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© Lorrie Graham for AusAID

essays

Climate Change and Displacement

by Won Jang
June 13, 2019

Won Jang is a writer and researcher focusing on humanitarian affairs, UN sanctions and Korean politics. He worked on refugee issues for various organizations based in Egypt, Jordan and South Korea. He holds a Master of International Affairs degree from Columbia SIPA.

“…Gilgamesh sat with his chin on his knees till the sleep which flows over all mankind lapped over him. Then, at midnight, sleep left him; he got up and said to his friend, ‘Did you call me, or why did I wake? Did you touch me, or why am I terrified? Did not some god pass by, for my limbs are numb with fear? My friend, I saw a third dream and this dream was altogether frightful. The heavens roared and the earth roared again, daylight failed and darkness fell, lightnings flashed, fire blazed out, the clouds lowered, they rained down death. Then the brightness departed, the fire went out, and all was turned to ashes fallen about us. Let us go down from the mountain and talk this over, and consider what we should do.'”

-Epic of Gilgamesh-

Climate change and displacement, or climate change displacement, has become a buzz-phrase in the media as well as policy circles. According to the Internal Displacement Monitoring Centre, an average of 24 million people has been displaced by catastrophic weather disasters each year since 2008. Weather-related hazards caused 87.27% of all internal displacements associated with disasters globally from 2008 to 2018, whereas geophysical events such as earthquakes and tsunamis, which receive more attention, made up only 12.73%. The future looks even bleaker, as a World Bank report predicts that climate change could force 140 million people to move within their countries’ borders by 2050.

People are already being uprooted from their homes and forced to find better living conditions because of climate change. It is a reality that the world has to contend with. Then what do the numerous policy and legal frameworks say about the relationship between climate change and displacement, and how should they evolve to respond to the needs of millions who will be affected?

Do climate change refugees exist?

A cursory look at the UNHCR website is enough to find the agency’s position on the oft-cited term ‘climate change refugees’. It states in bold, black letters –

“The term “climate refugee” is often used in the media and other discussions. However, this phrase can cause confusion, as it does not exist in international law.”

As summarized by Professor James Hathaway, an internationally-renown scholar in international refugee law, to be recognized as a refugee one must fulfill six criteria, in accordance with the 1951 Refugee Convention. They are:

1. the person has to be outside his or her country;

2. due to a genuine risk;

3. of the infliction of serious harm;

4. resulting from a failure of state protection;

5. which risk is causally connected to a protected form of civil or political status; and

6. the person must be in need of and deserving of protection.

So far, no one has ever successfully claimed refugee status due to climate change displacement from a government or national court. Internally displaced persons (IDPs) who stay within their country do not qualify and even when a person or group of persons have crossed borders, the required nexus to civil or political status ('race, religion, nationality, membership of a particular social group, or political opinion' per the 1951 Refugee Convention does not include climate change. Furthermore, it is often tricky to prove genuine risk, serious harm and/or failure of state protection for claimants who say they are refugees because climate change makes their homes uninhabitable.

Ioane Teitiota from Kiribati fought an uphill legal battle in New Zealand for two years to become the world’s first climate change refugee. He claimed that the was entitled to be recognized as a refugee on the basis of changes to his environment in Kiribati caused by sea-level-rise associated with climate change. However, the Immigration and Protection Tribunal ruled that the claim to persecution must be linked to one of the five civil or political grounds stipulated in the Refugee Convention, and his did not. Subsequently, he took his case to the High Court, Court of Appeal and eventually the highest court in New Zealand, the Supreme Court, which dismissed Teitiota’s appeal and upheld the decisions of the lower courts. In September 2015 he was deported back to his home country with his wife and children.

Screen Shot 2019 06 12 at 1.17.36 PM

The Guardian

As Professor Jane McAdam, a leading expert on climate change and forced migration, points out, between 2000 and 2015 there were more than 20 cases in Australia and New Zealand where people from Tuvalu and Kiribati argued that they should receive refugee protection from climate change impacts, but all failed. In 2014, New Zealand’s Immigration and Deportation Tribunal court ruled that Sigeo Alesana from Tuvalu and his family should be granted legal residency in New Zealand on humanitarian grounds, in which climate change impact in Tuvalu was one of the factors.

However, Alesana is not a climate refugee per se, as the court considered other facts such as his strong ties to New Zealand and an elderly mother who needed medical care. Hence the tally for legal recognition of a climate refugee still stands at zero, as courts and judges are hesitant to “open the legal floodgates” and be the first to create a legal precedent. Meanwhile, climate change and legal experts have differing opinions on whether or not the definition of refugee in the Refugee Convention should be expanded to include involuntary cross-border movements induced by climate change.

Non-refugees and regional responses.

