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The Nansen Initiative and the development of an international protection norm for cross-border disaster-displaced… Okeowo, Ademola Oladimeji 2018

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THE NANSEN INITIATIVE AND THE DEVELOPMENT OF AN INTERNATIONALPROTECTION NORM FOR CROSS-BORDER DISASTER-DISPLACED PERSONSbyAdemola Oladimeji OkeowoLL.B. (Hons), Olabisi Onabanjo University, 2005B.L, Nigeria Law School, 2006LL.M, University of Groningen, 2009LL.M, Queen’s University, Kingston, Ontario, 2010A THESIS SUBMITTED IN PARTIAL FULFILLMENT OFTHE REQUIREMENTS FOR THE DEGREE OFDOCTOR OF PHILOSOPHYinTHE FACULTY OF GRADUATE AND POSTDOCTORAL STUDIES(Law)THE UNIVERSITY OF BRITISH COLUMBIA(Vancouver)April 2018© Ademola Oladimeji Okeowo, 2018iiAbstractUsing the Nansen Initiative on Disaster-Induced Cross-Border Displacement (the “NansenInitiative”) as a case study, this dissertation applies a synthesis of the theories of internationalnorm development to the decades of international efforts for the recognition and protection ofcross-border disaster-displaced persons leading to the establishment of the Nansen Initiative in2012. The dissertation examines the range of guideposts in the international norms literature foridentifying a successful new norm. Relying on judicial precedents and some notable literature oninternational norms, this dissertation argues that there are diverse forms of contemporaryinternational law. Thus, the dissertation concludes that the Protection Agenda, which is the finalproduct of the work of the Nansen Initiative, is a normative soft law instrument. The dissertationfurther examines international norm compliance theories as they might relate to states’disposition towards the Protection Agenda. Based on the endorsement of the Protection Agendaby 109 states in Geneva in 2015, the calibre of states that made the endorsement, and theenthusiasm with which they did so, the dissertation argues that states are likely to implement it.This is so, given that the establishment of the Platform on Disaster Displacement as a post-Nansen Initiative process for the Agenda’s dissemination, interpretation and implementationpurposes is a core requirement in the literature for achieving international norm compliance.iiiLay SummaryThis dissertation examines the legal value of an international document called the “ProtectionAgenda”. The Protection Agenda is the outcome of the work of the Nansen Initiative onDisaster-Induced Cross-Border Displacement (the “Nansen Initiative”) which was established in2012 by states. The Nansen Initiative ended its work in 2015 leading to the establishment of thePlatform on Disaster Displacement in 2016. The purpose of the Nansen Initiative was to ensurethat states agree on how to protect people displaced across international borders by disasters andclimate change. The Platform on Disaster Displacement now has the responsibility to ensure thatthe Protection Agenda is implemented. This dissertation discusses the usefulness of theProtection Agenda in protecting cross-border disaster-displaced persons and the role of thePlatform on Disaster Displacement in fostering its implementation.ivPrefaceThis dissertation is an original intellectual product of the author, Ademola Oladimeji Okeowo.The fieldwork reported in this dissertation was covered by UBC Ethics Certificate number H15-00940.Parts of Chapter 1 and Chapter 3 have been published in Demola Okeowo, “Examining the Link:Climate Change, Environmental Degradation, and Migration” (2013) 15 Environmental LawReview 273 – 289.Parts of Chapter 5 were published in Demola Okeowo, “Why International Law Should Respondto Cross-Border Environmental Migration” (2014) 3 NIALS Journal of Environmental Law 172– 204.vTable of ContentsAbstract.......................................................................................................................................... iiLay Summary ............................................................................................................................... iiiPreface........................................................................................................................................... ivTable of Contents ...........................................................................................................................vList of Abbreviations ................................................................................................................... ixAcknowledgements ........................................................................................................................xDedication ................................................................................................................................... xiiiChapter 1: The Conceptual Framework and Methodology of the Dissertation ..................... 11.1 Introduction................................................................................................................. 11.2 The Conceptual Framework of the Study ................................................................... 31.2.1 Background ............................................................................................................. 41.2.2 Conceptual Clarification ....................................................................................... 121.2.3 The Scope and Limitation of the Study ................................................................ 141.2.4 The Research Problem .......................................................................................... 171.2.5 Research Questions............................................................................................... 201.3 The Law Before the Protection Agenda.................................................................... 201.4 Brief Description of Basic Contents ......................................................................... 211.5 Methodology of the Study ........................................................................................ 231.5.1 Setting up an Analytic Frame (IR Literature) ....................................................... 241.5.2 Qualitative Analysis of Interview Data................................................................. 251.5.3 Analysis of Primary and Original Documents ...................................................... 271.6 The Scholarly Contributions of the Study ................................................................ 28viChapter 2: Cross-Border Disaster Displacement and International Norms: The TheoreticalFoundation................................................................................................................................... 312.1 Introduction............................................................................................................... 312.2 The Meaning of Norms............................................................................................. 342.3 The Structure of Norms ............................................................................................ 412.4 The Evolution of Norms ........................................................................................... 472.5 Stages of International Norm Development ............................................................. 512.5.1 The Existing Rule ................................................................................................. 532.5.2 The Dispute or the Triggering Event .................................................................... 552.5.3 Arguments, Precedents, and Ethical Consideration.............................................. 582.5.4 Rule Change.......................................................................................................... 672.6 Justifying the Choice of the Theoretical Framework................................................ 742.7 Compliance with International Norms...................................................................... 782.8 Conclusion ................................................................................................................ 89Chapter 3: Cross-Border Disaster Displacement: Setting the Stage for the Establishment ofthe Nansen Initiative ................................................................................................................... 933.1 Introduction............................................................................................................... 933.2 Who and What Will Be Affected by Disaster and Climate Change? ....................... 933.3 Existing Legal Framework........................................................................................ 973.3.1 International Refugee Law.................................................................................... 973.3.2 UN Guiding Principles on Internal Displacement .............................................. 1023.3.3 International Migration Law............................................................................... 1033.3.4 International Human Rights Law........................................................................ 108vii3.4 Concerns about Disaster Displacement before the Establishment of the NansenInitiative .............................................................................................................................. 1103.5 The Establishment of the Nansen Initiative ............................................................ 1183.6 Conclusion .............................................................................................................. 123Chapter 4: The Nansen Initiative on Cross-Border Disaster Displacement ....................... 1254.1 Introduction............................................................................................................. 1254.2 The Name “Nansen” in the Nansen Initiative......................................................... 1284.3 Mandate and Organizational Structure ................................................................... 1314.4 Modus Operandi...................................................................................................... 1344.5 International Consensus-Building........................................................................... 1384.5.1 Framing ............................................................................................................... 1394.5.2 Foundational Metanorms .................................................................................... 1554.5.3 Precedents ........................................................................................................... 1564.5.4 Influence of States............................................................................................... 1584.5.5 Legitimacy .......................................................................................................... 1594.6 Achievements.......................................................................................................... 1604.7 Challenges............................................................................................................... 1644.8 Conclusion .............................................................................................................. 167Chapter 5: The Nansen Initiative’s International Protection Agenda................................. 1715.1 Introduction............................................................................................................. 1715.2 The Protection Agenda ........................................................................................... 1755.3 Is the Protection Agenda Normative? ..................................................................... 1815.3.1 Reflection of Existing Norms ............................................................................. 189viii5.3.1.1 The Principle of Humanity.......................................................................... 1905.3.1.2 The Principle of Human Dignity................................................................. 1945.3.1.3 The Duty to Cooperate................................................................................ 1965.3.1.4 Non-Refoulement........................................................................................ 2005.3.1.5 Responsibility to Protect (“R2P”)............................................................... 2045.4 Testing Counter Arguments.................................................................................... 2095.4.1 “Not a Law” ........................................................................................................ 2095.4.2 Too Early?........................................................................................................... 2215.4.3 Political and Legal Implications ......................................................................... 2225.5 The Protection Agenda and the Nansen Initiative Post 2015 ................................. 2295.6 Conclusion .............................................................................................................. 241Chapter 6: Conclusion.............................................................................................................. 243Bibliography ...............................................................................................................................248Articles............................................................................................................ 248Books .............................................................................................................. 265Legislation....................................................................................................... 272Jurisprudence .................................................................................................. 275Policy Materials, Reports, and Institutional Correspondence......................... 277Media .............................................................................................................. 284Other Sources.................................................................................................. 285Appendices..................................................................................................................................290The Protection Agenda ....................................................................................... 290Interview Questions and Respondents ................................................................ 335ixList of AbbreviationsCEDAW Convention on the Elimination of all Forms of Discrimination Against WomenCVF Climate Vulnerable ForumGFMD Global Forum on Migration and DevelopmentIASC Inter-Agency Standing CommitteeICJ International Court of JusticeIDPs Internally Displaced PersonsIGOs Intergovernmental OrganizationsILC International Law CommissionILO International Labour OrganizationIOM International Organization for MigrationIPCC Intergovernmental Panel on Climate ChangeIR International RelationsNGOs Nongovernmental OrganizationsPDD Platform on Disaster DisplacementR2P Responsibility to ProtectRCM Regional Conference on MigrationUDHR Universal Declaration on Human RightsUN United NationsUNDRIP United Nations Declaration on the Rights of Indigenous PeoplesUNFCCC United Nations Framework Convention on Climate ChangeUNHCR United Nations High Commissioner for RefugeesUNHRC United Nations Human Rights CouncilxAcknowledgementsThis work has an unusual history of supervision in that at different stages during the Ph.D.program, I had the opportunity of being supervised by different professors. Thus, I am thankfulto Benjamin Richardson (“Ben”) for being my supervisor from the start of the program to thepoint of my candidacy examination. I am particularly grateful to Karin Mickelson who as amember of my supervisory committee agreed to act as my interim supervisor when Ben leftUBC. Karin, in your positions as a member of my supervisory committee and briefly as myacting supervisor, you impacted me academically and morally in ways that I will never forget.Thank you so much. My profound thanks and appreciation go to Catherine Dauvergne who notonly agreed to supervise my work from the candidacy stage but also offered great insights intothe substance and methodology of the work. All of these paid off. Catherine, notwithstandingyour busy schedule, you made out time to read each of the chapters of the dissertation, met withme at regular intervals with feedback, and taught me to be attentive to opposing views. On manyoccasions, you demonstrated your support for my career and professional development goals. Myappreciation also goes to Richard Price who as a member of my supervisory committeeintroduced me to the field of international relations in general, and to the study of norms inparticular. Richard, your encouragement, and criticisms have been invaluable.I would like to thank the Envoy of the Chairmanship of the defunct Nansen Initiative, ProfessorWalter Kalin, and some members of the Steering Committee such as the representatives ofSwitzerland, Norway, Germany, Australia, Kenya, Bangladesh, and the Philippines forparticipating in the interviews for this dissertation. I am equally grateful to Professor JaneMcAdam for sharing her thoughts with me on the subject matter of this research. The Head ofxithe Coordination Unit of the Platform on Disaster Displacement, and Head of the defunct NansenInitiative Secretariat, Mr. Atle Solberg also deserves special mention for providing necessaryinformation and assistance, even at short notice.This study was supported by funding from the Law Graduate Program, the Law Foundation ofBritish Columbia, McCarthy Tétrault LLP, and the Charles Bourne International LawScholarship. Catherine funded a substantial part of my Geneva fieldwork expenses. Many thanksto Ljiljana Biukovic, Doug Harris, and Joanne Chung of the UBC Graduate Law Program.I worked with Joe Weiler and Nikos Harris as a teaching assistant. Both of you ensured that mytasks as a teaching assistant did not interfere with the progress of this work. To this and manyother acts of kindness, I say thank you. To Andrew Pilliar and Alison Yule, thank you for thesustained companionship when the doctoral journey became rough and solitary. To the BereaBaptist Church family, especially Ward and Jane, Gerry and Janet, Darrell and Jayne, Alan andDianne, Holger and Linda, Harry and Nancy, Clive and Janette, Simeon and Angela, and Dougand Joy, for the numerous instances of love, kindness, understanding, and prayers. Many thanksalso to friends and well-wishers at the Vancouver office of McCarthy Tétrault LLP.To my wife, Abiola: You deserve a special award not only for taking good care of our kids whileI was locked down daily in some library away from home writing this dissertation, but also fortaking excellent care of me too. The quality of this work would not have been possible withoutyour love and understanding. Our adorable kids, Kiki and Sam will also share in this specialxiiaward for putting up with my dawn to dusk library schedule. And to my family and in-laws, Iowe a debt of gratitude to all of you for your prayers and support.xiiiDedicationI dedicate this work to my parents who though not educated understood the essence and value ofeducation. And without whom I would not have been able to achieve this academic feat.1Chapter 1: The Conceptual Framework and Methodology of the Dissertation“In situations where a multitude of national and international actors face similar problems, theyneed to coordinate their behaviour and efforts. In such circumstances, we often see whatpolitical scientists call ‘international regimes’ or ‘global governance’, i.e. a set of ‘implicit orexplicit principles, norms, rules and decision-making procedures around which actors’expectations converge in a given area of international relations.”11.1 IntroductionFrom 2010 to the present, a number of efforts have been made at the international level torecognise and protect cross-border disaster-displaced persons. In 2012, the governments ofNorway and Switzerland established the Nansen Initiative on Disaster-Induced Cross-BorderDisplacement (“The Nansen Initiative”). Using theories of international norms, this dissertationseeks to achieve three main goals. The first is to conduct an empirical inquiry into theapplicability of the theory of international norm change to cross-border disaster displacement.The second goal is to investigate whether the Agenda for the Protection of Cross-BorderDisplaced Persons in the Context of Disasters and Climate Change (“Protection Agenda”) – adocument detailing the outcomes of the three-year consultative work of the Nansen Initiative aswell as recommendations on the recognition and protection of cross-border disaster displacedpersons – constitutes a normative framework on cross-border disaster displacement. The thirdgoal is to examine whether or not states that have adopted the Protection Agenda of the NansenInitiative are likely to implement it.1 Walter Kälin & Nina Schrepfer, Protecting People Crossing Borders in the Context of Climate Change: NormativeGaps and Possible Approaches (Geneva: United Nations High Commissioner for Refugees, 2012) at 67.2From state recognition to extinction, virtually all aspects of international relations are regulatedby norms. A norm is widely accepted as "collective expectations for the proper behaviour ofactors with a given identity."2 There are international norms on statehood and sovereignty,decolonization, the prohibition of the use of force, chemical weapons