Persecution and labor migrations due to corporate "environmental" exploitation: Waiting for the UNHRC's binding treaty on transnational business activities?

Abstract

Policy debates on the rights and international status of climate refugees, environmental migrants, or environmentally displaced persons have unleashed detailed scholarly commentaries over the last decade, and virtually all standpoints have been scrutinized in literature already. Nevertheless, one aspect of this debate has gone somewhat off the radar in recent years: the (co-)responsibilities of incorporated subsidiaries of transnational corporations in triggering or exacerbating pseudo-environmentally motivated mass-movements of workers and related strata of the populations domiciled where these corporations operate. Despite such neglect, mentioned exploitative occurrences only increased in recent years, and the trend speaks for their further expansion as globalization complexifies, world population increases, and climate disruption worsens. Against this back-drop of urgency, it seems essential to rediscover this angle of the debate; that is, to revitalize ethical and legal discourses on private actors and what intervention should be required of the international community in order for transnational corporations to take action and observe minimal standards of environmental good practice, especially in corporate policy areas bearing a direct impact on labor conditions, social development, and ultimately on the pulling or restraining factors of migration.

Full text

PERSECUTION
AND
LABOR
MIGRATIONS
DUE
TO
CORPORATE
"ENVIRONMENTAL" EXPLOITATION:
WAITING
FOR THE
UNHRC's
BINDING
TREATY
ON
TRANSNATIONAL
BUSINESS
AcTIVITIES?
Riccardo
Vecellio
Segate*
Abstract
Policy
debates
on
the
rights
and
international
status
of
climate
refugees,
envi-
ronmental
migrants,
or
environmentally
displaced persons
have
unleashed
de-
tailed
scholarly commentaries
over
the
last
decade,
and
virtually
all
standpoints
have been scrutinized
in
literature
already.
Nevertheless,
one
aspect
of
this de-
bate
has
gone somewhat
off
the
radar
in
recent
years:
the
(co-)responsibilities
of
incorporated
subsidiaries
of
transnational corporations
in
triggering
or
exacerbat-
ing
pseudo-environmentally
motivated
mass-movements
of
workers
and
related
strata
of
the
populations
domiciled
where
these
corporations
operate.
Despite
such neglect, mentioned
exploitative
occurrences
only
increased
in
recent years,
and
the
trend
speaks
for
their
further
expansion
as
globalization
complexifies,
world population
increases,
and
climate disruption
worsens.
Against
this
back-
drop
of
urgency, it
seems
essential
to
rediscover
this
angle
of
the
debate;
that
is,
to
revitalize
ethical
and
legal
discourses
on
private
actors
and
what
intervention
should
be
required
of
the
international
community
in
order for
transnational
cor-
porations
to
take action
and
observe
minimal
standards
of
environmental good
practice,
especially
in
corporate policy
areas
bearing
a
direct
impact
on
labor
conditions,
social
development,
and
ultimately
on
the
pulling
or
restraining
fac-
tors
of
migration. The first
international
binding
Treaty
on
business
and
human
rights,
currently being
negotiated
in
Geneva
within
the
United
Nations
Human
Rights
Council
and
apparently close
to
finalization,
builds
exactly
on
these
con-
cerns.
In
each
of
its
2018
Zero Draft, 2019
Revised
Draft,
2020 Second
Revised
Draft,
and
2021
Third
Revised
Draft, the Treaty
provides protection
to
those
workers
and
their
families
who
are
factually deprived
of
their
lands due
to
corpo-
rate
soil
exploitation.
In
this
sense, the
problem
will
manifest
itself
under
the
new
(yet
not
so
new)
terms
of
distinguishing
between migrations
fully
caused
or
sim-
*
Mr.
Riccardo
VECELLIO
SEGATE
is
the
Talent
Program
PhD Candidate
in
International
Law
at
the
University
of
Macau, and
a
Visiting
Student Researcher
at
the
University
of
California, Berkeley.
He
previously
served
as an
Exchange Scholar
at
Tsinghua
Law
School
in
Beijing
and
was
selected
as
a
Visiting
Fellow
at
the
Law &
Technology
Centre
of
the
University
of
Hong
Kong.
He
has
completed,
inter
alia,
a
Postgraduate Diploma
in
European
and Global
Governance
at
the
University
of
Bristol,
a
Master
of
Laws
in
Public
International
Law
at
Utrecht
University,
and
three
Diplomas
in
geopolitical
affairs
at
ISPI
in
Milan.
Prior
to that,
he
enjoyed touring
as
a
classical
pianist.
As
a
legal
scholar, he
has
published
peer-reviewed
journal
articles
and
delivered
academic conferences worldwide
and was
awarded
leading international
research prizes.
Furthermore,
Mr.
VECELLIO
SEGATE
has
volunteered
for
UNESCO
and
worked extensively
in
policymaking
and legal
consulting
all
over
North
America,
Europe,
and Asia,
including
for
the
European
Commission, EXPO2015,
Oxford
University
Press,
and
Rouse
&
Co.
International
LLP
(Shanghai office).
He sits on
the
International Advisory
Board
of
the
International
Journal
for
the
Semiotics
of
Law
and
has
served
as an
ad-hoc
peer reviewer
for
a
wide
range.
Loyola University Chicago
International
Law
Review
Volume
18,
Issue
I
31

Persecution
and
Labor
Migrations
ply
catalyzed
or
facilitated
by
localized
environmental pollution
and/or
large-
scale
climate-change-related phenomena. Pursuant
to this new
covenant, States
would
be
compelled
to
ensure
that companies
operating
within
their prescriptive
jurisdiction
respect
all
human
rights.
Eventually,
while this
Treaty should
gener-
ally
be welcomed
as
it
sheds
new
light
on
business-caused
environmental
migra-
tions
and
it
decompartmentalizes related
human
rights,
its
current formulation
might
not
significantly
contribute
to the
clarification of
certain
definitions.
Most
perplexingly,
it
does
not
establish
a
straightforward
legal
distinction between en-
vironmental
migrations
induced
or 'simply'
precipitated
by
corporate
misconduct.
32
Loyola University
Chicago
International
Law Review Volume
18,
Issue
1

Persecution
and
Labor
Migrations
Table of Contents
I.
Corporate
Misconduct,
the
Environment,
and
Migration
.........
.33
II.
Corporations
as
Push-Factors:
Displacing
Security-Underpinned
Narratives
.................................................
40
III.
Misinformed
Rhetoric
of
Old-Fashioned Diplomatic
(In)action
...
47
IV.
Featuring
a
New
Binding
Instrument
Targeting
Businesses
......
55
V.
Finally Acknowledging
'Non-state'
Forms
of
Persecution?
. . . . . .
61
VI.
Any
Added
Value?........
....................... . . . . . ....... .
65
VII.
Heading
Towards
a
Resolutive
New
Treaty?..
..................
69
I.
Corporate
Misconduct, the
Environment, and Migration'
The
skeptics
[..
.]
raise
questions about
the models
used
to
generate
estimates
of
those
who
will
be
forced
to
migrate
and
emphasize that
pull factors
in
destina-
tion
locations
are
often more
important
than
push
factors
at
home
in
determining
whether,
where, and
in
what
volume people
will
migrate.
2
Despite widespread skepticism
vis-d-vis
scientific
models (which
seems
to
be,
in
itself,
a
sign
of
our
times),
it is
worth
reiterating that
all
over
the
world,
not
only
in
'developing'
countries,
3
lands
are
under threat
due
to
massive
pollution
caused
by the
negligent or purposely
criminal behavior
of
transnational
corpora-
tions
(TNCs).4
These
corporations
are
exploiting
natural resources, within the
I
The
reader
is
advised
that
the
law
and
doctrines
reported
in
the
present
article
were
last
updated
on
and
are
thus accurate
on
September
23,
2021;
this
date
precedes
the
seventh negotiating session
towards
the
adoption
of
the
Treaty under
scrutiny,
expected
to be
held
in
October
2021.
A
much
earlier
version
of
the
present
article
was
presented
at
the
Environmentally-Induced
Migration
and
Human
Rights'
Protection
Conference
organized
by
the Italian
Society
of
International
Law
at
Sapienza
University
of
Rome
on
November
5,
2018;
I
would
like
to
thank
all
participants for their insights.
Comments
are
most
welcome
and
can
be
addressed
to
r.vecelliosegate@connect.um.edu.mo.
I
am
the
only one
responsible
for
any
inaccuracy
or omission.
No
conflicts
of
interests
shall
be
disclosed,
nor
have
I
received
any
funding
for
accomplishing
this
publication.
2
'Push factors'
are
the reasons
why
individuals
decide or
are
forced
to
move
(i.e.,
to
migrate
or
seek
refuge),
including
environmental factors favored
by
climate
migration or adaptation
that
may
draw
mi-
grants
from
a
place
to
another,
as
distinguished
from
'pull
factors'
which
are
the
reasons
why
a
certain
jurisdiction
is
more
appealing over
others
as
an
intended
(though not
necessarily
actual)
destination
for
those
individuals.
See,
e.g., David James
Cantor,
Environment,
Mobility,
and International
Law:
A
New
Approach
in
the
Americas,
21
CH.
J.
OF
INT'L
L.,
263,
289
(2021);
Susan
Martin,
Climate
Change,
Migration,
and
Governance,
16
GLOB.
GOVERNANCE
397,
397
(2010).
3
See,
e.g.,
DAMIEN SHORT, REDEFINING GENOCIDE:
SETTLER COLONIALISM,
SoCIAL
DEATH
AND
EcocIDE,
59-66 (Bloomsbury
Publ'g
2016).
4
Because
the
draft
Treaty being
discussed
in
this essay
employs
the
term
transnational,
I
will
adhere
to
the
same
terminology
and
refer
to
transnational
corporations
(TNCs); however,
some
direct
quotes
from academic
sources
and
other
legal
and
policy
instruments
mention
multinational
corporations
(MNCs) instead
and
have been
left
unaltered.
Indeed, there
is
no
clear
definition
of
either
in
scholarly
literature;
it
is
commonly
claimed that TNCs display
a
less
centralized management structure
compared
to
MNCs,
but
these
distinctions
find
no
actual
consistency
in
legal
texts
(neither
regionally
nor
globally),
nor
do they
bear
any
operative
relevance
in
business
transactions
and
corporate structuring.
See,
e.g.,
Benedict
Semple
Wray,
Translating Torts:
A
Justice
Framework
for
Transnational Corporate
Harm,
18-
33
(Sept.
26,
2015) (Ph.D.
Thesis
in
Law,
European University Institute) (available
at
http://diana-
n.iue.it:8080/bitstream/handle/
1814/37582/2015_Wray.pdf?sequence=
1
&isAllowed=Y).
Loyola
University
Chicago
International
Law Review
Volume
18,
Issue
1
33

Persecution
and
Labor
Migrations
context
of
corrupted
state
complicity,
5
as
well
as
international deregulation
wors-
ened
by
privatized power-politics.
6
Trapped
in
the
vicious
circle
of
regulatory
capture, governments
at the
periphery
of
globalized markets'
wealth
transfers7
subserviently
withdraw
their
preferences
over
agricultural
oversight
and
adminis-
tration
and
instead favor lawless
liberalization,
8 aggressive
mercantilism,
9
and
uncontrolled urbanization.
10
The
cost
of
companies'
environmental
footprint
in-
clude
"land
use,
greenhouse
gas
emission,
water
consumption
and
air
pollu-
tion,""
as
well
as
"illegal
wildlife
trade,
forestry
crimes,
fishery
crimes,
[...]
and
trafficking
in
waste."1
2
The
degradation, privatization,
and
'outsourcing'
of
already
impoverished
and
low-productive
terrains
and
territories
leaves
popula-
tions
living
or therein (or
relying
thereon)
with
no
choice but migration,
adding
.
5
See,
e.g.,
Fiona
Downs,
U4,
Rule
of
Law
and
Environmental Justice
in
the
Forests:
The
Challenge
of
"Strong
Law
Enforcement"
in
Corrupt
Conditions,
CHR.
MICHELSEN
INSTITUTE
1,
1,
19-20 (June
2013).
6
Richard Black,
Environmental
Refugees:
Myth
or
Reality?
10
(UNHCR
New
Issues
in
Refugee
Research,
Working
Paper
No.
34,
2001)
(In
Mozambique,
for
example, "pressure
of
population
on re-
sources
has
probably
occurred,
stimulated
not
by
high population
densities
per
se,
but
by
granting
of
land
concessions
to
private
companies.").
7
For
a
'developed-world'
example instead,
see
Stephanie
M.
Stern,
State
Action
as
Political
Voice
in
Climate Change
Policy:
A
Case
Study
of
the
Minnesota Environmental
Cost
Valuation Regulation,
in
ADJUDICATING
CLIMATE
CHANGE:
STATE,
NATIONAL,
&
INT'L
APPROACHES
31,
40
(William
C.
G.
Burns
&
Hari
M.
Osofsky
eds.,
2009).
In
my
passage,
the
term
'periphery'
drew
conceptually
on
the
World-
Systems
Theory,
classifying
geo-economic regions
into
core,
semi-peripheral,
and
peripheral.
See,
e.g.,
Arlene
B.
Tickner,
Core,
Periphery and (Neo)Imperialist
International
Relations,
19
EUR.
J. INT'L
RELA-
TIONS
627 (2013);
John
A.
Agnew,
The
Origins
of
Critical
Geopolitics,
in
THE
ASHGATE RESEARCH
COMPANION
TO
CRITICAL
GEOPOLITICS
19,
22
(Klaus Dodds
et
al.
eds.,
2016).
8
See,
e.g.,
in
the
case
of
Senegal:
Kaushalya
Ramachandran
&
Padmaja
Susarla,
Environmental
Migration
from
Rainfed
Regions
in
India
Forced
by
Poor
Returns
from
Watershed
Development
Projects,
in
ENVIRONMENT,
FORCED
MIGRATION
&
SOCIAL
VULNERABILITY,
117, 127-129
(Tamer
Afifi
et
al.
eds.,
2010);
Frauke Bleibaum,
Case
Study
Senegal:
Environmental
Degradation
and
Forced
Migra-
tion,
in
ENVIRONMENT,
FORCED MIGRATION
&
SOCIAL
VULNERABILITY
187,
188
(Tamer
Afifi
et
al.
eds.,
2010).
9
EUR. PARL.
Ass.,
Environmentally
Induced
Migration
and
Displacement:
A
21st
Century
Chal-
lenge,
1
15,
Doc.
No.
11785,
(Dec.
23,
2008)
https://pace.coe.int/pdf/759bfc82dd33b3effaa28efe
Oafd493ebd94d18a8f46a31d9ea927bd01533c0f/doc.%2011785.pdf
("An
additional
responsibility
for
in-
ducing
environmental migration lies
on
the
[W]estern
world
and
its
trade
policies
in terms
of
agricultural
export
subsidies
and
import
restrictions,
which
are
undermining
the
livelihood
of
small
hold
farmers
in
marginalised
regions.
Also,
the
European and
American agribusinesses
and
their policies,
such
as
the
patenting
of
genetically modified
seeds, are
destroying
local
livelihoods without providing sustainable
local
returns.").
10
See Rabab
Fatima
et
al.,
Human
Rights,
Climate
Change,
Environmental
Degradation
and
Migra-
tion:
A
New
Paradigm,
8,
MIGRATION
POL'Y
INST.
1,
7
(2014)
(available
at
https://www.migrationpol-
icy.org/research/human-rights-climate-change-environmental-degradation-and-migration-new-paradigm).
Corporations
can
be
said
to
force
urbanisation
and
redesign
the
'geography
of
labour'
not
only
macro-
scopically, but
on
the local
scale
as
well; they
do
so,
for instance,
by
polluting,
impoverishing,
and/or
expropriating farmers'
terrains,
or
by
compelling
the
abandonment
thereof. See
also
Benoit
Mayer,
Cli-
mate
Migration
and
the
Politics
of
Causal Attribution:
A
Case
Study
in
Mongolia,
5
MIGRATION
&
DEV.
234,
245
(2016).
11
Ephraim
Nkonya
et
al.,
Global
Cost
of
Land
Degradation,
in
ECONOMICS
OF
LAND
DEGRADATION
&
IMPROVEMENT
-
A
GLOBAL
ASSESSMENT
FOR
SUSTAINABLE DEVELOPMENT
117,
121
(Ephraim Nkonya
et
al.
eds.,
2016).
12
U.N.
Environment
Programme,
The
State
of
Knowledge
of
Crimes that
Have
Serious Impacts
on
the
Environment,
IX (Jul.
11,
2018),
https://www.unenvironment.org/resources/publication/state-knowl-
edge-crimes-have-serious-impacts-environment.
34
Loyola
University
Chicago
International
Law Review
Volume
18,
Issue
1

Persecution
and
Labor Migrations
to
both
internal
displacement
and
cross-border
migratory
movements.
Therefore,
this
cannot
be
simplistically
framed
as a
problem
of
'environmental'
migration:'
3
[C]limate change alone does
not
displace
people,
it
exacerbates social
vulnerability
which
contributes
to
displacement. While
addressing envi-
ronmental
displacement
as
a
refugee crisis
creates
a
sense
of
urgency,
this
framework
will
not adequately address
the
problem.
Climate change
is
not
the
sole
source
of
persecution
that
leads
people
to
environmental
dis-
placement.
In
fact it
is
not
a
source
of
persecution
at
all
because it
does
not
discriminate.
The
impacts
of
climate
change
may
be the
reason
for
why
people
evacuate,
but
they alone
do
not explain
why
people
do
not
return to
their
places
of
origin.
[.
. .
S]ocioeconomic inequality
and
marginalization
of
vulnerable
communities
account
for
the
disparity
in
who
is
displaced
by
the
effects
of
climate change.
14
Among them
are
the
poorest
workers
(and
their
families)
who
face
the
direst
consequences
of
their
or
other
companies'
environmentally
destructive
and
so-
cially
degrading
policies.
In international
law,
"[w]hereas the
rights
of
refugees
are
explicit,
the
rights
of
[internally
displaced
persons
(IDPs)
and
other
economic migrants]
are
mostly
implied
from the
fact that
they
are
human
beings
and
citizens
or
habitual
re-
sidents
of
a
State."1
5
In
fact,
the
concept
of
'environmental
refugees' represents
a
somewhat
misleading expression
that
does
not
(yet)
appear
in
international
treaty
or
customary
law.1
6
Against
this background, something
might
well
improve
in
the
relatively
short
run.
Following
a
number
of
'soft'1
7 or 'semi-soft'1 8 standards,
all
promulgated
(the former)
or
last
revised
(the latter)
in
2011,
since
2014
the
United Nations
(UN)
Human
Rights
Council
(HRC)
has
been
laboriously
negoti-
ating
a
binding
human
rights
Treaty addressed to
TNCs
(hereinafter,
the
1
Such
a
simplistic
approach
is
perpetuated
in
otherwise
excellent
analyses,
see,
e.g.,
Michael
Berlemann
&
Max
Friedrich
Steinhardt,
Climate
Change,
Natural
Disasters,
and
Migration-A
Survey
of
the
Empirical
Evidence,
63
CESwo
ECONOMIC
STUDIES
353
(2017).
14
Shweta
Jayawardhan,
Vulnerability
and
Climate
Change
Induced
Human
Displacement,
17
CON-
SILIENCE:
J.
SUSTAINABLE
DEV.,
no.
1,
2017,
at 103,
104-105.
15
Sara
Brooks,
What
Protection
for
the
Internally
Displaced
in
Burma/Myanmar?,
12
AUSTL.
J.
HUM.
RTS.,
no.
2,
2007,
at
27,
29.
On
corporate-induced displacement
in
Burma,
see
Ana
Natsvlishvili,
Multinational Corporations
in
Resource Rich
Yet
Poor
Countries: Human
Rights
Perspective, 35
(2008)
(LLM
Thesis,
Central European
University).
16
See
William
Thomas Worster,
The
Evolving
Definition
of
the Refugee in
Contemporary
Interna-
tional
Law,
30
BERKELEY
J. INT'L
LAW,
94,
139
(2012);
WORKING GROUP
11,
INTERGOVERNMENTAL
PANEL
ON
CLIMATE
CHANGE,
CLIMATE
CHANGE
2014:
IMPACTS,
ADAPTATION,
AND
VULNERABILITY
-
PART
A:
GLOBAL
AND SECTORAL
ASPECTs
628,
771
(Christopher
B.
Field et
al.
eds.,
2014).
17
See
U.N.
Human Rights:
Office
of
the
High
Commissioner,
Guiding
Principles
on
Business
and
Human
Rights:
Implementing
the
United Nations
"Protect,
Respect
and
Remedy"
Framework,
3-4
(2011), https://www.ohchr.org/Documents/Publications/GuidingPrinciplesBusinessHREN.pdf;
The
Maastricht
Principles
on
Extra-Territorial
Obligations
in the
Area
of
Economic,
Social
and
Cultural
Rights
(2011),
https://www.ciel.org/wp-content/uploads/2015/05/MaastrichtETOPrin
ciples_21lOctl
1
.pdf.
18
See
Organization
for
Economic Co-operation
and
Development
("O.E.C.D."),
Guidelines
for
Mul-
tinational
Enterprises,
3-4
(2011)
https://www.oecd.org/daf/inv/mne/48004323.pdf.
Loyola
University Chicago
International
Law
Review
35
Volume
18,
Issue
1

Persecution
and
Labor Migrations
Treaty).1
9
Because
the
previous
approach
to
the field
was
encased
in
the
logic
of
'closing
the
governance
gap'
without necessarily hardening accountability
de-
mands
into
legal obligations,
20
even
the
initiation
of
these
negotiations
was
quite
a
momentous
achievement.
The
Treaty aims
to
ensure corporations'
responsible
behavior
throughout
the
supply chain,
as
well
as
to
provide
victims with
appro-
priate
fora
and
procedures
to
seek
remedies.
Under
this Treaty,
States would
be
responsible for
failing
to
prevent
and
prosecute
the
misconduct
of
businesses
or
business activities falling
within
their prescriptive
jurisdiction,
2
1
regardless
of
where
the
adverse
effects
occur.
Indeed,
while
States
cannot
be
held
responsible
under
public international
law
(PIL) for
corporate
misconduct
per
se,
nor
can
corporations
themselves
bear
responsibility
under PIL,
a
number
of
obligations
to
prevent
and
prosecute
under
the
Treaty would be assigned
directly
to
States.
22
Most of
these
are
obligations
of
conduct,
while
a
few
are
obligations
of
result.
23
UN fora
are
appropriate for
human
rights matters involving
the
link
between
environment, migration,
and
business,
as
they
accord
due
negotiating
room
to the
poorest
countries
whose
views
are
neglected
in
other
diplomatic
settings.
24
Re-
markable progress
has been
made
over
the
last
eight
years
on
both
the
drafting
process
and
consensus-building,
25
and
States
seem
poised
to
reach
a
consensus
on the
most disputed
issues.
26
Even
though
the
discussions
are
still
ongoing,
one
might
foresee
the
contribution
the Treaty
may
make
(or
not make)
to
PIL
and
human
rights discourses,
and draw
a
few
preliminary
remarks
as
for
its
potential
impact
on
public
and
private
actors.
Any
of
the
suggestions-not
'conclusions'
-
19
U.N.
Hum.
Rts.
Council,
Legally
Binding
Instrument
to
Regulate,
in
International
Human
Rights
Law,
the
Activities
of
Transnational
Corporations
and
Other
Business Enterprises, Revised
Draft
3,
arts.
1
13-5;
3
11
(Aug.
17,
2021)
https://www.ohchr.org/Documents/HRBodies/HRCouncil/WGTransCorp/
Session6/LBI3rdDRAFT.pdf
(hereinafter Third Revised
Draft).
20
Michael
Elliot,
Problematising
the
'Governance
Gap':
[sic]
Corporations,
Human
Rights,
and
the
Emergence
of
Transnational
Law,
12
TRANSN'L
LEGAL
THEORY
196,
197,
199
(2021).
21
Kimberley
N.
Trapp,
Jurisdiction
and
State Responsibility,
in
THE
OXFORD
HANDBOOK OF
JURIS-
DICION
IN
INTERNATIONAL
LAW
355,
357-65
(Stephen
Allen
et
al.
eds., 2019)
(In
public international
law,
'prescriptive
jurisdiction'
stands for
a
State's
exercise
of
its
legislative
-as
opposed
to
executive
or
judicial-
powers
over
its
territory
and/or
citizens).
22
Third
Revised Draft,
supra
note
19,
at PP7,
PP18,
arts.
2(1)(a), 8(1-6;
10).
23
See,
e.g.,
Benoit
Mayer,
Obligations
of
Conduct
in
the
International
Law
on
Climate
Change:
A
Defence,
27
REVIEw
EUROPEAN,
COMPARATIVE
&
INT'L
ENVTL.
L.,
130,
130
(2018) (describing
the
difference
between
obligations
of
conduct
and
obligations
of
result).
24
Koko Warner
(Head
of
Environmental Migration,
Social Vulnerability
and
Adaptation Section,
U.N.H.C.R.),
Climate Change Induced
Displacement:
Adaptation Policy
in the
Context
of
the
UNFCCC
Climate
Negotiations,
U.N.
Doc.
PPLA/2011/02,
at
13
(May
2011).
25
By
this,
I
do
not
imply that
the negotiations have
been
characterised
by
straightforward,
problem-
free
success,
but rather
that
their
engaged
development
is
somewhat
astonishing
compared
to
the
failing
turn
it
was initially
taking.
See
Riccardo Vecellio
Segate,
The
First
Binding
Treaty
on
Business
and
Human Rights:
A
Deconstruction
of
the
EU's
Negotiating
Experience
Along
the
Lines
of
Institutional
Incoherence
and
Legal
Theories,
25
INT'L
J.
HUM.
RTS.
(2021)
(outlining
how
the E.U.
was
explicitly
obstructing
any
progress,
risking
jeopardization
of
the
entire process).
26
Which does
not
mean
the
Treaty
will
actually
be
perfected,
or
that
it
will
ever
gather
sufficient
consensus
to
enter
into force.
One
looming
spectre
is
that
of
overbroad
reservations
which
would render
ratifications meaningless
in
practice,
not
to
mention
a
very
probable regional disparity
of
degrees
of
support.
Needless
to
say,
because
of
the
networked
and
highly volatile
structure
that
would
involve
global
business
transactions
and
operations,
a
Treaty
of
this sort
can
only achieve
its
intended result
if
it
is
endowed
with virtually universal
consensus.
36
Loyola
University
Chicago
International
Law
Review
Volume
18,
Issue
1

