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Thursday 11 June 2009

'Climate refugees'? Addressing the international legal gaps - Benjamin Glahn

Predictions for mass migrations owing to the effects of climate change are shocking – 200 million people by 2050 – and have led to the adoption of a new category of displaced persons known as climate refugees.

Nineteen years ago, when the UN Intergovernmental Panel on Climate Change (IPCC) released its First Assessment Report, the report’s authors suggested that large-scale, global migrations might represent the ‘greatest single impact’ on world security resulting from climate change.

There is now increasing scientific evidence to suggest that these concerns were well founded. In March of this year, during a climate science summit in Copenhagen, experts increased earlier predictions of sea-level rise in this century to three times those given by the IPCC just two years ago. And in February, the noted British economist and author of the Stern Review on the Economics of Climate Change, Nick Stern, warned of climate-induced migration on a massive scale. ‘Hundreds of millions, probably billions, of people would have to move if you talk about 4, 5, 6 degree increases’, Stern said. ‘There’s no way the world can handle that kind of population move in the time in which it would take place.’

These kinds of predictions – and the increasing humanitarian concerns that accompany them – have now also given rise to a new nomenclature in the ever-expanding lexicon of climate change concerns: the ‘climate refugee’.

Within the international humanitarian community, however, the notion of the ‘climate refugee’ is problematic and controversial – problematic because it has no legal standing under existing international refugee and asylum law, and controversial because there is little agreement as to what to do about the problems it presents. Over the past several years, numerous policy researchers and humanitarian agencies have tried to address some of these problems by pointing to the fact that ‘climate refugees’ represent an unrecognised category of migrant that risks falling through the cracks of international refugee and immigration policy. Many have even gone so far as to suggest an extension of the 1951 UN Refugee Convention and its 1967 Protocol to include ‘climate refugees’. As yet, however, a consensus has been out of reach. As Oli Brown, the author of the International Organization for Migration’s Migration and Climate Change report has written: ‘there has been a collective, and rather successful, attempt to ignore the scope of the problem… so far there is no “home” for forced climate migrants in the international community, both literally and figuratively’.

‘There has been a collective, and rather successful, attempt to ignore the scope of the problem’
Oli Brown

Protection problems?

Currently, a central problem with the term ‘climate refugee’ is that it is not an officially recognised category under existing international law. There are no frameworks, no conventions, no protocols and no specific guidelines that can provide protection and assistance for people crossing international borders because of climate change, and while existing international humanitarian law may apply in some cases of environmental displacement, the existing rights guaranteed to refugees – specifically those of international humanitarian assistance and the right of return – do not apply. As Roger Zetter, Director of the Refugee Studies Centre at the University of Oxford, recently argued in Forced Migration Review, there are:

‘well-established international, regional, and national legal instruments, covenants and norms to protect the rights of people forcibly displaced by conflict, persecution, natural disasters and development projects. It is therefore surprising that a similar framework to protect people forced to move because of climate-induced environmental change does not exist’.

But in many ways this is not so surprising. The current body of international law, and specifically the 1951 Convention relating to the Status of Refugees and its 1967 Protocol, was drafted at a time when the dangers of climate change were unknown. The 1951 Convention instead protects specifically against persecution, and official recognition of ‘refugees’ is therefore limited to a very explicit legal category – namely only a person who ‘owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable, or owing to such fear, is unwilling to avail himself of the protection of that country…’.

Thus, it is worth making clear that neither climate change nor environmental degradation is mentioned in any of the key legal conventions or norms that currently provide protections for refugees and asylum seekers. Use of the term ‘climate refugee’ is, in other words, nothing more than a quasi-definitional description, not legally enforceable under any current international treaty, convention or instrument. More importantly, there is no structural process yet available within the international arena that can provide services for, and uphold the rights of, this new, unrecognised ‘category’ of migrant.

Where protection for people forced to flee environmental or climate disasters can be found within existing instruments, however, is in cases of internal displacement. More specifically, many experts believe that the 1998 Guiding Principles on Internal Displacement can and actually do provide adequate protection for people who are forced to migrate within their own borders. A non-binding synthesis of international legal norms and human rights law, the Guiding Principles on Internal Displacement offer protection and assistance to displaced persons within the borders of their state of origin. Khalid Koser, the former Deputy Director of the Brookings-Bern Project on Internal Displacement, has argued that ‘the normative framework for people displaced by the effects of climate change inside their own country is better developed than for people displaced outside their country’. So, while those displaced internally qualify as internally displaced persons (IDPs) and thus are protected by international humanitarian law under the 1998 Guiding Principles, those forced to cross an international border for reasons other than specific forms of persecution are not. As Walter Kälin, the UN Special Representative for the human rights of internally displaced persons, has said: ‘existing human rights norms and the Guiding Principles on Internal Displacement provide sufficient protection for those forcibly displaced inside their own country… [but] the main challenge is to clarify or even develop the normative framework applicable to persons crossing internationally recognized state borders’.