and mercenarism, war andarms control, racial equality, refugeehood and security. As between states relating with oneanother as well as the relationship of states with other subjects of international law, norms defineand indeed prescribe the acceptable standard of behaviour on any given subject of internationalconcern. Norms take the form of judicial precedent, custom, treaty, or soft law instruments.Norms do not emerge overnight. As social phenomena, norms emerge through complex butcollective processes of argumentation and persuasion typically influenced strongly by power andinterests.3 This presupposes that new norms emerge by way of challenge to the status quo – theneed to expand the meaning or the application of the extant norm and in some circumstances theneed to outrightly reject the application of an existing norm to accommodate a new development.Norms and law are distinguishable but interrelated. While norms are generally informal, law isthe codified formal subset of norms. Norms breed law and vice versa. There is constantly a directinterplay between the two. In the words of Amartya Sen:2 See Peter J. Katzenstein, ed., The Culture of National Security: Norms and Identity in World Politics (New York:Columbia University Press, 1996) at 5; Martha Finnemore, National Interests in International Society (New York:Cornell University Press, 1996) at 22; Martha Finnemore & Kathryn Sikkink, "International Norm Dynamics andPolitical Change" (1998) 52:4 International Organization 887 - 917 at 891 [Finnemore & Sikkink, InternationalNorm Dynamics and Political Change]. See also Audie Klotz, Norms in International Relations: The StruggleAgainst Apartheid (Ithaca: Cornell University Press, 1995) at 14 where she defines norms broadly "as shared (thussocial) understandings of standards for behaviour."3 Neta Crawford, Argument and Change in World Politics: Ethics, Decolonization and Humanitarian Intervention(New York: Cambridge University Press, 2002) [Crawford, Argument and Change in World Politics].3...norms can motivate law and have a substantial influence on what gets codified as law.This can work either directly through legislation, which may be influenced by demandslinked to norms and established values and priorities, or through judicial interpretation ofwhat the legal codes actually say or mean, which too can respond to prevailing values andgeneral "moral sentiments"...Even if we do not want to go as far as Cicero in claiming that"the good of the people is the chief law," it is hard to deny the role of established norms ininfluencing legislation and judicial interpretations.4Empirical research shows that many states implement and obey international norms for differentreasons.5 Whatever form a norm takes, its primary purpose is to regulate the behaviour of statesand other actors. The general expectation is that norms must not only be implemented but mustbe obeyed lest such norms become a toothless bulldog. However, non-implementation of aninternational norm does not necessarily mean the norm in question is not in existence – it mayonly indicate that the norm is weak or has failed. Several factors bolster international normcompliance. From self-interest to the pressure within the international society, scholars haveattempted to identify not only why states obey international law but also how such obediencecould be encouraged.61.2 The Conceptual Framework of the StudyIn this section, I highlight the background to the study. To avoid confusion, I will clarify themeaning of some terms that I have used in this work since some of these terms may be capable4 Amartya Sen, "Normative Evaluation and Legal Analogues" in John N. Drobak, ed., Norms and the Law(Cambridge: Cambridge University Press, 2006) 247 - 266 at 248.5 Harold H. Koh, “Why Do Nations Obey International Law?” (1997) 106:8 Yale Law Journal 2599 – 2659 [Koh,Why Do Nations Obey International Law?]; Louis Henkin, How Nations Behave: Law and Foreign Policy (NewYork: Columbia University Press, 1979) [Henkin, How Nations Behave]; Jeffrey T. Checkel, “Why Comply? SocialLearning and European Identity Change” (2001) 55:3 International Organisation 553 – 588.4of different interpretations. I will also map the scope and boundary of the research so as to keepthe discussions and analysis of issues in focus and context. Additionally, this section will set outthe research problem as well as the research questions.1.2.1 BackgroundHuman activities have continued to have deleterious effects on the environment.7 The increasingconcentration of anthropogenic greenhouse gas emissions into the atmosphere is graduallychanging our climate with resultant dangers. Our planet is getting warmer at an alarming rate dueto human activities. The Earth’s surface temperature, which had not changed much in 10,000years, has become significantly warmer during the past 150 years.8 It has been observed that “ifthe current trend continues, many species, including humans, will not be able to adapt quicklyenough to avoid severe hardship.”9 The consequences of global climate change are now obviousdue to the increased prevalence of drought, rising sea level, extreme weather conditions anddesertification. These consequences also have serious implications for food security, health,general ecosystem and migration.Although the question whether climate change is responsible for any weather condition has beendescribed as a “nonsensical question”,10 the totality of literature on this issue, including theIntergovernmental Panel on Climate Change (IPCC) reports suggests that climate change is6 Ibid.7 Benjamin Richardson & Stepan Wood, “Environmental Law for Sustainability” in Benjamin J. Richardson &Stepan Wood, eds., Environmental Law for Sustainability (Oxford: Hart Publishing, 2006) 1.8 Shelley Tanaka, Climate Change (Toronto: House of Anansi Press, 2006) at 11.9 Ibid.5probably responsible for some environmental events.11 Strange weather events and naturaldisasters have been put forward by scientists as the likely impacts of climate change. Othersinclude sea level rise, crisis in freshwater resources, uncertain cereal output, increasing vector-borne diseases, changing migration patterns and flowering times.12 Climate change is predictedto create hotter, drier climates, more variable rainfall and shorter growing seasons in the twenty-first century and the expected increase in duration and frequency of droughts is likely to lead tomore widespread desertification, a loss in soil nutrients and fertility that diminishes agriculturalproduction.13 Several extreme events causing serious damage to human society have occurred inthe twenty-first century such as the heatwave in Europe in 2003, Hurricanes Katrina and Sandyin 2005 and 2012 respectively, droughts in Australia and floods and droughts in Asia andAfrica.14 Scientists also agree that there are good sides to the changing climate such as thefertilizing effect of higher CO2 concentration on plants. The danger however is that the negativeimpacts of climate change far outweigh the positive effects.10 Daniel G Huber & Jay Gulledge, “Extreme Weather and Climate Change: Understanding the Link and Managingthe Risk” (2011) Centre for Climate and Energy Solutions, at 2 – 6.11 In the Fourth and the Fifth Assessment Reports of the Intergovernmental Panel on Climate Change, the terms“likely”, “very likely”, “extremely likely”, were used to answer the question whether human activities contributed tothe changing climate while not being 100% certain whether climate change is responsible for some weather andenvironmental events. On this issue, the reports use phrases such as “low confidence”, “medium confidence”, “highconfidence” to describe the degree of certainty on the link between climate change and a given environmental event.For example, the Fifth Assessment Report of the IPCC says with “medium confidence” that “increases in thefrequency or intensity of ecosystem disturbances such as droughts, windstorms, fires, and pest outbreaks have beendetected in many parts of the world and in some cases are attributed to climate change”. Indeed, the underlinedclause further confirms the causal probability based approach of this report. See Intergovernmental Panel on ClimateChange, Climate Change 2014, Synthesis Report at para 1.3.2, online <http://ar5-syr.ipcc.ch/topic_observedchanges.php>; Demola Okeowo, “Examining the Link: Climate Change, EnvironmentalDegradation, and Migration” (2013) 15 Environmental Law Review 273 - 289.12 Asish Ghosh, “Climate Change: Cause and Concern” in Goutam Kumar Saha, ed., Climate Change: Man andEnvironment (New Delhi: Daya Publishing House, 2012) at 3.13 Michelle Leighton, “Drought, Desertification and Migration: Past Experiences, Predicted Impacts and HumanRights Issues” in Étienne Piguet, Antoine Pécoud & Paul De Guchteneire, eds., Migration and Climate Change(Cambridge: Cambridge University Press, 2011) 331.6Due to the complex nature of climate science, the outcome of any scientific investigation onwhether changing climate caused a particular weather event can never be certain. Writing in2005, Roda Verheyen was of the view that uncertainty is a feature of climate science on severallevels and that uncertainties will never be eliminated completely.15 She was also of the view,however, that "uncertainty about the global climate system is continually being reduced and withimproved knowledge of the climate system, scientists are able to produce more accurate climatemodels and predictions – to the point where uncertainties could be deemed negligible in the legalsense."16 Thus, she referred to the work of the International Ad-Hoc Detection and AttributionGroup17 wherein experts in detection and attribution of the human signal in climate change havestated that enhanced models, improved proxy data and statistical analyses today allow forrigorous attribution statements.18 Consequently, Verheyen concluded that "the fact that suchstatistical evidence for a human contribution to 20th century warming exists and that regionalattribution studies increasingly link human activities leading to climate change to regionalchanges strengthens the possibilities of applying (in international law) legal theories of causationand liability of responsibility to climate change damage."1914 Nobuo Mimura, “Overview of Climate Change Impacts” in Akimasa Sumi, Nobuo Mimura & Toshihiko Masui,eds., Climate Change and Global Sustainability: A Holistic Approach (Tokyo: United Nations University Press,2011) 46.15 Roda Verheyen, Climate Change Damage and International Law: Prevention Duties and State Responsibility(Leiden: Martinus Nijhoff, 2005) at 21 [Verheyen, Climate Change Damage and International Law]. It should benoted that the level of certainty has increased since that time.16 Ibid.17 International Ad-Hoc Detection and Attribution Group, Status Report: Detection and Attribution ofAnthropogenic Climate Signal, 25 September 2002.18 Verheyen, Climate Change Damage and International Law, supra note 15at 23.19 Ibid at 24.7If the link between climate change and a particular weather or environmental event is generallybelieved to be probable, are there any links between climate change or environmental event andhuman internal or international mobility? In other words, is climate change or disaster aloneresponsible for peoples’ decision to move or would it be arbitrary, as it has been claimed, toidentify climate change or disaster alone as a driver of forced migration without consideringother drivers like economic, social, political and cultural factors?20 There are conflicting studieson this issue.21 Mass movement of people has been listed as one of the likely effects of ourchanging climate. The proponents of this view argue that the sudden impacts of climate changein the form of earthquake or flood as well as gradual impacts such as deforestation,desertification, salinization, drought and soil erosion degrade and in most cases destroy land andfood production. These inescapably force people to move out of their locality in search ofgreener pastures. Thus, Essam El-Hinnawi in 1985 introduced the term ‘environmental refugees’to describe people who are forced to leave their places of habitual residence because of human ornaturally-induced environmental issues.22 The term has been bantered around since then in anydiscussion involving the impacts of climate change and forced migration.20 Alexander Betts & Esra Kaytaz, “National and International Responses to the Zimbabwean Exodus: Implicationsfor the Refugee Protection Regime” (2009) UNHCR New Issues in Refugee Research, Research Paper No 175;Alexander Betts, “Towards a “Soft Law” Framework for the Protection of Vulnerable Irregular Migrants” (2010) 22International Journal of Refugee Law 209.21 For the different issues raised by climate change and its implication on migration, see Norman Myers & JenniferKent, Environmental Exodus: An Emergent Crisis in the Global Arena (Washington DC: The Climate Institute,1995); Richard Black, “Environmental Refugees: Myth or Reality?” in New Issues in Refugee Research – WorkingPaper No. 34 (Geneva: UNHCR, 2001); Stephen Castles, “Environmental Change and Forced Migration: MakingSense of the Debate” in New Issues in Refugee Research – Working Paper No. 70 (Geneva: UNHCR, 2002). Thesestudies have engaged in intellectual debate on some of the issues that climate change and migration raise and thesharp disagreement on these issues among the authors underscores the complexity of not only the issues but also thesubject of climate change, disasters and migration.22 Essam El-Hinnawi, Environmental Refugee (Nairobi: United Nations Environmental Programme, 1985).8Thus, it has been asserted that desertification has caused migration in Mexico, Haiti and theSahel.23 Schwartz and Notini after doing a review of the environmental problems in Mexicoconclude that desertification is a major reason why people move while in Haiti, people movelargely because of deforestation and soil erosion.24 For the Sahelian states, drought has beenidentified as a major reason for the migration that occurred in the mid-1980s.25 Furthermore,studies have shown that droughts have led to the movement of people in Burkina Faso,26Ethiopia,27 Mali,28 and Senegal.29 Commenting on the effects of sea level rise, Oliver-Smith is ofthe view that if the land occupied by a community is completely and permanently submerged,migration will be necessary although there are many aspects of sea level rise that will affect thesustainability of coastal peoples and communities but may not pressure people to move.30On the other hand, it has been argued that the decisions to move or to stay are not attributable toenvironmental degradation or climate change alone – people’s decisions to migrate or not tomigrate are based on a wide range of economic, social, political and cultural factors. This is the23 Michelle L. Schwartz & Jessica Notini, “Preliminary Report on Desertification and Migration: Case Studies andEvaluation” in Puigdefabrigas J. Mendizabal, ed., Desertification and Migrations (Logrono: Geoforma Ediciones,1995) 69 – 113.24 Ibid at 82 & 88.25 Jodi Jacobson, Environmental Refugees: A Yardstick of Habitability (Washington DC: World Watch Institute,1988).26 Sabine Henry, Bruno Schoumaker, & Cris Beauchemin, “The Impact of Rainfall on the First Out-Migration: AMulti-Level Event-History Analysis in Burkina Faso” (2004) 25:5 Population and Environment 423 – 460 [Henry,Schoumaker & Beauchemin, The Impact of Rainfall on the First Out-Migration].27 Markos Ezra, Ecological Degradation, Rural Poverty, and Migration in Ethiopia: A Contextual Analysis (NewYork: Policy Research Division Population Council, 2001).28 Sally E. Findley, “Does Drought Increase Migration? A Study of Migration from Rural Mali during the 1983-1985 Drought (1994) 28:3 International Migration Review 539.29 Emmanuel S. Seck, Désertification: Effets, Lutte et Convention (Dakar: Environnement et Développement duTiers Monde, 1996).30 Anthony Oliver-Smith, “Sea Level Rise, Local Vulnerability and Involuntary Migration” in Étienne Piguet,Antoine Pécoud & Paul De Guchteneire, eds., Migration and Climate Change (Cambridge: Cambridge UniversityPress, 2011) 160 at 171.9view of most researchers in this field.31 For example, studies have shown that droughts in partsof Africa resulted in decreases in international and long-distance migration, with food scarcityand increased food prices forcing people to spend money on basic needs rather than moving.32By contrast, short-distance migration increased as women and children sought to work tosupplement household incomes through remittances.33 Furthermore, in the contexts such as theso-called ‘sinking islands’ of Kiribati and Tuvalu in the South Pacific, it has been argued thatmovement is less likely to be in the nature of sudden flight, and more likely to be pre-emptiveand planned.34In a more recent study, scholars have shown how climate change or environmental events haveled to migration in different parts of the world though the study also notes that climate change ordisaster was not the sole cause of migration but exacerbates the existing stressors leaving people31 Jane McAdam, Climate Change, Forced Migration, and International Law (New York: Oxford University Press,2012) [McAdam, Climate Change, Forced Migration, and International Law]; Stephen Castles, “Afterword: WhatNow? Climate-Induced Displacement after Copenhagen” in Jane McAdam, ed., Climate Change and Displacement:Multidisciplinary Perspectives (Oxford: Hart Publishing, 2010) 241; Colette Mortreux & Jon Barnett, “ClimateChange, Migration and Adaptation in Funafuti, Tuvalu” (2009) 19 Global Environmental Change 105; DominicKniveton et al, “Climate Change and Migration: Improving Methodologies to Estimate Flows” (2008) IOMMigration Research Series No. 33, 35; Ruth Haug, “Forced Migration, Processes of Return and LivelihoodConstruction among Pastoralists in Northern Sudan” (2002) 26 Disasters 70; Frank Laczko & Christine Aghazarm,eds., Migration, Environment and Climate Change: Assessing the Evidence (Geneva: International Organization forMigration, 2009) [Laczko & Aghazarm, Migration, Environment and Climate Change]; Elisabeth Meze-Hausken,“Migration Caused by Climate Change: How Vulnerable Are People in Dryland Areas?” (2000) 5 Mitigation andAdaptation Strategies for Global Change 379.32 McAdam, Climate Change, Forced Migration, and International Law, ibid.33 Henry, Schoumaker & Beauchemin, The Impact of Rainfall on the First Out-Migration, supra note 26; MichelleLeighton, “Desertification and Migration” in Pierre Marc Johnson, Karel Mayrand & Marc Pacquin, eds., GoverningGlobal Desertification: Linking Environmental Degradation, Poverty and Participation (Hampshire: Ashgate,2006); Fabrice Renaud et al, “Control, Adapt or Flee: How to Face Environmental Migration?” (2007)InterSecTions No 5/2007, 19; Rita Afsar, “Internal Migration and the Development Nexus: The Case ofBangladesh” (2003) Refugee and Migratory Movements Research Unit, 2. All these references were cited byMcAdam, Climate Change, Forced Migration, and International Law at 21.34 Jane McAdam, “Refusing ‘Refuge’ in the Pacific: (De)Constructing Climate-Induced Displacement inInternational Law” in Étienne Piguet, Antoine Pécoud & Paul De Guchteneire, eds., Migration and Climate Change(Cambridge: Cambridge University Press, 2011) 103.10with no other option than to move.35 Droughts, reduction in soil quality, flooding anddeforestation have accounted for human mobility in sub-Saharan Africa36 while climate changeand weather shocks are largely responsible for the migration decisions of many rural householdsin five Arab countries namely Algeria, Egypt, Morocco, Syria, and Yemen.37 Apart from havingserious consequences on future migration flows, environmental pressures resulting from climatechange have been identified as a major push factor for internal and international movements inAsia,38 including the mountainous Hindu Kush-Himalayan region.39 Evidence abounds in LatinAmerica and the Caribbean, based on historical experiences and projections that natural hazardssuch as tropical cyclones, heavy rains and floods as well as droughts and sea level rise have asignificant impact on migration within these regions.40 Environmental change has also propelledmigration in Europe,41 Oceania,42 and in North America particularly in the United States andCanada.4335 Etienne Piguet & Frank Laczko, eds., People on the Move in a Changing Climate: The Regional Impact ofEnvironmental Change on Migration (New York: Springer, 2014) [Piguet & Laczko, People on the Move in aChanging Climate].36 James Morrissey, “Environmental Change and Human Migration in Sub-Saharan Africa” in Etienne Piguet &Frank Laczko, eds., People on the Move in a Changing Climate: The Regional Impact of Environmental Change onMigration (New York: Springer, 2014) 81 – 109.37 Quentin Wodon, et al, eds., Climate Change and Migration: Evidence from the Middle East and North AfricaRegion (Washington, DC: The World Bank, 2013); Quentin Wodon, et al, “Climate Change, Extreme WeatherEvents, and Migration: Review of the Literature for Five Arab Countries” in Etienne Piguet & Frank Laczko, eds.,People on the Move in a Changing Climate: The Regional Impact of Environmental Change on Migration (NewYork: Springer, 2014) 111 – 134.38 Graeme Hugo & Douglas K. Bardsley, “Migration and Environmental Change in Asia” in Etienne Piguet & FrankLaczko, eds., People on the Move in a Changing Climate: The Regional Impact of Environmental Change onMigration (New York: Springer, 2014) 21 – 48.39 Soumyadeep Banerjee, et al, “The Changing Hindu Kush