A. Introduction
“These … are not the migrants in search of a better life who hope to send money and perhaps return to the family left behind. These are people in search of bare life, with no home to return to.”Footnote 1
This is how Saskia Sassen identifies a new type of migration that has evolved in response to the massive loss of habitat. She thus puts her finger on a crucial problem that will become more pronounced in the coming decades: The progressive uninhabitability of certain territories. While she attributes it primarily to “international development policies [that] have left much land dead … and have expelled whole communities from their habitats,”Footnote 2 the same is true for climate change, which she indeed stresses “further reduces livable ground.”Footnote 3
The issue is glaring, and it is no surprise that legal scholars have tried to find solutions in the law to accommodate those fleeing from their deteriorating environment.Footnote 4 My research takes the opposite tack, however, as such a palliative approach does not seem to be the only or even the most appropriate way to address the issue when the adverse effects of climate change are already known to some extent.Footnote 5 Instead of examining how the law can protect people who have already fled to another country to escape environmental deterioration, I therefore investigate whether the law encourages states to resort to mobility in anticipation of the need to protect people who are or will soon be experiencing severe deterioration of their environment. Indeed, mobility has been, and is, used everywhere and at all times to adapt to changes, including those that are occurring in the environment with the changing climate. The choice of the term “mobility” is not accidental in this respect, as it is less fraught than the term “migration.” It captures the diversity of movement—in terms of form, timing, and destination—and raises the question of “mobility justice.”Footnote 6 Mobility is a more general term that allows us to understand that the categorization of movements is neither immutable nor static, and that beyond their concrete reality, movements can have an impact on the collective imagination.Footnote 7
Coastal areas facing sea level rise are the prototypical example of places where the need to anticipate the adverse impacts of a deteriorating environment and to preemptively address those impacts becomes acute. The International Panel on Climate Change states that “[i]t is virtually certain that global mean sea level will continue to rise over the 21st century,”Footnote 8 adding with a high degree of confidence that “it would take several centuries to millennia for global mean sea level to reverse course even under large net negative CO2 emissions.”Footnote 9 The phenomenon of sea level rise therefore introduces the idea of the inevitable loss of land, making the question of preemptive measures, especially mobility, even more salient. Yet despite the obvious urgency of the issue, current developments along the world’s coastlines are moving in the opposite direction. Coastal areas continue to attract investment and are home to a growing population, even though they are already densely populated.Footnote 10 The Organization for Economic Cooperation and Development counts more than three billion people living within sixty kilometers of the coast.Footnote 11 While coastal areas are among the most vulnerable, they are also among the most attractive, creating an attachment to the land—both economic and emotional—that must be considered before promoting mobility as an option.
This is precisely why I turn to anthropology. Choosing how to adapt to climate change is not simply a technical question, but a profound societal choice.Footnote 12 Mobility, in particular, has significant human and social implications. Anthropology, through its favored method—that is, long-term, immersive fieldwork—allows the researcher to reach out where the question arises and to explore how the human factor intervenes. How does the question play out in concrete situations? And where does the law fit in? I have therefore identified three coastal sites where the authorities are considering the use of mobility in the face of the advancing sea: In mainland France, Guadeloupe, and Senegal. For each of the sites, the goal is to study the legal mechanisms for ensuring adequate protection from the ground up. Starting from the ground allows me to get a better sense of what is expected by the affected community, which legal instruments are actually referred to, and what makes authorities choose, or reject, certain solutions. Being in the field thus brings certain issues to my attention, and I then draw from the anthropological literature to enrich the empirical data.Footnote 13
Through my anthropological research, conducted in parallel with my legal research, I therefore document the issue using anthropology’s own approaches and methods. As a legal scholar, I draw the necessary conclusions to enrich my reflections on the law. It is only through this exercise in duplication of research strategies, by giving each analysis its full weight while allowing for interactions and promoting points of intersection, that each discipline can function best and enter into dialogue with one another. The interdisciplinarity I am attempting is thus best captured by the designation “law and anthropology.”Footnote 14 This formulation accurately describes my objective of conducting two parallel analyses that remain in communication with each other in order to stay on a common path, but each of which functions according to the rules of its own discipline. This is what interdisciplinarity is all about: Creating a dialogue between two disciplines,Footnote 15 each of which has its own independent existence.
This brings me to another point about “law.” Indeed, the notion is polysemous and refers to both the legal framework and the academic discipline.Footnote 16 In my understanding of “law and anthropology,” law cannot be limited to the legal framework; otherwise, we would be back to legal anthropology, that is, anthropology that takes law—understood as the set of social norms that order society—as the object of study. Law as understood in the term “law and anthropology” refers primarily to the legal discipline. But what I call the “legal discipline” also needs clarification, insofar as my understanding of it is linked to the way I was trained in the continental tradition. I thus understand legal discipline as legal doctrine in the sense of Hugues Dumont and Antoine Bailleux, which aims to:
[D]escribe the more or less coherent legal system formed by all the rules of law in force, as stated by the law-making bodies and interpreted or evaluated and implemented by the law-enforcing bodies [and to] provide the legal explanations and evaluations that enable it to justify or criticize the interpretations and evaluations produced by the law-making or law-enforcing bodies.Footnote 17
This contribution therefore aims to develop two questions: Why and how “law and anthropology”? It is based on my doctoral research, which is currently underway, hence only a few tentative examples from my fieldwork can be offered by way of illustration. Starting from the question of anticipating through mobility the protection of individuals living in a territory that is deteriorating, I first had to determine how to study this general question ethnographically, that is, to identify concrete situations in which the question arises—i.e., field sites; see Part B. The first-hand empirical data that I collect in these sites allows me to anchor my legal research and to test its relevance in the field where the issue is taking place, Part C, demonstrating how this form of interdisciplinarity is promising despite its difficulties and challenges, Part D. More fundamentally, anthropology’s commitment to the field also implies a critical posture that helps me to situate myself as a researcher, Part E.
