Climate Induced Displacement and the Developing Law
The relocation within the homeland’s border or across its borders, as a response to climate change effects, including rising sea levels and increased frequency of extreme weather phenomena attributed to climate change, in pursuit of a safer natural environment. The responses to climate-induced displacement are currently inadequate due to the inability of international law to protect climate refugees.
Climate Change as an Accelerant of Human Movement
According to the Department of Economic and Social Affairs – United Nations Secretariat: “Climate change consequences, in particular rising sea levels, increased intensity of storms, drought and desertification, environmental degradation, and natural disasters displace or will displace people, temporarily or – in many circumstances – permanently” (Department of Economic and Social Affairs 2017). Displacement triggered by climate changes is not a modern phenomenon and is not limited to the current “climate change” era. The earth has experienced multiple climate changes, and the associated social consequences are well documented (Welzer 2015). Relocation due to environmental factors has been observed historically following desertification as well as floods. The example of Sudan is illustrative of extreme cases where the social consequences of climate change go beyond displacement. Sudan is one of the most devastated countries, experiencing substantial decrease of harvest due to climate change and with a reported number of five million internally displaced people. These changes led to the creation of “bare land”. In the absence of natural shelter, the country is experiencing an increase of murders and rapes of young women, evidence of the serious social consequences of climate change (Welzer 2015).
The primary reason for such climate-induced dislocation is the diminished sense of safety amidst climate change consequences. According to Myers and Kent, this includes those that leave their homeland because they can “no longer gain a secure livelihood…because of what are primarily environmental factors of unusual scope” (Myers and Kent 1995). The factors are such that are not traditionally expected in the geographic areas that are observed and would include floods, droughts, rising sea levels, and the increased frequency of severe weather phenomena, all attributed to climate change. The Overseas Development Institute (ODI) separates “climate migrants” into four categories: (1) people who move temporarily due to climate change effects, (2) those forced to move because of repeating phenomena, (3) people that are forced to migrate because of the deterioration of the natural environment and its effects on their quality of life, and (4) and those who move voluntarily as an adaptation method (Wilkinson et al. 2016).
The lack of a legally binding definition of “climate-induced displacement” and “climate migrants” under current immigration and refugee law has led to an inability to tackle the issue, award blame, and ensure duty fulfillment by states under international law. The issue cannot be addressed through the realms of traditional Environmental Law principles such as the “polluter pays” principle either. Climate change is a far more disruptive phenomenon, where law is falling short in addressing its consequences on human movement, beyond regulating adaptation and mitigation measures. As a result, and due to the general lack of political will in addressing the ensuing displacement of people, the ability of international and domestic law in covering climate-induced displacement is limited, as well as the possibility of reaching an international consensus on how to address climate-induced displacement. “There has been a collective, and rather successful, attempt to ignore the scale of the problem. Forced climate migrants fall through the cracks of international refugee and immigration policy – and there is considerable resistance to the idea of expanding the definition of political refugees to incorporate climate ‘refugees’” (Brown 2007). As a result, climate migrants are not offered protection through international law in this pursuit of a safe “home” (Brown 2007).
“For some people, migration is an adaptation strategy, helping families to diversify their incomes and reduce their vulnerability to climate change impacts. In the context of some SIDS (Small Island Developing States), the ability to move is existential and greater support to facilitate these individuals and families’ decision to move is important” (Wilkinson et al. 2016). The problem is augmented by the different perceptions of the phenomenon and how it is experienced in different areas and by different populations (Kälin 2010). In some occasions the experiences are detrimental; in others they have been financially beneficial (Tol 2013). These experiences determine how the responses to climate change are regulated and the political will to regulate these at a national level. Regulation does not necessarily reflect the need to manage greenhouse gas emissions more sustainably or address the environmental aspects of the problem but also the mitigation and adaptation measures to climate change, including climate-induced migration. Given the lack of consensus at a global level, at a domestic level, it could be more efficient to regulate climate-induced migration as an adaptation strategy. For example, New Zealand has proposed the creation of a climate migrant visa in order to support those leaving SIDS as a result of climate change. The proposal has received little support. In the event that this proposal is fulfilled, its implementation brings with it questions. For example, what is the threshold of loss that has to be experienced for such a visa application to be successful? In addition, questions are raised over the legal precedent this will create; could there be an extension of this visa to people affected by phenomena unrelated to climate change, such as earthquakes or volcano eruptions?
