‘Climate refugees’? Addressing the international legal gaps – Part II - Ben Glahn

Looking to international law alone to solve the problem of climate-induced migrations is unwise. This article argues that a mix of policies and a strengthening of state law are likely to be more effective.

Across the international community, from humanitarian agencies to policy organisations to national governments, the prospect of large-scale climate-induced migrations is causing alarm. The potential for population displacement in the order of hundreds of millions of people, increasing in scale as the climate warms, has generated a sense that urgent international action is needed, with many policy-makers, researchers and academics suggesting that the international community must put in place new kinds of international legal norms to cope with the coming population shifts. The international agencies responsible for managing current refugee issues, especially the United Nations High Commission for Refugees (UNHCR), as well as many national governments, however, remain highly reluctant to create such new norms, especially any new categories that would include references to climate or environmental ‘refugees’.

International debate

The problems with the term ‘climate refugee,’ discussed in the first part of this article (published in the June 2009 issue of IBN), have thus been at the heart of an international legal debate consisting of two main sides. While some advocate either amending the 1951 Refugee Convention or creating a new convention for this ‘new’ category of migrants, others recommend aggregating existing legal mechanisms and producing something similar to the 1998 Guiding Principles on Internal Displacement, but for environmental migrants.

This debate illustrates a fundamental challenge to international legal policy, namely whether new mechanisms and institutions are needed to deal with potential population displacement caused by climate change, or whether the current international legal system is capable of producing evolving legal norms that can fill gaps and solve major legal problems.

Out of this debate, two things seem clear: first, the term ‘climate refugee’ is good for raising public consciousness, but it has no legal meaning whatsoever, and its use does not currently help to advance protection mechanisms that might be provided for displaced persons fleeing environmental degradation – climate induced or not. And, secondly, because international law does not include this potential group of people within its existing definitions, and is unlikely to for some time, solutions may have to be found outside the current international legal framework.

Jane McAdam, Director of the International Refugee and Migration Law Project at the University of New South Wales in Australia, and a leading figure in this debate, suggests that the international community needs to start looking beyond international mechanisms, conventions and definitions and instead look for regional and national solutions to specific challenges. ‘The current state of the international refugee regime began in an ad hoc and regional way’, McAdam says, suggesting that there is a precedent for evolving norms through regional approaches. ‘A lot of people who aren’t lawyers tend to look to international law for solutions, but international law is not necessarily going to provide solutions on the ground.’

Where, then, might the international community look for potential solutions, evolving norms and existing legal strategies that could point the way towards greater advancements in this debate? What would these evolving norms look like and include? What specific precedents exist? And how can both international and domestic systems of legal rights, obligations and instruments best be mobilised to protect them? To answer those questions, it is important to consider where the majority of migrants are likely to come from and where might they go.

‘People... tend to look to international law for solutions, but [it] is not necessarily going to provide solutions on the ground’
Jane McAdam
University of New South Wales

Sinking island scenario

As well as those hotspots shown in the graphic on p49 opposite, there is also the ‘sinking island scenario’, or low-lying islands at risk of disappearing altogether because of sea-level rise set off by climate change. Seen from an international legal perspective, this is perhaps the most troublesome case, and the one that is most likely to warrant a near-term and concerted international legal response. Today, there are 24 Small Island States, many of which are vulnerable to flooding, increases in the salinity of their fresh water reserves, loss of land from coastal erosion and sea-level rise. Many of these island states – Tuvalu, Vanuatu, Kiribati and the Maldives, all below three or four metres above sea level at their highest point – have begun making plans for population relocation. The president of the Maldives, Mohamed Nasheed, and the president of Kiribati, Ante Tong, have, in fact, made recent headlines by announcing their intentions eventually to relocate the entire populations of their islands to other countries. Mohamed Nasheed has called this his country’s ‘dry-land option’ and, earlier this year, on the eve of his inauguration, told The Guardian: ‘we can do nothing to stop climate change on our own, so we have to buy land elsewhere. It’s an insurance policy for the worst possible outcome … we do not want to leave the Maldives, but also do not want to be climate refugees living in tents for decades.’

The problem is that under current international law these Maldivians would have no international protections as climate ‘refugees’. Though there would certainly be protections in place to deal with any immediate humanitarian catastrophes, legal mechanisms to provide ‘refuge’ in the classic sense – another place where populations could legally reside – would not be available. As Walter Kälin, the UN’s Special Representative for the Human Rights of Internally Displaced Persons has said: ‘the main challenge is to clarify or even develop the normative framework applicable to persons crossing internationally recognised state borders in the wake of sudden-onset disasters, as a consequence of slow-onset disasters, in the aftermath of the “sinking” of Small Island States, or in the wake of designation of their place of origin as a high risk zone too dangerous for human habitation.’