B. Bringing Global Issues to the Local Level
In order not to presuppose the need for displacement at certain sites, I have chosen to study sites where the mobility solution is either already being used or is under discussion, which also allows me to hear the actors concerned debate the subject. I thus looked for sites where relocations to cope with the effects of climate change were taking place, knowing that I could also rely on a large body of literature on resettlement.Footnote 18 The involvement of public authorities also makes it easier to identify the role, and legal obligations, of states in organizing or enabling mobilities. Moreover, it corresponds well to my intention to focus on the anticipation of mobility, as the interventions are planned and documented before people move on their own.
I focused in particular on relocations taking place in coastal areas, as they are representative of a climate change impact that is known to be inescapable, namely sea-level rise. However, choosing to focus on coastal areas does not come without consequences. First, they are very specific natural areas that are highly regulated. The applicable legislation adds to the already dense collection of rules relevant to my study. Second, they are highly attractive areas for a variety of stakeholders, from owners of private property, to those involved in tourism and fishing. There is, therefore, a specific attachment to the land that is not found everywhere and that makes it difficult for people living there to envisage moving away.
Guided by this search for “resettlement projects,” I first found the site of Saint-Louis, a Senegalese coastal city. My focus on this part of Africa was justified not only by my language skills—French, my native language, is the official language of Senegal—and my familiarity with the field, but also by my desire to contribute to research beyond the Pacific islands, which have been the focus of the overwhelming majority of studies on “climate migration.” This imbalance in knowledge has contributed to a biased understanding of the issue because it nurtures the idea that climate mobilities will only concern small populations in remote places and extreme cases. The city of Saint-Louis comprises three parts: The largest section is on the mainland, which is separated by the Senegal River from the long, barrier island-like peninsula known as the Langue de Barbarie, with the historic Island of Saint-Louis—a UNESCO World Heritage Site—in the river between the two. The Langue de Barbarie experiences strong swells and is heavily impacted by erosion, not to mention the damage caused by the overflow channel hastily created in 2003 by the former mayor to cope with flooding. The breach was originally a mere four meters wide but has since widened to more than 800 meters; it has separated the southern tip of the Langue de Barbarie from the rest of the peninsula, and has disrupted the natural functioning of the estuary.Footnote 19 The World Bank is now financing a resettlement project that is being promoted as ground-breaking in Africa. The project envisages relocating people from the Langue de Barbarie to an inland site; this, however, is difficult to accept for the population, which relies on fishing for their livelihood.Footnote 20 Even if the World Bank trains them in other trades,Footnote 21 fishing is for them not only a means of subsistence, but also a very communal way of life. The creation of a dike, a parallel project financed by the French Development Agency, further complicates matters because it creates a sense of security, and the local population sees no point in leaving. Yet both projects are only temporary, since even the resettlement aims to “secure the populations settled on the sea front and reduce the damage caused by the advancing sea, pending the establishment of a sustainable protection solution”Footnote 22—the actual details of which are not yet known.
Covid-19 prevented my departure to Senegal for almost two years. Although I am there at the time of writing this article, the delay forced me to reconsider my research by selecting more accessible sites. I learned about an experimental relocation scheme in France under a national strategy for integrated coastline management that was taking place at five sites:Footnote 23 Four in mainland France, of which I chose one, Vias, and one in an overseas department (département d’outre-mer), Petit-Bourg in Guadeloupe. I have already managed to visit both sites, spending one month in Vias, France, and two months in Petit-Bourg, Guadeloupe. Both cities took part in the same call for projects, yet their circumstances are very different.
