Seeking Refuge: The Climate Change Emergency

In 1990, the Intergovernmental Panel on Climate Change (IPCC) warned that the impacts of climate change would lead to the relocation of millions of people around the world.[1] More recently, as our attention is captured by reports of nations being swallowed whole by rising oceans,[2] and polar bears are photographed in desolate melting habitats, the IPCC has been just one among many voices reiterating the urgent global issue of large-scale movement due to rising sea levels, extreme weather events such as hurricanes and flooding, and drought and desertification.[3] In 2008, the United Nations Office of the High Commissioner for Human Rights (UNHCR) acknowledged that climate change could affect millions through ‘permanent displacement’.[4] We are reaching a point where, for some regions of the world, forced migration due to climate change is inevitable.[5] Particularly vulnerable are the populations of the island nations (such as Tuvalu), Africa, and the mega-deltas on the Asian continent,[6] with millions already being displaced due to climate-related disasters[7] – some places are in fact, entirely disappearing.

Even with drastic measures to cut greenhouse gas emissions, climate scientists report that the globe has reached its ‘tipping-point’.[13] At this stage if the world was to completely convert to renewable energy, we would have already caused irreversible warming beyond safe levels. Climate change migration as such is an urgent international issue, and one that will require global coordination.[14] It is likely that migration in the future will be ‘unmanageable’ and leave [15] hundreds of millions without enough food and water.[16] As this international body already reports under-resourcing and strain,[18] it seems that the international community is ill-equipped to deal with one of the greatest challenges of this century and beyond[19] – making the need for international action all the more urgent.

The Inadequacies of the Refugee Convention

The main problem for Climate Displaced Persons (CDPs) under international law is that they are not adequately protected by the 1951 Refugee Convention [21].The notion of ‘climate refugees’ has been conceived relatively recently (compared to the notion of the traditional refugee forced to flee persecution), and refers to those individuals forced to relocate due to environmental factors.[22]

Attempts have been made to protect CDPs via the Refugee Convention. However, such attempts have stalled due to the restrictive nature of the Refugee Convention, which requires a ‘well-founded fear of persecution’ based on ‘race, religion, nationality, membership of a particular social group or political opinion.’[23] Further, the Refugee Convention only applies the term ‘refugee’ to a person who, owing to that fear of persecution, is outside of their country of nationality.

The requirement for ‘persecution’ removes a number of CDPs from the protections of the Refugee Convention. It is true that ‘there is no universally accepted definition of persecution’,[24] and environmental harm or degradation may be considered persecutory.[25] However, persecution does require an act of government against that person.[26] In order to fall within the definition of refugee, a person must establish that the environmental degradation results from government actions;[27] that the environmental degradation is not generalised, but affects them in their capacity as a member of a particular group.[28] Some have argued that climate refugees do fall within the Refugee Convention definition because environmental degradation caused by government activity constitutes persecution [29] and that the persecution targets persons in particular social groups.[30] An oft-cited example is that of the ‘Marsh Arabs’, a specific ethnic group arguably targeted by the Iraqi Government in its plan to drain the marshes in Southern Iraq.[31] However, the legal literature shows that this argument has had little success[32] and may require clever legal somersaulting.

There is an argument that state persecution can be evidenced by governmental negligence resulting in environmental degradation, for example, the desertification of the African Sahel, where the government allegedly failed to enact policies to support food production and improve agricultural techniques.[33] However, the Refugee Convention considers a lack of state protection persecutory only where the government demonstrates persecutory intent [34] towards a distinct group.[35] It would be difficult to argue in a case of governmental negligence that the government targeted a particular group,[36] making it almost impossible to prove an intent to discriminate under the Convention. Similarly, a nation’s inability to act, and a resulting lack of protection of its citizens’ basic human rights, still does not satisfy the requirement for persecution of a particular group.[37] It is also unlikely that governmental involvement (or lack thereof) in crises and environmental degradation equates to traditional notions of persecution.[38] Identifying the persecutory intent of significant emitters, or even the international community at large, would also be difficult due to the requirement to establish the link between that entity’s action or inaction, and the respective climate change impact in each case.[39] Take, for example, a natural disaster such as the Victorian bushfires of 2011. Climate change is making these disasters increasingly common and severe (see,https://www.theguardian.com/environment/blog/2014/jul/14/8-charts-climate-change-world-more-dangerous ) but as the law stands it would be impossible to find the Australian government guilty of persecution.