Road ahead

In Kälin’s analysis, one that has received widespread praise for its clarity and practicality, there are two main tasks ahead for the international community. First, it must identify the specific rights and protections available to those people that are forced to leave their ‘sinking islands’ by sea-level rise, including the particular responsibilities of the international community when it comes to relocation. In this area, there is a clear gap in existing international law and an important role for international legal organisations to play in working to determine a recognised legal status for these potential migrants. And, secondly, the international community needs to clarify its role in relation to other kinds of environmental migrant that have crossed a national border and are unable or unwilling to return. In this case, Kälin argues: ‘exactly as we do for refugees, we should ask ourselves: under what circumstances should persons displaced across borders by the effects of climate change not be expected to go back to their country of origin and therefore remain in need of some form of surrogate international protection, whether temporary or permanent?’

There is, however, another question worth asking, one that suggests the potential for an intermediate step between current international law and the development of an evolutionary normative framework such as the 1998 Guiding Principles on Internal Displacement, which many people point to as an innovative way to ‘create’ new international norms: what examples of national, sovereign state law, bilateral agreements and regional instruments could provide a roadmap for developing interlocking systems of complementary and temporary protections? And, is it possible to aggregate and analyse this substantial body of law in a way that could provide practical options to national governments and advocacy tools for international organisations when issues of environmental migration and the need for humanitarian protection intersect?

‘The current focus... on finding solutions within international law... should not be the only option’

Complementary and temporary protections

There are currently a variety of national and regional examples that could be looked at to derive a roadmap or handbook on strategies for migration policy, asylum policy and complementary and temporary protection in cases of environmental migration. New Zealand, for example, has received a great deal of popular press for supposedly agreeing to accept the entire population of Tuvalu should the islands become overwhelmed by sea-level rise. In fact, no such agreement exists. Instead, New Zealand has implemented a new labour migration policy called the Pacific Access Category (PAC), which allows 75 citizens of Kiribati, 75 citizens of Tuvalu and 250 citizens of Tonga (including their partners and dependent children) to establish residency in New Zealand each year. While no mention is made in the PAC of any environmental issues, let alone climate change, accepting migrants from at-risk Pacific islands can be seen as one aspect of important new bilateral policies aimed at contributing solutions to these issues. This example also points to a possible focus on labour migration policy that other states, many of which may be hesitant to accept environmental ‘refugees’, could use as a means to loosen their immigration gates for some atrisk populations, without having to wade into the complicated chasm of international legal definitions and asylum policy.

A second area of current state practice worth closer examination is the inclusion of ‘environmental migrants’ in official state immigration and asylum policy. Currently, both Sweden and Finland recognise ‘environmental migrants’ as a category of ‘person in need of protection’, and, at least on paper, offer protective measures for those people. In Sweden, for example, the Aliens Act (2005:716) offers subsidiary protections for a ‘person otherwise in need of protection’, who is ‘outside the country of the alien’s nationality, because he or she … is unable to return to the country of origin because of an environmental disaster’. On the surface, this legislation would seem to offer a positive protection framework for populations displaced by the effects of climate change. However, there are two major problems with the Swedish legislation. First, according to the Division for Migration and Asylum Policy at the Swedish Ministry of Justice, the legislation is based on a preparatory foundation that limits its applicability to cases of sudden environmental disasters and does not extend to cases of continuous environmental decline – meaning that populations displaced by storms would be eligible for subsidiary protection but those displaced by drought would not. And, secondly, no person has ever been granted subsidiary protections in Sweden for environmental reasons, raising questions about whether Sweden would be prepared to deal with a large number of cases of environmental asylum, should they arise. In the Finnish Aliens Act (301:2004), on the other hand, the legislation states that an alien may be granted asylum if they are, in their home country, under ‘threat of death penalty, torture or other inhuman treatment or treatment violating human dignity, or if they cannot return there because of an armed conflict or environmental disaster’. In the Finnish case, the preparatory framework informing the legislation does not contain the same limitations as in the Swedish case, and according to the Finnish Immigration Service, includes a specific reference to cases when the alien’s home environment has become too dangerous for human habitation either because of human actions or as a result of natural disaster. Although the Finnish Immigration Service confirms that this specific aspect of the Finnish Aliens Act has been used rarely, this kind of legislation points to the ability of individual states to create immigration and asylum policy in ways that can provide legal categories of protection for environmental migrants. The inclusion of ‘human causes’ may also point towards a way of ensuring that the legislation covers cases where climate-change-induced displacement represents a clear causality.

A third area of state practice that may require greater attention is in the area of temporary protection, even where that temporary protection may start as an ad hoc reaction to environmental events. In this area, the reaction to the Asian tsunami in 2004 provides an interesting example. Following the tsunami, the UNHCR recommended that all countries suspend the return of failed asylum seekers to affected areas in India, Indonesia, Somalia and Sri Lanka. As a result, Canada, Malaysia, Switzerland and the United States all suspended returns to many – if not all – of these areas, and the United States implemented a special temporary protected status for students from affected regions, allowing them to remain in the country. Canada and Australia also fast-tracked applications for immigrants from tsunami-affected regions, offered permanent residents from these regions the opportunity to expedite the procedure for sponsoring family members, and fast-tracked the procedure for temporary visas.