Can the gaps be filled?

Without an official definition of what constitutes a ‘climate refugee’, and lacking some form of official recognition under international law, persons forced to migrate across international borders as a result of climate change may continue to be, as the International Organization for Migration has said, ‘almost invisible in the international system… unable to prove political persecution in their country of origin they fall through the cracks of asylum law’.

At present, however, there appear to be at least three possibilities that could advance the international debate about ‘climate refugee’ protections and fill existing gaps in
international law. The first option is to revise the 1951 Convention on the Status of Refugees to include climate (or environmental) refugees and to offer legal protections similar to those for refugees fleeing political persecution. The UNHCR is opposed to this option, claiming that it might undermine the international legal protections for refugees and present a potentially misleading link between climate change and migration. According to José Riera, Senior Policy Adviser at UNHCR, there is no need to amend the 1951 Convention or to include new definitions; rather, there is a more urgent need to analyse the existing gaps in rights and protections. ‘When it comes to climate change and displacement’, Riera says, ‘we have existing terminology and existing protections. We don’t need to call people anything different from what they are, which is displaced persons’. In short, while the UNHCR recognises that environmental degradation and climate change can contribute to forced, cross-border migrations, it does not perceive them to be grounds for granting refugee status under international law.

A second, more ambitious option is to negotiate a completely new convention, one that would try to guarantee specific rights and protections to climate or environmental ‘refugees’. There are several serious problems with this approach. First, as Walter Kälin has pointed out, a significant distinction exists under current international law between persons forcibly displaced and those who move voluntarily. In cases of slow-onset disasters – such as drought and agricultural degradation – this represents a difference that is extremely difficult to determine. Additionally, it remains very difficult to differentiate between ‘climate disasters’ and ‘natural disasters’. ‘At least now and in the near future’, Kälin has argued, ‘it is impossible to determine whether a particular disaster would or would not have happened without climate change’, making a specific determination of what the obligations and responsibilities of the international community would be under any new ‘climate refugee’ convention exceedingly difficult to negotiate. And finally, there seems to be little agreement within the international humanitarian community as to whether a new convention is either possible or advisable. As José Riera says: ‘a major question is whether there is an appetite at the international level to embark on a new process to come up with new norms and protections… my suspicion is that there is zero appetite for this’.

‘a major question is whether there is an appetite to come up with new norms and protections … my suspicion is that there is zero appetite’
José Riera

A third, and perhaps final option, is to follow the example of the 1998 Guiding Principles on Internal Displacement and develop a synthesis of existing international legal mechanisms. As with the Guiding Principles on IDPs, this option would seek to create a non-binding, but universally agreed on set of principles that could protect ‘environmentally displaced persons’. Currently, this option seems to represent the most likely and appropriate international legal approach, and as Roger Zetter has written, ‘the 1998 Guiding Principles … are not just a fundamental starting point in their own right, but also a model for the process of aggregating and adapting the norms and principles from a wide range of international instruments to protect the rights of the “environmentally displaced”’.


Despite these options, however, significant questions still exist. Predictions for the number of possible ‘climate refugees’ – 200 million by 2050 – represent nearly a four-fold increase in the number of displaced persons and refugees currently eligible for protection under the UNHCR mandate. And in 2007, the IPCC suggested that more than 600 million people currently living in low-lying coastal zones – 438 million in Asia and 246 million in least developed countries – will be directly at risk to potential threats of climate change in this century. The so-called ‘climate hotspots’ – lowlying islands, coastal regions, large river deltas and underdeveloped regions – remain in danger of catastrophic environmental change. Under current international law, any climate-induced, cross-border migrations from these areas would trigger little if any protections or assistance mechanisms that could help provide aid to them.

Thus, questions about where climatedisplaced persons are likely to come from, where they might go and how international and domestic systems of legal rights, obligations and instruments can best be mobilised to protect them are currently of critical importance. Part two of this article, to be published in the next issue of IBN, will look specifically at these issues, as well as the legal efforts currently under way to address them.

‘Climate refugees fall through the cracks of asylum law’
International Organization for Migration


Benjamin Glahn is Deputy Chief Program Officer at the Salzburg Global Seminar in Salzburg Austria. He can be reached at bglahn@salzburgglobal.org

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