Climate-Induced Displacement Under International Law
There have been multiple attempts to address the reasons of climate change and its consequences, most notably the Paris Agreement which was the first universal legally binding climate agreement. The Agreement aimed at creating collective state obligations in addressing climate change (United Nations 2016). But, given the scope of the problem and the multidimensional consequences which are now directly affecting and generating human movement, climate-induced migration requires a human-centered approach rather than one that responds and limits the effects of climate change.
Protection of refugees derives from the 1951 Refugee Convention. The Convention was created in the postwar era in order to address the wave of refugees moving across Europe during and after War World II (Türk and Nicholson 2003). As a response to these events and the conflicts that followed the Cold War, the 1951 Refugee Convention laid down the definition of a “refugee” and the international “standards for treatment of refugees” (Clayton 2016). The 1951 Refugee Convention aimed at providing sanctuary to refugees with the most significant aspect of this protection being the principle of “non-refoulement” – no person should be expelled or returned to the country where he/she will be persecuted on the grounds of race, religion, nationality, membership of a particular social group, or political opinion. In an effort to protect people from severe human rights violations, the Convention provided the framework within which a person fleeing their homeland due to a conflict could ask for asylum in a foreign country. The scope of the 1951 Refugee Convention does not extend to offering protection to those fleeing their homeland due to environmental factors. More specifically, the 1951 Refugee Convention provides under Article 1(A)(2) that: “For the purpose of the present Convention, the term refugee shall apply to any person who: As a result of events occurring before 1 January 1951 and owing to well-founded fear of persecution for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence as a result of such events, is unable or, owing to such fear, is unwilling to return to it (emphasis added)”.
The Convention provides that people will be able to bring a claim under Article 1(A) if there is good evidence to suggest that the claimant has a reasonable fear of persecution upon return to their homeland due to their race, religion, nationality, membership of a particular social group, or political opinion. Persecution has three elements: “(1) serious harm that is (2) inflicted or tolerated by official agents (3) for illegitimate reasons” (Price 2009). Therefore, the consequences of climate change do not come under the definition of “persecution”, since they do not derive from official state agents. Nevertheless, asylum claimants have claimed that the fact that the State chose not to spend money in order to protect the vulnerable group of people residing close to the shore and who were threaten by rising sea levels amounted to persecution by the government (Refugee Appeals 72179/2000, 72180/2000, 72181/2000).
According to Price, persecution does not apply to a specific type of harm induced to a person, and there is no specific definition in the relevant jurisprudence. Nevertheless, the humanitarian approach suggests that protection should be afforded regardless of the specific harm induced (Price 2009). This theory could prove beneficial to those fleeing their homeland due to the effects of climate change and in pursuit of asylum in a neighboring country. If the focus of the Article is the harm rather than the persecution itself, a wider interpretation could reveal that a harm that causes displacement could be addressed even when this is not anthropogenic, vis-à-vis a climate change-induced harm. The claimant should show genuine fear of being persecuted upon return to their homeland, evidenced by their previous experience and circumstances in accordance with the definition of “refugee”. This “objective” or “subjective” fear derives from the effects of a natural phenomenon, despite the fact that climate change is attributed to human activity. “Fear” is at the center of appeals over asylum claims, where appellants are relying on their “fear” over the environmental and economic circumstances of their country, as a factor to base their asylum claims on (Refugee Appeal No, 72189/2000 to 72195/2000). As Price accurately states, “not only is it arbitrary to focus on persecution to the exclusion of other harms, but it is also arbitrary to focus on certain reasons for persecution to the exclusion of other reasons” (Price 2009).