Himalayas: Environmental Change and Migration” inEtienne Piguet & Frank Laczko, eds., People on the Move in a Changing Climate: The Regional Impact ofEnvironmental Change on Migration (New York: Springer, 2014) 205 – 227.40 Raoul Kaenzig & Etienne Piguet, “Migration and Climate Change in Latin America and the Caribbean” in EtiennePiguet & Frank Laczko, eds., People on the Move in a Changing Climate: The Regional Impact of EnvironmentalChange on Migration (New York: Springer, 2014) 155 – 176.41 Mark Mulligan, Sophia Burke, & Caitlin Douglas, “Environmental Change and Migration Between Europe and ItsNeighbours” in Etienne Piguet & Frank Laczko, eds., People on the Move in a Changing Climate: The RegionalImpact of Environmental Change on Migration (New York: Springer, 2014) 49 – 79.11Notwithstanding the agreement in the literature that most climate change or disaster-drivenmovements will be internal, the concept of the “sinking island states” has raised the prospect of alarge-scale international population displacement on account of climate change andenvironmental events. By “sinking island states”, it is generally understood that some smallisland states such as Tuvalu, Kiribati, Nauru, Maldives, to mention just a few risk losing theirentire territories to the deleterious effects of climate change. These effects include but are notlimited to catastrophic inundation by water to the point where they may become completelyuninhabitable.44 Thus, there exists the possibility of a mass exodus of persons acrossinternational borders because of climate change and disasters. In preparation for this eventuality,Kiribati has already bought land on the main island of Fiji with the hope of relocating its citizensin due time.45 The Marshal Islands is expected to follow the Kiribati example.46 Similarly, theformer President of the Maldives, Mohamed Nasheed announced in 2008 the creation of asovereign wealth fund which could be used to purchase a new island for the people of hiscountry in the likely event that his country becomes completely submerged by water.47 Other42 John Campbell & Richard Bedford, “Migration and Climate Change in Oceania” in Etienne Piguet & FrankLaczko, eds., People on the Move in a Changing Climate: The Regional Impact of Environmental Change onMigration (New York: Springer, 2014) 177 – 204.43 Susana B. Adamo & Alexander M. de Sherbinin, “Migration and Environmental Change in North America (USAand Canada)” in Etienne Piguet & Frank Laczko, eds., People on the Move in a Changing Climate: The RegionalImpact of Environmental Change on Migration (New York: Springer, 2014) 135 – 153.44 Michael B. Gerrard & Gregory E. Wannier, eds., Threatened Island Nations: Legal Implications of Rising Seasand a Changing Climate (Cambridge: Cambridge University Press, 2015); McAdam, Climate Change, ForcedMigration, and International Law, supra note 31.45 Laurence Caramel, “Besieged by the Rising Tides of Climate Change, Kiribati Buys Land in Fiji” The Guardian(1 July 2014), online: The Guardian <http://www.theguardian.com/environment/2014/jul/01/kiribati-climate-change-fiji-vanua-levu>.46 Ibid.47 Susan F. Martin, “Climate Change and International Migration” (2010) The German Marshall Fund of the UnitedStates Study Team on Climate-Induced Migration at 4, online: Prevention Web<http://www.preventionweb.net/files/14679_MartinV3.pdf>.12than outright purchase, some like the Maldives and Tuvalu might consider renting islands fromanother state where their people could be moved to in the face of disaster.48 Apart from theexpected planned relocation of citizens of some Pacific island states, there is mounting evidenceparticularly in the Australian and New Zealand immigration and refugee jurisprudence showingthat people are moving internationally due to climate change and environmental degradation.491.2.2 Conceptual ClarificationAs we shall see in Chapter 2, the term “norm” is a generic name for four different phenomena.These are folkways, mores, taboos, and laws. Contemporary scholarship on norms appears tofocus more on law as a norm and the same is true about the subject matter of this dissertation.Thus, it is common practice to use the terms law and norm interchangeably. Treaty is a form oflaw. In this dissertation, therefore, I have taken the liberty, as it is the practice in the normsliterature, to refer to the 1951 Convention Relating to the Status of Refugees50 as a “norm” orsimply as a “treaty”. Both descriptions are correct. As a matter of choice and convenience,therefore, other treaties may be referred to as norms in this dissertation.48 Lilian Yamamoto & Miguel Esteban, Atoll Island States and International Law: Climate Change Displacementand Sovereignty (New York: Springer, 2014) at 191.49 V94/02840 [1995] RRTA 2382 (23 October 1995); N95/09386 [1996] RRTA 3191 (7 November 1996);N96/10806 [1996] RRTA 3195 (7 November 1996); N99/30231 [2000] RRTA 17 (10 January 2000); N00/34089[2000] RRTA 1052 (17 November 2000); Refugee Appeal Nos. 72179 – 72181/2000, RSAA (31 August 2000);Refugee Appeal No. 72185/2000, RSAA (10 August 2000); Refugee Appeal No. 72186/2000, RSAA (10 August2000); Refugee Appeal Nos. 72189 - 72195/2000, RSAA (17 August 2000); Refugee Appeal No. 72313/2000, RSAA(19 October 2000); Refugee Appeal No. 72314/2000, RSAA (19 October 2000); Refugee Appeal No. 72315/2000,RSAA (19 October 2000); Refugee Appeal No. 72316/2000, RSAA (19 October 2000); Refugee Appeal No.72719/2001, RSAA (17 September 2001); 0907346 [2009] RRTA 1168 (10 December 2009); 1004726 [2010]RRTA 845 (30 September 2010); AF [2013] NZIPT 800413; Teitiota v. The Chief Executive of the Ministry ofBusiness Innovation and Employment [2013] NZHC 3125; Teitiota v. The Chief Executive of the Ministry ofBusiness Innovation and Employment [2014] NZCA 173; AD [2014] NZIPT 501370; AC [2014] NZIPT 800517 –520.13Furthermore, in all of the examined literature on norms, none suggests that a rule must bebinding to be normative. Fundamentally, this justifies the inclusion of soft laws as normativeinstruments in international law. Thus, the term “norm” as used in this dissertation is not onlylimited to treaty law but includes soft laws of various types as well as other sources ofinternational law as provided for under article 38(1) of the Statute of the International Court ofJustice.51 For the avoidance of doubt, I understand and use the term “norm” in this dissertation todescribe any instrument or document, whether hard or soft, that embodies the collectiveexpectation and agreement of states and other actors on a given issue with a view to shaping orregulating their behaviour on and about that issue. Relatedly, I use the concept of “soft law” and“policy document” interchangeably only in relation to the Protection Agenda. As discussed inChapter 5, there is a reasonable argument that the Nansen Initiative itself described theProtection Agenda as a policy document rather than a variety of soft international law forpolitical and other reasons. In any case, both soft law and policy are generally non-binding butprescriptive and or proscriptive in nature and thus regulate the behaviours of states and otheractors in an issue area.Prior to the adoption of the Protection Agenda which now in its paragraph 33 describes thepopulation displaced across international borders by climate change and environmental events as“cross-border disaster-displaced persons”, a number of sensational and controversial descriptionshad been used by scholars and commentators. Some of these descriptions are “climate refugees”,50 1951 Convention Relating to the Status of Refugees, 28 July 1951, 189 U.N.T.S. 150 (entered into force 22 April1954) [1951 Refugee Convention] read in conjunction with the 1967 Protocol Relating to the Status of Refugees, 31January 1967, 606 U.N.T.S. 267 (entered into force 4 October 1967) [1967 Protocol].51 Statute of the International Court of Justice, 59 Stat. 1031; T.S. 993; 39 AJIL Supp. 215, 18 April 1946, art. 38.14“environmental refugees”, “climate change refugees”, and so on. Since these terms are legallyincorrect, I have adopted the new description of “cross-border disaster-displaced persons” in thisdissertation. Occasionally, and particularly when discussing works that have made use of theseold terms, the chances are that this dissertation may use them accordingly.Disaster displacement could be sudden such as the one caused by a tropical cyclone or gradualsuch as the one caused by drought or sea-level rise.52 Except where otherwise indicated, anyreference to disaster displacement in this dissertation involves both sudden and slow onsets sincethe Nansen Initiative as the case study for this research treated both as “disasters”.1.2.3 The Scope and Limitation of the StudyIt is important to delineate the scope and limitations of the study. The research questions which Ihave formulated below map the scope of the enquiries and the analyses. The study primarilyfocuses on the Nansen Initiative and its Protection Agenda as a norm entrepreneur and aninternational norm respectively. The dissertation raises questions and makes empirical analysesregarding the work of the Nansen Initiative, including its successor organisation – the Platformon Disaster Displacement. It examines the strategies adopted by the Nansen Initiative topositively change the course of events for cross-border disaster-displaced persons, states, andother international actors on cross-border disaster displacement. The focus is on whether theProtection Agenda is normative, including the proselytization efforts in this regard by the NansenInitiative as well as implementation and compliance efforts.15The study does not, however, deal with the legal implications of the submergence of states byrising sea level or other effects of climate change and environmental events. Neither does it focuson disaster management as a defined discipline but makes references to it as of necessity. Thestudy takes it as axiomatic that global warming is real. The work relies on the IPCC Reports andother authoritative works of scholars in asserting that human activities are responsible for ourchanging climate and that these in turn are responsible for some environmental events. Causalitywill as such be deemed established.The dissertation does not engage with the classical theories of law such as natural law,positivism, and the like. As the subject matter of this dissertation relates to contemporaryinternational law-making such as soft law, these classical theories offer little help. Legalpositivism for instance emphasises, among other factors, the requirement for sanctions as a factorin determining what law is.53 This is not always the case in modern international law.54 While themodern version of legal positivism contemplates both soft and hard laws which are made bystates or their surrogates through the United Nations systems,55 it is not necessarilycomprehensive or robust to justify all international legal phenomena. Nor would it provide52 Matthew Scott, “Natural Disasters, Climate Change and Non-Refoulement: What Scope for Resisting Expulsionunder Articles 3 and 8 of the European Convention on Human Rights?” (2014) 26:3 International Journal of RefugeeLaw, 404 – 432.53 John Austin, The Province of Jurisprudence Determined (Cambridge: Cambridge University Press, 1995); HansKelsen, Pure Theory of Law, translation from the 2nd edition (Berkeley: University of California Press, 1967) at201.54 H.L.A. Hart, The Concept of Law (Clarendon Press, 1994) at 80.55 Ibid; Steven R. Ratner & Anne-Marie Slaughter, “Appraising the Methods of International Law: A Prospectus forReaders” (1999) 93:2 American Journal of International Law 291 – 302; Bruno Simma & Andreas L. Paulus, “TheResponsibility of Individuals for Human Rights Abuses in Internal Conflicts: A Positivist View” (1999) 93:216adequate theoretical basis for the emergence and nature of the Protection Agenda. Indeed, it willbe difficult if not impossible to situate the place of informal international lawmaking in any ofthe classical theories of law.While this dissertation uses international norm theories as its theoretical framework, itsdiscussion of norm contestation is limited to how norm contestation or disputation changes ormodifies an existing norm in line with the dispute-driven theory of international norm change.This is the version of norm contestation that aids our understanding of how the ProtectionAgenda emerged as a result of the inapplicability of the 1951 Refugee Convention and its 1967Protocol to cross-border disaster displacement. Moreover, the Protection Agenda is a nascentnorm on cross-border disaster displacement. Current international efforts on this issue are beingchannelled towards the implementation of the norm. Other than Russia, there is no record whichsuggests that states are contesting the Protection Agenda. Thus, it may be too early to focus onthe contestation of the Protection Agenda though contestation may arise in the future. There aredifferent accounts of the implication of contestation on norms. International norm scholars arguethat contestation could either weaken or strengthen an international norm.56 Where appropriate,the dissertation will be tapping into some of these works. However, this dissertation is notprincipally focusing on states’ contestation of the 1951 Refugee Convention as it relates to theAmerican Journal of International Law 302 – 316; Steven R. Ratner & Anne-Marie Slaughter, eds., The Methods ofInternational Law (Buffalo: Williams S. Hein & Co., 2005).56 Jutta Brunnee & Stephen J. Toope, “Norm Robustness and Contestation in International Law: Self-Defenceagainst Non-State Actors” draft prepared for a workshop on “Norms Under Challenge: Unpacking the Dynamics ofNorm Robustness,” held 8-10 December 2016 (on file with author); Lisbeth Zimmermann & Nicole Deitelhoff,“Norms Under Challenge: Unpacking the Dynamics of Norm Robustness” draft prepared for a workshop on “NormsUnder Challenge: Unpacking the Dynamics of Norm Robustness,” held 8-10 December 2016 (on file with author);Richard Price, “Detecting Ideas and Their Effects” in Robert E. Goodin & Charles Tilly, eds., The Oxford Handbookof Contextual Political Analysis (Oxford: Oxford University Press, 2006).17principal purpose of this Convention as already researched and argued by Phil Orchard and otherauthors.57 Rather, the dissertation focuses on the contestation about the non-inclusion of cross-border disaster-displaced persons for protection purposes in this Convention and how this pavedthe way for the establishment of the Nansen Initiative and the drafting and endorsement of theProtection Agenda.1.2.4 The Research ProblemResearch has predicted that most environmental or climate change movements will be internalwhile some will also cross international borders.58 Due to the non-recognition of “climaterefugees” under both national and international law, it may be difficult to determine the accuratenumbers and the identity of those who have crossed international borders on account ofenvironmental or climate change. Thus, there is the tendency for people who have been displacedby disasters and environmental events to seek to migrate under the existing recognised migrationor refugee pathways. Arguably, there may be several cross-border disaster-displaced personswho have migrated to other countries ostensibly under the regular labour, education, tourism, andfamily migration categories. This is why McAdam argues, and rightly in my view, that "climate57 Phil Orchard, Right to Flee: Refugees, States, and the Construction of International Cooperation (Cambridge:Cambridge University Press, 2014); Andrew Wolman, “Japan and International Refugee Protection Norms:Explaining Non-Compliance” (2015) 24:4 Asian and Pacific Migration Journal 409 – 431; James C. Simeon, ed.,The UNHCR and the Supervision of International Refugee Law (Cambridge: Cambridge University Press, 2013);Erika Feller, Volker Turk, & Frances Nicholson, eds., Refugee Protection in International Law: UNHCR’s GlobalConsultations on International Protection (Cambridge: Cambridge University Press, 2003).58 Jon Barnett & Michael Webber, "Migration as Adaptation: Opportunities and Limits" in Jane McAdam, ed.,Climate Change and Displacement: Multidisciplinary Perspectives (Oxford: Hart Publishing, 2010) 37; McAdam,Climate Change, Forced Migration, and International Law, supra note 31.18change-related movement may remain a largely invisible phenomenon in bureaucratic and legalterms."59Before the adoption of the Protection Agenda in 2015, there was a protection gap in internationallaw for cross-border disaster-displaced persons and several unsuccessful efforts were made bythe office of the United Nations High Commissioner for Refugees (UNHCR) and other actors tomobilize states to bridge this gap. In particular, the UNHCR had attempted to orient states on,among others, the need for additional instrument(s) for the protection of cross-border disaster-displaced persons. Thus, a group of scholars commissioned by the Bellagio Expert Meeting onClimate Change and Displacement in February 2011 to look into this and other ancillary issuesagreed that "there is a need to develop a global guiding framework or instrument to apply tosituations of external displacement other than those covered by the 1951 Convention, especiallydisplacement resulting from sudden-onset disasters".60 Determined to facilitate the developmentof a new global guiding framework, the UNHCR took steps not only to secure the approval ofstates to be recognised as the lead organisation for coordinating protection responses in situationsof natural disasters61 but also to secure the pledge of states at the December 2011 UNHCRMinisterial Meeting to support its initiative for the development of global guiding principles oncross-border disaster displacement.6259 McAdam, Climate Change, Forced Migration, and International Law, supra note 31 at 25.60 UNHCR, "Summary of Deliberations on Climate Change and Displacement" (22-25 February 2011), online:<http://www.unhcr.org/4da2b5e19.pdf> at 1.61 UNHCR Executive Committee, "Report of the 51st Meeting of the Standing Committee (21-23 June 2011)" (20September 2011), UN Doc A/AC.96/1104 at 7-8, paras 30-36.62 Antonio Guterres, "Address" (6 June 2011), online: UNHCR <http://www.unhcr.org/4def7ffb9.html> at 5.19However, these steps were unsuccessful. On UNHCR's desire to be recognised as thecoordinating agency for a protection response in situations of natural disasters, states were,among other concerns, of the view that the UNHCR lacks the legal mandate to assume this role63while its hope of securing the pledge of states on the need to formulate a set of guiding principleson cross-border environmental displacement did not materialize. Out of the 155 representativesof states that attended the December 2011 UNHCR Ministerial Meeting which was held incommemoration of the 60th anniversary of the 1951 Refugee Convention and 50th anniversary ofthe Convention on the Reduction of Statelessness,64 only five states supported this idea (Norway,Switzerland, Costa Rica, Germany, and Mexico).65 Realizing that the consensus of states wasrequired in charting a new protection paradigm coupled with the hard truth that no consensus canbe attained without the clear understanding of the nitty-gritty of environmental displacementissue particularly within the most vulnerable regions, the governments of Norway andSwitzerland launched the Nansen Initiative in October 2012.Basically, the Nansen Initiative was a "state-led bottom-up" approach aimed at achievinginternational consensus on a "protection agenda" for addressing the needs of the populationdisplaced across international borders by disasters and climate change. The Initiative completed63 See UNHCR Executive Committee, "Report of the 51st Meeting of the Standing Committee (21-23 June 2011)",supra note 34. See also UNHCR Executive Committee, "Report of the 50th Meeting of the Standing Committee (1-3March 2011)" (24 June 2011), UN Doc A/AC/96/1097.64 1961 Convention on the Reduction of Statelessness, 30 August 1961, 989 U.N.T.S. 175 (entered into force 13December 1975).65 Antonio Guterres, "Closing Remarks by the UN High Commissioner for Refugees (8 December 2011)," online:UNHCR <http://www.unhcr.org/4ef094a89.html> at 1. It should be noted that the UNHCR mentioned "four" statesin his closing remarks and this was because Costa Rica's pledge was made after the close of the meeting. See JaneMcAdam, "Creating New Norms on Climate Change, Natural Disasters and Displacement: InternationalDevelopments 2010 - 2013" (2014) 29:2 Refuge 11 - 26 at 24 endnote 95 [McAdam, "Creating New Norms onClimate Change, Natural Disasters and Displacement"].20its work in December 2015 and presented the Protection Agenda to the international community.Among other provisions, this document seeks to set standards for states and other actors aboutthe recognition and protection of cross-border disaster-displaced persons before, during, andafter a disaster displacement. There is also an ongoing international call and efforts through thePlatform on Disaster Displacement for the implementation of the Protection Agenda. Thus, theresearch examines the nature and character of documents or instruments which “set standards”and “require implementation” such as the Protection Agenda.1.2.5 Research QuestionsThe overarching research questions which this dissertation seeks to unravel are:1. Considering states’ lack of interest and reluctance to articulate a protection framework forcross-border disaster-displaced persons before the establishment of the Nansen Initiative,how did the Initiative