In Vias, France, the perspective is long-term. Some inhabitants have permanent structures in an area officially categorized as “natural.”Footnote 24 This would normally not be allowed, but most of them benefit from a “statute of limitations” that allows their immobilized mobile homes to remain in place. Some live in their mobile homes all year round, but most stay there only seasonally. Campsites are also present in this area, their owners having received permission to establish them before the plan for the prevention of natural flooding and coastal risks classified the whole of the zone as red, meaning all construction is forbidden. The area is threatened by—slow—erosion of the coastline, but the new “doctrine”Footnote 25 in France is to avoid hard protections such as dikes or riprap whenever possible—as in natural areas—in order to let nature take its course without costly and tireless struggle,Footnote 26 and to favor soft solutions such as sand recharging and relocation of all structures. The inhabitants are opposed to the relocation. The free trade associations they set up to collectively make the area viable—mainly by digging boreholes for running water and connecting to the electricity grid—have formed an umbrella association to defend their rights. They are asking to be able to adapt their houses,Footnote 27 which they cannot do at present because of urban planning regulations. The campsite managers are also calling for collaboration with the state to find a solution. Inhabitants and campsite managers, after a period of mutual distrust,Footnote 28 have also come together to form a common front and to demand a say in the decisions that affect them. For their part, public authorities are stuck between sand recharging—which some say would be a Sisyphean endeavorFootnote 29—and relocation—which is resisted, is in any case too costly to implement and is not provided for in the law. The different parties seem to have found a solution acceptable to all: An experimental system of nets to be installed on the seabed at the level of the offshore sandbar. This system should, in theory, facilitate the accumulation of sand and thus mitigate the impact of sea waves and perhaps even recreate the beach,Footnote 30 but it has yet to be implemented and its effectiveness remains to be demonstrated. On the national level, a recent law informally known as the “climate and resilience law” has just been adopted and provides for the establishment of a list of municipalities that must organize their planning in view of their vulnerability to erosion.Footnote 31
In Petit-Bourg, Guadeloupe, the perspective is—very—short-term. The inhabitants live at the top of an oceanside bluff that is threatening to collapse at any time due to increased friability from sewage and rainwater runoff. This may not, strictly speaking, be an impact of climate change; nevertheless, the local state services have taken the opportunity to set up a mechanism for determining “areas that pose a serious threat to human life”—including those threatened by any type of natural phenomenon—in order to target individuals for immediate relocation. According to one official, relocation is the chosen solution because it is less expensive than reinforcement of the bluff would be.Footnote 32 The families have been told that they will have to leave their homes by a set date and that they will have the choice of being relocated to a purpose-built housing development slightly inside the city on a rent-to-own basis, or simply receiving compensation. The relocation is more advantageous, however, as it is financed by a combination of sources designed to enable home ownership at a reasonable price, while compensation is limited to the amount that the national insurance scheme would pay for natural disasters. The difficulty lies in the fact that in the French Antilles, a significant number of people are without right or legal title to their land and, while they are now eligible for compensation on the basis of a 2011 law,Footnote 33 the amounts they could receive from the national insurance scheme for natural disasters are very low. The rehousing is also taking place in a context where many of the individuals to be displaced are quite old and have very strong attachments to the land, not only because of the life they have built there, but also because, in many cases, they inherited it from ancestors who occupied the then little-coveted coasts and claimed it as their first personal property following a life of slavery.Footnote 34 This is further complicated by the fact that land is becoming scarce in the face of increased demand on an island with limited possibilities.Footnote 35
The number of field sites and their disparity are a conscious choice on my part, despite the clear difficulties such research agenda entails. I feel that the added value of having the same researcher collect the first-hand empirical data from all three sites outweighs the limitations that could potentially be introduced by the shorter period of fieldwork in each individual site. The question of what to do for people living in degraded areas will arise everywhere; it is a universal question, even if the answer proposed by different states will not necessarily be the same. This is precisely why it is interesting to have them studied by the same person. As I moved from one field site to the next, I was able to see things that I would not have noticed without having been to the other field sites first. Furthermore, it gives me a crosssectional understanding of the problem that may be necessary for the results to be useful. It does, however, mean that I have to be careful with the conclusions I draw from my findings.
Despite their disparity, the three sites retain the common thread of their link to France: Mainland France, a French overseas department, and a former French colony where the French Development Agency is involved in the protection of the coastal zone. My assumption was that this would have an impact on how they operate and would provide a degree of consistency—and indeed, this can already be seen, for instance, in the terminology used by the national strategy for integrated coastline management on which the projects in mainland France and Guadeloupe are based and in the project to combat coastal erosion led by the French Development Agency in Senegal.Footnote 36 Moreover, it also introduces a postcolonial perspective to the research. Talking about climate change and migration in international law requires placing it in its colonial past which, far from being a historical debate, is at the heart of the issues at stake today.
C. What the Law Can Learn from Anthropology: A Few Illustrations
As the research is ongoing, and in particular as the field research requires a certain familiarity with the sites that I am still developing, the analysis I give here is based on preliminary findings only and must, therefore, be understood as tentative. It is intended to highlight examples from the field to show how they raise questions relevant to the law, but without drawing any firm conclusions at this stage. In this way, I try to illustrate how anthropology, i.e., ethnographic field research informed by anthropological literature, allows me to ground the law in the places where it takes shape and to identify and explore the issues that emerge when mobility is used as a preemptive measure to deal with the advancing sea.
The field research first allowed me to question my approach to the subject. Indeed, approaching the subject from the angle of mobility is already taking a position, since I am placing mobilities in the context of adaptation to climate change, whereas I could have started from adaptation to climate change and then included mobilities. This was brought to my attention by one of my informants, who told me that he hesitated to grant my request for an interview when he saw the formulation of my research outline, which seemed to posit that displacement was necessary. Being aware of this has cautioned me against presupposing the merits of mobility and aiming instead to put it in perspective with other adaptation measures. In fact, in studying mobility, I often find myself studying immobility. There is a time when people feel they can remain in place by adapting, and a time when they realize that mobility might be the more desirable option. The moment of transition from one to the other is inchoate and perhaps even imperceptible, and the research requires looking more broadly at adaptation to climate change in order to situate mobility within it. This is all the more justified since migration studies—or even more, mobility studies—go beyond displacement as such. In addition to the traditional interest in the decision to migrate or not and the question of the tipping point, researchers are increasingly interested in non-migration, particularly in relation to the environment. The notion of the “trapped” populationFootnote 37 is now widespread and demonstrates that those who do not move are also part of the migration research field. Moreover, in the field of climate mobilities there is a new focus on those who choose not to move and claim the right to stay in their environment.Footnote 38
From my field data, I also try to understand the motivations that drive authorities to establish a planned relocation scheme, an idea that legal scholars had already determined should be studied.Footnote 39 In Guadeloupe, it is clear that, if there were a major accident or disaster, the mayor and the prefect, as the appointed guarantors of public safety, would be held responsible if they had not taken any precautionary actions to protect the citizens.Footnote 40 But this is true because the danger is imminent, with the bluff threatening to collapse at any moment. In the case of relocation in anticipation of slow-onset events such as erosion, the responsibilities are not so clearly established.Footnote 41 Long-term policy thinking in that regard really gained momentum after a storm caused severe erosion that threatened to cause an entire building to collapse.Footnote 42 This event highlighted the lack of a compensation system and the cost that such a system would represent, leading to reflection on land use planning to limit this type of situation.Footnote 43 This clearly shows how “episodic events help to create a ‘crisis moment’ within the larger public awareness that can be utilized to garner public support for more proactive policy measures.”Footnote 44 This can also be seen, beyond specific relocation decisions, in the adoption of political and legal instruments. Indeed, the French strategy for integrated coastline management was adopted two years after a particularly severe storm caused several deaths and led to public condemnation of the mayor,Footnote 45 reminding officials—particularly mayors and prefects—that they can be held personally accountable when they fail to take the necessary measures to ensure citizens’ safety in the face of imminent danger. The strategy has led to several legislative proposalsFootnote 46 and the adoption of a few articles in the abovementioned “climate and resilience law.”
