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Last Updated: 10 March 2009
Environmental Migration Governance
Jane McAdam[∗]
Citation
This paper is a chapter in a forthcoming book on global migration governance edited by Alexander Betts at the University of Oxford.
Abstract
Environmental migration governance, like global migration governance more broadly, suffers from significant fragmentation both vertically—with actors at the international, regional and local levels—and horizontally—with the phenomenon addressed in part or, more rarely, as a whole under the auspices of a range of other ‘policy categories’ and associated institutions. Interests in environmentally-driven population movement can be identified across the fields of migration, environment, development, human rights, disaster management and humanitarian relief. Yet despite (or because of) the plethora of existing as well as potential governance mechanisms, processes and institutions, there is presently no coherent multilateral governance framework for environmental migration.
The fact that the same is true of global migration generally provides the context for the present chapter’s examination of environmental migration governance. The particular features and challenges that it raises must ultimately inform the broader question of whether, and how, a unified global governance system for migration could and should be developed, and whether, and how, the regulation of environmental migration might fit into such a vision.
Environmental migration is not a new phenomenon. Natural and human-induced environmental disasters have displaced people in the past and continue to do so. Nevertheless, the environmental events and processes accompanying global climate change threaten to dramatically increase human movement both within and across State borders. As far as actual numbers are concerned, there is no doubt that ‘current predictions are fraught with numerous methodological problems and caveats’.[1] Yet most estimates suggest that between 200 and 250 million people will be displaced by environmental causes before 2050.[2] The environmental impacts of climate change have been signalled as the key driver of this anticipated surge in migration.[3]
Evidently migration on this unprecedented scale demands a multilateral institutional response. Yet, environmental migration governance represents a significant challenge, not least because the content and parameters of the concept continue to be debated. There is at present no internationally agreed definition of what it means to be an environmental ‘migrant’, ‘refugee’ or ‘displaced person’, and, consequently, no agreed label for those affected. Questions of definition have clear governance implications, informing the appropriate location of environmental migration both procedurally—as an international, regional or local, developed and/or developing country concern/responsibility—and thematically—for example, within the existing refugee protection framework or under the UN Framework Convention on Climate Change. The viability and value of institutionalizing international cooperation and collaboration on international migration matters generally, and environmental migration particularly, depends upon how that phenomenon can and should be formulated as a discrete concept in law and policy. Such normative conclusions must be grounded in a thorough examination and assessment of the existing institutions and political processes that impact upon environmental migration and States’ responses to them.
A Introduction
Environmental migration governance, like global migration governance more broadly, suffers from significant fragmentation, both vertically—with actors at the international, regional and local levels—and horizontally—with the phenomenon addressed in part or, more rarely, as a whole under the auspices of a range of other ‘policy categories’ and associated institutions. Interests in environmentally-driven population movement can be identified across the fields of migration, environment, development, human rights, disaster management and humanitarian relief. Yet despite (or because of) the plethora of existing as well as potential governance mechanisms, processes and institutions, there is presently no coherent multilateral governance framework for environmental migration.
The fact that the same is true of global migration governance generally provides the context for the present chapter’s examination of environmental migration. The particular features and challenges that it raises must ultimately inform the broader question of whether, and how, a unified global governance system for migration could and should be developed, and whether, and how, the regulation of environmental migration might fit into such a vision.
Environmental migration is not a new phenomenon. Natural and human-induced environmental disasters and slow-onset degradation have displaced people in the past and will continue to do so. Nevertheless, the environmental events and processes accompanying global climate change threaten to dramatically increase human movement both within States and across international borders. The Inter-governmental Panel on Climate Change (IPCC) has predicted an increased frequency and severity of climate events such as storms, cyclones and hurricanes, as well as longer-term sea level rise and desertification, which will impact upon people’s ability to subsist in certain parts of the world. Around a fifth of the world’s population lives in coastal areas affected by rising seas and natural disasters (especially the Caribbean, Central America, and eastern China and India).[4]
As far as actual numbers are concerned, there is no doubt that ‘current predictions are fraught with numerous methodological problems and caveats’.[5] Norman Myers’ suggestion that some 50 to 250 million people will be displaced by 2050 stems from a very rudimentary methodology,[6] yet in the absence of a more rigorous dataset it has become the yardstick adopted in much of the literature, often without question. Despite this, it is interesting to note that Sir Nicholas Stern, in his authoritative review of climate change in 2007, described Myers’ estimates of 200 million as ‘conservative’.[7] The United Nations High Commissioner for Refugees (UNHCR) has also drawn attention to the environmental impacts of climate change as the key driver of an anticipated surge in human movement in the coming decades,[8] with the most affected areas being Africa, the mega delta regions in Asia and small island States.[9] However, debates about the way poverty, limited natural resources, and political conflict may influence the nexus between environmental stressors and migration necessarily impact on numerical estimates.[10] As Castles observes, the different methodologies applied by academics in this area has led to very different conclusions about the existence of ‘environmental refugees’.[11]
Part of the problem in compiling accurate statistics is how adequately to account for unknown variables, such as precisely when the effects of climate change are likely to be felt most acutely and ‘the level of investment, planning and resources’ that will be invested in trying to counter them.[12] But perhaps the most difficult variable to account for is human adaptive capacity or ‘resilience’.[13] It is well-documented in refugee literature that it cannot always be anticipated when people will move in response to external triggers such as war or persecution: some flee instantly, some move later, others never move. The line between movement that is ‘voluntary’ and ‘forced’ is also very blurred, and many choices will involve a delicate mix of both elements in different proportions.
Even though scientists cannot predict precisely when climatic changes may necessitate migration, or in what numbers people may move, it is clear that current international and national structures lack both normative and operational frameworks for dealing with it. From a legal perspective, the numbers of displaced do not affect the normative response to the issue, although they may of course impact on practical responses. This is already seen in refugee law, with mechanisms such as ‘temporary protection’ and ‘prima facie’ recognition of refugee status used in mass influx situations.
Evidently, climate-induced movement could be usefully assisted by a multilateral institutional response. Yet environmental migration governance represents a significant challenge, not least because the content and parameters of the concept continue to be debated, and because a universal response might downplay the cultural and livelihood needs of displaced communities and local knowledge bases for adaptation. There is at present no internationally-agreed definition of what it means to be an environmental ‘migrant’, ‘refugee’ or ‘displaced person’, and, consequently, no common ground on which to systematically progress deliberations about responses. Questions of definition have clear governance implications, informing the appropriate location of environmental migration both procedurally—as an international, regional or local, developed and/or developing country concern/responsibility—and thematically—for example, within the existing refugee protection framework or under the UN Framework Convention on Climate Change.[14] The viability and value of institutionalizing international cooperation and collaboration on international migration matters generally, and on environmental migration in particular, depends upon how that phenomenon could and should be formulated as a discrete concept in law and policy. Such normative conclusions must be grounded in a thorough examination and assessment of the existing institutions and political processes that impact upon environmental migration and States’ responses to them.
B Locating the Inquiry: What Regulation Exists?
The potential impacts of climate change on human migration were recognized two decades ago by the IPCC, when it noted that millions of people would likely be uprooted by shoreline erosion, coastal flooding and agricultural disruption.[15] In the IPCC’s most recent reports, these factors, along with increasing salinity and temperatures, rising sea levels, increases in the number and severity of extreme weather events, water scarcity and glacial melting are identified as compromising the continued habitability of different environments worldwide, impacting upon agricultural viability, infrastructure and services, the stability of governance, and human settlement itself.[16] The effects of climate change are likely to induce some level of human displacement in various parts of the world,[17] with the IPCC suggesting that ‘migration is the only option in response to sea-level rise that inundates islands and coastal settlements’.[18] In some cases, relocation to a third country may be the only option for the continued survival of a community. But this does not necessarily mean that permanent migration is necessary immediately, or that it is appropriate in all regions where environmental harm occurs. For example, studies have shown that droughts in parts of Africa led to decreases in international and long-distance migration, with food scarcity and increased food prices forcing people to spend money on basic needs rather than moving. By contrast, short-distance migration increased as women and children sought work to supplement household incomes through remittances.[19] Migration is thus used as a coping strategy.[20]
Though in theory a distinction can be made (at least in the social sciences) between ‘climate change’ as anthropogenic and ‘environmental change’ as resulting from natural processes, in practice the dividing line is far from neat. Climate change is blurring the distinction between ‘natural’ and ‘man-made’ hazards,[21] and certain environmental problems cannot always be divorced from the political realm (eg Darfur). Castles argues that the focus on ‘environment’ as a cause of displacement is therefore misleading, since it may obscure underlying socio-political factors which are more familiar to traditional refugee protection.[22]
Scholars and policymakers consistently lament the absence of sound empirical evidence about the links between environmental degradation and migration, and the numbers of people likely to be affected. Although scientists now attest that ‘[m]ost of the observed increase in globally averaged temperatures since the mid-twentieth century is very likely due to the observed increase in anthropogenic greenhouse gas concentrations’, which has ‘very likely ... contributed to a rise in mean sea level’,[23] it does not necessarily follow that climate change can be described as the sole cause of human movement, or that those who move would attribute their personal circumstances to it.[24] Studies suggest that decisions to move or to stay are influenced by the overall socio-economic situation of those concerned,[25] and, consistent with findings in traditional refugee literature, the poorest or most vulnerable may not have any choice but to stay put, because they may not have the health, skills or economic ability to move. Despite the scarcity of comprehensive studies in the field of climate-induced displacement, available evidence rebuts the assumption that climate change leads, in a linear way, to migration.[26]
At present, there is no authoritative international institution responsible for governing environmental migration. The absence of a coherent body of norms that could properly be described as ‘international migration law’[27] means that there is no singular response to global migration governance, and this is complicated in the context of environmentally-induced movement given the multifaceted nature of the phenomenon. Accordingly, regulation in this field is extremely fragmented and disparate. In part, this stems from slow recognition of the problem, confusion over how to understand it (migration versus protection), and the multiple and diverse ways in which its impacts may be felt, which both impede and complicate its regulation. If climate drivers are overshadowed by other features such as general poverty, which have traditionally not been seen as giving rise to a protection response by third States, then the situation may be dealt with in an entirely different manner, such as through in situ humanitarian assistance.[28]
C Working Definitions
An underlying stumbling block in the discourse of environmental migration is the inherent difficulty in conceptualizing and accurately describing the phenomenon. For example, is climate-induced displacement properly conceived of as a refugee issue, a human rights issue, an environmental issue, a security issue, a migration issue or a humanitarian issue (the last two of which are not governed by hard law norms, and thus leave the problem to the political discretion of individual governments and responses outside the law)? The traditional ways in which law and policy have been divided into ‘fields’ of inquiry and operation, such as ‘human rights’, ‘trade’, ‘development’ and so on, do not reflect the messy, complex interconnectedness of the issue.[29] This chapter does not take a firm position on whether environmental displacement should be viewed as a protection or a migration issue, but rather examines the implications of such classification on governance structures.