secure the consensus of states on the Protection Agenda?2. Is the Protection Agenda normative?3. Why and how will states implement the Protection Agenda?1.3 The Law Before the Protection AgendaInternational law governing human mobility before the adoption of the Protection Agendaconsisted of the 1951 Refugee Convention and its 1967 Protocol, the United Nations GuidingPrinciples on Internal Displacement,66 international migration law, and international humanrights law. However, none of these laws adequately recognised and protected cross-border21disaster-displaced persons. Chapter 3 of the dissertation contains a more extensive exploration ofthese laws and their inadequacy and inapplicability to cross-border disaster-displacement.1.4 Brief Description of Basic ContentsThere are six chapters in this dissertation. The dissertation also has appendices containing theNansen Initiative's Protection Agenda, and interview questionnaires. This Chapter (i.e. Chapter1) has been introductory in focus providing a general overview and clarification of the mainissues in discourse.Chapter 2 serves as the foundational theoretical framework upon which the inquiry will be based.It is a framing chapter for the rest of the chapters in the dissertation. Examined within thecontexts of international norm emergence, international norm identification, and internationalnorm compliance, the theories of international norms provide useful insights for understandingthe events and processes that led to the creation of the Nansen Initiative and the formulation ofthe Protection Agenda. Here, I elaborate on the dispute-driven cycles of international normchange as formulated by Wayne Sandholtz but supplementing it with the works of other normscholars such as Martha Finnemore and Kathryn Sikkink. The Chapter also examines someauthoritative definitions of norms with a view to recognising one when we see it. As it is crucialto discuss why and how states will implement the Protection Agenda, this Chapter furtherexamines some theories of international norm compliance to guide this aspect of the dissertation.66 United Nations Guiding Principles on Internal Displacement, UN Doc E/CN.4/1998/53/Add.2 (11 February22Chapter 3 focuses on the reasons why the Nansen Initiative was created as well as why theProtection Agenda was necessary. The Chapter traces the history of international and regionalefforts and activities for the recognition and protection of cross-border disaster-displacedpersons. It also emphasises the failure of international law in this regard with reference tointernational refugee law, the UN Guiding Principles, international migration law, as well asinternational human rights law. The Chapter further examines the number of persons that havebeen displaced by environmental disasters as a projection for the future flow of cross-borderdisaster-displaced persons.In Chapter 4, the dissertation discusses the role and achievement of the Nansen Initiative oncross-border disaster displacement. It discusses the role and purpose of the Nansen Initiative inthe emergence of a new international protection norm for cross-border disaster-displacedpersons. To this extent, the Chapter focuses extensively on the mandate, structure and method ofoperation of the Initiative including its legal, operational and institutional challenges. TheChapter also discusses the tools and mechanisms through which the Nansen Initiative was able toobtain the attention and consensus of states on cross-border disaster displacement.Chapter 5 engages the Protection Agenda as the outcome of the three-year research andknowledge expedition of the Nansen Initiative in the Pacific, Central America, East Africa,Southeast Asia, and South Asia from 2013 – 2015. The quest in this Chapter is to determine thenormativity or otherwise of the Protection Agenda. This will be done by analysing the core1998) [UN Guiding Principles on Internal Displacement].23provisions of the Agenda against the literature on the constitutive and definitional elements ofnorms. Based on this analysis, the Chapter argues that the Protection Agenda is normative. Giventhat the Protection Agenda is an embodiment of some existing international human rights,refugee, and humanitarian law principles, the Chapter further argues that this development lendscredence to its normative status. The Chapter also assesses possible arguments against thenormative status of the Protection Agenda so as to have a balanced perspective on this issue butoffers counter-arguments where necessary. Chapter 5 further discusses the Nansen Initiative andthe Protection Agenda post 2015. As part of the dissemination, implementation and complianceframework for the Protection Agenda, the Chapter examines the role of the Platform on DisasterDisplacement as a successor to the Nansen Initiative.Chapter 6 concludes based on anecdotal evidence that states, particularly those states thatendorsed the Protection Agenda, are likely to implement it. The Chapter also identifies areas offurther research on cross-border disaster displacement including the Agenda’s implementationand compliance rate.1.5 Methodology of the StudyThe work assesses the activities of the Nansen Initiative on the emergence of the protection normfor cross-border disaster-displaced persons. Citing evidence of past successes of states and otheractors in the formulation of international norms as mirrored in the evolution of norms againstslavery and colonialism, prohibition of plunder, the chemical weapons taboo, and the refugee24protection norm, the study creates a superstructure upon which to assess not only the work of theNansen Initiative but also that of the Platform on Disaster Displacement. This work is based onthree sources of data: texts and articles by legal and IR commentators, interviews with keyofficers and members of the Nansen Initiative and other relevant stakeholders, and primary ororiginal documents generated by the Nansen Initiative, the Platform on Disaster Displacement,and other relevant organizations.1.5.1 Setting up an Analytic Frame (IR Literature)A significant portion of the work will be analytical. As indicated, Chapter 2 is the theoreticalframework for the dissertation and it operates as the reference point for the analysis. In analyzingthe texts on international norm change, for example, I will highlight the key factors responsiblefor international norm change as documented in these texts and discuss how the chain of eventson cross-border disaster displacement replicates some if not all of these factors. The main taskwill be to analyse the socially constructed facts or realities about international norms and thecycles of change. I will also analyze the consensus-building strategy of the Nansen Initiative andhow the Initiative successfully endeared itself to many states leading to the legitimacy of theProtection Agenda. When it comes to determining whether the Protection Agenda is normative,the methodology will be both analytical and critical. The materials for this segment of thedissertation are not limited to the literature on the definitional components of international normsbut also includes analysis of some legal texts as well as critical analysis of opinions of scholars. Iwill also be analytical when extrapolating the likely behaviour of states toward the ProtectionAgenda from the theories of international norm compliance. This methodology will further assistin situating the position of the Platform on Disaster Displacement in the compliance literature.251.5.2 Qualitative Analysis of Interview DataIn order to supplement the existing factual data on the Nansen Initiative in the areas of itsmandate, modus operandi and the Protection Agenda, it was useful to conduct interviews withthose involved in the process. These include members of the Steering Group, and ConsultativeCommittee, particularly those involved in fieldwork and consultations in the five sub-regions ofPacific, Central America, East Africa, South Asia, and Southeast Asia where the NansenInitiative met with representatives from states, international organizations, NGOs, civil society,think tanks and other key actors working on issues related to displacement and natural disasters,including climate change. Through my attendance at the public presentation of the protectionagenda in October 2015, I conducted interviews and distributed questionnaires to governmentofficials of some other states who attended the public presentation event in Geneva. Datagathered from these interviews have been qualitatively analysed and employed to determine,among others, how far and how well the Nansen Initiative achieved its set objectives. Moreover,the data were crucial in assessing the quality of the information at the disposal of the NansenInitiative upon which the Protection Agenda was based. These data revealed the politics anddiplomatic concessions surrounding the emergence of the Protection Agenda. More importantly,the interview data offered empirical evidence on states’ implementation disposition to theProtection Agenda as well as for the role of transnational processes to international normcompliance.Specifically, I interviewed representatives of seven states who were members of the steeringcommittee of the Nansen Initiative. These are representatives of Australia, Bangladesh,26Germany, Kenya, Norway, Philippines, and Switzerland. In addition to interviewing therepresentatives of the above listed states, I also had the opportunity of interviewing the Envoy ofthe Chairmanship of the Nansen Initiative, Professor Walter Kalin, as well as a subject-matterexpert, Professor Jane McAdam. There were a few other representatives of states that I had theopportunity of speaking with on a casual level about the subject matter of the dissertation. Forexample, apart from having access to a copy of the statement delivered by the representative ofRussia during the public presentation of the Protection Agenda in Geneva, I had the privilege ofhaving a further discussion with this representative to clarify some issues and to answer somequestions that I had regarding the position of Russia on the Protection Agenda.Before embarking on the research fieldwork in Geneva, I had the plan of interviewing as manyrepresentatives of states as possible. I was determined to interview all the states members of thesteering committee of the Nansen Initiative, and the representatives of some notable developedcountries which refugees and migrants have traditionally found attractive. However, thisambition was frustrated by events beyond my control. For example, out of the nine states thatwere members of the steering committee of the Nansen Initiative, I was only able to interviewseven. The representatives of Costa Rica, and Mexico could not grant the needed interview dueto timing and logistic issues. The United States, the United Kingdom, France, and Canada arecountries not part of the steering committee of the Nansen Initiative but which are reputed to beamong the developed countries that most refugees and migrants travel to. For that reason, I sentout Interview Invitation Letters and Questionnaires to the Missions of these countries in Geneva.I also made several phone calls but none of these efforts was successful. For instance, theCanadian Mission in Geneva initially accepted my interview invitation and scheduled an27interview appointment to be held in October 2015. However, a few weeks to the appointmentdate, I received an email from the Canadian Mission in Geneva that the appointment had beencanceled because the officers to which I had been scheduled to meet were unavailable. All effortsto convince the Canadian Mission to reschedule the appointment or assign me to meet someother officers were unsuccessful.Perhaps, the most interesting aspect of planning for my interviews relates to my attempts toschedule interviews in Geneva with the Missions of some Pacific Island countries. It was myimpression that since the focus of this research was on climate change and environmental eventsand their implication on human mobility, low-lying states in the Pacific Island being some of themost vulnerable states to disaster-displacement would be interested in sharing their perspectives.I was wrong. Surprisingly, none of these countries responded to my email. I also placed severalphone calls to their Missions in Geneva none of which was answered or returned.1.5.3 Analysis of Primary and Original DocumentsThis dissertation achieved its aim partly by analysing some primary documents of the NansenInitiative, and the Platform on Disaster Displacement. These include Information and ConceptualNotes, Leaflets, Conference and Consultation Reports, Speeches, and Commissioned ResearchPapers. The climax of the activities of the Nansen Initiative was the formulation of the ProtectionAgenda which is a constellation of normative, institutional and operational frameworks forrecognising and protecting cross-border disaster-displaced persons in three protection phases towit before, during and after an environmental event. The dissertation analysed these primarydocuments in the context of their normative contents.28In addition to the primary documents generated by the Nansen Initiative and the Platform onDisaster Displacement which served as reliable sources of data for this dissertation, primarysources of law were also analysed. For example, the work analysed primary sources of law suchas treaties, customs, principles, and judicial precedents of international, regional, and nationalcourts and tribunals. The legal analysis was done with a view to resolving some of the questionsraised by the dissertation and it provided an authoritative basis for the findings of thedissertation.1.6 The Scholarly Contributions of the StudyThe study makes an empirical attempt at providing foresight into the future of the currentinternational efforts particularly those of the Platform on Disaster Displacement to implement theProtection Agenda. No literature known to me has focused on this issue including examining thenormative contents of the Protection Agenda. Moreover, the dissertation makes an originalcontribution to cross-border disaster displacement scholarship by unpacking the spectrum ofactivities and initiatives not just at the international level but also at the national and regionallevels as well as those of the Nansen Initiative to determine the circumstances that led to theconsensus of states on cross-border disaster displacement. Neither in legal nor internationalrelations literature do we have an attempt at stepping back from the furor of recommendations byscholars on how best cross-border disaster-displaced persons can be recognized and protected asthis work has done. Thus, the dissertation seeks to fill this gap in knowledge. I am aware ofarticles by Jane McAdam wherein she traces some notable international developments from 201029to 2016 on climate change, natural disasters and displacement.67 However, this dissertation isdifferent because it deals with international relations tested theories of international norms asthey apply to cross-border disaster displacement. There is thus a cross-fertilization of ideasbetween legal and international relations discipline on international norms.Within the core international relations literature on norms, I am not aware of any that has dealtwith the specific questions (on cross-border disaster displacement) which this dissertationaddresses. In other words, this work is original because none of the literature known to me hasdealt with the issues raised in it in the same way. This is not to say that the work has notbenefitted immensely from the existing literature. Neither is it new in both international relationsand legal literature to investigate the identity and emergence of international norms, includingissues of compliance nor is it novel in scholarship to argue that the varieties of international law(particularly soft international law) are infinite.68 However, what is significant about this work isits attempt to interrogate the normative contents of the Protection Agenda thereby consideringthe document a part and parcel of norms on cross-border disaster displacement.By studying how international norms develop, including how to recognise a norm, and why andhow states obey international norms, this dissertation assesses international developments oncross-border disaster displacement. The study offers useful insights into why and howinternational law is made and is thus an efficacious addition to both legal and international67 McAdam, Creating New Norms on Climate Change, Natural Disasters and Displacement, supra note 65; JaneMcAdam, “From the Nansen Initiative to the Platform on Disaster Displacement: Shaping International Approachesto Climate Change, Disasters and Displacement” (2016) 39:4 UNSW Law Journal 1518 – 1546.30relations scholarship on international norm identification, formation, and compliance. The workis a useful tool for resolving the age-long controversies among international lawyers not only onwhat law is but also on the normative status of soft law and the forms of international law ingeneral. The work is also a useful addition to the existing body of research on why states acceptand comply with non-binding norms.68 Richard R. Baxter, “International Law in her ‘Infinite Variety’” (1980) 29:4 International and Comparative LawQuarterly 549 – 566.31Chapter 2: Cross-Border Disaster Displacement and International Norms:The Theoretical Foundation“I argue that rules in international society often evolve in response to practical problems thatincessantly arise out of the gap between general rules and specific actions”12.1 IntroductionAs this work principally investigates whether the adopted Agenda for the Protection of Cross-Border Displaced Persons in the Context of Disasters and Climate Change (“the ProtectionAgenda”)2 of the Nansen Initiative on Disaster-Induced Cross-Border Displacement (“NansenInitiative”) is normative, I have undertaken a succinct review of some literature dealing with thewhole subject of international norms. This dissertation focuses on three main aspects of theinternational norms literature. The first is concerned with the process(es) by which internationalnorms evolve. In other words, this work shall be exploring what triggers the development orformulation of an international norm and what stages this development or formulation takes. Thesecond interest of this dissertation in norm scholarship relates to the definition of a norm or howto recognise a norm when we see it. Thirdly, this work harnesses the literature on internationalnorm compliance. Thus, international norm theories are useful as the overarching theoreticalframework for resolving the dissertation’s research questions.1 Wayne Sandholtz, Prohibiting Plunder: How Norms Change (New York: Oxford University Press, 2007) at 3[Sandholtz, Prohibiting Plunder].2 UNHCR, “UNHCR Commits to Follow Up on the Nansen Initiative on Climate and Disaster Displacement andLaunches New Overview of Its Work in This Area” (14 October 2015), online: The UN Refugee Agency<http://www.unhcr.org/561e5ea06.html>.32The processes and conditions for international norm change have been extensively dealt with byinternational relations scholars. From the seminal work of Richard Price3 to that of MarthaFinnemore and Kathryn Sikkink,4 and more recently to that of Justin Gest et al,5 the scope,including the form and substance of international norm emergence has been articulated. Theworks indicated later in this chapter by Peter Katzenstein, Ann Florini, Jutta Brunnee andStephen Toope, Louis Henkin, Harold Koh, Abram Chayes and Antonia Chayes, ThomasFranck, and Jeffrey Checkel, among others on both the definition of norms and compliance withinternational norms are also instructive.This chapter attempts to conduct a survey of the theories of international norms to assess theirrelevance to the fledgling category of forced movement – the cross-border disaster displacement.By analyzing the range of theories of international norms, I intend to set the stage for a heuristicresearch approach to the question, among others, of whether the international effort led by theNansen Initiative to protect cross-border disaster-displaced persons has created an internationalprotection norm for this emerging category of displaced persons.I begin my analysis in this chapter by examining the meaning which has been attributed to normsin the literature. Norm seems to have a generally accepted definition in international relationsscholarship. A clear understanding of what constitutes a norm is necessary to recognize one. As3 Richard Price, "Reversing the Gun Sights: Transnational Civil Society Targets Land Mines” (1998) 52:3International Organization, 613 – 644 [Price, Reversing the Gun Sights].4 Martha Finnemore & Kathryn Sikkink, "International Norm Dynamics and Political Change" (1998) 52:4International Organization 887 – 917 [Finnemore & Sikkink, International Norm Dynamics].33the ultimate goal of this dissertation is to argue that the protection agenda for cross-borderdisaster-displaced persons which was handed down by the Nansen Initiative and which wasendorsed by 109 states is a new international norm, engaging in an analysis of what constitutes anorm is crucial to achieving this goal. While this dissertation attempts to achieve this main goalby recourse to the works of notable international relations scholars on norms, it will adopt, in asignificant proportion, the influential prescription by Peter Katzenstein on what constitutes anorm. Katzenstein’s definition of a norm will be the theoretical underpinning for this part of