Persecution
and
Labor
Migrations
put
forward
here
are,
by
their
nature,
tentative
(which
is
why
some
Sections
are
opened
by
question
marks).
Due
to
said
provisional
nature,
this paper
aims
to
provide
additional
insights
to
policymakers
and
the
scholarly
communities
di-
rectly
or
indirectly
implicated
in
this
Treaty-making process,
while
the latter
is
still
ongoing.
Section 2
briefly
juxtaposes
the 'security
narrative'
of
migration
and
climate
change
-which depicts
the
former
as
catastrophic
and the
latter
as a
large-scale
phenomenon
only
-
onto
a
narrative
of
climate
migrations that originate
every
day
from
the
specific
(non-)choices
of
corporations,
which
should
be
prosecuted
accordingly
as
'push
factors.'
2 7
It is
argued
that
a
security-termed
social
narrative
fails
to
acknowledge
the
real
source
of
insecurity that
lies-not
always,
but
fre-
quently-with
the
exploitation
pursued
by
private
actors
on
a
local
scale, the
aggregated
effect
thereof
representing
what
is
usually
defined
as
'climate migra-
tion.'
After
all,
"a
simple
correlation
between
climate change
and
increasing
vio-
lence does
not
exist."
28
Humans
have
always
been
migrating
from
continent
to
continent, and
changes
in the
climate
have
accompanied
or
triggered most
of
those
spontaneous exoduses
and diasporas.
If
such
migrations
are
now
happening
on
a
more
concentrated,
'abusive,'
and
intensive
fashion owing
to
abrupt
changes
in
the
climate -
and
waiting
for
international
policymakers
to
reach consensus
over
common tools
of
law
and
governance
to
fight climate
change
globally
and
coherently
-
then
perhaps
it
is
worth
prosecuting
more
thoroughly
all
the
corpo-
rate
exploiters
that
worsen
specific conditions
on the
ground
for many local com-
munities,
often
without
offering
those communities
any
financial
or
collateral
benefits
in
return.
There
are
three elements involved
in
these
processes:
the
mi-
grants,
the
corporations,
and the
environment.
Despite
this,
no
international
legal
instrument
exists
to
link
all
of
them.
Indeed, only
a
single
regional
arrangement,
the
African
Union's
Kampala
Convention,
29
includes
all
three,
and
its
implemen-
tation
prospects
raise
significant
doubts.
30
Commenting
upon
a
variety
of
other
regional
and
international
attempts
at
addressing
climate
displacement,
3 1
Section
3
elaborates on the
reasons
why
any
legal
instrument that
links
only
two
of
the
actors
eventually
proves ineffective.
Section
4
discusses
the
influence
a
new
binding
Treaty
on
business
and
human
27
Cantor,
supra
note
2.
28
RYAN
P.
HARROD
&
DEBRA
L.
MARTIN,
BIOARCHAEOLOGY
OF
CLIMATE
CHANGE
&
VIOLENCE:
ETHICAL
CONSIDERATIONS
24
(2014).
29
African Union
Convention
for
the
Protection
and
Assistance
of
Internally
Displaced
Persons
in
Africa
(Kampala
Convention),
Dec.
6,
2012,
art.
3(1)(i)
(requires
State
parties
to
"[e]nsure
the
accounta-
bility
of
non-State actors
involved
in
the
exploration
and
exploitation
of
economic
and natural
resources
leading
to
'displacement.').
30
See
generally
International
Committee of
the
Red
Cross,
Translating
the
Kampala
Convention into
Practice:
A
Stocktaking
Exercise, 99
INT'L
REV.
RED
CROSs
365,
366-70
(2017);
Munene
C.
Kiura,
Kenya
in
MARGINALISATION:
THE
PLIGHT
OF
REFUGEES
AND
INTERNALLY
DISPLACED
PERSONS
IN
EAST
AFRICA
85,
118-20
(Fountain Publishers
2012);
Michael
Addaney,
The
Legal Challenges
of
Offering
Protection
to
Climate
Refugees
in
Africa
in
GOVERNANCE,
HUMAN
RIGHTS,
AND
POLITICAL TRANSFOR-
MATION
IN
AFRICA
333,
349-51
(Michael Addaney
et
al.
eds.,
2020).
31
For
an introductory overview,
see
Hitomi
Kimura,
Addressing
Climate-Induced Displacement:
The
Need
for
Innovation
in
International
Law,
in
GLOBAL ENVTL. CHANGE
&
INNOVATION
1N
INT'L
LAW
125
(Neil
Craik
et
al.
eds.,
2018).
Loyola
University
Chicago
International
Law
Review
37
Volume
18,
Issue
I

Persecution
and
Labor Migrations
rights
(B&HR)
might have
on
certain aspects
of
these migrations
(e.g.,
expatria-
tion
documents
and
consular
assistance), thanks
to
a
long-overdue
holistic draft-
ing
process
that
acknowledges
the
interrelation
among
all
three
actors.
The
obvious danger
is
that
such
a
comprehensive
and
ambitious
goal may
likely,
when
subjected
to
the crucible
of
politics, collapse
under
its
own
weight.
Section
5
analyzes
a
salient
innovation
of
this
Treaty
which
has
been
disre-
garded
in
scholarly
works:
the
reversal
of
the
'persecution
paradigm.'
32
Espe-
cially
when
framed against
the
rhetoric
of
'climate
refugees,'
'persecution
States'
are
generally
defined
as
the
countries from
which
the
refugees
seek to
escape.
This Treaty
operates
instead
to
shift
that
paradigm
towards identifying
the
States
of
persecution
as
those
where
TNCs
are
based
(which
are
not
necessarily
coinci-
dent with the place where the
exploitative
effects occur)
by
attributing
unambigu-
ously
to
said
States the
responsibility for
the
misconduct
of
the
businesses
over
which
they
extend
their
jurisdiction.
Section
6
tries
to
balance
the
benefits
and
disadvantages
of
this
Treaty
along
the lines
discussed
above,
hypothesizing that,
while the
instrument
as
a
whole
deserves
to
be
regarded
under
a
favorable
light,
it
does not
support
well-controlled, state-channeled
preventive
(or
'anticipatory')
migrations.
However,
it
is
reasonable
to
think that
this
Treaty's
primary
lacuna
(at
this
point
in
its
development)
lies
in
its
inability
to
set
a
threshold for
distin-
guishing
the
cases
where
corporate exploitation
is
the main
pull factor
33
from
those
where
such
exploitation
is
instead
an
associate
cause
and
alone would
not
necessarily
be
a
substantial
factor.
Put differently,
any
'environmental'
exploita-
tion
performed
by
corporations
is
situated within
broader
climate-change
dynam-
32
The
expression
'persecution paradigm'
refers
to
the
most doctrinally
conservative, almost dog-
matic
reading
of
'persecution'
in
international refugee
law.
For
selected
overviews
of
mentioned
read-
ings,
its
obsolescence,
and
its
main
limitations,
see,
e.g.,
Mathilde Manon
Crdpin,
The
Notion
of
Persecution
in
the
1951
Convention
Relating
to
the
Status
of
Refugees
and
Its
Relevance
to
the
Protec-
tion
Needs
of
Refugees
in the
21st
Century (2019) (Ph.D.
Thesis
in
Law,
King's
College
London)
(on
file with
King's
Research
Portal,
King's
College London);
Jos6
H.
Fischel de
Andrade,
On
the
Develop-
ment
of
the
Concept
of
'Persecution'
in
International
Refugee
Law,
2
ANUARIo
BRASILEIRO
DE
DIREITO
INTERNACIONAL,
114
(2008);
Gillian
McFadyen,
The
Contemporary
Refugee:
Persecution, Semantics
and
Universality,
(SPECIAL
ISSUE),
9,
13-17
(University
of
Glasgow
eSharp online
research
journal
2012);
Vincent Chetail,
Are
Refugee
Rights
Human Rights?
An
Unorthodox
Questioning
of
the
Relations
Between
Refugee
Law
and
Human
Rights
Law,
in
HUMAN
RIGHTS
&
IMMIGRATION, COLLECTED COURSES
OF
THE
ACADEMY
OF
EUROPEAN
LAW
19,
24-37
(2014).
33
In
international refugee
law
(and
migration
law
more generally),
'pull
factors'
are
the
reasons
that
attract human
beings
to
reach
a
given
jurisdiction
once
they
have planned
(or
been compelled)
to
leave
their habitual
place
of
residence.
Those
factors
might
bear
a
shade
of
voluntarism
but
are
mostly under-
stood
as
unavoidable
and
thus
forced
onto
individuals,
e.g.,
logistically, economically,
for
familial
rea-
sons,
or
through organized deception
that promises rights,
employment,
or
safety where there
will
in
fact
be
none.
For
example,
see
Carla
Ferstman,
Human
Rights
Due
Diligence Policies
Applied
to
Extraterrito-
rial
Cooperation
to
Prevent
"Irregular"
Migration:
European
Union
and
United
Kingdom
Support
to
Libya,
21
GER.
L.J.
459,
481
(2020)
(noting
as
an
example that the search-and-rescue
operations
in the
Mediterranean Sea
by,
among
others, Italy,
may
represent
an
unintended
pull
factor, because
migrants
from Africa are
led
to
believe
their
lives
will
be
safe
when
attempting
to
traverse
the sea to
Continental
Europe).
Some literature
has
opined that
the
language
of
pull
and push
factors
is
outdated,
see,
e.g., Hein
de
Haas,
A
Theory
of
Migration:
The
Aspirations-Capabilities
Framework,
9
COMPARATIVE
MIGRATION
STUD.
1,
1-2
(2021).
While
I
selectively support
this
criticism,
I
believe
that
the
push/pull
terminology
needs
to
be
perpetuated
here,
as
international
negotiations
still
reflect
this lexicon.
It
seems
crucial
to
note
that
pull
and push
factors
are
also
referred
to
as
pull
and
push
forces
(and
the like) in
other publica-
tions,
see,
e.g.,
Joseph Chamie,
International
Migration
Amid
a
World
in
Crisis,
8
J.
MIGRATION
&
HUM.
SEC.
230
(2020)
(also
providing
examples
of
push and
pull
factors,
id. at
238).
38
Loyola
University
Chicago
International
Law
Review
Volume
18,
Issue
1

Persecution
and
Labor
Migrations
ics to
which
all
corporations
(and
thus
countries)
together
contribute;
however,
there
are
situations
where
specific
corporations
within
a
well-defined
territory
cause
local
'environmental'
disasters
as
the
primary
actor
and,
due
to
contingent
dynamics
which
could
have
been
avoided, did
so
in
isolation from
global
trends.
The Treaty
being
negotiated
fails-thus
far
at
least-to
untangle
the
blur
be-
tween
the
two
phenomena,
which
should
rather entail
profoundly
divergent
legal
responses.
Section
7
gathers
the
findings
of
this
study,
recalls
that
the
Treaty's
text
is
not
yet
finalized,
and
concludes
by
discussing next
negotiating
steps
that
should
be
monitored
and
possibly
influenced
for
improvement.
The
Treaty's
guiding
principle
is
that companies should
be
held
accountable
3 4
for
the
workers
(and
their
families)
they
exploit
and
contribute
to
displacing,
because
of
long-standing
and
deliberate structures
of
inequality, imperialism,
and
wealth
concentration that
are
too
frequently
misguided
as-or
simplistically
con-
fined
to-stand-alone,
insulated environmental
factors.
Eventually,
this
Treaty
as
it
stands
does
not
directly
solve
the
three-element problem
outlined
in
this article,
yet
it
fosters
the
emergence
of
causes
of
action
in
tort
and
it
provides room
for
advancing
certain
categories
of
holistic,
multi-causational claims
of
due
diligence
that
were
precluded
before, especially
in
times
of
peace. In
so
doing,
it
is
concep-
tually
sustained
by
two
crucial
paradigm
shifts
regarding
the
agents
of
persecu-
tion.
First,
the
shift
from
States
themselves
to
States
as
those
responsible
for
'their'
corporations.
35
And
second,
and
importantly,
the
shift from
States
usually
associated
with
the
Global
South,
whose
citizens
are
prone
to
concede
to
the
paternalistic
admission-as-charity
36
discourse
propounded
by
the
wealthy club
of
nations
and
masked
as
international
law,
to
States commonly belonging
to
the
Global
North whose inaction
on
any
link
of
the
supply
chain
in
practice
allows
businesses
to
exploit
vulnerable populations
by
furthering
and
accelerating
the
degradation
of
their
living
and
working
environment.
At
the
time
of
writing
of
this article,
the
Chair-Rapporteur
has
released
four
drafts:
one
in
July
2018
(the "Zero
Draft"),
37
another
one
year later
(the
"Revised
Draft"),
38
the
third
one
in
August
2020
(the
"Second
Revised Draft"),
39
and
the
34
I
will
employ
the
concept
of
'accountability'
to
argue
that,
for
the
sake
of
more
pertinently
preventing
(and/or remedying)
'environmentally'-motivated displacement
and
migration
flows,
corpora-
tions should
be
answerable not
only
to
the States where
their
parent company
is
located
or their
subsidiar-
ies operate,
but
also
to
all
those
individuals
(and
families)
who live
in
and depend
upon
the
ecosystem
impacted
and
altered
by
their activities,
sometimes irreversibly.
See
generally
Nadia
Bemaz,
Conceptual-
izing
Corporate
Accountability
in
International
Law:
Models
for
a
Business
and
Human
Rights
Treaty,
22
HUM.
R~s.
REVIEw
45
(2020) (thoroughly examining
defining
shades
of
and
options
for
corporate
accountability
in
B&HR).
35
Cf
U.N.
Secretary-General,
Business
and
Human Rights:
Mapping
International
Standards
of
Re-
sponsibility
and
Accountability
for
Corporate
Act,
120,
U.N.
Doc.
A/HRC/4/035
(Feb.
9,
2007).
36
See
Vincent Chetail,
The
Architecture
of
International
Migration
Law:
A
Deconstructivist
Design
of
Complexity
and
Contradiction,
111
AJIL
UNBOUND
18,
19
(2017).
37
U.N.
Hum. Rts.
Council,
Legally
Binding
Instrument
to
Regulate, in
International
Human Rights
Law,
the
Activities
of
Transnational Corporations
and
Other Business Enterprises, Zero
Draft
(July
16,
2018)
https://www.ohchr.org/Documents/HRBodies/HRCouncil/WGTransCorp/Session3/DraftLBI.pdf.
38
U.N.
Hum.
Rts.
Council,
Legally Binding
Instrument
to
Regulate,
in
International
Human Rights
Law,
the
Activities
of
Transnational
Corporations
and
Other
Business Enterprises,
Revised Draft,
(July
16,
2019),
https://www.ohchr.org/Documents/HRBodies/HRCouncil/WGTransCorp/
OEIGWGRevisedDraft_LBL.pdf
(hereinafter
Revised
Draft).
Volume
18,
Issue
I
Loyola
University Chicago
International
Law
Review
39

Persecution
and
Labor
Migrations
latest
one
in
August
2021
(the
"Third
Revised
Draft").
40
In
what
follows,
any
reference
to
this
instrument
will
be
based
on
the
Third Revised
Draft,
which
replaced
the
Zero, Revised,
and
Second
Revised
drafts; thus,
any
reference
to
"the
draft"
or
"the
Treaty"
will
pinpoint
to
provisions
as
phrased
in
the
Third
Revised
Draft.
When
the
Zero
Draft,
the
Revised
Draft,
or the
Second
Revised
Draft
are
explicitly
mentioned,
the
purpose
is to
show
the
evolution-or,
most
plausibly,
the
involution-of
a
particular trade-off
during
the negotiations.
H.
Corporations
as
Push-Factors:
Displacing
Security-Underpinned
Narratives
In
the
public
conversation, positing
that
climate
change is
threatening
fair
re-
source
allocation
and
international
peace
4 1
(as
if
either
element
were
truly
ac-
complished
in
the
current geopolitical
chessboard)
is
commonplace.
One decade
ago,
even
the
U.N.
Security
Council (UNSC) voiced
concerns
about the
impact
of
climate change
on
international
peace
and
security.
42
Similarly,
in
the private
conversation,
the modern
approach
to
dealing
with
migration
is
disproportion-
ately
underpinned
with
discourse
about
security,
and
concerned
business
interests
often
prevail
over reasoned
assessments
of
the
situations
on the
ground.
Corpo-
rate
apparatuses
align
with
bureaucracy
and
high-level
politics
to
ensure militari-
zation
at
countries'
borders
43 in
a
mixed
commodified competition-insecurity
jargon
which
blurs
the distinction
between goods
and
humans,
and
"speak[s]
to
the
social,
political,
and
economic
consequences
of
a
more
heavily
militarized
and
bordered
world."44
This
is
apparent
when
discussing
the
US-Mexico
dossier,
and
happens despite
the
evidence that most
Mexican
unrest
involves
hidden roots
of
environmental resistance
or
adaptation
to
neoliberal
land
and
resource
dispos-
session.
45
Comparable
remote-control
dynamics
are
at
play
in
the
Mediterranean,
39
U.N.
Hum.
Rts.
Council,
Legally
Binding
Instrument
to
Regulate,
in
International
Human
Rights
Law,
the
Activities
of
Transnational
Corporations
and
Other Business Enterprises,
Second Revised
Draft
(Aug.
06,
2020)
https://www.ohchr.org/Documents/HRBodies/HRCouncil/WGTransCorp/Session6/
OEIGWG
Chair-Rap-
porteursecond_reviseddraft_LBI_on_TNCs_andOBEs_with_respecttoHumanRights.pdf
(herein-
after
Second
Revised Draft).
40
Third
Revised
Draft,
supra
note
19.
41
See,
e.g.,
Camillo Boano
et
al.,
Refugee Studies
Centre,
University
of
Oxford,
Environmentally
Displaced
People:
Understanding
the
Linkages
Between
Environmental
Change,
Livelihoods
and
Forced
Migration,
FORCED
MIGRATION
POL'Y
BRIEFINGS,
Nov.
2008,
at 20-23;
EUR.
PARL.
ASS., A
Legal Status
for
"Climate
Refugee,"
Doc.
No.
14955,
$
9
(Aug.
27, 2019).
42
U.N.
Security Council,
Security
Council,
in
Statement,
Says
"Contextual
Information"
on
Possible
Security
Implications
of
Climate Change
Important
When
Climate
Impacts
Drive
Conflict,
U.N.
Meeting
Coverage
SC/10332
(July 20,
2011);
see
also
Andreas
Motzfeldt
Kravik,
The
Security Council
and
Cli-
mate
Change
-
Too
Hot
to
Handle?,
EJIL:TALK!
(2018),
https://www.ejiltalk.org/the-security-council-
and-climate-change-too-hot-to-handle/.
43
Ansgar
Fellendorf
&
David
Immer,
The
EU's
Responsibility
to
Protect
Environmentally
Displaced
People,
E-INT'L
REL.
(2015),
https://www.e-ir.info/2015/08/22/the-eus-responsibility-to-protect-environ-
mentally-displaced-people/.
44
WENDY
A.
VOGT, LIVES
IN
TRANSIT:
VIOLENCE
AND
INTIMACY
ON THE
MIGRANT
JOURNEY
207
(2018).
45
See
generally
DARCY
TETREAULT,
CINDY
MCCULLIGH
&
CARLOS
LUCI,
SOCIAL
ENVIRONMENTAL
CONFLICTS
IN
MEXICO:
RESISTANCE
TO
DISPOSSESSION
AND
ALTERNATIVES
FROM
BELOw
(2018).
40
Loyola
University
Chicago International
Law
Review
Volume
18,
Issue
1

Persecution
and
Labor
Migrations
where
European
countries securitize
and
outsource
migration
management
by
implementing
"special
zones
for
policing
migrants
and
asylum seekers
estab-
lished within
the territory
of
another
[S]tate,
as
well
as
incentivizing
or
coercing
other
[S]tates
to
counter unauthorized
migration
through enhanced
patrols."
46
And
again, in
Colombia,
the
Inter-American
Court
of
Human
Rights (IACtHR)
argues
that
the
grave
situation
in
which
the
IDPs
[internally
displaced
people]
find
themselves
is
not
caused
by
the
[S]tate,
but
by the
armed conflict,
and
partic-
ularly
by
the
illegal
armed
forces.
[...]
The
Court
also
excluded
the
evaluation
of
the
economic interests
of
landowners,
drug
traffickers,
national
and transna-
tional
corporations
in
forced
displacement.
On
the
other
hand,
the
Court
omitted
to
pronounce
itself
on the
link
between
forced
displacement
and
development,
particularly
land
tenure
in
rural
areas
[..
.
In
fact,]
land tenure
was
not
only
seen
by
the
actors
in
the
armed
conflict
as a
way
of
gaining
control over
territory
and
population,
but
as
a
means
of
going
back
to
a
development
scheme
of
exclusion,
which
secured land tenure
in
the
hands
of
a
few
landowners,
and served the
development
of
industrial
and
large
scale
plantations.
47
Against
the
backdrop
of
"securitization
[...]
as
both
political
spectacle
and
technocracy[,
where]
contestants evoke crises,
enemies,
dramatic
develop-
ments,"
48
these
Treaty
negotiations
remind
the
international
community
of
the
true
face
of
contemporary
environmentally-induced
displacement,
rarely
occur-
ring
due
to
the
effects
of
global
warming-or
more broadly,
climate
change-
alone.
49 Instead,
displacement
is
frequently traversed
by
corrosive
(and
cor-
rupted)
business
practices
which
can
be
isolated
and
prosecuted
because
they
dramatically
accelerate
the
degradation
of
a
specific
environment,
or
damage.
the
latter from
scratch.
46
Lama Mourad
&
Kelsey
P.
Norman,
Transforming
Refugees
into
Migrants: Institutional
Change
and
the
Politics
of
International
Protection,
26
EUROPEAN
J.
OF
INT'L
RELS.,
no.
3,
2020,
at
687,
697;
see
also
Itamar
Mann,
The
New
Anti-Impunity:
Border
Violence
as
Crime,
UNIV.
PENN.
J.
INT'L L.
(forth-
coming
2021)
(manuscript
at 45) (https:/ssrn.com/abstract=3548181).
47
Laura
Bemal
Bermidez,
A
Review
of
the
Interconnectedness
and
Indivisibility
of
the
Human
Rights,
Human Development
and
Human
Security
Agendas:
The
Case
of
the
Colombian
Internally
Dis-
placed
Population,
21
INT'L
LAW:
REVISTA
COLOMBIANA
DE
DERECHO
INTERNACIONAL
181,
210-11
(2012)
(four
emphases
added).
48
Maria
Julia
Trombetta, Linking
Climate-Induced
Migration
and
Security
Within
the EU:
Insights
from
the
Securitization
Debate,
2
CRITICAL
STUD.
ON
SEC.
no.
2,
2014,
at
131,
142.
For
the
actual
court
opinion, see The
Institution
of
Asylum
and
Its
Recognition
as
a
Human
Right
in
the
Inter-American
System
of
Protection
(Interpretation
and
Scope
of
Arts.
5,
22(7),
and
22(8),
in
Relation
to
Art.
1(1),
American
Convention
on
Human
Rights), Advisory
Opinion
OC-25/18,
Inter-Am.
Ct. H.R.
(May
30,
2018),
https://www.corteidh.or.cr/docs/opiniones/seriea_25_esp.pdf.
49
SCOrr
LECKIE
&
CHRIS
HIGGINS,
CONFLICT
AND
HOUSING,
LAND,
AND
PROPERTY
RIGHTS:
A
HANDBOOK
ON
ISSUES,
FRAMEWORKS,
AND
SOLUTIONS
101
(Toronto:
Cambridge
UP
2011);
Walter
Kahlin
&
Nina
Schrepfer,
Protecting
People Crossing
Borders
in the
Context
of
Climate
Change:
Normative
Gaps
and
Possible
Approaches,
UNHCR
LEGAL
AND
PROT.
POL'Y
RSCH.
SERIES
2
(2012)
("Despite
the
complex
relationship
between
climate
change
and
population
movements,
five
scenarios
can
be
identified
that
trigger
such
movements. These scenarios
are
sudden-onset
disasters; slow-onset
environmental
deg-
radation;
the
destruction
of
small
island
[S]tates
by
rising
sea
levels;
areas
designated
as
prohibited
for
human
habitation
because
of
mitigation
and
adaptation
measures
or
because
of
a
high
risk of
disasters
occurring
there;
and
unrest, violence and
conflict
over
resources
diminishing
as
a
consequence
of
climate
change").
Volume
18,
Issue
1
Loyola University Chicago
International
Law
Review
41

Persecution
and
Labor Migrations
Catastrophic storytelling, therefore,
creates
a
more
balanced narrative built
on
awareness
and
precise,
codified, enforceable
human rights
granted
to
both
indi-
viduals
and
affected
communities.
Such
prophetic exclamations speak
volumes
on the
perverse
joint
security-exploitation
design this Treaty seeks
to
eradicate:
On
behalf
of
peasant
organizations,
fishermen,
shepherds,
and
salaried
rural
workers,
we
have
realized
that
this
international
binding instrument
is
increasingly necessary
and
urgent.
While
we
peasants
endeavor
to de-
fend
our
lands and
our
water,
large
multinationals monopolize
our
lands
and
displace our
communities.
And
as
we
strive
to
defend
our
forests,
our
mangroves, our
biodiversity,
and
the
livelihood
of
our
families,
we
con-
front transnational
private
security providers which
operate
in
collusion
with
the
extra-activist
multinationals
to
obtain the
repression
and
impris-
onment
of
the
activists,
and
the destitution
of
our democracies
and
gov-
ernments
that
try
to
oppose
their
interests. On the
other
hand,
when
the
expelled
peasant
women
are
forced
to
emigrate
northward
to save
their
lives,
they
are
held
in
custody
and
rejected
at
the
borders, with
the
inter-
vention
of
security
corporations,
causing
the
suffering
and
death
of
thousands
of
human beings
every
year.
And
even those
who manage
to
cross the
border,
are
destined for
the
most
part
to
fill
the
lowest-paid
job
positions, endowed
with
the
lowest
possible
rights,
in
agribusinesses
-
again
of
a
transnational
nature.
[.
..
]
The
current
conflicts, the
climate
emergency,
environmental
and
migratory
crises, the
defenselessness
of
all
those who
are
affected
and
the
discounted outsourcing
of
our democracies
and
rights:
are
these not
in
fact
"serious
and
necessary" reasons
to
keep
striving
for
the
adoption
of
binding
norms?
50
50
Representative
from
the
NGO Corporate
Accountability International,
Oral
Statement
made
at the
Fourth
Negotiating
Session
of
the
Treaty,
https://www.ohchr.org/Documents/HRBodies/HRCouncil/WG-
TransCorp/Session4/CorporateAccountability.pdf
(translated into English
by
the
author,
from
the
original
Spanish)
(emphases
added),original
text:
Desde
las
organizaciones campesinas,
de pescadores, pastores
y
trabajadores rurales asalariados
constatamos
que
este
instrumento
vinculante
internacional
es
cada
vez
mds
necesario
y
urgente.
Cuando
los
campesinos/as
intentamos defender
nuestras
tierras
y
nuestro
agua
nos
encontramos
con
la
grandes
multinacionales
acaparando
nuestros
territorios
y
expulsando
nuestras
comunidades.
Y
cuando
queremos defender
nuestros bosques, nuestros manglares,
nuestra
bi-
odiversidad,
y
el
sustento
de nuestras
familias,
nos
enfrentamos
a
las
transnacionales
de
arma-
mentos
junto
a
las
multinacionales
del
extractivismo
al
servicio
de
la
represi6n
y
encarcelamiento
de
los
actvistas,
y
de
la
destrucci6n
de
nuestras
democracias
y
de
los
gobiernos
que
intentan
oponerse
a
sus
intereses.
Por
otra
pane,
cuando
las
campesinas expulsadas
se
ven
obligadas
a
emigrar
al
norte
para
salvar
su
existencia
son
retenidas
y
rechazadas
en las
fronteras,
con
intervenci6n
de
las
multinacionales
de
la
seguridad,
causando
el
sufrimiento
y
la
muerte
de
miles de
seres
humanos
cada
aio.
Y
las
que
logran
Ilegar
pasan
en
gran medida
a
cubrir
los
puestos
peor
remunerados
y
con menos
derechos
en
las
empresas
de
la
agroindustria,
otra
vez
de
cardcter
transnacional.
[.
..
Los
conflictos
actuales,
las
crisis
climdticas,
medioambientales,
migratorias,
la
indefensi6n
de
los
afectados
y
la
devaluaci6n
de
nuestras
democracias
y
derechos,
zno
son
acaso
razones
"serias
y
necesarias"
para
no
aminalarse
frente
a
la
adopci6n
de
normas
vinculantes?).
See
also
Sandra Cuffe,
Guatemala
Mine's
Ex-Security
Chief
Convicted
of
Indigenous
Leader's
Murder,
TEr
GUARDIAN,
(Jan.
7,
2021,
12:05
PM),
https://www.theguardian.com/global-development/2021/jan/
07/guatemala-nickel-mine-death-adolfo-ich.
(recent
conviction
of
the
security guard
Mynor
Padilla
by
a
Guatemalan
judge
strikingly
resembles
the
experiences
recounted
by
the
Corporate Accountability Inter-
national
Representative).
42
Loyola University Chicago
International
Law
Review
Volume
18,
Issue
1