‘More than 600 million people live in low-lying coastal zones’

US TPS legislation

Another example of temporary protection status worth closer examination is the Temporary Protected Status (TPS) legislation enacted by the US Congress as a part of the Immigration Act of 1990. The TPS is currently operated by the United States Citizenship and Immigration Services, and enables the Secretary of Homeland Security to designate citizens of a specific country or territory for TPS protection. Currently, TPS protection is designated for El Salvador, Honduras, Nicaragua, Somalia and Sudan, and aliens from these countries, who ‘are temporarily unable to safely return to their home country because of ongoing armed conflict, an environmental disaster, or other extraordinary and temporary conditions’, are eligible to stay in the United States and obtain work authorisation, although they are not eligible for permanent resident status. In relation to potential climate change displacement, the examples of Honduras and Nicaragua are most significant, as both countries’ citizens were designated with TPS status on 5 January 1999, following the devastation caused by Hurricane Mitch. Since the original designation, the US Government has extended TPS protection to Honduras and Nicaragua at least seven times, because in both countries ‘there continues to be a substantial, but temporary, disruption of living conditions… and [they] remain unable, temporarily, to adequately handle the return of [their] nationals, as required for TPS designations based on this environmental disaster’. According to the latest US Government extension documents, there are currently 70,000 nationals of Honduras and 3,500 nationals of Nicaragua eligible for extended TPS.

Despite the protections offered under TPS, there are some notable problems with the legislation that should be taken into account in thinking about potential solutions for population displacements that may occur as a result of climate change. Specifically, the TPS is a state-to-state, bilateral agreement that requires three conditions be met. First, the affected country needs to be in a temporary state of armed conflict, environmental disaster or other extraordinary devastation that temporarily prevents the return of its nationals. Secondly, the affected country must be unable adequately to handle the return of those nationals. And, thirdly, the affected country must make a formal request to the US Government to be designated as TPS eligible. What this means is that there is a tremendous amount of discretion that can be used to either designate a specific country for TPS status or not. It also means that in cases where countries might be permanently devastated, as in the potential submersion of Small Island States, the TPS is unlikely to apply. And, finally, from a humanitarian protection perspective, if the affected country is required to request protection for its citizens, and that country is unwilling or uncooperative, the TPS would also not apply. One need not look further than uncooperative and highly at-risk states such as Myanmar to recognise the limits of TPS-type legislation.

Solutions outside international law

Nevertheless, TPS legislation, like targeted labour migration policies, and specific provisions within national immigration and asylum policies that offer subsidiary protections for environmental migrants, represents an important policy option that is currently being used to offer real protections for displaced populations. Each of these policies – labour agreements, immigration and asylum provisions, and temporary protections – in fact suggest that specific and practical mechanisms are available to national governments and international organisations in thinking about how to deal with the growing likelihood of climate change displacement. In this environment, where the specific migratory consequences of climate change remain unknown, the current focus in the international community on finding solutions within international law, perhaps through some kind of expanded definition of what constitutes a ‘refugee’, should not be the only option. The international legal debate is unlikely to be solved in the near term. Instead of looking to immediate changes in international law, the international community might be better served by examining the substantial body of existing sovereign state law and pressuring individual states – specifically those most likely to be the focus of the greatest number of potential migrants – to explore a mix of policies aimed at increasing labour migration from at-risk states, incorporating specific asylum legislation for persons in need of protection from environmental disasters and providing protections for people temporarily
displaced for environmental reasons. It is this mix of the New Zealand model, the Scandinavian model and the TPS model that may, as an intermediate step, be able to provide the most robust and specific protections for people displaced by climate change and other environmental challenges, without having to change or adapt existing international legal protections. In recognition of that, a stronger focus on strengthening state law in this area, ensuring that a strong system of interlocking humanitarian protections can be developed by states and regional alliances, may do more to help create evolving legal norms than a strict focus on adapting international law. Indeed, some international organisations, most notably the Norwegian Refugee Council and its legal coordinator for climate change, Vikram Kolmannskog, have been advocating similar approaches. These efforts, and other like them, should be receiving greater attention from the international legal community as they represent significant opportunities to develop more robust protection and assistance mechanisms.

From what we currently know about the impasse in adopting new international conventions, adapting existing ones and extending specific protections to the problematic and as yet undefined category of ‘climate refugees’, an intermediate step that focuses on different policy options at the state level, perhaps even preparing a comprehensive handbook of current best practices, could be an extremely important resource. With a clear sense of the best available policy options, international organisations may be able more effectively to pressure individual states and regional alliances to deal with the coming challenges of population displacement. As a transitional and pragmatic approach, this could represent a major contribution to a complex and sure-to-be-persistent problem of international law.


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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