‘Climate refugees’ and the international legal order

Introduction

When I started my research in Arctic studies back in 2007, I was confronted with direct impacts of a warming climate right away: the Arctic Climate Impact Assessment (ACIA) presented a case study of the village of Shishmaref in Alaska, which has been forced to relocate due to rising sea levels and melting permafrost. The equation was rather clear to me: an entire community is forced to relocate because of the impacts of climate change. 

But reality is arguably somewhat more complex. In an interview with KNOM Radio from 2019, Shishmaref’s vice-mayor Fred Eningowuk made clear that the word ‘relocation’ was replaced by the word ‘expansion’. After all, villagers voted on the question of whether to move the village several times, already starting in the 1970s, which means that the village is not a passive victim of climate change, but that villagers have agency, making them active players in adaptation strategies.

In this post I examine who ‘climate refugees’ are and what of the current international legal order is. Of course, the issue is inherently complex and  I do not claim to have taken everything into account. However, I wish to insert a different perspective into the notion that a ‘climate refugee’ is inherently passive — as oftentimes portrayed. 

Climate refugees and the international legal order

Who is a climate refugee?

In order to determine who we are actually talking about, it is necessary to define the term ‘climate refugee’. Naturally, there is not just one clear definition and up to this point, the term has not been defined under international law. Biermann and Boas have defined ‘climate refugees’ as 

“people who have to leave their habitats, immediately or in the near future, because of sudden or gradual alterations in their natural environment related to at least one of three impacts of climate change: sea-level rise, extreme weather events, and drought and water scarcity” – Biermann and Boas, 2010, p. 67

This definition is problematic in so far as it contains a connotation of being inherently attached to a specific locale. This is to say that the term ‘habitat’ stems from ecology and is commonly associated with animals that do not have agency. It denies the fact that migration has occurred throughout human history for a plethora of reasons and that also those leaving a certain location may do so out of their free will or because of interlinked reasons for migration (environmental, political, social). 

Biermann’s and Boas’ definition is based on the definition of ‘environmental migrants’ by the International Organization for Migration (IOM), which reads: 

“Environmental migrants are persons or groups of persons who, for compelling reasons of sudden or progressive changes in the environment that adversely affect their lives or living conditions, are obliged to leave their habitual homes, or choose to do so, either temporarily or permanently, and who move either within their country or abroad.” – IOM, 2007, p. 1—2.

Here we see some significant differences: first, people may choose to leave; second, environmental changes affect their living conditions, but may thus not be the sole reason to leave; and third, they may leave temporarily or permanently. In other words, this definition is much more nuanced and gives affected people the possibility to choose. It recognises agency and does not merely victimise environmental migrants. As regards climate refugees (or climate migrants) this approach might be beneficial as well, as the example from Shishmaref has shown.

Climate refugees in international humanitarian and climate change law

Not surprisingly, neither climate nor environmental refugees are recognised under the international legal framework for refugees. Especially the 1951 Refugee Convention and its 1967 Protocol constitute the core agreements in this regard. Here, refugees are considered people who 

“owing to well-founded fear of being persecuted 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.” – Refugee Convention, article I (a).2

Environmental or climate issues consequently do not fall within the ambit of this article as defining the refugee status of a person. In other words, if there are people leaving their home country to move elsewhere because of climatic or environmental reasons, no international legal framework exists that effectively protects them. While there is the 1990 International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families and also the International Labour Organization (ILO) has put in place several instruments to protect the rights of migrant workers, the level of protection and state obligation does not necessarily correspond to the needs of refugees. 

While this is so, the Intergovernmental Panel on Climate Change (IPCC) in its most recent report from 2014 (a new report is currently under development) remarks that it is “difficult to establish a causal relationship between environmental degradation and migration” (IPCC, 2014, p. 628). While it appears more likely that migration occurs as a result of short-term environmental events, such as floods, long-term changes such as climate change-induced water shortages, are hardly the sole reason for migration. Instead, the problems associated with climate change rather exacerbate existing problems deriving from social, political or economic challenges. Climate change is thus not a unidirectional driver of migration, but rather “part of a web of vectors which can operate in different directions depending on the circumstances of the people, place and power relations in question” (Farbotko & Lazrus, 2012, p. 384).  

Under the current climate change regime itself, there are several policy instruments that address climate change-related migration. The first was adopted in 2010 as part of the so-called Cancún Agreements. In article 14 (f) of Decision 1/CP.16, parties are invited to engage in “[m]easures to enhance understanding, coordination and cooperation with regard to climate change induced displacement, migration and planned relocation, where appropriate, at the national, regional and international levels.”