The use of the term ‘environmental’ instead of ‘climate change’ serves a certain function—it broadens the field of inquiry, but may also be viewed as drawing a distinction between anthropogenic and ‘natural’ causes. The contemporary focus on climate-induced displacement in some ways represents a repackaging of the broader debate in the 1990s about environmental displacement. Furthermore, disagreement about whether climate or environmental changes themselves drive people to move, or whether a multiplicity of drivers are responsible, renders the bureaucratic label problematic. Tensions between ‘refugee’ and ‘migrant’ labels strike at the heart of the debate—do (or should) States have international protection obligations towards the displaced, or should they retain the discretion to pick and choose new migrants? Do those who move do so voluntarily or by force? Some have suggested that, like human movement generally, environmental migration is part of a continuum, and the ‘environmental refugee’ is simply its most extreme manifestation.[30]
The term ‘environmental refugee’ was first used in the 1970s but entered bureaucratic discourse in 1985.[31] The choice of the term ‘refugee’ is highly controversial.[32] Though it may provide a useful descriptor, it does not accurately reflect in legal terms the status of those who move.[33] It has very strong political traction and is highly provocative, which has been a source of tension between (and within) Pacific island States that have embraced or rejected the term. For example, the government of Tuvalu has marketed its population as the world’s first ‘climate refugees’, but there are those within the country who are uncomfortable with this characterization. Whereas the term seems to have been claimed as a politically powerful advocacy tool, Kibreab has previously argued that the term ‘environmental refugee’ was ‘invented at least in part to depoliticise the causes of displacement, so enabling states to derogate their obligation to provide asylum.’[34] His suggestion is that the use of the term ‘environmental’ detaches the individual’s circumstances from any underlying socio-political causes that might indeed fall within the ambit of the 1951 Refugee Convention,[35] and thus may be a way of receiving States seeking to avoid their obligations towards people whose plight can, at least on one view, be characterized in this way. But the ‘refugee’ label also has other connotations. For example, the President of Kiribati went to great lengths to expressly reject refugee terminology, which he saw as implying passivity and victimization, instead presenting his population as a potential labour force that could be re-skilled to make a productive economic contribution to countries like Australia.[36]
Although international law defines a ‘refugee’ in a particular way, this does not mean that people outside this definition are not worthy of protection, or necessarily denied it.[37] Indeed, the use of the term also serves to highlight the legal gaps in responding to displacement of this kind. Definitions serve an instrumental purpose. They are bureaucratic labels that delimit rights and obligations, and that may seek to bolster some kind of ethical claim to protection or assistance as well. Indeed, the creation of a definition inevitably leads to a testing of its boundaries, and sets up the goalposts for re-evaluating and re-defining what it should be. In some ways, it is stultifying, for it entrenches a particular historical or instrumental or political view as a legal threshold, which becomes the benchmark for further development. On the other hand, it at least provides a starting point to which States are willing to agree, and from which subsequent solutions and developments may stem. Compellingly, and importantly, legal definitions bind States in a way that descriptive labels cannot. But the key point here is that the law does not answer or resolve the fundamental problems of definitional debates; it simply provides a set of criteria from which certain rights and obligations may flow.
While the absence of a formal legal definition may perpetuate uncertainty about the parameters of the phenomenon, and complicate questions of State and institutional responsibility for the displaced, it does not necessarily preclude international responses. For example, ‘terrorism’ remains without a uniform legal meaning in international law,[38] yet that has not prevented UN Security Council resolutions and countless treaties from dealing with it. The absence of definition may allow for more flexible responses—ad hoc responses within a formalized framework. It may permit States a limited discretion, either by failing to define the term or by giving it a particular meaning in particular instruments.
It is not yet clear whether a universally applicable definition of those displaced by climate change is necessary or desirable. For a start, assistance to vulnerable groups may not be dependent upon this designation, but rather on the general circumstances in which they find themselves (eg poverty, natural disaster zone, area of conflict, etc). Secondly, and similarly, certain people may be able to relocate through migration schemes that are independent of climate or environmental drivers (eg New Zealand’s Pacific Access Category). Thirdly, it may be more appropriate and culturally sensitive to respond on a regional basis, taking into account the particular features of the threatened population, in determining who should move, when, in what fashion, and with what outcome. Staggered migration, circular migration, or the promise of a place to migrate to should it become necessary might be welcome measures that could appeal both to host and affected communities. In the same way that sectoral agreements enable certain acts to qualify as ‘terrorism’ for certain purposes (bombing, hostage-taking, hijacking, etc), certain regional mechanisms could designate at particular points in time the meaning of environmental migration. This is not ideal in terms of providing certainty, and it is reactive, but on the other hand it permits gradual responses as particular scenarios in particular geographical areas unfold, and responses may be tailored to meet the specifics of these. Indeed, this was how the now universal international refugee regime began. A series of international agreements responding to particular (politically selected) crises meant that responses to refugees could gradually be developed, until, over time, the international community was able to articulate the fundamental characteristics of a person in need of protection in a more general form. Perhaps this is a necessarily cautious way to respond to an emerging problem in order to understand it and the implications of responses.
D A Displacement Typology
Simply for the purposes of a working definition, IOM defines ‘environmental migrants’ as follows:
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.[39]
People displaced by climate change might be described as a sub-set of this category, defined as:
persons or groups of persons who, for compelling reasons of sudden or progressive changes in the environment as a result of climate change 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.[40]
The dual elements of compulsion and choice reflected in these definitions reveal the complex reasons why people may move, and the degree of choice may fall somewhere on a single continuum. They also highlight the distinctions between sudden and slow-onset disasters, internal and international movement, and temporary versus permanent relocation.[41]
Walter Kälin, Representative of the Secretary-General on the Human Rights of Internally Displaced Persons, has little time for the semantics of the debate. Instead, he urges ‘a thorough analysis of the different contexts and forms natural disaster induced displacement can take.’[42] To precipitate this, he has identified five displacement-triggering scenarios. This classification was recently adopted by the Inter-Agency Standing Committee Working Group on Migration/Displacement and Climate Change.[43]
The nature of scenarios contemplated here may be divided into what Brown terms climate processes (2, 3, 4) and climate events (1, 5).[49] Humanitarian aid agencies may be more likely to respond to the latter, since climate events are more likely to cause temporary rather than permanent displacement. What is clear is that each involves different kinds of pressures and impacts, which will affect the time, speed and size of movement, and the nature of solutions. A sudden disaster, such as a cyclone, may precipitate very fast flight, but it may only be temporary, and assistance in the form of humanitarian disaster relief may be a sufficient response. By contrast, climate change impacts that take place over a much longer period, through erosion, salinity and so on, may ultimately necessitate the relocation of a whole population to another country. In such cases, the planned, long-term relocation of those people must be negotiated with particular States or through an international burden-sharing agreement.[50]
E Why does the regulation exist in this way?
What consequences does it have
for the international politics of migration?
Does environmental migration need to be regulated discretely? It seems to warrant a sui generis response, but on the other hand, many of the underlying motivations for movement are not dissimilar to existing fields of study and regulation. To what extent should the focus be on the ensuing harm, rather than the cause of movement? A protection response might focus on the human rights deprivations were a person to remain rather than leave. By contrast, a migration response might emphasize the absence of employment opportunities in the country of origin as the motivating factor for movement.
The risk, of course, is that nothing is done because no State wants to be the first to offer a solution, lest doing so exposes it to pressure from other affected populations to take them in as well, or perhaps goes to establishing a duty under customary international law to protect people fleeing environmental harms. The latter is misplaced in the absence of widespread State practice and accompanying expressions that such action stems from a legally binding norm, as opposed to a humanitarian gesture. Movement is not, and never has been, a response to general poverty or disaster, and would not necessarily be the favoured approach by affected communities. Migration must not be divorced from the broader sphere of development; the effects of climate change might otherwise in fact be hastened by depleting communities of their population and culture.[51]
This section examines existing international legal frameworks to see how appropriate they are in regulating climate- and environmentally-induced displacement.[52]
1 International Refugee Law
Traditional refugee flows are typically sudden,[53] whereas climate-induced displacement is likely to occur over a longer period of time as land becomes increasingly unsustainable and livelihoods insupportable. It is part of a process of dislocation.
Refugee law does not strictly apply to those forced to move because of climate change. This is not because of the time dimension, but rather because of the legal requirements of the ‘refugee’ definition in international law. A refugee is someone who is already outside his or her country of origin, whose government is unable or unwilling to protect him or her, and who has a well-founded fear of persecution on account of his or her race, religion, nationality, political opinion or membership of a particular social group.[54] On the face of it, there are numerous obstacles to applying that definition to those moving in response to climatic changes.
First, the requirement of exile—being outside the country of origin—poses an immediate problem for people who have not yet moved, or have moved within their own country. As Kälin’s typology above suggests, a large number of displaced are likely to be IDPs, who remain under the jurisdiction of their own government and are therefore owed the rights and entitlements of ordinary citizens. As far as the role of the international community is concerned, they are the subject of soft law principles rather than binding treaty obligations. This is because the principle of State sovereignty precludes international responses without an express invitation by the State concerned.[55] It is important to note that the Guiding Principles on Internal Displacement expressly encompass people who have fled their homes due to natural or human-made disasters, although UNHCR’s institutional mandate as the lead agency for IDPs only extends to those displaced by conflict. Much has been written about the possible conflicts that could arise over access to increasingly scarce arable land and resources,[56] and it would be a sad irony if UNHCR’s mandate were triggered due to inaction, as a non-violent situation escalated to one of conflict.
Secondly, while there is no obstacle to arguing that socio-economic harms, such as those suffered as a result of livelihoods negatively affected by the effects of climate change, can constitute ‘persecution’ under the Refugee Convention,[57] there is a difficulty in characterizing climate change itself as ‘persecution’. Rising sea-levels, salination, and increasingly frequent storms, earthquakes and floods may be harmful, but they do not constitute ‘persecution’ in accordance with the meaning it has been ascribed in international and domestic law.[58] Even if persecution were to be understood in this way, a further difficulty would be linking it to one of the five Convention grounds. In order to meet the refugee definition, a person needs to show that he or she is at risk of persecution because of his or her race, religion, nationality, political opinion, or membership of a particular social group. The indiscriminate nature of climate change significantly complicates establishing the requisite nexus. An argument that people displaced by climate change could collectively constitute a ‘particular social group’ would be difficult to establish, since refugee law requires such a group to be connected by a fundamental, immutable characteristic other than the risk of persecution itself.[59]
As far as an argument based on the deprivation of specific socio-economic rights is concerned, it would also be necessary to show that harm resulting from diminished employment opportunities or an absence of housing or healthcare not only reached the threshold of persecutory treatment, but was also linked to one of the five Convention grounds. This might be established, for example, where particular ethnic groups were unable to access farming land owing to a discriminatory government policy or deliberate inaction. Without some discriminatory element or effect by virtue of the group’s (perceived) identity, however, it would be difficult to establish persecution for a Convention reason.[60]
In the regional context, Edwards has questioned whether the OAU Convention’s broader refugee definition might capture claims based on environmental movement.[61] Specifically, she suggests that claims relating to ‘events seriously disturbing the public order’ could encompass environmental catastrophes such as famine and drought, although notes that such an interpretation is not presently supported by the opinio juris of African States. Despite the regional practice of permitting people fleeing natural disasters to cross an international border to receive temporary protection, African governments have taken care not to characterize this as an obligation arising under the OAU Convention.[62] She therefore concludes that at most, the practice can be seen as ‘contributing to the development of a right of temporary protection on humanitarian grounds under customary international law, rather than under treaty.’[63]
Given the difficulties at the international and regional levels of applying refugee law to environmentally-driven movement, it is instructive to scrutinize whether protective principles developed in the refugee context, such as the principle of non-refoulement (which precludes States from returning people to face persecution or other forms of serious harm) might apply in the context of climate-induced migration. In addition, is the status envisaged for refugees—the rights, entitlements and protection options flowing from the Refugee Convention—relevant in this context? The chapter therefore turns to examine the role of international human rights law.
2 International Human Rights Law
There are three main reasons why international human rights law is of importance to the present analysis. First, it sets out minimum standards of treatment to which all individuals in a State’s territory or jurisdiction are entitled. In this way, it provides a yardstick for measuring which rights might be at risk from climate change, and which domestic authorities are responsible for addressing them. This is related to the second reason: if people do relocate, then human rights law demands a minimum standard of treatment in the host State. This is pertinent to the legal status granted to such people. While at a bare minimum they must not be subjected to inhuman or degrading treatment, States also have a responsibility to ensure to them the full range of human rights by which the State is bound under international law.[64] Finally, human rights law may provide a basis on which individuals can claim protection in a third State. This is based on the expanded principle of non-refoulement under human rights law, embodied in the concept of ‘complementary protection’.[65]
(a) Human rights law: standards of treatment
Climate change potentially affects the enjoyment of the full range of human rights protected under international law. In a petition presented to the Inter-American Commission on Human Rights in 2005, the Inuit peoples of the Arctic regions of the United States and Canada argued that the impacts of global warming and climate change, allegedly caused by acts and omissions of the United States, violated fundamental rights including the right to life, health, physical integrity, security, a means of subsistence, property, inviolability of the home, and the benefits of culture.[66]
The Inter-American Commission has recognized that the realization of the right to life (contained in article 6 of the International Covenant on Civil and Political Rights (ICCPR)[67]) is dependant on the physical environment.[68] The cumulative effect of climate change impacts on livelihoods, national economies, and government stability may in some cases preclude vulnerable States from fulfilling their positive obligation to protect life. The right to an adequate standard of living, including adequate food, clothing, housing and the continuous improvement of living conditions,[69] and the right not to be deprived of means of subsistence[70] are independent human rights as well as necessary components of the right to life. These are compromised where global warming leads to the destruction of people’s ability to hunt, fish, gather or undertake subsistence farming.
