the members of that community, as well as have a strong ancestral connection to the ecological environment of a region. Furthermore, Indigneous People are characterised as having a distinct socio, political and economic system, in addition to a distinct language, culture and beliefs. The UN system further elucidates through the forum that a link of historical continuity with pre-colonial

1“United Nations Environment Program (UNEP)”, ‘Indigenous People and Nature: A Tradition of Conservation’ (21–31 July 2017) <http://www.unep.org/news-and-stories/story/indigenous-people-and-nature-traditionconservation> accessed 21 March 2022. 2 Ibid. 3“ United nations Permanent Forum on Indigenous Issues”, ‘Factsheet’ <https://www.un.org/esa/socdev/unpfii/documents/5session_factsheet1.pdf> accessed 4 May 2022. 2022 issue 1 ILSA Law Journal 66

societies can be identified in Indigenous peoples groups, and they often form a minority group in society.4

III. FORCED DISPLACEMENT

The UN High Commissioner for Refugees (UNHCR) recorded a number of 82.4 million forcibly displaced people at the end of 2020.5 As of 2021, that number exceeds 84 million6 . There are two categories of displaced people to consider; (i) internally displaced people (IDPs), and (ii) refugees. Chapter II Article 6 (2.a) of the UNHCR describes a refugee as any person who crossed an internationally recognized State border, to which they do not owe their nationality, and is unwilling or unable to return to his or her former habitual residence due to the well-founded fear of being persecuted by virtue of their race, religion, nationality or political opinion.7 Consider the ongoing Syrian civil war in the Middle East as an exemplification, which accounts for 6.8 million refugees who have fled the Syrian Arab Republic as of 2021.8

The Guiding Principles on Internal Displacement classifies IDPs as persons or group of persons who have been impelled to flee their habitats.9 Further reference is made to the distinction between conflict-induced and disaster-induced internal forced displacement.10 This paper will mainly consider the effects of disaster-induced displacement on Indigenous Peoples. For that purpose, disaster-induced displacement is ascribed to result from “a serious disruption of the functioning of a community or a society involving widespread human, material, economic or environmental losses or impacts, which exceeds the ability of the affected

4 United Nations Department of Economic and Social Affairs Division for Social Policy and Development Secretariat of the Permanent Forum on Indigenous Issues, 'Workshop on Data Collection and Disaggregation for Indigenous Peoples: The Concept of Indigenous Peoples' (19-21 January 2004) UN Doc PFII/2004/WS.1/3 5 ‘United Nations High Commissioner for Refugees (UNHCR)’, “Global Trends - Forced Displacement in 2020’ (UNHCR Flagship Reports, 18 June 2021) <https://www.unhcr.org/flagship-reports/globaltrends/> accessed 17 March 2022. 6Internal Displacement Monitoring Centre, “2021 Global Report on Internal Displacement” (2021) <https://www.internal-displacement.org/global-report/grid2021/> accessed 15 March 2022. 7Convention Relating to the Status of Refugees (adopted 28 July 1951, entered into force 22 April 1954) 189 UNTS (Refugee Convention) art 6(2)(a) 8‘UNHCR ”Refugee Statistics” (10 November 2021) <https://www.unhcr.org/refugee-statistics/> accessed 15 March 2022. 9 UNHCR, “Guiding Principles on Internal Displacement” (22 July 1998) UN Doc ADM 1.1, PRL 12.1 PR00/98/109. 10 Ibid art.2.

community or society to cope using its own resources.”11 According to the IOM, forced migration is “a migratory movement which, although the drivers can be diverse, involves force, compulsion, or coercion.”12 Climate forced displacement is displacement triggered by weather related changes which lead to floods, droughts, wildfires and other disastrous happening which disrupt our global environment.13

IV. CAUSES AND CONSEQUENCES

The main contributor to climate-forced displacement is climate change, and the main driver thereof is the greenhouse effect.14 Climate change disrupts the living conditions of humans globally. This disruption can either occur due to sudden onset events or slow onset events. A 2018 report instantiates hurricanes, storms and other whether-related disasters as sudden onset events,15 while slow onset events suggest the gradually evolving effects of climate change, for example droughts, sea level rise and desertification.16 However, these events can be considered merely externalities of human activity. As of 2020, CO2 concentration in the atmosphere has risen to 48% above pre-industrial level, and this number continues to rise daily.17 Deforestation, production of carbon dioxide through the burning of coal, oil and gas, and the increase in livestock farming are just a few examples of contributing human activity. When addressing climate forced displacement of Indigenous People, the fact of the matter is that their entire existence is in jeopardy and the issue goes beyond the environmental crisis. Although they are amongst those who contribute the least to climate change, Indigenous Peoples run the highest risk of climate forced displacement. Consequently, there is an urgent need to fortify Indigenous Peoples rights as a means to effectively diminish ecological threats and restore environmental damage inflicted.

