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The Oxford Handbook of International Climate Change Law edited by Carlarne, Cinnamon P; Gray, Kevin R; Tarasofsky, Richard (24th March 2016)

Part VI Living with Climate Change and Climate Change Adaptation Measures, Ch.23 Climate Change-related Displacement of Persons

Jane McAdam

From: The Oxford Handbook of International Climate Change Law

Edited By: Cinnamon P. Carlarne, Kevin R. Gray, Richard Tarasofsky

Subject(s):
Human rights remedies — Non-discrimination — Climate change — Environmental disputes — Pollution

(p. 519) Chapter 23  Climate Change-related Displacement of Persons

(p. 520) 1.  Introduction

the idea of the ‘climate change refugee’ is a powerful way of illustrating some of the most deleterious impacts of climate change on human society. However, from both a legal and an empirical perspective, this notion is conceptually flawed. The relationship between climate change and human mobility is complex, and a careful appreciation of its dynamics is an essential precursor to understanding the role of international law in this context.

Extensive research over the past few years has enabled scholars to establish some common understandings about the impacts of climate change on human mobility (Government Office for Science, 2011).1 There is now scientific consensus that the effects of climate change are aggravating many ‘natural’ environmental hazards, including sudden-onset events such as flooding, cyclones, storm surges, water-logging, salinity intrusion, and riverbank erosion, and slow-onset processes like coastal erosion, predominantly through rising sea levels (Intergovernmental Panel on Climate Change, 2007). Climate change amplifies the risk of more severe and more frequent disasters, rather than ‘causing’ discrete events to occur (Huber and Gulledge, 2011, p. 2).

While climate change will affect migration, it will not be the sole cause. Rather, climate change will interact with a range of economic, social, and political drivers, which themselves affect migration. For this reason, it is conceptually sounder to view climate change-related movement as a part of global migration dynamics, rather than as a discrete, independent category. Climate change-related displacement is likely to take different forms, and will require a variety of responses at the local, national, regional, and international levels. Migration can be a form of adaptation to environmental and climate change, and in many cases will be an extremely effective way to build long-term resilience. However, while measures that prevent or reduce harmful environmental changes and build resilience in communities will reduce the influence of climate change on migration, they will be unlikely to prevent it fully. Finally, and importantly from the standpoint of international law, most movement will be within countries rather than across borders (Huber and Gulledge, 2011, pp. 9–10, 37; Asian Development Bank, 2012, pp. viii, 4).

The extent to which international law and international institutions respond to climate change-related movement will depend in part upon: (a) whether such (p. 521) movement is perceived as voluntary or forced; (b) the nature of the trigger (a disaster versus a slow-onset process); (c) whether international borders are crossed; (d) the extent to which there are political incentives to characterize movement as linked to climate change or not; and (e) whether movement is driven or aggravated by human factors, such as discrimination.

At present, international law acknowledges only a very small class of forced migrants as people whom other countries have an obligation to protect: ‘refugees’, ‘stateless persons’, and those eligible for complementary protection. This means that unless people fall within one of those categories, or can migrate lawfully for reasons such as employment, family, or education, they run the risk of interdiction, detention, and expulsion if they attempt to cross an international border and do not have a legal entitlement to stay in that other country.

This chapter examines the scope of existing international law to address ‘climate change-related displacement’. While this term is problematic for the reasons outlined above, it is used to describe movement where the impacts of climate change affect mobility decisions in some way (McAdam, 2012).

2.  The Scope of Existing International Protection Frameworks

This section examines in turn the role of international refugee law, human rights law, and the law on statelessness in protecting people displaced by the impacts of climate change. It also considers the extent to which existing principles on internal displacement provide normative and practical guidance.

2.1  Refugee Law

The legal definition of a ‘refugee’ is a term of art set out in Article 1A(2) of the 1951 Refugee Convention relating to the Status of Refugees, read in conjunction with its 1967 Protocol (Convention Relating to the Status of Refugees, 1951). A ‘refugee’ is someone who:

owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable, or owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence as a result of such events, is unable or, owing to such fear, is unwilling to return to it.

(p. 522) In most cases, the elements of this definition will not be met by people displaced in the context of climate change. That is not to say that it cannot apply, but rather that this type of application will be rare. Its requirements might be met, for instance, were a government to: use starvation or famine as a political tool (SERAC and CESR v Nigeria, 2002, para 44); target particular groups reliant on agriculture for survival; or consciously withhold or obstruct assistance in order to punish or marginalize someone for a Convention reason (UNHCR, May 2009, pp. 9–10; UNHCR [Bellagio Deliberations], Feb. 2011a, para 8).

However, there are a number of difficulties in applying refugee law to climate change-related displacement more generally. First, the refugee definition only applies to people who have already crossed an international border. Much of the anticipated movement in response to climate change will be internal, and thus will not meet this preliminary requirement.

Second, it is difficult to characterize ‘climate change’ as ‘persecution’. ‘Persecution’ entails violations of human rights that are particularly egregious owing to their inherent nature or cumulative impact (Council Directive 2011/95/EC, 2011).2 It remains very much a question of degree and proportion, and is assessed according to the nature of the right at risk, the nature and severity of the restriction, and the likelihood of the restriction eventuating in the individual case (Goodwin-Gill and McAdam, 2007, p. 92). General claims based on ‘climate change’ do not fit this framework, as decision-makers have explained in a number of cases in Australia and New Zealand in which Pacific Islanders have sought to claim asylum on the basis of climate change impacts on their home countries.3 While the adverse impacts of climate change are harmful, they do not meet the threshold of ‘persecution’ as this is currently understood in international and domestic law circumstances (Goodwin-Gill and McAdam, 2007, pp. 90–134)—even if those (p. 523) impacts are conceived of as breaches of socio-economic rights, which can amount to ‘persecution’ in certain circumstances (Foster, 2007). Part of the problem here is identifying a ‘persecutor’. Whereas a refugee flees from his or her persecutor, in the climate change context the person may flee to a State that is a major contributor to greenhouse gas emissions (in other words, a State that is partly responsible for the harm).