Based on this initiative, in 2014 the Warsaw International Mechanism on Loss and Damage Associated with Climate Change Impacts (WIM) was adopted that aims to enhance knowledge and expertise on the impacts of climate change on migration patterns. As part of the adoption process of the Paris Agreement, a Task Force on Displacement under the WIM’s Executive Committee was established, which is still operative.  Also other documents arising from subsequent Conferences of the Parties after the conclusion of the Paris Agreement link the problems associated with climate change and displacement, yet not in a legally-binding manner. 

Probably the most outspoken instrument concerning internal displacement and climate change is the Kampala Declaration to the African Union Convention for the Protection and Assistance of Internally Displaced Persons (Kampala Convention). While the Kampala Convention itself implements the 1998 Guiding Principles on Internal Displacement (GPID) developed by the UNHCR, the Kampala Declaration on Refugees, Returnees and Internally Displaced Persons in Africa deplores in its fifth preambular paragraph that “large numbers of people within our Continent are displaced, either as refugees or internally displaced persons and some are even stateless as a result of conflicts, natural disasters, and increasingly climate change and other causes of forced displacement in Africa.” In its 12th preambular paragraph the declaration calls on the international community “to continue to support the African Union as it addresses the challenges of forced displacement in Africa, in particular, the increasing incidence of displacement caused by environmental factors, including climate change.” Finally, in paragraph 22, the African Union commits itself “to deal with challenges of climate change, increased pressure on natural resources, issues of land management, water and sanitation, rural infrastructure in our efforts to find durable solutions to the problem of refugees and internally displaced persons.” 

While at first glance the  link between climate change and displacement appears obvious in the declaration, paragraph 22 shows that climate change is but one element that may lead to internal displacement.  We can thus conclude that the international legal order has no mechanism or instrument in place that directly links climate change with (forced) displacement. As a result, those who consider themselves climate refugees face severe difficulties in invoking their rights. 

Invoking the rights of climate refugees

To my knowledge there have been only very few attempts to invoke the rights of those most affected by climate change. In 2005, the Inuit Circumpolar Council (ICC), the organisation representing the Inuit of the USA, Russia, Canada and Greenland, filed a petition before the Inter-American Commission on Human Rights in which they sought relief for the violations of the United States resulting from greenhouse gas emissions. While this petition is very expansive and touches upon numerous issues relating to Inuit culture, for the purposes of this post it is noteworthy as it also refers to displacement and dislocation. 

Interestingly, however, the petition does not place dislocation at the heart of its argument, but rather the changes global warming brings to the Inuit cultural traditions. In this context, displacement in order to correspond to the changing environmental conditions is mentioned. Moreover, however, displacement of polar bears, walrus and other species that traditionally roam the vast stretches of the Arctic are mentioned which make it impossible for elders to pass on their knowledge (ICC, 2005, p. 123). The issue of displacement is therefore not only related to humans, but contains a narrative that makes it impossible for certain peoples to maintain their livelihoods. Be that as it may, the petition did not yield any significant results other than leading to some prominence of the Inuit’s case in public discourse. 

The most prominent case concerning climate refugees, however, is Teitiota v Chief Executive Ministry of Business, Innovation and Employment before the New Zealand Supreme Court. In this case, migrant worker Ioane Teitiota from Kiribati – a 33-atoll comprising Pacific nation – who lived in New Zealand with his wife and three children, aimed to have his visa status renewed based on the argument that life in Kiribati would endangered his and his family’s lives. After he had been arrested after his permits had expired, he filed for refugee status, which, ultimately, was denied. 

After all, it is low-lying small island nations such as Kiribati, Tuvalu, Maldives or Seychelles – to name a few – that are said to be most affected by sea-level rise, thus leading to increased climate change-induced migration in the future. Indeed, numerous studies have shown that although local communities have developed their own ways of responding to rising sea levels, relocation, either internally or internationally, is a viable option (e.g. Donner, 2016; Allgood & McNamara, 2017). As a consequence, Teitiota’s claim rested on the fact that in the near future Kiribati would be uninhabitable for him and his family. 

