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Abstract

This research article covers the broader issues of climate-related migration and provides a legal analysis of climate migration. Although much of the discussion around climate change has focused on how its effects can be reduced, it is now generally accepted that climate change will have widespread impacts and that people must be ready to adapt to those impacts. One of the ways people are likely to adapt is by migrating, and in spite of the fact that this has become one of the most widely discussed areas of adaptation, there is, as yet, no solid grasp of its potential scope. Predictions range from 200 or 250 million to possibly a billion people moving by the middle of the 21st century to escape climate change impacts such as sea level rise, drought and desertification, and greater frequency and intensity of extreme weather events. Regions expected to produce the most climate migrants include Africa, heavily populated Asian mega delta areas, and small island nations. People may also move from Mexico to the United States as a result of climate change (Feng). Climate change is expected to cause widespread displacement among human populations, and several proposals have been put forward as possible responses to this problem. The paper critically analyses (i) the issue of climate migration; (ii) provides an analysis of the existing law in climate migration and (iii) presents proposals to amend the existing law in climate migration.
Procedia - Social and Behavioral Sciences 37 ( 2012 ) 86 – 96
1877-0428 © 2012 Published by Elsevier Ltd. Selection and/or peer-review under responsibility of Symbiosis Institute of International Business (SIIB)
doi: 10.1016/j.sbspro.2012.03.277
International Conference on Emerging Economies - Prospects and Challenges
(ICEE-2012)
Climate migrants: Legal options
Rafael Leal-Arcas
*
Queen Mary University of London, 67-69 Lincoln’s Inn Fields, London WC2A 3JB, United Kingdom
Abstract
This research article covers the broader issues of climate-related migration and provides a legal analysis of climate
migration. Although much of the discussion around climate change has focused on how its effects can be reduced, it
is now generally accepted that climate change will have widespread impacts and that people must be ready to adapt to
those impacts. One of the ways people are likely to adapt is by migrating, and in spite of the fact that this has become
one of the most widely discussed areas of adaptation, there is, as yet, no solid grasp of its potential scope. Predictions
range from 200 or 250 million to possibly a billion people moving by the middle of the 21st century to escape climate
change impacts such as sea level rise, drought and desertification, and greater frequency and intensity of extreme
weather events. Regions expected to produce the most climate migrants include Africa, heavily populated Asian
mega delta areas, and small island nations. People may also move from Mexico to the United States as a result of
climate change (Feng). Climate change is expected to cause widespread displacement among human populations, and
several proposals have been put forward as possible responses to this problem. The paper critically analyses (i) the
issue of climate migration; (ii) provides an analysis of the existing law in climate migration and (iii) presents
proposals to amend the existing law in climate migration.
© 2011 Published by Elsevier Ltd. Selection and/or peer-review under responsibility of Symbiosis
Institute of International Business (SIIB), Pune - 411057, Maharashtra, India.
Keywords: Adaption; Climate change; Climate migration; Cross-border movement; Refugee law
1. Introduction
Effects of Climate Change: For the purposes of this research, three main effects of climate change
shall be taken into consideration: an increase in temperatures, an increase in precipitation, and a rise in
*
Corresponding author: Rafael Leal Arcas, Tel No. +44(0)20 7882 8071
E-mail address: r.leal-arcas@qmul.ac.uk
.
Available online at www.sciencedirect.com
© 2012 Published by Elsevier Ltd. Selection and/or peer-review under responsibility of Symbiosis Institute of
International Business (SIIB)
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Rafael Leal-Arcas / Procedia - Social and Behavioral Sciences 37 ( 2012 ) 86 – 96
sea levels, which will require, inter alia, preventive investments for offshore wind power plants. All of
this, in turn, has health and national security implications (Government Office for Science).
First, the total temperature increase from 18501899 to 20012005 was 0.76°C (IPCC), and scientists
expect that the average global surface temperature could continue to rise by 1.6-6.3°F (1-3.5°C) by 2100,
with significant regional variation. The 20th century’s 10 warmest years all occurred in the last 15 years
of the century. Of these, 1998 was the warmest year on record. Most of the warming is believed to have
been caused by the burning of oil, coal (Von Hirschhausen), and other fuels that release carbon dioxide,
as well as other GHGs. As a consequence, the snow cover in the Northern Hemisphere and floating ice in
the Arctic Ocean have already decreased, and while this does not bode well for the globe overall, it has
been of benefit to some. The fact that it will be easier to have access to the Arctic (Biermann, F. and
Boas, I. ) means that countries such as Russia will become even richer in fossil fuels.
Second, as the climate warms, evaporation will increase, which will increase average global
precipitation. Soil moisture is likely to decline in many regions, and intense rainstorms are likely to
become more frequent. Worldwide precipitation over land has increased by about one per cent. The
frequency of extreme rainfall events has increased throughout much of the United States (U.S.
Department of Transportation). On the other hand, there are also predictions of a decline in precipitation
in some regions of the world (Lewis, S. et al.). The implication of all this is that water resources will be
affected and this will require preventive investments for hydro power plants.
Third, as shown in the chart below, globally, sea levels have risen 4-10 inches over the past century as
a consequence of global warming (mainly the melting of glaciers). These rising sea levels could
contaminate the aquifers that supply drinking water for Caribbean islands, while entire Pacific island
nations could simply disappear under the sea (Docherty, B. and Giannini, T.). Even after atmospheric
concentrations have stabilized, the lag in the oceans’ response means that changes to the Earth’s climate
will continue for many years (World Bank, 2010). As a result of all these environmental changes,
worldwide human migration and displacement are inevitable in the near future. This expected climate
migration has serious consequences in the sense that people who leave their country for another because
of climate change, will have no rights in the host country (Warner, K. et al.). In international trade, there
is free movement of goods and services, but not of persons, with the exception of GATS mode 4 for
temporary migration (Leal-Arcas). Doing nothing against climate change may imply building sea walls,
which will cost 5-10 per cent of a country’s GDP (Tol).
The impact of climate change, particularly rising sea levels, raises legal questions for small island
nations. Several of these questions remain unresolved in international law. Although there are inevitable
inaccuracies in any climate-related prediction, the consensus is that without any preventive action, many
small island nations around the world could become inhabitable in a matter of decades (Yamin, F. and
Depledge, J.). Sea level rise will be particularly acute in the Pacific region, where increased intensity and
severity of weather patterns may overwhelm domestic infrastructure and water supplies. A further climate
impact that will harm these Pacific nations will come from ocean acidification, which could deplete fish
reserves and potentially further undermine the physical stability of the islands (Gattuso J. and Hansson,
L.).
2. The Inevitable Need for Adaptation
The IPCC’s Third Assessment Report clearly stated that climate change was already having clear
impacts on the Earth and that mitigation alone cannot prevent people from suffering these impacts. The
IPCC’s Fourth Assessment Report reinforced this warning. Climate change and population dynamics will
change the world over time. High rates of population growth and climate change consequences overlap in
many countries. The projected impacts of climate change will most likely be uneven across regions. In the
case of Europe, the European Commission has already predicted that the most significant impacts of
88 Rafael Leal-Arcas / Procedia - Social and Behavioral Sciences 37 ( 2012 ) 86 – 96
climate change will be felt across the entire Mediterranean basin, mountainous areas (especially the
Alps), coastal zones and Artic regions of the European Union (EU) (European Commission).
Climate change adaptation has been considered a taboo topic for a long time because it was perceived
to weaken the commitment to climate change mitigation (Berkhout, F., Huitema, D., and Termeer, K.).
Controversies about climate mitigation have delayed action on adaptation. Research on adaptation to
climate change is imperative in order to better inform and support the development and implementation of
adaptation policies and related action programs at various levels of governance (whether at the
international, supranational, national, or subnational level). Research should build a strong and
comprehensive knowledge base that is required to identify appropriate options and develop medium- and
long-term strategies for adaptation at national, regional, and local scales. Methods and tools should be
developed to assess climate impacts, vulnerability, risks, and their costs, and to predict the environmental,
social and, economic effects of adaptation options. Of particular relevance will be the bottom-up
assessment of the full economic costs and benefits of climate change adaptation at the sectoral level, with
particular attention to sectors of high economic and social importance, as well as the aggregation of such
bottom-up approaches to enable the estimation of economy-wide costs and benefits at the international
and national level. Appropriate consideration should be given to human responses to change and to the
complex interlinkage of adaptation policies with other policies, including the investigation of conflicts
and synergies between mitigation and adaptation actions.