Further, the Refugee Convention’s requirement that a person be outside of their country of nationality specifically excludes a large proportion of CDPs. Studies into the phenomena of climate displacement have shown that the vast majority of CDPs remain within the borders of their own country. In Bangladesh, for example, migration is primarily internal.[40] Even within the sinking islands in the Pacific the first relocation has been internal, with people moving within the one island to higher ground.[41]

The case of Ioane Teitiota in New Zealand [46] highlights the difficulties of establishing refugee status when fleeing environmental degradation. Teitiota claimed that he was a refugee from his homeland of Kiribati due to environmental degradation resulting from sea-level rise.[47] He pursued this claim through New Zealand’s court system and was ultimately unsuccessful. The New Zealand Supreme Court did not completely rule out that environmental degradation and other consequences of climate change[48] may allow a ‘pathway into the Refugee Convention’. However, in this instance the court found that the applicant did not face serious harm, and that Kiribati’s government had not failed to take steps to protect its own citizens from the harmful effects of climate change.[49]

Teitiota is not alone in pursuing a claim of refugee status due to environmental degradation. New Zealand’s Immigration and Protection Tribunal, which dismissed Teitiota’s claim for refugee status in 2013, noted in its decision that a number of Tuvaluans have sought refugee status due to ‘inundation, coastal erosion, salination of the water table’ and other environmental factors.^[50] These claims have been unsuccessful, despite the severe impact of environmental factors on the persons involved, ‘because the indiscriminate nature of these events and processes gave rise to no nexus’ to grounds under the Refugee Convention.^[51] In fact, to date there is no authority from a court of New Zealand, Australia, Canada, the United States, the United Kingdom or Europe to support the extension of the Refugee Convention to CDPs,^[52] while in numerous instances the courts have found that the harm feared by CDPs is not a fear of persecution and is indiscriminate.^[53] The High Court of Australia has affirmed the limited scope of the Refugee Convention,^[54] finding that its definition does not encompass persons fleeing natural disasters,^[55] and that ‘no matter how devastating a natural disaster or famine may be… a person fleeing them is not a refugee…’.[56] It seems that it would take an extremely liberal interpretation of the Refugee Convention to bring CDPs under its protection.^[57] CDPs who lack refugee status run the risk of detention and expulsion if they do cross international borders and ‘may find themselves without work rights, basic health care, or social services.’[58] Considering the potentially huge numbers of displaced people in the near future, relying on creative arguments under the Refugee Convention is not a viable or just solution.

Broadening the Convention?

One option proposed to accord CDPs with protection under international law is to broaden the Refugee Convention. Jessica Cooper writes that a viable approach to fill the human rights gap is to expand the definition of ‘refugee’ in the Refugee Convention to include ‘climate refugees’ – this term referring to ‘persons who can no longer gain a secure livelihood in their traditional homelands because of what are primarily environmental factors’.[59] This approach, which has also been proposed by states including the Maldives,[60] would require the UNHCR to include such persons in its mandate.

However, this proposal is unconvincing, as ‘problems inevitably arise when attempts are made to wedge a new category or legal mandate into a pre-existing framework that was originally constructed for an entirely different purpose’.[61] The Refugee Convention is a product of its time; an instrument formulated shortly after the human rights atrocities of World War 2, as demonstrated by its original limited application to Europeans from before 1 January 1951.[62] The phenomenon of anthropogenic climate change was not a factor taken into consideration at this point in history.[63] Considering this context, it is little wonder that the Refugee Convention is limited to victims fleeing persecution by government. Even with the removal of the temporal and geographical limitations by the Protocol relating to the Status of Refugees (‘1967 Protocol’),[64] provisions aimed at persons displaced by climate change would not fit well within the Refugee Convention.

The UNHCR has acknowledged that an increasing number of people are being displaced by the effects of climate change, yet maintains that there are ‘fundamental differences between traditional refugees … and those now more commonly referred to as “environmental refugees”’.[65] In fact, according to the UNHCR, grouping the two together would further complicate the existing refugee framework and may even undermine the protection of both groups.[66] The very use of the word ‘refugee’ to describe CDPs could erode existing protections. Any attempt to redefine this term in the Refugee Convention risks a renegotiation of this instrument, which in the current political environment (with unprecedented humanitarian crises in regions such as the Middle East) is a risk too grave to take.[67] Finally, from a practical perspective, the UNHCR’s resources would be under increased pressure if its mandate was expanded to include the potentially millions of CDPs.[68] The UNHCR itself ‘has publicly stated that expanding its mandate to include climate migrants would overwhelm its institutional capacity’.[69] It follows that relying on the UNHCR to assist CDPs will undermine its abilities to protect traditional refugees.