Persecution
and
Labor Migrations
'Serious
reasons'
come
equally from daily
legal
practice
before
the
domestic
courts
of
industrialized
countries,
with
all
its
shortcomings.
5 1
In
the
United States
(US),
[t]he
Flores
decisions
illustrate
that
environmental
ATS
[Alien
Tort
Stat-
ute]
claims
brought
under
a
human
rights
approach
[.
.
.],
unsurprisingly,
still
have
to
contain
norms
well-established
as
"law
of
nations."
UN Gen-
eral
Assembly resolutions,
which
are
not
binding,
non-UN declarations,
and
decisions
of
international tribunals
were
rejected
as
evidence
of
a
"law
of
nations" prohibition
of
intra-national
pollution
because
they
were
not
found
to
be
authoritative
sources
of
international
law.
52
In
the
United
Kingdom
(UK)
and
The
Netherlands,
too,
"there
has
been
a
growing
number
of
lawsuits
on
behalf
of
poor communities
harmed
by
corpora-
tions,
such
as
against Trafigura for dumping
of
toxic waste
in
C6te
d'Ivoire
and
British
Petroleum
for
oil
spills
in
Colombia, but these
have largely
been
couched
as
environmental
and
product
liability
issues
rather
than rights
claims."
53
I
will
demonstrate that
this
'depersonalization'
of
court proceedings
initiated
for
busi-
ness-caused
'environmental'
disasters
favors
identifying
corporate
responsibili-
ties,
albeit
accurately,
over identifying
the
social
consequences
of
such
disasters,
with
particular
emphasis
on
the
ensuing
displacement
and
migratory
movements.
Beyond procedural discrepancies
regarding
compensation,
evidence,
restoration,
and
accountability,
the
delinking
of
corporate disasters
from their
non-environ-
mental
human-rights dimension
in
fact
removes
corporate responsibility
for
the
human
unsettlement
such
disasters
trigger.
Instead,
far beyond
mere
judicial
charges
of
ecological
disruption
or
commercial
product
safety
litigation,
it
is
my
argument that
said
corporations
should
be
held
reasonably
accountable
for
the
displacement
and
migrations
their
'environmental'
incidents cause
as
well. In
November
2015,
the
Fundio
tailings
dam at
the
Germano
iron ore
mine
of
the
Samarco
Mariana
Mining Complex
in
Brazil
collapsed
onto downstream
villages
and
released
its
pollutants
in
the
Doce River.
54
But
when
Brazilian
scholars
testi-
51
See
generally
Ji
Ma,
Multinational
Enterprises'
Liability
for
the
Acts
of
Their
Offshore
Subsidiar-
ies:
The
Aftermath
of
Kiobel
and
Daimler,
23
MiCH.
STATE
INT'L
L.
REV.,
no.
2,
2015, at
397.
52
Kathleen Jager,
Environmental Claims
under
the
Alien
Tort
Statute,
28
BERKELEY
J.
INT'L
L.
519,
532 (2010),
(four
emphases
added);
For
a
constructive criticism
of
this
trending
judicial
self-restraint,
see
Anne
Medlin
Lowe,
Customary
International
Law
and
International
Human Rights
Law:
A
Proposal
for
the
Expansion
of
the Alien
Tort
Statute,
23
IND.
INT'L
&
COMPAR.
L.
REV.
523
(2013).
53
Chandra
Lekha Sriram,
Liberal
Peacebuilding
and
Transitional
Justice:
What
Place
for
Socioeco-
nomic
Concerns?,
in
JUSTICE
&
ECONOMIC VIOLENCE
IN
TRANSITION
27,
41
(Dustin
N.
Sharp
ed.,
2014).
54
See,
e.g.,
FlAvio
Fonseca doCarmo
et
al.,
Funddo
Tailings
Dam
Failures:
The
Environment
Trag-
edy
of
the
Largest
Technological
Disaster
of
Brazilian
Mining
in
Global
Context,
15
PERSP.
IN
ECOLOGY
AND
CONSERVATION,
no.
3,
2017,
at
145;
Paola
Pinheiro
Bernardi
Primo
et
al.,
Mining
Disasters
in
Brazil:
A
Case
Study
of
Dam Ruptures
in
Mariana
and
Brumadinho,
5
CASE
STuD.
ENV'T
1
(2018);
Dom
Phillips,
Brazil
Dam
Disaster:
Firm
Knew
of
Potential
Impact
Months
in
Advance,
THE
GUARDIAN
(Feb.
28,
2018,
1:55
AM),
https://www.theguardian.com/world/2018/feb/28/brazil-dam-collapse-samarco-
fundao-mining;
Haruf
Salmen
Espindola
et
al.,
Rio
Doce:
Risks
and
Uncertainties
of
the
Mariana
Disas-
ter
(MG),
39
REVISTA
BRASILEIRA
DE
HIST6RIA
1
(2019);
Vanessa
Hatje
et
al.,
The
Environmental
Im-
pacts
of
One
of
the
Largest
Tailing
Dam
Failures
Worldwide,
7
ScErrFic
REPS.
(Sept.
6,
2017); Mauro
Mendonga
Magliano
&
Humberto Angelo,
The
Lack
of
Economic
Environmental Damage
Valuation:
A
Critical
Review
of
Funddo
Disaster,
26
CERNE
75 (2020).
Volume
18,
Issue
I
Loyola
University Chicago
International
Law
Review
43

Persecution
and
Labor
Migrations
fied
to the
legal
significance
of
this occurrence,
55
they failed
to
mention
the
dis-
placement
it
caused
and
the
suffering these
losses
provoked
in
the
population.
56
On
top
of
this,
while
a
private
agreement
between
the
responsible TNC
and
the
Brazilian
government
was
signed
(framed
in
environmental
and
not
human
rights
language, resulting
in
'dehumanization' of
both
the
incident
and
the
scope
of
the
harm
as
usual),
proceedings
taking
place
in
the
UK
covered
a
civil-compensation
aspect
57
but
were
later
dismissed
by
Her
Majesty's
High
Court
of
Justice
in
En-
gland
as
tantamount
to
an
abuse
of
rights.
58
The court
reasoned
that
the
same
claim
was
also
brought
before
Brazilian
courts,
59
but
awards there
are
lower
in
quantum,
will
probably
be
delayed,
and
are
arguably
subjected
to
strong
pressure
on
the
part
of
politico-business
cartels. The
case
has
been
recently accepted
on
appeal,
60
but
its
progress-let
alone
favorable
outcome-is
not
a
given.
Com-
pared
to
its
Brazilian
counterpart,
6 1
the
1980
U.S.
Comprehensive Environmental
Response, Compensation,
and
Liability
Act
(CERCLA)
is
subsumed under
an
even
narrower
logic
of
product
liability,
6 2
which
makes
it
an
unsatisfactory
legal
response
to
corporate
'environmental'
damage
and
dissipates
the
policy impact
of
its
extraterritorial
applicability (which
was
confirmed
in
principle-though
con-
troversially-by
U.S.
and
Canadian
courts).
63
Even
those
who
favorably regard
55
See
Joana
Nabuco
&
Leticia
Aleixo,
Rights
Holders'
Participation
and
Access
to
Remedies:
Les-
sons
Learned
from
the
Doce
River
Dam
Disaster,
4
Bus.
&
HUM.
RTs.
J.,
no.
1,
2019,
at
147.
56
See,
e.g.,
Andr6a
Zhouri
et
al.,
The
Rio
Doce
Mining
Disaster
in
Brazil:
Between
Policies
of
Reparation
and
the
Politics
of
Affectations,
14
VIBRANT: VIRTUAL
BRAZILIAN
ANTHROPOLOGY,
no.
2,
2017,
at 1,
11,
17-18
(political
and
anthropological, i.e.,
non-legal,
literature
did
in
fact
frame
the
issue
in
such
terms);
Eliana
Santos
Junqueira
Creado
&
Stefan
Helmreich,
A
Wave
of
Mud:
The
Travel
of
Toxic
Water,
from
Bento
Rodrigues
to
the
Brazilian
Atlantic,
69
REVISTA
DO
INSTITUTO
DE
ESTUDOS
BRAS[LEIROS
33,
37
(2018);
Lucas
Seghezzo,
The
Five Dimensions
of
Sustainability,
18
ENVTL.
POL.,
no.
4,
2009,
at
539,
548 (more
broadly,
one's
living
environment
embodies
'a
source
of
facts,
identities,
and
behaviours [that
incapsulates]
notions
of
culture,
local
ways
of life,
and
human
physical
and
psychologi-
cal
health');
see
also
Myriam
N.
Bechtoldt
et
al.,
Addressing
the
Climate
Change
Adaptation
Puzzle:
A
Psychological
Science
Perspective,
21
CLIMATE
POL'Y,
no.
2,
2020,
at 186.
57
See
Jonathan
Watts,
BHP
Billiton
Facing
£5bn
Lawsuit
from
Brazilian
Victims
of
Dam
Disaster,
THE
GUARDIAN
(Nov.
6,
2018,
1:50
PM),
https://www.theguardian.com/environment/2018/nov/06/bhp-
billiton-facing-5bn-lawsuit-from-brazilian-victims-of-dam-disaster.
58
See
Neil
Hume,
UK
High Court
Blocks £5bn
Lawsuit
against
BHP
over
Brazil
Disaster,
FIN.
TIMES,
Nov.
9,
2020,
https://www.ft.com/content/2550b549-67d2-4df7-bl9c-Occl4f666lbf.
59
See
India
Jordan
&
Andrew
Denny,
English Court
Strikes
Out
Claims
Against
BHP
for
Brazilian
Dam
Collapse,
ALLEN
&
OVERY,
Dec.
2,
2020,
https://www.allenovery.com/en-gb/global/news-and-in-
sights/publications/english-court-strikes-out-claims-against-bhp-for-brazilian-dam-collapse.
60
Kirstin
Ridley,
UK
Court
to
Reconsider
$6.9 BLN
Brazil
Dam Lawsuit
Against
BHP,
REUTERS
(May
6,
2021)
https://www.reuters.com/business/exclusive-uk-court-reconsider-69-bln-brazil-dam-law-
suit-against-bhp-2021-05-06/.
61
See
Bianca
Zambdo,
Brazil's
Launch
of
Lender Environmental
Liability
as
a
Tool
to
Manage
Environmental
Impacts,
18 UNIV.
MIAMI
INT'L
&
COMPAR.
L.
REV.
no.
1,
2010,
at
47,
86,
93.
62
See
GWYNNE
L.
SKINNER, TRANSNATIONAL
CORPORATIONS
AND
HUMAN RIGHTS: OVERCOMING
BARRIERS
TO
JUDICIAL
REMEDY
87-88
(2020).
63
See
Jaye
Ellis,
Extraterritorial
Exercise
of
Jurisdiction
for
Environmental
Protection:
Addressing
Fairness
Concerns,
25
LEIDEN
J.
OF
INT'L
L.,
no.
2,
2012,
at
397, 399-408;
Guillaume
Laganibre,
Liabil-
ity
for
Transboundary
Pollution
in Private
International
Law:
A
Duty
to
Ensure
Prompt
and
Adequate
Compensation
227-28 (2020)
(Unpublished
DCL
Dissertation,
McGill
University);
Jeffrey
Gracer,
Den-
nis
Mahony
&
Tyson
Dyck,
Cross-Border
Litigation
Gains Traction
in
U.S.
and
Canadian
Courts,
20
ENVTL.
CLAIMS
J.
no.
2,
2008,
at
181,
184-188.
44
Loyola
University
Chicago
International
Law
Review
Volume
18,
Issue
1

Persecution
and
Labor Migrations
CERCLA
admit
it
has
a
limited
application
with
respect
to
social
aspects
of
envi-
ronmental disasters
and
is
instead
limited
to
the mere
cleaning-up
of
areas dam-
aged
by
pollution,
waste
dumping,
toxic
spills,
and the
discharge
of
noxious
material.64
Furthermore,
the
transformation for which this
article advocates
entails proce-
dural
and
substantive changes
that
would
be
complicated
by
divergent under-
standings
among lawmakers.
As
for
the
indeterminacy
of
definitions,
ambiguity
is
not
restricted
to
the
realm
of
environmentally-induced
migrations.65
For
in-
stance,
to
date,
a
legal
definition
of
asylum
is
still
lacking
internationally,
66
just
like
that
of
migrant.
67
Beyond
linguistic
disagreements,
68
however,
the
IACtHR
has
recently
issued
an
advisory
opinion
that
a
number
of
human
rights
do
apply
in
the
context
of
migration,
even
extraterritorially.
69
Non-refoulement
7 0
is
applied
in
absolute
terms,
and
procedural
rights
(such
as
the
right
to
a
prompt
and
fair
assessment
of
protection requests)
are
upheld accordingly.
This
was
a
regional
and
non-binding
Opinion,
and
yet,
it
might
influence international
legal
debate
over
the
scope and
enforceability
of
the
right
to
seek
asylum
from
persecution.
71
64
See,
e.g.,
Jennifer
J.
Marlow
&
Lauren
E.
Sancken,
Reimagining
Relocation
in
a Regulatory
Void:
The
Inadequacy
of
Existing
US
Federal
and
State
Regulatory
Responses
to
Kivalina's
Climate
Displace-
ment
in
the
Alaskan
Arctic,
7
CLIMATE
LAW, no.
4,
2017,
at
290, 308-09.
65
For
a
table
collecting
and
systematizing
the
relevant
terms,
see Koko
Warner,
Global Environmen-
tal
Change
and
Migration:
Governance Challenges,
20
GLOBAL
ENVTL.
CHANGE
402,
403-04 (2010)
(collecting
and
systematizing
the
relevant
terms)
https://www.stockholmresilience.org/download/
18.3eea013f128a65019c2800010454/1459560566462/Warner+2010.pdf
;
see
also
Rosalfa
Ibarra Sarlat,
Indeterminacitn
del
Estatus
Juridico
del
Migrante
por
Cambio
Climdtico,
20
ANUARIO
MEXICANO
DE
DERECHO
INTERNACIONAL
135,
141-155
(2020);
Giovanni
Sciaccaluga,
Defining
the
Category:
Who
Are
"Climate Refugees"?,
in
INTERNATIONAL
LAW
AND
THE PROTECTION
OF
"CLIMATE
REFUGEES"
57-78
(Palgrave
2020)
(a
definition
of
"climate refugee");
Madhav
Gadgil,
Social
Change
and
Conservation,
in
THE
SAGE
HANDBOOK
OF
ENVIRONMENT
AND
SOCmTY
485,
491 (Jules
Pretty et
al.
eds.,
SAGE
2007).
Although
I
will
interpret
rhetoric,
discourses,
and
narratives
by
multiple
actors
throughout
the
piece,
I
am
not
concerned with terminology per
se,
but
rather,
with
a
crystal-clear matter
of
substance,
i.e.,
whether
the
international
Treaty under
negotiation
may
help bring
corporations
-
and
humans
-
back
to
the
currently state-centered
law
of
environmental migrations/displacements.
Thus,
attempting
a
solution
to
unending,
and
possibly
sterile,
terminological
disputes
falls
outside
the
scope
of
this
work's
purpose
and
ambitions.
66
Guy
S.
Goodwin-Gill,
The
International
Law
of
Refugee
Protection,
in
THE
OxFORD
HANDBOOK
OF
REFUGEE
AND
FORCED
MIGRATION STUDIFS
36,
42
(Elena
Fiddian-Qasmiyeh
et
al.
eds.,
2014).
67
Justin
Gest
et
al.,
Protecting
and
Benchmarking Migrants
Rights:
An
Analysis
of
the
Global
Com-
pact
for
Safe, Orderly
and
Regular
Migration,
57
INT'L
MIGRATION,
no.
1,
2019,
at
60,
74
note 2.
68
Maria
Stavropoulou,
The
Right
Not
to
be
Displaced,
9
AM.
Umv.
INT'L
L.
REV.
689, 692
(1994)
("[T]he definition
of
persecution
needs
to be
re-interpreted
along
the
lines
of
coercion
and
victimization,
rather
than targeting.").
69
For
the
text
of
the
case in
Spanish,
see
The
Institution of
Asylum
and
its
Recognition
as
a
Human
Right
in
the Interamerican System
of
Protection, Advisory Opinion
OC-25/18,
Inter-Am.
Ct. H.R.
(May
30,
2018).
70
See
generally
Matthew
Scott,
Natural
Disasters,
Climate
Change
and
Non-Refoulement:
What
Scope
for
Resisting Expulsion
under
Articles
3
and
8
of
the
European
Convention
on
Human Rights?,
26
INT'L
J.
REFUGEE
L.
404
(2014);
Jane
McAdam,
Protecting
People
Displaced
by
the
Impacts
of
Climate
Change:
The
UN
Human Rights
Committee
and
the
Principle
of
Non-refoulement,
114
AM.
J.
INT'L
L.
708 (2020).
Simply
put, the
expression
non-refoulement
points
to
a
State's
obligation
not
to
return
refu-
gees
to
the
jurisdiction
that
compelled
their
departure
in
the
first
place,
or
to
other
deemed-unsafe
jurisdictions.
7
Massimo
Frigo,
The
Inter-American
Court's
Advisory
Opinion
on
Asylum
and
Its
Impact
for
the
Human Rights
of
Refugees Worldwide,
OPINIO
JURIs
(Oct.
25,
2018), http://opiniojuris.org/2018/10/25/
Volume
18,
Issue
1
Loyola
University Chicago
International
Law
Review
45

Persecution
and
Labor
Migrations
It
is
also
an
important
decision
as
to
environmental
migration,
requiring
foreign
workers
to
receive protection
from
the
abuses
of
the
companies
they
work
for
or
are
impacted
by,
not
only
in
the
State
where
the company
is
legally
domiciled
but
also
before
the
courts
of
third
countries (including
neighboring countries).
Fur-
ther,
the
U.N.
Human Rights
Committee
(HRCtee)
has
recently
held
that States
are
bound
not
to
refouler
those
migrants whose
lives
would
be
at
risk due
to
environmental
degradation
and
climate change
if
turned back
to
their
sending
country.
72
While
it
phrased
its
opinion
in
traditional
terms
(in
fact, the
standard
of
proof
with
regards
to
life-threatening conditions
is
almost
impossible
to
meet),
it
might
signal
a
legal
development
in
the near
future
whereby
future
opinions
might
also
encompass
threats
from
corporate hinderance
to
sustainable
develop-
ment due
to
pollution,
land
grabbing,
soil
contamination,
and
the
like.
"Since
the
exercise
of
virtually
all
other
rights
is
contingent
upon
a
sustainable environ-
ment[,]
[the
'foundational
right'
to
a
sustainable
environment]
seems logical."
73
Categorization
and
consensus
on
relevant
terms
are
both
difficult
to
achieve
due
to
several
factors
including
single
and
multiple
causes
of
migration, the
vol-
untary
or
involuntary
nature
of
such
migrations,
74
and
their
territorial
scope.
Whereas disaster-triggered rapid-onset migrations
are
"short-distance
and
tempo-
rary
in
nature[,
.
.
.]
with
populations
returning
to
their
areas
of
origin
as
soon
as
they
[a]re
allowed
[to]"
75
(obviously, unless
the
disaster
permanently
encumbers
their
home
lands),
slow-onset
migrations
caused by
business behavior
are
usually
long-distance
(but
not
necessarily trans-border)
and definitive.
This
is
because
what
is
disrupted
is
exactly
the social
texture:
the
relationship
of
trust
amid com-
panies,
workers,
suppliers,
trade
unions,
and
(local) representatives
of
govern-
mental
authorities.
For
these
reasons,
one
could
rather disagree
with
those
who
maintain
the
overbroad
stance
that disaster-induced
migrants
"have
no
opportu-
nity
to
remain
in
their
areas
of
origin
[.
..
and]
when
migrating abroad, should
be
granted
the
highest
level
of
protection possible[,
including]
a
permanent
right
to
stay
in
the
host
country,"
while
we
may
still
agree
with
the
idea
of
creating
"dedicated
technical
bodies,
and
[.
.
.]
adopt
a
sliding
scale
protection mechanism
that,
depending
on
the
real
needs
of
the
migrating
individual,
would
be
capable
of
granting different
levels
of
protection."
76
The
draft
Treaty situates
itself
simi-
the-inter-american-courts-advisory-opinion-on-asylum-and-its-impact-for-the-human-rights-of-refugees-
worldwide/.
72
U.N.
Human
Rights
Committee,
Views
Adopted
by
the
Committee
Under
Article
5
(4)
of
the
Optional
Protocol
[to
the
ICCPR],
Concerning
Communication
No.
2728/2016,
1 9.3-9.5,
9.14,
CCPR/
C/127/D/2728/2016
(Oct.
24,
2019);
cf
U.N.
Human
Rights
Committee,
The
Slow
Onset Effects
of
Climate
Change
and
Human Rights
Protection for
Cross-Border
Migrants,
A/HRC/37/CRP.4,
11
67-68
(Mar.
22,
2018) (report from
just
two-and-a-half
years
prior).
73
Sam
Adelman,
Rethinking Human
Rights:
The
Impact
of
Climate Change
on
the
Dominant
Dis-
course,
in
HUMAN
RIGHTS
AND
CItMATE
CHANGE
159,
172
(Stephen Humphreys
ed.,
2009).
74
Marta
Bivand
Erdal &
Ceri
Oeppen,
Forced
to
Leave?
The
Discursive
and
Analytical Significance
of
Describing
Migration
as
Forced and
Voluntary,
44
J.
ETHNIc
&
MIGRATION
STUD.,
no.
6,
2018, at
981.
75
Oscar G6mez,
Climate
Change
and
Migration:
A
Review
of
the
Literature
13-14
(Int'l
Inst.
of
Soc.
Stud.,
The Hague,
Working
Paper
No.
572, 2013).
76
Giovanni
Sciaccaluga,
Climate
Change-Related
Disasters
and
Human
Displacement:
Towards
an
Effective
Management
System
17-18
(Int'l Fed'n
of
Red
Cross
and
Red
Crescent
Soc'ys,
Working Paper
46
Loyola
University Chicago
International
Law Review
Volume
18,
Issue
]

Persecution
and
Labor
Migrations
larly
when
it
requires State Parties
to
"take
all
necessary
legislative,
administra-
tive or
other
action
including
the
establishment
of
adequate monitoring
mechanisms
to
ensure
[the
Treaty's]
effective
implementation,"
77
which
will
prove
particularly
helpful
in
the case
of
"a
combination
of
extreme
events
and
gradual
environmental degradation"
78 in
order
to
correctly
apportion
responsibilities.
III.
Misinformed
Rhetoric
of
Old-Fashioned
Diplomatic
(In)action
"In
2005,
the
Government
of
Bangladesh
[.
.
.]
in
alignment
with
its
obligation
under
the
United
Nations
Framework
Convention
on
Climate
Change developed
a
National Adaption
Program
of
Action[, identifying]
fifteen
priority
projects.
..
,"79
none
of
which even
loosely
refers
to
businesses.
What
leaves
one
dismayed
is
that documents
of
this kind
do
not
directly
mention
private
actors
at
all,
as
if
business
exploitation
of
the
environment
(and
consequently,
of
resident
workers)
and
displacement
were
two
distinct
and
independent
policy
areas.
There
certainty
are
war-torn
or indirectly war-affected
examples
like those
of
Syria or
Jordan
respectively;
80
however,
potential
peacetime
case
studies are
numerous,
the most infamous
ones
including
the
oil-spilled Niger
Delta
8'
and
waste-
No.
4,
2015) (emphasis added);
cf
Douglas
Stephens,
Establishing
a
Positive
Right
to
Migrate
as
a
Solution
to
Food
Scarcity,
29
EMORY
INT'L
L.
REv.179,
212-14
(2014)
(praiseworthy
example
from
Argentina,
when
"displaced
Paraguayans
d[id]
not
fall
neatly
into
the
refugee
framework.
Some
ha[d]
been
displaced
because
their
land
was
surrounded
and
eventually
purchased
by
multinational
corpora-
tions.
Others were
physically
forced
off
their
land,
while
others
faced
economic
dislocation
because
of
their
inability
to
compete
in
the
new
market.
[...
In
response,]
Argentina
revised
its
immigration
law
and
passed
Law
25.871
in
2004.
[.
.
.]
In
2006,
[it]
launched
a
national
program
called
"Patria
Grande"
designed
to
regularize
immigrant
status
for
irregular
immigrants
[..
.].
The program
regularized
almost
half
a
million
people
in
its
first
three
years,
nearly
60%
of
which
[sic]
were
Paraguayan.")
(emphasis
added).
77
Third
Revised
Draft,
supra
note
19,
at
¶
16.1.
78
Warner,
supra
note
24,
at
15.
79
Abdikarim
Ali,
Climate-Induced
Migrants,
International
Law,
and
Human Rights:
An
Assessment
21
(Apr.
2015)
(research
paper,
University
of
Ottawa)
(https://ruor.uottawa.ca/handle/10393/32316).
80
See
Jean-Frangois
De
Hertogh, Climate
Change
as
a
Threat
Multiplier
in
the
Middle
East:
A
Com-
parative
Analysis
of
Syria
and
Jordan
(2016)
(Master's
thesis,
Leiden
University)
(on
file
with
the
Leiden
University
Student
Repository).
81
Recent
press
reports
about
these
events
are
countless.
For
an
academic
viewpoint,
see
Iwebunor
Okwechime,
Environmental
Conflicts
and
Forced
Migration
in the
Nigerian
Niger
Delta,
in
AFRICA
Now!
EMERGING
ISSUES
AND
ALTERNATIVE
PERSPECrIVES
363
(Adebusuyi
Adeniran
&
Lanre
Ikuteyijo
eds.,
2018);
Adefolake
O.
Adeyeye,
Corporate
Responsibility
in
International
Law:
Which
Way
to
Go?,
11
SING.
Y.B.
INT'L
L.
141,
144-45
(2007);
Bukola
Faturoti
et
al.,
Environmental
Protection
in
the
Nigerian
Oil
and
Gas
Industry
and Jonah
Gbemre
v.
Shell
PDC
Nigeria
Limited:
Let
the
Plunder
Con-
tinue,
27
AFR.
J.
INT'L
&
COMPAR. L.,
no.
2,
2019,
at 225.
Lawsuits
about
the
environmental
disaster
in
the
Ogoniland
failed
in
the
US, but
partly
succeeded,
most
recently, in
the
UK
as
well
as
in
The
Nether-
lands,
see
James
Beeton,
Supreme
Court
Rules
in
Okpabi
v
Royal
Dutch
Shell
Plc
and
SPDC,
IN'iL
&
TRAVEL
L.
BLoG
(Feb. 12,
2021)
(discussing
related
decisions
in
the
UK),
https://internationalandtravel-
lawblog.com/2021/02/12/supreme-court-rules-in-okpabi-v-royal-dutch-shell-plc-and-spdc/;
Huib
Shrama,
International
Parent
Company
Responsibility:
Shell
and
Oil
Spills
in
Nigeria,
LoYENs
LOEFF
(Feb.
2,
2021)
https://www.loyensloeff.com/en/en/news/news-articles/international-parent-company-re-
sponsibility-shell-and-oil-spills-in-nigeria-n21572/
(discussing
related
decisions
in
The
Netherlands);
Agence-France
Press,
Shell
to
Pay
$1
1im
over
Decades-Old
Oil
Spills
in
Nigeria,
THE
GUARDIAN
(Aug.
11,
2021, 7:46
PM),
https://www.theguardian.com/business/2021/aug/12/shell-to-pay-
11m-over-de-
cades-old-oil-spills-in-nigeria
(discussing
related decisions
in
The
Netherlands). Hearings
are
currently
Volume
18,
Issue
I
Loyola
University Chicago International
Law
Review
47

