By Anxhela (Angela) Mile [*]
There are currently no legal protections for ‘climate refugees.’ Additionally, a debate exists on whether to characterize those displaced by environmental degradation, climate change, and natural disasters as ‘climate refugees’ or ‘climate migrants.’ This blog post assesses the law on refugees and recommends how the international community should move forward considering the disastrous effects climate change will have on many communities.
According to the United Nations High Commissioner for Refugees (“UNHCR”), “an estimated one person every second has been displaced by climate or weather-related disaster since 2009 with an average of 22.5 million people displaced by climate or weather-related events since 2008.”[1] Moreover, a World Bank report Groundswell – Preparing for International Climate Migration states “by 2050 – if no action is taken – there will be more than 143 million internal climate migrants” across sub-Saharan Africa, South Asia, and Latin America.[2] Additionally, while small-island nations like the Maldives, Kiribati, and Tuvalu are commonly known for being most at risk of having climate refugees,[3] the U.S. is also resettling the first “American Climate Refugees,” including indigenous people that were relocated to Louisiana’s wetlands after the Indian Removal Act of the 1830s.[4]
The law on refugees is governed by the 1951 Geneva Convention on Refugees.[5] According to the Geneva Convention, a refugee is a person who: “[o]wing to a 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.”[6]
Countries have incorporated the Geneva Convention and subsequent protocols into their federal laws. Under the United States Refugee Act of 1980, a “refugee” is a person who is unable or unwilling to return to his or her home country because of a “well-founded fear of persecution” due to race, membership in a particular social group, political opinion, religion, or national origin.[7]
Assessing the language in the Geneva Convention and laws adopted in response to the Convention, there is a clear protection gap with regard to climate refugees since the current legal status does not include “environment,” “climate,” or “natural disaster.”[8] The law also does not account for internal migration or displacement, which according to the World Bank, will greatly increase over the next few decades.[9] Therefore, the term ‘climate refugee’ is ambiguous as it is undefined and not a recognized category under international law.[10]
However, the international community is beginning to recognize the connections between environmental degradation, climate change, and displacement. First, the Global Compact for Migration, a legally non-binding compact, includes that “societies are undergoing demographic, economic, social and environmental changes at different scales that may have implications for and result from migration.”[11] Second, the Report of the UNHCR as part of the Global Compact on Refugees 2018 states “while not in themselves causes of refugee movements, climate, environmental degradation and natural disasters increasingly interact with the drivers of refugee movements.”[12] Finally, a task force on climate displacement was created after COP21 (the 2015 Paris Climate Conference) to “develop recommendations to avert, minimize, and address displacement in the context of the adverse effects of climate change.”[13]
Domestic courts are also grappling with the undefined legal status of ‘climate refugees.’ In Teitiota v. Chief Executive Ministry of Business, Innovation and Employment, a Kiribati citizen, Teitiota applied for refugee status in New Zealand claiming that the impacts of climate change like sea level rise are forcing people off the island of Kiribati.[14] New Zealand’s Court of Appeals ruled that, while climate change is a major and growing concern, the applicant did not qualify as a refugee under international human rights law within the Refugee Convention since climate change is not addressed under the Convention.[15]
In response to the legal protection gap, scholars suggest that the international community either revise the 1951 Convention on the Status of Refugees to include climate refugees or negotiate a new convention to guarantee specific rights and protections for climate refugees and migrants.[16] Faculty of Law at the University of Limoges have even proposed a Draft Convention on the “International Status of Environmentally-Displaced Persons.”[17] This would help create a unified way to characterize those who are displaced by environmental degradation, climate change, and natural disasters, as either ‘climate refugees,’ ‘climate migrants,’ or ‘environmentally-displaced persons.’
All in all, as the impacts of climate change will worsen, the need to ensure legal protections for the most vulnerable is more important than ever, whether that includes revising the current framework on refugees or creating a new convention that focuses on those displaced by the impacts of climate change.
[*] Anxhela (Angela) Mile is a third-year law student at the Elisabeth Haub School of Law at Pace University, studying environmental and international law. Prior to law school, Anxhela attended Boston College and studied environmental geoscience and international studies. She is a Research and Writing editor on Pace Environmental Law Review and has served as a law clerk at the Department of Justice and as a legal intern at the United Nations.