11 UNHCR, “The slow onset effects of climate change and human rights protection for cross border migrants, 37th session Human Rights Council” (22 March 2018) A/HRC/37/CRP.4. 12 IOM UN Migration, “Key Migration Terms” (5 July 2019) <https://www.iom.int/key-migration-terms> accessed 15 March 2022. 13 “United Nations Educational, Scientific and Cultural Oraganization (“UNESCO”)”, “New UNESCO working paper on the impact of climate displacement on the right to education” (30 november 2020) <https://en.unesco.org/news/new-unesco-working-paper-impact-climate-displacement-right-education> accessed 17 March 2022. 14 Williams Kweku Darkwah and others, ‘Greenhouse Effect: Greenhouse Gases and Their Impact on Global Warming’ (2018) 17 Journal of Scientific Research and Reports 1. 15 UNHCR, “The slow onset effects of climate change and human rights protection for cross border migrants, 37th session Human Rights Council” (22 March 2018) A/HRC/37/CRP.4. 16 ibid. 17 European Commission, Climate Action, ‘Causes of Climate Change’ <https://ec.europa.eu/clima/climatechange/causes-climate-change_en> accessed 14 March 2022. 2022 issue 1 ILSA Law Journal 68

1. Economic Activities

There are numerous components to consider as agents that exacerbate climate-forced displacement of Indigenous Peoples. One specific matter to consider is economic activity, which mostly comprises land-grabbing, extractivism of natural resources while encroaching Indigenous lands, mineral exploitation, large-scale development projects such as dams and pipeline construction, logging, urbanisation and the list goes on. Such activities have led to forcible evictions of Indigenous People and have precipitated a long list of human rights violations. Think of the 670 km pipeline that ought to be constructed by the Coastal Gaslink that runs through Indigenous land, Gidimt’en clan territory, without free, prior and informed consent of the Wet’suwet’en Hereditary Chiefs,18 as prescribed by the UN Declaration on the Rights of Indigenous People (UNDRIP).19 Another example that epitomizes economic-induced climate forced displacement of Indigenous People takes place in the Peruvian Amazon, where gold extractive mining concessions are granted by the Peruvian Government, practically allowing deforestation, pollution and further environmental degradation, while ignoring Indigenous People rights.20

2. Defective Nature Conservation Policies

Another underlying factor that emerges when considering forced displacement of Indigenous Peoples due to climate change is the paradoxical conservation approaches taken by governments. These approaches are based on a narrow and restrictive interpretation of ecological conservation, and often lead to denial of access to traditional resources of food, shelter and herbal medicine, despite the fact that Indigenous Peoples are proven to play a crucial part when it comes to nature preservation. This failed approach to nature conservation is exemplified by a gap in the domestic legal framework of Nepal, where the protected nature reserves often cover ancestral grounds of Nepal’s Indigenous population, from which

18 Leyland Cecco, ‘Pipeline battle puts focus on Canada's disputed right to use indigenous land’, “Guardian (11 Feburary 2019)” <https://www.theguardian.com/world/2019/jan/11/canada-pipeline-indigenous-trudeau-treaty> accessed 20 March 2022. 19 UN “GA” “Declaration on the Rights of Indigenous Peoples” (2007) Res 61/295, art 32. 20‘Mining Activity in the Peruvian Amazon is Impoverishing the Arakbut Indigenous People - IWGIA International Work Group for Indigenous Affairs’ (21 November 2021) <https://www.iwgia.org/en/news/4569mining-activity-in-the-peruvian-amazon-is-impoverishing-the-arakbut-indigenous-people.html> accessed 20 March 2022.

Indigenous Peoples have been forcibly evicted without being provided with alternative livelihoods or compensation21. Additionally, they are often denied access to nature conservations, and there have been reports of detention and ill-treatment, even death, of Indigenous People who set foot on park grounds22. There is a clear lack of regulation by the Government of Nepal, and this shortcoming poses a threat to Indigenous Peoples all over the world. Another Government that actively and continuously disregards Indigenous Peoples and land rights is Tanzania, where the Maasai, who are a pastoralist community and dependent on livestock for survival, are denied the right to their lands where nature reserves are established, consequently hindering access to livelihood without any compensation23 .