Although optimistic interpretations of the 1951 Refugee Convention suggest a possible solution to the problem, this is far from becoming a reality. Considering the time and reasons of its creation, the Convention understandably does not cover some of the present-day circumstances, mentioned in these asylum claims, under which people decide to flee their homeland. Therefore, the coverage offered by the Refugee Convention does not accommodate people fleeing their homeland due to the climate change effects, as illustrated by the now heavily populated list of asylum claims, initiated by “climate migrants” seeking protection under the 1951 Refugee Convention. The majority of these cases are challenged on their inability to bring the applicant’s concerns over returning to their homelands under the scope of the 1951 Refugee Convention (Refugee Appeal No. 72185/2000). Under the 1951 Refugee Convention, the asylum seeker bears the burden of proof in establishing that they are members of a particular group and persecuted due to this membership. But, these asylum claims are based on “fears” common to the whole population of several of the affected islands. Therefore, the applicants do not belong to a specific group which is persecuted under the Convention’s wording (Refugee Appeal No. 72186/2000).
One such case was brought by Ioane Teitiota. He claimed that due to the serious effects of climate change on the island of Kiribati, he could not return. He claimed that Article 1A(2) of the Refugee Convention could protect “environmental refugees”. He sought to appeal a decision of the Immigration and Protection Tribunal that Teitiota could not bring himself within the Refugee Convention on the basis that Kiribati was suffering the consequences of climate change. The Court said the following: “In the particular factual context of this case, the questions identified raise no arguable question of law of general or public importance. In relation to the Refugee Convention, while Kiribati undoubtedly faces challenges, Mr Teitiota does not, if returned, face ‘serious harm’ and there is no evidence that the Government of Kiribati is failing to take steps to protect its citizens from the effects of environmental degradation to the extent that it can… That said, we note that both the Tribunal and the High Court emphasised their decisions did not mean that environmental degradation resulting from climate change or other natural disasters could never create a pathway into the Refugee Convention or protected person jurisdiction. Our decision in this case should not be taken as ruling out that possibility in an appropriate case” ( NZSC 107). Currently there is no refugee or immigration law to provide protection for climate migrants, but the Court left open the possibility of the Refugee Convention being interpreted to address similar circumstances. Due to this lack of relevant human rights protection and as a result award of asylum, “climate migrants” are caught in a legal lacuna.
In the case of AF (Kiribati), the Court said that the voluntariness of the decision to migrate is pivotal in decision-making over granting asylum ( NZIPT 800413). In circumstances such as those in this case, where the applicant voluntarily and soberly decides to migrate to a safer natural environment, the voluntariness of the action is sufficient so as to exclude itself from the realm of the 1951 Refugee Convention. According to the Overseas Development Institute, when the effects of climate change are so severe as to be considered unbearable, then migration should be considered forced (Wilkinson et al. 2016). In addition, return to the place of origin might not be possible, due to the loss of land. As the Overseas Development Institute accurately observes, the difference between climate migration and those fleeing environmental disasters is that the first is a reaction to an anticipation of severe effects rather than to a severe disaster with current consequences (Wilkinson et al. 2016). Under such circumstances and in pursuit of a safe environment, migration tends to happen internally, meaning that people will choose to move to a safer environment within their homeland’s borders. Such movement though is not one that could come under the scope of the 1951 Refugee Convention, even if the asylum seeker could show a genuine fear of returning home.
The Indirect Effects of Climate-Induced Displacement
Climate migration brings with it risks such as the movement towards areas with little or no adaptation measures to climate change effects (dykes, etc.) and to areas with little health provisions (IPCC 1990 and 1992 Assessments 1992). Added to these, climate change and its effects have been the prevailing factors for several disturbances, causing conflict and violence. It is important to understand that climate change can not only cause migration due to the environmental factors affecting the quality of one’s life (securing food, water, shelter, safety, etc.). It can also accelerate unrest and conflict. In some occasions, and as history shows, such long-standing conflicts have also resulted or originated from the scarce natural resources (Türk and Nicholson 2003). The effects of diminishing resources and the ensuing conflicts can lead to issues currently covered by the 1951 Refugee Convention. In 2017, Steve Trent (Environmental Justice Foundation) said that “Climate change is the unpredictable ingredient that, when added to existing social, economic and political tensions, has the potential to ignite violence and conflict with disastrous consequences” (Taylor 2017). Such conflicts have also been reported in the case of AF(Kiribati), whereas the social effects of climate change are now reflected on the increased criminal activity in the area ( NZIPT 800413).