[1] Environment, Disasters, and Climate Change, UNHCR, https://www.unhcr.org/en-us/environment-disasters-and-climate-change.html (last accessed on October 21, 2019).
[2] Groundswell: Preparing for Internal Climate Migration, The World Bank (March 19, 2018), https://www.worldbank.org/en/news/infographic/2018/03/19/groundswell—preparing-for-internal-climate-migration [hereinafter “Groundswell”].
[3] See generally Ilan Kelmen, Difficult decisions: Migration from Small Island Developing States under climate change, 3 AGU 133, 142 (March 2015), https://agupubs.onlinelibrary.wiley.com/doi/full/10.1002/2014EF000278.
[4] Coral Davenport and Campbell Robertson, Resettling the First American ‘Climate Refugees,’ N.Y. Times, May 2, 2016, https://www.nytimes.com/2016/05/03/us/resettling-the-first-american-climate-refugees.html.
[5] 1951 Refugee Convention, UNHCR, https://www.unhcr.org/en-us/1951-refugee-convention.html (last accessed on October 21, 2019).
[6] Convention Relating to the Status of Refugees (adopted 28 July 1951, entered into force 22 April 1954) 189 UNTS 137 (Refugee Convention) Art 1(A)(2), https://www.unhcr.org/en-us/3b66c2aa10.
[7] See The United States Refugee Act of 1980, Pub. L. No. 96-212 (1980) § 201 (codified 8 U.S.C. 1101 – 1521) https://www.govinfo.gov/content/pkg/STATUTE-94/pdf/STATUTE-94-Pg102.pdf.
[8] María Cristina García, Does the United States Need a Climate Refugee Policy, Historical Climatology (April 25, 2019), https://www.historicalclimatology.com/blog/does-the-united-states-need-a-climate-refugee-policy.
[9] Groundswell, supra note 2.
[10] Benjamin Glahn, ‘Climate Refugees’? – Addressing the international legal gaps, Int’l Bar Assoc. (June 11, 2009), https://www.ibanet.org/Article/NewDetail.aspx?ArticleUid=B51C02C1-3C27-4AE3-B4C4-7E350EB0F442.
[11] Intergovernmental Conference to Adopt the Global Compact for Safe, Orderly and Regular Migration, ¶ 12, U.N. General Assembly Doc. A/CONF.231/3 (July 30, 2018), https://undocs.org/en/A/CONF.231/3.
[12] UN High Commissioner for Refugee, Global Compact for Migrants, ¶ D (8), U.N. Doc. A/73/12 (2018) https://www.unhcr.org/gcr/GCR_English.pdf.
[13] COP24 side event: Recommendations of the Task Force on Displacement, UNFCCC, https://unfccc.int/topics/adaptation-and-resilience/workstreams/loss-and-damage-ld/workshops-meetings/cop24-side-event-recommendations-of-the-task-force-on-displacement (last accessed on October 21, 2019).
[14] Teitiota v. Chief Executive of the Ministry of Business, Innovation and Employment (2014) NZCA 173 https://forms.justice.govt.nz/search/Documents/pdf/jdo/b8/alfresco/service/api/node/content/workspace/SpacesStore/70056dfa-a205-4baf-9d8d-e97ed5244899/70056dfa-a205-4baf-9d8d-e97ed5244899.pdf.
[15] Id. at ¶ 41; See also Teitiota v. Chief Executive of the Ministry of Business, Innovation and Employment (2015) NZSC 107, http://blogs2.law.columbia.edu/climate-change-litigation/wp-content/uploads/sites/16/non-us-case-documents/2015/20150720_2015-NZSC-107_judgment-1.pdf.
[16] Glahn, supra note 10.
[17] Michel Prieur, et al., Draft convention on the international status of environmentally- displaced persons, Revue Europeenne De Droit De L’Environnement 395, 397 (2008), https://www.persee.fr/doc/reden_1283-8446_2008_num_12_4_2058 (Art. 2(2): “Environmentally-displaced persons are individuals, families, groups and populations confronted with a sudden or gradual environmental disaster that impacts their living conditions, resulting in their forced displacement, at the outset or throughout, from their habitual residence.”).