By Professor Geoff Gilbert
On 22 and 23 October, 17 people from a diverse set of organisations and backgrounds came together from all over the world on campus to discuss travel documents for forcibly displaced and stateless persons in need of international protection. On 23 October, over 60 people attended two online roundtables covering Africa, Europe, the Americas and Asia to consider a toolkit advisory on refugees and asylum seekers affected by climate-induced events or disasters. Professor Geoff Gilbert from Essex Law School hosted both events.
First for the roundtable on climate-Induced displacement, Essex Law School & Human Rights Centre for a year has been working with the Kaldor Centre for International Refugee Law, UNSW, and the Center for Gender & Refugee Studies (CGRS), University of California College of the Laws, San Francisco, to draft a toolkit for practitioners, decision- and policy-makers on international protection in the context of climate induced events and disasters; it became part of a joint pledge to the 2023 Global Refugee Forum.
Being forced to move across an international border as a consequence of a climate-induced or other disaster does not in and of itself qualify one as a refugee under the 1951 Convention relating to the Status of Refugees. However, as UNHCR made clear in 2020 in its Legal considerations regarding claims for international protection made in the context of the adverse effects of climate change and disasters, a person displaced in the context of climate induced or other disaster may also qualify under the 1951 Convention if they meet the criteria set out in Article 1A.2. Drought can often lead to conflicts between farmers and herders over access to water or a government may adversely discriminate against a minority ethnic group on its territory post-disaster. Equally, those who are already refugees or asylum seekers may be affected by disasters, too.
In 2023, CGRS had produced a practice advisory for US lawyers bringing refugee status determination claims in US courts that prompted ELS-HRC and Kaldor to consult on a global equivalent dealing with international and regional refugee and human rights law. On 23 October that Practical Toolkit on ‘International Protection Principles for People Displaced Across Borders in the Context of Climate Change and Disasters’ was considered by over 60 expert academics (including Professor Karen Hulme), lawyers, judges, UNHCR staff and persons with lived experience of forced displacement from across the world. Those discussions will allow the authors, Professor Jane McAdam, Professor Kate Jastram, Dr Felipe Navarro, Dr Tamara Wood, and Professor Geoff Gilbert, to finalize this draft and disseminate it through UNHCR’s REFWorld and other specialist platforms in the next few weeks.
Turning to the other Roundtable held on campus at the University of Essex Law School, the organisations involved included UNHCR, the International Civil Aviation Organization (ICAO), the International Organization for Migration, the EU Commission, and Frontex, as well as private sector actors, think tanks and persons with lived experience of forced displacement. The meeting also benefited greatly from the attendance of four Essex colleagues, Professor Ahmed Shaheed, former Special Rapporteur on the Human Rights Situation in Iran and on Freedom of Religion and Belief, Professor Paul Hunt, former member of the Committee on Economic, Social and Cultural Rights and Special Rapporteur on the Right to the Highest Attainable Standard of Health, Dr Matthew Gillett, Chair of the Working Group on Arbitrary Detention and a member of the Platform of Independent Experts on Refugee Rights (PIERR), and Dr Judith Bueno de Mesquita, adviser to the World Health Organisation. This roundtable discussed travel documents for persons in need of international protection, that is refugees, asylum seekers, internally displaced persons and stateless persons.
At the end of 2023, there were 117.3m people within UNHCR’s mandate, 75% in low- or middle-income countries, and there were only 158,500 resettlement places across the world. Some would have managed to bring travel documents with them as they fled, but many are without. As such, they are trapped in the country where they are receiving protection. Even if they are in a state party to the 1951 Convention relating to the Status of Refugees or the 1954 Convention relating to the Status of Stateless Persons, then while Article 28 of both Conventions provide that the country of asylum shall provide a Convention Travel Document, it is only to refugees or stateless persons who are lawfully staying in the territory, a term that is undefined.
As such, refugees and stateless persons not meeting the threshold, such as asylum seekers and those who have applied for refugee status but where the state has yet to make a decision granting leave to remain, for example, and any person in need of international protection in a non-Contracting state, has no opportunity to obtain a travel document; even Article 28 Convention Travel Documents might only last one to two years and they are difficult to renew outside the country of asylum. Thus, a more generic travel document more widely available to forcibly displaced and stateless persons would facilitate them achieving autonomy in finding a durable and sustainable solution. In part, this fits with the additional solution provided for through Complementary Pathways in paragraphs 85-100 of the Global Compact on Refugees, 2018 (GCR). Traditionally, the durable and sustainable solutions were only resettlement in a third country, local integration in the country of asylum and voluntary repatriation; complementary pathways might involve opportunities to take up employment opportunities or access education in a third country.
The roundtable considered all the technical requirements for travel documents as set out in Annex 9, Facilitation, to the Chicago Convention on Civil Aviation 1944, administered by ICAO. As such, whatever the form of the travel document for persons in need of international protection, given that it will be machine readable, it should be accepted by all carriers. What cannot be guaranteed is that it will be accepted by the country of destination – that is always, even in the case of national passports, a matter of choice by the state having regard to the trustworthiness of the document.
In this regard, though, it was suggested that one proposal to take forward is whether the right to leave and return from one’s country of nationality under Article 12 International Covenant on Civil and Political Rights and the right to legal recognition before the law under Article 16 thereof might generally grant everyone the right to a travel document, or at least in combination with the right to access the highest attainable standard of health (Article 12 International Covenant on Economic, Social and Cultural Rights), the right to access employment opportunities (Article 6 ICESCR) or education opportunities (Article 13 ICESCR), as well as the implicit guarantee of family reunification (Article 17 ICCPR). While that may require strategic litigation and engagement with governments to highlight their commitments under the international covenants and the GCR, it shows that ensuring autonomy for refugees and stateless persons and upholding their international human rights could facilitate the acquisition of travel documents.
The two global roundtables facilitated by Essex Law School marked a significant step towards addressing the complex needs of forcibly displaced and stateless individuals, including those impacted by climate change. Bringing together global scholars, practitioners, and experts from diverse sectors, the discussions highlighted the urgency of accessible travel documents for refugees and comprehensive international protections. These insights will inform final revisions to the toolkit and strengthen advocacy for policies that support autonomy and uphold human rights for those seeking refuge across borders.
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