The Case for an Urgent Legal Recognition of Climate Refugees: A Policy Proposal

By Anja Helliot, Mérile Le Bras, Hawa Maiga, Maëna Raoux

Introduction

Throughout the last century, the number of climate refugees has increased dramatically. However, attempts to quantify precisely how many have been created remain complicated because consensus on what constitutes a climate refugee has been difficult to reach in the absence of an internationally recognized legal definition. Despite this, studies have found that by 2050 an estimated 200 million people will be displaced globally as a result of climate change. The predicted extent of the climate refugee crisis directly underlines the urgency for a legally defined status for these people. Steve Trent, director of the Environmental Justice Foundation declared in 2017 that “in our rapidly changing world, climate change – and its potential to trigger both violent conflict and mass migration – needs to be considered as an urgent priority for policymakers and business leaders alike”. This paper therefore seeks to underline the existence of a ‘legal hole’ regarding climate refugees, which urgently needs to be addressed by providing a strong definition of who climate refugees are and ultimately, creating a strong framework to address the future stakes given by the climate crisis. The first section of this article will offer an overview of the issue and highlight the diversity of actors involved while underlying what their individual roles have been in addressing the situation so far. In the second part we will offer an assessment of the current situation, looking at existing frameworks in global governance. Finally, the last section of this paper will suggest a definition for climate refugees that will be the first step towards the creation of a strong legal status for them and conclude by considering some of the limitations associated with our approach.

Overview of the issue

While climate has fluctuated throughout its entire history, the current warming of the Earth is approximately ten times faster than the average rate of ice-age recovery warming. Greenhouse gas emissions, such as carbon dioxide, are causing the current warming period and human activities are to be held responsible for almost all of the increase in emissions over the last 150 years. This global warming is associated with numerous detrimental environmental effects; essentially those of global temperature rise, warming oceans, rising sea-levels, shrinking ice sheets, glacial retreat, decreased snow cover, and extreme weather events, all in allconstituting “climate change”. These new phenomena are threatening human conditions of life as “there is little doubt that parts of the Earth are becoming less habitable due to factors related to climate change”. Whilst they contributed the least to climate change, the most vulnerable populations to droughts, floods, water shortages, cyclones, and land loss arelocated in sub-Saharan Africa, South and Southeast Asia, Latin America, developing islands and the Arctic. Today, the increased frequency of climate change’s physical manifestations is leaving no choice for the fringe of the population which, lacking institutional and economic leverage, is forced to migrate. The loss of homes and assets, land degradation, and severe declines in water and food security are all factors increasing human health pressure and the collapse of rural livelihoods. When households cannot recover from the shocks of natural hazards, whole families are being forced to move. The movement of those people can then stress the environment of the regions to which they move, reducing the available resources therein meant to support fewer people.The subject of climate refugees, encompassing both environmental mitigation and refugee scholarship, has led to a multiplication of actors attempting to weigh in on its global governance, most importantly the United Nations Environmental Programme (UNEP), the International Organization for Migration (IOM), and the United Nations Refugee Agency (UNHCR). Though UNEP has been instrumental in the fight for raising awareness on climate change internationally, notably with the publication of the report “Our Common Future” in 1987, it has been more impactful in mitigating climate change in order to slow down the rate of climate refugees. Elsewhere, the IOM has been at the forefront of research and advocacy efforts, seeking to bring environmental migration to the heart of international concerns. In 2015, a specialized division was created within the IOM to provide assistance and protection to climate refugees as well as to facilitate migration in this context and enhance the resilience of affected communities. On the other hand, the UNHCR has been working on how to tackle the issue since the mid-2000s: mainly focusing on developing policies and legal approaches with states that would provide a status for climate change-induced displaced people, and working on the development of guidelines offering temporary protection for them. In spite of the rapidly growing policy developments regarding this topic, climate refugees still find themselves in a legal void.