On the side of the affected population, what can be observed in all my field sites is resistance to the idea of moving on the part of at least some of the inhabitants. The most evocative evidence is that both in mainland France and in Guadeloupe, the community to be relocated has been nicknamed “the Gauls” because of their overt and unwavering resistance.Footnote 47 People who do not move may simply not be able to do so, but they might also choose not to do so. Just because people do not want to move, however, does not mean that they should automatically be left where they are (e.g., when the choice to remain is based on misinformation about the danger of staying), but their resistance must be understood and taken into account. Resistance may express needs or desires regarding the proposed relocation site, as in the case of Saint-Louis, where fishermen want to remain close to the sea, or in the case of Petit-Bourg, where people want to stay near where they have built their social lives, especially since most of them do not have cars. Resistance may also be explained by certain contextual elements that must be resolved for the relocation to be successful, such as the belief of many inhabitants in Guadeloupe that their land, once freed, will be used for speculative purposes. This concern could be allayed by creating collective community spaces in the vacated area, such as vegetable gardens, where no one would be allowed to live and no new structures could be built.
More generally, resistance raises the question of what matters. When Guadeloupean inhabitants refuse to be relocated because “to leave is to die”Footnote 48 and Senegalese inhabitants resist relocation because their way of life is based on the sea, the priorities expressed are not the same. Should people be allowed to choose to continue pursuing an increasingly dangerous way of life, even at the expense of their safety? To what extent can one live with risk? And how can the law accommodate this? Some Guadeloupeans would prefer to fall with the bluff than leave the home where they have always lived and raised their children. As for the fishermen of Saint-Louis, who are recognized throughout Senegal for their bravery in facing notoriously rough seas on a daily basis, they say they are not afraid of the sea.Footnote 49 Ingrid Boas, Hanne Wiegel, Carol Farbotko, Jeroen Warner, and Mimi Sheller, citing a recent study from Chilean Patagonia,Footnote 50 conclude that “the rejection of relocation was grounded in locally specific social representations of nature and human-nature relations that view living with risk as part of normal life in a context frequently affected by environmental hazards, rendering relocation ‘out of harm’s way’ ineffective.”Footnote 51 In mainland France, the possibility of leaving the houses where they stand but upgrading them to make them more resilient, thus accepting a share of the risk, had been envisaged during the experimentation by the local technical services in consultation with the population, but the state rejected this option out of fear of liability.Footnote 52
Injunctions to involve the inhabitants in these decisions can be found throughout the literature and guidelines on relocation,Footnote 53 including those of the World Bank,Footnote 54 and the three sites have established mechanisms to do so. I am therefore interested in how this involvement takes place in practice. For example, the people I spoke with in mainland France sometimes feel that they are more often informed than they are consulted.Footnote 55 The question of participation in decision-making processes falls under the rubric of “procedural justice.”Footnote 56 Rossella Alba, Silja Klepp, and Antje Bruns indeed emphasize the value of applying an environmental justice framework to climate change adaptation interventions in order to politicize them and reveal the “socio-political processes, including knowledge politics and narratives that shape [climate change adaptation].”Footnote 57 In mainland France, it is interesting to note that, in order to be in a position to influence decisions, the representatives of the inhabitants’ umbrella association have informed themselves not only about the science of climate change, but also about the possible engineering options and the legislation in force.Footnote 58 Therefore, the issue is not only about the macrologics imposed, nor is it only about microstrategies to resist them.Footnote 59 It is about the “dialectical movement between social agency through law on one side, and social regulation through law (often, but not always, by the state) on the other.”Footnote 60 An anthropological approach allows us to capture this.