In terms of health, climate change impacts can be severe. For example, the IPCC anticipates that increases in heat waves, floods, storms, fires and droughts will expose millions of people to increased rates of malaria, diarrhoeal disease, cardio-respiratory diseases, malnutrition and death.[71] These impacts will be particularly dire in States with a low adaptive capacity and will seriously compromise individuals’ right to enjoyment of the highest attainable standard of physical and mental health.[72]
Human rights law also requires that ethnic religious, linguistic, or indigenous[73] minorities must also be allowed to enjoy their own culture, practise their own religion and use their own language.[74] Climate change may threaten these rights where people are displaced from their land and spiritual homes. The Inter-American Commission on Human Rights has acknowledged that ‘the use and enjoyment of the land and its resources are integral components of the physical and cultural survival of the indigenous communities’.[75] If relocation results in forced assimilation, then the right to culture may be at risk.[76] The 2007 United Nations Declaration on the Rights of Indigenous Peoples, although exhortatory rather than formally binding, states that indigenous peoples have the right to maintain their distinctive and spiritual relationship with traditional lands and waters,[77] enjoy legal rights in land,[78] and have the right to the conservation and protection of the environment and the productive capacity of their lands or territories and resources.[79] They also have the right to redress ‘for the lands, territories and resources which they have traditionally owned or otherwise occupied or used, and which have been ... damaged without their free, prior and informed consent’.[80] To the extent that forced displacement arises from climate-induced ‘damage’, there may be a right to redress in ‘the form of lands, territories and resources equal in quality, size and legal status or of monetary compensation or other appropriate redress’.[81]
The most extreme threat to self-determination arises in the context of whole-island displacement, where States (such as Tuvalu, Kiribati and the Maldives) are threatened with extinction due to rising sea levels. The likely scenario is not sudden inundation of the territory, but rather a gradual process whereby land becomes unsustainable and therefore uninhabitable on a permanent basis. The time frame for this is uncertain, and it may be that with resilience, innovation and gradual adaption, human habitation remains possible for longer than some initial projections. Nevertheless, the permanent displacement of a population not only threatens a peoples’ right to self-determination,[82] but also the very existence of their State as a matter of international law.
The essential criteria for statehood in international law are: (a) a permanent population; (b) a defined territory; (c) a government; and (d) the capacity to enter into relations with other States.[83] If one or more of those elements ceases to exist, then the continued characterization of the State qua State is called into question. It is unprecedented for a State to disappear altogether, as opposed to being reconstituted as another State through extinction or merger (whereby the laws of State succession apply). If a State no longer exists, then can its (former) inhabitants retain their nationality? Or do they become stateless as a matter of international law?[84]
This eventuality is not anticipated by the two international treaties on statelessness, which premise loss of nationality on its denial, by virtue of the operation of the law of a particular State, rather than through the disappearance of a State altogether.[85] This deliberately narrow and legalistic definition of statelessness does not even extend to the situation of de facto statelessness, where a person formally has a nationality, but which is ineffective in practice. Furthermore, the statelessness treaties are generally poorly ratified and poorly implemented, making reliance on them difficult. Nevertheless, UNHCR has suggested that its institutional mandate might be engaged in the situation of ‘climate-induced statelessness’, although it has not explored this in any detail.[86]
The above analysis shows how the effects of climate change may impact upon States’ ability to implement their international human rights obligations towards people within their territory. A separate issue is whether third States might be held accountable for these effects by virtue of major greenhouse gas emissions contributing to global warming.[87] Under international human rights law, States are generally only responsible to those within their territory or jurisdiction. To suggest that the United States, for example, might be responsible for the climate change impacts on Tuvalu would be very difficult to establish as a matter of law.[88] While an argument could be made that the notion of being within a State’s jurisdiction could extend to cover the impacts of a State’s conduct wherever felt, this currently goes far beyond the accepted jurisprudence which requires that the State exercise ‘effective control’ in order to be held responsible.[89] This requires a high threshold to be met. In the Banković case, the European Court of Human Rights said that the State was not responsible for human rights violations suffered by victims on the ground resulting from its aerial bombing campaign, since such activity did not constitute ‘effective control’ over those victims.[90] This test demonstrates the difficulty of trying to establish that carbon particles drifting around the world as a result of one State’s greenhouse gas emissions are violating the human rights of people in another State. Nevertheless, (threatened) legal action can send a powerful political message and draw international attention to the issue.
(b) Human rights law as a basis for seeking protection in a third country
The next issue relates to the role of human rights law in itself providing grounds for seeking protection abroad. This would be relevant where a person has already left his or her home and arrived in a third State in search of protection. The principle of non-refoulement has been expanded under human rights law, such that States are prohibited from sending people back to places where they risk being tortured, exposed to cruel, inhuman or degrading treatment or punishment, or subjected to the death penalty or arbitrary deprivation of life.[91] These obligations arise under treaties such as the Convention against Torture,[92] the ICCPR and the European Convention on Human Rights,[93] as well as under customary international law. The practice of extending protection on this basis is known as ‘complementary protection’.
It does not necessarily follow that complementary protection would assist a person displaced by climate change. To date, both State practice and jurisprudence only recognize a handful of rights as giving rise to a protection obligation on the part of the receiving State. While the House of Lords has acknowledged that, in theory, any sufficiently serious human rights violation could give rise to such an obligation[94]—a proposition that remains open to testing in the courts—current practice suggests that the accepted limits of the principle of non-refoulement under treaty and customary international law are non-return to persecution, torture, cruel, inhuman, or degrading treatment or punishment, and arbitrary threats to life.
Whereas the prohibition on returning someone to torture or cruel, inhuman or degrading treatment is absolute, most other human rights provisions permit a balancing test between the interests of the individual and the State, thus placing protection from refoulement out of reach in all but the most exceptional circumstances. It may therefore be necessary to try to re-characterize the violated human right, such as the right to health, as a form of inhuman treatment, which is a complementary protection ground. However, courts have carefully circumscribed the meaning of ‘inhuman or degrading treatment’ so that it cannot be used as a remedy for general poverty, unemployment or lack of resources or medical care except in the most exceptional circumstances.[95] This may limit its application in the case of climate-induced displacement. In addition, displacement caused (at least in part) by climate change does not meet the international definition of ‘torture’, which requires the infliction of severe pain or suffering by a public official for a purpose such as punishment or obtaining a confession.[96]
Finally, the traditional approach to identifying international protection needs through individualized decision-making seems highly inappropriate to the situation of climate-induced displacement. This is in part because responsibility for displacement is highly diffuse (attributable to a large number of polluting States over many years, rather than to direct ill-treatment of a particular person by a certain government) and the scale of displacement may require group-based rather than individual solutions. Whereas refugee protection extends assistance to people fleeing harm inflicted or condoned by the country of origin, protection sought for climate-induced displacement is the opposite: people may demand protection in industrialized States precisely because they are regarded as having a responsibility to assist people who have suffered as a result of their sustained emission patterns.[97]
3 International Environmental Law
The links between a safe environment and the fulfilment of human rights have been formally recognized since the adoption of the Stockholm Declaration in 1972,[98] but the precise relationship between the two in terms of States’ legal obligations remain in the early developmental stages. Although there is an acknowledgement that the realization of human rights is largely dependent on whether the physical environment is capable of sustaining people as rights-bearers,[99] and some rights are dependent on a particular quality of environment, there is not yet an individual or collective ‘right to environment’ in international law.[100]
Two regional human rights treaties do recognize such a right. Article 11 of the 1988 Additional Protocol to the American Convention on Human Rights in the Area of Economic, Social and Cultural Rights provides that: ‘Everyone shall have the right to live in a healthy environment and to have access to basic public services. The States Parties shall promote the protection, preservation, and improvement of the environment.’ This provision is not subject to individual petition to the Inter-American Commission on Human Rights, hampering the ability of individuals to seek a remedy for its violation.[101] Article 24 of the 1981 African Charter on Human and Peoples’ Rights provides that all peoples ‘shall have the right to a general satisfactory environment favourable to their development’, which has been interpreted by the African Commission on Human and Peoples’ Rights as obliging States to ‘take reasonable and other measures to prevent pollution and ecological degradation, to promote conservation, and to secure an ecologically sustainable development and use of natural resources’.[102] Since this provision refers to ‘peoples’, the right is focused on safeguarding specific groups sharing a common cultural heritage (such as indigenous peoples), bolstering international human rights principles protecting the cultural and linguistic integrity of such groups.
In international environmental law more generally, the global atmosphere and climate are considered a ‘common resource’ of vital interest to humanity.[103] Under treaty law, States have obligations to implement programs for mitigating greenhouse gas emissions;[104] to prevent, reduce and control pollution of the atmosphere and the marine environment;[105] and to conserve biodiversity.[106] The latter are relevant where displacement is due to a loss of livelihood or resources resulting from disappearing plant and animal species. However, whereas there are mechanisms in international and regional human rights law for individual complaints to be made against State conduct, such avenues are far less developed in the international environmental law field, where the plane of legal responsibility is primarily between States alone.
Under customary international law, every State has an obligation not to knowingly allow its territory to be used for acts that are contrary to the rights of other States.[107] This principle is understood in the field of environmental law as requiring States to refrain from using their territory in a way that causes environmental harm beyond their borders. The customary law principle of responsibility for transboundary environmental harm is well established:
no State has the right to use or permit the use of its territory in such a manner as to cause injury by fumes in or to the territory of another or the properties or persons therein, when the case is of serious consequence and the injury is established by clear and convincing evidence ... .[108]
The concept of sustainable development adds additional specificity to this concept by limiting the manner in which States may seek to realize the (nascent) ‘right to development’. Principle 3 of the Rio Declaration states that it ‘must be fulfilled so as to equitably meet developmental and environmental needs of future generations’, implying limits on emissions that may jeopardize the ability of future generations to live and develop in a healthy environment. Principle 2 requires States to ensure that their exploitation of resources does ‘not cause damage to the environment of other States or of areas beyond the limits of national jurisdiction’, again suggesting limitations on carbon emissions because of their potential damage to vulnerable populations.[109] The Rio Declaration is not formally binding on States, but represents a set of principles which States have agreed should guide their conduct.
As alluded to above, the major obstacle in any action relating to climate-induced displacement is the question of causation. How can it be legally established that a particular State (or States) has caused damage to a particular individual or group by virtue of its greenhouse gas emissions? It is very difficult to quantify and attribute harm caused by the carbon emissions of any particular State, given that all States have contributed in some way to emissions over time. In December 2005, the Inuit peoples of the Arctic regions of the United States and Canada sought to bring a case against the government of the United States alleging that its failure to reduce its greenhouse gas emissions were leading to the destruction of their habitat and way of life.[110] Although the petition was ultimately dismissed, and instead evidence was presented by way of a general hearing on human rights issues rather than as contentious litigation, the case raises yet unanswered questions about whether a State’s failure to ratify key international instruments aiming to combat climate change could inter alia constitute a breach of human rights law, the principle of good faith in upholding international obligations, and the duty to cooperate in international environmental law.[111] Mere ratification of the relevant treaties is insufficient—States must ensure that the international system is sufficiently strong to protect human rights, which means that if this cannot be achieved through international collaboration alone, domestic measures must be taken to ensure that such rights are protected.
There have been some creative arguments, albeit non-legal ones, about how to
address the causation stumbling block. Some scholars
have suggested that people
living in areas which are likely to be rendered uninhabitable due to climate
change should have the early
option of migrating to other countries, in numbers
roughly proportionate to the host countries’ cumulative greenhouse gas
emissions.[112]
This would mean that, per year, the US (as the highest emitter) would take in
866,000 people, while Italy (as the 10th highest
emitter) would take 8,600. While these figures may initially seem high, they
are comparable to the actual numbers of immigrants
already absorbed by those
States annually.
The problem with this apparently simple solution is its
failure to take account of the human dimension of displacement: issues of
agency, cultural integrity, decisions about if and when to move, and so on. It
treats people as units of labour, rather than as
individuals (and communities)
with rights and dignity. People should not be traded like carbon credits, and
there is a real fear
among some affected communities (eg Micronesia) that
advocating for migration as an adaptation measure may send a signal to States
that emissions need not be reduced provided that they are willing to
‘solve’ the problem by accepting migrants. Furthermore,
such a
blunt approach is also unlikely to garner genuine political support. Given the
legal complexity of seeking to establish State
responsibility for climate change
in individual cases, it would seem more useful at the normative level to focus
on the nature of
the harm suffered, rather than the precise cause of
displacement. This would sit more comfortably with a human rights approach.
