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1 Defining the ālegal holeā
I Introduction
Much has been said (including by the authors of this book1) about the ālegal holeā in which climate refugees reside.2 In a nutshell, it is claimed that the unique circumstances of climate refugees are not covered under international law. Important conventions such as the UNFCCC and the 1951 Refugee Convention (and its 1967 Protocol) do not address these people, while other international law instruments are considered either too weak, too general or even too basic.
The result of this ālegal holeā is highly problematic. Those who are forced to migrate across borders due to climate change are denied legal remedies, either in the form of rights to enter another state for refuge, financial compensation or a legal status that will allow them to begin their lives elsewhere. Also the āculpritsā ā i.e. those who are responsible for this situation ā are not subjected to any sanction or liability. This ālegal holeā also puts into question the ability of those migrants to maintain their culture, their communities and even their claim to self-determination. Complete nations may disappear under waters; they may lose their homelands, their sense of community, nationality and culture. And yet, there is not even one binding international legal instrument in which the rights of climate refugees are being explicitly protected.
Admittedly, defining the situation as a ālegal holeā could be misleading, at least to a certain extent. International, regional and domestic laws have proliferated during the last six decades to such a degree that almost no situation can be considered as entirely unregulated ā i.e. as one that no law has any relevance for. Moreover, different legal regimes are often drafted in an open and inclusive manner so as to allow, either directly or indirectly (through evolutive interpretation), the coverage of phenomena that were not predicted when these laws were enacted.3 As a result, there are indeed many legal instruments that are, or could be, relevant to the situation of climate refugees. Indeed, as explained elsewhere,4 in a number of cases those fleeing environmental disasters were granted protection, including by other countries. Describing the current legal picture as a bleak tabula rasa is therefore inaccurate.
So, what kind of a ālegal holeā are we all concerned about? In the following chapter we will discuss the legal frameworks that are potentially relevant in providing protection to climate refugees. This chapterās main objective is to describe, explain and define the legal āgapā in which climate refugees reside.
We begin by mapping the relevant legal frameworks, and define more clearly why they are regarded as lacking. While our overview is extensive, due to space limitations it can be defined more accurately as ārepresentativeā and not as ācompleteā. This mapping exercise will be followed by a discussion and an identification of those missing bits that form, in our view, the ālegal holeā.
Next, we will review two developments that signify the early stages of a change in attitude towards the regulation of climate refugees, namely the establishment of the UNFCCCās Task Force and the adoption of the New York Declaration. We will further provide an overview of the proposals that several groups of academics have made, based on which future developments could be developed.
Lastly, we will discuss the myriad conceptual problems that, in some academicsā view, currently stand in the way of filling the regulatory gap.
II Mapping the legal framework
A rather extensive body of international laws has been identified by commentators as relevant for the situation of climate refugees. As can be seen below, these rules vary to a great extent; some are binding while others are āsoftā; some are focused on the protection of individuals while others are concerned with financial transfers between states; some are multilateral while others are based on much smaller frameworks. All, however, are relevant to the dire situation of climate refugees; they each address a specific need in this context, and they each represent a certain model that could be followed, were a more ambitious regulatory scheme ever to be negotiated by states.
In their 2012 background paper, KƤlin and Schrepfer have categorised existing relevant laws/regulations into three groups: (1) mitigation-related; (2) adaptation-related; and (3) protection-related laws.5 This useful categorisation will be relied on in this chapter as well.
In order to avoid duplications with previous publications/mapping exercises, more emphasis will be placed in this chapter on post-2012 developments, most of which were not discussed in older publications. Certain pre-2012 rules, however, are crucial for understanding the legal gap and therefore will be reviewed here as well.
A Mitigation rules
In the context of climate change law, the term āmitigationā refers to the prevention of climate change through policies that are aimed at the reduction of greenhouse gas (GHG) emissions and the enhancement of GHG sinks and reservoirs.6 The relevance of mitigation rules to climate-induced migration is straightforward; the mitigation of climate change will reduce or eliminate the reasons for migration.
The clearest examples of such mitigation obligations are the United Nations Framework Convention on Climate Change (UNFCCC) and its ādaughterā agreements (the Kyoto Protocol and the Paris Agreement). The UNFCCC imposes on its Parties the general obligation to mitigate climate change.7 More specifically, Article 3 of the Kyoto Protocol instructs Annex I states8 to reduce their emission levels and reach legally binding targets. More recently, Article 4(1) of the 2015 Paris Agreement states that the Parties shall āaim ā¦ to undertake rapid reductionsā by pursuing domestic mitigation measures. The somewhat softer legal technique that was adopted for mitigation under the Paris Agreement is based on the principle of progression (or non-regression).9 In essence, states are asked to set their own reduction targets and improve these every five years.
There are other, more vague legal instruments that could be implied as imposing obligations to adopt mitigation-related rules. For example, the only sentence that resembles a binding legal obligation in the Sendai Framework for Disaster Risk Reduction dictates that ā[e]ach State has the primary responsibility to prevent and reduce disaster riskā.10 The Sendai Framework will be discussed below (under āadaptation rulesā) in more detail. In the context of this book, the word āpreventā seems to represent the principle of preventive action, which has been recognised as a rule under customary international law. In Chapter 3, we will discuss more closely the role and the relevance of this rule in the context of climate-induced migration.
Another mitigation-related obligation can be found in the 2016 New York Declaration for Refugees and Migrants. While the Declaration is focused primarily on protection-related rules (see below), states also commit themselves to addressing the ādrivers that create or exacerbate large movementsā, including ācombating environmental degradation and ensuring effective responses to natural disasters and the adverse impacts of climate change.ā11
There are many other international law instruments that are aimed to achieve mitigation goals, whether in the context of specific GHGs (e.g. the Montreal Protocol12), of specific sectors (e.g. transportation13) or specific regions (e.g. the European Union Emission Trading System and Effort Sharing Decision14). The purpose of this chapter, however, is not to provide an exhaustive review of climate mitigation rules,15 but only to explain their nature, and to suggest that indeed many such rules exist.
As already stated, mitigation-related rules are the optimal tool for resolving the problem as they eliminate or at least reduce the need to migrate. It is important to stress, however, that none of the rules described above is currently providing an answer to the problem. In essence, these rules are too weak and ineffective and, in all likelihood, are not expected to lead to the elimination of climate change. According to the International Energy Agency, the current commitments made under the Paris Agreement will not lead to a significant change16 and are not expected, therefore, to eliminate the causes of climate-induced migration. Other rules mentioned above (e.g. Sendai Framework, New York Declaration) are too soft and vague, and (at least in the context of mitigation) it seems that even the creators of these rules did not expect them to do more than simply fill empty spaces in policy papers. Existing mitigation-related rules cannot therefore be considered as granting any sort of solution for the situation of climate refugees.
B Adaptation rules
The second group in KƤlin and Schrepferās categorisation are adaptation-related rules. Adaptation-related laws reflect the ...