Dina Ionesco, the Head of the Migration, Environment and Climate Change (MECC) Division at the UN Migration Agency (IOM) recently wrote an article titled Let’s Talk About Climate Migrants, Not Climate Refugees. She says that reducing the issue of migration in the climate change to the status of “climate refugees” misses certain aspects of human mobility in climate change, and lays out 10 points to think about. In brief, they are:

  • Climate migration is mainly internal
  • Migration is not necessarily forced, especially for very slow onset processes migration is still a matter of choice.
  • Isolating environment/climatic reasons is difficult, in particular from humanitarian, political, social, conflict or economic ones.
  • Creating a special refugee status for climate change related reasons might unfortunately have the opposite effects of what is sought as a solution: it can lead to the exclusion of categories of people who are in need of protection.
  • Opening the 1951 Refugee Convention might weaken the refugee status which would be tragic given the state of our world where so many people are in need of protection because of persecution and ongoing conflicts.
  • Creating a new convention might be a terribly lengthy political process and countries might not have an appetite for it. Many responses can come from migration management and policy as highlighted already in the 2011 International Dialogue on Migration and the recently adopted Global Compact for Safe, Orderly and Regular Migration.
  • Climate migration discussions should not lose their focus on preventive measures: the key objective of our generation is to invest in climate and environmental solutions for our planet so that people will not have to leave their homes in a forced way in the future.
  • IOM encourages the full use of all already existing bodies of laws and instruments, both hard and soft law in humanitarian, human rights and refugee law, instruments on internal displacement, disaster management, legal migration and others.
  • Human rights-based approaches are key for addressing climate migration: states of origin bear the primary responsibility for their citizens’ protection even if indeed their countries have not been the main contributors to global warming.
  • Regular migration pathways can provide relevant protection for climate migrants and facilitate migration strategies in response to environmental factors.

Whether or not one agrees with all of her points, they provide a useful breakdown of the basic facts around climate migration and a foundation for further discussion.

As Ionesco mentions, most climate migration is internal and thus by nature cannot be considered under the Refugee Convention. More ‘progressive’ regional documents have appeared since the Refugee Convention, namely the 1984 Cartagena Declaration on Refugees and the 2009 Kampala Convention by the African Union. The Cartagena Declaration uses a definition of refugees wider than the one found in the Refugee Convention – along with the elements from the Refugee Convention, it recommends the additional definition of “persons who have fled their country because their lives, safety or freedom have been threatened by generalized violence, foreign aggression, internal conflicts, massive violation of human rights or other circumstances which have seriously disturbed public order.” The Kampala Convention explicitly mentions climate change and that its state parties are to “take measures to protect and assist persons who have been internally displaced due to natural or human made disasters, including climate change..

Despite the soaring, well-meaning rhetoric contained in these documents, they have their inherent limitations. The Cartagena Declaration is a non-binding statement that Latin American countries are not obligated to follow, although parts of the declaration have been incorporated in 14 countries. The Kampala Convention is a legal treaty but applies to only IDPs in Africa. A more recent document from 2018, the Global Compact on Refugees restrains itself by saying: “While not in themselves causes of refugee movements, climate, environmental degradation and natural disasters increasingly interact with the drivers of refugee movements.” Its migration counterpart, the Global Compact on Migration calls upon states to develop adaptation and resilience strategies to the adverse effects of climate change.

But as both Compacts are quick to remind you in their very first paragraphs, none of their proclaimed commitments are legally binding.

What’s next?

So, the question remains – what can be done to mitigate and resolve climate change displacement There are a number of legal and policy proposals on the table, some being implemented to various extents while others are only being paid lip service to.

A new treaty specifically on climate change displacement seems unlikely as Ionesco and other experts say. The two Compacts on migration and refugees, the final versions of which were criticized for just creating more discussions and not enough action, were during the negotiation process subject to several disagreements by states who were unwilling to sign even a non-binding document. One can only imagine the level of acrimony and discord if ever the opportunity to negotiate an international treaty on climate change displacement arose.  Expanding the definition of ‘refugee’ to include climate change displacement, while noble in its aspirations, would mean the same thing in the eyes of governments who don’t want to take on more obligations when it comes to refugees.

Simply put, the political will to use legal instruments to protect those affected by climate change simply does not exist among states.

Not to mention, many states do not even implement properly their Refugee Convention obligations, which they have signed on through ratification. Thus, the legal option must be ruled out for now.

More can be done by governments at the national policy level.

Cliched as it may sound, addressing the root causes of climate change is the most fundamental solution.

Implementing strategies that strengthen climate resilience, regulating greenhouse gas emissions by corporations, increasing the use of renewable sources of energy, using water resources more wisely and other policies can in the long-term contribute to mitigating climate change displacement. Academia can do its part by doing more multidisciplinary and rigorous research into the relationship between climate change and displacement. Governments can also take direct action to respond to climate change displacement that is ongoing.  New Zealand’s plan to start an experimental visa for climate change-induced displaced persons was heralded as a positive step in this direction, but a spokesperson for Immigration New Zealand recently revealed that this idea had been more or less scrapped.

In the end, refugee policies, whether climate change-related or not, are primarily state-driven. Governments must step up to protect the rights, physical security and dignity of those displaced by climate change. They cannot afford to be simply reactive, as climate change is a phenomenon that already happening and is accelerating day by day. While not in the context of climate change displacement, throughout history there have been examples of countries that took a proactive attitude toward refugees such as when Canada received 7,000 Ugandan refugees in 1972 after Idi Amin forced them out. States and other actors such as international organizations and regional bodies need to take bold action to resolve one of the most pressing issues of our time and ensure that no one leaves their home, community or country because of climate change.