4 International Humanitarian Law
International humanitarian law is a special regime that applies in situations of international or internal armed conflict. Given the potential for conflict to arise (at least in part) from the effects of climate change, such as diminished resources, access to land, reduce employment opportunities and so on,[113] there may be circumstances in which international humanitarian law becomes relevant to climate-induced displacement.
International humanitarian law aims to protect all civilians affected by conflict, whether displaced or not, and, if displaced, irrespective of its causes. For that reason, it provides no specific relief for people displaced by climate change; rather, its response is more general. In brief, it permits the evacuation or relocation of civilians for particular safety or security purposes,[114] and provides for their return once the reasons for displacement have ceased to exist. International humanitarian law also prohibits the unlawful displacement of civilians, although it says little expressly about remedies (including restitution or compensation) for losses suffered as a result.
In its comprehensive study of the customary international law rules pertaining to situations of armed conflict, the International Committee of the Red Cross identified a right to voluntary return in safety to one’s home once the causes of the displacement no longer exist, and a right to have one’s property respected.[115] The International Law Association is currently working to develop the law relating to restitution and compensation for people affected by armed conflict,[116] although its focus is broader than displacement alone.
F What is the normative case for institutionalized cooperation,
and what
type of cooperation should it be? (how would it be made more coherent?)
Because there are numerous cross-cutting and intersecting issues raised by climate-induced displacement which relate to a variety of institutional different mandates (such as international protection, human rights, indigenous rights, cultural rights, and the environment), the concept risks being dealt with in an ad hoc and fragmented manner. Partial efforts to respond to this phenomenon at the international level come from (at least) four traditional ‘spheres of governance’ and their corresponding institutions:
(UNHCR, IOM, the (former) UN Global Commission on International Migration, the Office of the High Commissioner for Human Rights (OHCHR)—Global Migration Group, OHCHR—Special Rapporteur of the Commission on Human Rights on the human rights of migrants, ILO-MIGRANT, The Hague Process on Refugees and Migration, UN Population Fund (UNFPA), Internal Displacement Monitoring Centre (IDMC));
UN Framework Convention on Climate Change, UN Environment Programme (UNEP), IPCC, International Institute for Sustainable Development (IISD);
(UN Development Programme (UNDP), UNFPA, IISD, ILO); and
(OHCHR—Special Rapporteur of the Commission on Human Rights on the human rights of migrants, Office for the Coordination of Humanitarian Assistance, the Inter-Agency Standing Committee, the International Committee of the Red Cross, and UNFPA.
Clearly, a number of these organizations cut across two or more of the issue areas. The difficulty is that none of them provides a comprehensive and coherent multilateral framework regulating State responses to environmental migration. Moreover, institutions in the various policy fields may have overlapping or conflicting mandates—or alternatively, such a limited/partial perspective that the phenomenon as a whole remains beyond their scope.
Indeed, whether a single organization could harness the interdisciplinary expertise required to address all aspects of the phenomenon from the science, to mitigation and adaptation strategies, and precisely what its mandate would look like, remains unclear.[117] Presumably such an agency would still require the input and cooperation of other expert institutions in implementing policy, which might suggest its role would more appropriately be in identifying risks and formulating possible responses, rather than operational. Precisely because of the complexity of climate-induced displacement, an inter-agency approach with a central UN focal point or coordinator—perhaps the Office for the Coordination of Humanitarian Affairs (OCHA)—would be the more pragmatic, palatable and resource-efficient approach. Otherwise, the agency would need to become a conglomeration of existing UN agencies (UNHCR, OHCHR, UNEP, etc) with a specialist focus on climate change. As needed, the additional expertise of inter-governmental agencies such as the International Organization for Migration (IOM) could be tasked with specific functions, subject always to appropriate supervision of the human rights implications of their activities. Much as the Internal Displacement Monitoring Centre serves to monitor conflict-induced displacement worldwide, collating data and then advocating for durable solutions, such an agency could be tasked with identifying areas at risk, and with devising strategies—in consultation with local communities and receiving States—about adaption and migration options. For example, UNEP is developing National Adaptation Programmes for Action in over 12 countries, including Haiti, Liberia and Tanzania, funded by the Global Environment Facility.
At a recent meeting of UN agencies, international and local NGOs in Fiji on climate change and human security in the Pacific, there was a strong sense that the cross-cutting and global nature of climate change impacts on human rights and human security required a multi-sectoral response. One suggestion was that an agency structure like that of UNAIDS might be appropriate—namely, one that made full use of UN expertise across its associated organizations to create a coordinated global response. UNAIDS is guided by a Programme Coordinating Board, which comprises representatives from 22 governments, five NGO representatives, and 10 ‘cosponsors’: UNHCR, UNICEF, WFP, UNDP, UNFPA, UNODC, ILO, UNESCO, WHO and the World Bank, each of which has responsibility for at least one technical area (such as UNHCR’s role in respect of HIV/AIDS infection among displaced populations). However, while the importance of strong institutional guidance and leadership was recognized, it was also felt essential to provide local communities with access to information, to learn from local knowledge in order to implement adaptation strategies on the ground that can empower local communities. Decisions about if when to move are influenced by having access to reliable information. There is evidence that many locals in Kiribati do not appreciate the extent of their predicament living on a low-lying atoll. While acutely aware of the climate impacts on their environment and fishing patterns, they frequently attribute this to the actions of God rather than humans. Some believe that water surges are punishments from God; others believe that they will never have to move because God promised there would never be another flood like that experienced by Noah. These explanations, and the lack of outside information available to them, inhibit the people of Kiribati from making active choices to address the climatic changes they are facing.[118]
While UNHCR might seem the obvious contender as a lead agency on climate-induced displacement, it is already responsible for over 20 million refugees and other people of concern (including asylum seekers, returnees and IDPs). Each year it relies on donations and the goodwill of States to provide it with funds to carry out its work in over 100 countries, and it has experienced significant budgetary crises over the years. Currently, it has no legal mandate to deal with those displaced for environmental reasons unless they also happen to fit within its areas of concern. Significantly, UNHCR’s work with respect to IDPs is limited to those displaced by conflict, which is considerably narrower than the operational definition of ‘IDPs’ in the Guiding Principles. From a practical point of view, there are also real doubts about whether UNHCR has the resources, expertise and capacity to assume a protection or assistance function for over double the number of people for whom it already cares. Nonetheless, UNHCR is seen as the institution with the greatest experience in the area, as when it assisted after the Indian Ocean tsunami in 2004, even though it was not formally mandated to do so. Its emergency-response capacity, through its ability to quickly marshal staff and provide shelter and urgent assistance to displaced people, secured it a very active operational role, although it was clear to stress that its work was purely humanitarian and not within its protection mandate. While on the one hand, UNHCR’s work in relation both to camps and resettlement also equips it well to deal with both the initial displacement as well as finding durable solutions, on the other, the root causes for environmental displacement can be very different from the situations with which UNHCR is mandated to deal.
However, UNHCR may play a crucial role in harnessing action at the international levels. The present High Commissioner, António Guterres, has taken a keen interest in climate-induced displacement, and seems personally to be driving the institution’s engagement with the issue. Describing climate change as ‘one of the main drivers of forced displacement, both directly through impact on environment—not allowing people to live any more in the areas where they were traditionally living—and as a trigger of extreme poverty and conflict’,[119] he sees UNHCR has having a ‘duty to alert states to these problems and help find answers to the new challenges they represent’[120] (though acknowledging that its own legal mandate precludes formal involvement). At the meeting of States at UNHCR’s Executive Committee in 2007, the High Commissioner told States that: ‘We see more and more people forced to move because of extreme deprivation, environmental degradation and climate change’, noting that
natural disasters occur more frequently and are of greater magnitude and devastating impact. Almost every model of the long-term effects of climate change predicts a continued expansion of desertification, to the point of destroying livelihood prospects in many parts of the globe. And for each centimeter the sea level rises, there will be one million more displaced. The international community seems no more adept at dealing with these causes than it is at preventing conflict and persecution.
The High Commissioner has sought to position UNHCR’s work within a broader framework of human movement, noting that the effectiveness of its own mandate of protecting, assisting and finding solutions for refugees and reducing statelessness was dependant on its ‘ability to understand the broader patterns of people on the move in today's world.’[121]
Regionally and nationally as well, UNHCR may play a lead role. For example, the Australia/New Zealand/Pacific Regional Office co-hosted an expert workshop on ‘Climate Change, Human Rights and Forced Displacement: Case Studies as Indicators of Durable Solutions’ in Canberra in December 2008, which brought together experts from the Pacific region to try to find solutions and ways forward.
IOM might also be viewed as a contender for a lead role on environmental migration. It is not part of the UN system and, unlike UNHCR, does not have a protection function (although its services at times extend to providing humanitarian assistance to refugees and IDPs). As noted in the Introduction to this volume, it has very little normative vision of its own and primarily exists as a service-provided to governments in migration management. IOM would not be an appropriate body were the issue primarily conceived as one of international protection. However, more broadly, it has attempted to facilitate international cooperation on migration and has produced two significant research reports on the effects of climate-induced displacement, in addition to co-sponsoring a workshop with UNITAR and UNFPA on ‘Climate Change, Environmental Degradation and Migration: Preparing for the Future’ in May 2008.[122]
Politically, IOM is trying to take an agenda-setting role on the issue.[123] At a conference on ‘Environment, Forced Migration and Social Vulnerability’ in Bonn in October 2008, IOM featured prominently in plenary discussions as a partner organization and key sponsor. By contrast, UNHCR’s direct involvement was limited to a single speaker. From the perspective of forced migration studies, a striking feature of that conference was the loose use of refugee terminology by experts from other disciplines, and a somewhat underdeveloped conceptualization of the issue in the plenary sessions. The persisting tension between forced migration and environmental approaches suggests that the missing link is a true interdisciplinary dialogue, which is starkly reflected at the institutional level.
The other partner organizations involved in the Bonn conference also form part of a broader research project: EACH-FOR. This is a project run by IOM, the United Nations University, UN Environment Program, Organization for Security and Cooperation in Europe, Munich Re Foundation, and UN Convention to Combat Desertification, which aims to ‘discover and describe the causes of forced migration in relation to environmental degradation/change and their association with other social, political and economic phenomena in Europe and in the main countries of migration origin’, and to ‘provide plausible future scenarios of environmentally-induced forced migration’ focussing on 22 case studies in nine regions.[124] It is important to be aware of how the mandates of the organizations involved may impact upon the kinds of questions asked and the way in which the subject matter is shaped and conceptualized.
Mortreux and Barnett suggest that the displacement discourse may lead donors to focus on migration rather than adaptation, and that this may also have implications for foreign aid and investment in affected countries. There is a risk that if the need to move is internalized by locals, unsustainable development practices may ensure and ‘the impacts of climate change [may] materialise more through the idea of climate change than through material changes in ecosystems driven by climatic processes’.[125]
Renaud and others have identified five action lines that require coordinated implementation as a forward-planning strategy:[126]
4 Giving the means for adequate humanitarian aid: relevant UN and others institutions need to be given a mandate to provide assistance to environmental migrants/refugees, especially in the context of whole-nation displacement. This would be best achieved ‘if there is an international mechanism in place recognising this category of individuals. For example, King (2006) suggested the creation of an International Coordinating Mechanism for Environmental Displacement that would address the chain prevention-preparedness-mitigation-rehabilitation-resettlement through the coordination of specialised and competent international and intergovernmental agencies, although the exact functioning and funding of this mechanism were not explicitly described.’[127]
Despite the common call for a multifaceted, or cooperative or international approach, the literature does not spell out what this would look like or how it would be achieved. Without binding legal norms supporting it, it may be difficult to get States to respond in the desired ways. This is obvious even in areas which are regulated by treaty, such as migrant workers. International law provides important benchmarks and standards to regulate State action; on the other hand, these must be supported by political will and action. As Aleinikoff concluded in International Migration Law, ‘there can be no monolithic approach to migration management. Some areas might well benefit from norms adopted by way of an international convention; guiding principles might work best for areas in which a consensus is further away’.[129]
Most authors agree that an early assessment and strengthening of a community’s adaptive capacity is crucial. This requires educating communities about the situation, including providing access to information (sadly lacking through much of the Pacific). Some basic principles for the effective management of environmental migration include:
The security implications of climate change are also a politically potent issue. In April 2007, the Security Council for the first time considered the impacts of climate change on international peace and security. The President of the Security Council and UK Foreign Secretary, Margaret Beckett, said that climate change was not merely a matter of national security but was about ‘our collective security in a fragile and increasingly interdependent world.’[131] The Secretary-General stated that climate-induced movement could lead to major conflict and instability.[132] A draft resolution sponsored by over 50 States calls on the General Assembly to invite the Security Council to consider and address the implications of climate change on international peace and security, and to report back to the General Assembly about them.[133] It expresses deep concern ‘that the adverse impacts of climate change, including sea-level rise and population relocation may threaten the territorial integrity and sovereignty of some States, and thus could endanger international peace and security’.