These processes do not stop at the boundaries of the field sites. I was thus struck by the fact that some terms circulate between my sites.Footnote 61 All authorities aim to achieve “integrated coastal zone management,” a term that comes from the international sphere.Footnote 62 At all three sites, too, inhabitants are familiar with the term “climate change,” but attribute varying meanings to it.Footnote 63 When Carla Roncoli develops her “political ecology of adaptation,”Footnote 64 she therefore recommends that our research designs “encompass local communities and their multiple action spaces as well as the higher spheres of decision-making, where policy and science are shaped.”Footnote 65 In the end, doing so allows us to reveal “the ways that the climate science world and social world are not separate but integral.”Footnote 66
More generally, it is interesting to note the underlying question of the relationship between humans and nature. Adaptation can indeed be detrimental to mitigationFootnote 67 and to environmental protection in general. Yet nature-based adaptative solutions, as part of a holistic approach to coastal zones, are moving forward,Footnote 68 as is illustrated by the term “integrated coastal zone management” used in all three sites. The most striking example is probably France, which according to some informants is undergoing a real change of mindset.Footnote 69 Indeed, until recently, the principle underlying the French legal and policy framework was that humans dominated nature, thus justifying the hard protection of shorelines. A different idea emerged twenty years ago, with the growing awareness of the futility of fighting the sea, and some early documents from the state called for “a profound change of mentality to move from the logic of adapting the environment to man to that of adapting man to the environment.”Footnote 70 In the same vein, Chad McGuire admonishes against considering the land a passive resource, because doing so leaves us unprepared and even surprised when natural disasters occur, which in turn leads to taking reactive remediation measures. Rather, land—and by extension, the environment in general—should be understood as a dynamic resource in constant change that requires a planning approach to risks.Footnote 71 In practice, though, preemptive relocation to free up land and leave it to nature in the long term is seldom employed for a variety of reasons, including its unpopularity and the lack of legal and financial instruments.Footnote 72
To put it in a nutshell, taking recourse to anthropological methods enhances my legitimacy because I communicate directly with the various actors. This is true both for the technical experts with whom I discuss legal instruments, and elements related to their application, and for affected people, whose needs we tend to assume without really asking them. This may seem limited to an ethical stance, but it is also epistemological—as such people are better placed to provide accurate information—and methodological—as this is often the only means to get the information.Footnote 73
D. The Promising but Challenging Exercise of Interdisciplinarity
Interdisciplinarity is about dialogue. It implies that every discipline exists in its own right, but that each one tries to “translate”Footnote 74 its working methods and data collected to the other discipline in order to create bridges and encourage cross-fertilization. As François Ost and Antoine Bailleux so lucidly explain:
[W]e see that interdisciplinary dialogue cannot be reduced to hitching disciplinary wagons (or blocks of theory) in a single convoy heading in the same direction: the fastenings do not necessarily fit together, the gauge of the tracks is different, not to mention the speed and direction of the convoy … and yet we go some way together.Footnote 75
In my research, the disciplines of law and anthropology are simultaneously taken for themselves and directed toward each other. Insights from both disciplines were used initially to design my research framework: I started from a legal concern and an apprehension of the legal research field, and confronted that with the critical posture of anthropology. But this is also a constant process. Empirical data continually contribute to the (re-)formulation of the research questions that guide my legal research, which in turn provides a framework for my anthropological research. This is what Jean-Pierre Olivier de Sardan calls the “iteration”Footnote 76 of research, with research moving back and forth as it encounters new data in the field that point the researcher in a new direction and then bring him or her back again to the central issue.
Anthropology, mainly through immersive fieldwork, aims at “capturing a reality in all its dimensions, hence as a whole,”Footnote 77 to use the words of Olivier de Sardan in his defense of methodological holism. Similarly, Marie-Bénédicte Dembour attributes the centrality of ethnographic fieldwork to anthropology’s “commitment to understanding social life in a holistic way” because, “as far as anthropology is concerned, everything is related.”Footnote 78 Anthropologists seek to understand the situation on its own terms, with its own logics, by connecting each element that appears in the landscape. In the three “resettlement projects” I study, several questions arise: When did resettlement begin to be an option? Who proposed it? What were the reasons given? Was resettlement eventually chosen? If not, why not? If so, how was the decision reached? And how was it implemented? Is/was there any resistance? What are/were the reasons for opposing the project? Has there been a change in attitudes? If so, by whom and why? Do the actors appeal to the law? When? Are people using existing law? Or are they asking for new laws? Is the law evolving? If so, on what basis?
This mass of information is necessary to trace the whole issue, highlighting the issues and actors involved, their opinions, and the power dynamics at play. Of course, not all the information acquired through anthropological analysis will be useful for legal analysis. Nevertheless, I think it is important to proceed in this way because this is how knowledge is produced in anthropology: By an attitude that is sufficiently open and inductive to be able to see what was not expected. Anthropology does not serve the law. Anthropology produces knowledge that can be of use to law. Indeed:
It may not really matter whether anthropology matters to law. What does, however, is the way in which the former addresses the latter as an ethnographic object, a polymorphous ensemble of signifying practices that require to be laid bare, to be analysed and theorised, all the better to understand its place in the contemporary Order of Things.Footnote 79
This brings me to two challenges I face as a legal scholar. The first is to find the energy and time to conduct two analyses from different disciplines. An inevitable trade-off must be made between fieldwork, exploration of anthropological literature, and familiarity with the law in texts and jurisprudence, as well as the related doctrinal debates. One must also make a sincere commitment to immerse oneself in another discipline, to understand its spirit and ground rules, and to develop the ability to shift from one mindset to another. The payoff is worth it, especially in those cases where only an anthropological approach can provide answers that the law needs and that a legal approach cannot offer, but spreading one’s time and energy over the multiple aspects of such a research effort requires a constant balancing act.
The second challenge is to stay committed to the law. Each discipline is preserved and respected for what it is, but the research ultimately has to fit into one or the other discipline. As a legal scholar, my concern is legal and my goal is to translate anthropological data in a way that contributes to constructive criticism that can ultimately improve the legal response. Anthropologists can afford to embrace complexity because their goal is to understand, but complexity can stifle policy making.Footnote 80 Legal scholars cannot stop there. They then have to perform the perilous exercise of coming back to law. Indeed, as legal scholars, we cannot afford to reject the law altogether and must have a reconstructive outlook. This translation from one discipline to the other is far from easy, as the law has to find its way through the messiness of life in society.