Persecution
and
Labor Migrations
poisoned Somali
coasts. 82 These
events
range
from
contaminated
land
and
pollu-
tion
of
soils and
rivers
as
the
industrial
legacy
of
the
Soviet Union
in Central
Asia
(especially
in
the
Fergana
Valley shared
by
Kazakhstan,
Kyrgyzstan,
and
Tajikistan),
83
to
"Ecuador
and
Indonesia,
[where]
corporate
decisions
caused
ter-
rible damage
to
the
indigenous
peoples, arguably
seriously undermining
the
abil-
ity
for
them
to
survive
as
a
culture,"
84
to
Italy, where
"150 people
were
admitted
to
hospital
with
acute
poisoning
because
of
the
release
of
[tons]
of
substances
containing
toxic
arsenic
in
the
environment,"
85
and
Siberia,
where "oil
spills
spreading over
thousands
of
square
kilometers
of
swamp
grasses"
have led
to
displacement
of
the
Khant
and
Mansi
tribes.86
Further,
[i]t
is
not
just
[S]tates
that
can be
held accountable for environmental
change;
large
multinational
corporations
are
another
possible
culprit.
This
legal
avenue
was taken
by
Kivalina,
a
400-inhabitant
Alaskan village
that
had to
be
relocated
further
from
the
coast
because
global warming
had
allegedly resulted
in
the
reduction
of
sea
ice,
erosion
and
a
greater
vulner-
being
held
on
the
same
facts
in
Milan, Italy
as
well,
against
both
Shell
and
Eni,
see
Jillian Ambrose,
Prosecutors
Seek
Jail
Terms
over
Shell
and
Eni
Oil
Deal
in
Nigeria,
THE GUARDIAN
(Jul.
22,
2020, 2:17
PM),
https://www.theguardian.com/business/2020/jul/22/prosecutors-seek-jail-terms-shell-eni-execu-
tives-nigeria-oil-deal.
For
additional
human rights
and
environmental impacts
from
oil
refining
in
the
Niger
Delta
region,
see
Anna
Cunningham, Amid
Pollution
and
Political
Indifference,
Nigerians
Struggle
to
Catch
Their
Breath,
UNDARK
(Oct.
22,
2018),
https://undark.org/article/air-pollution-lagos/.
82
The
case
of
Somalia
is
particularly
illustrative
of
a
crisis-that
of
piracy
and
related
migrations-
which
has
been
primarily
narrated
in
security
and
counterterrorism
(or,
at
best,
"environmental,"
marine,
and
ecological)
terms.
However,
it
would
be
far more
logical
to
frame
the
crisis
in terms
of
root
causes.
logical
consequences
of
Western
waste
dumping
along
the
seacoast,
which served
Euro-American
busi-
nesses
(especially
enriching
transnational
mafias
with
local ties) and resulted
in
infant
cancer
as
well
as
the
starvation
of
once-wealthy
settled
fishermen
and
their families
facing unprecedented
starvation.
This
seems to
stand
as the
only
rational
conclusion
one
may
draw
from connecting
all
relevant
dots
in
a
vast
amount
of
literature.
See,
e.g.,
Rep.
of
the
S.C.
on the
Protection
of
Somali
Natural
Resources
and
Waters,
at
f
46,
U.N.
Doc.
S/2011/661 (2011);
Matiangai
V.
S.
Sirleaf,
Prosecuting
Dirty
Dumping in
Africa,
in
THE
AFRICAN
COURT
OF
JUSTICE
AND
HUMAN
AND
PEOPLES'
RIGHTS
IN
CONTEXT:
DEvELOP-
MENT AND
CHALLENGES
553,
559-561
(Charles
C.
Jalloh
et
al.
eds.,
2019);
BRITrANY
GILMER
VANDEBERG, POLITICAL
GEOGRAPHIES
OF
PIRACY: CONSTRUCTING THREATS
AND
CONTAINING BODIES
IN
SOMALIA
66
(Palgrave
2014);
Anna
Sergi
&
Nigel
South,
"Earth,
Water,
Air,
and
Fire":
Environmental
Crimes,
Mafia
Power
and
Political
Negligence
in
Calabria,
in
ILLEGAL ENTREPRENEURSHIP,
ORGANIZED
CRIME
AND
SOCIAL CONTROL:
ESSAYS
IN
HONOUR
OF
PROFESSOR RICHARD
HOBBS
85,
93
(Georgios
A.
Antonopoulos
ed.,
Springer
2016);
Jatin Dua
&
Kenneth Menkhaus,
The
Context
of
Contemporary
Piracy:
The
Case
of
Somalia,
10
J.
INT'L
CRIM.
JUST.,
no.
4,
2012,
at
749, 760-65;
Mohamed
Abumaye,
Militarism,
Askar:
Policing
and
Somali
Refugees
40
(2017)
(Ph.D.
dissertation,
University
of California
in
San
Diego)
(on file
with
University
of
California
San
Diego eScholarship); Awmr
TEWELDE
WELDEMTCHAEL,
PIRACY
IN
SOMALIA:
VIOLENCE
AND
DEVELOPMENT
IN
THE
HORN
OF
AFRICA
65-69
(2019);
Thean
D.
Potgieter
&
Clive
H.
Schofield,
Poverty,
Poaching
and
Pirates:
Geopolitical
Instability
and
Maritime
Insecurity
off
the
Horn
of
Africa,
6
J.
INDIAN
OCEAN
REGION,
no.
1,
2010,
at 86,
99-105.
83
Frangois Gemenne
&
Philip
Reuchlin,
Climate Change
and
Displacement:
Central
Asia,
31
FORCED
MIGRATION
REVIEW
14,
14-15
(2008).
84
Hari
M.
Osofsky,
Environmental
Human Rights
Under
the Alien
Tort
Statute:
Redress
for
Indige-
nous
Victims
of
Multinational
Corporations,
20
SUFFOLK
TRANSNAT'L
L.
REV.
335,
388
(1997).
85
Ottavio Quirico
et
al.,
States,
climate
change
and
tripartite
human
rights:
The
missing
link,
in
CLIMATE CHANGE
AND
HUMAN
RIGHTS:
AN
INTERNATIONAL AND COMPARATIVE
LAW
PERSPECTIvE
7,
15
(Ottavio Quirico
&
Mouloud
Boumghar
eds.,
2016).
86
John
Alan
Cohan,
Environmental
Rights
of
Indigenous
Peoples
Under
the
Alien
Tort
Claims
Act,
the
Public
Trust
Doctrine
and
Corporate
Ethics,
and
Environmental Dispute
Resolution,
20
UCLA
J.
ENVTL.
L.
&
PoL'Y
133,
143
(2002).
48
Loyola University
Chicago
International
Law Review
Volume
18,
Issue
1

Persecution
and
Labor
Migrations
ability
to
storm
waves
and
surges.
The village
sought
the
responsibility
of
24
major industrial
companies
for
their
alleged
"contributions
to
global
warming."
87
Besides the
'indirect'
effects
of
emissions-caused climate
change,
there
are
two
categories
of
environmentally-linked
business harms
immediately
resulting
in
mass human
displacement: technological
hazards
(one
may
think
of
the
Bho-
pal
or
Chernobyl
disasters
in
1984
and
1986,
respectively),
and
'development'
plans, mostly
related
to
dams
and
irrigation projects.
88
At
times
the
difference
is
not
clear-cut:
for example,
when
"an
earthquake
leads
to
a
tsunami
which
ex-
poses
management
and
design
flaws
in
a
nuclear
power
plant,
as
occurred
in
March
2011
at the
Fukushima
facility
in
Japan
[.
.
.],
identifying
the hazard
cause
as
natural
or
technological
is
not
so
straightforward."
89
At
any
rate, the
superfi-
cial
attention paid
in
migration
and
business
and
human rights literature
to
both
these
typologies
of
phenomena, not confined
to
industry-caused
air
pollution
re-
sulting
in
global warming,
is
striking.90
Current literature inexplicably registers
States
and
organizations
(both international
organizations
9
1
and
NGOs)
as
the
only
collective
actors
operating
at the
intersection between
the
environment
and
migrations,
and
entirely
omits
business
actors.
The
impact
of
the
unhealthy relationship
between
businesses
and
environmen-
tally
related
migrations
is
not
new
news,
yet
it
has
received scant
attention
over
the
last
few
decades,
neither
in
grey
literature
92
or academic
circles. Even
the
latest
edited
collection
93
by
the
scholar
most
consistently published
on
the
topic
of
climate
change
and
migration over
the
past
few
decades includes
no
chapter
on the
present
issue.
Other monographs
and
edited volumes
do
not
mention
it
at
87
Benoit
Mayer,
Sustainable
Development
Law on
Environmental
Migration:
The
Story
of
an
Obe-
lisk,
a
Bag
of
Marbles,
and
a
Tapestry,
14
ENVTL.
L.
REV.,
no.
2,
2012,
at
111, 127.
It
can
prove
difficult
to
find
a
legal
basis
to
prosecute exclusively
the
"major"
emitters,
and
to
distinguish
the
latter
from
supposedly
"minor"
ones.
88
See
Jeanhee Hong,
Refugees
of
the
21st
Century:
Environmental
Injustice,
10
CORNELL
J.L.
&
PUB.
POL'Y,
Spring 2021, at
323,
333-334; Mostafa Mahmud
Naser,
Climate
Change,
Environmental
Degradation,
and
Migration:
A
Complex
Nexus,
36
WM.
&
MARY ENVTL.
L.
& PoL'Y
REV.,
no.
3,
2012,
at
713,
740
note
229;
see
also
Brooke
Havard,
Seeking
Protection:
Recognition
of
Environmentally
Dis-
placed
Persons
Under
International
Human
Rights
Law,
18
VILLANOVA
ENVTL.
L.J.,
no.
1,
2007, at
65,
71-72.
89
Robert
Stojanov,
Contextualising
Typologies
of
Environmentally
Induced
Population
Movement,
23
DISASTER
PREVENTION
&
MGMT.
508,
512
(2014).
90
Most
scholarly and
professionals'
papers
just
mention
the
issue en
passant,
restating
the
obvious
by
advising,
e.g.,
that
"business
companies
are
also
important
policy
actors."
Elin
Jakobsson,
Global
Policy Making
on
Climate
Refugees
-
What
is
the
problem?
(2010)
(unpublished
thesis, Goteborg
Uni-
versity)
(on
file
with the
Department
of
Political
Science at
Goteborg University).
91
Jan
Klabbers,
Notes
on
the
Ideology
of
International
Organizations
Law:
The
International
Or-
ganization
for
Migration,
State-Making,
and
the
Market
for
Migration,
32
LEIDEN
J.
INT'
L
L.
383
(2019).
92
See,
e.g.,
Oli
Brown,
Migration
and
Climate Change,
in
31
IOM
MIGRATION RESEARCH
SERIES,
INT'L
ORG.
FOR
MIGRATION
(2008);
Government
Office
for Science, London,
Migration
and
Global
Environmental
Change:
Future
Challenges
and
Opportunities
(2011),
https:/www.gov.uk/govemmentl
publications/migration-and-global-environmental-change-future-challenges-and-opportunities.
93
CLIMATE CHANGE
AND
DISPLACEMENT: MULTIDISCIPLINARY
PERSPECTIVES
(Jane
McAdam
ed.,
2010).
Volume
18,
Issue
1
Loyola University
Chicago International
Law
Review
49

Persecution
and
Labor
Migrations
all,
94 nor
do
extensive
student endeavors. 95
Businesses
are
investigated
for
man-
aging
migration
detention
centers,
96 but
they
are
virtually
never
examined
as
self-
standing
environmental
push
factors.
This
is
worsened
by
objective
limitations
in
quantifying
environmentally-re-
lated
forms
of
persecution
in
empirical
reviews. 9 7 Scholarly
works
redundantly
acknowledge
that "looking
at
migration uniquely from
an
environmental
perspec-
tive
consequently takes
away some
of
the
political
responsibility
from
actions
which
may
have
deliberately
been
taken."
98
Yet
such
works keep
attributing
these
actions
to States,
while
failing
to
legally
problematize
the
centrality
that
international
relations
and
governance
theories
have
long
attached
to
transna-
tional
business
activities
99
and
their
influence
in
the
context
of
mass
migratory
movements.
The
2008
"Malabo"
Protocol
to
the
Statute
of
the
African
Court
of
Justice
and
Human
Rights,
though
undeniably
innovative
from
a
public
interna-
tional
law
(PIL)
perspective
for
criminalizing
serious corporate
acts
of
illicit
ex-
ploitation
of
natural
resources,100
ultimately fails
to
connect
this
obligation
with
migratory
phenomena.
Neither
the
2016
ILC
Draft Articles
on
the
Protection
of
Persons
in
the Event
of
Disasters,
nor
the
2014
ILA
Declaration
of
Legal
Princi-
ples
Relating
to
Climate
Change,
hint
at
such
a
nexus.101
Endorsing
a view
whereby
environmentally
displaced persons
(EDPs)
10 2
"tend
to
be
reduced
to
a
94
Unfortunately,
recent
examples
are
uncountable.
See,
e.g.,
MATTHEW
SCOTT,
CLIMATE
CHANGE,
DISASTERS,
AND THE
REFUGEE
CONVENTION
(James
Hathaway
&
Sarah
A.
Degan
eds.,
2020);
PEOPLE
ON
THE
MOVE
IN
A
CHANGING
CLIMATE:
THE REGIONAL
IMPACT
OF
ENVIRONMENTAL
CHANGE
ON
MIGRA-
TION
(Etienne
Piguet
&
Frank Laczko
eds.,
2014);
MIGRATION,
RISK MANAGEMENT
AND
CLIMATE
CHANGE:
EVIDENCE
AND
POLICY
RESPONSES
(Andrea
Milan
et
al.
eds.,
2014).
95
See,
e.g.,
IMBR
Contributors,
International
Migrants
Bill
of
Rights
with
Commentary, 28
GEO.
IMMIGR.
L.J.,
no.
1,
2013,
at
23.
96
See
Daria
Davitti,
Beyond
the
Governance Gap:
Accountability
in
Privatized
Migration
Control,
21
GERMAN
L.J.
487
(2020);
Ioannis
Kalpouzos,
International
Criminal
Law
and
the
Violence
Against
Migrants,
21
GERMAN
L.J.
571
(2017);
see
also
Michael
Flynn,
Global Detention
Project,
Kidnapped,
Trafficked,
Detained?
The
Implications
of
Non-State
Actor
Involvement
in
Immigration
Detention,
5
J.
ON
MIGRATION
&
HUM.
SEC.
593
(2017).
97
Marion
Borderon
et
al.,
Migration
Influenced
by
Environmental
Change
in
Africa:
A
Systematic
Review
of
Empirical
Evidence,
41
DEMOGRAPHIC
RSCH.
491, 525 (2019).
98
Joseph
Kweku
Assan
&
Therese
Rosenfeld,
Environmentally
Induced
Migration,
Vulnerability
and
Human
Security:
Consensus,
Controversies
and
Conceptual
Gaps
for
Policy
Analysis,
24
J.
INTr'L
DEV.
1046,
1050 (2012).
99
See,
e.g.,
In
Song
Kim
&
Helen
V.
Milner,
Multinational
Corporations
and
Their
Influence
Through
Lobbying
on
Foreign
Policy,
Brookings
Inst.
1,
2
(2019),
https://www.brookings.edu/wp-con-
tent/uploads/2019/12/Kim_Milner_manuscript.pdf.
100
See
also
Daniella
Dam-de Jong
&
James
Graham
Stewart,
Illicit Exploitation
of
Natural
Re-
sources,
in
THE
AFRICAN
COURT
OF JUSTICE
AND
HUMAN
AND
PEOPLES'
RIGHTS
IN
CONTEXT: DEVELOP-
MENT
AND
CHALLENGES
590-618
(Charles
C.
Jalloh
et
al.
eds.,
2019).
101
U.N.
International
Law
Commission, Draft
Articles
on
the
Protection of
Persons
in
the
Event
of
Disasters
(2016),
available
at
https://legal.un.org/ilc/texts/instruments/english/draftarticles/
6_3_2016.pdf;
International
Law
Association,
Int'l
Federation
of
the Red
Cross,
Declaration
of
Legal
Principles Relating
to
Climate
Change,
Res.
2/2014
(2014),
available
at
https://disasterlaw.ifrc.org/me-
dia/1739?language_content_entity=en.
102
Whilst environmental
migrants
are
not
necessarily
facing
life-threatening
hazards
or
serious
deteri-
oration
of
their living
standards,
'environmentally displaced
persons'
are
defined
as
those
who
flee
situa-
tions
which
gravely undermine
their
existence
and
wellbeing. Nevertheless,
the
reader
is
advised
there
is
no
agreement
on
this
or
related
terms
in
legal
scholarship.
See
M.
Rezaul
Islam
&
Niaz
Ahmed
Khan,
50
Loyola
University
Chicago International
Law
Review
Volume
18,
Issue
1

Persecution
and
Labor
Migrations
consequence
of
climate
change,"1
0 3
the
dominant
narrative
as
enshrined
in,
for
example, the Sendai
Framework
for Disaster
Risk Reduction
2015-2030
and sim-
ilar
soft
documents104
indeed
describes businesses
as
passive
victims
of
global-
warming-triggered environmental
disasters,
and
migrants
as
unavoidable
human
influxes
of
apocalyptic
scale,1
0 5
which
will
inevitably
invade
the
advanced
coun-
tries
of
the
industrialized
hemisphere
in
due
course.106
This
type
of
rhetoric
of
inevitability,
grounded
in
passivity,
is
in
my
view
an
expression
of
what
other
scholars have
"labelled
an
'adaptive'
model
of
disaster
regulation,
in
terms
of
[its]
relationship
to the
greater
system
of
international
law:
[it]
seek[s]
to
de-
velop, adapt, and
particularize
the
application
of
norms
from
other,
more estab-
lished
subfields to
disaster
situations."
107
This
is
exacerbated
by
a
debate
on
climate
change
which
is,
in
itself, already
polarized
between climate-skepticism
and
eco-alarmism.
108
Less
focus
on the
environment
per
se,
the
stigmatization
of
migrants,
and
the
victimization
of
local
businesses
1 09
is
advisable. Instead,
Threats, Vulnerability,
Resilience
and
Displacement
Among
the
Climate
Change
and
Natural
Disaster-
Affected
People
in
South-East Asia:
An
Overview,
23
J. ASIA PAC.
EcON.
297,
300-301
(2018).
103
Christina
Ninfa
Daszkiewicz, Environmentally
Displaced
Persons
at the
Crossroad
of
Environ-
mental, Human Rights,
Asylum
and
Economic
Law: A
European
Perspective
for
a
Future Framework
98
(Oct.
2018)
(unpublished
LL.M
thesis,
University
of
Iceland)
(on
file
with
Semantic
Scholar).
104
The
Sendai
Framework
was
promoted
by
the
U.N.
Office for
Disaster
Risk
Reduction
(UNDRR),
see
Sendai
Framework
for Disaster
Risk
Reduction 2015-2030,
Assembly
Res.
A/RES/69/283
(Jun.
3,
2015).
For
a
discussion
of
other
soft
documents deploying
this
narrative,
see
Elisa
Fornald
&
Sophia
Kagan,
Climate
Change
and
Human
Mobility
in
the
Pacific
Region:
Plans,
Policies
and
Lessons
Learned
39
(Global
Knowledge
Partnership
on
Migration
and
Development, Working
Paper
No.
31,
2017).
105
See,
e.g.,
Margaret
E.
Peters,
Trading
Barriers:
Immigration
and
the Remaking
of
Globalization
229
(Princeton University Press 2017) (deploying
this
disgracefully condescending phrasing
"One could
imagine that
the
threat
of
tens
of
millions
of
Bangladeshi
migrants
might
lead
the European Union
to
send Dutch
engineers
to
build
better
dikes
there.
Flows
of
climate migrants fleeing desertification
in
Africa
might
be
stopped
with
drought-tolerant
food
crops
and
better
irrigation systems
developed
in
California.").
The
urgency
is
more
about
not
having locally
incorporated subsidiaries
of
TNCs
that
pol-
lute
the
environment
and
displace
the
population
than
about
importing Dutch engineers
to
Bangladesh
as
to
constrain
outgoing migration
flows!
106
Stephen
Castles,
Concluding
Remarks
on
the
Climate
Change-Migration
Nexus,
in
MIGRATION
AND
CLIMATE
CHANGE
415, 419 (Etienne
Piguet
et
al.
eds.,
2011)
("However
well
intentioned,
such
shock tactics
are
risky:
not
only do
they
present
questionable
data,
which
might
undermine
public trust
in
environmental
predictions.
More seriously,
they
reinforce
existing
negative images
of
refugees
as
a
threat
to
the
security,
prosperity
and
public health
of
rich
countries
in
the
[G]lobal
North.
Thus
the
doomsday
prophecies
of
environmentalists
may have
done
more
to
stigmatize
refugees
and
migrants
and
to
support
repressive
state
measures
against
them,
than
to raise
environmental
awareness.
In
response, refugee
and
migration scholars
have
argued
that
such
neo-Malthusian
visions
are
based
on
dubious assumptions
and
that
it
is
virtually
impossible
to identify
individuals
or
groups
forced
to
move
by
environmental
factors
alone
[.
.
.T]he
politicization
and
polarization
of
the
debate
on
migration
and the
environment
has
had
quite
negative
consequences."). See
also
Camillo
Boano
et
al.,
Environmentally
Displaced
People:
Un-
derstanding
the
Linkages
Between
Environmental
Change,
Livelihoods
and
Forced
Migration,
Oxford
Dep't
of
Int'l
Dev.
Forced Migration
Policy
Briefing
1,
20-21
(2008).
107
Rhys
Carvosso,
The
Reactive
Model
of
Disaster
Regulation
in
International
Law
and
Its
Short-
comings,
34
LEIDEN
J.
INT'L
L.
957,
958
(2021).
108
Benoit
Mayer,
"Environmental
Migration"
as
Advocacy:
Is
It
Going
to
Work?,
29
REFUGE,
no.
2,
2014,
at
27,
30;
Alfredo dos Santos
Soares,
Protecting
Environmentally
Displaced
Persons
Under
the
Kampala Convention:
A
Brief
Assessment,
9
REvISTA
CATALANA
DE
DRET
AMBTENrAL
1,
16
(2014).
109
Anja
Mihr,
Climate
Justice,
Migration
and
Human
Rights,
in
CLIMATE CHANGE,
MIGRATION
AND
HUMAN
RIGHTS:
LAW
AND
POLICY
PERSPECTIVES
45,
60
(Dimitra
Manou,
et
al.
eds.,
2017)
("It
goes
without
saying
that climate change
can
have
a
significant impact
on
business
activity....
Subsequently,
climate
change
becomes
a
cost
factor
as
well
as
a
risk factor because
it
affects
the
cost
of
everything
in
Volume
18,
Issue
1
Loyola
University
Chicago
International
Law
Review
51