Yet the security dimension can be ‘flipped’ to focus attention on the rights of citizens of potential host States, which may in turn shape policy responses. For example, in March 2008, the Council of the European Union released a report on ‘Climate Change and International Security’ which included a section on environmental migration. Although the report documented the predicted security impacts on regions directly affected, it also highlighted the potential economic, political and social impacts of this for the EU itself. A highly controversial 2003 Pentagon-sponsored report described the national security implications of climate change as including border management, global conflict and economic malaise,[134] warning of a potential ‘flood of refugees to southeast U.S. and Mexico from Caribbean islands’ by 2012.[135] A report based on the advice of a team of retired US generals and admirals concluded that climate change creates new security challenges for the US, such as ‘increased immigration’, and has ‘the potential to disrupt our way of life and force changes in how we keep ourselves safe and secure by adding a new hostile and stressing factor into the national and international security environment.’[136] In December 2008, the Australian government appointed a National Security Adviser, part of whose mandate encompasses the security implications of climate change for Australia, including ‘unregulated population movements’.[137] That the threats to security in each of these examples includes apparent threats to citizens in the EU, US and Australia may encourage a politics of fear, such as has dominated asylum debates in the industrialized world for the past decade, which may mould responses to climate-induced movement.
G Domestic Schemes
Solutions implemented to date for cross-border environmental displacement have typically been domestic political ones, rather than international legal initiatives. They have also typically been based on the idea either of temporary humanitarian assistance, as a gesture of goodwill, or constructed as migration, rather than protection, responses.
In 2002, New Zealand created a visa called the Pacific Access Category, which was based on an existing scheme for Samoans and replaced previous work schemes for people from Tuvalu, Kiribati and Tonga.[138] This visa has mistakenly been hailed as an immigration response to people at risk of climate-induced displacement in the Pacific, both in media and academic circles.[139] Although the scheme was extended to citizens of Tuvalu after a plea from that country’s government for special immigration assistance to enable some of its 12,000 citizens to relocate, it is a traditional migration programme rather than one framed with international protection needs in mind.[140]
The scheme permits an annual quota of 75 citizens each from Tuvalu and Kiribati and 250 each from Tonga and Fiji, plus their partners and dependent children, to settle in New Zealand.[141] Eligibility is restricted to applicants between the ages of 18 and 45, who have a job offer in New Zealand, meet a minimum income requirement and have a minimum level of English. Selection is by ballot.
Contrary to reports that the visas are simply not being taken up,[142] an analysis of the statistics since the scheme’s commencement in July 2002 reveals that on average, 694 applications have been made by people from Kiribati and 253 from Tuvalu each year, with 1,667 being lodged from Kiribati in 2007 and 367 from Tuvalu. Only in the first year of the scheme was the quota for Kiribati unmet, with 51 visa grants, in 2004 only 64 visas were granted to Tuvaluans. In most years, the 75 places have been exceeded by 10–15 additional visa grants. Nevertheless, it seems that many islanders are reluctant to relocate, and some who do end up returning home. It has been reported that many see relocation as an ‘unaffordable dream’ considering the expense in the application process (NZ$50), and the difficulties in obtaining an approved job offer in New Zealand. One community leader condemned the Pacific Access Category scheme as a new type of ‘slavery immigration’, whereby educated Tuvaluans renounce stable, white-collar government employment at home to end up as cleaners or fruit-pickers in New Zealand.[143] But another reason is a general reluctance to leave the islands, which are home. The land has unique social and cultural meanings with power-structure significance, and leaving it uproots community and family ties. This is important to bear in mind, since it exposes the misconception on which much of western immigration and asylum policy rests, namely, that freeing up immigration restrictions automatically encourages ‘floods’ of people to try to come in.
It is, however, consistent with what the inhabitants of the Pacific have been consistently saying: they want the security of knowing that when they have to move, they have somewhere to go, but would prefer to remain in their own homelands for as long as they can. For many, the idea of circular migration is most appealing: the ability to temporarily work abroad, return home, and so on. Ironically, as States try to crack down on unauthorized movement across border (US/Mexico), they may inadvertently create a shift towards more permanent unlawful migration: because the fluidity of movement becomes increasingly difficult, so people move and remain, even though they would prefer only to stay temporarily.
Swedish asylum law contains a provision extending protection to people who are ‘unable to return to the[ir] country of origin because of an environmental disaster’, but to date this has never been used. Furthermore, it would seem that it was only ever intended to cover people fleeing environmental disasters such as Chernobyl, rather than climate-induced displacement more broadly.
In the United States, the Secretary of Homeland Security may ‘designate’ a country where there is an on-going armed conflict threatening people’s personal safety, or where:
(B) the Secretary of Homeland Security finds that—
(i) there has been an earthquake, flood, drought, epidemic, or other environmental disaster in the state resulting in a substantial, but temporary, disruption of living conditions in the area affected,
(ii) the foreign state is unable, temporarily, to handle adequately the return to the state of aliens who are nationals of the state, and
(iii) the foreign state officially has requested designation under this subparagraph. ...[144]
This is only a temporary status, and it only applies to people already in the United States at the time the designation is made. This provision was used to assist 292 people from Montserrat following volcanic eruptions there between 1995 and 1999. Although they were given permission to live and work in the US for rolling 12 month periods, in 2004 their status was revoked and they reverted to their original immigration status (unless it had expired or been terminated). For those who would therefore be unlawful, they were expected to leave the US by the end of February 2005 or face removal,[145] even though many had lived in the US for eight years by that time. The Secretary of Homeland Security stated that because the situation in Montserrat had not improved and volcanic eruptions were not likely to stop in the foreseeable future, the situation was no longer a ‘temporary disruption of living conditions that temporarily prevents Montserrat from adequately handling the return of its nationals’.[146]
There is therefore an absence of State practice demonstrating any sense of an on-going obligation towards people displaced by natural disaster. Indeed, States have often make clear that their assistance, whether relocation or otherwise, is a matter of humanitarian goodwill rather than stemming from an international legal obligation.
In mid-2006, and prior to forming government in late 2007, the Australian Labor Party proposed the creation of a Pacific Rim coalition to accept climate change ‘refugees’, and encouraged the Australian government to lobby the United Nations to ‘ensure appropriate recognition of climate change refugees in existing conventions, or through the establishment of a new convention on climate change refugees.’[147] But when Greens Senator Kerry Nettle proposed the Migration (Climate Refugees) Amendment Bill 2007, which would issue visas to people fleeing ‘a disaster that results from both incremental and rapid ecological and climatic change and disruption, that includes sea level rise, coastal erosion, desertification, collapsing ecosystems, fresh water contamination, more frequent occurrence of extreme weather events such as cyclones, tornados, flooding and drought and that means inhabitants are unable to lead safe or sustainable lives in their immediate environment’, the Labor party was quick to note that its idea of an international response meant that without a collaborative approach with other countries, adopting such an obligation would be a unilateral act and therefore inconsistent with its idea of international action.[148] In government, Labor has not formulated a policy on this issue.
H Conclusion
It is important to recognize that environmental migration should not be seen as a sign that adaptation has failed, since ‘it may indeed be part of the solution’[149]—a sign of community resilience and innovation in response to the negative effects of climate change.[150] Although this chapter has not been able to provide concrete solutions to climate-induced displacement, its value lies in thinking about possible ways forward. The chapter examined the variables that will impact on the realization of forced movement, and the very problems inherent in describing movement as forced or voluntary. It acknowledged the multicausality of climate-driven displacement, although cautioned that this is not unique to this area of movement but in fact is present in traditional refugee flows and so-called economic migration as well. It highlighted the difficulties presented by bureaucratic categories in regulating global migration, but also how a failure to create such categories may lead to an absence of regulation and therefore protection and assistance. Situating climate-induced migration within the broader context of mitigation and adaptation, the chapter made suggestions about the ways in which migration planning might be constructed and implemented at both the regional and international levels. Finally, it was conceded that, however conceptually flawed, the international protection regime was itself designed to protect only a select few of those who on ethical or other grounds could justifiably be seen as needing protection. Even human rights law has built-in mechanisms to enable States to derogate from their obligations in times of emergency, or where, on balance, the rights of the community as a whole are seen as outweighing those of the particular individual. One may justifiably call into question some of the basic premises on which these legal instruments are based, and in doing so, may highlight the political choices inherent in the priorities of global migration governance and the institutions that exist—and which may be created in the future—to manage it.
[∗]
BA (Hons) LLB (Hons) (Syd), DPhil (Oxon); Associate Professor,
Faculty of Law, University of New South Wales, Australia; Research Associate,
Refugee Studies Centre, University
of Oxford. Thank you to Kate Purcell for her
excellent research assistance. This paper is a chapter in a forthcoming book on
global
migration governance edited by Alexander Betts at the University of
Oxford.
[1] F
Biermann and I Boas, ‘Preparing for a Warmer World: Towards a Global
Governance System to Protect Climate Refugees’,
Global Governance Working
Paper No 33 (November 2007) 9.
[2] See N Myers,
‘Environmental Refugees in a Globally Warmed World’ (1993) 43
BioScience 752; Intergovernmental Panel on
Climate Change, Third Assessment
Report of the Intergovernmental Panel on Climate Change (CUP, Cambridge,
2001). In 2005, Myers revised his estimate, suggesting that it could be up to
200 million: N Myers, ‘Environmental
Refugees: An Emergent Security
Issue’ (13th Economic Forum, Prague. 23–27
May 2005). Sir Nicholas Stern described this as a ‘conservative’
assumption: N Stern,
The Economics of Climate Change: The Stern Review
(CUP, Cambridge, 2007). Myers has more recently revised this figure as closer
to 250 million: interview with Christian Aid (14 March
2007), cited in Christian
Aid, Human Tide: The Real Migration Crisis (2007) 50 endnote 10.
Christian Aid adopted this figure in its own estimates: 6. See also figures in
S Byravan and S Chella Rajan,
‘Providing New Homes for Climate Change
Exiles’ (2006) 6 Climate Policy 247.
[3] United Nations
High Commissioner for Refugees, António Guterres, in an interview with
The Guardian (reported by
Julian Borger, 17 June
2008) http://www.guardian.co.uk/environment/2008/jun/17/climatechange.food
(accessed 20 August
2008).
[4] See eg
G.C. Hegerl and others, ‘Understanding and Attributing Climate
Change’, in S. Solomon and others (eds), Climate Change 2007: The
Physical Science Basis: Contribution of Working Group I to the Fourth Assessment
Report of the Intergovernmental
Panel on Climate Change (Cambridge,
Cambridge University Press, 2007); Intergovernmental Panel on Climate Change,
Climate Change 2007: Synthesis Report. Summary for
Policymakers
(2007).
[5] F.
Biermann and I. Boas, ‘Preparing for a Warmer World: Towards a Global
Governance System to Protect Climate Refugees’,
Global Governance Working
Paper No 33 (November 2007) 9.
[6] Dominic Kniveton
is very critical of the crude counting method by which Myers reached this
estimate: ‘Climate Change and Migration:
Developing Methodologies’,
Environment, Forced Migration and Social Vulnerability conference presentation
(Bonn, 9 October
2008). See also D. Kniveton and others, ‘Climate Change
and Migration: Improving Methodologies to Estimate Flows’, IOM
Migration
Research Series No. 33 (2008)
29.
[7] See N. Myers,
‘Environmental Refugees in a Globally Warmed World’ (1993) 43
BioScience 752; Intergovernmental Panel on
Climate Change, Third Assessment
Report of the Intergovernmental Panel on Climate Change (Cambridge,
Cambridge University Press, 2001). In 2005, Myers revised his estimate,
suggesting that it could be up to 200 million:
N. Myers, ‘Environmental
Refugees: An Emergent Security Issue’ (13th
Economic Forum, Prague. 23–27 May 2005). Sir Nicholas Stern described
this as a ‘conservative’ assumption: N.