Third, even if it were possible to establish that the impacts of climate change constituted ‘persecution’, the Refugee Convention poses an additional hurdle for those displaced by climate change: namely, that persecution is for reasons of an individual’s race, religion, nationality, political opinion, or membership of a particular social group. The impacts of climate change are largely indiscriminate, rather than tied to particular characteristics. An argument that such people might together constitute a ‘particular social group’ would be difficult to establish, since to do this the group must be connected by a fundamental, immutable characteristic other than the risk of persecution itself (Goodwin-Gill and McAdam, 2007, pp. 79–80; Applicant A v Minister for Immigration and Ethnic Affairs, 1997, p. 264 (McHugh J), 341 (Dawson J)).4

Courts around the world have explained that the Refugee Convention does not protect victims of natural disasters or those in search of better living conditions, even though ‘both of these cases might seem deserving of international sanctuary’, and ‘even when the home state is unable to provide assistance’ (Canada (Attorney General) v Ward, 1993, p. 732 (emphasis added)). This is because the requirement of ‘persecution’ and the ‘list of Convention reasons’ limit the Convention’s scope, such that those fleeing ‘natural disasters and bad economic conditions’ or ‘famine’ fall outside it (Applicant A v Minister for Immigration and Ethnic Affairs, 1997, p. 248 (Dawson J); Horvath v Secretary of State for the Home Department, 2001, pp. 499–500 (Lord Hope); Minister for Immigration v Haji Ibrahim, 2000, pp. 48–9 (Gummow J)).

Notwithstanding the fact that the Refugee Convention has little direct relevance to most situations of climate change-related displacement, the standard it imposes for assessing protection needs is instructive in the climate change context. A ‘well-founded fear of persecution’ can be less than a fifty per cent chance of harm—maybe even as low as ten per cent—provided that the possibility is not far-fetched (INS v Cardoza-Fonseca, 1987, p. 431; Chan v Minister for Immigration and Ethnic Affairs, 1989).5 Thus, in refugee law, a degree of speculation about future (p. 524) risk does not preclude a person from being recognized as a refugee. Indeed, refugee status determination is an ‘essay in hypothesis, an attempt to prophesy what might happen to the applicant in the future, if returned to his or her country of origin’ (Goodwin-Gill and McAdam, 2007, p. 54). This ‘speculative’ standard is apt when considering the likely future impacts of climate change on an individual or community.

2.2  Complementary Protection

The negative impacts of climate change on the enjoyment of human rights have been amply documented (Humphreys (ed), 2010; UNHRC, 2009; UNHRC, 2012; McInerney-Lankford et al, 2011). For instance, extreme weather events can threaten the right to life; increased food insecurity can threaten the right to adequate food; water stress can jeopardize the right to safe drinking water; the adverse health impacts of climate change, such as a higher incidence of waterborne diseases or illness associated with higher temperatures, can impair the right to health; and sea level rise and flooding can disrupt the right to adequate housing. When these issues are considered alongside pre-existing stressors such as overcrowding, environmental fragility, poor development practices, food scarcity, and so on, then cumulatively they may threaten people’s ability to live in safety and dignity.

When it comes to displacement in this context, it is helpful to consider that States’ non-refoulement obligations under international human rights law extend further than refugee law’s prohibition on return to persecution for one of five reasons. Human rights law precludes States from removing people to a place where they would face a risk of torture or cruel, inhuman, or degrading treatment, or arbitrary deprivation of life. An extensive analysis of each of these grounds is beyond the scope of this chapter, but a number of important issues emerge.6

First, although decision-makers traditionally have failed to accord the same weight to economic, social, and cultural rights as they have to civil and political rights, it has been recognized that the (cumulative) impacts of socio-economic harms can amount to inhuman or degrading treatment. In other words, breaches of socio-economic rights can be ‘re-characterized’ as violations of a civil and political right giving rise to international protection. Thus, ‘destitution’ or ‘dire humanitarian conditions’ can amount to inhuman or degrading treatment (R v Secretary of State (p. 525) for the Home Department, ex parte Adam [2005] UKHL 66; Sufi and Elmi v United Kingdom, 2011, para 292).

Second, 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 a lack of resources or medical care except in exceptional circumstances (D v United Kingdom, 1997; N v Secretary of State for the Home Department, 2005; HLR v France, 1997, para 42; AD v The Netherlands, 2000, para 7.2). They have been especially reluctant to find that a person needs international protection unless a State deliberately withholds resources or actively occasions harm (as opposed to that person experiencing general conditions of impoverishment on account of a country’s lack of resources).7 This is why Australian law requires that inhuman or degrading treatment be ‘intentionally inflicted’,8 for instance, and some jurisdictions also preclude protection from being granted if the harm is faced generally by a whole population (Migration Act (Aus), 1958, s 36(2B)(c); Qualification Directive (EU), 2011, recital 35; Immigration and Refugee Protection Act (Can), 2001).9 It is therefore unlikely that a lack of basic services alone would substantiate a complementary protection claim unless this were to render survival on return impossible. Something else—a distinguishing feature making the lack of such services particularly deleterious to the applicant—would appear to be necessary.