Sea level rise projections by 2100 for two scenarios with the amount of rise in meters indicated (mild = 1m; extreme = 3m). Percentage and total population displacement indicated bottom right. Taken from https://earth.org/data_visualization/sea-level-rise-by-2100-kiribati/

Teitiota’s argument was essentially built on article 6 of the International Covenant for Civil and Political Rights (ICCPR) which protects individuals’ right to life with no recourse to the Refugee Convention and which itself has generated a jurisprudence of protected persons in New Zealand. Since he was not granted refugee status by the Refugee and Protection Office, he challenged this decision at the Immigration and Protection Tribunal. The Tribunal, however, did not change the officer’s decision. As a consequence, the matter was taken to the Court of Appeals. 

Here it was ruled that while there have been negative impacts of climate change in Kiribati and even though the standard of living for the family after having returned to Kiribati compare unfavourably, Teitiota neither qualifies as a refugee under the Refugee Convention nor is his or his family in danger. Consequently, also a status as a protected person in New Zealand does not apply. 

A fantastic and rather detailed overview of this case was produced by Behrman and Kent (2020). 

Climate refugees and livelihoods — A sort of conclusion

I think it is very clear that a changing climate will have impacts on the environment. And as a result, the lives of all on this planet will be affected in one way or another. However, with increasing droughts or floods, it is those communities living in closest proximity to nature who are most severely affected. While it is also possible that long-term environmental changes render some regions uninhabitable, the current framework for refugees does not provide them with legal means to justify international refugee status. At the same time, local communities are developing their own ways of dealing with environmental change. That is, they are working on raising their resilience against the impacts of climate change. 

Consequently, it should be up to Western and other national governments to strengthen livelihoods on site and to combat the causes of forced migration at its roots — a call that particularly German politicians have uttered in the wake of the ‘refugee crisis’ of 2015 (“Fluchtursachen bekämpfen”). In this sense, it would appear reasonable to  strengthen local livelihoods and to consider migration in the context of adaptation rather than separate from it. It is, after all, an adaptation strategy, which should go hand in hand with the UN’s Sustainable Development Goals. Or in other words, migration is probably the most extreme mode of adaptation to climate change impacts and a way of showing that achieving the SDGs was unsuccessful. 

It should therefore be in the interest of all to contribute to making local livelihoods a tool for conservation and climate change adaptation. Not only would this benefit the local populations themselves, but also countries which interpret the Refugee Convention in a textual manner could benefit from less legal troubles in the future. 

Whether this is realistic, I cannot ascertain. However, it appears logical to acknowledge local communities’ agency and to recognise their own modes of adaptation to climate change impacts. Since internal migration constitutes a significantly larger problem than international migration and therefore recourse to the Refugee Convention, national legislations in terms of the way the impacts of climate change are being dealt with — maybe via a UN-led initiative — should be adjusted accordingly. 

References

Allgood, L. & KE McNamara (2017). Climate-induced migration: Exploring local perspectives in Kiribati. Singapore Journal of Tropical Geography 38 (3), 370—385.

Biermann, F. & I. Boas (2010). Preparing for a Warmer World: Towards a Global Governance System to Protect Climate Refugees. Global Environmental Politics 10 (1), 60–88.

Farbotko, C. & H. Lazrus. (2012). The first climate refugees? Contesting global narratives of climate change in Tuvalu. Global Environmental Change 22, 382–390. 

Donner, SD (2016). The legacy of migration in response to climate stress: learning from the Gilbertese resettlement in the Solomon Islands. Natural Resources Forum 39 (3—4), 191—201.

ICC (2005). Petition to the Inter American Commission on Human Rights Seeking Relief from the Violations Resulting from Global Warming Caused by Acts and Omissions of the United States. https://secureservercdn.net/45.40.145.201/hh3.0e7.myftpupload.com/wp-content/uploads/finalpetitionicc.pdf

IOM (2007). Discussion Note: Migration and the Environment. MC/INF/288. https://www.iom.int/sites/g/files/tmzbdl486/files/jahia/webdav/shared/shared/mainsite/about_iom/en/council/94/MC_INF_288.pdf

IPCC (2014). Climate Change 2014: Synthesis Report. Contribution of Working Groups I, II and III to the Fifth Assessment Report of the Intergovernmental Panel on Climate Change. Geneva: IPCC.

Leave a Reply

Fill in your details below or click an icon to log in:

WordPress.com Logo

You are commenting using your WordPress.com account. Log Out /  Change )

Twitter picture

You are commenting using your Twitter account. Log Out /  Change )

Facebook photo

You are commenting using your Facebook account. Log Out /  Change )

Connecting to %s

%d bloggers like this: