Amidst Climate Protests, Climate Refugee Remains Undefined

October 9, 2019 by Camilla Brandfield-Harvey

By Salma Shitia, Staff Contributor

The focus on improving state infrastructures reinforces the archaic reluctance to recognize climate change as a human-made phenomenon exacerbated by the global community, including multinational corporations.

In 1951, the United Nations Refugee Convention convened in Geneva and reaffirmed the rights of persons to seek asylum in foreign countries.[1] This international vow came shortly after the Second World War and signified a commitment to ensuring that member states would not tolerate any future atrocities like those committed in the War. The Convention defined a “refugee” as a person who has crossed an international border “owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion.”[2] Almost a century later, this definition excludes an entire class of individuals who are or will be displaced as a result of climate change. Even with projections estimating as many as 140 million climate migrants displaced by 2050,[3] the current international approach encourages climate change adaptation while dismissing the urgent need for defining a new class of refugees.

In 2014, New Zealand was confronted with the individual who would have been the world’s first climate refugee from Kiribati, one of the 58 recognized small island developing states, which, though geographically diverse, “face similar social, developmental, and environmental challenges.”[4] The New Zealand court rejected Kiribatian Ioane Teitiota’s application, since he did not face the types of persecution delineated in the Convention’s definition of “refugee.”[5] Eleven other applications for climate refuge have been denied by the New Zealand Court since 2011.[6] In 2018, New Zealand outlined long-term solutions to Pacific climate migration that would “involve a long-term, concerted policy effort,” specifically acknowledging regional dialogue and “efforts to strengthen multilateral language and frameworks and progressively develop international law.”[7] While waiting for other countries to effect policy changes, Kiribati’s government has shifted from boldly advocating for migration to exploring modes of adaptation within its shrinking territory. Kiribati’s government had no choice but to cave to the pressure to combat a massive disaster it is neither fully responsible for nor economically equipped to handle alone.[8]

The focus on improving state infrastructures reinforces the archaic reluctance to recognize climate change as a human-made phenomenon exacerbated by the global community, including multinational corporations. This focus forces governments to look inwards and often adopt a state-centric or regional outlook on climate change. As territories that are especially vulnerable to the effects of rising sea levels, drought, fresh water salinization, and rising temperatures experience these effects, those of minority-status will be “persecuted”[9] when resources are distributed to majority-groups, or when personal enrichment divides societies. There will certainly be preferences for who gains access to scarce resources as competition increases for housing, goods, and employment opportunities. Scholars contend that regions will become more vulnerable to political and sectarian violence.[10] Furthermore, statelessness for millions poses a major question as territories are permanently submerged and storms or flooding diminish habitability: who is willing to merge their state, accept a new class of refugees, or sacrifice habitable land for residents of inhabitable states to maintain existence?[11]

So long as climate change effects are viewed as a unilateral, state-specific responsibility and potential migrants are encouraged to seek protections from their own governments, like those in Kiribati, the international community delays its obligation to address its insufficient definition of refugee.[12] As a result, major regional players like New Zealand will continue to bypass a moral and ethical obligation to tackle refuge in an environmental framework. Moreover, the UN Convention does not acknowledge the destructive inequality and discriminatory regard for human life prevalent in climate change. Environmental displacement is not new; however, greater stakes exist as the number of displaced people has grown to 17.2 million in 2018.[13] Nevertheless, addressing climate refuge does not seem to be an explicit priority for the 2019 World Climate Summit based on the Summit’s Nine Action Areas.[14] Instead, the Summit chose transformation “that is urgently needed” to “propel action that will benefit everyone.”[15]

Many cite the 2018 Global Migration Compact as a major international breakthrough for environmental migration. While the Compact outlines core principles to cope with the adverse effects of climate change, natural disasters, and environmental degradation, the Compact’s non-binding nature, in conjunction with the Convention’s definition of “refugee,” limits the international community’s responsibility to deal with current or impending crises.[16] The Global Migration Compact also “reaffirms the sovereign right of States to determine their national migration policy and their prerogative to govern migration within their jurisdiction, in conformity with international law.”[17] However, international law’s definition of refugee clearly fails to encompass the needs of the 21st century; thus, urging States to conform to international law without modifying the legal parameters for migrants will leave displaced people unprotected.

Hundreds of thousands have fled the Sahel’s drought-prone, mismanaged water situation.[18] Meanwhile, governments in Haiti, Vietnam, and the Philippines have relocated communities as a result of environmental and climate change.[19] An international consensus on climate refuge will be difficult to fashion and will require time. While we adapt, it is not impossible to prepare. If the purpose of the 1951 UN Refugee Convention was to avoid atrocities, member states have already failed, considering the trivialized experiences of millions.[20]

[1] See Convention Relating to the Status of Refugees, July 28, 1951, 189 U.N.T.S. 150; G.A. Res. 217 (III) A, Universal Declaration of Human Rights (Dec. 10, 1948).

[2] See Convention Relating to the Status of Refugees, supra note 1, at ch. I, art. I(A)(2) (emphasis added).

[3] Press Release, The World Bank, Climate Change Could Force Over 140 Million to Migrate Within Countries by 2050: World Bank Report (March 19, 2018), https://www.worldbank.org/en/news/press-release/2018/03/19/climate-change-could-force-over-140-million-to-migrate-within-countries-by-2050-world-bank-report.

[4] World Health Organization, Small Island Developing States: Health and WHO: Country Presence Profile (Aug. 2017), https://apps.who.int/iris/bitstream/handle/10665/255804/WHO-CCU-17.08-eng.pdf?sequence=1.

[5] Scott Novak, Punishing Today’s Pirates: The Alien Tort Statute as a Remedy for Climate Change Refugees, Geo. Envtl. L. Rev. Blog (Jan. 24, 2019), https://www.law.georgetown.edu/environmental-law-review/blog/punishing-todays-pirates-the-alien-tort-statute-as-a-remedy-for-climate-change-refugees/.

[6] Laura Walters, NZ Plans for Inevitable Climate-Related Migration, Newsroom (N.Z.) (Apr. 30, 2019), https://www.newsroom.co.nz/2019/04/24/548955/nz-planning-for-inevitable-climate-related-migration#.

[7] Cabinet Paper, Office of the Minister of Foreign Affairs, Environment, Energy and Climate Committee, “Pacific climate change-related displacement and migration: a New Zealand action plan” (May 2, 2018) https://www.mfat.govt.nz/assets/Uploads/Redacted-Cabinet-Paper-Pacific-climate-migration-2-May-2018.pdf.

[8] See Novak, supra note 5.

[9] Jean-Pierre Cavaillé has posited that the notion of persecution suffers from a “woeful lack of definition.” See Francesco Maiani, The Concept of “Persecution” in Refugee Law: Indeterminacy, Context-sensitivity, and the Quest for a Principled Approach, Les Dossiers du Grihl (Fr.) (2010), http://dossiersgrihl.revues.org/3896.

[10] Jackie Swift, Migration, Forced by Climate Change, Cornell Research (Apr. 21, 2017), https://research.cornell.edu/news-features/migration-forced-climate-change (“Migration because of environmental factors means increased competition for goods and services, housing, and jobs . . . It increases the possibilities for political conflict and sectarian violence.”)

[11] U.N. High Commissioner for Refugees, Submission: Climate Change and Statelessness: An Overview (May 15, 2009).

[12] See Andrew I. Schoenholtz, The New Refugees and the Old Treaty: Persecutors and Persecuted in the Twenty-First Century, 16 Chi. J. Int’l L. 81, 83 (2015).

[13] See Environmental Migration, Migration Data Portal (Sept. 23, 2019), https://migrationdataportal.org/themes/environmental_migration.

[14] See Action Areas, u.n. Climate Action Summit 2019, https://www.un.org/en/climatechange/climate-action-areas.shtml.

[15] See Overview, u.n. Climate Action Summit 2019, https://www.un.org/en/climatechange/.

[16]See ‘Historic Moment’ for People on the Move, as UN Agrees First-Ever Global Compact on Migration, u.n. news (July 13, 2018), https://news.un.org/en/story/2018/07/1014632.

[17]  Global Compact for Safe, Orderly and Regular Migration, UN Doc. A/RES/73/195 (Dec. 19, 2018).

[18] Charles Iceland, Water Stress is Helping Drive Conflict and Migration, world resources institute: wri commentaries, https://www.wri.org/news/water-stress-helping-drive-conflict-and-migration.

[19] See migration data portal, supra note 13.

[20] See e.g., Norman Myers & Jennifer Kent, Environmental Exodus: An Emergent Crisis in the Global Arena 15 (1995).