Third, the timing of a claim matters. There have already been a number of cases brought in Australia and New Zealand by Pacific Islanders seeking protection as a result of their fears about the future impacts of climate change on their island homes.10 No case has succeeded, partly because the requisite level of ‘persecution’ has not been made out in refugee law and there has been no nexus with one of the five Refugee Convention grounds. However, in the first such case to consider complementary protection grounds in addition to refugee law, the importance of timeframes also came to the fore. In that case, which involved a man from Kiribati, the New Zealand Immigration and Protection Tribunal held that there was no evidence to establish that the environmental conditions faced by the man on return to Kiribati would be ‘so parlous that his life [would] be placed in jeopardy, or that he and his family [would] not be able to resume their prior subsistence life with dignity’ (AF (Kiribati), 2013, para 74). The Tribunal emphasized that the man was unable to show that there was a sufficient risk to his life ‘at the present time’ (p. 526) (AF (Kiribati), 2013, para 89). These findings were upheld by the New Zealand courts (Teitiota, 2013, 2014, 2015).

It is worth recalling that all refugee determinations require some degree of speculation as to possible future harm. Indeed, as noted above, someone can satisfy the ‘well-founded fear’ of persecution threshold even if there is a less than fifty per cent chance of the harm eventuating. The risk itself just has to be based on objective evidence—in other words, it cannot be far-fetched or fanciful. This is why refugee status determination is a very different task from dispute resolution, operating more like an injunction to prevent future harm than an adjudication of past harmful conduct.

Without considerable jurisprudential development, however, current complementary protection mechanisms will not offer assistance to people seeking to escape the future impacts of climate change. This is because many effects of climate change will take years to manifest at a sufficiently harmful level to satisfy the required threshold for ‘inhuman or degrading treatment’ or a threat to life, or the effects may be severe but temporary and not render return unlawful, or an internal flight alternative may be considered reasonable. Like refugee law, complementary protection is essentially remedial and does not readily accommodate pre-emptive movement where conditions are anticipated to become dire. For this reason, complementary protection is not a viable solution for people trying to move before the situation becomes intolerable.

2.3  Will People Be ‘Stateless’?

In the context of small island States whose territorial integrity is threatened by the slow-onset impacts of climate change, in particular rising sea levels, could the law relating to statelessness provide a remedy if people are displaced?

Answering this question is contingent on another: when does a State cease to exist? This is because the legal definition of a ‘stateless person’ is deliberately restricted to people who are ‘not considered as a national by any State under the operation of its law’ (1954 Statelessness Convention, Article 1). It does not extend to situations of de facto statelessness where a person formally has a nationality but it is ineffective in practice.

Short of stripping citizens of their nationality, which is unlawful under international law (1961 Statelessness Convention, Article 8; 1966 ICCPR, Article 24(3); 1948 UDHR, Article 15; 1954 Statelessness Convention, Article 32), the statelessness definition would seem only to be triggered in the present context once a small island State was no longer recognized as being a ‘State’. In other words, the once-citizen of the small island State would become stateless because there was no longer a ‘State’ able to consider him or her as its national.

The international law principles on the extinction of States do not contemplate the physical disappearance of States. International law regulates the formal (p. 527) dissolution of a country in cases of absorption (by another country, such as through a referendum), merger (with another country, as in the reunification of West and East Germany), and dissolution (with the emergence of successor countries, as in the break-up of the former Soviet Union and Yugoslavia). It has never had to deal with the potential extinction of a country because of physical disappearance.

In reality, it is likely that a loss of population, and with it the loss of effective government, will be the first signs that a country has started to ‘disappear’ as a legal entity (McAdam, 2012, ch 5; Park, 2011; Rayfuse, 2009; Stoutenburg, 2013). This is because small island States are likely to become uninhabitable as a result of diminished water supplies long before they physically disappear. Climate change will exacerbate the already serious problem of water scarcity in small island States (e.g., as a result of more frequent and severe droughts, and the salination of the fresh water lens through storm surges, king tides, and overtopping waves). But international law does not deal with the dissolution of a State on this ground, either.

Accordingly, scholars have taken an inverse approach to the creation of States to identify when, and if, a State might lose its statehood as a result of climate change. For a ‘State’ to exist, it must have a defined territory, a permanent population, an effective government, and the capacity to enter into relations with other countries (Montevideo Convention on the Rights and Duties of States, 1934, Article 1).11 While all four criteria need to be present for a State to come into existence, the lack of one or more elements may not mean the end of a State. As Crawford observes, ‘[a]‌ State is not necessarily extinguished by substantial changes in territory, population or government, or even, in some cases, by a combination of all three’ (Crawford, 2006, p. 700). This is because of the strong presumption of continuity of existing States (Crawford, 2006, pp. 701, 715),12 which may account for the fact that since the establishment of the UN Charter in 1945, there have been very few cases of extinction of States and virtually none of involuntary extinction (Crawford, 2006, p. 715). It is also significant that so-called ‘failed States’ have continued to be recognized as States even during the period when they were objectively failing (Thürer, 1999).13 As Craven observes, an analysis of State practice reveals that ‘in many cases the issue (p. 528) is not simply one of determining the existence of the state, but rather the degree of identity and extent of continuity’ (Craven, 1998, p. 160). In particular, the role of recognition by other States is crucial.