3. Dependency on Natural Resources

In addition to the aforementioned human-induced agencies, another factor that plays a key role in climate forced displacement of Indigenous Peoples is derived from the lack of natural resources due to ecological degradation and the deprivation of relic sustenance on which they have depended on since pre-colonial centuries. Indigenous Peoples communities are known for their complex kincentric relationship to nature, where they believe nature to be an extended ecological family with whom they share ancestral connections. Due to the ecological degradation and the inordinate dispossession of their land and biodiversity, these groups of people are often forced out of their habitats in pursuit of a new source of livelihood. This is elucidated in the Indigenous Peoples’ experience in Peru, where gold extraction activities have led to the destruction of Indigenous territories and natural resources have become a rare commodity, generating loss of fundamental knowledge and ancestral traditions24. Additionally, the effects of the environmental crisis have caused other long-term impacts on Indigenous

21 Lai Ming Lam and others, ‘The Long-Term Livelihood Effects of the Conservation-Led Displacement in Kanchanpur, Nepal’ in Naoyuki Yoshino and Saumik Paul (eds), Land Acquisition in Asia (Springer Nature Singapore pte Ltd 2019). 22 Amnesty International, ‘Indigenous Peoples the Silent Victims of Country’s Conservation “Success Story”’ (Nepal, 9 August 2021) <https://www.amnesty.org/en/latest/news/2021/08/nepal-indigenous-peoples-the-silentvictims-of-countrys-conservation-success-story/> accessed 14 March 2022. 23 The International Work Group for Indigenous Affairs, ‘70,000 Maasai in Loliondo, Tanzania, Face Another Forceful Eviction’ IWGI (Copenhagen, 26 January 2022) <https://www.iwgia.org/en/news/4597-maasailoliondo-tanzania-forceful-eviction.html> accessed 22 March 2022. 24 United Nations, ‘Climate Change | United Nations For Indigenous Peoples’ <https://www.un.org/development/desa/indigenouspeoples/climate-change.html> accessed 23 March 2022. 2022 issue 1 ILSA Law Journal 70

Peoples livelihood. Droughts and floods, for instance, put vulnerable populations at a high risk of food shortages.25

V. INDIGENOUS PEOPLES AND INTERNATIONAL JURISPRUDENCE

There has been significant development in the international sphere of Indigenous Peoples rights, such as the adoption of the International Labour Organisation (ILO) Convention 107 on Indigenous and Tribal Populations of 195726 and ILO Convention 169 on Indigenous and Tribal Peoples Convention of 198927, as well as the adoption of the Convention on Biological Diversity at the Rio Earth Summit of 199228, and the most recent and celebrated development, the adoption of the UN Declaration on Rights of Indigenous Peoples (UNDRIP) by the United Nations General Assembly in 200729, yet there are many postcolonial critiques when it comes to the inherent underlying Eurocentric capitalist frame of International Law. The concepts of sovereignty and self-determination are distorted and Indigenous Peoples groups are often marginalized by the international community, especially on the topic of climate policy. There has also been no substantial progress in the proportionate implementation of the rights that have been bestowed upon Indigenous Peoples. Accordingly, the most commonly shared adversity between Indigenous Peoples groups is the continuous violation of their land rights. In order to promote this right, States are required to “obtain free, prior and informed consent to the approval of any project affecting indigneous lands or territories.”30 However, due to the suggestive nature of these declarations and conventions, and the systemic colonial pattern in the international legal order, enforcement of Indigenous Peoples rights on a national level has never been a priority.

25Laura Notess, ‘For Indigenous Peoples, Losing Land Can Mean Losing Lives’ (World Resources Institute, 31 May 2018) <https://www.wri.org/insights/indigenous-peoples-losing-land-can-mean-losing-lives> accessed 23 March 2022. 26 International Labour Organisation (ILO) Convention on Indigenous and Tribal Populations, 1957 (No. 107). 27 ILO Convention on Indigenous and Tribal people, 1989 (No. 169). 28 “Convention on Biological Diversity (CBD)” (adopted 5 June 1992, entered into force 29 December 1993) 1760 UNTS 79 29 “United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP)” (adopted 13 September 2007) UNGA Res 61/295 30 ibid. Art. 32 (2). 2022 issue 1 ILSA Law Journal 71

VI. POSSIBLE CHALLENGES AND SOLUTIONS

There is an interrelation between the protection of Indigenous Peoples rights and the protection of the environment that has been contested as a durable solution to climate change31 , which could result in a positive impact to the climate forced displacement quandary. A way to accommodate the protection of Indigenous Peoples rights, as well as the protection of the environment interchangeably is the reintroduction of ‘ecocide’ as a core crime under the Rome Statute. Ecocide was first introduced in the 1970 Conference on War and National Responsibility32 since then there have been numerous advances made to include the term in international legal documents. Additionally, ecocide was defined in the draft document of the Rome Statute as the ‘wilful and severe damage to the environment’33, and was originally intended to be included in the list of triable crimes against peace. However this wording was removed and replaced with Article 8.2(b)(iv) of the final consolidation.34 Moreover, the ICC has jurisdiction to prosecute individuals, in context, this limits the scope drastically in view of corporate responsibility. Corporations are protected by the so called ‘corporate veil’, which in simple terms entails that individual shareholders and other members of a company cannot be held liable for the actions of said company. Considering that mega-corporations are one of the main contributors to climate change, and are amongst those who inflict direct harm to the ecological system, many argue the implementation of measures for the criminalisation of international environmental destruction to be arduous and ineffective, since the perpetrators cannot be held liable. Luckily, the environmental rights movement has taken a stance globally, and more and more States around the globe are in pursuit of a common framework against climate change. The Shell v Milieudefensie et al. (2021) case35 is a noteworthy climate litigation case, in which the District Court of The Hague ruled in favor of environmental protection and ordered Shell to standardize and align corporate action to the goals set out in the Paris Agreement, which ought to be achieved through the reduction of the corporation’s global