Stern, The Economics of
Climate Change: The Stern Review (CUP, Cambridge, 2007). Myers has more
recently revised this figure as closer to 250 million: interview with Christian
Aid (14 March
2007), cited in Christian Aid, Human Tide: The Real Migration
Crisis (2007) 50 endnote 10. Christian Aid adopted this figure in its own
estimates: 6. See also figures in S. Byravan and S. Chella
Rajan,
‘Providing New Homes for Climate Change Exiles’ (2006) 6 Climate
Policy 247.
[8] United Nations
High Commissioner for Refugees, António Guterres, in an interview with
The Guardian (reported by Julian Borger, 17 June 2008) http://www.guardian.co.uk/environment/2008/jun/17/climatechange.food
(accessed 20 August
2008).
[9] W.
Kälin, ‘The Climate Change–Displacement Nexus’ (16 July
2008) http://www.brookings.edu/speeches/2008/0716_climate_change_kalin.aspx?p=1
(accessed 2 December
2008).
[10]
Kniveton and others, ‘Climate Change and Migration’,
32.
[11] S.
Castles, ‘Environmental Change and Forced Migration: Making Sense of the
Debate’, New Issues in Refugee Research WP
No. 70
(2002).
[12] Stern,
The Economics of Climate Change,
112.
[13] See J. G.
Fritze and others, ‘Hope, Despair and Transformation: Climate Change and
the Promotion of Mental Health and Wellbeing’,
International Journal of
Mental Health Systems, 2 (2008), 13. Note, too, that historically people
moved throughout the Pacific in order to adapt to changing climatic patterns:
S.
R. Fischer, A History of the Pacific Islands (New York, Palgrave
Macmillan, 2002), xvi, 37–38, 44. However, at that time, immigration
controls did not hamper movement
in the same way that they do
today.
[14] UN
Framework Convention on Climate Change (adopted 9 May 1992, entered into force
21 March 1993) 1771 UNTS
107.
[15]
Intergovernmental Panel on Climate Change, Climate Change: The IPCC
Scientific Assessment: Final Report of Working Group I (NY: Cambridge
University Press,
1990).
[16] Hegerl
and others, ‘Understanding and Attributing Climate Change’;
Intergovernmental Panel on Climate Change, Climate Change 2007:
Synthesis Report.
[17] R. V. Cruz
and others, ‘Asia’ in M. L. Parry and others (eds), Climate
Change 2007: Impacts, Adaptation and Vulnerability. Contribution of Working
Group II to the Fourth Assessment Report of the
Intergovernmental Panel on
Climate Change (Cambridge, Cambridge University Press, 2007), 484, 488; W.
N. Adger and others, ‘Assessment of Adaptation Practices, Options,
Constraints and Capacity’ in Parry and others (eds), Climate Change
2007: Impacts, Adaptation and Vulnerability, 733–4; R. J. Nicholls and
R. S. J. Tol, ‘Impacts and Responses to Sea-Level Rise: A Global Analysis
of the SRES Scenarios
over the Twenty-First Century’, Philosophical
Transactions of the Royal Society A, 364 (2006), 1073. See also Council of
the European Union, Report from the Commission and the Secretary-General/High
Representative
to European Council on Climate Change and International Security
(Brussels, 3 March 2008).
[18] Cruz and
others, ‘Asia’, 492. It has been argued that although adaptation to
five metres of sea-level rise is technically
possible, a lack of resources mean
that realistically this is outside the scope of adaptation for many vulnerable
States: R. S. J.
Tol and others, ‘Adaptation to Five Metres of Sea Level
Rise’, Journal of Risk Research, 9 (2006),
467.
[19] S. Henry,
B. Schoumaker and C. Beauchemin, ‘The Impact of Rainfall on the First
Out-Migration: A Multi-Level Event-History
Analysis in Burkina Faso’,
Population and Environment, 25 (2004),
423.
[20] See also
M. Leighton, ‘Desertification and Migration’ in P. M. Johnson, K.
Mayrand and M. Pacquin (eds.), Governing Global Desertification
(Aldershot, Ashgate, 2006); F. Renaud and others, ‘Control, Adapt or Flee:
How to Face Environmental Migration?’, InterSecTions
No. 5 (2007),
19.
[21] C. Ehrhart
and A. Thow, ‘Humanitarian Implications of Climate Change: Mapping
Emerging Trends and Risk Hotspots’ (OCHA
and CARE, August 2008)
5.
[22] Castles,
‘Environmental Change and Forced Migration’. Refugee law recognizes
that there may be more than a single cause
for flight, and provided that
persecution for a Refugee Convention reason is one such cause, others will not
negate the need for
international protection. See eg Foster on ‘economic
migration’ versus ‘forced migration’: M. Foster,
International Refugee Law and Socio-Economic Rights: Refuge from
Deprivation (Cambridge, Cambridge University Press, 2007),
5–21.
[23]
See respectively Intergovernmental Panel on Climate Change, ‘Summary for
Policymakers’ in Solomon and others, Climate Change 2007,
10; Hegerl and others, ‘Understanding and Attributing Climate
Change’,
729.
[24] See C.
Mortreux and J. Barnett, ‘Climate Change, Migration and Adaptation in
Funafuti, Tuvalu’, Global Environmental Change (2008), 2 (article
in press, 18 November
2008).
[25] R.
Haug, ‘Forced Migration, Processes of Return and Livelihood Construction
among
Pastoralists in Northern Sudan’, Disasters, 26 (2002), 70;
E. Meze-Hausken, ‘Migration Caused by Climate Change: How Vulnerable are
People in Dryland Areas?’ Mitigation and Adaptation Strategies for
Global Change, 5 (2000)
379.
[26] Kniveton
and others, ‘Climate Change and Migration’, 35; Mortreux and
Barnett, ‘Climate Change, Migration and Adaptation
in Funafuti,
Tuvalu’.
[27]
T. A. Aleinikoff, ‘International Legal Norms on Migration: Substance
without Architecture’, in R. Cholewinski, R. Perrechoud
and E. MacDonald
(eds.), International Migration Law: Developing Paradigms and Key
Challenges (The Hague, T. M. C. Asser Press, 2007)
471.
[28] There was
an interesting suggestion made at the first session of the UN Human Rights
Council’s Advisory Committee that the
Human Rights Council and the
Secretary-General use their good offices to extend the principle of
non-refoulement to ‘hunger refugees’: Report of the Advisory
Committee on its First Session (Geneva, 4–15 August 2008), UN Doc
A/HRC/10/2, A/HRC/AC/2008/1/2 (3 November 2008) Recommendation 1/6,
15th meeting, 15 August
2008.
[29]
Cross-reference to Betts’ introduction,
2.
[30] Renaud and
others, ‘Control, Adapt or Flee’, 10. See also G. Hugo,
‘Environmental Concerns and International Migraton’,
International Migration Review (1996) 30,
105.
[31] See
discussion in N. Myers and J. Kent, Environmental Exodus: An Emergent Crisis
in the Global Arena (Washington DC, The Climate Institute, 1995); E.
El-Hinnawi, Environmental Refugees (UN Environment Programme, 1985); A.
Suhrke and A. Visentin, ‘The Environmental Refugee: A New Approach’,
Ecodecision (1991),
73.
[32]
Interestingly, the Australian Labor Party uses the term ‘climate change
refugees’, implying a sense of legal recognition
and obligation: Our
Drowning Neighbours: Labor’s Policy Discussion Paper on Climate Change in
the Pacific (ALP,
2006).
[33] See eg
D. Keane, ‘The Environmental Causes and Consequences of Migration: A
Search for the Meaning of “Environmental
Refugees”’,
Georgetown International Environmental Law Review, 16 (2004), 209.
[34] G. Kibreab,
‘Environmental Causes and Impact of Refugee Movements: A Critique of the
Current Debate’, Disasters, 21 (1997), 20,
21.
[35] Convention
relating to the Status of Refugees (adopted 28 July 1951, entered into force 22
April 1954) 189 UNTS 137, art 1A(2), read in conjunction with Protocol relating
to the Status of Refugees (adopted 31 January 1967, entered into force 4 October
1967) 606 UNTS
267.
[36] See
speech of Anote Tong, President of Kiribati, Australian National University, 19
June 2008 (see http://news.anu.edu.au/?p=437).
[37] See eg the
discussion of complementary protection
below.
[38] See B.
Saul, Defining Terrorism in International Law (OUP, Oxford,
2006).
[39]
International Organization for Migration, ‘Discussion Note: Migration and
the Environment’, 94th session, Doc. No.
MC/INF/288 (1 November 2007), para 6. For other definitions, see egs listed in
Renaud and others, ‘Control,
Adapt or Flee’,
13.
[40] Kniveton
and others, ‘Climate Change and Migration’,
31.
[41] Renaud and
others have suggested the following distinction: ‘An environmentally
motivated migrant “may leave” a
steadily deteriorating environment
in order to pre-empt the worse’, whereas a ‘forced migrant’ is
someone who is
compelled to leave: Renaud and others, ‘Control, Adapt or
Flee’, 29–30. Forward-planning could alleviate the incidence
of the
latter, especially across international borders, although thought needs to be
given to how spontaneous arrivals might be received,
processed and accommodated.
The question will in each case be whether the receiving State is permitted, as a
matter of international
law, to return a person to the situation that he or she
has fled: whether doing so would expose him or her to inhuman or degrading
treatment through
removal.
[42]
Kälin, ‘The Climate Change–Displacement
Nexus’.
[43]
‘Displacement and Climate Change: Towards Defining Categories of Affected
Persons’ (First Draft of a Working Paper submitted
by the informal IASC
Working Group on Migration/Displacement and Climate Change, 20 September
2008).
[44]
Kälin, ‘The Climate Change–Displacement Nexus’.
[45] Kälin,
‘The Climate Change–Displacement
Nexus’.
[46]
N. Mimura and others, ‘Small Islands’ in Parry and others (eds),
Climate Change 2007: Impacts, Adaptation and Vulnerability, 692–93.
The report additionally lists the impacts of globalization, pressures on
infrastructure, a scarcity of fresh water,
and, in the Pacific, internal and
external political and economic processes, including the imposition of western
adaptation models
which are not readily transposable to the island context.
These features have resulted in some small island States being recognised
by the
UN as Least Developed Countries or SIDS (small island developing
States).
[47] As
Brown notes, of the 14 National Adaptation Programmes of Action (an initiative
supported by the United Nations Framework Convention
on Climate Change, which
aims to assist Least Developed Countries to rank their priorities for adaptation
to climate change) that
had been submitted by 10 March 2007, not one referred to
migration or relocation as a possible policy response: O. Brown,
‘Migration
and Climate Change’, IOM Migration Research Series No. 31
(2008). The 14 States were Bangladesh, Bhutan, Burundi, Cambodia,
Comoros,
Djibouti, Haiti, Kiribati, Madagascar, Malawi, Mauritania, Niger, Samoa, and
Senegal. See http://unfccc.int/national_reports/napa/items/2719.php.
[48] Mimura and
others, ‘Small Islands’, 703, citing L. Nurse and others,
‘Small Island States’ in J. J. McCarthy
and others (eds), Climate
Change 2001: Impacts, Adaptation, and Vulnerability.
Contribution of Working Group II to the Third Assessment Report of the
Intergovernmental Panel on Climate Change (Cambridge, Cambridge University
Press, 2001), eg
17.1.2.
[49] Brown,
‘Migration and Climate Change’,
17ff.
[50] The
former President of the Australian Human Rights Commission, John von Doussa,
regarded a burden-sharing treaty as a possible way
forward: see ‘Climate
Change and Human Rights: A Tragedy in the Making’ (20 August 2008) http://www.humanrights.gov.au/human_rights/climate_change/index.html
(accessed 8 December 2008). The failure of this principle in addressing the
plight of the world’s refugees does not augur
well, however, for this as a
solution.
[51]
Mortreux and Barnett, ‘Climate Change, Migration and Adaptation in
Funafuti, Tuvalu’,
2.
[52] The
following analysis is based closely on J. McAdam and B. Saul, ‘An Insecure
Climate for Human Security? Climate-Induced
Displacement and International
Law’ (Sydney Centre Working Paper 4,
2008).
[53] J.-F.
Durieux and J. McAdam, ‘Non-Refoulement through Time: The Case for
a Derogation Clause to the Refugee Convention in Mass Influx Emergencies’,
International Journal of Refugee Law, 16 (2004),
4.
[54] Refugee
Convention, art.
1A(2).
[55] Unless
the threat could be characterized in such as way as to trigger the Security
Council’s enforcement powers under Chapter
VII of the UN Charter: see
McAdam and Saul, ‘An Insecure Climate for Human Security?’, 17, 20.