The strong presumption of continuity of an existing State, and the absence of a self-executing mechanism for a State’s cessation, means that other States may continue to treat an entity as a State, despite its lack of effectiveness or even a ‘very extensive loss of actual authority’ (Crawford, 2006, p. 89). Past State practice suggests that the international community would be willing to continue to accept maintenance of the status quo for some time (recognition of ongoing statehood) even if the facts no longer seem to support the State’s existence. As Kälin observes, it is ‘difficult to imagine that any other UN member state would want to tarnish its own reputation by being seen as lacking any compassion for the dire fate of such island states by asking for their exclusion from … international organisations’ (Kälin, 2010, p. 102). Presumably, then, the ‘deterritorialized’ State would continue to interact as part of the community of nations.

The upshot of this analysis is that the law on statelessness is unlikely to have much practical utility for the (former) inhabitants of small island States. In addition to the definitional obstacles which limit its application in the present context, the law on statelessness is reactive rather than proactive and does not facilitate pre-emptive movement: relevant treaty provisions are only ‘triggered’ once a person is physically present in another State. The statelessness treaties are also very poorly ratified and most States lack formal procedures for determining the legal status of stateless persons. Accordingly, there are no clear means by which treaty benefits could be accessed.

That said, there is an institutional advantage of invoking the statelessness regime. The United Nations High Commissioner for Refugees (UNHCR) has a mandate to prevent and reduce statelessness, and is therefore empowered to advocate on behalf of affected populations and engage with States about trying to prevent statelessness and assist (possible future) stateless populations. By contrast, the UNHCR does not have a formal mandate with respect to people displaced by climate change or natural disasters in other contexts, since they are not ‘refugees’.

2.4  Internally Displaced Persons

As noted at the outset of this chapter, most movement influenced by climate change will occur within countries rather than across international borders (Government Office for Science, 2011, pp. 9–10, 37; Asian Development Bank, 2012, p. 4). States are responsible for protecting and assisting both citizens and non-citizens within their territory, and should have in place domestic laws relating to matters such as disaster risk reduction and management (Budayeva v Russia, 2008; Kälin and Haenni Dale, 2008, p. 39).

(p. 529) The 1998 United Nations Guiding Principles on Internal Displacement are relevant in the context of climate change and disasters (Guiding Principles on Internal Displacement, 1998). They already expressly encompass people who leave their homes on account of natural or man-made disasters, but may extend to other groups as well, since the internally displaced person (IDP) category is descriptive rather than providing a fixed legal definition. Indeed, the Special Rapporteur on the Human Rights of IDPs has made climate change a focal point of his mandate (UNHRC, Aug. 2011, section III; Beyani, 2011; UNHRC, Dec. 2011, paras 4, 7, 12–13, 35–6, 58).

The Guiding Principles themselves are not legally binding, but they draw on binding principles from international refugee law, human rights law, and humanitarian law, and highlight their applicability during all phases of internal displacement. In this way, they provide a useful tool for States to develop appropriate national laws and policies to assist and protect IDPs—from preventing displacement in the first place, to addressing their needs during displacement, to assisting during the return and recovery phase. In Africa, the Guiding Principles were instrumental in the creation of the Kampala Convention on IDPs. This is the first multilateral treaty on internal displacement, and the first treaty to recognize climate change as a cause of displacement. Relevantly, it requires States to ‘take measures to protect and assist persons who have been internally displaced due to natural or human made disasters, including climate change’ (Kampala Convention, 2009, Article 5(4)). Of course, the treaty only binds States that have ratified it, and then only in respect of internal (not cross-border) displacement.

The Special Rapporteur on IDPs has noted that in the context of climate change, the Guiding Principles provide a mechanism for States to respond, at least in part, to paragraph 14(f) of the Cancun Adaptation Framework adopted at the Sixteenth Conference of the Parties of the United Nations Framework Convention on Climate Change (UNFCCC COP16), which invites them to ‘enhance action on adaptation … taking into account their common but differentiated responsibilities and respective capabilities, and specific national and regional development priorities, objectives and circumstances, by undertaking, inter alia, the following’:

(f) Measures to enhance understanding, coordination and cooperation with regard to climate change induced displacement, migration and planned relocation, where appropriate, at the national, regional and international levels.14

One way in which climate change-related movement presents a slightly different challenge from other forms of internal displacement, such as conflict-related displacement, is in the need for States to focus on their positive obligations to protect (p. 530) and plan to prevent displacement, rather than just to respond to ‘arbitrary’ displacement (UNHRC, Aug. 2011, para 53). Accordingly, States should develop mechanisms to identify ‘capacities to detect potential disaster and displacement situations early on, accountability mechanisms to ensure that follow-up prevention and protection measures are taken, and more effective systems of local and regional consultation which engage affected populations in decisions about their future’ (UNHRC, Aug. 2011, para 55). For slow-onset situations, pre-emptive socio-economic measures relating to ‘economic diversification, the development of alternative forms of livelihoods, addressing issues related to the management of natural resources and putting in place appropriate social safety nets for the most vulnerable sectors of the population’ are also needed (UNHRC, Aug. 2011, para 55).

With respect to protection from disasters more generally, since 2007 the International Law Commission (ILC) has been preparing Draft Articles on the Protection of Persons in the Event of Disasters to clarify the legal regulation of disaster-related relief and assistance. They emphasize the primary duty of the State affected by a disaster to provide protection (ILC, 2012, draft article 9; ILC 2011, commentary, draft article 9), which in this context refers to relief, assistance, and ‘all activities aimed at obtaining full respect for the rights of the individual in accordance with the letter and the spirit of the relevant bodies of law (i.e., HR law, IHL, refugee law)’ (Inter-Agency Standing Committee, 1999, p. 5).15 The Draft Articles focus on all persons in need of such protection, whether displaced or not (ILC, 2012, draft article 2; ILC, 2010, commentary, draft article 2). They may therefore be of particular value to ‘internally stuck persons’16 or ‘trapped populations’ whose inability to move may signal an even greater vulnerability than those who are displaced (Government Office for Science, 2012; IOM, 2012).