Persecution
and
Labor Migrations
awareness-building"
0
and
responsibility-bearing
policies should
be
designed
for
those
in
the
Global
North
who
exploit
workers
at
the
level
of
their
sustainable
survival
by
degrading
their
living
environment
using sub-contractual
and
mostly
undemocratic
relationships.
To
overcome these
short-sighted
constraints,
one
may
begin
by
looking
at the
growing
inter-regime
literature
on
migration
and
human
rights"
1
and at
policy
standardization
in
business
and human
rights,
11 2
draw
analogies,
and
extrapolate
relevant
starting points
for
research. "There
is
...
significant
debate
as
to
the
definition
of
"climate-induced"
migration;
displacement
due
to
actual
loss
of
land, due
to
natural
disasters,
or
due
to
development-related
issues,
particularly
food
security
as
arable
land
is
affected,
are all
significant
concerns
that
arise
in
scholarship
and
policymaking
debates."
113
Here
too, one
finds
no
mention
of
either
criminal or
negligent
business practices
affecting
the
environment
and,
in
turn,
relevant (segments
of)
local
1 4
populations. General
suggestions
on
explic-
the
production
line.
Most
large
multinational
companies
have been
either
indifferent
or
hostile
to
advo-
cacy
on climate change.
Now, though,
an
increasing
number
are
pressing
for
action
and
calling for clear
government
signals
and
policy options
to
support
mitigation.
[.
.
.]
Many
business
leaders
have
finally
realised that
they
need
to
steer their investment
decisions
in a
more
sustainable
direction in
order
to keep
up
with
their
more
forward-thinking
competitors.")
(emphasis
added).
110
In
policy
and
disaster-management
literature, it
is
often
suggested
that
awareness-building
is
a
'soft
duty'
owed
by
corporate
managers
to
the
civil
society
of
the
territories
where
they operate,
with
regards
to
possible
natural
hazards employees
might
be
exposed
to
while
working
in
those
areas,
because
the
latter
are
per
se
environmentally
risky,
see
Repaul Kanji
&
Rajat
Agrawal,
Exploring
the
Use
of
Corporate
Social
Responsibility
in
Building
Disaster
Resilience
Through
Sustainable
Development
in
India:
An
Interpretive
Structural
Modelling
Approach,
6
PROGRESS
DISASTER
SCI.
1,
3
(ScienceDirect
Apr.
2020).
Instead,
here
we
are
referring
to
making
corporations
aware
of
the
'environmental'
hazards
they
cause
or
escalate through
their
operations.
I
See
generally
IRREGULAR
MIGRATION
AND
HUMAN
RIGHTS:
THEORETICAL,
EUROPEAN
AND
INTER-
NATIONAL
PERSPECTrVES
(Barbara
Bogusz
et
al.
eds.,
2004);
HUMAN
RIGHTS
AND
THE
DARK
SlDE
OF
GLOBALISATION:
TRANSNATIONAL
LAW
ENFORCEMENT
AND
MIGRATION
CONTROL
(Thomas Gammeltoft-
Hansen
& Jens
Vedsted-Hansen
eds.,
2017);
ARIADNA
ESTIrVEz,
HUMAN
RIGHTS,
MIGRATION,
AND
SO-
CIAL
CONFLICT:
TOWARDS
A
DECOLONIZED
GLOBAL
JUSTICE
(2012);
MIGRATION,
HUMAN
RIGHTS,
AND
DEVELOPMENT:
A
GLOBAL
ANTHOLOGY
(Anne
T.
Gallagher
ed.,
Int'l
Debate
Educ.
Ass'n
2013);
CHAL-
LENGING
THE
BORDERS
OF
JUSTICE
IN
THE
AGE
OF
MIGRATIONS
(Juan Carlos
Velasco
&
MariaCaterina
La
Barbera
eds.,
2019).
112
See,
e.g.,
The Ten
Principles
of
the
UN
Global
Compact,
UNrrED
NATIONS GLOBAL
COMPACT,
https://www.unglobalcompact.org/what-is-gc/mission/principles;
see
also
Institutional
Service
for
Human
Rights,
Business
and
Human Rights
Treaty:
Key
Issues
Start
to
Crystalize
but
Attention
on
the
Protection
of
Human Rights Defenders
Remains
Inadequate
(Oct
26,
2016), https://www.business-
humanrights.org/fr/derni%C3%A8res-actualit%C3%A9s/business-and-human-rights-treaty-key-issues-
start-to-crystallise-but-attention-on-the-protection-of-human-rights-defenders-remains-inadequate/.
Note
that
this
2000
Global
Compact
and
its
'Ten
Principles,'
addressed to
businesses,
should
not
be
confused
with
the
2018
Global
Compact
for
Migration,
the
2018
Global
Compact
on
Refugees, or
the
2019
unsuc-
cessful
Global
Pact
for
the Environment,
all
three
of
which
I
briefly
comment
upon
infra.
There
seemed
to
be
no
legal
reason to
differentiate
terminologically
between
'compacts'
and
'pacts.'
See
THOMAS
GAMMELTOFT-HANSEN,
ET
AL.,
WHAT
IS
A
COMPACTS
MIGRANTS'
RIGHTS
AND
STATE
RESPONSIBILITIES
REGARDING
THE
DESIGN
OF THE
UN
GLOBAL
COMPACT
FOR
SAFE,
ORDERLY
AND
REGULAR MIGRATION
12
(Raoul Wallenberg
Institute
of
Human
Rights
&
Development
Law
2018).
113
Heather Johnson,
Immigration
and
International
Relations,
OXFORD
BIBLIOGRAPHIES
(2017).
In
a
strikingly similar
vein,
see
Mehari
Taddele
Maru,
Causes,
Dynamics,
and
Consequences
of
Internal
Displacement
in
Ethiopia
17
(Ger.
Inst.
for
Int'l
and
Sec. Affs.,
Working
Paper
No.
FG
8,
May
2017).
114
'Local'
should
never
be
confused
for 'small.'
For
example,
the
heavily
oil-polluted
area
of
Niger
Delta
is
roughly
as
extended
as
one fifth
of
the whole
territory
of
Italy!
See
generally
David
I.
Little,
et
al.,
Sediment
Hydrocarbons
in
Former
Mangrove
Areas,
Southern
Ogoniland,
Eastern
Niger
Delta, Ni-
52
Loyola
University
Chicago
International
Law
Review
Volume
18,
Issue
I

Persecution
and
Labor Migrations
itly
including
people displaced by
gradual
environmental
degradation within the
scope
of
the
U.N.
Guiding
Principles
on
Internal
Displacement
(GPID)
1 15
had
been
put
forward
at
the
Council
of
Europe.
While case-study
research
has been
carried out
on
the nexus between
environmental
degradation
and
migration,
116
the link between corporate
behavior
and
the
other two elements
has
rarely
been
legally
or
politically
unpacked.
Globally,
although
multiple
UN
General
Assembly
(UNGA)
Resolutions
have
invited
corporations
to
join
efforts
with States and
contribute
to
sustainable
de-
velopmental
plans,
117
no
binding
instrument
addresses
the
issue.
Several
interna-
tional
industry-led
frameworks
do
exist,
118
but
they
are
voluntary,
unaccountable
to
civil
society,
inefficacious,
1 19
and
not
one
of
them singles
out
migratory issues
stemming from
environmental
degradation.
When
it
comes
to
international
state-
driven
efforts, outcomes
have
not proven
more
convincing
thus
far.
To
begin
with,
the
Global
Compact
on
Refugees
(GCR)
120
has
left
the
situation
of
'cli-
mate
refugees'
(and
the like)
deliberately
unaddressed.1
2 1
Further,
the
Global
Compact
for
Safe,
Orderly
and
Regular Migration
(GCM)
was
endorsed
by the
UNGA
in
December
2018,122
but although celebrated
for
its
significance
as
"the
first international agreement
to
recognize climate
migration,"1
23
it
is
not
an
inter-
national
treaty.
Moreover,
key
migration
'destination'
countries
and
TNCs'
pri-
mary
countries
of
incorporation
(the U.S.,
Australia,
Italy)
either
voted
against
the GCM
or
abstained,
thus
significantly weakening
its
political
weight. To
make
things
worse, even
linguistically,
both
Compacts contributed
to
sanctioning the
seasoned
dichotomy
between
economic
migrants
and
political
refugees.1
24
There
geria,
in
THREATS
TO
MANGROVE FORESTS:
HAZARDS,
VULNERABILITY,
&
MANAGEMENT
323
(Christo-
pher Makowski
&
Charles
Fink]
eds.,
2018).
115
Kalin &
Schrepfer,
supra
note
49,
at
46-47.
116
Tessa
Schmedding, Environmental
Migration:
A
Global
Issue
Under
European
Union
Leadership?
45
(2011)
(Master's
Thesis)
(on
file
at
Institut
Europen
des
Hautes Etudes Internationales).
117
See,
e.g.,
G.A.
Res.
73/254,
Towards
Global
Partnerships:
A
Principle-Based
Approach
to
En-
hanced
Cooperation Between
the
United
Nations
and
All
Relevant
Partners'
(Jan.
16,
2019).
118
For instructive
table
of
industry-specific frameworks,
see
Shiro
Hori
&
Sachi
Syugyo,
The
Func-
tion
of
International
Business
Frameworks
for
Governing
Companies' Climate
Change-Related
Actions
Toward
the
2050
Goals,
20
INT'L
ENVITL. ENVTL. AGREEMENTS:
POL.,
L.
&
ECON.
541,
549
(2020).
119
Daniel
Iglesias Marquez,
The
Scope
of
Codes
of
Conduct
for
Corporate
Environmental
Responsi-
bility,
6
REVISTA
CATALANA DE
DRET
AMBIENTAL,
no.
2,
2015,
at
1.
120
G.A.
Res.
73/151
Global
Compact
for Refugees
(Dec.
19,
2018).
121
See
Gillian Doreen Triggs
&
Patrick
C.J.
Wall,
'The
Makings
of
a
Success:'
The
Global
Compact
on
Refugees
and
the
Inaugural Global
Refugee
Forum, 32
INT'L
J.
REFUGEE
L.,
283,
301
(2020);
see,
c.f,
Antoine
P6coud,
Narrating
an
Ideal
Migration
World?
An
Analysis
of
the
Global
Compact
for
Safe,
Orderly
and
Regular
Migration,
42
3D
WORLD
Q.,
no.
1,
2021,
at
16,
27.
122
G.A.
Res.
73/195,
Global
Compact
for
Safe,
Orderly
and
Regular
Migration
(Dec.
19,
2018).
123
Elspeth Guild
et
al.,
From Zero
to
Hero?
An
Analysis
of
the
Human Rights
Protections
Within
the
Global
Compact
for
Safe,
Orderly
and Regular
Migration
(GCM),
57
INT'L
MIGRATION,
no.
6,
2019,
at
43,
51;
see
also
Alan
Desmond,
A
New
Dawn
for
the
Human
Rights
of
International
Migrants?
Protec-
tion
of
Migrants'
Rights
in
Light
of
the
UN's
SDGs
and
Global
Compact
for
Migration,
16
INT'
L
J.L.
CONTEXT
222,
229
(2020).
124
See
Annick
Pijnenburg
&
Conny Rijken
Moving
Beyond
Refugees
and
Migrants:
Reconceptualis-
ing
the
Rights
of
People
on
the
Move,
23
INT'L
J.
POSTCOLONIAL
STUD.
273
(2021),
for
an
extensive
discourse
on
the topic.
Loyola
University
Chicago
International
Law Review
53
Volume
18,
Issue
I

Persecution
and
Labor
Migrations
is
also
the
Global
Pact
for
the
Environment,
which
was
being negotiated during
the
first
months
of
2019.125
It
appeared in
principle
more
promising
due
to
its
prospected
bindingness
and the
large consensus it
initially
gathered among world
powers.
Still,
the
initiative
failed12
6
during
its
third
negotiating
round.
However,
this failure
bears
no
appreciable
consequence
for
the
problems being raised
in
the
present
analysis.
The
Pact's
shortcomings
in
this
respect
had been
already
out-
lined
in
literature,
one
year
prior
to its
eventual
breakdown:
The
Pact
provides in
draft
article
2
for
a
broadly
formulated
duty
of
care,
which
might
rightly
be
seen
as
a
natural
corollary
to
the
right
to an
eco-
logically
sound
environment.
[.
.
.]
Whether
or
not
such
a
broad
duty
of
care
across
such
a
diverse
range
of
actors could
be
said
strictly
to
be
an
existing
principle
of
[international
environmental
law],
this
is
a
compre-
hensive
formulation
establishing
a
thoroughgoing
and
all-embracing
duty
of
care
that
is
potentially applicable
to a
wide range
of
state
and
non-state
entities[,
. .
.]
such
as
transnational
corporations.
[.
.
.]
[T]he
technique
[is]
often used in
soft
law
to
include
moral
injunction opposable
to
all,
and
more
precise
rule
opposable
only to
[States].
But,
of
course,
the
Pact
is not
meant
to
be
soft
law.
And
thus, how
is
such
a
provision
meant
to
be
understood?
Previous
attempts
to
impose
direct
legally
binding
interna-
tional
rules
on
transnational corporations
[were]
met with
derision
and
scorn.
The
same
would
arguably
be
true
here.
If,
on
the
other
hand,
there
was
no
intention
to
impose
such
an
obligation, what
notion
of
"duty"
as
a
legal
concept
is
this,
within
a
binding
treaty?
Unless
the
Pact
challenges
the
systemic
nature
of
intergovernmental
relations,
such
horizontal appli-
cation
will
be
limited
to
that
implemented
in
domestic
law.
127
On
a
more local
note,
the
signing
of,
for example,
the
Escazd
Agreement
1 28
by
twelve Latin
American
countries,
in
September
2019,
was
welcomed
widely
as
a
125
See
generally
G.A.
Res.
72/277,
Towards
a
Global Pact
for
the
Environment
(May
14,
2018).
With
this
Resolution,
the
UNGA
established
an
intergovernmental working
group
dedicated
to
the
elaboration
of
this Pact.
126
See
Rep.
of
the
Ad
Hoc
Open-Ended
Working
Group
Established Pursuant
to
General Assembly
Resolution
72/277,
U.N.
Doc.
A/AC.289/6/Rev.
2,
(June
13,
2019)
(speaking
only
of
recommendations
to
move
forward);
Follow-Up
to the
Report
of
the
Ad
Hoc
Open-Ended
Working Group
Established
Pursuant
to
General Assembly
Resolution
72/277, U.N.
Doc.
AIRES/73/333
(Sept. 5,
2019)
(acknowl-
edging
this
diplomatic
fiasco).
127
Louis
J.
Kotzb
&
Duncan French,
A
Critique
of
the
Global
Pact
for
the
Environment:
A
Stillborn
Initiative
or
the
Foundation
for
Lex
Anthropocene?,
18
INT'L
ENVTL. AGREEMENTS:
POL.,
L.
&
ECON.
811,
825-26
(2018)
(emphasis
added).
The
critique
offered
by
these
authors
is
exceedingly
relevant,
as
they
outline
how
this
Pact would
have
had
a
horizontal
effect
on
human
rights domestically
but
not
directly under
public
international
law.
On
the
distinction
between
the
two,
see
Stephen
Gardbaum,
Positive
and
Horizontal
Rights:
Proportionality's
Next
Frontier
or
a
Bridge
Too
Far?,
in
PROPORrIONAL-
rTy: NEW
FRONTIERS, NEW CHALLENGES
221,
237-41 (Victor
Tushnet
ed.,
2017);
C.
Lottie
Lane, The
Horizontal
Effect
of
International
Human
Rights
Law
in
Practice,
5
EUROPEAN
J.
COMPARATIVE
L.
&
GOVERNANCE,
5,
27-28
(2018).
128
U.N. Economic
Commission
for
Latin America
and the
Caribbean, Regional
Agreement
on
Access
to
Information,
Public
Participation
and
Justice
in
Environmental
Matters
in
Latin
America
and
the
Car-
ibbean,
Mar.
4,
2018
(imposing obligations
on
signatory
States).
54
Loyola University
Chicago
International
Law
Review
Volume
18,
Issue
1

Persecution
and
Labor
Migrations
landmark
victory
in
by
human-rights
NGOs1
29
as
well
as
the
popular
press.1
30
In
contrast,
in
terms
of
business
and
human rights,
there
is
almost
nothing
to
cele-
brate.
The
only
reference
to
corporations
is
traceable
in
Article
6(13),
requiring
Parties
to
"encourage
public
and
private companies,
particularly
large
companies,
to
prepare
sustainability
reports that reflect
their
social and
environmental
per-
formance,"
and
to
do
so
in
accordance
with
their
capacity.
The
language
in
this
Agreement,
merely
mandating
encouragement, echoes
both
the
soft
corporate
so-
cial
responsibility
rhetoric
131
built
on
internal
auditing
and
claimed
self-account-
ability measures,
and
idea
of
'progressive
realization,'
i.e.,
the
"progressive
character
of
the
development
of
social,
economic
and
cultural
rights," borrowed
from
the
International
Convention
on
Economic,
Social and
Cultural Rights
(ICESCR).1
32
The
latter
concept functions
as
an
escape route
for corporate
ac-
tors. Here, the
requirement
is
not
even
progressive
but
simply
tailored
to
the
actual
abilities
of
each Party,
although Article
3(c)
does
mention
progressive
realization, together
with
'non-regression.'
133
IV. Featuring
a
New
Binding
Instrument
Targeting
Businesses
The
new
Treaty
would take
a
far-reaching
stance
on
human
rights.
Art.
5.3
currently
states, "State
Parties
shall
investigate
all
human rights abuses
covered
under
this (Legally
Binding Instrument),
effectively, promptly, thoroughly
and
impartially,
and
where
appropriate,
take
action
against
those natural
and/or
legal
persons
found
responsible,
in
accordance
with
domestic
and
international
law."
134
An
earlier
formulation mentioned
"all
human rights"
135
without
specify-
ing
they
were
those
that
actually
would
have
been
covered
by the
Treaty,
but
the
outstanding
issue
concerns
the
clarification
of
what
'international
law'
stands
for
here.
This
legalistic,
far-reaching
provision
did not persuade
some
delegations,1
36
129
See,
e.g.,
Duncan Tucker,
Americas:
Historic
Environmental
and
Human Rights
Treaty
Gains
Momentum
as
12
Countries
Sign,
AMNESTV
INT'L
(Sept.
27,
2018,
12:04
PM),
https://www.amnesty.org/
en/latest/news/2018/09/americas-12-countries-sign-historic-environmental-treaty/.
130
E.g.,
Vivek
H.
Maru,
Why
Planetary
Survival
Will
Depend
on
Environmental
Justice,
L.A.
Tm
Es
(Apr.
22,
2021,
3:05
AM),
https://www.latimes.com/opinion/story/2021-04-22/environmental-justice-
peru-escazu-agreement.
131
See
Ana
Lertanec,
The
Connection
Between
Corporate
Social
Responsibility
and Corporate
Re-
spect
for
Human
Rights,
10
DANUBE:
L.,
EcoN.
&
SOCIAL
Issues
REv.,
no.
2,
2019, at
103
(discussing
this
soft rhetoric).
132
The
technical
concept
of
the
'progressive
realization'
of
human
rights
is
deeply
insidious,
see
Luisa
Maria
Silva
Merico,
Environment
and
Development
Within
the
Inter-American
Human
Rights
Sys-
tem,
in
Hum.
RTS. &
ENV'T,
263,
274
(Cdsar
Barros
Leal
ed.,
2017) (courts have
already
employed
it,
for
instance,
to
dismiss
developmental claims
which
did
not feature
"an
adequate sample
of
domestic
conditions.").
133
Third
Revised
Draft,
supra
note
19,
at
art.
3(c).
134
Third
Revised
Draft,
supra
note
19,
at
art.
5(3)
(emphasis
added).
135
Revised Draft,
supra
note
38,
at
art.
4(10)
(emphasis
added).
136
Luis
Gallegos (Chair
Rapporteur
of
the
Human
Rights Council),
Draft
Rep.
on
the
Fourth
Session
of
the
Open-Ended Intergovernmental
Working
Group
on
Transnational
Corporations
and
Other
Busi-
ness
Enterprises
with
Respect
to
Human
Rights,
1
39,
U.N. Doc.
A/HRC/RES/26/9
(Oct.
19,
2018)
(hereinafter
Fourth
Session,
Draft
Rep.).
Volume
18,
Issue
1
Loyola
University
Chicago
International
Law
Review
55

Persecution
and
Labor
Migrations
and
the
consistent
reference
to
"all
human
rights"
in
the
Preambles
137
had
been
(factiously,
but
rightly) labelled
as
"illogical
from
both
a
practical
and
legal
per-
spective."
138
A more
focused formulation
would,
for
example, specify
that 'inter-
national
law'
equates
to
the
commitments
States
have
already
undertaken.
Migration
literature
did not
fail
to
reiterate that
those displaced
or
migrating
are
in
fact rights-holders
under
existing multilateral
human
rights
treaties
and
re-
gional
arrangements although
not
generally
as
migrants
or
displaced people.
Rather,
under
general
multi-lateral
human
rights
treaties
such
as
the
1966
[Int'l
Covenant
on
Civil
and
Political
Rts.
(ICCPR)]
and
1966
International Covenant
on
Economic,
Social
and
Cultural Rights
(ICESCR),
[S]tates
already
have obli-
gations
to
respect,
protect,
and
fulfil the
rights contained
therein
of
people
within
their jurisdiction.
That these
people migrate
or
are
displaced
by
climate
change
within the
[S]tate's jurisdiction
does
not
divest
them
of
the
rights they enjoy.
139
Second-generation
rights,
like
those
to
health or
to
food,
are
particularly
sensi-
tive
in
this regard.
Although their
positive
provision
cannot
be
justiciable,
Con-
stitutions
in
several
States
have
started
to
incorporate
their
functional
necessity
as
corollaries for
the
enjoyment
of
the
right
to
life'
40
or
the
right
not
to
be
subjected
to
inhuman
or
degrading
treatment.
4 1
Furthermore,
the
HRCtee's
non-binding,
yet
highly authoritative
General
Comment
(GC) No.
36 on
the
ICCPR
Art.
6(1)'s
Right
to
Life,
referring
to
the
U.N.
Guiding
Principles
on
Business
and
Human
Rights, observed
as
follows:
States
parties
must
take
appropriate measures
to
protect individuals
against
deprivation
of
life
by
[.
.
.]foreign
corporations
operating
within
their
territory
or
in
other
areas
subject
to
their
jurisdiction.
They
must
also
take
appropriate
legislative
and
other
measures
to
ensure
that
all
ac-
tivities
taking
place
in
whole
or
in
part
within
their
territory
and
in
other
places subject
to
their
jurisdiction,
but
having
a
direct
and
reasonably
foreseeable
impact
on
the
right
to life
of
individuals
outside their
terri-
tory,
including
activities
taken
by
corporate
entities
based
in
their terri-
137
Revised
Draft,
supra
note
38,
preamble; Second
Revised
Draft,
supra
note
39,
preamble; Third
Revised
Draft,
supra
note
19,
preamble.
138
Representative
of
the
Geneva-based NGO
International Organisation
of
Employers,
Oral
State-
ment made during
the
Fourth Session
of
the
Open-Ended
Intergovernmental
Working
Group
on
Transna-
tional Corporations
and
Other
Business
Enterprises
with Respect to
Human Rights
(Oct. 15-19,
2018),
(available
at
https://www.ohchr.org/Documents/HRBodies/HRCouncim/WGTransCorp/Session4/
IOEArticles1_14
15.pdf).
139
Bruce Burson,
Protecting
the
Rights
of
People
Displaced
by
Climate
Change:
Global
Issues
and
Regional
Perspectives,
in
CLIMATE
CHANGE
AND
MIGRATION:
SOUTH
PACIFIC
PERSPECTIVES
159,
169
(Bruce Burson
ed.,
2010);
see
also
Cosmin
Corendea,
Migration
and
Human
Rights
in
the
Wake
of
Climate
Change:
A
Policy
Perspective
Over
the
Pacific,
2
UNU-EHS
PUBLICATION
SERIES POLICY
RE-
PORT,
at
38
(2017).
140
Burson,
supra
note
139,
at
163.
141
See
Colm
O'Cinneide,
The
Present
Limits
and
Future
Potential
of
European
Social
Constitution-
alism,
in
THE
FUTURE
OF
ECONOMIC
AND
SOCIAL
RIGHTS
324,
333
(Katharine
G.
Young
ed., 2019);
Katie
Anne Boyle
&
Edel
Hughes,
Identifying
Routes
to
Remedy
for
Violations
of
Economic,
Social
and
Cul-
tural
Rights,
22
INT'L
J.
HUM.
RTS.,
no.
1,
2018, at
43, 52;
Ellen
Wiles,
Aspirational
Principles
or
Enforceable
Rights?
The
Future
for
Socio-Economic
Rights
in
National
Law,
22
AM. UNIV.
INT'L
L.R.
35,
41
(2006).
56
Loyola University
Chicago
International
Law
Review Volume
18,
Issue
I

Persecution
and
Labor Migrations
tory
or
subject
to
their
jurisdiction,
are
consistent
with
[A]rticle
6,
taking
due
account
of
related
international
standards
of
corporate
responsibility,
and
of
the
right
of
victims
to
obtain
an
effective
remedy.
[.
. .
The
i]mplementation
of
the
obligation
to
respect
and
ensure
the
right
to
[...]
life
with
dignity,
depends,
inter
alia,
on
measures
taken
by
States
parties
to
preserve
the
environment
and
protect
it
against
harm,
pollution
and
climate
change caused
by
public
and
private
actors.
142
Provided
that,
"as
many
philosophers
think,
duties not
to
harm
are
generally
more stringent
than
duties
to
aid,"
143
this
GC
properly upholds
the status
of
"sec-
ond-generation"
welfare
rights, which
are
accomplished
when
individuals
can
live
their
life
with
dignity
without
being
harmed
by
irresponsible
corporate
con-
duct.
"A
universal
environmental
right
cannot emerge
as
long
as
the
West
privi-
leges
individual rights
over group rights
and
solidarity
or third generation rights,
which
must
be
made
fully
justiciable.
Non-state
actors,
especially transnational
corporations, must
be
brought
fully within
the
ambit
of
human
rights
law
as
duty
bearers."144
The
ill
fate
of
the
International Convention
on
the
Protection
of
the
Rights
of
All
Migrant
Workers
and
Members
of
Their
Families,
with
fifty-four
Parties
from
sending
countries
exclusively
to
date,
should
have
taught
us
that
too
wide-encom-
passing
treaties
should not
be
adopted,
as
their
destiny
will be
to
not solve
the
problems
which
prompted
their
initiation. The
low
ratification
rate
of
this
and
the
ILO Conventions
"shows
that
few
[S]tates
are
actually
keen
to
recognize
and
protect
even
the
[most]
basic human
rights
in
the case
of
economic migrants."
145
However,
the
subject
migrants
of
the
(hopefully)
upcoming
Treaty
would stand
halfway between
economic migrants
and
asylum
seekers.
There
is
indeed
an
ele-
ment
of
persecution,
coupled
with
one
of
'redemption'
by
a
more
prosperous,
dignified
life.
With regards
to
environmental
migrants,
author Assan wondered,
"In
what
way
are
people
displaced
by
environmental
degradation/climatic
varia-
bility
different
from people
who
migrate
because
their
sources
of
livelihoods
are
destroyed
because
of
economic hardship?"
146
In
principle
there
is
no
difference,
but
when
business
misconduct
adds
direct
or
indirect
elements
of
persecution
to
unfavorable
alterations
of
the
environment,
then
such
difference
indeed
emerges,
and legal
consequences
should
follow
suit.
That
environmental migrants
differ
from traditional
refugees
is
true
insofar
as
the
former
may
still
rely
on
the
protec-
142
U.N.
Hum.
Rts.
Committee
(HRCtee),
General Comment
No. 36
(2018)
on
Article
6
of
the Inter-
national Covenant
on
Civil
and
Political
Rights,
on
the
Right
to
Life,
51
22,
62,
U.N.
Doc.
CCPR/C/GC/
36
(Oct.
30,
2018)
(emphasis
added).
This
reasoning has
been
already applied
in
several
cases
of
'climate
change'
migrations,
but there
have been
no
decisions
yet
regarding
business
co-responsibilities
in
such
'climate
change'
migrations.
See
also
Jefferi Hamzah Sendut,
Climate Change
as
a
Trigger
of
Non-
Refoulement
Obligations
Under
International
Human
Rights
Law,
EJIL:TALK!
(Feb.
6,
2020)
https://
www.ejiltalk.org/cli
mate-change-as-a-trigger-of-non-refoulement-obligations-under-international-
human-rights-law/
(discussing
an
HRCtee decision
on
the
right
to life).
143
JAMES
PATRICK
GRIFFIN,
ON
HUMAN RIGHTS,
177
(Oxford
Univ.
Press
2008).
144
Adelman,
supra
note
73,
at
173.
145
Benott
Mayer,
International
Law
and
Climate
Migrants:
A
Human
Rights
Perspective
7
(Sustaina-
ble
Dev.
Law
on
Climate
Change,
Legal
Working Paper
No.
08, 2011).
146
Kweku
Assan,
supra
note
98,
at
1050.
Volume
18,
Issue
I
Loyola University
Chicago
International
Law
Review
57