[56] It has been
suggested that this is what happened in Darfur: Ban Ki Moon, ‘A Climate
Culprit in Darfur’ (16 June 2007)
www.washingtonpost.com A15. See also
K. M. Campbell and others, The Age of Consequences: The Foreign Policy and
National Security Implications of Global Climate Change (Center for
Strategic and International Studies and Center for a New American Security,
November 2007). Others dispute the link
between climate change and conflict as
‘more theoretically than empirically driven, and motivated by Northern
theoretical and
strategic interests rather than informed by solid empirical
research’: J. Barnett, ‘Security and Climate Change’,
Global Environmental Change, 13 (2003), 7, 9–10, referring also to
J. Barnett, ‘Destabilising the Environment-Conflict Thesis’,
Review of International Studies, 26 (2000), 271; N. Gleditsch,
‘Armed Conflict and the Environment: A Critique of the Literature’,
Journal of Peace Research, 35 (1998), 381.
[57] It is
important to bear in mind that persecution can be constituted by an accumulation
of harms, even if individual harms would not,
on their own, be sufficient to
meet that threshold. The New Zealand Refugee Status Appeals Authority has
stated: ‘It is recognised
that various threats to human rights, in their
cumulative effect, can deny human dignity in key ways and should properly be
recognised
as persecution for the purposes of the Convention’: Refugee
Appeal No 71427/99, NZ Refugee Status Appeals Authority, 16 August 2000,
para 53(a), as cited in Foster, International Refugee Law and Socio-Economic
Rights,
94.
[58] G. S.
Goodwin-Gill and J. McAdam, The Refugee in International Law,
3rd edition (Oxford, Oxford University Press, 2007),
90–134. Note, however, that Sweden has chosen to include a category of
‘persons
otherwise in need of protection’ in its Aliens Act (which
entered into force 31 March 2006), encompassing inter alia people who are
‘unable to return to the country of origin because of an environmental
disaster’: Swedish Aliens Act,
Ch. 4, s. 2(3). It is unclear if this
would extend to people displaced by climate change, or whether it is intended
only to cover
people fleeing environmental disasters such as Chernobyl: see
Brown, ‘Migration and Climate Change’, 39 referring to
personal
communication with Helené Lackenbauer (International Federation of Red
Cross and Red Crescent Societies), who stated
that parliamentary discussions of
this category prior to the passing of the legislation referred to nuclear
disasters.
[59]
Goodwin-Gill and McAdam, The Refugee in International Law, 79–80.
Note, however, Foster’s remark that: ‘it is clear that the poor can
properly be considered a PSG, such
that if being poor makes one vulnerable to
persecutory types of harm, whether socio-economic or not, then a refugee claim
may be
established’: Foster, International Refugee Law and
Socio-Economic Rights: Refuge from Deprivation, 310 (fn omitted). Even if
this test could be met by certain people displaced by climate change, the
difficulty would remain in
establishing ‘persecution’ in the context
of climate-induced displacement. Interestingly, the Marshall Islands and
Kiribati
have both eschewed the refugee label, fearing that it might lead to
scattered, individual, and uncoordinated resettlement breaking
down cultural
integrity, heritage and—fundamentally—the sense of a State and
people: See discussion in Barnett, ‘Security
and Climate Change’,
12–13, citing G. Fraser, ‘Sea-Level Rise, Hurricanes, It Is No
Paradise on Small Islands’
The Earth Times (15 November 2000); F.
Pearce, ‘Turning Back the Tide’, New Scientist, 165 (2000),
44, 47.
[60] This
is not to suggest that discrimination is a necessary element of persecution, but
rather that the nexus grounds require persecution
to be on account of a
(perceived) characteristic setting apart the racial, religious, etc group from
the rest of society: see Goodwin-Gill
and McAdam, 90–91,
128–29.
[61]
A. Edwards, ‘Refugee Status Determination in Africa’, RADIC,
14 (2006), 204, 225–27, referring to Organization of African Unity
Convention Governing the Specific Aspects of Refugee Problems
in Africa (adopted
10 September 1969, entered into force 20 June 1974) 1001 UNTS 45, art
1(2).
[62] Edwards,
‘Refugee Status Determination in Africa’,
227.
[63] Edwards,
‘Refugee Status Determination in Africa’, 227. UNHCR similarly made
clear that its assistance activities for
people displaced by the Boxing Day
tsunami did not fall within its formal protection mandate, but rather
constituted ‘time-limited
humanitarian assistance’ requested
specially by the UN Secretary-General: UNHCR, ‘Note on International
Protection’
UN Doc. A/AC.96/1008 (4 July 2005, para 36, cited in Edwards,
‘Refugee Status Determination in Africa’,
227.
[64] See J.
McAdam, Complementary Protection in International Refugee Law (Oxford,
Oxford University Press, 2007) chapter
6.
[65] McAdam,
Complementary Protection in International Refugee Law, chapter
6.
[66] Petition to
the Inter American Commission on Human Rights Seeking Relief from Violations
resulting from Global Warming caused by
Acts and Omissions of the United States
(7 December 2005) http://www.earthjustice.org/library/legal_docs/petition-to-the-inter-american-commission-on-human-rights-on-behalf-of-the-inuit-circumpolar-conference.pdf.
The Commission dismissed the petition (which would have led to contentious
litigation against the US), but instead permitted the
Inuit representatives to
attend a general hearing, the purpose of which is to provide general information
on the human rights situation
in a Member State, or on matters of general
interest to the
Commission.
[67]
International Covenant on Civil and Political Rights (adopted 16 Dec 1966,
entered into force 23 March 1976) 999 UNTS
171.
[68] Report
on the Human Rights Situation in Ecuador OEA/Ser.L/V/II.96 Ch 8; Yanomami
case (case 7615 of 5 March 1985), cited in annual report of the
Inter-American Commission on Human Rights, 1984–85, OEA/Ser.L/V/II.66,
Doc. 10 rev.1.
[69] International
Covenant on Economic, Social and Cultural Rights (adopted 16 December 1966,
entered into force 3 January 1976) 993 UNTS 3 (ICESCR), art
11.
[70]
International Covenant on Civil and Political Rights (adopted 16 Dec 1966,
entered into force 23 March 1976) 999 UNTS 171 (ICCPR), art 1(2); ICESCR, art
1(2).
[71]
Intergovernmental Panel on Climate Change, ‘Summary for
Policymakers’ in Parry and others (eds), Climate Change 2007: Impacts,
Adaptation and Vulnerability,
7.
[72] ICESCR, art
12.
[73] Convention
on the Rights of the Child (adopted 20 November 1989, entered into force 2
September 1990) 1577 UNTS 3 (CRC), art
30.
[74] ICCPR, art
27.
[75] Maya
Indigenous Communities of the Toledo District (Belize Maya) Case 12.053
Inter-American Commission on Human Rights (2004), para 120.
[76] See
Inter-American Commission on Human Rights, Report on the Situation of Human
Rights of a Segment of the Nicaraguan Population of Miskito Origin 76,
OEA/Ser.L/V/II.62, Doc. 10, rev. 3 (1983), para
II.B.15.
[77]
Declaration on the Rights of Indigenous Peoples, A/RES/61/295 (adopted 13
September 2007), art
25.
[78]
Declaration on the Rights of Indigenous Peoples, art
26.
[79]
Declaration on the Rights of Indigenous Peoples, art
29.
[80]
Declaration on the Rights of Indigenous Peoples, art
28(1).
[81]
Declaration on the Rights of Indigenous Peoples, art
28(2).
[82] See
ICCPR, art 1(1); ICESCR, art
1(1).
[83] The
Montevideo Convention on the Rights and Duties of States (adopted 26 December
1933, entered into force 26 December [1936] LNTSer 9; 1934) 165 LNTS 19 is regarded as reflecting
the position in customary international
law.
[84] See
Universal Declaration of Human Rights (adopted 10 December 1948) UNGA Res 217A
(III), art 15 (UDHR); CRC, arts 7 and 8; ICCPR,
art 24(3); American Convention
on Human Rights (adopted 22
November 1969, entered into force 18 July 1978)
1144 UNTS 123, art 20; Convention on the Reduction of Statelessness (adopted 30
August 1961, entered into force 13 December 1975) 989 UNTS
175.
[85]
Convention relating to the Status of Stateless Persons (adopted 28 September
1954, entered into force 6 June 1960) 360 UNTS 117l, art 1(1): ‘For the
purpose of this Convention, the term “stateless person” means a
person who is not considered
as a national by any State under the operation of
its law. See further McAdam and Saul, ‘An Insecure Climate for Human
Security?’.
[86]
A. Guterres, ‘Climate Change, Natural Disasters and Human Displacement: A
UNHCR Perspective’ (23 October 2008) 5. (Note
new paper to be released at
the end of
2008.)
[87] See
further R. Verheyen, Climate Change Damage and International Law: Prevention
Duties and State Responsibility (Leiden/Boston, Martinus Nijhoff Publishers,
2005).
[88] See R.
E. Jacobs, ‘Treading Deep Waters: Substantive Law Issues in Tuvalu’s
Threat to Sue the United States in the International
Court of Justice’,
Pacific Rim Law and Policy Journal, 14 (2005),
103.
[89] See
inconsistencies with respect to the precise meaning of ‘effective
control’: Banković v. Belgium [2001] ECHR 890; (2001) 11 BHRC 435;
Ilaşcu v. Moldova and Russia [2004] ECHR 318; (2005) 40 EHRR
46.
[90]
Banković v. Belgium [2001] ECHR 890; (2001) 11 BHRC
435.
[91] On this,
see McAdam, Complementary Protection in International Refugee Law;
Goodwin-Gill and McAdam, The Refugee in International Law, 345–54;
E. Lauterpacht and D. Bethlehem, ‘The Scope and Content of the Principle
of Non-Refoulement: Opinion’ in E. Feller, V. Türk and F.
Nicholson (eds), Refugee Protection in International Law: UNHCR’s
Global Consultations on International Protection (Cambridge, Cambridge
University Press,
2003).
[92]
Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or
Punishment (adopted 10 December 1984, entered into
force 26 June 1987) 1465 UNTS
85.
[93] Convention
for the Protection of Human Rights and Fundamental Freedoms (European Convention
on Human Rights, as amended) (4 November
1950).
[94] R
v. Special Adjudicator ex parte Ullah [2004] UKHL 26, paras
24–5 (Lord Bingham), 49–50 (Lord Steyn), 67 (Lord Carswell).
[95] D v.
United Kingdom [1997] ECHR 25; (1997) 24 EHRR 423; N v. Secretary of State for
the Home Department [2005] UKHL 31; N v. United Kingdom (2008
decision of the European Court of Human Rights); HLR v. France
(1997) 20 EHRR 29, para 42; see also the views of Committee against Torture,
as in AD v. The Netherlands, Communication No. 96/1997 (24 January
2000), UN Doc.CAT/C/23/D/96/1997, para 7.2. See discussion in Goodwin-Gill and
McAdam, The Refugee in International Law, 350–51. See critique of
the socio-economic limitation in M. Foster, ‘Economic and Social Rights
in Complementary Protection: Assessing the Immigration Bill in Light of
International Law’ (Human Rights at the Frontier Conference, Auckland,
12 September
2008).
[96] See
respectively ICCPR, art 7; Convention against Torture and Other Cruel, Inhuman
or Degrading Treatment or Punishment (adopted
10 December 1984, entered into
force 26 June 1987) 1465 UNTS 85, arts 3 and
1.
[97] This is a
variation on the argument made in the Inuit petition (Petition to the Inter
American Commission on Human Rights Seeking
Relief from Violations resulting
from Global Warming caused by Acts and Omissions of the United States); see also
S. Byravan and
S. Chella Rajan, ‘Providing New Homes for Climate Change
Exiles’, Climate Policy, 6 (2006), 247.
[98] Declaration
of the United Nations Conference on the Human Environment (Stockholm
Declaration) UN Doc. A/CONF/48/14/Rev.1 (16 June
1972).
[99]
‘The protection of the environment is ... a vital part of contemporary
human rights doctrine, for it is [an indispensable requirement]
... for
numerous human rights such as the right to health and the right to life
itself’: Case Concerning the Gabčikovo-Nagymaros Project (Hungary
v. Slovakia) 1997 ICJ 92 (Separate Opinion of Judge Weeramantry), at
para A(b); see also D. Shelton, ‘Environmental Rights’, and P.