The Draft Articles are also helpful in identifying norms of general international law that would usefully underpin frameworks and solutions relating to climate change-related movement: the duty to cooperate, the principle of humanity, and the principle of human dignity (ILC, 2012, draft articles 5–7; UNHCR, 2011a, para 15; Nansen Principles, 2011, Principle 1). The ILC has emphasized that the principle of humanity is ‘the cornerstone for the protection of persons in international law since it place[s]‌ the affected person at the centre of the relief process and recognize[s] (p. 531) the importance of his or her rights and needs’ (ILC, May–Aug. 2010, Article 3, para 4), and that human dignity underscores all human rights and should guide legal and policy outcomes (ILC, July 2010, p. 7; ILC, 2011, p. 256). This was reinforced in the Nansen Principles, the outcome of a high-level conference on climate change and displacement hosted by the Norwegian government in 2011, discussed below (Nansen Principles, 2011).

3.  Next Steps

3.1  A New Treaty?

While there are some existing mechanisms to address internal displacement in the context of climate change, it is generally assumed that there are legal gaps when it comes to the protection of people displaced across international borders. A conventional response to a perceived gap in international law is to call for a new treaty, and there have been a number of different proposals along these lines with respect to climate change-related movement (EquityBD, 2009; Biermann and Boas, 2010; Williams, 2008; CRIDEAU and CRDP, 2008; Docherty and Giannini, 2009; Byravan and Rajan, 2010; Hodgkinson et al, 2010; The Council of Europe Parliamentary Assembly, 2008; Ammer et al, 2013; Displacement Solutions, 2013; Hodgkinson and Young, 2013). The proposals range from creating a protocol to the Refugee Convention or the UNFCCC, to creating a stand-alone treaty to provide so-called ‘climate refugees’ with international protection, including a legal status and the opportunity to integrate locally or resettle elsewhere (UNFCCC, 1992). The proposals also vary with respect to how the displaced are defined, and whether they have to go through individual status determination procedures or instead can receive prima facie protection based on the conditions in the country from which they have come.

While States do need to develop coordinated responses that acknowledge cross-border movement as a rational adaptation measure to climate change, discussions to date about creating a remedial instrument to protect those displaced by climate change are problematic for at least four reasons. I have set out this argument in detail elsewhere, so will only sketch the key elements here (McAdam, 2011; Edwards, 2012; Wyman, 2013).

First, the chief problem with many of the treaty proposals is their attribution of causation to ‘climate change’. There are both conceptual and empirical problems with establishing climate change as the cause of movement. Certainly, climate change is already contributing to displacement, but it is only one of a number of (p. 532) reasons why people decide to move. This is because climate change tends to multiply pre-existing stressors, rather than causing movement on its own.

Second, and related closely to the first point, some of the treaty proposals suggest establishing an expert scientific body to determine the role of climate change in each case. In my view, this is unworkable in the protection context. It misplaces the real focus of the inquiry, which should be on the nature of harm feared if a person is returned home. From the perspective of climate science, asking whether climate change has ‘caused’ a particular event is nonsensical. Its relevance is in assessing the probability of certain types of events or processes occurring, and attributing those occurrences to patterns consistent with global warming (Huber and Gulledge, 2011).

Third, most movement is likely to be internal and/or gradual, rather than in the nature of refugee ‘flight’ (Government Office for Science, 2011; Asian Development Bank, 2012; Laczko and Aghazarm, 2009; EACH-FOR, 2009). An international treaty might reaffirm States’ existing commitments to protect those displaced within their borders, but it does not create new obligations. For example, the Kampala Convention is a multilateral treaty that deals with internal climate change-related displacement, but it simply reinforces States’ existing responsibilities to protect those displaced internally, and to implement effective national laws to do so. It does not require them to assume additional international obligations. Additionally, a refugee-like treaty would also have difficulty accommodating those who move pre-emptively, in anticipation of the slower-onset impacts of climate change and gradual environmental deterioration, as opposed to fleeing from a sudden-onset disaster.

Fourth, some scholars argue that focusing on the role of climate change arbitrarily privileges one group of forced migrants over others (such as those escaping from poverty), without an adequate legal and/or moral rationale (Betts, 2013). It also privileges climate change-related occurrences (floods, droughts, and so on) over geophysical ones (such as earthquakes and volcanoes), especially when the latter may result in more permanent displacement. From a human rights perspective, the focus of international protection should be on the harm that people fear, not its cause. Given the issue of multicausality discussed above, this is particularly pertinent. Related to this is the fact that people themselves may articulate their reasons for moving away from the same conditions in different ways. For instance, in urban slums in Bangladesh, some people say that they have been driven from their homes by the impacts of climate change; some cite a lack of livelihood opportunities (which could alternatively be conceptualized as climate change-related, such as more frequent extreme weather events making it impossible to sustain an agricultural livelihood), some speak of impoverishment, others refer to poor environmental conditions.17

(p. 533) Finally, there is little political appetite for a new international agreement. This was demonstrated most starkly in 2011, when UNHCR sought to mobilize States to commit to the gradual development of a global guiding framework ‘to assess the protection gaps created by new forms of forced displacement, especially environmentally-related cross-border displacement’ (UNHCR, 2011c, p. 1), and climate change-related displacement (UNHCR, 2011d). UNHCR’s rationale was that ‘while the nature of forced displacement is rapidly evolving, the responses available to the international community have not kept pace’ (UNHCR, 2011b, p. 3). However, at a special Ministerial Meeting convened by UNHCR in December 2011, only five of 145 States (Norway, Germany, Costa Rica, Mexico, and Switzerland) were willing to do this (Hall, 2013; Hurwitz, 2012; McAdam, 2013). This was notwithstanding the fact that they were not even being requested to commit to the creation of a soft law instrument, much less a treaty.

