Doctoral Degrees (Private Law)

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Browsing Doctoral Degrees (Private Law) by Author "Fox, Bryony Elizabeth"

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    Not just hot air : soft law and the protection of climate change-induced displaced children’s needs and rights
    (Stellenbosch : Stellenbosch University, 2024-03) Fox, Bryony Elizabeth; Human, Sonia; Stellenbosch University. Faculty of Law. Dept. of Private Law.
    ENGLISH ABSTRACT: The reality of the Climate Crisis has manifested in devastating impacts, including an increasing prevalence of cross-border climate change-induced displacement (CCID), a growing concern recognised by the Intergovernmental Panel on Climate Change. However, at present, CCID persons are not considered a recognised group in need of international protection. Further, due to the nature of the Climate Crisis and its impacts, they are unlikely to be able to rely on traditional protection regimes, such as the 1951 Refugee Convention. Children are particularly vulnerable to risks associated with CCID. Once they have crossed a border, they may be treated as irregular migrants and subjected to conditions of detention or return to a state of origin, often violating their rights. This dissertation aims to assess the extent to which various soft law instruments aid in protecting the needs and rights of CCID children who have crossed an international border during mobility and in seeking durable solutions. The research methodology involves a comprehensive analysis of soft law, which governs aspects of CCID and covers various areas of international law, including inter alia international refugee law, environmental law, and climate change law. The analysis is conducted using a children’s rights-based approach (CRBA). A CRBA recognises that children are rights holders, states are duty bearers, and international instruments such as the Convention on the Rights of the Child (CRC) and the African Charter on the Rights and Welfare of the Child (ACRWC) act as standard-setting instruments. This dissertation examines the multifaceted risks faced by CCID children during mobility, impacting their needs and rights as found within the CRC and ACRWC. The analysis finds that the soft law does aid states in respecting, protecting, and fulfilling the rights of CCID children. However, there is no single instrument which comprehensively addresses the rights of CCID children. Thus, the analysis underscores the challenge of addressing these rights within a fragmented legal landscape and discourages the creation of additional soft law instruments. The recommendations propose a strategic integration of specific questions on states’ implementation of CCID rights within the Committee on the Rights of the Child (CRC Committee) reporting process, aligning with the simplified reporting procedure starting in 2024 and advocating for similar measures in ACRWC periodic reports. It is also recommended that CCID children make use of individual communication procedures to hold states accountable for rights violations, drawing on, for example, the recent CRC Committee General Comment 26 for guidance. Furthermore, in order to mitigate fragmentation, collaboration is urged among various follow-up and review mechanisms, emphasising a comprehensive CRBA in reports and action plans linked to existing soft law instruments. In the context of durable solutions, this dissertation finds that CCID children face risks associated with durable solutions on two levels. The first is that traditional durable solutions offered to displaced persons tend to be child-blind, allowing children to fall between the cracks. The second is that due to the nature of climate change, the traditional durable solutions are unlikely to address the needs and rights of CCID children. This dissertation found that these risks are not addressed by the soft law instruments, and thus, these instruments do not adequately aid states in respecting, protecting, and fulfilling the rights of children in the context of durable solutions. Recommendations include integrating CCID children's rights with regard to durable solutions into state reports to the CRC Committee and African Committee of Experts on the Rights and Welfare of the Child, recognising the inadequacy of traditional solutions in the context of climate change and the need for innovative, climate adaptation solutions for CCID children and their rights.