Climate Refugees

Beyond the Legal Impasse?

Simon Behrman, Avidan Kent, Simon Behrman, Avidan Kent

• Publisher: Routledge
• Year: 2018
• Print ISBN: 9781138088818
• eBook ISBN: 9781351613590
• Topic: Biological Sciences
• Subtopic: Environment & Energy Policy
• Index: Biological Sciences

Current estimates of the numbers of people who will be forced from their homes as a result of climate change by the middle of the century range from 50 to 200 million. Therefore, even the most optimistic projections envisage a crisis of migration that will dwarf any we have seen so far. And yet attempts to develop legal mechanisms to deal with this impending crisis have reached an impasse that shows little sign of being overcome. This is in spite of the rapidly growing academic study and policy development in the area of climate change generally.

'Climate Refugees': Beyond the Legal Impasse? addresses a fundamental gap in academic literature and policy making – namely the legal 'no-man's land' in which the issue of climate refugees currently resides. Past proposals for the regulation of climate-induced migration are evaluated, inter alia by their original authors, and the volume also looks at current attempts to regulate climate-induced migration, including by officials from the International Organization for Migration (IOM), the office of the United Nations High Commissioner for Refugees (UNHCR) and the Platform on Displacement Disaster (PDD).

Bringing together experts from a variety of academic fields, as well as officials from leading international organisations, this book will be of great interest to students and researchers of Environmental Law, Refugee Law, Human Rights Law, Environmental Studies and International Relations.

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PART I

Foundations

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1

OVERCOMING THE LEGAL IMPASSE?

Setting the scene

Simon Behrman and Avidan Kent

I Introduction

Climate change is often defined as a ‘super-wicked’ problem; one ‘that defies resolution because of the enormous interdependencies, uncertainties, circularities, and conflicting stakeholders implicated by any effort to develop a solution’.¹ It is clear today that migration is one of the many issues that policy makers will have to face when addressing climate change.

The Carteret Islanders are frequently mentioned as a prime example of people forced from their lands due to climate change – often referred to as the world’s first climate refugees – with major relocations of its population to Bougainville having taken place over the last few years. Research published on the Solomon Islands in 2016 found that in recent decades, five of its uninhabited islands have become completely submerged. Another six inhabited islands have lost at least 20 per cent of their land, with some losing as much as 55 per cent and 62 per cent, and at least two villages have been effectively destroyed by coastal erosion.² Kiribati, the most low-lying nation on Earth, has been sending its citizens around the world to raise awareness of the danger they face. One of them, on a recent visit to Australia, commented:

We don’t want to leave our country. We love our land, and it doesn’t have the same meaning to be living somewhere else. We don’t want to be migrants of climate, but if there is no change our country will disappear into the sea.³

The World Bank has suggested that the richest countries of the South Pacific, Australia and New Zealand, should start facilitating legal immigration routes for people from low-lying Pacific Islands, in order to avoid mass forced migration in the near future.⁴ According to the UN it is estimated that some 50 million people will be displaced as a result of desertification alone in the next decade.⁵

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Of course, it will rarely, if ever, be the case that the causes of movement can be reduced to a single factor. Not only must we distinguish between natural and human-made causes, but also the level of vulnerability of the affected population. Poverty, lack of skills and lack of infrastructure will hamper the ability of people to adapt, or to migrate safely and legally.⁶ Droughts in California have not led to anything like the scale of social crisis as droughts in Haiti.⁷ A further, and in legal terms much greater, challenge is the availability of migration options across national borders. The Carteret Islanders have been able to migrate in an orderly fashion to higher ground within their nation-state of Papua New Guinea; for the i-Kiribati there are no highlands within their country to move to. In a country like Haiti, ravaged by numerous ecological and climate change impacts, extreme poverty and lack of infrastructure means that internal migration is much less feasible than in, say, California. In short, for some if not all, the effects of climate change coupled with other factors, will mean that cross-border migration becomes the most viable, or even the only option. And here is where the problems begin to increase exponentially.

There are at least some legal frameworks that can extend protection to climate refugees within national borders – human rights instruments to which the state is party, the Guiding Principles on Internal Displacement, and of course specific rights claims to be made within the domestic law of the country concerned. However, once a person crosses a border, a protection gap opens up before them. In a somewhat perverse aspect of international law, there are clear rights in both soft and hard law to leave one’s country, but no corresponding right to enter another.⁸ The lack of a right to enter a country is only one of the pieces that are currently missing in international law and many other issues will have to be addressed. Authors have pointed, for example, at the lack of financial and liability mechanisms, the statehood ‘status’ of disappearing nations, refugees’ cultural rights in exile and more.