However, even if a treaty were concluded, States would have to demonstrate sufficient political will to ratify, implement, and enforce it. For example, international refugee law is very well established and there are 148 parties to the Refugee Convention and/or its Protocol. Nevertheless, there are still some fifteen million refugees in the world without a durable solution (UNHCR, 2013, p. 3).18 In my view, the problem is not an absence of law, but an absence of political will to implement the law. I have already detailed why existing human rights law mechanisms possess the capacity to encompass the kinds of harms (holistically conceived) faced by people fleeing the impacts of disasters or climate change. Just because they are not being used in this way does not necessarily mean that there is a legal gap, but rather that States and decision-makers are not (yet) prepared to extend them to their full capacity. This was recognized in Principle VII of the Nansen Principles, which states that in addition to addressing normative gaps, ‘[t]‌he existing norms of international law should be fully utilized’ (Nansen Principles, 2011). Alice Edwards also emphasizes this point, arguing that it is important ‘to reinvigorate existing concepts and to consolidate gains rather than to develop new terms or instruments’ (Edwards, 2012, p. 63). In her view, the concept of international protection ‘should be slightly reframed and widened to mean surrogate or substitute protection in circumstances of serious threats to one’s life or freedom or other human rights, regardless of the cause, coupled with a failure or absence of state protection’ (Edwards, 2012, p. 63).

Of course, it may be helpful to articulate more clearly how existing legal frameworks could apply and be extended in the specific context of cross-border displacement in the event of disasters and the slower-onset impacts of climate change, and think about how proactive mechanisms might be developed to facilitate voluntary movement away from vulnerable areas. It is essential that we do not default to a remedial displacement model but instead think of ‘protection’ in a more variegated way.

(p. 534) This is a function that the Nansen Initiative on Disaster-Induced Cross-Border Displacement seeks to perform. Established in October 2012 by the Norwegian and Swiss governments, it aims to build ‘a consensus on key principles and elements regarding the protection of persons displaced across borders in the context of natural disasters that sets the agenda for future action at domestic, regional and international levels’ (The Nansen Initiative, 2012a, p. 4 (emphasis removed)). It marks a tentative ‘first step’ towards international policymaking in this field.

The Nansen Initiative is a State-led, intergovernmental process, which immediately distinguishes it from UNHCR’s attempt to take a leading role on the issue. It does, however, seek to realize Norway and Switzerland’s pledges to UNHCR in 2011 to take action on this issue, and is also a response to paragraph 14(f) of the 2010 Cancun Adaptation Framework (Cancun Agreements, 2011).

Through a series of sub-regional consultations, the Nansen Initiative aims to gather more nuanced information about the challenges of disasters (in the context of climate change) in different parts of the world, and to identify good practices that might be adopted elsewhere. In October 2015, it released a non-binding ‘Protection Agenda’, setting out the tools and strategies required at the national, regional and international levels to address mobility in the context of disasters and climate change. It is envisaged that this will serve as ‘a framework for further normative, institutional and operational development at different levels’ (The Nansen Initiative, 2012b, p. 2).

3.2  Managed Migration

Managed international migration may provide a relatively safe way for people to move away from the effects of climate change without having to demonstrate ill-treatment by a persecutory or abusive State. In particular, it is a more appropriate response to slow-onset climate change impacts, which are unlikely to trigger existing (or future) temporary protection mechanisms designed for sudden disasters. A focus on voluntary migration also shifts the emphasis away from a discourse about rescuing helpless victims to focus instead on the positive contributions that migrants can make as active and valued members of new communities. This is a central tenet, for example, of Kiribati’s policy of ‘migration with dignity’—a long-term merits-based mobility strategy that embraces education and vocational training to make its citizens ‘competitive and marketable’ in international labour markets (Maclellan, 2011). Indeed, in the refugee context, Katy Long has suggested that labour migration needs to be reconceptualized as a durable solution to displacement. It provides ‘a means by which the normality of human mobility can be recognized and placed at the centre of refugee solutions’, harnessing refugees’ skills, increasing their agency, and enabling them to contribute actively to their new society (Long, 2009, p. 1).

(p. 535) At the Nansen Initiative’s first-ever regional consultation, held in the Cook Islands in the Pacific in May 2013, there was a striking focus on ‘self-help’: the need to strengthen community resilience, raise awareness, and increase preparedness. Participants identified initiatives at the community, national, regional, and international levels that would facilitate adaptation and enable people to remain in their homes for as long as possible, while also developing strategies to enhance mobility for those who wished to move. These included the importance of training and education within their countries to equip people with the skills to work abroad, as well as to contribute to their own society while they remained there. In this regard, they encouraged States to review their admission and immigration policies and examine their citizenship laws to ensure that dual nationality was permitted, to help safeguard the cultural identity of those who migrate on a permanent basis.

Standard migration schemes can also facilitate mobility for people from places hard hit by climate impacts, even if those schemes are not expressly characterized as climate change-related. Indeed, two programmes that are widely considered successful (both by the sending and receiving States) are partly conceived of as development initiatives.