In addition, the UN Refugee Agency suggests that migration itself could create tension in the new place of residence. Another problematic area, equally to that of hosting refugees for decades, due to decade-long conflicts is expressed by the United Nations Refugee Agency: “There is a real challenge as to how best to share responsibilities so as to ease the burden on any one state unable to shoulder it entirely. There is also a need to put in place burden sharing – not burden shifting – mechanisms which can trigger timely responsibility sharing in any given situation” (Türk and Nicholson 2003). This is true in climate-induced displacement, given the shared responsibility for hosting “climate migrants” as well. It should be noted that the responsibility of greenhouse gas emissions is not shared proportionately to the burden of receiving, hosting, and protecting “climate migrants” by several states. Those that are mostly affected by climate change are those least responsible for the phenomenon itself. In addition, as Goodwill-Gill and McAdam suggest, “[t]he study of refugee law invited a look not only at States’ obligations with regard to the admission and treatment of refugees after entry, but also at the potential responsibility in international law of the State whose conduct or omissions cause an outflow” (Goodwill-Gill and McAdam 2007). This requires that there is recognition of the significance of each country’s contribution to climate change but also the effect of each national regulation to the overall combat of the phenomenon. But, this is far from being realized.
Sustainable Development and Climate-Induced Displacement
Measurement indicators and correlated matrix for conditions of (a) potential displacement, (b) mitigation options, (c) adaptation alternatives allowing remaining in place, and (d) establishment of mitigation/adaptation measures.
Quantitative and qualitative assessment indicators of application and effects of mitigation/adaptive measures.
Quantitative and qualitative assessment indicators of mobility/migration arrangements for displaced populations, including indicators to measure livelihood viability, living conditions, and rights protections at relocation destination.
Measure of resources allocated to actions directly related to displaced/potentially displaced populations as a supplemental indicator to those above (Department of Economic and Social Affairs 2017).
Given how displacement is now considered an adaptation measure, the following progress of the indicator is informative, potentially under 13.1.1 on the “[n]umber of deaths, missing persona and persons affected by disaster per 100,000 people”. Progress since then has indicated a general development at an international and national level in relation to adaptation measures in response to climate change (UN Economic and Social Council 2017). The 2016 report on the progress toward these indicators suggests that climate change is affecting the most vulnerable countries and communities (UN Economic and Social Council 2016). The target indicates that responses to environmental disasters and environmental risks would limit climate migration and the need of displacement. Nevertheless, the indicators do not reflect on the asylum claim procedure upon arrival of a “climate refugee” to the host state.
Although we currently have a good understanding of the causes of climate change and its effects on the natural environment, the emerging numbers of climate refugees have not been addressed within the existing international law. The climate change effects range from increased and more severe weather phenomena to rising sea levels. For example, the Pacific Islands have been greatly affected by climate change due to more frequent extreme weather phenomena and rising sea levels affecting the secure gain of fresh water and food due to soil erosion. On the other hand, northern countries are experiencing the development of new industries contributing to the national gross domestic product. Therefore, reaching a consensus on a globally accepted response to climate-induced displacement is currently within the spectrum of impossibility. The problem primarily derives from the current definition of “refugee.” The UN Refugee Agency defines refugees as “people fleeing conflict or persecution. They are defined and protected in International law, and must not be expelled or returned to situations where their life and freedom are at risk” (UNHCR 2018). The definition implies forced migration induced by life-threatening or freedom-threatening circumstances. In a situation where a conflict is present and the person faces persecution for any reason as provided by the 1951 Refugee Convention, an asylum claim could be straightforward if the evidence of such fear is available. Nevertheless, in cases of climate migration, where the urgency, the voluntary aspect of fleeing, and the questionable threat to freedom is present, an asylum claim is impossible to be successful. There is a need for redefining “refugees” by expanding its meaning and therefore expanding the scope of international law.