Filling the gaps – the need for a stand-alone convention

The problem of climate displacement, which is ‘sufficiently new and substantial’,[70] deserves its own regime rather than ‘being forced within legal frameworks that were not designed to handle it.’[71] An entirely new legal instrument – a stand-alone convention – is the best way to tackle climate displacement. The convention would fill the gaps in the current international humanitarian and climate regimes, and could be specifically tailored to meet the needs of CDPs. The convention would also establish an international institution which has as its mandate the protection of CDPs [72] and should ‘complement existing law while providing a flexible forum for addressing an emerging problem.’[73]

The convention ‘must include both internal displacement… the most likely form of displacement – and international (or trans-border) displacement.’[74] For that reason the convention proposed by Lucy Young and David Hodgkinson – the ‘Climate Change Displaced Persons Convention’ – is explored further below as an example of a stand-alone climate displacement convention. It is beyond the scope of this article to discuss certain high-level difficulties in implementing a convention – such as global politics, and the inevitable reluctance of nations to take on new obligations under a new convention – and thus the focus is instead on the CCDP Convention’s potential ability to fill the gaps in the current frameworks for the protection of persons who have ‘very likely’ been displaced due to climate change.[75]

The CCDP Convention addresses the human rights gap by creating a general framework for assistance to CDPs. Such assistance would be tailored for both internally displaced people and people who cross borders,[76] acknowledging the different circumstances and needs of these groups. Noting that the Guiding Principles, though non-binding, are an important legal framework for the protection of the internally displaced, the proposed CCDP Convention draws on these to adopt ‘a model in which the primary responsibility for CCDPs rests with their own State.’[77] The CCDP Convention also recognises that internal displacement is a matter of relevance to the entire international community [78] and obliges the international community to provide assistance and protection on request by a home state.[79] States would be required to provide assistance for health, housing, food and property restitution.[80] Another advantage of the CCDP Convention is its prospective nature. It would require states to ‘collect reliable and relevant data on climate change’ and adopt policies integrating assistance and protection for the future,[81] meaning that the CCDP Convention would facilitate aid as well as adaptive assistance.[82]

In relation to internationally displaced persons, the CCDP Convention draws on the Refugee Convention, as persons who cross state borders may be unable to rely on their home state for protection.[83] It guarantees for these people a minimum standard of treatment and a range of ‘civil, political, economic, social and cultural rights’.[84]  In particular, the proposed CCDP Convention provides that the internationally displaced should not be forcibly returned to their home if the changes caused by climate change threaten their life or ability to survive.[85] Finally, the CCDP Convention also provides for the specific situation of threatened island nations such as Tuvalu, acknowledging that ‘existing legal regimes do not adequately articulate the rights that should be accorded… in order to recognise this loss.’[86] Regional bilateral displacement agreements could be negotiated between threatened states and host states, based on the principles of proximity, self-determination (as enshrined in the International Covenant on Economic, Social and Cultural Rights [87]) and the safeguarding of culture.[88]

Secondly, the CCDP Convention fills the funding gap as it would create a funding mechanism for assistance to CDPs and developing nations.[89] The proposal is for developed state parties to contribute funds to a ‘climate change displacement fund’ (overseen by the Climate Change Displacement Organisation, the umbrella organisation created by the CCDP Convention). As with the UNFCCC, these contributions would be made on the basis of ‘common but differentiated responsibilities’,[90] recognising the imbalance between developed and developing nations, and their different abilities to tackle and adapt to the issues caused by climate change.

Where next?

As I write, the clock is ticking and we are plodding towards a future where the consequences of climate change are increasingly apparent. Entities in the private sector such as banks and insurance companies are recognising climate change as an issue. There is some hope that countries will be true to the goals set out in the 2015 Paris Agreement, and implement rigorous measures at a domestic level to adapt to and mitigate against climate change. In this time of goal setting and ambitious international declarations, it is high time to ensure that the plight of CDPs is not only acknowledged, but addressed.  The international community must accept responsibility and nations – both developed and developing – should become parties to a stand-alone convention that provides for a global governance framework to protect and resettle CDPs.[91] The CCDP Convention provides a possible model for such an instrument. It would be specifically drafted in recognition of the different types of displacement, acknowledging the complexity of this issue, and would fill the gaps in the current frameworks with guarantees of humanitarian assistance and funding based on common but differentiated responsibilities.

At a talk in New York in 2015, Mary Robinson, former President of the Republic of Ireland, spoke of ‘climate justice’. How unfair it is, she said, that the lowest emitters in the world are the ones to suffer the impact of climate change and lack the resources necessary to properly adapt. How unthinkable it is, how frightening, that a nation can disappear entirely. However, in all the despair, there is hope. In 1945, the world responded to the horrors of World War 2 with new legal frameworks and institutions, proving the ability of countries to respond to new challenges. Starting with the Paris Agreement from December last year, the world can – and must – respond. With people already being forced from their homes, and the threat of many more into the future, there is no excuse for inaction.