First, New Zealand has long had in place special concessionary schemes that facilitate permanent residence and citizenship for Pacific Islanders, the latest iteration of which is the Pacific Access Category. The rationale of this and its predecessor work and visa waiver schemes for people from Tuvalu, Kiribati, and Tonga is to promote economic development in Pacific Island countries (Stahl and Appleyard, 2007, p. iv). Contrary to popular reports, the Pacific Access Category was not a response to climate change-related displacement. The scheme permits up to seventy-five citizens each from Tuvalu and Kiribati and 250 each from Tonga (and previously Fiji), plus their partners and dependent children, to move to New Zealand as permanent residents (on the path to citizenship, should they desire it) (Immigration New Zealand, 2010). To be eligible, an applicant must be aged between 18 and 45, have a job offer in New Zealand, meet a minimum income requirement, and have a minimum level of English. Selection takes place via a ballot.

Second, although Australia does not have a similar visa category, since 2006 it has funded the Kiribati Australia Nursing Initiative (KANI) through its former foreign aid agency, AusAID (Australian Government, 2013). In 2004, the President of Kiribati requested Australia’s assistance to create an ‘education pathway’ to educate young I-Kiribati women for overseas employment opportunities as nurses (KANI, 2006, p. 1). KANI was created ‘to increase the migration opportunities and remittances of I-Kiribati’ (KANI, 2006, p. A-74). Through scholarships, I-Kiribati have the opportunity to train as nurses in Australia and remain in the country if they successfully complete their degree. This is on the presumption that they will be qualified to obtain work visas as nurses in Australia (an identified skills shortage), leading to permanent residence. So far, eighty-two students have received scholarships to undertake the programme. According to the government of Kiribati, it is (p. 536) a ‘win–win situation’: they can choose to stay in Australia, or they can return to Kiribati and contribute to its own health sector (Maclellan, 2011).

Both Australia and New Zealand also have temporary migration schemes that enable Pacific Islanders to work for roughly half the year in the horticultural or agricultural industry (Ramasamy et al, 2008; New Zealand Department of Labour, 2013; Australian Government Department of Education, Employment and Workplace Relations, 2012). This kind of circular migration, while not without its challenges, provides opportunities for livelihood diversification, skills development, and the injection of money back into the home State via remittances and savings.

Schemes developed at the local or regional levels can respond in a more targeted way to the needs of particular communities, especially when it comes to questions of who wants to move, when, and for how long. Strategies such as staggered migration or circular migration, in addition to more permanent movement, can hold appeal for sending and receiving States alike.19

4.  Conclusion

International protection frameworks grounded in refugee and human rights law provide important benchmarks for assessing needs and responses to climate change-related mobility. They are helpfully buttressed by soft law instruments on internal displacement and disasters. But they must be complemented by other strategies from the areas of migration, sustainable development, urban planning, climate change adaptation, and disaster risk reduction, among others. Further, these sectors need to become better integrated so that responses can be effective and holistic. That complementarity needs to be achieved not only among different policy areas, but also across different levels of governance. We therefore need multiple and comprehensive approaches at the local, national, regional, and international levels to respond to climate change-related movement.

Of course, just as in all mobility contexts, some people will move as an adaptation strategy to enhance their resilience to climate change, while others will use it ‘to survive, but not flourish’ (Warner et al, 2013, p. 8). For the latter group, movement is an ‘erosive coping strategy’ that highlights their vulnerability. By contrast, more resilient households can use migration as a risk management strategy to diversify livelihoods and improve the economic condition (and possibly also the social status) (p. 537) of the family (Rashid, 2009, p. 166), facilitated by such things as social and kinship networks, education, greater assets, and community or government support programmes. For example, heavy monsoonal rains in Bangladesh in 2007 reportedly led to 3,000 people a day moving to the capital Dhaka because there was inadequate relief or livelihood support in their home areas. By contrast, in situations where aid has been effectively distributed and food markets supported, migration has been minimal (Black et al, 2011, p. 443). This is why the legal structures and anticipatory mechanisms that States put in place will ‘play a leading role in determining the degree to which migration is a form of adaptation, or an indicator of a failure to adapt’ (Warner, 2010, p. 8; Warner et al., 2013, p. 8; UNHRC, Aug. 2011, para 57).

Finally, it is imperative that human rights principles are brought to bear on issues relating to the entry and admission of both forced and voluntary migrants, and on their subsequent treatment and legal status in host States. While legal and policy responses must safeguard specific human rights, they must also be grounded in broader humanitarian norms, such as the principles of humanity and dignity.

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Footnotes:

*  This chapter contains figures current as at September 2013.

1  In addition to a wealth of academic articles, one major report deserves special mention. In 2011, the UK Government Office for Science released Foresight: Migration and Global Environmental Change, a report involving over 350 experts in over thirty countries across a range of different disciplines. Its aim was to use the best available science and other evidence to develop a vision for how migration might be affected by environmental change, including climate change, between now and 2060, and to identify the choices that policy-makers need to make to ensure that new policies and legal frameworks are resilient to the wide range of future uncertainties (Government Office for Science, 2011).

2  It may include a threat to life or liberty, significant physical harassment or ill-treatment, or significant economic hardship or denial of access to basic services or denial of capacity to earn a livelihood, where such hardship or denial threatens the applicant’s capacity to subsist (Migration Act, 1958, s 91(R)(2)).