Alston, ‘Peoples’
Rights: Their Rise and Fall’, in P. Alston
(ed.), Peoples’ Rights (Oxford, Oxford University Press, 2001);
Meeting of Experts on Human Rights and the Environment, Final Text (16 January
2002) (see
also background papers at www.unhchr.ch/environment).
Ramcharan suggests that the right to life implies a right to environment and a
concomitant obligation on States ‘to take
effective measures to prevent
and to safeguard against the occurrence of environmental hazards which threaten
the lives of human
beings’: B. G. Ramcharan (ed.), The Right to Life in
International Law (Dordrecht/Boston, Martinus Nijhoff Publishers, 1985) 13,
as (mis)cited in Asia Pacific Forum, ‘Human Rights and the
Environment’,
34.
[100] Asia
Pacific Forum, ‘Human Rights and the Environment: Background Paper’
APF 12 (2007) 26.
[101] Pursuant
to the Additional Protocol to the American Convention on Human Rights in the
Area of Economic, Social and Cultural Rights
(Protocol of San Salvador) (adopted
17 November 1988) OAS Treaty Series 69, art
19(6).
[102]
The Social and Economic Rights Action Centre and the Centre for Economic and
Social Rights v. Nigeria Communication No. 155/96 (2001). para 54 http://www1.umn.edu/humanrts/africa/comcases/155-96.html.
[103] See
Recommendations of the International Meeting of Legal and Policy Experts,
Ottawa, 19 EPL (1989),
78.
[104] eg
Stockholm Declaration, principle 21; Convention on Long-Range Transboundary Air
Pollution (adopted 13 November 1979, entered into
force 16 March 1983) 1302 UNTS
217; Convention for the Protection of the Ozone Layer (adopted 22 March 1985,
entered into force 22 September 1988) 1513 UNTS 293; UN Framework Convention on
Climate Change (adopted 9 May 1992, entered into force 21 March 1993) 1771 UNTS
107; Kyoto Protocol to the Framework Convention on Climate Change (adopted 11
December 1997, entered into force 16 February
2005).
[105] eg
Stockholm Declaration, principle 21; Declaration of the United Nations
Conference on the Human Environment (Rio Declaration) UN
Doc.
A/CONF/151/26/Rev.1 (1992), principle 2; UN Framework Convention on Climate
Change; Kyoto Protocol; United Nations Law of the
Sea Convention (adopted 10
December 1982, entered into force 16 November 1994) 1833 UNTS 3, arts
192–5.
[106]
eg Biological Diversity Convention (adopted 5 June 1992, entered into force 29
December 1993) 1760 UNTS
79.
[107]
Corfu Channel case (UK v. Albania) 1949 ICJ 4,
22.
[108]
Trail Smelter Arbitration (United States v. Canada) 1938–41
3 RIAA 1905, 1965; see also Stockholm Declaration, principle 21; Rio
Declaration, principle 2; see also the International
Law Commission’s
draft articles on the Prevention of Transboundary Harm from Hazardous Activities
(2001), in Report of the ILC (2001) GAOR A/56/10; Advisory Opinion on
the Legality of the Threat or Use of Nuclear Weapons 1996 ICJ 226, para 29.
[109] Rio
Declaration, principle 2. See also I. Millar, ‘There’s No Place
Like Home: Human Displacement and Climate Change’,
Australian
International Law Journal, 14 (2007), 71,
86ff.
[110]
Earthjustice, ‘Global Warming and Human Rights: Testimony of Martin Wagner
before the Inter-American Commission on Human Rights’
(1 March 2007), 3.
See Petition to the Inter American Commission on Human Rights Seeking Relief
from Violations resulting from Global
Warming caused by Acts and Omissions of
the United
States.
[111] See
eg Stockholm Declaration, principle 24; Rio Declaration, principles 7 and
27.
[112] Byravan
and Chella Rajan, ‘Providing New Homes for Climate Change Exiles’,
249.
[113] While
there remains debate in the literature about the real potential for conflict,
the issue of climate change and security features
strongly on the international
political agenda. See eg D. Zhang and others, ‘Global Climate Change,
War, and Population Decline
in Recent Human History’, Proceedings of the
National Academy of Sciences of the United States of America, vol. 104, no. 49
(4 December 2007); International Alert, ‘A Climate of Conflict: The Links
between Climate Change, Peace and War’ (London,
November 2007); J.
Barnett, ‘Security and Climate Change: Towards an Improved
Understanding’, Paper at an International
Workshop on Human Security and
Climate Change (Oslo, 20–21 June 2005); Barnett, ‘Security and
Climate Change’;
Barnett, ‘Destabilising the Environment-Conflict
Thesis’; Gleditsch, ‘Armed Conflict and the
Environment’.
[114]
See eg Geneva Convention (IV) relative to the Protection of Civilian Persons in
Time of War (adopted 12 August 1949, entered into
force 21 October 1950) 75 UNTS
287, art 49(2); 1977 Protocol II Additional to the Geneva Conventions of 12
August 1949, and relating to the Protection of the Victims
of Non-International
Armed Conflicts (adopted 8 June 1977, entered into force 7 December 1978) 1125
UNTS 609, art
17(1).
[115] J-M.
Henckaerts and L. Dowald-Beck, Customary International Humanitarian Law,
Volume I: Rules (Cambridge, Cambridge University Press, 2004), chapter 38:
‘Displacement and Displaced Persons’ (rules 129–33).
[116] See the
work of the International Law Association’s International Committee for
the Compensation of Victims of
War.
[117] For
example, in terms of ascertaining the likelihood of migration as a spontaneous
response, then, it is important to consider ‘the
socio-cultural-political-economic environment that communities exist in; the
cognitive processes of the people experiencing the impact
of climate change; the
individual, household and community attitudes to migration and migration
outcomes; and the type of climate
stimulus that migration may be responding
to’: Kniveton and others, ‘Climate Change and Migration’, 57.
Understanding
of this kind cannot come from a single discipline, but rather
requires true interdisciplinarity.
[118] See
further M. Loughry and J. McAdam, ‘Kiribati—Relocation and
Adaptation’, Forced Migration Review, 31 (2008), 51, 51.
[119] Cited in
J. Borger, ‘Conflicts Fuelled by Climate Change Causing New Refugee
Crisis, Warns UN’ (17 June 2008) http://www.guardian.co.uk/environment/2008/jun/17/climatechange.food
(accessed 20 July 2008). See also ‘A Critical Time for the
Environment’, Refugees, 127 (2002), 2.
[120] Opening
Statement by Mr António Guterres, United Nations High Commissioner for
Refugees, at the Fifty-eighth Session of the
Executive Committee of the High
Commissioner’s Programme (Geneva, 1 October
2007).
[121]
Opening Statement by Mr. António Guterres, United Nations High
Commissioner for Refugees, at the 58th Session of the Executive
Committee of the
High Commissioner's Programme (1 October
2007).
[122] See
http://www.unitarny.org/en/ccmigration.html.
[123] IOM also
has an extensive collection of research papers on ‘Environment and
Migration’: http://www.iom.int/jahia/Jahia/pid/1824.
[124] See http://each-for.eu/index.php?module=main.
[125] Mortreux
and Barnett, ‘Climate Change, Migration and Adaptation in Funafuti,
Tuvalu’, referring to J. Barnett and W.
N. Adger, ‘Climate Dangers
and Atoll Countries’, Climatic Change, 61 (2003), 321,
329–30.
[126]
See Renaud and others, ‘Control, Adapt or Flee’, 33–35.
[127] Renaud and
others, ‘Control, Adapt or Flee’, 34, referring to T. King,
‘Environmental Displacement: Coordinating
Efforts to Find
Solutions’, Georgetown Internationall Environmental Law Review, 18
(2006),
543.
[128] Renaud
and others, ‘Control, Adapt or Flee’, 35 referring to A.
Oliver-Smith, ‘Applied Anthropology and Development-Induced
Displacement
and Resettlement’, in S. Kedia and J. van Willigen (eds.), Applied
Anthropology: Domains of Application (Praeger Publishers, Westport,
2005).
[129]
Aleinikoff, ‘International Legal Norms on Migration’,
476.
[130] Brown,
‘Migration and Climate Change, referred to in Kniveton and others,
‘Climate Change and Migration’,
57–58.
[131]
‘Security Council Holds First-Ever Debate on Impact of Climate Change on
Peace, Security, Hearing over 50 Speakers’ (5663rd
Meeting, 17 April
2007), United Nations Department of Public Information News and Media
Division.
[132]
‘Security Council Holds First-Ever Debate on Impact of Climate
Change’. For an analysis of the debate, see F. Sindico,
‘Climate
Change: A Security (Council) Issue?’, 1 (2007) Climate Change Law
Review,
29.
[133] See
draft resolution on ‘Security and Climate Change’ (version dated 10
December 2008; copy with author). See also the
Niue Declaration on Climate
Change (adopted at the 39th Pacific Island Forum, 19–20 August
2008).
[134] P.
Schwartz and D. Randall, ‘An Abrupt Climate Change Scenario and Its
Implications for United States National Security’
(October 2003)
3.
[135] Schwartz
and Randall, ‘An Abrupt Climate Change Scenario and Its Implications for
United States National Security’,
17.
[136] CNA
Corporation, ‘National Security and the Threat of Climate Change’
(2007) 44.
[137]
Prime Minister Kevin Rudd, ‘The First National Security Statement to the
Australian Parliament’, (4 December 2008) 26
http://www.theaustralian.news.com.au/files/security.pdf
(accessed 11 December
2008).
[138] L.
Dalziel, ‘Government Announces Pacific Access Scheme’ (20 December
2001) http://www.beehive.govt.nz/node/12740
(accessed 8 December
2008).
[139] For
example, it is relied upon in C. Boano, R. Zetter and T. Morris,
‘Environmentally Displaced People: Understanding the Linkages
between
Environmental Change, Livelihoods and Forced Migration’ (Policy Briefing
by the Refugee Studies Centre for the Department
for International Development
(UK), Oxford, 20 December 2007) citing F. Gemenne, ‘Climate Change and
Forced Displacements: Towards a Global Environmental Responsibility? The Case of
the Small Island Developing States
(SIDS) in the South Pacific Ocean’
(Les Cahiers du CEDEM,
Université de Liège, 2006) http://www.cedem.ulg.ac.be/m/cdc/12.pdf
(accessed 8 December 2008). See also Corlett’s critique : D.
Corlett, ‘Tuvalunacy, or the Real Thing?’, Inside
Story (27 November
2008) http://inside.org.au/tuvalunacy-or-the-real0thing/print/
(accessed 27 November 2008).
[140]
Interestingly, programmes like this (and Australia’s new temporary labour
migration scheme) may ultimately be the basis on
which veiled assistance is
afforded to those at risk of climate-induced displacement, since this may be
politically more palatable
than an explicit scheme to address the issue.
[141] http://www.immigration.govt.nz/migrant/stream/live/pacificaccess/
(8 February
2007).
[142] W.
N. Adger and J. Barnett, ‘Correspondence: Compensation for Climate Change
Must Meet Needs’, Nature, 436 (2005),
328.
[143] Quoted
in S. Shen, ‘Noah’s Ark to Save Drowning Tuvalu’ (2007) 10
Just Change 18,
19.
[144] INA
§ 244, 8 USC §
1254.
[145] See
United States Department of Homeland Security, ‘DHS Concludes Temporary
Protected Status for Nationals of Montserrat’
(Press release, 6 July 2004)
http://www.uscis.gov/files/pressrelease/MontserratTPS_7_6_04.pdf
(accessed 8 December
2008).
[146] See
statement referred to in D. Fowler, ‘US Turns up Heat on Volcano
Refugees’, BBC News (20 August 2004) http://news.bbc.co.uk/2/hi/americas/3575796.stm
(accessed 8 December
2008).
[147]
Our Drowning Neighbours (n 15)
10.
[148]
Commonwealth of Australia, Senate: Official Hansard (9 August 2007),
100ff.
[149]
Kniveton and others, ‘Climate Change and Migration’,
58.
[150] See R.
Zetter, ‘Legal and Normative Frameworks’, Forced Migration
Review, 31 (2008) 62, 62: ‘For some, remaining may be a positive
choice—a strategy of adaptation and resilience. This challenges
the notion
of vulnerable groups as passive victims, highlighting instead people’s
skills, strategies and agency. Equally, there
may be those who are forced to
remain because they lack the opportunities, skills and resources to migrate. In
either case we need
to consider how a rights-based protection regime and the
application of principles of human security might support those who
remain.’
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