Definitions of climate change vary, and although they give an indication of its effects on the enjoyment of a life of quality, they are not directly drawing links with these. For example, the Oxford Dictionary of Environment and Conservation defines climate change as “Any natural or induced change in climate, either globally or in a particular area. Examples include the natural climate change that has caused ice ages in the past, and global warming that is now being caused by rising concentrations of greenhouse gases in the atmosphere” (Park 2008). The Intergovernmental Panel on Climate Change defines climate change for the purposes of the United Nations Framework Convention on Climate Change as “A change of climate which is attributed directly or indirectly to human activity that alters the composition of the global atmosphere and which is in addition to natural climate variability observed over comparable time periods”. For the use of the Intergovernmental Panel on Climate Change, the definition of climate change suggests that “Projections of future climate change reported by the Intergovernmental Panel on Climate Change generally consider only the influence on climate of anthropogenic increases in greenhouse gases and other human-related factors” (Houghton et al. 1996). The plethora of definitions is evidence of the general interest around climate change and its causes as well as its effects. Nevertheless, few definitions have explicitly linked climate change to human activity and legal responsibilities in tackling its ensuing effects. This is explained by Fischer who says that the consequences of climate change can rarely be attributed to identifiable human activities, while these can occur in multiple locations and at different times (Fischer 2013).
Several proposals for reform have been made. The aim of these proposals is the creation of a legal framework to cover the protection of “climate refugees”. The first proposal put forward was the reliance on the United Nations Framework Convention on Climate Change in not only responding to climate change but also to addressing the protection of “climate migrants”. The main criticism against this was that such instruments primarily impose duties between states regulating interstate activities. The discussion of duties of states toward individuals, as those required for the protection of “climate migrants”, is usually addressed under human rights law or refugee law (Docherty and Giannini 2009). Another proposal was the creation of an independent convention that would bring together the affected communities and create an instrument that would address this issue independently from states. Docherty and Giannini suggested that “negotiations for a new convention could break out of the traditional state-to-state mould and involve communities and civil society, a growing trend in international treaty development. These groups could help increase the focus on humanitarian provisions and could push states to expedite the negotiating process” (Docherty and Giannini 2009). But McAdam has criticized this approach as problematic by saying that a universal instrument will not address the interests of the affected communities (McAdam 2012). The effects of climate change are perceived differently in Tuvalu, Kiribati, and Bangladesh “because of their particular geographical, demographic, cultural and political circumstances, and it may be that localized or regional responses are better able to respond to their needs. Such approaches can take into account the particular features of the affected population, in determining who should move, when, in what fashion, and with what outcome” (McAdam 2012). According to Docherty and Giannini, neither the current refugee law regime nor climate change regime was created to address this emerging migration issue. Therefore the solutions to the problem have to be identified elsewhere (Docherty and Giannini 2009).
At an international level, the United Nations agencies have been exploring ways of addressing the matter under refugee law and human rights law. In 2017, the United Nations High Commissioner on Human Rights released an overview of its role amidst environmental disasters, with a specific focus on displacement and movement across borders. Since then, further developments have taken place, such as discussions over the Paris Agreement and specific responses to displacement. A further step forward has been made by the United Nations High Commissioner for Refugees which has been engaging with the United Nations Framework Convention on Climate Change in relation to “migration, displacement, and climate change” with further collaboration since 2008. The latest development comes through the WIM Task Force on Displacement in 2017, with Activity II.4 asking for the United Nations High Commissioner for Refugees to map the “existing international and regional instrument, guidance and tools on averting, minimizing and addressing displacement and durable solutions” (UNHCR 2008). The expected submissions will be delivered in 2018.
The current migration wave due to rising sea levels – among other climate change consequences – is unprecedented and one that challenges the traditional notions of refugee law, human rights law, and international law. The effects of climate change are not limited to the “sinking islands” as there are multiple experiences of the consequences of climate change shared across the planet. Considering the examples of the shrinking Aral Sea as well as the outcome of increased temperatures observed in multiple European countries, the ensuing relocation measures as an adaptation method to climate change have been expected. In relation to those fleeing these sinking islands, international law has been proven to be inefficient in providing for their protection. The existing refugee protection framework is falling short, unable to address more modern and emerging issues deriving from environmental factors, albeit anthropogenic ones. In addition, the effects of climate change are not only experienced by “climate migrants” but also the rest of the world hosting these migrants (Stern 2007). International law does not have the provisions and is not supported by the political will to support changes in this area of law, in order to support individuals from the effect of a globally anthropogenic environment-altering phenomenon. Further developments in international law are necessary, and consultation with those affected more is pivotal to the efficient protection of “climate refugees”.
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