3  New Zealand cases: Teitiota v The Chief Executive of the Ministry of Business, Innovation and Employment [2015] NZSC 107; Teitiota v The Chief Executive of the Ministry of Business, Innovation and Employment [2014] NZCA 173; Teitiota v The Chief Executive of the Ministry of Business Innovation and Employment [2013] NZHC 3125; AD (Tuvalu) [2014] NZIPT 501370; AC (Tuvalu) [2014] NZIPT 800517–520; AF (Kiribati) [2013] NZIPT 800413; Refugee Appeal No 72719/2001, RSAA (Sept. 2001) (Tuvalu); Refugee Appeal No 72313/2000, RSAA (Oct. 2000) (Tuvalu); Refugee Appeal No 72314/2000, RSAA (Oct. 2000) (Tuvalu); Refugee Appeal No 72315/2000, RSAA (Oct. 2000) (Tuvalu); Refugee Appeal No 72316/2000, RSAA (Oct. 2000) (Tuvalu); Refugee Appeal Nos 72179–72181/2000, RSAA (Aug. 2000) (Tuvalu); Refugee Appeal Nos 72189–72195/2000, RSAA (Aug. 2000) (Tuvalu); Refugee Appeal No 72185/2000, RSAA (Aug. 2000) (Tuvalu); Refugee Appeal No 72186/2000, RSAA (Aug. 2000) (Tuvalu). Australian cases: 1004726 [2010] RRTA 845 (Sept. 2010) (Tonga); 0907346 [2009] RRTA 1168 (Dec. 2009) (Kiribati); N00/34089 [2000] RRTA 1052 (Nov. 2000) (Tuvalu); N95/09386 [1996] RRTA 3191 (Nov. 1996) (Tuvalu); N96/10806 [1996] RRTA 3195 (Nov. 1996) (Tuvalu); N99/30231 [2000] RRTA 17 (Jan. 2000) (Tuvalu); V94/02840 [1995] RRTA 2383 (Oct. 1995) (Tuvalu).

4  Note, however, Foster’s remark that: ‘it is clear that the poor can properly be considered a PSG [particular social group], 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, 2009, p. 310). 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 change-related displacement.

5  The UNHCR Handbook on Procedures and Criteria for Determining Refugee Status under the 1951 Convention and the 1967 Protocol relating to the Status of Refugees, paragraph 42, states: ‘In general, the applicant’s fear should be considered well-founded if he can establish, to a reasonable degree, that his continued stay in his country of origin has become intolerable to him for the reasons stated in the definition, or would for the same reasons be intolerable if he returned there’ (UNHCR, 1992, para 42).

6  For a detailed analysis of the potential application of these in the context of climate change, see McAdam, 2012, ch 3.

7  See e.g. BG (Fiji) [2012] NZIPT 800091, para 148: ‘Treatment’ requires a positive act or omission by an authority that ‘transcend[s]‌ failure of the state’s general economic policies to provide for an adequate standard of living’.

8  Migration Act, 1958, s 5(1): definitions of ‘cruel or inhuman treatment or punishment’, ‘degrading treatment or punishment’.

9  For a recent example in the refugee context but in relation to climate change impacts, see AF (Kiribati), 2013, para 75.

10  See cases above (n 3).

11  The Montevideo Convention is now generally accepted as reflecting the position in customary international law.

12  Crawford says international law is ‘based on this assumption’: Crawford, 2006, p. 715, 701. He says ‘there is a strong presumption against the extinction of States once firmly established’: p. 715. See generally references referred to there: Marek, 1954; Schachter, 1993, pp. 258–60; Mushkat, 1997, pp. 183–7; Koskenniemi, 1994.

13  Crawford argues, however, that the notion of a ‘failed State’ involves some conceptual confusion, and that many cited cases of ‘failed States’ are in fact crises of government or governance, rather than about the extinction of the State in question (Crawford, 2006, pp. 721–2). If a ‘failed State’ describes ‘a situation where the structure, authority (legitimate power), law, and political order have fallen apart and must be reconstituted in some form, old or new’, the very notion of ‘reconstitution’ suggests that a reformulation of the State is possible, qua State, rather than as some other kind of entity (Crawford, 2006, p. 720 (citing Zartman, 1995, p 1)).

14  This point was made by the Special Rapporteur on the Human Rights of IDPs (UNHRC, Aug. 2011, paras 44–45).

15  Here, the Inter-Agency Standing Committee cites ICRC, 1999, Third Workshop on Protection, Background Paper. Within the quote, ‘HR law’ means ‘human rights law’; ‘IHL’ means ‘international humanitarian law’.

16  The term ‘internally stuck persons’ is used in a number of different contexts in the literature. According to Norah Niland, the UN Coordinator’s Office created the term to draw attention to the plight of Afghans who were unwilling or unable to flee during the period of Taliban-run Afghanistan (Niland, 2006, p. 193). However, it has often been used in the context of Palestinians living in ‘seam zones’—‘sections of Palestinian land within the occupied Palestinian territory (oPt), which fall between the illegal Israeli Annexation Wall and the 1949 Armistice Line (The Green Line) and are therefore severed from the OPT’ (Joint Written Statement submitted by the Al Mezan Centre for Human Rights, 2012, para 1).

17  Discussions with slum dwellers showed that some had moved on account of environmental degradation, although this was a very small sample size so no firm conclusions can be drawn: author interviews in Shonamia bosti (slum) (Dhaka, Bangladesh, June 2010).

18  This includes 4.9 million Palestinian refugees registered by UNRWA (UNHCR, 2013, p. 3).

19  This is the preferred approach of the government of Kiribati, for example (McAdam interview with Kiribati President Anote Tong, May 2009). See also comments of Kiribati’s Foreign Secretary, Tessie Lambourne, cited in Goering, 2009.