Persecution
and
Labor
Migrations
tion
of
their
governments;
147
self-evidently,
said
protection
is
inexistent
when-
ever
the
State
is
not
independent,
resourceful,
or
capable enough
to
effectively
patrol
neoliberal
excesses
of
the
private sector
in
the
realms of
both
prevention
strategies
and due
punishment.
Coming back
to
the
business
and
human
rights
Treaty scrutinized
in
this
work,
Article
4(1)
of
the
Zero
Draft
had
included the
populations
above
among the
scope
of
'victims,'
defined
as
"persons
who
individually
or
collectively
alleged
to
have suffered
harm,
including physical or
mental
injury,
emotional
suffering,
economic
loss
or
substantial
impairment
of
their
human
rights,
including
envi-
ronmental
rights,
through
acts
or
omissions
in
the
context
of
business
activities
of
a
transnational
character."
148
What
remained
unclear
was
whether,
in
the con-
text
of
an
environmentally
induced
migration
for
the
aforementioned
reasons,
entire families
would have
been
granted
comparable
standards
of
redress; the
same
Article
suggested
it was
to
be
assessed
"in
accordance
with
domestic
law."
Such
a
redress
was
phrased
as
"[r]estitution,
compensation, rehabilitation,
satis-
faction
and
guarantees
of
non-repetition"
and,
in
the
context
of
ecologic
restora-
tion,
it
included
the
"covering
of
expenses
for
relocation
of
victims."'
4 9
This
tangle
was
partly
solved
with
the
Revised
Draft:
its
Article
1(1)
specified
that
"the term
'victim'
also
includes the
immediate
family
or
dependents
of
the
direct
victim,"
but
it
still
maintained
this
should
have
been
pursued
"where
appropriate,
in
accordance
with
domestic
law"
(which
could
be
silent
on
the
subject).
The
latest
draft's
Article
1(1)
no
longer
retains
the
domestic-law
qualification.
Another
potential
innovation
the
Treaty
offers
can be
traced
to
the
increased
scope
of
due diligence.
Environmental
due
diligence
is
usually
framed
in
climate-
change
terms,
such
that especially
major
emitters should contribute
to
reversing
or
at
least delaying climate
change;1 50
and
yet,
the
general
prism
of
climate
change proves
a
useless
lens
through which
to
view
the many
'environmental'
migrations triggered
by
specific
corporate
abuses.
In
fact,
the
Third
Revised
Draft's
understanding
of
due
diligence'
5
1
is
commendably
comprehensive.
As
a
minimum, businesses must
undertake,
publicize
and act upon the
results
of
im-
pact
assessment
studies
focused
on
both
the
environment
and
human rights,
and
147
Joanna Apap,
Eur. Parl
Rsch. Serv.,
Commission
Briefing
on
The
Concept
of
"Climate
Refugee:"
Towards
a
Possible
Definition,
at
5,
PE
621.893
(Feb.
2019).
148
Zero
Draft,
supra
note
37,
at
art.
4(1) (emphasis
added).
149
Id.
at
art.
8.1(b).
150
See
generally
Chiara Macchi, The
Climate
Change
Dimension
of
Business
and
Human
Rights:
The
Gradual
Consolidation
of
a Concept
of
"Climate Due
Diligence,"
6
Bus.
&
HUM. RTS.
J.,
no.
1,
2021,
at
93
(reviewing
litigation related to
the
development
of
'climate
due
diligence').
151
International
law
doctrine
addresses 'due
diligence'
in
either
a
narrowly
legal
or
a
broadly policy
manner;
in
this
case,
we
refer
to
the
term as
a
component
of
a
legal
obligation stemming
from
a
primary
rule
of
international
law.
On
the
distinction
between
due diligence
in
legal
versus
policy
terms,
see
Neil
McDonald,
The
Role
of
Due
Diligence
in
International
Law,
68
INT'L
&
COMPAR.
L.Q.
1041,
1054
(2019).
For
a
scrutiny
of
due
diligence
in
the
field
of
B&HR,
see
generally
Jonathan
Bonnitcha
&
Robert
McCorquodale,
The
Concept
of
'Due
Diligence'
in
the
U.N.
Guiding
Principles
on
Business
and
Human
Rights,
28
EUR.
J.
INT'L
L.
899,
899
(2017).
Notably,
the
E.U. (namely
the
European Parliament)
is
developing
normative
proposals-still
at
an
embryonic
stage-for
mandatory
environmental
due
dili-
gence
TNCs
must
perform
throughout
their entire
supply-chain;
see
lonel
Zamfir,
Eur.
Parl. Rsch. Serv.,
Towards a
Mandatory
EU
System
of
Due
Diligence
for
Supply
Chains
at
3,
7-8,
PE
659.299
(Oct.
2020).
58
Loyola
University Chicago
International
Law Review
Volume
18,
Issue
1

Persecution
and
Labor
Migrations
the
duty
is
extended
to
companies
with
which
they
entertain
any
contractual
rela-
tionships.
15 2
These
assessments
will later
prove fundamental,
from
an
evidentiary
prospective,
for
separating specific
corporate
culprits
from
more
general environ-
mental
trends
bearing
on
a
land,
especially
after
the
HRCtee clarified
in
Teitiota
v.
New
Zealand
15 3
that,
"in
the
climate
[..
.]
context,
[..
.]
foreseeability
rather
than
imminence
of
harm,
is
the
key
test."
154
Moreover,
businesses
would
carry
out preventative
talks
with
potentially
affected groups,
attaching
particular
im-
portance
to
the claims
of
vulnerable population
segments,
including
all
types
of
potential
migrants.
155
Similar
attention
must
be
paid
to
comparable
groups
when
it
comes
to
the
implementation
of
the whole
text.1
56
Further
definition
of
'restitu-
tion,'
'compensation,'
and
so
forth,
remains
in
progress.
However,
I
believe
it
would
be
appropriate
if
the
drafters
included
a
mobility
scheme to
reassign
the
displaced
worker (not necessarily
formerly
employed
by the
displacing
corpora-
tion,
though
a
fortiori
in
that
case)
within the
supply
chain
of
which
the
polluting
company
is
part.
In
this
case, and
if
that
re-assignment
takes
place
in
a
different
jurisdiction (cross-border
relocation),
the
State should
intervene
only
for
visa
purposes
for
workers
(and
their
families).
One
crucial
aspect
of
these
relocations
is
that
families
in
developing countries
who
can
'place'
one
member abroad
for
working
purposes
may
cope
more
proficiently
and
resiliently
with
environmental
distress,
thanks
to
remittances
they
receive
from
abroad.
157
Arguably,
the
same
reasoning
can
be
extended
to
actual
environmental disasters, but only
to
the
ex-
tent
that
the
environment
is
not
so
compromised
that
the
rest
of
the
family
might
be
forced
to
emigrate
as
well.
In
my view,
a
supply
chain-distributed reassignment
calls
for
a
radical
para-
digm
shift.
To
posit
an
example,
in
Europe,
"employment-based admissions
into
EU
Member
States
are
generally
based
on the
labour market
needs
of
the receiv-
ing
Member
State, and
not
on
the situation
of
the
home
country."1
58
The
same
holds
true
in
the
United
States.1
59
In
a
market
where
"the most vulnerable
com-
152
Third
Revised Draft,
supra
note
19
arts.
6(3)(a), 6(4)(a)
&
(e-f).
153
U.N.
Hum. Rts.
Comm.,
U.N.
Doc.
CCPR/C/127/D/2728/2016
(Jan.
7,
2020).
154
Barak
Qali
et
al.,
Hard
Protection
Through
Soft
Courts?
Non-Refoulement Before
the
United Na-
tions
Treaty Bodies,
21
GER.
L.J.
355,
382
(2020);
see
also
Simon
Behrman
&
Avidan
Kent,
The
Teitiota
Case
and
the
Limitations
of
the
Human
Rights Framework,
75
QUESTIONS
INT'L
L.
25, 36-37
(2020);
Vernon
Rive,
Is
an
Enhanced
Non-Refoulement
Regime
Under
the
ICCPR
the
Answer
to
Climate
Change-Related
Human
Mobility
Challenges
in
the
Pacific?
Reflections
on
Teitiota
v.
New
Zealand
in
the
Human
Rights Committee,
75
QUESTIONS
1NT'L
L.
7,
8-9,
17
(2020).
155
Third
Revised Draft,
supra
note
19,
at
art.
6(4)(c).
The
same
intersectional
logic
of
vulnerability
is
applied
to
migrants with
reference
to
the
International Fund
that
State parties shall
establish
to help
victims
financially,
see
id.
at
art.15(7).
156
Second Revised Draft,
art.
16(4)
and
relevant preambulatory provision;
Third
Revised
Draft,
supra
note
19,
at
PP13.
157
See
Mostafa
Mahmud
Naser
et
al.,
Climate
Change,
Migration
and
Human Rights
in
Bangladesh:
Perspectives
on
Governance,
60
AsIA
PACIFIC
VIEwPOINT
175,
182-83
(2019).
158
Nicole
de
Moor,
International
Migration
and
Environmental
Change:
Legal
Frameworks
for
Inter-
national Adaptive Migration
362
(2014)
(unpublished
Ph.D.
dissertation, Ghent University)
(on
file with
author).
159
Cf.
Alessandra Casella
&
Adam
B.
Cox,
A
Property
Rights
Approach
to
Temporary
Work
Visas,
47
J.
LEGAL
STUo.
195,
227
(2018).
Volume
18,
Issue
1
Loyola University
Chicago International
Law
Review 59

Persecution
and
Labor Migrations
munities
often
have
difficulties
to
fulfil
the
conditions
to
apply
for
labor
migra-
tion
visa
and
work permits,
given
that
most labor
migration programs
focus
on
higher qualified
workers,"1
60
companies
of
the
Global
North-where
no
State
has
signed
the
International
Convention
on
the
Rights
of
Migrant
Workers1
61
-
must
be
made
responsible
and
held
accountable for
the
environmental
damage
they
themselves
create
in
the
Global South
through
their
subsidiaries, or
by
means
of
networked contractual
relationships
they
enable.
16 2
State-owned
com-
panies
should
by
definition
be
required
to
never
leave
displaced
workers
without
employment
guaranteeing
their
survival.
They
should
sponsor
either
visas
(in
the
destination countries)
or
insurance
schemes
(in
the
jurisdiction
of
displacement)
covering environmental
disasters,
and lobby
for
personal
income
tax
relief
163
on
behalf
of
the
affected
employees.
Former
employees
should
be
granted
at
least
the same
standard
of
living
(wage and
services) they
enjoyed
prior
to
their
dis-
placement
caused
by
irresponsible corporate
behavior
(often carried out
overseas
in
the
developing
world).
Referring
again
to
the
EU
context,
it
has
been
noted
that
the
"establishment
or extension
of
labour migration
schemes
would
be
a
promising policy
option
to
respond
to
slow-onset
environmental
change
when
migration cannot
be
characterized
as
forced
migration,"164
and
one
may
well
sub-
scribe
generally
to
this statement,
as
it
is
applicable
far
beyond
Europe.
Lamenta-
bly,
at the
time
when
the
EU's
Directive
on
Subsidiary Protection
165
was
conceived,
"consideration
was
also
given
as
to
whether
certain environmental
[..
.]
triggers
might
justify
subsidiary
protection. Ultimately,
the
decision
to
re-
strict the
Directive
to
simply
harmonizing
existing
concepts
and
methods
[...]
means
that
it
does
not
create
a
new
system
of
protection per
se,
but
rather
distils
State
practice
[as]
[.
.
.]
an
instrument
of
compromise."1
66
Moreover,
remittances
to
family members
who could
not leave
their
original
land due
to
severe
illness
et
similia
should
be
untaxed.
160
de
Moor,
supra
note
158,
at
361.
161
See
Martin,
supra
note
2,
at
404;
see
also
Euan
MacDonald
&
Ryszard
Cholewinski,
U.N.
Educa-
tional,
Scientific
and
Cultural Organization
(UNESCO),
The
Migrant
Workers
Convention
in
Europe:
Obstacles
to
the
Ratification
of
the
International
Convention
on
the
Protection
of
the
Rights
of
All
Mi-
grant
Workers
and
Members
of
Their
Families:
EU/EEA
Perspectives,
1
UNESCO
MIGRATION
STUD.
1,
19
(2007); Juhani
Lonnroth,
The
International
Convention on
the
Rights
of
All
Migrant
Workers
and
Members
of
Their
Families
in
the Context
of
International
Migration Policies:
An
Analysis
of
Ten
Years
of
Negotiation,
25
INT'L
MIGRATION
REV.
710
(1991).
162
See
generally
MUZAFFER
EROLU,
MULTINATIONAL ENTERPRISES
AND
TORT
LIABILITIEs:
AN
IN-
TERDISCIPLINARY
AND
COMPARATIVE
EXAMINATION
(2008).
163
Or,
depending
on
the
formulation
of
the
law,
provide
tax
waivers
/
exemptions
/
credits
/
breaks
/
rebates.
164
Albert
Kraler
et
al., Eur.
Par.
Directorate
Gen'] for
Internal
Pol'ys, "Climate Refugees" Legal
and
Policy
Responses
to
Environmentally
Induced
Migration,
at 66,
PE
462.422
(2011).
165
Directive 2011/95/EU
on
"Standards
for
the
Qualfication
of
Third-Country
Nationals
or
Stateless
Persons
as
Beneficiaries
of
International
Protection,
for
a
Uniform
Status
for
Refugees
or
for
Persons
Eligible
for
Subsidiary
Protection,
and
for
the
Content
of
the
Protection
Granted,"
2011 O.J.
(L
337).
166
JANE
MCADAM,
COMPLEMENTARY PROTECTION
IN
INTERNATIONAL
REFUGEE
LAW
55-56
(Oxford
Univ.
Press 2007).
60
Loyola
University
Chicago
International
Law
Review
Volume
18,
Issue
1

Persecution
and
Labor
Migrations
Unfortunately,
the
initial
consensus
among
those
drafting
the
Treaty
on
access
to
information
and
diplomatic
assistance
167
may
be
vanishing
1 68
although
it
was
temporarily kept
in
the
text;
169
regrettably,
the
latest
version1
70
only
retains
ac-
cess
to
information,
while
diplomatic
assistance
is
no
longer
mentioned.
As
per
current
international
refugee
law
(according
to
the
United Nations
High
Commis-
sioner
for Refugees
(UNHCR)
and
part
of
the
doctrine),
although
the
burden
of
proof
rests
on
the applicant, documentary
evidence
is
supposed
to
suffice
for
the
recognition
of
refugee
status
even when such
applicant provides
false
or
contra-
dictory
statements.171
Obviously,
this
view
reflects
neither
the
position
nor
the
actual
practices
of
most
States.
When
it
comes
to
civil and
criminal liability
of
corporations,
however,
standards
of
proof
are
much
stricter:
"victims
often
face
obstacles
when
seeking
to
access
justice,
such
as
difficulties encountered
when
trying
to
prove
a
causal
link
between
the
acts
of
businesses
within
a
supply
chain
and
damage
suffered."1
7 2
Most,
however,
are
only
in
the
position
to
prove
corre-
lation
at
best.
Hence,
the
road towards
demonstrating
corporate
persecution
is
bumpier. This
multiplies
and
intersects
with
the
already-problematic
multicausal-
ity
of
any
'environmental'
migration,1
73
and also
resonates
with
causation-related
bars
that
various
domestic
courts
have
raised
in
climate change litigation against
private
actors
such
as
major
fossil
fuel
companies.1
74
V.
Finally Acknowledging
'Non-state'
Forms
of
Persecution?
A
query
for
the
terms
'persecution'
and
'persecuted'
in
all
issues
of
the
reputa-
ble
Business
and
Human Rights
Journal
returns
a
total
of
only
four
results,
175
all
of
which
relate
to
classical
security affairs
and
not
at
all
to
the
environment.
Regrettably, this
is
hardly
surprising.
"The issue
of
environmental
degradation
as
a
determinant
of
human mobility
is
part
of
various legal
regimes that
the
interna-
tional
legal
community
has
so
far
been
treating with
an
unconnected
logic,"1
76
exacerbated
by
its
own
multicausality.
Hence,
the
core
argument
of
the
present
analysis
is
that
non-State
acts
of
persecution
will
never meet
the
standards
under
PIL
to
prove
state-mandated
persecution
unless
all
three
elements
(migratory,
167
Zero
Draft,
supra
note
37,
at
art. 8(9);
Revised
Draft,
supra
note
38,
at
art.
4(6-7).
168
Fourth Session,
Draft
Rep.,
supra
note
136,
at
1
41.
169
Second
Revised Draft,
supra
note
39,
at
arts.
4(2)(f-g), 7(2),
7(3)(a).
170
Third Revised
Draft,
supra
note
19,
at
arts.
4(2)(f), 7(2),
12(3).
171
Jahid
Hossain Bhuiyan,
Refugee
Status
Determination:
Analysis
and
Application,
in
AN
INTRO-
DUCTION
TO
INTERNATIONAL
REFUGEE
LAW
37,
61
(Rafiqul
Islam
&
Jahid
Hossain
Bhuiyan
eds., 2013).
172
Fourth
Session,
Draft
Rep.,
supra
note
136,
at
1
34.
As
applied
to
international
law
in
general,
see
RODA
VERHEYEN,
CLIMATE CHANGE
DAMAGE
AND
INTERNATIONAL
LAW:
PREVENTION DUTIES
AND
STATE REsPONSIBILITY
251
(2005); see
also
Benoit
Mayer,
State
Responsibility
and
Climate Change
Governance:
A
Light Through
the
Storm,
13
CHINESE
J.
INT'L
L.
539,
550
(2014).
173
Benoit
Mayer, et al.,
Governing
Environmentally-Related
Migration
in
Bangladesh:
Responsibili-
ties,
Security
and
the
Causality
Problem,
22
ASIAN PACIFIC MIGRATION
J.
177,
188-191
(2013).
174
Geetanjali
Ganguly
et al.,
If
at First
You
Don't
Succeed:
Suing
Corporations
for
Climate
Change,
38
OXFORD
J.
LEGAL
STUD.
841, 849,
855-858 (2018).
175
As
of
Sept. 24,
2021.
176
Fornald &
Kagan,
supra
note
104,
at
5.
Volume
18,
Issue
]
Loyola
University Chicago
International
Law
Review
61

Persecution
and
Labor
Migrations
environmental,
and
corporate)
are
given
due
legal
weight
and
addressed
together.
Otherwise,
no
one
of
them
alone
will
ever
suffice
to
recognize
persecution
in
the
particular
situations
I
address
here.
In
other
words,
the
international community
will
never
overcome
its
current
inaction
on
such
a
multidisciplinary
dossier,
un-
less and
until
it completely
reverts
to
considering
the
State
in its
broader
contem-
porary
scope
and
power
struggles,
starting with
the role
played
by
key
'non-
State'
actors
like corporations.
If
the latter
are
State-owned,
a
stronger
claim
can
be
made
that,
when
their
polluting
or
exploitative operations
force
people
to
va-
cate
their
land,
such
"persecution
is
a
government
act
against
individuals
and
climate migrants
are
[.
.
.]
forced
to
flee
for environmental
and
political
reasons.
Many
government policies
can
have
consequences
leading
to
natural disasters,
putting
certain groups
of
people
at great
risks."1
7 7
Besides
the
1969
OAU Con-
vention Governing
the Specific Aspects
of
Refugee
Problems
in
Africa
and the
1984
Cartagena Declaration
in
Latin
America,
a
strong
analogy
can
be
drawn
to
human
rights
doctrine
by
referring
to
the
International
Convention
on
the
Sup-
pression
and
Punishment
of
the Crime
of
Apartheid
(1973),
where
persecution
is
considered
"in
terms
of
reasons,
interests,
and
policy
measures."
178
That
govern-
ments,
because
of
'their'
non-governmental
actors
may
be
accepted
as
persecu-
tors,
is
not to
be
taken
for
granted:1
79
"U.S.
law
has
readily
accepted that
harm
or
threats
from
non-State
actors
can
give
rise
to
a
valid basis
for
asylum,"
but
until
recently,
the
same was
not
accepted
in
Europe.1
80
One
should advocate
for this
progressive
stance
to
be codified
within
all
legal
systems.
The
1998 GPID
them-
selves, especially
Principles
2
and
5,
make
no
distinction
among
actors.18'
Fur-
ther, the
Principles
are
becoming increasingly
accepted1
82 -
if
not
yet
177
Bhuiyan,
supra
note
171,
at
222.
It
is
worth
noting
this
HRCtee
comment
on
the
subject
matter,
see
U.N. HRCtee,
General
Comment
No.
31
(2018)
on
The
Nature
of
the
General Legal
Obligation
Imposed
on
States Parties
to the
[ICCPR], $¶
8,
9,
U.N.
Doc.
CCPR/C/21/Rev.1/Add.
1326 (May
2004)
(providing
that
"the
positive obligations
on
States
Parties
to
ensure Covenant
rights
will
only
be
fully
discharged
if
individuals
are
protected
by
the
State,
not
just
against
violations
of
Covenant
rights
by its
agents, but
also
against
acts
committed
by
private
persons or
entities that
would
impair
the
enjoyment
of
Covenant
rights' (1
8).
The
same
Comment
specifies
that
'[t]he
fact
that
the
competence
of
the
Commit-
tee
to receive
and
consider communications
is
restricted
to
those
submitted
by or
on
behalf
of
individuals
[..
.]
does
not
prevent
such
individuals
from claiming
that
actions
or
omissions
that concern
legal
persons
and
similar entities amount
to
a
violation
of
their
own
rights'
(T
9));
compare
ROBERT
ESSER, PROCEDU-
RAL
ENVIRONMENTAL
RIGHTS
IN THE
JURISPRUDENCE OF
THE
EUROPEAN
COURT
OF
HUMAN
RIGHTS
AND
THEIR
IMPACT
ON
CRIMINAL
PROCEDURE
LAW
61,
64
(Jerzy
Jendroska
&
Magdalena
Bar,
eds.,
2018)
(noting
the
European
Court
of
Human
Rights imposes
upon
a
State
the
affirmative
duty
to take
prevent-
ative steps
to
protect
the
lives
of
those
within their
jurisdiction).
178
GUY
S.
GOODwIN-GILL,
THE
REFUGEE IN
INTERNATIONAL
LAW
78
(Clarendon,
2d
ed.
1996)
(em-
phasis
added).
179
Sumudu
Anopama Atapattu, Climate
Change, Human
Rights,
and
Forced Migration: Implications
for
International
Law,
27
WIS.
INT'L
L.J.
607,
621-622
(2010)
("For
example,
the
Ogoni people
of
Nigeria
were
specifically
targeted
as
a
group
by
the
Nigerian
government.
Thus,
they may
have been
able
to
fulfill the
criteria for
a
refugee
in
the Refugee
Convention because they
were
subject
to
repression
as
well
as
being subjected
to
environmental
hazards
caused
by
the
Nigerian
government
and
the
Shell
oil
company.
However,
this
will
not
be
the
case
in
many
other
instances.")
(emphasis
added).
180
DAVID
A.
MARTIN
ET
AL.,
FORCED
MIGRATION
LAW
AND
POLICY
161-164
(West
Academic,
2d
ed.
2013).
181
Walter Kalin,
Guiding
Principles
on
Internal
Displacement:
Annotations,
38
STUD.
TRANSNAT'L
LEGAL
POL'Y
1,
15-16;
25
(American Society
of
International
Law 2008).
182
Martin,
supra
note
2,
at
412.
62
Loyola University
Chicago
International
Law
Review
Volume
18,
Issue
1

Persecution
and
Labor
Migrations
'customary'
due
to
the
ICJ-crafted
"most
affected" and
"proximity"
criteria for
State
practice;
18 3
however, addressing
States'
opinio
remains
problematic.1
84
At
any
rate,
the
GPID
have
been
incorporated
in
national legislation
and
cited
judi-
cially,
in
addition
to
their
de
facto
incorporation
into the
Kampala Convention,
185
thus
they
are
arguably
undergoing their
lengthy
"hardening"
process.
186
Complicit
in
operations throughout globalized, complex,
and
tangled
supply
chains,
and
concerned
with
regulating
migratory
inflows
more
than outflows,
187
States
that
host
such
businesses
(i.e.,
the
siege
social
of
the
latter's
'parent
com-
panies')
frequently
become
the
new
persecutors.
When
they
pollute
the
environ-
ment
and
imperil
their workers'
health,
the
resulting environmental
migrants
are
"not
escaping
[their]
own
government.
[They]
would
be
seeking refuge
in
the
[S]tates
that
actually
contribute
to
[polluting
their
environment],
which
means
fleeing towards the persecutor. This
de-linking
of
the
persecutor
from
the
['send-
ing
State']
is
accordingly
unknown
to
current international
refugee
law,"
188
which
creates
"a
complete
reversal
of
the
refugee paradigm"
189
and the
most
nonsensical contradictions
of
globalization.190
Nonetheless, B&HR
is
not
the
only stream
of
scholarly
discourse
one
should
peruse
in
order
to
grasp
this phe-
nomenon;
international
economic
law,
paradoxically,
serves
a
similar
end
(thanks
to,
e.g.,
the
World
Trade
Organization's
'environmental
exception'
clause,
19
1
and
more
widely,
to
trade
liberalization).1
92
Others
point
to
the
U.N.
Convention
Against
Torture
as a
model,
since
it
"provides
a
good balance between affirma-
tive
obligations
for
[S]tates
and
the
rights
the
[C]onvention
grants
to
individuals."
193
183
As
per International
Court
of
Justice
(ICJ)
authoritative case
law,
State
practice
must
be
consistent
and
widespread,
but
also
relevant.
On
these
doctrines,
see,
e.g.,
Kevin Jon
Heller,
Specially-Affected
States
and
the
Formation
of
Custom,
112
AM.
J.
INT'L
L.
191
(2018).
184
Opinio
iuris
is
one
of
the
two elements for
ascertaining
the
claimed
validity
of
an
international
custom. For
its
broader
relevance
in
the
international
law
of
disaster-prevention,
see
Anne Sophia-Marie
van
Aaken,
Is
International
Law
Conducive
to
Preventing
Looming
Disasters?,
7
GLOB.
POL'Y
81,
82
(2016).
185
As
the
region
contemplated
by
the
Kampala
Agreement
was
particularly
prone
to
phenomena
creating
internal
displacement,
those
using
the
Principles there
customized
and
implemented
them with
enhanced "probative
value."
See
generally
Kampala
Convention,
supra
note
29.
186
Sandesh
Sivakumaran,
Techniques
in
International
Law-Making:
Extrapolation,
Analogy,
Form
and
the
Emergence
of
an
International
Law
of
Disaster
Relief,
28
EUR.
J.
1NT'L
L.
1097,
1126-27
(2018).
187
MIGRATION
AND
GLOBAL
GOvERNANCE
Xiii,
Xvi
(Alan
Gamlen
&
Katharine Marsh,
eds.,
2011).
188
Louise
Olsson,
Environmental
Migrants
in
International
Law:
An
Assessment
of
Protection
Gaps
and
Solutions
13
(2015)
(unpublished
B.A. thesis,
Orebro University).
189
Jane
McAdam,
From
Economic
Refugees
to
Climate
Refugees?,
10
MELBOURNE
J.
INT'L
L.
579,
592
(2009)
(reviewing
MICHELLE
FOSTER,
INTERNATIONAL
REFUGEE LAW
AND
SOcIo-ECONOMTC
RIGHTS:
REFUGE
FROM
DEPRIVATION
(2007)).
190
In
other words,
migrants
in
this
situation flee from
their
own State to
the
State
of
incorporation
of
the
'parent
company,'
and
in
doing
so
are
not
running
from
their
own
government
per
se, but
rather
seeking
refuge
in
the
state
of
persecution.
191
Daszkiewicz,
supra
note
103,
at 98-99,
102.
192
Fornald
& Kagan,
supra
note
104,
at
3.
193
Atapattu,
supra
note
179,
at
631.
Volume
18,
Issue
1
Loyola University Chicago
International
Law Review
63

Persecution
and
Labor
Migrations
In
sum, it
is
beneficial
to
dissect
the
long-lasting
'climate
refugee'
dilemma
in
multiple
regimes
only
as
a
first
step,
both
to
identify
and
comprehensively
ad-
dress
the
multidimensional
legal
landscape,
and
to
ensure
that
necessary
State
and
international
institutional capacity-building
occur.
However,
the
second
step
must
involve
a
complete
scrutiny
of
the
root
meaning
and
overall
substance
of
'persecution.'
In
fact,
even
in
the
case
that
protection
was
expanded under
a
legal
instrument
such
as
the
1951
[U.N.
Refugee]
Convention
to
include "climate
refu-
gees,"
the
institutions that
currently
address
asylum
issues
would
not
be suffi-
ciently
equipped
to
manage
the
issue.
Worldwide
numerous national, regional,
and
international systems
exist
to
address the
humanitarian
and
other
aspects
re-
lated
to
natural
hazards,
both rapid-
and
slow-onset.1
94
For
example,
the
African
Kampala
Convention
"re-conceptualiz[es
.
..
S]tate
sovereignty
as
responsibility
to
protect,"
195
such
that
States
"must
not
only
pro-
tect
people
against arbitrary
displacement,
but
ensure
accountability
of
persons,
groups
and
non-State
actors
(including
multinational
companies
and
private
mili-
tary
[contractors] or
security companies) responsible for
arbitrary
displacement
as
well.''
196
So,
what
would
the
added
value
of
this
binding Treaty be for
Africa
in
this
specific
respect?
It
might
concern
prescriptive
jurisdiction,
although
it is
not
defined
in
either
instrument.
197
Certainly,
however,
it
involves
adjudicative
jurisdiction:
Article
4(8)
of
the
Revised Draft
and
Article
7(1)
of
the
Second
Revised
Draft
seemed to
evoke
the
forum
necessitatis
(jurisdiction
by
necessity)
doctrine,1
98
whose
importance
for
the
accountability of TNCs for
their
environ-
mental
abuses
has
already been examined
in
legal
scholarship.
199
The
latest
draft
fails
to
mention
any
'necessary'
jurisdiction,
though
a
limited
formulation
of
fo-
rum
necessitatis
remains
in
the
text.
2
00
194
Warner,
supra
note
65,
at
3.
195
Mehari
Taddele
Maru, The
Kampala
Convention
and
Its
Contribution
in
Filling
the
Protection
Gap
in
International
Law,
1
J.
ImrERNAL
DISPLACEMENT
91, 126
(2011).
196
Ruth
Delbaere, Internally
Displaced Persons
in
the
African Human
Rights System:
An
Analysis
of
the
Kampala
Convention
41
(2011)
(LL.M
Dissertation, Universiteit
Gent)
(emphasis
added).
197
Compare
Kampala
Convention,
supra
note
29,
at
art.
5(1) ("within their
territory or
jurisdiction"),
with
Revised
Draft,
supra
note
38,
preamble ("within
their
territory
or
otherwise under their
jurisdiction
or
control").
If
jurisdiction
is already
extraterritorial
(i.e.,
something
other than
'territory'
as
contem-
plated
by
the
language,
'or
otherwise.
.
.'),
what is
the
difference between
said
extraterritorial
jurisdiction
and
the
'control?'
But see
Revised
Draft,
id.,
at
art.
5(1)
(language
matches
that
of
the
Kampala Conven-
tion).
Compare
Second
Revised
Draft,
supra
note
38
(drafters
use
the
phrasing,
"within
their
territory or
jurisdiction,'
throughout
the
document) with
Third
Revised
Draft,
supra
note
19,
at arts. 6(1),
(6)2, 6(6),
8(1)
(language
used
is
now
"territory,
jurisdiction, or
otherwise under their
control").
198
Revised Draft,
supra
note
38,
at
art.
4(8)
("State
Parties shall
provide
their domestic
judicial
and
other
competent authorities
with
the
necessary
jurisdiction")
(emphasis
added);
Second
Revised
Draft,
supra
note
39,
at
art.
7(1)
("States
[sic]
Parties
shall
provide their
courts
and
State-based
non-judicial
mechanisms, with
the
necessary
jurisdiction
in
accordance
with
this [treaty]")
emphasis
added).
Argua-
bly,
a
Court's
competence
over
a
case
is
decided
by
the
Court
itself
(Kompetenz-Kompetenz
doctrine),
not
by
the
State
to
which it
belongs.
199
See Chilenye
Nwapi,
Jurisdiction
by
Necessity
and
the
Regulation
of
the
Transnational
Corporate
Actor,
30
UTRECHT
J.
INT'L
&
EUR.
L.
24
(2014).
200
Third
Revised
Draft,
supra
note
19,
at
arts.
9(4), 9(5);
see
also
id.
at
art.
9(1)
(refer
to
the
"without
prejudice" formula,
i.e.,
assignment
of
jurisdiction
regardless
of
a
victim's
"nationality
or place
of
domicile").
64
Loyola University
Chicago
International
Law
Review Volume
18,
Issue
1

Persecution
and
Labor
Migrations
VI.
Any
added
value?
In an
era
of
increasing
globalization,
the
Treaty
will
fill
a
gap
in
existing
options.
"While
it
is
important
to
design
international
[..
.]
instruments
to
protect
climate
refugees,
another effective
approach
may
be
to
prevent
them
[from]
leav-
ing
their
place
of
residence
by
implementing
agricultural
innovations
to
stimulate
economic
growth
and
reduce
environmental
degradation;"
however,
although
"[t]he
boosting
of
the
outsourcing
potential
of
a
country
by
its
acting
as
broker
between
local
companies
and
foreign
partners
who
intend
to
invest
in
the
country
is
an
important
means
of
enhancing innovation
within
a
developing country,"
20 1
the
draft
Treaty
is
currently
silent
in
these
respects. One
might
suggest,
therefore,
that
in
order
to
do
their
due
diligence
to
prevent
and control
potential damage,
companies
should
take
it
upon
themselves
to
provide
financial or bureaucratic
support
to
legitimate
voluntary
(that
is,
not
yet
strictly necessary)
migration,
which
"can
lessen
the
risk
of
displacement
by
reducing exposure
to
climate
hazards,
and
is
therefore
a
contribution
to
individual
and societal
adaptation."
202
Though this
runs contrary
to
the
trend-already
existent
in
climate
change
prac-
tices-of
denying "protection for those
who
flee
in
anticipation
of
future
[.
.
.]
harms,"
203
the
evidence
in
fact shows
that
voluntary
migration
is
more
beneficial
than
involuntary
migration, both
for
sending
and
for
receiving
communities.204
In
terms
of
finance,
it
is
less
disruptive,
less
risky,
and
easier
to
manage
carefully
for
all
parties
involved.
The
financial burden
arising
from
displacement
caused
by
negligent
or
criminal
business
conduct impacting
workers',
customers',
and
clients'
environments
should
similarly
shift
to
large companies (particularly
ef-
fective
during peacetime). Shifting
this financial
burden
would
at
least
somewhat
relieve developing
States
from the
difficult
burden
they
bear
205
to
implement
the
and
promote
the
GPID
in
national policy,
legislation,
and practice.
As
one
scholar
notes, to-date
"no
country
has
fully
implemented
the
[GPID].
Even when
they
are
incorporated
into
national
laws
and
policies,
the
almost
exclusive
focus
has
been
[to
help]
those displaced
by
conflict."
206
As
noted
supra,
public
authorities
may
choose
to
change
internal process
reac-
tions
to
business-induced,
environmentally-caused
internal
displacement
with
re-
201
Lotte
Geboers,
Matijn
Straatsma
&
Ayge
Wijmenga,
Protecting
and
Preventing Climate
Refugees:
An
Interdisciplinary
Study
on
Climate
Refugee
Issues
and
the
United
Nations
30,
40
(2017)
(unpublished
interdisciplinary
thesis,
Utrecht University).
202
Emily
Wilkinson,
et
al.,
Overseas
Dev.
Inst.,
Climate-Induced
Migration
and
Displacement:
Clos-
ing
the
Policy
Gap
4
(ODI
2016);
see
also
Koko
Warner
&
Tamer
Afifi,
Where
the
Rain
Falls:
Evidence
from Eight
Countries
on How
Vulnerable
Households
Use
Migration
to
Manage
the Risk
of
Rainfall
Variability
and
Food
Security,
6
CLIMNrE &
DEV.
1, 11
(2014).
203
Climate
Change Justice
and
Human
Rights Task
Force,
International
Bar
Association,
Achieving
Justice
and
Human
Rights
in
an
Era
of
Climate
Disruption
90
(2014),
https://www.ibanet.org/Presiden-
tialTaskForceClimateChangeJustice20
]4Report.aspx.
204
Daszkiewicz,
supra
note
103,
at
99.
205
Flautre,
et
al.,
The
Greens/EFA
in
the
Eur.
Parl.,
Position
Paper
on
Climate
Change, Refugees
and
Migration
7
(2013),
https://europeangreens.eu/sites/europeangreens.eu/files/news/files/Greens%20EFA
%20-%20Position%20Paper%20-%20Climate%20Change%20Refugees%20and%20Migration.pdf.
206
Elizabeth
G.
Ferris
&
Jonas
Bergmann,
Soft
Law,
Migration
and
Climate Change Governance,
8
J.
Hum.
RTs.
&
ENV'T
6,
15
(2017).
Volume
18,
Issue
1
Loyola
University Chicago
International
Law Review
65

Persecution
and
Labor
Migrations
gard
to
their
visa
policies.
For
instance,
they
may
decide
to
promptly
turn
working
visas
into
regular
or general
ones
if
foreign
individuals'
inability
to
work
is
a
result
of
health
issues
caused
by
environmental
degradation.
Relatedly,
foreign workers
often
return
to
their
original
countries
or
seek
employment
in
a
third
country
anyways,
but
those
who
are
unwilling
to
do
so
because
of
family
ties
in
loco
or
other
personal reasons should
not
be
forced
to
relocate,
20 7
espe-
cially
not
when
given
unreasonably
short
deportation
notice. This
holds
true
for
both
seasonal
and
non-seasonal
industries,
and
extends
to
displaced
workers'
families
or
even,
in
some
legal
systems
and
traditions,
to
entire
working
commu-
nities.
208
Further,
we
may
uncover
a
hidden
normative resonance
between the
pending
Treaty
and
the
primary
legal
source
for
the
protection
of
migrants, the
1951
Refugee
Convention
in
considering
protection for
migrants'
families,
because
...
four
of
the
protected groups enumerated
in
the
Refugee
Convention-
race,
religion, nationality,
and
political
opinion-reflect
the
core
catego-
ries
recognized
in
other instruments. The
fifth
group-membership
of
a
particular
social
group
[MPSG]-is
a
flexible
ground
that
can
encompass
similar protections
as
those
found
in
other
areas
of
international
law.
Do-
mestic
jurisprudence
shows
that
MPSG
may
be used
for
categories that
are
less
prevalent
in
international instruments,
[.
.
.]
and
may
go
further
than
other instruments,
such
as
recognizing
family
as
a
PSG.
2
09
Thus,
if
exploited
workers
are
recognized
as
'persecuted'
under
the
new
Treaty, their families
will be
protected
accordingly
thanks
to
this
MPSG
crite-
rion.
In
addition,
the
right
to
family
life
in
the
best
interest
of
the
child
rises
to
prominence
in
the
context
of
selective relocation,
because
"[w]hen
separated
from their families,
internally
displaced
children
are
at
greater risk
of
exploitative
labor..
."210
with
cascading
effects
on
social capital
as a
whole.
211
This
visa
extension
may
stand
as
a
form
of
"[r]estitution,
compensation,
rehabilitation,
rep-
207
Sonja Starr
&
Lea
Brilmayer,
Family
Separation
as
a
Violation
of
International
Law,
21
BERKE-
LEY
J.
INT'L
L.
213,
278,
282
(2003)
(under international
law,
even
in
emergency circumstances,
States
"must
refrain
from forcibly
separating families and work
toward
the
reunification
of
those that
have been
separated.").
208
For
instance,
in
the
case
of
therapeutic
communities, for
whom
continued
cohabitation
is
espe-
cially
vital
when
disasters materialize.
See
Darragh Farrell,
The
Role
of
Therapeutic
Communities
in
the
Process
of
Desistance:
A
Figurational
Analysis
8
(2019) (unpublished
MA
Dissertation
in
Criminology,
Technological
University
of
Dublin)
("[t]herapeutic
communities
are
working communities
where
re-
sidents
have
jobs,
responsibilities,
and
constant
interaction
with
each
other[,
and
where]
social
capital
also
develops
as
a
by-product
of
daily life
within
a
therapeutic community.
This
organically occurring
form
of
social
capital
is
likely
to
become the blueprint
for
building
informal
relationships
beyond
the
therapeutic
community,
and
as
such,
is
vital
to
sustained
desistance
and
recovery.").
See
also
Apostolos
Andrikopoulos
&
Jan
Willem
Duyvendak,
Migration,
Mobility
and
the
Dynamics
of
Kinship:
New
Barri-
ers,
New
Assemblages,
in
ETHNOGRAPHY
299
(2020); Adriana
M.
Reyes, The
Economic
Organization
of
Extended
Family
Households
by
Race
or
Ethnicity
and
Socioeconomic
Status,
80
J.
MARRIAGE
&
FAM.
119
(2017).
209
Joseph
Rikhof
&
Ashley Geerts,
Protected
Groups
in
Refugee Law
and
International
Law,
8
LAWS
1,
26 (2019);
see
generally
1951
U.N.
Convention
Relating
to
the
Status
of
Refugees,
Apr. 22,
1954, 189
U.N.T.S.
137.
210 CATHERINE
PHUONG,
THE
INTERNATIONAL PROTECTION
OF
INTERNALLY
DISPLACED
PERSONS
146
(2004).
66
Loyola University Chicago
International
Law
Review
Volume
18,
Issue
I

Persecution
and
Labor
Migrations
aration,
[and]
satisfaction"
2 1 2
that victims
would
be
entitled
to
under
the
new
regime: the
formulation
is
vague,
which
is
exactly
why
calls have been
issued
to
clarify
its
scope.
213
When
workers'
relocation
is
unavoidable
(and,
importantly,
the criteria
of
re-
location
must
be strictly
transparent
and
independently evaluated),
214
States
should
provide
those
affected
with
"[e]nvironmental
remediation
and
ecological
restoration
where applicable,
including covering
of
expenses
for
relocation
of
victims
and
replacement
of
community
facilities."
21 5
Indeed,
the
restoration
of
livelihood
is
far more
urgent
than
monetary compensation
per
se.
216
Cases
like
that
of
the
Narmada
River Dam
in
India
217
remind
us
of
the
importance
of
inter-
national
treaty-based
supervision
over direct expropriation performed
by
States.
This
is
particularly critical
when
businesses
or
other
profit-oriented projects
ruin
delicate
human-environment interactions within
complex
ecosystems,
in
turn
forcing resettlement
and
affecting
or
destroying
the societies
that
built
their
lifes-
tyle,
cultural
uniqueness,
and
intangible
heritage
2 1 8
upon
and
around those
equi-
libria.
219
Such
a
provision
on
compensation
for relocation
may
even
be
deemed
ground-breaking.
Looking
for instance
at alien
tort
claims (ATS) case
law,
claims
are
rejected
not
because
they
fail
to
uphold discriminatory
expropriation
as
unlawful
under
customary
international
law,
but
because
they
fail
to
demon-
strate they
do
not
challenge
a
state
actor
as
a
defendant.
220
Under the
new
Treaty,
the
cause for
concern
on
this
point
might
be
relieved,
as
the
Treaty
could
encourage
States
to
oversee
expropriative decisions
enforced
by
non-State
actors.
211
Olivia
Dun,
Agricultural
Change,
Increasing Salinisation
and
Migration
in
the Mekong
Delta:
Insights
for
Potential Future
Climate
Change Impacts?,
in
CLIMATE
CHANGE,
MIGRATION,
AND
HUMAN
SECURTrY
1N
SOUTHEAST
ASIA,
84,
96
(2012).
212
Third
Revised
Draft,
supra
note
19,
at
art.
4(2)(c).
213
Fourth
Session,
Draft
Rep.,
supra
note
136,
at
$
42.
214
Fornal6
& Kagan,
supra
note
104,
at
40.
215
See
Revised Draft,
supra
note
38,
at
art.
4(5)(b)
(regrettably,
the
negotiators removed
from
the
Second
and
Third
Revised
Drafts any
reference
to
the
'covering
of
expenses for
relocation
of
victims
and
replacement
of
community
facilities.');
but
see
Third
Revised
Draft,
supra
note
19,
at
Art.4(2)(c) (retain-
ing 'environmental
remediation,
and
ecological
restoration');
but
compare
Fourth
Session,
Draft
Rep.,
supra
note
136,
at
¶
42
(showing some delegation
and
business opposition
to
retaining even
this
language).
216
See
Onome
Lisa
Ejenavi,
Sustaining
Oil
Exploration
and
Exploitation
in the
Emerging
Context
of
Sustainable
Development:
The
Case
of
the
Niger
Delta
251,
258
(2018) (unpublished
PhD Thesis,
Lan-
caster
University)
217
Cohan,
supra
note
86,
at
144.
218
See
Riccardo Vecellio
Segate,
Protecting Cultural
Heritage
by
Recourse
to
International
Environ-
mental
Law:
Chinese Stances
on
Faultless
State
Liability,
27
HASTTNGS
ENVTL.
L.J.
153,
161-79
(2021);
Patrick Toussaint,
Loss
and
Damage
and
Climate
Litigation:
The
Case
for
Greater
Interlinkage,
30
REV.
EUR.
COMPAR.
&
INT'L
ENVTL.
L.
16,
23
(2021).
219
See
also
Margaretha
Wewerinke-Singh,
A
Right
to
Enjoy Culture
in
Face
of
Climate
Change:
Implications
for
"Climate
Migrants"
(2013)
(CGHR
Working Paper
No.
6
/
4CMR
Working Paper
No.
7,
University
of
Cambridge); Margaretha
Wewerinke-Singh
&
Tess
van
Geelen,
Protection
of
Climate
Dis-
placed
Persons
Under
International
Law:
A
Case
Study
from
Mataso
Island,
Vanuat,
19
MELBOURNE
J.
INT'L
L.
666,
700-701 (2018).
220
Sarah
M.
Morris,
The
Intersection
of
Equal
and
Environmental
Protection:
A
New
Direction
for
Environmental
Alien
Tort Claims
After
Sarei
and
Sosa,
41
COLUMBIA
HUM.
RTS.
L.
REV.
275,
336-37
(2009).
Volume
18,
Issue
1
Loyola University
Chicago International
Law
Review
67

Persecution
and
Labor
Migrations
Nevertheless,
in
contrast
to
the
burden-sharing
rationale applicable
to
States
upon
which
international
agreements
on
climate
change
and
industrial
emissions
are
based,
2 2 1 this Treaty
would
not
apply
retroactively
to
private actors.
222
The foun-
dational, unsolved
problem
remains
where
to
place
the
threshold
between corpo-
rate
behaviors
as
primary
pull
factors
and,
instead,
as
circumstantial, tangential
co-causes
which
should
not bear
all
the blame.
This
issue
shapes the
discourse
that
tries
to
distinguish
between
('environmental')
migrants
and
('environmen-
tal')
refugees;
however,
the
Treaty
negotiators
have yet
to
provide
a
legal solu-
tion
to
help
draw
that
distinction.
Another
gap
that
needs
to
be
filled concerns
how
binding principles
like
the
"no-harm"
or
the
"precautionary"
principles-seemingly
accepted
as
customary
international
law
in
scholarly
discourse
despite
minimal
authoritative
and
gen-
eral
judicial
say
on
the
matter-are
on
corporations,
223
and
even
on
States
them-
selves.
224
In
fact,
if
a
corporation
located
in
State
A
pollutes
the
ecosystem
of
State
B
and
forces
State
B's
population
to
move,
the
rights
of
the
latter
may
stand
as
better clarified
under
the
upcoming
B&HR regime
rather
than
by
established
environmental
legal
governance, and
this
new
Treaty
may
make
such
a
corpora-
tion
itself
accountable
before the
judiciary
of
either
country (needless
to say,
this
would
only
be applicable
if
both
A
and
B
have
ratified
the
Treaty). As
a
result,
three
concurrent
solutions
may
provide
a
satisfactory
alternative
to
the
current
state
of
affairs:
global
binding
treaties
on
emission
reductions
and
similar
mea-
sures;
the
enhanced national
implementation
of
the
GPID
and
enforcement
of
the
relevant regional
arrangements;
and
finally,
the
protections
ensured
by
the
forth-
coming
Treaty
over those
who
are
affected
by
irresponsible
corporate
actions
affecting
the
environment
and
its
inhabitants
(among whom
indigenous
commu-
221
See
Mariya
Gromilova,
Legal
Protection
of
the
People
at
Risk
of
Climate-Induced
Cross-Border
Displacement: Application
of
the
1951
Refugee
Convention
35
(2011)
(Paper
No.
158406,
unpublished
MA
Thesis,Tilburg
University);
see
also
Joseph
E.
Aldy
&
William
A.
Pizer,
Alternative
Metrics
for
Comparing
Domestic
Climate
Change
Mitigation
Efforts
and
the
Emerging
International
Climate
Policy
Architecture,
10
REV.
OF
ENVTL. ECONS.
&
PoL'Y
3,
6
(2015);
Lucas Bretschger,
Climate
Policy
and
Equity
Principles:
Fair
Burden
Sharing
in
a
Dynamic
World,
18
ENV'T
&
DEV.
ECON.
517
(2013). For
context, see
OLIVIER GODARD, GLOBAL
CLIMATE
JUSTICE:
PROPOSALS,
ARGUMENTS
AND
JUSTIFICATION
56-84
(2017).
222
This
may
prove
problematic.
See,
e.g.,
Kristian
Heyer
Toft,
Climate Change
as
a
Business
and
Human
Rights
Issue:
A
Proposal
for
a
Moral
Typology,
5
Bus.
&
HUM.
RTS.
J.
1,
4,
18
(2019)
(in
the
context
of
climate
change, some
academics
contended that "corporations
have
backward-looking
human
rights
duties to remedy harms from
climate
change to
which
they
have
contributed,
but
also forward-
looking
responsibilities
to
prevent
negative
impacts
on
human
rights
from
climate change[,
pursuant
to]
a
more
relational understanding
of
responsibility
than
the
individualist
one
enshrined
in
the
liability
model
of
tort
law.").
223
Sandrine Maljean-Dubois
&
Vanessa
Richard,
The
Applicability
of
International
Environmental
Law
to
Private
Enterprises,
in
HARNESSING FOREIGN
INVESTMENT
TO
PROMOTE
ENVIRONMENTAL
PRO-
TECTION
INCENTIVES
AND
SAFEGUARDS
69,
74
(Pierre-Marie
Dupuy
&
Jorge
E.
Vihuales
eds.,
2013)
(Nonetheless,
"binding
law
(treaty and
customary
rules)
has
only
a
limited
normative
power because
its
incidence
is
indirect,
whereas
softer
normative
incentives
[may] have
a
very
direct
influence
on
the
behaviour of
enterprises.").
224
Jutta
Brunn6e
&
Ellen
Hey,
International
Environmental
Law:
Mapping
the
Field,
in
OXFORD
HANDBOOK
OF
INTERNATIONAL ENVIRONMENTAL
LAW
2,
9
(Daniel
Bodansky
et
al.,
eds.,
2008)
(For
instance,
"[a]lthough
the
no-harm
principle
has,
by
now,
achieved
canonical
status, in
practice,
it
is
not
consistently applied
to
resolve
specific
environmental
disputes
by
courts
or
tribunals.").
68
Loyola
University
Chicago
International
Law Review
Volume
18,
Issue
I

Persecution
and
Labor
Migrations
nities
are
particularly vulnerable).
225
Thus,
the
new
Treaty
should
not
be con-
ceived
as an
instrument
to
replace
current arrangements,
but
rather
as
one
that
may
fill
existing
gaps.
226
Yet,
for it
to
be
beneficial,
negotiators
must
first
solve
the
abovementioned
'threshold
issue'
as
to
allocation
of
blame.
Optimistically,
the
combined
effect
of
many
negotiators'
suggestions
22 7
in
forthcoming
drafts
should address
these
shortcomings.
VII.
Heading
Towards a
Resolutive
New
Treaty?
The
initial
observation
underpinning
the
present
analysis
was
that
most occur-
rences
of
internal
displacement
or
cross-border
migration triggered
by
soil
degra-
dation, water scarcity,
air
pollution,
and
similar
factors
are
usually labelled
as
'environmental,'
allowing
us
to
simply categorize
the
problem
as
the
inevitable
fate
of
a
territory's
population
or,
at
best,
to
general
phenomena
of
climate
change.
However,
the
causes
of
a
not-insignificant portion
of
these occurrences
can
be
traced
to
the
irresponsible
and
possibly criminal
behavior
of
companies-
mostly
TNCs'
subsidiaries
in
developing
and
least-developed
countries-that
shield
them
from
accountability for
the
pollution
and
degradation
of
natural
re-
sources
and
ecosystems
their
activities
cause.
It
would
therefore
be
more
accurate
to
re-categorize
migration flows
and
internal
displacements
as
"corporate" rather
than "environmental."
Regrettably,
no
universal
or
regional
international
law
instrument
addresses
this
problem satisfactorily
by
combining
the
three
elements
of
migration,
envi-
ronment,
and
corporate responsibility.
The African
Union's
Kampala Convention
marks
the
only
exception
to
this
rule,
but
its
embryonic
enforcement
record
and
the
regional
scope
of
its
applicability
do
not
provide
any
general
solutions
to
this
issue.
Furthermore,
due
to
corruption, underfunding,
weak
institutional
indepen-
dence,
understaffing,
poor rule-of-law
standards,
and
pervasive
regulatory
cap-
ture,
the
domestic courts
of
the
State
where
an
act
of
corporate
misconduct
225
See
also
Rocca
Salcedo
Mesa,
Environmental
Degradation
and
Human Rights
Abuses:
Does
the
Refugee
Convention
Confer
Protection
to
Environmental
Refugees?,
10
INT'L
L.:
REvisTA
COLUMBIANA
DE
DERECHO
INTERNACIONAL
75,
112-14
(2007).
226
See
Hannah
L.
Buxbaum,
Articles
by
Maurer
Faculty
(2861),
Public
Regulation
and
Private
En-
forcement
in
Global
Economy:
Strategies
for
Managing
Conflict,
399
COLLECTED
COURSES
277,
412
(Indiana
Univ.
Maurer
Schl.
of
L.
2019)
(indeed,
"multinational enterprises have proved adept
at
operat-
ing
in
-the gaps between legal
systems.
It
is
not
evident
that
public regulatory bodies have
adequate
resources, or
could secure
adequate resources, to achieve appropriate
levels
of
prosecution
and
deterrence
in
this
climate.").
227
Among
the most
relevant
suggestions,
sorted
by
order
of
appearance: the
negligent exposure
of
children
to
toxic
chemicals, to
account
for
the
unfair
power imbalance between
companies
and
rights-
holders;
the
two
mutually-reinforcing
trends
of
increasing
recognition
of
the
indivisibility
of
human
rights
and
increasing protection
in
specialized
areas,
showcased
by
national
implementation
mechanisms;
civil
injunction;
the
primacy
of
human
rights
over
trade
and
investment
agreements;
vexatious litigation;
common but
differentiated
responsibilities;
the
inclusion
of
environmental
rights,
which
would
make
"internationally
recognized human
rights,"
as
defined
in
similar
treaties,
too
narrow
a
framework,
thus
truly
fulfilling
the
aspiration
to
address
'all
human
rights;'
the
businesses
involved
(all
vs.
transnational
and
all vs.
for-profit);
the
inclusion
of
a
"right
to
a
sustainable
environment"
in
the
Preamble;
and
precau-
tionary measures against,
inter
alia,
environmental
crimes.
See
Fourth Session,
Draft
Rep.
supra
note
136,
at
11
10,
33, 35,
40,
46, 49, 93, 95,
110,
115.
Loyola University
Chicago
International
Law
Review
69
Volume
18,
Issue
I