31 “United Nations Environment Program”, ‘Indigenous Peoples and the Nature They Protect’ (UNEP, 8 June 2020) <http://www.unep.org/news-and-stories/story/indigenous-peoples-and-nature-they-protect> accessed 23 March 2022. 32 “United Nations Educational, Scientific and Cultural Organisation”, ‘About 1970 Convention’ (UNESCO, 12 February 2020) <https://en.unesco.org/fighttrafficking/1970> accessed 23 March 2022. 33 ILC, “Report of the International Law Commission on the work of its forty-sixth session (2 May- 22 July 1994)” UN Doc A/49/10. 34 Rome Statute of the International Criminal Court (Rome Statute) 2002, UN Doc A/CONF.183/9, Art 8 (2 b)(iv). 35Milieudefensie et al v Royal Dutch Shell plc., The Hague District Court, ECLI:NL:RBDHA:2021:5337. 2022 issue 1 ILSA Law Journal 72

carbon emission.36 Judgements such as those set forth in the Shell case are critical for the eradication of ecocide, based on the fact that States potentially encourage other States to hold national corporation liable for breach of social and environmental responsibilities, consequently leading corporations to deviate from any conflict stemming off of the depletion of resources.

Another suggestion, which some may consider more radical, is the implementation of the term ‘ethnocide’ as an element under the crime of Genocide. The articulation of this concept first emerged along with the Indigenous rights movement around the 1960s and was first coined by Raphael Lemkin to be used interchangeably with ‘genocide’. Over the recent years, ethnocide has been described by scholars as the “imposition of the national pattern of the oppressor”37, a “process of its own, which would result in the extinction of some ethnic groups’ culture, either through its targeted destruction or its forced assimilation into the dominant culture”38, by “suppress[ing a group] by extinguishing their specific traits” and “the total destruction of a culture, so that the identity of a people ceases to exist”39, or the intentional destruction of societal cohesion – including identity, culture, language, and belief systems –the removal of a people’s means of survival, and the forced removal of and from a people’s territory.40 Introducing ethnocide as a genocidal element under the core crimes of the Statute would be the epitome of Indigenous Peoples’ rights protection and can additionally be used as a robust tool for the protection of the environment.

VII. CONCLUSION

When attempting to avert climate-forced displacement of Indigenous Peoples, there is evidently an implementation gap between climate policy enforcement at the national level and on an international level. States have perpetually failed to implement laws and policies that bring Indigenous Peoples’ rights to life. Nonetheless, there is still an urgent need to assimilate

36 Ibid. 37 Raphael Lemkin, “Axis Rule in Occupied Europe: Laws of Occupation, Analysis of Government, Proposals for Redress (Foundations on the Laws of War)” (William A. Schabas and Samantha Power (trs), 2nd ed, The Lawbook Exchange Ltd 2008). 38 Stefania Negri, ‘Cultural Genocide in International Law: Is the Time Ripe for a Change?’ (2013) 10(5) TDM <https://www.transnational-dispute-management.com/article.asp?key=1997> accessed 23 March 2022. 39 Elisa Novic, The Concept of Cultural Genocide: An International Law Perspective (OUP 2016). 40 Stefanie Kunze, ‘A three-Dimensional Model for Perpetrators of Genocide’ (2020) 50(4) International Journal of Sociology < https://www.tandfonline.com/doi/abs/10.1080/00207659.2020.1775406> accessed 24 March 2022.

Indigenous traditional knowledge within the Western system in order to effectively protect the environment, but this is not feasible without the recognition of Indigenous Peoples rights. Without the recognition of these rights, Indigenous Peoples face the lingering threat of unaccounted for human-induced climate-forced displacement, which could lead to ethnocide in the long run. Granting the criminalisation of environmental destruction will not only fortify Indigenous land rights and encourage a symbiotic approach to climate risk reduction, in which humans work with the natural environment for mutual benefit, but it will additionally lead to better first-hand ecological management attributable to Indigenous Peoples’ kincentric relationship to nature.