Nor is this legal gap a marginal issue. From 2008 through to 2014, around 157 million people were displaced across the world as a result of ‘weather-related events’.⁹ Of course, only a proportion of that figure will be directly or indirectly related to the effects of climate change. To give a sense of what that proportion might be, a joint report by the UN Office for the Co-ordination of Humanitarian Affairs and the Norwegian Refugee Council some years ago offers one estimate. They estimated that over 36 million people had been displaced in 2008 by sudden-onset disasters, with around 20 million of these (56 per cent) victims of events related to climate change.¹⁰ Moreover, while attention often focuses on specific regions such as the Pacific Islands or Africa, the most devastating climate events in 2008 were spread across the globe, including the Philippines, China, India, Myanmar, the US and Cuba.¹¹ Even acknowledging the multiplicity of events captured by these statistics, and the complex causal relationships involved, the fact is that increasing numbers of people on a very large scale are having to move as a result of factors associated with climate change. Given the predictions for how the effects of climate change are likely to exacerbate further and at a faster pace than it has up until now, the necessity of filling this legal gap is urgent.

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Instead, academics, lawyers and not least the people effected by climate change themselves have run into a series of dead-ends. The Inuit petition to the Inter-American Court of Human Rights (IACHR) failed in 2007 because of the impossibility of showing a direct causal link between pollution produced in Canada and the USA, and the human rights violations being suffered by the petitioners and their communities. Indeed, human rights law, based as it is on establishing rights claims against violators on a direct causal basis, is ill fitting when it comes to the effects of climate change. While it is a fairly straightforward claim to seek damages or an injunction against a state involved in, say, refusing to take precautions where its citizens face the threat of flooding, low-lying states threatened with inundation because of sea-level rise face an almost impossible task in asserting similar claims. Against whom will they make their claim? Carbon-producing states have no legal responsibility to ensure adequate flood-protections for them. Moreover, as in the Inuit case, it would be impossible to demonstrate a direct causal relationship between the carbon emissions of one state and the specific damage threatened to another because of rising sea levels. Looking in another direction, in 2015 the Supreme Court of New Zealand confirmed what many commentators had long argued: the terms of the 1951 Refugee Convention do not allow for protection to be extended absent demonstrable persecution aimed at the person seeking asylum.¹² And yet there seems little appetite from any quarter to reopen the 1951 Convention to renegotiate the criteria for refugee status. There have also been a number of proposals advanced for a new sui generis treaty, one example being discussed by Michel Prieur in his contribution for this book,¹³ but at the national or international institutional level these have yet to find much favour.

However, much more recently, there has been progress. The 16th annual meeting of the Conference of the Parties to the United Nations Framework Convention on Climate Change (COP16) in 2010, declared that adaptation strategies should address vulnerable communities, specifically identifying migrants as one such group.¹⁴ By the time of the COP21 five years later, things had shifted considerably with an agreement to set up a task force under the aegis of the Warsaw International Mechanism for Loss and Damage associated with Climate Change Impacts (WIM) to:

complement, draw upon the work of and involve, as appropriate, existing bodies and expert groups under the Convention including the Adaptation Committee and the Least Developed Countries Expert Group, as well as relevant organizations and expert bodies outside the Convention, to develop recommendations for integrated approaches to avert, minimize and address displacement related to the adverse impacts of climate change.¹⁵

Moreover, in the introduction to the agreement concluded at COP21 (the ‘Paris Agreement’), explicit mention was made of the need for states to protect the rights of migrants in the context of climate change impacts.¹⁶ At the same time as the Paris Agreement was being concluded, 104 states signed up to the Swiss-Norwegian-led Nansen Initiative. This seeks ‘to improve [states] preparedness and response capacity to address cross-border disaster displacement’ through sharing of knowledge of existing best-practice across the world. As the successor organisation to the Nansen Initiative, the Platform on Disaster Displacement, discuss in detail in their contribution to this volume, they have identified a willingness to address protection measures for people displaced by climate change, and disasters in general, at the regional and sub-regional levels. Furthermore, Mariam Traore Chazalnoel and Dina Ionesco, from the International Organization for Migration (IOM), argue in their chapter that in tandem with developments within the UNFCCC, the New York Declaration for Refugees and Migrants, agreed by all 193 UN Member States demonstrates a shift towards recognising the ...

Table of contents

• Cover Page
• ‘Climate Refugees’
• Routledge Studies in Environmental Migration, Displacement and Resettlement
• Title
• Copyright
• Contents
• Acknowledgements
• List of Editors
• List of Contributors
• List of Abbreviations
• Part I Foundations
• Part II Defining and Categorising
• Part III Governing Climate Refugees: The Perspective of Inter-Governmental Organisations
• Part IV Regulating Climate Refugees Within Existing Legal Regimes
• Part V Envisioning Sui Generis Pathways
• Index