Persecution
and
Labor
Migrations
unfolds-or
even
where
the
parent company
resides
228
-are
not
necessarily
the
appropriate vehicle
with
which
to
compel
TNCs
to
adjust their
business
model
and
adequately
compensate
those
affected.
This
holds
especially true
when
the
latter
fear
violent
retaliation
229
or
have
already
been
forced
to flee.
Hence,
a
uniform, persuasive,
and
universal
instrument
of
international
law
codifying
detailed
obligations
for
corporations through their
States
of
incorpora-
tion, while
simultaneously
multiplying
potential
avenues
for
redress,
is
highly
warranted. As
international
law
stands today,
this
need
remains unmet because
migration, environment,
and
corporate
responsibility
are never
jointly
con-
fronted.
The
migration
and
refugee
legal
regime concentrate
on
traditional
secur-
ity
issues
such
as
torture
and
cruel,
inhumane,
or degrading treatment or
punishment,
as
well
as
surveillance,
230
terrorism,
warfare,
forcible eviction
and
transfer, forced
relocation,
human
trafficking,
piracy, smuggling,
and the
like.
Its
rhetoric
focuses
on
border
control
and
detention
as
a
manifestation
of
biopolitical
power,
23
1
while
the
prism
of
related
international
criminal
law
may
offer
only
limited
recompense.
23 2
This
confirms
how
the
exasperating
prominence
attrib-
uted to
borders
and
passports
is
a
founding
myth
of
(post)modernity,
as
recently
shown
quite
embarrassingly
by
a
failed State
and
its
pleonastic
biometric
con-
trols.
23 3
As
for
the
international
environmental
legal regime,
it acts
upon
climate
change
and
sea-level
rise,
transboundary
harm,
biodiversity
preservation
and
so
forth,
or
it
grapples
with
'natural'
disasters
such
as
droughts
or
'unavoidable'
trends
such
as
the
degradation
of
the
soil
and
consequent
food
insecurity.
Lastly,
228
See,
e.g.,
Don Mayer
& Ruth
Jebe,
The
Legal
and
Ethical
Environment
for
Multinational
Corpora-
tions,
in
GOOD
BUSINESS:
EXERCISING
EFFFCTIVE
AND
ETHICAL
LEADERSHIP
159,
168-169
(James
O'Toole
&
Don Mayer eds., 2010).
229
See
Gwynne
L.
Skinner
Rethinking
Limited
Liability
of
Parent
Corporations
for
Foreign
Subsidi-
aries'
Violations
of
International
Human Rights
Law,
72
WASH.
&
LEE
L.
REV.
1769,
1803
(2015).
230
See
Ben
Hayes,
Migration
and
Data
Protection:
Doing
No
Harm
in
an
Age
of
Mass
Displacement,
Mass
Surveillance
and
"Big
Data,"
99
INT'L
REV.
RED
CROSS
179,
187
(2017).
231
"Biopolitics,"
an
originally Foucauldian
concept
(though
not
term)
later
re-elaborated-most
nota-
bly-by
Agamben,
has
come
to
define
(in
socio-political
as
well
as
legal
scholarship)
a
radical
applica-
tion
of
state-enforced
human-life
management
that,
while
not necessarily causing
the
physical
death
of
its
subjects,
depowers
them
up
to
the
barest
forms
of
living through
the
pervasive, extensive,
and
capillary
control
of
their
biological functions,
expressive potential,
and
derived cognitive
capabilities.
See,
e.g.,
Miguel
De
Larrinaga
&
Marc
G.
Doucet,
Sovereign
Power
and
the
Biopolitics
of
Human
Security,
39
SEC. DIALOGUE
517,
520-521
(2008).
On
border policing
and
systematic detention
of
irregular migrants
as
expressions
of
biopolitical
power,
see
Anne
Orford,
Biopolitics
and
the
Tragic
Subject
of
Human
Rights,
in
THE
LOGICS
OF
BIOPOWER
AND
THE
WAR
ON
TERROR:
LIVING,
DYING,
SURVIVING
205,
208-
211
(Elizabeth Dauphinee
&
Cristina
Masters
eds.,
2007);
Daria
Davitti,
Biopolitical
Borders
and
the
State
of
Exception
in
the
European
Migration
"Crisis,"
29
EUR.
J.
INT'L
L.
1173
(2018); Olga
Zeveleva,
Biopolitics,
Borders,
and
Refugee
Camps:
Exercising
Sovereign
Power
over
Non-Members
of
the
State,
45
NATIONALrTIES
PAPERS
41
(2017);
Thilo
Wiertz,
Biopolitics
of
Migration:
An
Assemblage
Approach,
39
ENV'T
&
PLANNING
C:
POLIrICS
&
SPACE
1375
(SAGE 2020)
https://doi.org/
10.1177%2F2399654420941854.
On
international migration
law
as
the
codified management
of
depriva-
tion,
see
also
Christina
Oelgemtller
&
Kathryn
L.
Allinson,
The
Responsible
Migrant:
Reading
the
Global
Compact
on
Migration,
31
L.
&
CRITIQUE
183,
190
(2020).
232
See,
e.g.,
Donna
Minha,
The
Possibility
of
Prosecuting Corporations
for
Climate
Crimes
Before
the
International
Criminal
Court:
All
Roads Lead
to
the
Rome
Statute?,
41
MICH.
J.
IN'r'L
L.
491,
521-
526
(2020).
233
See
Ferenc David Mark6,
We
Are
Not
a
Failed
State,
We
Make
the
Best
Passports":
South
Sudan
and
Biometric
Modernity,
59
AFR.
STUD.
REV.,
no.
2,
2016,
at
113-132.
70
Loyola
University
Chicago
International Law
Review
Volume
18,
Issue
1

Persecution
and
Labor
Migrations
B&HR
scholars
and
advocacy groups mostly
deal
with
labor
rights
and trade
union
grievances,
modern
slavery,
the
right
to
development,
land grabbing,
or the
regulation
of
mining/extractive
industries.
Of
course,
these
are
all
exceedingly
important
topics,
and
it is
appropriate
and
urgent
to
pursue them
under
the
rubric
of
each
of
these
three legal
regimes.
However,
the
issue
emphasized
here
is in
fact
determining
the
'law-transpar-
ent'
under
such
well-oiled
compartmentalization.
Hence,
there
is
a
pressing
need
to
conceive
of
these
three
legal
spheres
together
and
seek
a
tailored
solution
to
this
problem
-
a
problem
which
is
increasingly costly
both
for
humans
and
the
environment.
Besides
addressing
sovereign immunity
234
and
forum
non
conveniens
235
obsta-
cles,
an
effective dedicated
legal
tool should
facilitate
a
solution
to
several out-
standing
shortcomings
in
the
current
design
of
international
law.
The
lexicon
conceived
for
public
security
(e.g.,
'victim,'
'persecution,'
and
'sending
coun-
try')
should
be
replaced
by or
updated
to
include
comprehensive,
multifaceted
terminology created
with human
security
in
mind,
which
would help
shift atten-
tion
away
from States
and
onto
corporations,
and
give
citizens bargaining power
with
TNCs
in
cases
of
local
and
specific
misconduct.
Currently,
however,
chal-
lenging
corporations
on
climate
change through court
processes
solves
issues
of
corporate
pollution
and
contamination
only indirectly;
that
is,
on
a
macro
level.
This
does
not
allow
for
instant,
on-the-ground
change.
An
effective
instrument
must counter
the
neo-imperialist
hegemony
exercised
by
unaccountable TNCs
in
the
poorest
regions
of
the
globe
on
a
systemic
level.
Transnational
corporations
pollute
the
land
of
low-skilled
workers
in
the
developing world (sending
States),
while
in
the
developed
world
(receiving
States)
the
same
companies
lobby
only
to
ease
immigration
restrictions
for
high-skilled,
white-collar immigrantion.
236
Although
at
times
TNCs
do
try
to
share the
benefits
of
their
industrial
plans
with
local
populations, most
jobs
are
in
fact
outsourced,
237
and
there
are
entire inhab-
ited
areas
still
lacking
electricity
while
paradoxically being traversed
by
(spilling)
oil
pipes
and
other
private
infrastructure.
2 38
These
nonsensical
arrangements
234
For
a
doctrinal
excursus,
see
Ranabir
Samaddar, The
Justice-Seeking
Subject,
in
THE
BORDERS
OF
JUSTICE
145,148
(
tienne
Balibar et
al.
eds,
Temple
Univ.
Press 2012).
235
See,
e.g.,
Juan
Gabriel
Auz Vaca,
The
Environmental
Law
Dimensions
of
an International
Binding
Treaty
on
Business
and
Human
Rights,
15
REVISTA
DE
DIREITO
INTERNACIONAL,
no.
2,
2018, at
150,
160-
161,
175.
236
See
also
Vivienne Born,
Getting
the
Best
of
Us:
Multinational
Corporate Networks
and
the
Diffu-
sion
of
Skill-Selective Immigration
Policies
(2019)
(Unpublished PhD
Dissertation, University
of
Penn-
sylvania);
Nina Glick Schiller,
A
Global
Perspective
on
Transnational
Migration:
Theorising
Migration
Without
Methodological
Nationalism,
in
DIASPORA
AND
TRANSNATIONALISM:
CONCEPTS,
THEORIES,
AND
METHOD
109, 127
(Rainer
Baubbck
&
Thomas Faist
eds.,
Amsterdam Univ.
Press
2010).
237
See
Carol
Olson
and
Frank Lenzmann,
The
Social
and
Economic
Consequences
of
the
Fossil Fuel
Supply
Chain,
3
MRS
ENERGY
&
SUSTAINABILITY,
no.
E6,
2016, at
1,
10.
238
One
absurd
example
is
that
of
Nigeria,
where
foreign
multinationals'
endeavors
spoil the local
environment
and
deplete
energy resources
to
the
benefit
the
country's
ruling
elites, most countryside
households'
demands
for
electricity cannot
be
satisfied.
See,
e.g.,
Michael Watts,
Resource
Curse?
Governmentality,
Oil
and
Power
in
the
Niger
Delta,
Nigeria,
9
GEOPOLITICS
50,
67-68
(2004); Sunday
Olayinka
Oyedepo,
Energy
and
Sustainable
Development
in
Nigeria:
The
Way
Forward,
ENERGY, SUS-
TAINABILITY &
SOC'Y,
no.
15,
2012,
at
1.
Loyola
University
Chicago
International
Law Review
71
Volume
18,
Issue
I

Persecution
and
Labor Migrations
must
end,
and
aiming
the
policy
narratives
and
legal
tools currently oriented
around
'environmental'
migrations
instead
at
addressing ruthless
corporate
mis-
conduct
seems
like
as
good
a
place
to
start
as
any.
Under this Treaty,
exploitative
businesses
acts
might
be
brought
one
step
closer
to
proximate
causation
theory
allowable
for
governmental
acts,
which
would help
them
fit
well-seasoned
'persecution'
narratives
premised
on
intent.
239
Overseeing
the
unfolding
of
these
negotiations
and
guarding
the outcome
is
im-
portant,
as
the
latter
may
potentially
close one
of
the
gaps
in
the
protection
of
'environmentally'-induced
migrations, especially
in
times
of
peace.
The
call
for
protecting migrants
escaping
environmental disasters
in
wartime
240
has
gone
mostly
unheard,
and
authoritative
scholarship
has
explained
the
reasons
why
a
treaty
on
these
migrations
would
be
unfeasible for
the
time
being.
241
Also,
corpo-
rate
exploitation
is
worse
during peacetime
when
cross-border business
opera-
tions
are
not
disrupted
by
belligerent
contingencies
and
diplomatic
frictions,
although
one
should
remain
wary
of
potentially
deadly
cumulative
effects
in
war-
time,
24 2
too.
The
attainment
of
long-awaited
consensus
to
the
terms
of
the
pending
Treaty
would
in any
case mark
an
achievement
of
momentous
occasion.
For
the
first
time
in
history,
the
dictum
that
"businesses' decisions
to
uphold
human
rights
standards
remain
largely
voluntary
and
thus
subject
to
market-rather
than
moral-forces"
243
may lose
its
validity
on
a
global
scale
(depending
of
course
on
the
eventual
signatories).
In
fact,
international
policymakers'
unwillingness
to
admit
the
interrelation
between transnational
business exploitation,
environmen-
tal
degradation, (transboundary)
pollution,
global
warming,
'novel'
forms
of
per-
secution,
access
to
justice,
and
ultimately
'new' migrations,
is
intimately
connected
to
long-standing passive
attitudes towards
wider issues
of
neoliberal
inequality,
imperialism,
and wealth
(re)distribution.
Such
attitudes depict
the
lives
of
developing-world
inhabitants-as
well
as
their
environments
2
44-as
239
See,
e.g.,
Nina
Hding and Jona Razzaque,
Unacknowledged
and
Unwanted?
'Environmental
refu-
gees'
in
Search
of
Legal Status,
8
J.
GLOB.
ETHICS
19,
27-28
(2012);
Thea
Philip, Climate Change
Displacement
and
Migration:
An
Analysis
of
the
Current
International
Legal
Regime's
Deficiency,
Pro-
posed
Solutions
and
a
Way
Forward
for
Australia,
19
MELB.
J.
INT'L.
L.,
639,
646
(2018).
240
See
generally
ENVIRONMENTAL
PROTECTION
AND
THE
LAW
OF
WAR:
A
"FIFTH
GENEVA"
CONVEN-
TION
ON
THE
PROTECTION
OF
THE
ENVIRONMENT
IN
TIME
OF
ARMED
CONFLICT?
(Glen
Plant
ed.,
Belhaven
1992);
see
also
MILANIE
JACQUES,
ARMED
CONFLICT
AND
DISPLACEMENT:
THE
PROTECTION
OF
REFU-
GEES
AND DISPLACED
PERSONS
UNDER
INTERNATIONAL
HUMANITARIAN
LAW
(2012).
241
JANE
MCADAM,
CLIMATE
CHANGE,
FORCED
MIGRATION,
&
INTERNATIONAL
LAW
210-211
(Oxford
Univ.
Press
2012).
242
See e.g.,
Aurelie
Lopez,
The
Protection
of
Environmentally-Displaced
Persons
in
International
Law,
37
ENVTL.
L.
365, 374, 384-385
(2007).
243
Global
Governance Monitor,
The
Global
Human
Rights
Regime,
COUNCIL
ON
FOREIGN
RELA-
TIONS,
(May
11,
2012),
https://www.cfr.org/report/global-human-rights-regime.
For
a
reasoned explana-
tion
of
the
structure
underlying
the
dictum,
see
Obiora
Chinedu Okafor
(U.N.
Hum.
Rts.
Council
Independent
Expert
on
Human
Rights
and
International Solidarity),
Rep.
on
International
Solidarity
and
Climate
Change,
A/HRC/44/44,
1
36
(April
1,
2020).
244
For
indigenous
people,
devaluing
the
environment
is
akin
to
devaluing
the
person,
see Osofsky,
supra
note
84; Lopez,
supra
note
242.
72
Loyola
University
Chicago
International
Law
Review
Volume
18,
Issue
1

Persecution
and
Labor Migrations
worthy
of
less
money
and
care
than
those
in
the central
pulsing
nerve
of
the
empire.
245
The
trouble
with
the
word
"poverty"
is
that it
is
a
passive
word,
suggesting
a
state
of
social
affairs, which
has
to
be
confronted,
as
best
they
can,
by
state and
society, and
until
then
to
be
endured
by
those called
"poor."
The words "poverty"
and
"poor"
normalize
what
should
be
centrally
problematic.
Impoverishment
is
not
a
natural
state
but
a
dynamic process
of
public
decision-making
in
which
it
is
considered
just,
right
and
fair
that some
people
may
become
or stay
impoverished.
246
Tellingly,
international
arbitration
"[t]ribunals
have
given
internationalized
state[-TNC]
contracts
priority
over
domestic
regulatory efforts
at all
levels,
from
executive measures
to
legislation,
and
across
the
full
range
of
regulatory
con-
texts,"
including
the
environment
and
human
rights.
247
The upcoming
Treaty
might contribute
to
reversing
or at
least
flattening
the
trend
by
providing
a
com-
peting
international
obligation.
If
business-induced 'environmental'
migrants face
a
reluctant
yet
mounting
recognition
of
the
second
element
(their being
'environmental')
but
a
dismissal
of
the
first
(business-induced),
it
is
mainly
because
of
the
political
priorities
of
global
governors
who assume
their
free-market agenda
to
be
universal
(and
ig-
nore
afortiori
interdependence
of
the
two
factors).
248
Eloquently
put,
"[t]he
gov-
ernance debate
on
environmental migration
has
generally
been
conceived
within
such
a
framework.
If
[.
.
.]
universal
standards
are
not
appropriate,
new
universal
standards should
be
found."
249
Through
moral
lenses,
corporations
that not
only
exploited
the
environment
but
also
engaged
in
targeted misinformation
and
lob-
245
In
economic
terms,
see
Jack Landman
Goldsmith
&
Alan
O.
Sykes,
Lex
Loci
Delictus
and
Global
Economic
Welfare:
Spinozzi
v.
1IT
Sheraton
Corp.
120
HARV.
L.
REV.
1137,
1140
(2007) ("[o]ptimal
labor
and
environmental
standards depend
on
a
range
of
factors
including
tastes,
incomes,
and
access
to
technology.
Because
these
factors
differ
across
nations
(and
especially between developed
and
develop-
ing
nations),
there
is no
reason
to
think
that standards
should
be
the
same everywhere.
[.
..
To
exemplify,
t]he
amount
of
damages
payable
for
a
typical
injury
or
fatality
in
lower-income
countries
will be
lower
because
[..
.]
the
value
of
life
and
limb
is
lower
in
such
countries"). For
a
slightly
more
nuanced version
posited that
still
mimics
the
same
elitist
rationales
and
hierarchical value system
by
other Euro-American
scholars,
see
Daniel
M.
Weinstock,
(How)
Do
We
Need
to
Change
Political
Philosophy
to
Take
Risk
into
Account?,
in
HUMANITY
AT
RISK:
THE NEED
FOR
GLOBAL
GOVERNANCE
53,
61
(Daniel
Innerarity
&
Francisco
Javier
Solana de Madariaga
eds., 2013)
("ordinary
citizens simply lack
the
cognitive
sophisti-
cation
to
deal
with
complex
risks[;
.
.
.]
if
they
are
given too much
of
a
decision-making
role,
they
will
tend to make
costly
mistakes,
by
succumbing
to
heuristics
rather
than
engaging
in
[.
.
.]
sober,
cost-
benefit
analysis
[...
T]he
complexity inherent
in
modern-day
risks requires
[..
.]
affording
more
discre-
tion
to experts
who,
having identified
the
errors
in
reasoning
to
which
common
folk are
prone, can
better
resist those
errors.
They
will
then
reach
decisions
in
the
cold
light
of
facts
and
probabilities
rather
than
in
the
heat produced
by
fear
and
collective dysfunctions
of
reasoning.").
246
Upendra
Baxi,
LAW
AND
POVERTY:
CRrTICAL
EsSAYS
6
(Tripathi
1988)
(emphasis
added).
247
Julian
Arato,
Corporations
as
Lawmakers,
56
HARV.
INT'L.
L.J.
229,
233
(2015).
248
See
Maxine
A.
Burkett,
Behind
the
Veil:
Climate
Migration,
Regime
Shift,
and a
New Theory
of
Justice,
53
HARV.
CIv.
RTs.
-Civ.
LIBERTIES
L.
REV.
445,
456-460 (2018).
249
Benoit
Mayer,
Environmental
Migration
in the
Asia-Pacific
Region:
Could
We
Hang
Out
Some-
time?,
3
AsIAN
J.
INT'L.
L. 101, 114
(2013).
Loyola
University
Chicago
International
Law
Review
73
Volume
18,
Issue
I

Persecution
and
Labor Migrations
bying campaigns aimed
at
downplaying
their
willfully
(or at
least
knowingly)
harmful
impact, should
bear their portion
of
the
blame.
250
In
conclusion,
will
the
hopefully
but
implausibly
universal
Treaty
under
scru-
tiny
be
able to
substantially
improve
access
to
justice
mechanisms for
migrants
whose
territory
and
environment
has
been
irredeemably
devastated
by
reckless
business
actions? The
Treaty
is
ground-breaking
in
adjudicative
and even
pre-
scriptive
jurisdictional
terms,
which
remains
highly
relevant
as
civil
litigation
around 'climate
refugee'
matters
is
set
to
intensify
in
the
coming
years,
25 1
and
the
idea
of
universal
jurisdiction
over
TNCs'
crimes betrays perhaps
an
over-
abundance
of
optimism.
252
Thus
the new
Treaty's
overambitious
scope
covering
"all
human
rights
[.
.
.]
in
accordance
with
domestic
and
international
law"
253
might
risk
not
resolving
the
longstanding
issue
of
how
to
identify
the
cases
where
corporate
acts
were
the
primary
instigators
of
a
migration
rather
than
'just'
one
tangible
auxiliary
cause.
254
250
Sade
M.
Hormio
Can
Corporations
Have (Moral) Responsibility
Regarding
Climate
Change Miti-
gation?,
20
ETHics,
PoY'Y
&
ENV'T
314
(2017).
251
U.N.
Environment
Programme,
The
Status
of
Climate
Change
Litigation:
A
Global
Review, DEL/
2110/NA,
25
(May
2017).
252
Contra
Marie
Davoise,
All
Roads
Lead
to
Rome:
Strengthening Domestic
Prosecutions
of
Busi-
nesses
through
the
Inclusion
of
Corporate
Liability
in
the
Rome
Statute,
OPINIo
JuRIs
(Jul.
17,
2019)
http://opiniojuris.org/2019/07/25/all-roads-lead-to-rome-strengthening-domestic-prosecutions-of-busi-
nesses-through-the-inclusion-of-corporate-liability-in-the-rome-statute/; Cedric
Ryngaert,
Accountability
for
Corporate
Human
Rights
Abuses: Lessons
from
the
Possible
Exercise
of
Dutch
National Criminal
Jurisdiction
Over
Multinational
Corporations,
29
CRim.
L.
F.
1,
18-20
(2018);
Kendra
Magraw,
Univer-
sally Liable
-
Corporate-Complicity
Liability
Under
the
Principle
of
Universal
Jurisdiction,
18
M
INN.
J.
INr'L.
L.
458
(2009).
253
Third
Revised Draft,
supra
note
19,
at
art.
5(3).
254
Next
steps
towards
Treaty
adoption
are
being
taken
in the
aftermath
of
the
Sixth
and
Seventh
Sessions
which
were
convened
in
Geneva
in
October
2020 and
October
2021
respectively,
and
that
were
preceded
by
the
third
and
fourth
full drafts
of
the
instrument mentioned
supra.
After
the
Sixth
Session
in
October
2020, the
Chair-Rapporteur
urged
States
and
other non-State
stakeholders
to
submit
their desired
textual
integrations
and
amendments
on
the
Third
Revised Draft
by
the
end
of
March 2021,
so
that
the
release
of
a
fourth
version
may
be
in
review
by Fall
2021.
It
is
now
a
matter
of
determining negotiating
rounds
of
this
project de
lege
ferenda
to be
signed into binding
law.
For
information
on
the
Sixth
Session,
see
U.N.
Hum.
Rts.
Council,
Rep.
on
the
Sixth
Session
of
the
Open-Ended
Intergovernmental
Working Group
on
Transnational
Corporations
and
Other
Business
En-
terprises
with
Respect
to
Human
Rights,
U.N.
Doc.
A/HRC/46/73
(Jan.
14,
2021) (https://undocs.org/A/
HRC/46/73)
(hereinafter Sixth Session
Rep.);
Annex
to
the
Sixth Session Rep.
(of
Compilation
of
Oral
Statements)
U.N.
Doc.
A/HRC/46/73,
https://www.ohchr.org/Documents/HRBodies/HRCouncil/WG
TransCorp/Session6/igwg-6th-statement-compilation-annex.pdf; for
general
information
on
the
Sixth
Session,
see
https://www.ohchr.org/EN/HRBodies/HRC/WGTransCorp/Session6/Pages/Session6.aspx.
For
information
on
the
Fifth
Session,
see
U.N.
Hum.
Rts.
Council,
Rep.
on
the Fifth Session
of
the
Open-
Ended
Intergovernmental
Working
Group
on
Transnational Corporations
and
Other Business Enterprises
with
Respect
to
Human Rights,
U.N.
Doc.
A/HRC/43/55
(Jan.
9,
2020),
https://undocs.org/A/HRC/43/
55;
for
general
information
on
the Fifth
Session,
see
https://www.ohchr.org/EN/HRBodies/HRC/WG-
TransCorp/Session5/Pages/Session5.aspx.
For
a
succinct scholarly
commentary
on
the
latter,
see
Claire
Methven
O'Brien,
Confronting
the
Constraints
of
the
Medium:
The
Fifth
Session
of
the
UN
Intergovern-
mental
Working
Group
on
a
Business
and
Human Rights
Treaty,
5
Bus.
&
HuM. RTs.
J.
150
(2020).
To
explore topics from
the
Seventh
Session,
see
U.N.
Hum.
Rts.
Council,
Report
from
Seventh
Session,
provisional
Agenda,
https://www.ohchr.org/EN/HRBodies/HRC/WGTransCorp/Session7/Pages/Ses-
sion7.aspx (last accessed
Dec.
16,
2021).
74
Loyola
University
Chicago International
Law
Review
Volume
18,
Issue
1