This means that the law cannot be, merely, an expression of individualistic interests: While the opinions of the actors involved must be listened to and taken into account in the drafting of laws, the law cannot be reduced to this function, as it must assume its role in ordering society. For example, just because people resist relocation does not mean that it is automatically to be banned. In Petit-Bourg, the bluff can collapse at any time, yet there may still be reasons to stay. Some elderly people might prefer to take the risk of ending their lives happily where they have always lived rather than living an unhappy—though longer—life elsewhere. State intervention is also not without its own interests. In Vias, too, the state’s policy of living with nature is part of a progressive awareness of the need “to move from the logic of adapting the environment to man to that of adapting man to the environment.”Footnote 81 Anthropology makes it possible to make room for all opinions, confronting them with each other while placing them in their own context, in which some take precedence over others. On this basis, the law can play its role as a regulator of life in society in greater awareness of what the decisions taken imply.
The difficulty of returning from an anthropological analysis to the law is accentuated by the distance between a global legal issue and the very particular local context in which the researcher sees it playing out. This difficulty arises at the time of the choice of field site(s), as shown earlier, but it persists throughout the research. One must therefore be aware that there is no such thing as a field site that is the perfect illustration of a given issue. Field sites are embedded in intricacies that may be completely unrelated to the, initial, purpose of the research. These must also be taken into account, as they allow the researcher to understand positions or reactions to the issue of interest, and sometimes even reveal themselves to be at the heart of the problem. A striking example is the way law is actually discussed in the field. While I may be starting from an analysis of international law in the fields of environment, migration, or human rights, the informants I meet, needless to say, do not refer directly to these legal frameworks, with their abstract principles, but to more specific and concrete rules related to, for example, risk management or urban planning.
E. The Critical Eye of Anthropology, an Asset for the Legal Scholar
Anthropology is driven by its own rules of operation, from which legal scholars could usefully draw inspiration. In particular, it encourages one to be critical, both of one’s own representations—Part E.I—and of the way in which the research subject is usually treated—Part E.II.
I. Reflexivity
In the legal discipline, leaving a place for “I” is complicated.Footnote 82 Yet subjectivity interferes in all scientific activities, the most obvious example being the choice of research topic. My interest in migration and climate change, primarily as a legal scholar, was the result of my own civic engagement. As Olivier de Sardan explains, subjectivity at this stage is not a problem; in fact, it can even be desirable to conduct research that feeds into civic debates and that is not purely scientific.Footnote 83 However, even if the choice of the research topic is motivated by civic commitment, the researcher must still exercise rigor in the conduct of the scientific research—perhaps even more so than if it is not. Indeed, to take the words of Olivier de Sardan:
The more a research topic constitutes a social and political issue, the more the researcher must endeavor to treat it impartially (though this is never completely possible) while steering clear, as far as possible, from the ideological traps that are constantly open in his path … In this way, the voice of the researcher will be able to participate in the public debate as distinct from partisan voices.Footnote 84
To exercise rigor means to be reflexive, that is, to question one’s own biases and make them explicit so as to try to limit them as much as possible. Denying subjectivity does not make it disappear; to the contrary, doing so comes across as either naïve or manipulative. The legal researcher could be inspired by this methodological lesson.
II. A Critical Approach to the Topic
Researchers play an essential role in the problematization of a given topic,Footnote 85 and thus have a responsibility to bring to light the issues surrounding it. The case of “climate migration” is striking. The research field is aware and clearly demonstrates that the term suffers from numerous problems that complicate any attempt to create a legal framework addressing it. Authors highlight the multi-causal nature of migration,Footnote 86 the difficulty of isolating climate-change-related events from other natural events,Footnote 87 the lack of an officially accepted definition of the term,Footnote 88 the variety of environmental events motivating displacement as well as the variety of forms of mobility,Footnote 89 the questionable relevance of the distinction between climate migrants and migrants moving for other reasons,Footnote 90 and the exclusion of non-migrants.Footnote 91 Such observations have already led to changes: the interaction of various factors in the decision to migrate is now recognized, and the focus is no longer always on cross-border migration.Footnote 92 However, while the awareness of this complexity is widespread in research, it remains marginal in the public sphere. Even more problematically, the inconsistencies of an approach centered on such an ambiguous notion as “climate migration” are noted by researchers but not questioned, and few attempts have been made to understand why the concept retains such influence today and what that implies regarding how the subject should be approached.
Yet the persistence of such an “equivocal”Footnote 93 term is not trivial. The critical anthropological eye invites us to go further: If such a concept is misleading, why was it created and why is it still used? More importantly, what consequences does it entail? Anthropology is first and foremost an attitude that has as its leitmotif to question everything, especially things that are taken for granted.Footnote 94 This is particularly appropriate when it comes to law, which is generally presented as neutral. While legal scholars did not need input from anthropology to begin questioning the supposedly neutral character of law,Footnote 95 anthropology allows us to go further by offering tools to reveal the power dynamics at play. Leading legal anthropologists have proved the value of anthropology in understanding the law in its creation and its impacts. Franz and Keebet von Benda-Beckmann and Anne Griffiths emphasize “the importance of looking at the chains of interaction connecting transnational, national and local actors in multi-sited arenas along with the power relations that structure these interactions and are reproduced or changed by them.”Footnote 96 Likewise, Sally Engle Merry shows that “[m]uch ethnographic research examines how human rights ideas operate within local settings, but these studies typically recognize that the local settings are embedded within larger systems that shape them and that their boundaries with global ideologies are typically quite porous.”Footnote 97
The invitation of anthropology to “always dig deeper”Footnote 98 prompted me to investigate the origins of the term “climate migration” and its impacts, which allowed me to frame my research in a way that takes into account the potential pitfalls of not questioning the allegedly neutral character of law.