Assessment of the current situation: existing frameworks

Since the end of the Second World War, governments and international institutions have been committed to setting a guidance on the status and definition of migration and refugees. Since 1948, the Universal Declaration of Human Rights states that “everyone has the right to seek and toenjoy in other countries asylum from persecution”. Following the adoption of this first international legal document, and as a direct result of the massive flows of refugees caused by the Second World War, the United Nations assembled a Convention Relating to the Status of Refugees in 1951. This document defined a refugee as “any person 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”. While to this day the 1951 Refugee Convention is still taken as the central framework in international refugee governance, there have since been frequent attempts to widen the scope or reformulate the current legal definition. Specifically, the discussion around ‘climate’ or ‘environmental’ refugees as a new category was introduced in 1985 when El-Hinnawi published a paper with UNEP. In this, the author defined environmental refugees as “people who have been forced to leave their traditional habitat, temporarily or permanently, because of a marked environmental disruption that jeopardize their existence and or seriously affect the quality of their life”. Later, the IOM defined “environmentally induced migrants” as those obliged to leave their homes owing to sudden or progressive environmental change that adversely affect their lives or living conditions”. While the UNHCR recognized that it was becoming more difficult to categorize peopledue to the increasing diversity in the causes of their displacement (conflict, climate, economic pressure), as new research illustrated the extent to which climate change will be a threat and exacerbate existing tensions and inequalities globally, new perspectives on the status of climate refugees have developed. More recently, the concept of “environmentally displaced persons” (EDPs) grew as an attempt to avoid the term climate refugee. However, even if the latter term may sound more accurate or amicable, people in this category currently do not fulfill the legal criteria of refugees and thus cannot have their rights protected under the 1951 Convention as the main requirement is a demonstrated necessity to flee political persecution. Indeed, as climate refugees are primarily forced to move as a result of a ‘natural’ threat, they cannot fall in the existing framework of this definition. Therefore, what is most concerning regarding environmental refugees today is not necessarily the lack of definition per se, but rather the lack of legal status and normative protection that directly results from this and that puts already very vulnerable people into an even greater position of vulnerability.While agencies specializing in refugee and migration issues are central to the legitimacy of any framework on climate refugees, environmental frameworks also have an important role. As such, the United Nations Framework Convention on Climate Change (UNFCCC) adopted in 1992 and its annual Conference of the Parties (COP) imposes on its members the general obligation to mitigate climate change. Similarly, the Sendai Framework for Disaster Risk Reduction in place until 2030, underlines in itsprinciples that each state has the “primary role to reduce disaster risk”. Ultimately, there is thus a clear need to resolve the lack of effort and joint commitment from the international community by supporting those who face the imminent threat of environmental displacement through the establishment of a long-term framework that draws from the legitimacy of both environmental-focused and refugee-focused agencies.

Proposition and limitations: The creation of a legal status for climate refugees

To properly address the issues which climate refugees face worldwide, it is essential that the international community convene and agree upon the designation of a legal status for cross-border climate refugees. To classify these people as migrants would be a mistake, as a migrant is defined as someone who has voluntarily left their country of nationality and can return at any time. In the case of those displaced by climate, it is clear that it is neither voluntary nor temporary. Therefore, the establishment of a formal legal definition is a crucial inaugural step for climate refugees to be recognized by the international community and benefit from the remedies outlined in existing frameworks for refugees such as the 1951 Convention Relating to the Status of Refugees.Considering the existing coordination problems between international agencies that are concerned in the governance of climate refugees, the collaboration between environmental, refugee, and state actors is necessaryin expanding the definition of a refugee to include refugees resulting from the effects of climate change. To best achieve this, the IOM should hold a forum to hold multilateral negotiations between relevant actors, such as the UNFCCC, the UNHCR the UNEP, environmental Non-Governmental Organizations (NGOs), refugee-focussed NGOs, and states. By creating a formal, accommodating, and institutional setting where actors from different institutions, areas of expertise, and perspective can cooperate and coordinate, the creation of a legal definition for climate refugees can be set on the agenda to properly correct the “legal hole” climate-refugees are currently situated in. The agreed-upon definition for climate refugees should take into consideration those who have to leave their habitats, immediately or in the near future, due to either sudden or gradual alterations in their natural environment related to the impacts of climate change. The definition should also consider including those who leave due to political violence that has arisen due to environmental degradation. By creating a legal definition for climate-refugees, UN Agencies and states thathave ratified conventions pertaining to refugees will be expected to acknowledge and recognize climate refugees and expand their rights to include the right to enter another state for refuge, to receive financial compensation, and to obtain a legal status.While this proposition is a crucial inaugural step, the creation of a legal definition will not ensure an effective resolution to this issue if actors do notalso consider mechanisms to ensure the efficiency and feasibility in protecting and resettling climate refugees. Indeed, following the creation ofa legal status for climate refugees, further steps must be taken to ensure a successful long-lasting resolution to the challenges climate refugees face. Topics of concern include addressing preventive measures, efficient resettlement protocols, acknowledgement of states’ capacities, and funding.The best way to ensure a long-term resolution to the prevalence of migrant refugees is to prevent the degradation of the environment by tackling the causes of climate change and alleviate its effects. Furthermore, while many international agencies and organizations work on the issues surrounding displacements due to natural disasters, none is explicitly responsible in assisting and protecting cross-border refugees due to climate alterations. The lack of a proper protocol in the management of climate refugees compromises the predictability and preparedness of responses, therefore putting the protection of climate refugees at risk. To maximize efficiency and allocation of resources, the existing international agencies and organizations should establish mechanisms for cross-border cooperation, particularly regarding lasting solutions for climate refugees. Additionally, by expanding the definition of refugees to include climate-refugees, the existing mechanisms to treat refugees will likely become overwhelmed with the influx of cases to manage and relocate.This will further strain their financial capacity to tend to properly accomplish their mandates. Therefore, states must agree on how the costs associated with the relocation of these refugees will be mitigated and managed to avoid placing climate-refugees in precarious standing.

Conclusion

To conclude, while defining climate refugees remains a challenging process, the predicted extent of the climate crisis - which leaves people no choice but to leave - calls for an immediate recognition of climate refugees throughthe creation of a legally defined and homogenous status so that they can benefit from the remedies outlined in existing frameworks. While this proposition is a crucial inaugural step, this paper also recognizes that the creation of a legal definition will not, on its own, ensure an effective resolution to this issue. In order to achieve this, it is essential that the international community and its organizations - both environmental-focused and refugee-focused - take further steps to ensure a long-lasting resolution to the challenges climate refugees face.

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