theresearch.Next, I move on to a consideration of the structure of norms, including their classification andthe inherent tensions within this structure. International norms can generally be categorized assovereignty norms and liberal norms in terms of their primary referant. That is, as we would seebelow, while sovereignty norms operate to the advantage of a state as a person of internationallaw, liberal norms often protect the people within states. The tension that may ensue, forexample, when an emerging liberal norm undermines or potentially undermines state'ssovereignty can be clearly imagined.6 Yet, it is this tension or conflict that can ultimatelyculminate into the emergence of a new norm. Examination of the tension between the differentcategories and structure of norms would then lead to a discussion of the evolution ofinternational norms. The literature is replete with why and how norms change. The same is true5 Justin Gest et al, "Tracking the Process of International Norm Emergence: A Comparative Analysis of SixAgendas and Emerging Migrants' Rights" (2013) 19 Global Governance 153 – 185 [Gest et al, Tracking the Processof International Norm Emergence].6 Catherine Dauvergne, Making People Illegal: What Globalization Means for Migration and Law (Cambridge:Cambridge University Press, 2008).34of the influence of norms and their capability to regulate the (in)actions of states and otheractors.I then beam my research light on the stages of international norm development focusingprincipally on the dispute-driven model of international norm change by analyzing its four majorcomponents namely: the existing rule(s); the triggering event or dispute; arguments, precedentsand ethical consideration; and rule change. In this analysis, I will be drawing upon the basicprinciples and propositions of international norm development as articulated by internationalrelations scholars. This would be followed by a vindication of the choice of the theoreticalframework which I have adopted in this research. A discussion of the theories of normcompliance will be made as a foundation for the analysis contained in Chapter 6 of why statesaccepted the Protection Agenda and why they may comply with it. I then conclude thatinternational norms develop in stages, usually over a period of time with sustained activism fromnorm entrepreneurs and that the stages for the development of the international norm for therecognition and protection of cross-border disaster-displaced persons are not different.2.2 The Meaning of NormsThere are different definitions of norms. This is due largely to the complexity of the term whichmade scholars offer definitions that were susceptible to debate because the meaning whichscholars ascribed to the term was either inadequate or too broad.7 Indeed, the term “norm” was7 For a critique of the definition of norms offered by some leading scholars, see Janice E. Thomson, “Norms inInternational Relations: A Conceptual Analysis” (1993) 23 International Journal of Group Tensions 67 – 83[Thomson, Norms in International Relations].35considered to have “gained the reputation of being vague and fuzzy.”8 In the early 80s normswere considered as part of the legal regimes comprising principles, norms, rules, and decision-making procedures for regulating the behaviour of actors in a given issue area.9 In the mid-80s,Robert Axelrod summarized the various existing definitions of norms as relating to expectations,values, and behaviour and then chose to define a norm in the behavioural sense.10 He wrote that“a norm exists in a given social setting to the extent that individuals usually act in a certain wayand are often punished when seen not to be acting in this way.”11 A major component of thisdefinition of norm is the availability of sanctions for erring actors. The validity of this aspect ofthe definition in the face of contemporary developments at the international scenes remainsdebatable. In criticizing this definition as lacking analytical focus, Ann Florini argues that normsare not just about behavioural irregularities but “standards of behaviour”.12 She emphasizes thatnorms are a product of an assessment and critique of the existing state of affairs within a givensociety and that it is this sense of “oughtness” that is analytically distinct.Norms have also been considered to be normal, usual or customary practices of states with theconsequential effect of shaping states’ behaviour.13 Norms interpreted in this sense should denotethe “normal”. The author of this idea posits that normative belief is a result of the customary orusual practice of states or other actors when confronted with a given situation. It would seem that8 Ibid.9 Stephen D. Krasner, ed., International Regimes (Ithaca: Cornell University Press, 1983).10 Robert Axelrod, “An Evolutionary Approach to Norms” (1986) 80 American Political Science Review 1095 –1111.11 Ibid at 1097.12 Ann Florini, “The Evolution of International Norms” (1996) 40 International Studies Quarterly 363 – 389 [Florini,The Evolution of International Norms].13 Thomson, Norms in International Relations, supra note 7.36this definition rules out the prescriptive content of norms or “the sense of oughtness” whichsome other scholars have identified as lying at the core of normative change.14 MarthaFinnemore in a paper presented at the third Social Science Research Council/MacArthurWorkshop at Stanford University in October 1994 defines norms as “intersubjective variablesthat shape the interests of international actors in both systematic and systemic ways.”15Moreover, two decades ago Audie Klotz defines it “as shared understanding of standards forbehaviour.”16However, from 1996 onward, the definition of a norm is no longer a subject of debate ininternational relations literature.17 Peter Katzenstein defines a norm as “collective expectationsfor the proper behaviour of actors with a given identity.”18 To him, “norms either define (orconstitute) identities or prescribe (or regulate) behaviour, or they do both.”19 This definition hasbeen widely accepted in the literature as a reference point for the meaning of a norm.20 Three14 Florini, The Evolution of International Norms, supra note 12 at 364; Finnemore & Sikkink, International NormDynamics, supra note 4 at 891.15 Martha Finnemore, “Constructing Norms of Humanitarian Intervention” (1994) A paper presented at the ThirdSocial Science Research Council/MacArthur Workshop at Stanford University, Stanford, California, USA andpublished later in Peter J. Katzenstein, ed., The Culture of National Security: Norms and Identity in World Politics(New York: Columbia University Press, 1996) 153 – 185.16 Audie Klotz, Norms in International Relations: The Struggle Against Apartheid (Ithaca: Cornell University Press,1995) at 14.17 The definition handed down by Professor Peter J. Katzenstein in his 1996 work entitled The Culture of NationalSecurity: Norms and Identity in World Politics (New York: Columbia University Press, 1996) has been widelyaccepted in international relations literature. See for example, Finnemore & Sikkink, International Norm Dynamics,supra note 4; Denise Garcia, Small Arms and Security: New Emerging and International Norms (London:Routledge, 2006); Sarah Percy, Mercenaries: The History of a Norm in International Relations (New York: OxfordUniversity Press, 2007); Noha Shawki, “Responsibility to Protect: The Evolution of an International Norm” (2011)3:2 Global Responsibility to Protect, 172 – 196; Gest et al, Tracking the Process of International Norm Emergence,supra note 5.18 Peter J. Katzenstein, ed., The Culture of National Security: Norms and Identity in World Politics (New York:Columbia University Press, 1996) at 5 [Katzenstein, The Culture of National Security].19 Ibid.20 Martha Finnemore, National Interests in International Society (New York: Cornell University Press, 1996) at 22;Finnemore & Sikkink, International Norm Dynamics, supra note 4 at 891.37issues stand out from this definition. These are “collective expectations”, “proper behaviour ofactors”, and “constitution of identity”. Thus, to designate anything as a norm, a principalrequirement is that it must be collectively shared. Additionally, a norm could guarantee theproper behaviour of actors and create or recognise an identity.By “collective expectations” it means that whatever must be considered a norm must be sharedbroadly by actors to whom it is addressed. In other words, a norm must not be esoteric. It is thiselement of collective expectation that accounts for the legitimacy of a norm. And it has beenargued that “no matter how a norm arises, it must take on an aura of legitimacy before it can beconsidered a norm since legitimacy is the most important characteristic that a norm mustpossess.”21 This raises the question of how many actors must share this phenomenon before wecall it a norm. While there is the need for a “critical mass of actors” to have a sharedunderstanding of what would be a norm that would regulate their actions and inactions, thephrase “critical mass of actors” does not mean that all the actors to whom the norm would beaddressed must agree with or support the norm.22The phrase “proper behaviour of actors” as a constitutive element of a norm relates to theprescriptive or evaluative quality of a norm. By default, norms prescribe rules and set standardsof behaviour. Norms are regulatory in nature. What should be noted however is that normsevolve by way of reactions to or evaluation of the status quo – a desire for “what ought to be”flowing from “what it is.” In legal parlance, the former is akin to the natural law theory which21 Florini, The Evolution of International Norms, supra note 12 at 364 – 365.38pervaded the early twelfth century while the latter could be likened to legal positivism.Answering the question of what is appropriate or proper behaviour, Martha Finnemore, andKathryn Sikkink are of the view that “we only know what is appropriate by reference to thejudgments of a community or society. We recognize norm-breaking behaviour because itgenerates disapproval or stigma and norm-conforming behaviour either because it producespraise, or, in the case of a highly internalized norm because it is so taken for granted that itprovokes no reaction whatsoever.”23“Constitution of identity” presupposes that a norm may define not only the obligation holders butalso the person or people that the norm protects. Obligation holders have traditionally beenunderstood to be states, but events on the global scene have revealed more actors beyond states.These include non-state actors such as individuals, terrorists, rebels, non-governmentalorganizations, international and regional organizations as well as multi-national corporations. Interms of the beneficiary of a norm, a norm may create legal or terms of art identities such as“refugees”, “internally displaced persons”, “migrant workers”, “child”, “cross-border disaster-displaced persons”, and so on as the ultimate beneficiary of the range of rights and privilegeswhich the norm has established. To be qualified for these rights and privileges, therefore, aclaimant needs to show that he or she fits the status being contemplated by the norm. In anutshell, the following characteristics are gleanable from the various definition of normsexamined above:a. Collectively shared by the society to whom it is addressed (legitimacy);22 Finnemore & Sikkink, International Norm Dynamics, supra note 4.39b. Prescribing and regulating standard of behaviour of actors on a given subject;c. Creation of status or identity;d. Establishment of an overall sense of “oughtness”.A scrutiny of the various definitions of norms will reveal a striking similarity between norms andlaw. This similarity underscores the mutual relationship that exists between these phenomena.Notwithstanding this similarity, the relationship between norms and law can be confusing,particularly to legal scholars. For example, while legal scholars see the 1951 Refugee Conventionas law, international relations scholars see it as both a law and norm. Thus, the term “law” and“norm” could be used interchangeably to refer to this treaty. This is because law in internationalrelations scholarship is the codified formal subset of norms. In other words, law is a type orcategory of norms. Thus, “norm” is a generic term in international relations parlance whichsubsumes conventions or treaties, customs, principles, policies and other soft law documents andjudicial pronouncements the same way the term “law” in international law parlance subsumesconventions or treaties, customs, principles, policies and other soft law documents and judicialprecedents.24 The best way of overcoming the inherent confusion between norms and law is tobear in mind that all laws, be they hard or soft, are norms, but not all norms are laws. This isbecause other than law, sociologists have identified three other types of norms which are23 Ibid at 891 – 892.24 Finnemore & Sikkink, International Norm Dynamics, supra note 4; Wayne Sandholtz & Kendall Stiles, eds.,International Norms and Cycles of Change (Oxford: Oxford University Press, 2009) [Sandholtz & Stiles,International Norms and Cycles of Change]; Ian Brownlie, Principles of Public International Law, 7th Ed., (Oxford:Oxford University Press, 2008); Statute of the International Court of Justice, 18 April 1946, art. 38.40folkways, mores, and taboos.25 There is a dearth of recent academic materials on these othertypes of norms as most recent literature focuses on “law” (including all that this term representsin international law) as a type of norm.Folkways are unwritten societal norms that regulate casual interactions. For instance, it isconsidered indecent to belch loudly after a meal in a public place or at someone else’s home. Afolkway also requires that everyone joins a queue and not jump it to receive goods and services.Violation of folkways usually leads to resentment or other negative reactions to condemn theviolator’s action. Mores on the other hand define what is moral and ethical. It is usually rooted inbut not limited to religious doctrines and behaviours. For example, many religions forbid acohabitation between an unmarried couple. Rules against racism, bigotry, bullying andharassment are well entrenched in many societies as examples of mores. Mores are stricter andoften stronger than folkways in terms of consequences because they are considered not only asimmoral but unacceptable. In the same vein, a taboo “is a strict prohibition of behaviour thatsociety holds so strongly that violating it results in extreme disgust or expulsion from the groupor society.”26 Many societies consider incest as a taboo.While folkways, mores, and taboos are largely unwritten norms, contemporary developments aswell as civilisation and modernization have led to their legalisation. In other words, some rules25 William Graham Sumner, Folkways: A Study of the Sociological Importance of Usages, Manners, Customs,Mores, and Morals (New York: Dover Publications Inc., 1906).26 Ashley Crossman & Nicki Lisa Cole, “Understanding Folkways, Mores, Taboos, and Laws: An Overview ofSome Core Sociological Concepts” (10 December 2016), online: About Education,<http://sociology.about.com/od/Deviance/a/Folkways-Mores-Taboos-And-Laws.htm>.41of folkways, mores, and taboos are now contained in written form in domestic, regional andinternational law documents leading norm scholars to increasingly focus more on law as a norm.2.3 The Structure of NormsGenerally, norms could be domestic or international, or could be both. However, it should benoted that many international norms began as domestic norms.27 In practical terms, there is aninterconnectedness between domestic and international norms.28 Ellen Carol Dubois in her workrecounts how women’s suffrage was a national issue before becoming an international agenda.29The norm against slavery also started as a domestic issue, but it is now an establishedinternational norm.30 Indeed, slavery generates such a magnitude of international resentment thatit has now been regarded as a crime against humanity.31 Domestic norms require internationalstructures for wider coverage, acceptance, and implementation.32 Conversely, internationalnorms have also translated into domestic norms usually as a result of the socialization orinternalization of international norms by states.33 Finnemore and Sikkink argue that“international norms must always work their influence through the filter of domestic structures27 Finnemore & Sikkink, International Norm Dynamics, supra note 4 at 893.28 Peter B. Evans, Harold K. Jacobson, & Robert D. Putnam, eds., Double-Edge Diplomacy: InternationalBargaining and Domestic Politics (Berkeley: University of California Press, 1993).29 Ellen Carol Dubois, “Woman Suffrage Around the World: Three Phases of Suffragist Internationalism” inCaroline Dalley & Melanie Nolan, eds., Suffrage and Beyond: International Feminist Perspectives (New York: NewYork University Press, 1994) at 252 – 274.30 Kendall Stiles, “Slavery: Liberal Norms and Human Rights” in Wayne Sandholtz & Kendall Stiles, eds.,International Norms and Cycles of Change (Oxford: Oxford University Press, 2009) 169 – 203 [Stiles, Slavery:Liberal Norms and Human Rights].31 Rome Statute of the International Criminal Court, 17 July 1998, 2187 U.N.T.S. 3, art 7(1)(c), (entered into force 1July 2002); Jean Allain, Slavery in International Law: Of Human Exploitation and Trafficking (Leiden: MartinusNijhoff Publishers, 2013).32 Antje Wiener & Uwe Puetter, “The Quality of Norms is What Actors Make of It: Critical Constructivist Researchon Norms” (2009) 5:1 Journal of International Law and International Relations 1 – 16.33 Thomas Risse, Stephen C. Ropp & Kathryn Sikkink, eds., The Power of Human Rights: International Norms andDomestic Change (Cambridge: Cambridge University Press, 1999).42and domestic norms which can produce important variations in compliance and interpretation ofthese norms.”34 The Universal Declaration of Human Rights35 and the United Nations GuidingPrinciples on Internal Displacement36 remain classic examples of this.Domestic or international norms can also be either sovereignty norms or liberal norms. Sandholtzand Stiles made this categorization. They argued that “international society has been shapedlargely by two normative currents, one that emphasized the rights and freedoms of states andanother that emphasized the rights and freedoms of individuals”.37 Sovereignty norms, theyargue, are rules establishing for states “exclusive internal jurisdiction and independence inexternal affairs.”38 Traditionally every state has a distinct legal personality and is not subject tothe authority and control of other states. This traditional understanding of the sovereignty of astate has been codified in the United Nations Charter.39 Article 2(1) of the UN Charter declaresthat the United Nations is based on the principle of the sovereign equality of all its memberswhile article 2(4) & (7) forbids the threat or use of force against the territorial integrity andpolitical independence of any state, including intervention of any kind except in accordance withthe purposes of the United Nations as well as its Charter. The ascription of the sovereign status toa state comes with some protective rules which other states and actors must respect. Examples of34 Finnemore & Sikkink, International Norm Dynamics, supra note 4 at 893.35 Universal Declaration of Human Rights, GA Res. 217(III), UN GAOR, 3d Sess., UN Doc. A/810 (1948) 71[UDHR].36 The United Nations Guiding Principles on Internal Displacement, UN Doc E/CN.4/1998/53/Add.2 (11 February1998) [UN Guiding Principles on Internal Displacement].37 Sandholtz & Stiles, International Norms and Cycles of Change, supra note 24.38 Ibid.39 Charter of the United Nations, 26 June 1945, Can. T.S. 1945 No. 7, [UN Charter].43such rules or norms are the international norms banning piracy,40 ending conquest,41 protectingcultural treasures in wartime,42 proscribing terrorism,43 and limiting extraterritoriality.44Liberal norms evolved in the eighteenth century out of the understanding that every human beinghas inherent value, dignity, and self-respect.45 An attempt was made by the United Nations in1948 to codify what were referred to as “universal human rights” believed to be common to allpersons regardless of race, colour, and other legally protected grounds – the UniversalDeclaration of Human Rights. Opponents of the idea of the universality of human rights havechallenged this international instrument on many grounds, particularly on cultural relativism.46However, it is indisputable that the constellation of rights enshrined in this document have beenaccepted as binding by the vast majority of states and most of these rights if not all are nowregarded as customary international law.47 Since liberal norms guarantee and protect the40 Kendall Stiles, “Banning Piracy: The State Monopoly on Military Force” in Wayne Sandholtz & Kendall Stiles,eds., International Norms and Cycles of Change (Oxford: Oxford University Press, 2009) 29 – 54.41 Brook Gotberg, “The End of Conquest: Consolidating Sovereign Equality” in Wayne Sandholtz & Kendall Stiles,eds., International Norms and Cycles of Change (Oxford: Oxford University Press, 2009) 55 – 83.42 Wayne Sandholtz, “Protecting Cultural Treasures in Wartime” in Wayne Sandholtz & Kendall Stiles, eds.,International Norms and Cycles of Change (Oxford: Oxford University Press, 2009) 85 – 107; Sandholtz,Prohibiting Plunder.43 Kendall Stiles, “Terrorism: Reinforcing States’ Monopoly on Force” in Wayne Sandholtz & Kendall Stiles, eds.,International Norms and Cycles of Change (Oxford: Oxford University Press, 2009) 109 – 139.44 Titus Chih-Chieh Chen, “Extraterritoriality: Expanding Exclusive Internal Jurisdiction” in Wayne Sandholtz &Kendall Stiles, eds., International Norms and Cycles of Change (Oxford: Oxford University Press, 2009) 141 – 166.45 Sandholtz & Stiles, International Norms and Cycles of Change, supra note 24.46 Karin Mickelson, “How Universal is the Universal Declaration?” (1998) 47 U.N.B.L.J 19 – 48. Some Islamicstates, for example, during the drafting period of the Universal Declaration of Human Rights between January 1947and December 1948 opposed the idea of the right to change religious belief under article 18 as well as equalmarriage rights under article 16. For more on some of these objections and their critiques, see Faraz Anjum, “HumanRights, Cultural Relativism and Islam” (2013) 50:2 Journal of the Research Society of Pakistan; Reza Afshari,Human Rights in Iran: The Abuse of Cultural Relativism (Philadelphia: University of Pennsylvania Press, 2011);Elsa Stamatopoulou-Robbins, Cultural Rights in International Law: Article 27 of the Universal Declaration ofHuman Rights and Beyond (Leiden: Martinus Nijhoff Publishers, 2007).47 Hurst Hannum, “The Status of the Universal Declaration of Human Rights in National and International Law”(1995/96) 25 Georgia Journal of International and Comparative Law, 289 – 392 particularly at 323; Stephen James,Universal Human Rights: Origins and Development (New York: LFB Scholarly Publishing LLC, 2007); Roland44inalienable rights of every person, they have developed as international norms abolishingslavery,48 outlawing genocide,49 protecting refugees and asylum seekers,50 and as emergingnorms on humanitarian intervention,51 and the right to democracy.52Sovereignty and liberal norms often collide – there is an inherent tension between the two.Usually, the tension between sovereignty and liberal norms generates new norms.53 The right ofpeople to freely choose their own government and to exist as a country colloquially known as theright to self-determination is a liberal norm. Its emergence was at variance with the thenestablished right of a state to acquire the territory of another state through war and known asconquest. In the case of the evolving norm of humanitarian intervention, the tension betweensovereignty and liberal norms could be seen in the light of the international law principle ofsovereignty which embodies the idea of supreme decision-making and enforcement authorityover a given territory and population (a sovereignty norm)54 and the idea of the dignity of thehuman person which has been described as the basis for the whole theory of human rights (aliberal norm).55 On the one hand lies the impression by some states that they could commit massBurke, “Human Rights Day After the ‘Breakthrough’: Celebrating the Universal Declaration of Human Rights at theUnited Nations in 1978 and 1988” (2015) 10:1 Journal of Global History 147 – 170.48 Stiles, Slavery: Liberal Norms and Human Rights, supra note 30.49 Kendall Stiles, “Genocide” in Wayne Sandholtz & Kendall Stiles, eds., International Norms and Cycles ofChange (Oxford: Oxford University Press, 2009) 205 – 235.50 William Chiu, “Refugees and Asylum” in Wayne Sandholtz & Kendall Stiles, eds., International Norms andCycles of Change (Oxford: Oxford University Press, 2009) 237 – 262.51 Heather J. Wood, Taylor Nuttall, & Kendall Stiles, “Humanitarian Intervention” in Wayne Sandholtz & KendallStiles, eds., International Norms and Cycles of Change (Oxford: Oxford University Press, 2009) 263 – 288.52 Alix van Sickle & Wayne Sandholtz, “The Emerging Right to Democracy” in Wayne Sandholtz & Kendall Stiles,eds., International Norms and Cycles of Change (Oxford: Oxford University Press, 2009) 289 – 321.53 Sandholtz & Stiles, International Norms and Cycles of Change, supra note 24.54 Antony Anghie, Imperialism, Sovereignty and the Making of International Law (Cambridge: CambridgeUniversity Press, 2007) at 196 – 244.55 Izabela Bratiloveanu, "Human Dignity in International Law: Issues and Challenges" (2012) 7:1 EIRP Proceedings154; George Kateb, Human Dignity (Cambridge, MA: Harvard University Press, 2011).45atrocities and wanton violations of the human rights of their citizens without any externalinterference or control by other states under the principle of sovereignty. On the other hand liesthe emerging international duty of other states through multilateral actions to protect not justtheir citizens but also the citizens of other countries where their government engages in a grossviolation of the principle of human dignity.56Similarly, the emergence of the international refugee norm was as a result of the tension betweenstates’ exclusive right to include or exclude aliens in and from their territories and the thenemerging international human rights standards particularly following outrageous atrocities andcrimes against humanity committed during World War II which led to mass displacement andrefugee crisis. The former right is a derivative of the principle of sovereignty, and thus, asovereignty norm while the latter is a liberal norm. The same is now true of the cross-borderdisaster-displacement. There was and remains a tension between states’ sovereignty to controltheir borders and human rights violations or the risk thereof where states unabashedly shut theirborders to cross-border disaster-displaced persons. On cross-border displacement in the contextof disasters and climate change, states are certainly reluctant to take on new legal obligations inthis regard. Hence, the Nansen Initiative during its consensus building process was unambiguousin stating that it does not intend to create new legal standards, perhaps as a negotiation strategy toget states to be interested in its work.57 As I will argue later in the dissertation, the ProtectionAgenda though not creating new legal standards but a restatement of the existing legal56 Anne Orford, Reading Humanitarian Intervention: Human Rights and the Use of Force in International Law(Cambridge: Cambridge University Press, 2003).57 The Nansen Initiative on Disaster-Induced Cross-Border Displacement Websites at<https://www.nanseninitiative.org/>.46obligations and standards is indeed a new addition to international law on the recognition andtreatment of persons displaced across international borders by disasters and climate change.58Any of the foregoing classification of norms could be evaluative or prescriptive focusing on whatis morally right or wrong.59 They could also be constitutive norms creating and defining actors’identities or regulative norms which direct and control conduct.60 Furthermore, Katzensteintersely refers to what he calls “practical norms” “focusing on commonly accepted notions of bestsolutions”61 while Antje Wiener proposes three types of norms which are fundamental norms,organizing principles and standardized procedures.62 Fundamental norms, according to Wienerare constitutional and procedural norms like human rights, democracy, non-intervention andothers in this category which apply to modern constitutionalism and international relationstheory. Organizing principles, she says, are principles such as transparency, accountability,responsibility and proportionality which “inform political procedures and guide policypractices”.63 Standardized procedures are rules or regulations “which are clearly defined andexpected to facilitate immediate and uncontested understanding”.64 As it will be seen in chapter58 See Chapter 5.59 Gest et al, Tracking the Process of International Norm Emergence, supra note 5; Finnemore & Sikkink,International Norm Dynamics, supra note 4.60 Peter J. Katzenstein, “Introduction: Alternative Perspectives on National Security” in Peter J. Katzenstein, ed.,The Culture of National Security: Norms and Identity in World Politics (New York: Columbia University Press,1996) 1 – 32 [Katzenstein, Alternative Perspectives on National Security]; John G. Ruggie, “What Makes the WorldHang Together? Neo-Utilitarianism and the Social Constructivist Challenge (1998) 52:4 International Organization,855 – 885 at 871 – 874.61 Katzenstein, Alternative Perspectives on National Security, ibid at footnote 12.62 Antje Wiener, The Invisible Constitution of Politics: Contested Norms and International Encounters (Cambridge:Cambridge University Press, 2008) at 65 – 67.63 Ibid at 67.64 Ibid.475, these distinctions are necessary because they will assist in properly understanding the class towhich the Protection Agenda belongs.2.4 The Evolution of NormsSo how does a norm emerge? The literature has treated this question as a combination of not justthe stages of norm development but what and who is responsible for the emergence. Internationalrelations specialists have written tomes on themes such as who changes norms (agents), whatforms these changes take (results) and why (reasons) and how (stages and strategies) thesechanges are made. The literature has treated these themes together and rarely do we have texts oninternational norm change addressing one of these themes in isolation of the others. Even inLegalization and World Politics, which was a special research project specifically interrogatingthe "move to law" in many issue areas and thus primarily addressing the theme on the forms inwhich normative changes are made, the treatise also inevitably addresses some if not all of theother themes as highlighted above.65A new norm may emerge where it resonates or “grafts” with an existing norm that has generallybeen accepted.66 An international norm may emerge where a domestic norm is elevated to aninternational level or where the new international norm bears semblance with an established65 Judith Goldstein, et al, eds., "Legalization and World Politics" (2000) 54:3 International Organization 385 – 399[Judith Goldstein, et al, eds., “Legalization and World Politics”]. For a critique of this work, see Martha Finnemore& Stephen J. Toope, "Alternative to "Legalization": Richer Views of Law and Politics" (2001) 55:3 InternationalOrganization 743, where the authors argued that "legalization" is not only about treaty-based regimes ofinternational law as canvassed by the authors of Legalization and World Politics but a consideration of the rules ofcustomary international law and norms represents a richer understanding of law's operation.66 Price, Reversing the Gun Sights, supra note 3.48domestic norm.67 Robert Keohane has argued that international cooperation norms in the worldpolitical economy may develop when no hegemonic power is available.68 Offering a usefulinsight on the emergence of the international norm of transparency in international security, AnnFlorini argues that the identity of the norm entrepreneur, coherence with other relatively recentnorms, and the availability of a hospitable environment led to the successful development of thisinternational norm.69 Scholars have argued that the interpretation of chemical weapons as aunique threat to civilians, and the availability of a favourable legal antecedent prohibiting theiruse were major factors responsible for the chemical weapons taboo.70 Furthermore, disputesabout the scope and application of an existing norm following the occurrence of an event orsituation not contemplated by the existing norm may lead to the initiation of a new norm.71International norms scholars agree that every new international norm has promoters or “normentrepreneurs.”72 These are persons or entities who champion the cause of a campaign ormovement for the recognition of a new norm by states and other actors.73 Hegemonic states may67 Richard Price & Nina Tannenwald, “Norms and Deterrence: The Nuclear and Chemical Weapons Taboo” in PeterJ. Katzenstein, ed., The Culture of National Security: Norms and Identity in World Politics (New York: ColumbiaUniversity Press, 1996) 114 – 152.; Andrew P. Cortell & James W. Davis Jr., “How Do International InstitutionsMatter? The Domestic Impact of International Rules and Norms” (1996) 40 International Studies Quarterly 451.68 Robert O. Keohane, After Hegemony: Cooperation and Discord in the World Political Economy (Princeton:Princeton University Press, 1984) [Keohane, After Hegemony].69 Florini, The Evolution of International Norms, supra note 12.70 Richard Price, “A Genealogy of the Chemical Weapons Taboo” (1995) 49:1 International Organization 73 – 103[Price, A Genealogy of the Chemical Weapons Taboo]; Michelle Bentley, “Strategic Taboos: Chemical Weaponsand US Foreign Policy (2014) 90:5 International Affairs 1033 – 1048 [Bentley, Strategic Taboos].71 Florini, The Evolution of International Norms, supra note 12 at 378; Price, Reversing the Gun Sights, supra note3 at 631; Sandholtz & Stiles, International Norms and Cycles of Change, supra note 24.72 Finnemore & Sikkink, International Norm Dynamics, supra note 4; Price, Reversing the Gun Sights, supra note 3;Gest et al, Tracking the Process of International Norm Emergence, supra note 5.73 Ethan A. Nadelmann, “Global Prohibition Regimes: The Evolution of Norms in International Society” (1990)44:4 International Organization 479 – 526.49champion the cause of a new norm.74 Though not always the case, the chances are that a newnorm may quickly gain traction and be widely accepted if it is promoted or supported by one ofthe world’s super powers. Using the power of material incentives such as threats and promises offinancial aid, and possibly the subtle power of socialization, hegemons can and have successfullyestablished a new international norm.75While hegemons occupy a lofty vantage position giving them the privilege to exert theirinfluence in the promotion of a new global norm, non-hegemonic states or non-state actors mayalso succeed in bringing a new international norm to life without the support of the hegemons.76The norm banning land mines was generated crucially by non-state actors and supported by some120 states at the treaty signing conference in December 1997 even though it excluded keypowers including the United States, Russia, and China.77 Having said that, it should be noted thatfor some norms to succeed, it is critical that such norms enjoy the support of some of the world’spowers. In the case of the Land Mines Ban Treaty, for instance, the norm cascaded after securingthe support of France and Britain,78 whereas the norm on the protection of migrant workers andthe members of their family remains weak and ineffective largely because the hegemonic statesneither supported nor ratified it.7974 G. John Ikenberry & Charles A. Kupchan, “Socialization and Hegemonic Power” (1990) 44 InternationalOrganization 283 – 315.75 Ibid.76 Keohane, After Hegemony, supra note 68; Christine Ingebritsen, “Norm Entrepreneurs: Scandinavia’s Role inWorld Politics” (2002) 37:1 Cooperation and Conflict 11 – 23; Adam Bower, Norms Without the Great Powers:International Law and Changing Social Standards in World Politics (Oxford: Oxford University Press, 2017).77 Price, Reversing the Gun Sights, supra note 3 at 630 – 631.78 Ibid at 635.50The "transnational activist networks" account of Keck and Sikkink is well known in internationalrelations literature as a movement for norm change through the domestic and international effortsof activist groups and other norm entrepreneurs who put pressure on states and other actors bothat the local and international levels to support a new norm.80 To generate new norms, domesticgroups who are in support of the norm form a coalition with other groups of similar objectives.The coalition includes non-governmental organizations within or outside their country with theaim of establishing a strong transnational network with the capacity to mount pressure on statesfrom both domestic and international platforms.81 The combination of efforts through thiscoalition results in a "spiral"82 or "cascade"83 endorsement of the norm. By the same token, theability and influence of international organizations,84 non-governmental organizations (NGOs),8579 Ryszard Cholewinski, Paul de Guchteneire, & Antoine Pecoud, eds., Migration and Human Rights: The UnitedNations Convention on Migrant Workers’ Rights (New York: Cambridge University Press, 2009).80 Margaret E. Keck & Kathryn Sikkink, Activists Beyond Borders: Advocacy Networks in International Politics(Ithaca, New York: Cornell University Press, 1998) [Keck & Sikkink, Activists Beyond Borders].81 Alison Brysk, "From Above and Below: Social Movements, the International System and Human Rights inArgentina" (1993) 26:3 Comparative Political Studies 259; Alison Brysk, From Tribal Village to Global Village:International Relations and Indian Rights in Latin America (Stanford: Stanford University Press, 2000).82 Thomas Risse & Kathryn Sikkink, "The Socialization of Human Rights into Domestic Practices: Introduction" inThomas Risse, Stephen C. Ropp & Kathryn Sikkink, eds., The Power of Human Rights: International Norms andDomestic Change (Cambridge: Cambridge University Press, 1999) 1 – 38.83 Finnemore & Sikkink, International Norm Dynamics, supra note 4.84 William Ascher, “New Development Approaches and the Adaptability of International Agencies: The Case of theWorld Bank” (1983) 37 International Organization 415 – 439; Michelle Miller-Adams, The World Bank in the1990s: Understanding Institutional Change (Ph.D Dissertation, Columbia University, New York, 1997)[unpublished]; David Strang & Patricia Mei Yin Change, “The International Labour Organization and the WelfareState: Institutional Effects on National Welfare Spending, 1960 – 1980” (1993) 47 International Organization 235 –262; Simon Rushton, “The UN Secretary-General and Norm Entrepreneurship: Boutros Boutros-Ghali andDemocracy Promotion” (2008) 14:1 Global Governance 95 – 110; Phil Orchard, “The Norm Entrepreneurship of theUnited Nations High Commissioner for Refugees” in Phil Orchard, Right to Flee: Refugees, States, and theConstruction of International Cooperation (Cambridge: Cambridge University Press, 2014) at 173 – 202.85 Keck & Sikkink, Activists Beyond Borders, supra note 80; Ann Marie Clark, Diplomacy of Conscience: AmnestyInternational and Changing Human Rights Norms (Princeton: Princeton University Press, 2001) [Clark, Diplomacyof Conscience].51and prominent societal figures86 in bringing about a new international norm have beenacknowledged in the literature.2.5 Stages of International Norm DevelopmentSandholtz's dispute-driven theory is a robust explanation of the different processes and stages ofnorm change. In addition to Sandholtz’s theory of international norm change, this work has alsobenefitted from other theories of the norm life cycle by Finnemore and Sikkink,87 Ann MarieClark,88 and the more recent approach suggested by Gest et al.89 This section provides asynthesis of these theories as they relate to the subject-matter of this dissertation.Sandholtz launched the first salvo of his dispute-driven theory of international norm change in2007 when he published his work Prohibiting Plunder: How Norms Change.90 In that work, heargued that “international norms evolve as actions trigger disputes about the meaning andapplication of rules.” Sandholtz used the terms “rules” and “norms” interchangeably throughoutthis work arguing that since rules like norms prescribe standards of conduct, they are both thesame. His dispute-driven theory of international norm change stems from the realization of thehuge gap between general rules and specific actions that are exogenous to the general rule.Granted that rules and by extension laws are couched in general language and that there areindeed exceptions (within the conceivable foresight of the makers of the rule) to most general86 Price, Reversing the Gun Sights, supra note 3 at 623; Kenneth Rutherford, “The Evolving Arms Control Agenda:Implications of the Role of NGOs in Banning Antipersonnel Landmines” (2000) 53 World Politics 74 – 114 at 100 –105 & 111 [Rutherford, The Evolving Arms Control Agenda].87 Finnemore & Sikkink, International Norm Dynamics, supra note 4.88 Clark, Diplomacy of Conscience, supra note 85.89 Gest et al, Tracking the Process of International Norm Emergence, supra note 5.52rules, the dynamic nature of human society often leads to unforeseen specific events and actionsthat fall outside the purview of not just the general rule but also its exceptions. When thishappens, arguments are bound to ensue about the meaning and application of the existing rules tothe new social phenomenon leading inevitably to the modification of the existing rules.91Sandholtz's dispute-driven cycle of international norm change builds on the assumption that theprocess of norm change in international society results from the incessant interplay between rulesand events. Since rules and by extension laws are couched in general language, there are boundto be disputes or arguments on the application of the general rule to specific events or issues thatare not contemplated by the general rule. Thus, disputants engage in arguments for and againstwhy the general rule must apply to the particular situation with the aid of precedents andmetanorms. This frictional approach, Sandholtz argued, inevitably leads to the transmutation ofthe general rule thereby paving the way for the emergence, recognition, and acceptance of a newrule. In his words,[t]he cycle begins with the constellation of existing norms which provides the normativestructure within which actors decide what to do, decide how to justify their acts, andevaluate the behaviour of others. Because rules cannot cover every contingency andbecause conflicts among rules are commonplace, actions regularly trigger disputes. Actorsargue about which norms apply and what the norms require or permit. As actors seek toresolve disputes, they reason by analogy, invoke precedents, and give reasons...Theoutcome of such discourses is always to change the norms under dispute...9290 Sandholtz, Prohibiting Plunder, supra note 1.91 Ibid.92 Sandholtz & Stiles, International Norms and Cycles of Change, supra note 24 at 6.53Sandholtz contends that this is the structure of the development of all international norms.Convinced about the general application of this theory, he investigates its utility first to thealmost four centuries-old practice of looting the spoils of war and how the rules prohibiting thispractice evolved.93 Moreover, Sandholtz applies this theory to the evolution of contemporaryinternational norms on piracy, conquest, terrorism, extraterritoriality, slavery, genocide, refugeesand asylum, humanitarian intervention, and the emerging right to democracy.94 Sandholtz teasesout four developmental phases for his theory – the existing normative context, the event or actionthat triggers a normative dispute, the ensuing arguments, and the resulting modification ofinternational rules. In what follows, I will analyze each of these stages in the context of the 1951Refugee Convention,95 its 1967 protocol96 and their relationship or application to the cross-border disaster displacement conundrum.2.5.1 The Existing RuleWhile Sandholtz illustrates this initial phase with a proverbial rational maximizer who mustengage in reasoning about social norms to estimate expected payoffs, the gist of this phase isabout how actors who are familiar with the existing societal normative rules as well as thestandards for interpreting and applying them relate to the rules by ensuring that their acts andomissions do not run afoul of the rules. At the time of the adoption of the 1951 RefugeeConvention and its 1967 Protocol, states had an understanding of the purpose of these legal93 Sandholtz, Prohibiting Plunder, supra note 1.94 Sandholtz & Stiles, International Norms and Cycles of Change, supra note 24.95 The 1951 Convention Relating to the Status of Refugees, 28 July 1951, 189 U.N.T.S. 150 (entered into force 22April 1954) [1951 Refugee Convention].96 The 1967 Protocol Relating to the Status of Refugees, 31 January 1967, 606 U.N.T.S. 267 (entered into force 4October 1967) [1967 Protocol].54documents and the consequent legal obligations that these treaties imposed on them.97 While thepurpose of the 1951 Refugee Convention is to define who is a refugee, their rights and the legalobligations of states towards them, the 1967 Protocol was adopted to remove the geographicaland temporal limitations of the 1951 Refugee Convention.98 With this understanding, states thatratified these instruments did not only make a commitment to implement them, but most of themalso took steps to internalize these rules by reflecting them in their local immigration, refugee,and asylum law.99Ratifying states are thus bound by the international refugee rules making the refugee conventionand its protocol the international basis for determining how states treat refugees arriving at theirborder. Any state that refuses to welcome refugees as was recently the case with Syrian refugeesin some parts of Europe risks incurring international outcry and open condemnation.100 Statesand other international actors are in agreement that the refugee convention and its protocol are97 The Preambles to the 1951 Refugee Convention and the 1967 Protocol; See also the Travaux Préparatoires to the1951 Refugee Convention analysed with Commentary by Dr. Paul Weis, online:<http://www.unhcr.org/4ca34be29.html>.98 Guy S. Goodwin-Gill & Jane McAdam, The Refugee in International Law, 3rd ed. (New York: Oxford UniversityPress, 2007).99 Agnès Hurwitz, The Collective Responsibility of States to Protect Refugees (Oxford: Oxford University Press,2009).100 Jack Redden, “UNHCR urges Europe to do more to help Syrian Refugees” UNHCR (11 July 2014)<http://www.unhcr.org/news/latest/2014/7/53bfcd969/unhcr-urges-europe-to-help-syrian-refugees.html>; MelissaFleming & Jonathan Clayton, “UNHCR Urges Humane Treatment for Refugees, Urges Collective Action on Issue”UNHCR (25 August 2015) <http://www.unhcr.org/news/latest/2015/8/55dc749d6/unhcr-urges-humane-treatment-refugees-urges-collective-action-issue.html>; Catholic Online, “Europe’s Shame: Fifty Migrants Drown in ThreeDays in Refugee Ships enroute to Greece” Catholic (1 November 2015), online: Catholic.Org<http://www.catholic.org/news/international/europe/story.php?id=65099>; Simon Israel, “Syria Refugees: FormerJudges Condemn Government Response” Channel 4 News (12 October 2015), online: Channel 4 News<http://blogs.channel4.com/simon-israel-home-affairs/migrants-judges-condemn-government-response/1377>;International Committee of the Fourth International (ICFI), “Demonstrators Condemn Brutal Treatment of Refugeesin Berlin, Germany” World Socialist Web Site (21 October 2015), online: WSWS.Org<https://www.wsws.org/en/articles/2015/10/21/demo-o21.html>.55the existing governing rules on refugee and asylum issues.101 This is amplified by the fact that asat April 2015, 145 states are parties to the 1951 Refugee Convention, 146 states are parties to the1967 Protocol, and 142 states, including major powers like Japan and Russia are parties to boththe 1951 Refugee Convention as well as to its 1967 Protocol.102 Indeed, 148 states are parties toone or both of these instruments as at April 2015.103 Essentially, these legal documents have notonly influenced the identities and preferences of states and other global actors on refugee andasylum issues but have also shaped their choices.2.5.2 The Dispute or the Triggering EventBecause of the impossibility of foreseeing all conceivable situations when formulating a societalrule, rule makers are not capable of creating a rule that would fit all future situations and actions.Thus, disputes are bound to ensue between actors when a situation, conduct or omission arisesthat is outside the contemplation of the rule makers and by implication falling beyond the scopeof the extant rule.104 Sandholtz argues that norms by their nature generate disputes. He identifiestwo important features of rules that make their immediate or future disputation unavoidable –“internal contradictions” and “incompleteness”. On internal contradictions, he uses the exampleof how the right to freedom of expression may clash with the right to be protected from libelous101 This is not to say that the refugee norm is not contested as the account by Philip Orchard reveals in Phil Orchard,Right to Flee: Refugees, States, and the Construction of International Cooperation (Cambridge: CambridgeUniversity Press, 2014). Suffice it to say that almost all norms are contested one way or the other. However, thefocus of this research is not on the contestation of the 1951 Refugee Convention as well as its 1967 Protocol. Rather,it is on the fact that the refugee convention and its protocol emerged as norms, cascaded and were internalised byStates as reflected in the immigration and refugee law of most countries that are signatories to these instruments.102 United Nations High Commissioner for Refugees, States Parties to the 1951 Convention relating to the Status ofRefugees and the 1967 Protocol, online: UNHCR <http://www.unhcr.org/protection/basic/3b73b0d63/states-parties-1951-convention-its-1967-protocol.html>.103 Ibid.104 Sandholtz, Prohibiting Plunder, supra note 1.56publications and slander and how humanitarian intervention or the responsibility to protectviolates the UN Charter principle that forbids states from interfering in the domestic affairs ofanother state.105 Legal disputes arose when a law seeking to prevent the exploitation ofprostitutes clashed with prostitutes’ right to personal liberty and the dignity of the humanperson.106 Disputes also arose when a law proscribing the drawing and possession of childpornography collided with the right to freedom of expression.107 And so was the case when theright to freedom of religion crashed into the norm on sexual orientation.108On incompleteness, Sandholtz argues that “no system of rules can be complete, in the sense thatrules cannot spell out the behavioural requirements for every situation, nor can they foresee allpossible circumstances or disagreements.” Continuing further, he reasons that while some acts orconducts would constitute a clear violation of a rule and seen as such by the majority of themembers of the society, some other acts or conducts are borderline in that whether or not theyviolate the rule is debatable. It is this “debate” that constitutes Sandholtz’s second phase of thenorm life cycle. Going back to my analysis of the 1951 Refugee Convention and its 1967Protocol, the phenomenon of the people displaced across international borders by climate changeand disasters revealed the “incompleteness” of these legal documents.109 The refugee treatiesbeing products of post-war Europe do not contemplate cross-border displacement by disasters105 Charter of the United Nations, 26 June 1945, Can. T.S. 1945 No. 7, art. 2(4).106 Canada (Attorney General) v. Bedford, 2013 SCC 72, [2013] 3 S.C.R. 1101.107 R. v. Sharpe, [2001] 1 S.C.R. 45.108 Vriend v. Alberta, [1998] 1 S.C.R. 493.109 Jane McAdam, Climate Change, Forced Migration, and International Law (New York: Oxford University Press,2012) [McAdam, Climate Migration and International Law].57including the effects of climate change.110 Notwithstanding this fact, the issue is not asstraightforward as that as several commentators have argued for and against the question whetherthe 1951 Refugee Convention protects cross-border disaster-displaced persons.111Sandholtz believes that certain occurrences in international society trigger disputes among globalactors about the scope, meaning and application of extant rules. He identifies the outbreak ofwar, major technological advancements and innovations, and major political revolutions asinstances of these occurrences.112 Whenever these occurrences happen and depending on theirscale and significance, they often provoke new questions and arguments about the applicabilityor otherwise of existing rules. Looking at the case of war for example, the anti-plunder normdeveloped through a process of dispute and argumentation on the propriety and the continued useof the age-long norm which encouraged and promoted the looting of the spoils of war by theconqueror.113 One major omission on Sandholtz’s list of occurrences likely to trigger a normativedispute is climate change. Climate change is already having a significant impact on ecosystems,110 This is evident from the definition of refugees in article 1A of the 1951 Refugee Convention which does not covercross-border environmental or climate change displacement. Moreover, there is no mention of climate change orenvironmental disaster as a current or future driver of forced migration to which the 1951 Refugee Convention couldapply in the Travaux Préparatoires of the 1951 Refugee Convention. See also Walter Kalin, “ConceptualisingClimate-Induced Displacement” in Jane McAdam, ed., Climate Change and Displacement: MultidisciplinaryPerspectives (Oxford: Hart Publishing, 2010) 81 – 103 at 88.111 For those that argued for, see Jessica Cooper, “Environmental Refugees: Meeting the Requirements of theRefugee Convention” (1998) 6 New York University Environmental Law Journal 480 – 529; Christopher M. Kozoll,“Poisoning the Well: Persecution, the Environment, and Refugee Status” (2004) 15 Colorado Journal ofInternational Environmental Law and Policy 271 - 307. For those that argued against, see Christel Cournil, "TheProtection of 'Environmental Refugees' in International Law" in Etienne Piguet, Antoine Pecoud & Paul deGuchteneire, eds., Migration and Climate Change (Cambridge: Cambridge University Press, 2011) 359 – 387;McAdam, Climate Migration and International Law, supra note 109. Note however that the views shared by mostauthoritative international refugee scholars, and which I agree with is that cross-border disaster-displaced personsare not “refugees” within the meaning of that term in the 1951 Refugee Convention. Thus, they are neithercontemplated nor protected by this treaty and its protocol.112 Sandholtz & Stiles, International Norms and Cycles of Change, supra note 24 at 11.113 Sandholtz, Prohibiting Plunder, supra note 1.58economies, and communities.114 Perhaps, the greatest single impact of global climate change ison human mobility thereby provoking argumentation on the traditional understanding and rule onforced displacement and ultimately altering this understanding and rule.1152.5.3 Arguments, Precedents, and Ethical ConsiderationOnce a dispute arises due to a specific action, occurrence or triggering event with respect to thescope and application of an existing rule, Sandholtz argues that the norm life cycle enters a newphase – a phase where advocates of a new norm and the defenders of the status quo engage inargumentative normative reasoning by drawing from previous instances known in legal circles asprecedents to back up their respective claims.116 Additionally, these actors also bolster theirarguments by alluding to ethical considerations and practices.117 At this stage, the advocacy andpersuasive abilities of norm entrepreneurs are crucial. This is the stage where the strategies ofother norm scholars like framing, grafting and proselytization by celebrities and other importantsocietal figures can be harnessed by norm entrepreneurs to generate international awarenessaround the fledgling norm. At this stage, the ultimate goal of those promoting the new norm is tosecure the consensus of states and other actors. Consensus is key in the formulation of a newinternational norm as upon it lies the basis for international law.118114 Nicholas H. Stern, The Economics of Climate Change: The Stern Review (New York: Cambridge UniversityPress, 2007).115 Kirsten Hastrup & Karen Fog Olwig, eds., Climate Change and Human Mobility: Global Challenges to theSocial Sciences (New York: Cambridge University Press, 2012).116 Sandholtz & Stiles, International Norms and Cycles of Change, supra note 24 at 331 – 332.117 Ibid at 15 – 19.118 S.S. Lotus case (France v. Turkey) (1927) P.C.I.J. (Ser. A) No. 10 at 18.59Sandholtz’s third stage of the norm life cycle is similar in substance to some of the propositionsby other norm scholars. Ann Marie Clark, like Sandholtz, has developed four stages ofinternational norm development in the context of torture, disappearances, and extrajudicialexecutions.119 Focusing on the pivotal role of Amnesty International and other NGOs in thedevelopment of international human rights norms, Clark identifies the following phases for theemergence of human rights norms: fact finding, consensus building, principled normconstruction, and norm application. Under the “fact finding” and “consensus building” stages ofthe norm life cycle, information gathering and interpretation of facts are critical to the process ofnorm emergence.120 Here, NGOs or other advocates of new norm identify specific human rightsviolations highlighting the limitation of the current applicable norm and setting the stage for anuanced reaction or debate among actors on these issues. Once information about a specifichuman rights violation is readily available, Clark argues that the consensus building phase wouldbe triggered. Essentially this stage involves a realization by the new norm advocates orentrepreneurs and the defenders of the status quo that the old norm has outlived its usefulnessand that a new norm should be formulated for a better protection framework.121 The majormechanisms needed for this phase of the norm life cycle according to Clark are publication anddiscussion of the available information. And this is reasonable since consensus among therelevant stakeholders and actors cannot be achieved without a clear understanding of the issuesthrough the availability of the relevant information followed by rounds of discussion entailingquestioning and clarifications.119 Clark, Diplomacy of Conscience, supra note 85.60Finnemore and Sikkink argue that two factors are important for a successful development of anew norm. These factors are norm entrepreneurs and an organizational platform. Normentrepreneurs, as hinted earlier, are agents or promoters who are willing to stick out their necksin condemning an existing state of affairs in an issue area and in turn offering or suggesting abetter alternative. Norm entrepreneurs, they argue, can succeed in achieving their objectives byusing persuasion as their major tool and also by “framing” or re-framing the issues involved soas to resonate with broader public feeling and sensibility. They recount how “suffragetteschained themselves to fences, went on hunger strikes, broke windows of government buildings,and refused to pay taxes as ways of protesting their exclusion from political participation.”122Price also recounts how transnational activists campaigning for the ban on anti-personnel landmines in the 1990s adopted a variety of attention-seeking strategies to attract both local andinternational audiences including the “placing of mountains of shoes on legislative grounds tosymbolize those who no longer need footwear.”123The “framing” strategy has been used by a number of actors in bringing cross-borderenvironmental displacement to the international limelight. It would be recalled that as far back asthe 80s, Essam El-Hinnawi while writing on environmental disasters and the huge number of thepopulation likely to be displaced within and across international borders chose to refer to thedisplaced populations as “environmental refugees”.124 Norman Myers in sustaining this public120 Ibid at 32 – 33.121 Ibid at 33 – 34.122 Finnemore & Sikkink, International Norm Dynamics, supra note 4 at 897.123 Price, Reversing the Gun Sights, supra note 3 at 618.124 Essam El-Hinnawi, Environmental Refugees (New York: UN Environmental Programme, 1985) [El-Hinnawi,Environmental Refugees].61perception of the population being displaced and who will be displaced by climate change andenvironmental impact continued to use this terminology to describe them.125 This descriptionwas strategic as it made the phenomenon of a mass exodus of persons on account of climatechange and environmental disasters to resonate with the international public. The decision ofPresident Mohammed Nasheed of the Maldives to hold his cabinet’s meeting underwater in 2009was also a framing strategy on climate change, disasters, and human mobility.126 Other framingstrategies have also been adopted such as displaying photos of homes and communities, andpersons driving cars or riding bicycles who are almost submerged by water127 or calculating thetime per seconds within which some persons are being displaced by disasters and otherenvironmental hazards.128 There is an account in chapter 4 which analyses how the NansenInitiative successfully deployed framing as a norm development technique to secure theconsensus of states on cross-border disaster displacement.125 Norman Myers, “Environmental Refugees in a Globally Warmed World” (1993) 43 BioScience 752; NormanMyers & Jennifer Kent, Environmental Exodus: An Emergent Crisis in the Global Arena (Washington DC: TheClimate Institute, 1995); Norman Myers, “Environmentally-Induced Displacements: The State of the Art” inIOM/UNHCR, Environmentally-Induced Population Displacements and Environmental Impacts Resulting fromMass Migration (Geneva: IOM/UNHCR International Symposium, 1996); Norman Myers, “EnvironmentalRefugees” (1997) 19 Population and Environment 167; Norman Myers, “Environmental Refugees: A GrowingPhenomenon of the 21st Century” (2002) 357 Philosophical Transactions of the Royal Society: Biological Sciences609; Norman Myers, “Environmental Refugees: An Emergent Security Issue” A paper presented at the 13thEconomic Forum, Prague, on May 23 – 27, 2005.126 Mail Foreign Service, “Maldives Government Highlights the Impact of Climate Change…by MeetingUnderwater”, Mail Online (20 October 2009), online: The Daily Mail <http://www.dailymail.co.uk/news/article-1221021/Maldives-underwater-cabinet-meeting-held-highlight-impact-climate-change.html>.127 The Nansen Initiative on Disaster-Induced Cross-Border Displacement Websites at<https://www.nanseninitiative.org/>.128 The presentation by Professor Walter Kaelin during the Global Consultations of the Nansen Initiative onDisaster-Induced Cross-Border Displacement in Geneva, Switzerland on October 12, 2015, available on file; Thetweets by Professor Jane McAdam on Twitter on October 12, 2015 available online at<https://twitter.com/profjmcadam/status/653492828916453376>.62Finnemore and Sikkink argue further that promoters of norms need some sort of organizationalplatform to advance the cause of their campaign. They argue that this platform could be alreadyexisting or established specifically for the purpose of promoting the norm.129 Since normentrepreneurs generally but not always target states as the principal norm obligation holders, theavailability of institutional platforms like the United Nations (UN), and the World Bank isessential as a rallying point for securing the attention and support of states on the fledgling norm,and to facilitate its socialization and internalization.130 Finnemore and Sikkink also argue thatorganizational platform is critical for an emergent norm to reach a threshold and move towardnorm cascade though they caution that the institutionalization of a fledgling norm in internationalrules and organization is not a necessary condition for the norm to cascade. They argue that insome situations institutionalization may occur after a norm cascade.131In a recent account of how international norms emerge in the context of six separate internationalnorm agendas,132 Gest et al identify six stages of international norm development.133 Stages 1 to4 of this account echoes the views which Sandholtz expressed in his theory on the need forargument, persuasion, and advocacy around a fledgling norm. Stage 1 is the “agenda setting129 Finnemore & Sikkink, International Norm Dynamics, supra note 4 at 899.130 Ibid at 900.131 Ibid.132 These international norm agendas are the UN Guiding Principles on Internal Displacement; the InternationalLabour Organization Declaration on Fundamental Principles and Rights at Work, 18 June 1998, 37 I.L.M 1233[ILO 1998 Declaration]; the International Convention on the Protection of the Rights of All Migrant Workers andMembers of Their Families, 18 December 1990, A/RES/45/158 (entered into force 1 July 2003) [Migrant WorkersConvention]; the Convention on the Rights of Persons with Disabilities, A/RES/61/106 and Optional Protocol to theConvention on the Rights of Persons with Disabilities, A/RES/61/106, Annex II [CRPD]; the Optional Protocol tothe Convention on the Elimination of All Forms of Discrimination Against Women, 10 December 1999, 2131U.N.T.S. 83 (entered into force 22 December 2000) [CEDAW]; and the Convention on the Prohibition of the Use,Stockpiling, Production and Transfer of Anti-Personnel Mines and on Their Destruction, 3 December 1997, 2056U.N.T.S. 211 (entered into force 1 March 1999) [Mine Ban Treaty].63stage”. This is where the publicity or awareness around the norm being promoted is managed.What the authors describe under this stage aligns with what Finnemore and Sikkink term“framing” the issue so it could attract public attention.134 For those international norm agendasthat did not require public awareness in their formative stages such as the ILO 1998 Declarationand the Migrant Workers Convention, the authors suggest that these agendas gained tractionthrough diplomatic and institutional influences. The problematization of the rights at work whichled to the formulation of the ILO 1998 Declaration, they say, was achieved through aninstitutional consolidation of support at an international and intergovernmental levels. Theyargue that the campaign for the Migrant Workers Convention was driven largely by diplomatsfrom major migrant-worker-sending states who were interested in articulating a new UN-basedprotection framework for migrant workers following their dissatisfaction with the ILOframeworks on the issue.135Stage 2 is what the authors classify as “consolidation of support”. The authors argue that themost significant hurdle for nascent norm creation efforts is the challenge of moving from theagenda setting stage to building greater support for that agenda.136 To surmount this challenge,the authors emphasize the role of conferences as effective platforms for norm entrepreneurs toclearly articulate their ideas and seek the support of states and other actors for the emergingnorm. The authors make copious references to several local and international conferences thatwere instrumental in promoting all the six identified international norm agendas and how these133 Gest et al, Tracking the Process of International Norm Emergence, supra note 5.134 Finnemore & Sikkink, International Norm Dynamics, supra note 4 at 897.135 Gest et al, Tracking the Process of International Norm Emergence, supra note 5 at 163.136 Ibid at 162.64conferences enhanced the support of states and other relevant actors for these internationalnorms.137Stage 3 is the “institutional approach”. In addition to the need for conferences as a supportmechanism for a budding norm agenda, there is also the need for an organizational platformupon which norm promoters, states, and other actors can initiate negotiation processes for theformalization of the fledgling norm. While the authors identify this as the third phase in the lifeof the budding norm, they also suggest that this phase could happen early enough to pre-empt thepublic awareness phase. The authors distinguish the institutional approach stage from the“institutionalization” requirement suggested by Finnemore and Sikkink.138 They contend that theprocess of institutionalization identified by Finnemore and Sikkink is a potential mechanism forthe ultimate internalization of a norm that marks the final stage of a norm’s life cycle. However,they argue that their “institutional approach” only addresses the need for an organizational homewhere new norm advocates and the defenders of the status quo including states and otherrelevant stakeholders can negotiate the rules and principles governing the new norm. Though notmentioned by the authors, I am also of the view that the authors’ use of the phrase“organizational platforms” does not bear the same connotation with the way that phrase has beenused by Finnemore and Sikkink. While Finnemore and Sikkink used it as meaning that all normentrepreneurs should have an organizational platform for promoting an emergent norm, theauthors used it as a platform for negotiating the formalization of an emergent norm in the formof a declaration or a treaty.137 Ibid at 164 – 166.65After institutional approach comes “negotiation” which is the fourth stage in the norm evolutionprocess by Gest et al. Here, the authors explore the various negotiation strategies that normentrepreneurs could adopt to checkmate states’ sovereignty-based resistance to the adoption andassimilation of a new international norm. In particular, the authors identify the potency of themoral urgency of the issue which the fledgling norm seeks to address as well as the simplicity ofthe adoption of the new norm as factors which may persuade states and other actors in giving thenew norm a second thought. States are also concerned about their international perception orreputation in the community of nations. Since no state prefers to be labeled as a lawbreaker,human rights violator or a non-conformist, the authors argue that these are some of thesentiments that norm entrepreneurs could capitalize on to get states to fully support the normagenda.139Relating this sub-section to cross-border disaster displacement, I argue that the Nansen Initiativeeffectively managed the argument stage on the need to recognize and protect the populationdisplaced by climate change and disasters. This is the “platform” initiated by the United NationsHigh Commissioner for Refugees (“UNHCR”) and led from 2012 – 2015 by the governments ofSwitzerland and Norway. It would seem like all other fora of argumentation on the recognitionand protection of cross-border disaster-displaced persons ranging from the publication of journalarticles and texts to the holding of several local and international conferences on this issue weresuperseded by the Nansen Initiative. Since its establishment in 2012, the Nansen Initiative138 Finnemore & Sikkink, International Norm Dynamics, supra note 4.66sustained the arguments and campaign for the recognition and protection of the populationsdisplaced across international borders by disasters including the effect of climate change. TheInitiative achieved this by traversing regions and learning about this issue and citing precedentsto states with the aim of creating a global consensus on the issue as a platform for creating a newprotection norm.As already indicated, persuasion and arguments are the principal weapons that normentrepreneurs use during this stage.140 The role of arguments as a powerful tool for actuatingsocietal change has been recognized in the literature.141 However, Sandholtz cautions thatarguments that are most useful to norm entrepreneurs must be by analogy and must be consistent.He also contends that norm entrepreneurs’ “winning arguments” must be grounded infoundational metanorms of universality, equality, and individual dignity, and must be supportedby most of the world’s leading powers.142 Moreover, he emphasizes the quantity, quality andrecency of precedents in securing the support of states and other actors for a new norm.143 TheNansen Initiative adopted all of these strategies, and as would be seen in chapter 4 of thisdissertation, they account for the success of the Initiative.139 See also Rutherford, The Evolving Arms Control Agenda, supra note 86 at 104.140 Sandholtz, Prohibiting Plunder, supra note 1 at 14 – 23.141 Neta Crawford, Argument and Change in World Politics: Ethics, Decolonization and Humanitarian Intervention(New York: Cambridge University Press, 2002).142 Sandholtz & Stiles, International Norms and Cycles of Change, supra note 24 at 15 – 17.143 Ibid at 17 – 18.672.5.4 Rule ChangeA necessary consequence of arguments and persuasion, Sandholtz argues, is a mutation of therules. This could take the form of alteration to the existing rule or an outright creation of a newrule. Whichever way an argument goes on the scope, meaning, and application of an existinginternational norm, change to the extant rule is the only constant factor. In the words ofSandholtz, “the outcomes of arguments inevitably modify the rules. The rule may become moreclear or less, more specific or less, more qualified by exceptions or less, but it cannot remainunchanged.”144 This is what Clark puts forward as the third phase of her theory on internationalnorm emergence.145 Clark refers to this stage as “principled norm construction” arguing that itentails the formulation or drafting of legal rules and principles embodying the concepts of “right”and “wrong” for regulating the behaviour of states and other actors in the specific issue area.146This stage involves complex negotiations and lobbying between NGOs and other normentrepreneurs and states with respect not only to the conceptual and contextual meaning to beascribed to the specific human rights problem but also on the scope and contents of theobligation that would be imposed on states and other actors for the actualization of the newprotection agenda. During this stage, Clark emphasizes the importance of mastery of humanrights principles and legal drafting skills. She also advises Amnesty International and otheradvocacy groups participating at this stage of the norm evolution to “remain wary of the ways inwhich human rights rhetoric may be manipulated for political purposes.”147144 Sandholtz, Prohibiting Plunder, supra note 1 at 20.145 Clark, Diplomacy of Conscience, supra note 85.146 Ibid at 34 – 35.147 Ibid at 35.68During this stage in the norm life cycle, norm entrepreneurs must also adopt strategies andmechanisms which could foster the reception and acceptance of the newly formulated norms bystates and other actors. As part of Gest et al’s negotiation stage of the norm life cycle, the authorsidentify other negotiation tools such as the availability of “opt-out provisos or watered downobligations” in treaty documents.148 They cite the example of the Migrant Workers Conventionwhere most of the absolute rights and obligation provisions melted into advisory orrecommendatory provisions during the negotiation stage so as to make the Migrant WorkersConvention more attractive to states. They also mentioned the example of the CEDAW OptionalProtocol where an opt-out clause was inserted in article 10 thereof as a way of appeasing stateswho were opposed to an inquiry procedure as demanded by the treaty. More useful negotiationtools, according to the authors, include shunning naming and shaming where necessary in favourof the development of a more cordial working relationship with the government andrepresentatives of the “worst-offending” states as was demonstrated by Francis Deng in hisdealing with Sudan on the need for that state to accept and domesticate the UN GuidingPrinciples on Internal Displacement.149An international norm agenda could also opt for a restatement of the existing legal standardsrather than creating new ones as a way of allaying the fears and reluctance of states towards newlegal standards.150 Additionally, states’ reluctance in recent times at taking on new binding legalobligations might inform the decision of norm entrepreneurs to call for the adoption of a non-binding legal instrument in the form of a declaration, principles, or policy as a way of148 Gest et al, Tracking the Process of International Norm Emergence, supra note 5.69formalizing an international norm agenda. Experience has shown, particularly concerning theUniversal Declaration of Human Rights and the UN Guiding Principles on Internal Displacementthat soft legal instruments are capable of entrenching a strong normative framework in a specificissue area just like treaty law.151Relating this sub-section to the problem of cross-border disaster displacement, I argue that theoutcome of the Nansen Initiative’s three-year campaign and consensus building on cross-borderdisaster displacement has culminated in the formulation and endorsement of the ProtectionAgenda by at least 109 states. Though persuasive and not binding, the Protection Agenda isarguably a new protection norm for cross-border disaster-displaced persons.152 According to thetheory of Finnemore and Sikkink therefore, a new norm has emerged thus fulfilling their firststage of the norm life cycle – norm emergence.After a norm is negotiated and formulated, the next stage is for the norm to be endorsed oradopted as the case may be and for states and other stakeholders to pledge their commitments in149 Ibid at 169.150 Ibid.151 Egon Schwelb, “The Influence of the Universal Declaration of Human Rights on International and National Law”(1959) 53 Diverse Systems of World Public Order Today 217 – 229; John Dugard, “The Influence of the UniversalDeclaration as Law” (2009) 24:1 Maryland Journal of International Law 85 – 93; Tom Obokata & Rory O’Connell,“Ambition, Achievement and Potential: The UK and the Universal Declaration of Human Rights at Sixty” (2010)14:3 The International Journal of Human Rights 394 – 406; Marco Odello & Sofia Cavandoli, eds., Emerging Areasof Human Rights in the 21st Century: The Role of the Universal Declaration of Human Rights (London: RoutledgeTaylor & Francis Group, 2011); Roberta Cohen, “The Guiding Principles on Internal Displacement: An Innovationin International Standard Setting” (2004) 10 Global Governance 459 – 480; Hannah Entwisle, “Tracing Cascades:The Normative Development of the UN Guiding Principles on Internal Displacement” (2005) 19:3 GeorgetownImmigration Law Journal 369 – 390; Simon Bagshaw, Developing a Normative Framework for the Protection ofInternally Displaced Persons (Leiden: Brill Academic Publishing, 2005); Phil Orchard, “Protection of InternallyDisplaced Persons: Soft Law as a Norm-Generating Mechanism” (2010) 36:2 Review of International Studies 281 –303.152 For a fuller analysis of this argument, see Chapter 5.70applying and implementing it.153 Gest et al note that this endorsement does not necessarily implythat the norm will be internalized and implemented citing the example of treaties which requireratification and possibly domestication for the norm to attain the full force of law at the nationallevel. However, adopting or signing a treaty or other legal instruments does carry a duty of goodfaith from the adopting or signing state – a soft obligation not to engage in acts or omissions thatnegate the letter and the spirit of the legal instrument codifying the new norm.154Finnemore and Sikkink’s theory of the norm life cycle involves three stages – norm emergencewhich occurs when a new norm is formulated as theorized by Sandholtz, norm cascade, andnorm internalization. Between norm emergence and norm cascade lies a threshold or what theytermed “tipping point”, which is the point at which critical mass of relevant state actors endorsethe norm. “Relevant state actors” means those states whose conducts or practices would beprincipally affected or curtailed by the new norm. In the words of Finnemore and Sikkink,relevant state actors, or “critical states” as they termed it “are those without which theachievement of the substantive norm goal is compromised.”155 The campaign by transnationalactivist networks against the deployment of landmines as a weapon of warfare reached a newheight when it was supported by countries considered to be producing and or using theseweapons such as France and Britain but also states whose people were the primary victims oflandmines such as Mozambique and Cambodia and others.156 Thus, where for example a newnorm such as the Protection Agenda seeks to protect persons moving across borders as a result of153 Gest et al, Tracking the Process of International Norm Emergence, supra note 5.154 Ibid at 171.155 Finnemore & Sikkink, International Norm Dynamics, supra note 4 at 901.156 Price, Reversing the Gun Sights, supra note 3.71disaster and the deleterious effects of climate change, the relevant state actors in this regardwould be less of the states of origin of the displaced persons but more of destination countries.Following from the thesis of Finnemore and Sikkink on this issue, therefore, one may concludethat such a norm has the proclivity to cascade at the point where a critical mass of destinationcountries adopts it. It is arguable that the Protection Agenda not only reached a tipping pointduring its public presentation in October 2015 in Geneva when some notable destinationcountries endorsed it but also cascaded with over 100 countries openly endorsing it.How do we know when a norm tips? Finnemore and Sikkink offer useful insights. They maintainthat a norm reaches a tipping point when it is supported by at least one-third of the total numberof states in the system. This position has not been challenged in the literature and to that extentremains reliable until the contrary is established. In strengthening their view, they allude to treatyprovisions that require that the treaties would not come into force except and until a specifiednumber of countries ratify it. They argue that these treaty provisions specifying the number ofcountries that must ratify them before they receive the force of law “may be a useful proxy forthe critical mass necessary to say that a norm exists.”157 Once a norm tips, it heads towardscascade. At this stage, there is a bandwagon effect leading more states to endorse the norm evenwithout local or international pressure as was the case with the Protection Agenda. Whereas thetool for attaining the first stage of the norm life cycle is persuasion, the major tool for achievingthe second stage is international socialization comprising emulation, praise, and ridicule.158Finnemore and Sikkink rephrase these factors in the context of international politics as157 Finnemore & Sikkink, International Norm Dynamics, supra note 4 at 901.72“diplomatic praise or censure, either bilateral or multilateral, which is reinforced by materialsanctions and incentives.” They argue that in addition to states other norm entrepreneurs such asinternational organizations and NGOs act as agents of socialization for the completeinternalization of norms.When a norm tips and cascades, how do norm entrepreneurs ensure that adopted norms areimplemented or enforced by states and other actors? This is the preoccupation of thecommitment stage which is the last stage of the norm life cycle as propounded by Gest et al.According to them, the commitment stage involves systematic steps to ensure that the newlyadopted norm is not only internalized through domestic legislation but also implemented. Clarkalso discussed “applying new norms to ongoing cases that challenge principles.”159 Efforts ofnorm entrepreneurs, including those of Amnesty International and other NGOs, will amount tonothing if formalized international norms are not applied. Perhaps this is the most important ofall stages of norm development whether as formulated by Clark or some other norm scholars.The role and influence of Amnesty International and other NGOs become particularly necessaryduring this phase for sustaining the activism and campaigns around the new international norm,monitoring states’ compliance and efforts at internalization, and naming and shaming errantstates and other actors. Although Clark’s four-phased theory of international norm developmentwas tested and applied to the evolution of international norms on disappearances, torture, andpolitical killings, it is undoubtedly applicable to other spheres of international relations wherenorms have emerged. To say that the utility of this theory to other fledgling norm area or extant158 Kenneth Waltz, Theory of International Politics (Reading, Mass: Addison-Wesley, 1979) cited by Finnemore &Sikkink, International Norm Dynamics, supra note 4.73norms is limited, as argued by some authors,160 simply because the theory uses disappearances,torture, and extrajudicial executions as case studies undermines the theory’s ability to explain ina general sense how norms grow.In addition, Finnemore and Sikkink suggest that norm cascade precedes norminternationalization which is their last stage of the norm life cycle. A norm becomes internalizedwhen such a norm becomes widely accepted to the extent that conformity with it is almost “takenfor granted” or “automatic”. At this point, states do not only ratify or endorse the instrumentformalizing the norm but also take a conscious effort to enact local legislations that would givelegal effect to the norm and ensure compliance. They suggest that professional training, as wellas iterated behaviour and habit, are powerful mechanisms contributing to the universalinternalization of norms. Perhaps what is most important about this account of the norm lifecycle and which should be noted is that not a