1. The Origins of the Term: A Call to Protect the Environment
This leads me to question the emergence not of the phenomenon itself, but of its problematization. Indeed, it is important to remember that humans have always moved to adapt to their changing environment; my interest here lies in the qualification of migration in relation to the environmental factor, which is much more recent. It can be traced back to William Vogt, an ecologist and ornithologist, who coined the term “ecological refugee” in 1948.Footnote 99 The concept was introduced into international discourse by Essam El-Hinnawi, who first used the term “environmental refugee” in a report for the United Nations Environmental Program in 1985.Footnote 100 Interestingly, then, the problematization did not come from migration experts but from environmental experts wishing to sound the alarm about environmental degradation and the need for action to combat it.Footnote 101 It therefore comes as no surprise that they depicted massive waves of migrants and contributed to an alarmist discourse that earned them the label of “maximalists.”Footnote 102 The debate has indeed divided the scientific community into “maximalists” and “minimalists,”Footnote 103 the latter often being migration experts who have, from the beginning, insisted on the multi-causal nature of displacement and the human agency that makes it difficult to predict.Footnote 104 This short sketch of the origins of the concept, and especially of its authors, makes it clear that the notion has been put forward by people whose primary motivation was not about protecting people on the move, and who therefore had limited knowledge about migrations and their dynamics. This helps to explain some of the inconsistencies that afflict the concept in all of its various incarnations, including “climate migration.”
Today, the question arises as to why the term remains. First and foremost, it is interesting to note that it persists despite its lack of appropriation by those targeted. For Ronald Niezen, concepts developed by international organizations tend to be “ideas that begin at the furthest remove from lived reality … sometimes based on little more than vague intuitions.”Footnote 105 Therefore, “[t]he odds that any given category of the oppressed will serve the strategic and identity-oriented purposes of rights claimants is an open question at the time that it is first exposed to view in an institutional context.”Footnote 106 Concepts acquire their validity through participatory engagement,Footnote 107 that is, when they are used by the people they are intended to serve. Self-identification with the term will depend on various elements, such as the fact of recognizing oneself in the reality described,Footnote 108 but also importantly on whether it is “connected to a rights regime that offers any significant advantages to those who are the subjects of definition”Footnote 109—something that the term “climate migrant” does not afford.
As far as those who use the term are concerned, Calum Nicholson offers an initial response when he dissects the concept of “climate migration.” After demonstrating that it is an equivocal claim, he wonders why it is used and answers as follows:
[W]hen made by political actors in an open society, equivocal claims about what is, or what ought to be (such as those made about “climate-induced migration”) constitute a problem, as they act to disaggregate power from accountability. If a claim is equivocal, it becomes almost impossible to define either the obligations or responsibilities of those occupying privileged positions in the political structure.Footnote 110
Benoit Mayer’s findings support this observation. The conclusion of his book is indeed that “[t]here is no solution to ‘climate migration’ because ‘climate migration’ is not an issue in and by itself. Beyond the issues reflected by climate migration lie some of the major shortfalls of today’s global governance.”Footnote 111 In the end, “solutions are all too well-known,”Footnote 112 such as the need to protect the human rights of migrants or to reduce greenhouse gas emissions. An equivocal concept that can be promoted by vague formulations in soft law instruments is therefore perhaps more convenient than actually having to address these major challenges.
2. The Potential Drifts of the Term of which the Researcher Needs to Be Aware
The maximalist framing drawn up by the first users of the term has been taken up by other researchers, politicians, and civil society actors, and still persists today. This framing has contributed to the perception of “climate migration” as a potential threat to national security and has, therefore, led to the mobilization of the rhetoric of “crisis.”Footnote 113 The definition of the issue as a crisis, i.e., “a critical event which, if not handled appropriately and in a timely manner, or if not handled at all, may turn into a disaster or catastrophe,”Footnote 114 has justified a process of securitization, which has become a common way of dealing with migration in Western liberal democracies.Footnote 115 This crisis scenario, based on the Western view of a sedentary society where migration is an unwelcome anomaly,Footnote 116 does not reflect the reality as it is experienced by the people to whom it is attributed. One great Pacific thinker describes pre-colonial Oceania—whose islanders are often held up as the paradigmatic example of future climate migrants—as a “sea of islands” where people were free to move from one island to another, a way of life that is still largely true today.Footnote 117 For them, it is not migration—or perhaps, more accurately, mobility—per se that is the problem; it is the possibility of completely losing their land.
This framing and others that followedFootnote 118 are important in that they legitimize political and legal responses. I have therefore tried to identify, based on the literature, the underlying mechanisms that make such framings possible in order to adjust my research to avoid falling into the drifts that can be associated with them. One such mechanism is the invisibilization process. As noted by Julia Dehm when applying a third-world approach to international law’s perspective on the international climate regime, “even as institutional power is authorized in the name of a global need for action, and particularly in the name of those presented as most vulnerable, the actual voices and perspectives of ‘frontline’ communities about the types of action that should be pursued are simultaneously erased and dismissed.”Footnote 119 Beyond the climate field, this is a common issue with regard to migrants who have little say in the public sphere.Footnote 120 In my research I try to mitigate this problem methodologically, through ethnography, which gives voice to the actors concerned, and in particular to those who are not sufficiently listened to.Footnote 121
A second mechanism is the depoliticization process, in the sense of James Ferguson’s “anti-politics machine.”Footnote 122 Climate change is presented as an external threat governed by science,Footnote 123 a view that conceals “the questions of regional and global responsibility and solidarity, as well as historical and current power relationships and dependencies.”Footnote 124 Dehm gives the example of the United Nations Framework Convention on Climate Change, whose wording has “two key implications for directionality … spatially and temporally.”Footnote 125 Spatially, it “is primarily concerned with the direct effects that produce climate change—GHG [greenhouse gas] emissions—rather than their causes, the ‘human activities [that] have been substantially increasing the atmospheric concentration of greenhouse gases,’”Footnote 126 and its objectives “are translated from a political goal and antagonistic of transforming these causes and ‘overcoming fossil fuel dependence by entrenching a new historical pathway’ to a more technical goal of achieving ‘measurable, divisible greenhouse-gas emission reductions.’”Footnote 127 Temporally, she also notes that, in the Convention, “[t]he concern is directed into the future, rather than [being presented as] a problem of the connections between the past, present and future.”Footnote 128 To counterbalance this, as outlined in the contribution of anthropology to law, my research thus attempts to “re-politicize” legal instruments and more generally decisions regarding adaptation to climate change.Footnote 129
Finally, another mechanism that strikes me as significant is exoticization as, in the collective imagination, “climate migrants” are people who leave the Global South with the goal of coming to the Global North.Footnote 130 This is commonly present in discourses on migration, as shown by the well-known but still evocative illustration of the difference—in terminology, but also in symbolic meaning—between “expatriate” and “migrant.”Footnote 131 Yet the absurdity of such a distinction based on place of origin is all the more obvious when it comes to climate change, a phenomenon whose effects are global and not limited to certain countries—although, of course, the ability of individuals to cope with it varies. In my research, the diversity of field sites is also an intentional choice to participate in the demystification of mobilities in the context of climate change. My own first reaction was to look for a field site in the Global South, even though circumstances beyond my control ultimately forced me to be more in line with my research intentions. In a universal subject like this, anthropologists are increasingly studying the Global North. Alba, Klepp, and Bruns examine climate change adaptation interventions in Venice from an environmental justice perspective,Footnote 132 while Werner Krauss investigates the political ecology of the North Sea coast in northern Germany.Footnote 133
F. Conclusion
By way of conclusion, I would like to abstract from my research the elements that explain my position on “law and anthropology.” In particular, two questions need to be answered: why and how law and anthropology?
On the question of why, I think that there is a rather basic lesson that the legal discipline can take from the way anthropology works, but which is not necessarily specific to anthropology: recognizing the place of subjectivity in research. As legal scholars, we are not accustomed to making our possible biases explicit, yet it is a matter of credibility to do so. Of course, doing this is not the same as doing anthropology, but I think it is important to point out how one discipline can learn from another.
What anthropological research can contribute to legal research in general is, in my opinion, the tools to question the supposedly neutral character of law. Legal formalism has long been criticized within the discipline itself,Footnote 134 but the legal discipline remains ill-equipped to tackle this issue. The critical stance of anthropology allows us to “be aware of power relationships and their framing and silencing effects”Footnote 135 and to uncover them through its privileged connection to the field where the law takes shape. All in all, anthropology forces us to question whether law is at the service of justice or of power, and can lead us to reflect on our role as researchers in the quest to ensure that the former is the case.
These inputs are general, but anthropology’s contribution to one’s research can also be more specific. The research questions induced by a certain topic may require answers that pure legal research cannot offer. This is, for example, the case with my research, and my engagement with anthropology has helped guide the way I conduct it. This brings us to the question of how law and anthropology. Clearly, there is no ready-made recipe. Commitment to anthropology can be more or less deep and depends primarily on the needs of the research, although it also varies according to other factors, including time and skill. In the end, the researcher just has to find his or her own way.
There is, however, one general piece of advice that everyone should bear in mind: take pains to be fair to both disciplines. On the one hand, anthropology should be more than an instrument. Merely conducting interviews is not, in and of itself, engaging in anthropology. Anthropology is a discipline and, while we as legal scholars cannot be expected to engage with it as deeply as we do with our main discipline, i.e., law, it is also important to know and understand anthropology at some deeper level in order to remain faithful to what is at the core of the discipline. On the other hand, it is important not to lose sight of the distinctive skills we have as legal scholars. We need to keep taking law seriously: in my opinion, dismissing law altogether, as some critical anthropologists do, is not productive; rather, we should strive to contribute to its positive development. We have to choose which side we are on: are we aiming for better law, or for something better than law?Footnote 136 I think that, as legal scholars, we should stick to the former in order to value the competence we have and allow for the two disciplines to be mutually fruitful.
Acknowledgment
The author warmly thanks the editors of the German Law Journal for their valuable feedback, Brian Donahoe for his extensive proofreading and wise advice, as well as the editors of this Special Issue and the colleagues of the Law & Anthropology Department of the Max Planck Institute for Social Anthropology for the stimulating exchanges that allowed her to advance in her reflection.
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