3. Introducing the Issue of Climate Migration
One issue that has been the focus of much media coverage is that several small island nations, such as
the Pacific island nations of Tuvalu, Kiribati, and the Republic of the Marshall Islands, and the Maldives
in the Indian Ocean, face the risk of becoming practically uninhabitable (or economically nonviable), and,
in fact, may eventually be entirely underwater. That said, the small island nations believed to be at the
greatest risk due to climate change comprise a small part in the greater scheme of climate-induced
migration: the four above mentioned island nations have a combined population of approximately
500,000. Walter Kälin, Representative of the United Nations Secretary-General on the Human Rights for
Internally Displaced Persons, presents a helpful breakdown of situations that may lead to climate-induced
migration: (1) “sudden-onset disasters” such as flooding or storms, (2) “slow-onset disasters” such as
rising sea levels and increased salination of freshwater, (3) so-called sinking “small island States” which
are perhaps a special case of a slow-onset disaster, (4) governments designating areas as “high-risk zones
too dangerous for human habitation” on account of environmental dangers, and (5) “unrest seriously
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disturbing public order, violence or even armed conflict” resulting from the depletion of natural resources
such as drinking water, because of climate change (Kälin, W., 2010).
There is some debate as to whether climate change will result in huge numbers of migrants (Laczk;
Tacoli; Ecologist). The more skeptical argue that the predictions are based on uncertain grounds,
considering that we still do not know enough about the impacts of climate change and whether people
will be able to adapt without having to migrate (Quiggin; Vidal). Others object to attributing large
numbers of migrants to climate change, on the grounds that it is generally a variety of factors that trigger
decisions to migrate. These factors are usually summarized as “push” factors that encourage migrants to
leave their homes (such as economic conditions), “pull” factors that encourage them to opt for a specific
destination (such as better economic conditions, and an existing presence of family members), and other
factors (including the cost of travel, and government policies that either facilitate or discourage
migration). Climate change or environmental conditions more generally, fit the category of “push”
factors. In this context, the question arises as to whether, for legal or policy purposes, climate change
must be the only or principal factor in a decision to migrate in order to be considered a cause of
migration. In tort law, something is a cause of an outcome even if it is not the only reason the outcome
arose. Under the most common tort law test for causation, the “but-for” test, an outcome is said to be
caused by someone’s action if the outcome would not have happened but for the action. In addition, tort
law sometimes allows an outcome to be attributed to an action even if the action cannot be proven to have
been a “but-for” cause if it can be said to be a “substantial factor” in the outcome.
It is expected that most climate migrants will move within their home countries, assuming that one
may attribute at least some migration to climate change. However, some climate-induced migration is
likely to entail moving internationally. For example, if it transpires that small island nations become, or
are in grave danger of becoming, uninhabitable, their citizens will need to relocate to other countries. In
other countries, people may face situations where their habitable landmass or resource base becomes
seriously depleted due to climate change, and they therefore need to relocate internationally (Park;
Rayfuse). Generally, it is the extremely poor who will be the most severely impacted by climate. They are
all the more vulnerable by virtue of being poor, as poverty makes them less resilient and impedes their
ability to adapt. Poverty also makes relocation difficult for them, in particular moving to other countries,
because they lack access to the resources, support and information that make cross-border travel so much
easier. If victims of climate change are forced to move from their nations elsewhere as climate migrants
(Feng), unprecedented questions arise under customary international law about the legal status of both the
nations and their citizens (McAdam, J. & Saul, B). For instance, can a deterritorialized State maintain
sovereignty in international law if its citizens live exclusively within another country’s borders? How
does this issue change if the land is completely submerged versus merely becoming uninhabitable? What
about the citizens of a deterritorialized nation? Will they have access to a secondary citizenship in any
new destinations? There is limited precedent in the international system for deterritorialized States
(Basch). Australia and New Zealand have already agreed to take people from neighboring countries who
suffer the consequences of climate change. India, on the other hand, is concerned about possibly facing
large numbers of Bangladeshi climate migrants coming to India in the future.
Many of these small islands are concerned about continued access to their maritime territories,
especially their exclusive economic zones (EEZs), which provide fishing rights and access to other
marine resources. The United Nations Convention on the Law of the Sea (UNCLOS) states that EEZs
extend 200 nautical miles from the shore (Article 76 of UNCLOS). However, the UNCLOS is not clear
regarding permanent boundaries of EEZs. If sea levels rise, EEZs would recede along with the coast of
the country in question. Some commentators have suggested alternatives to this situation, which includes
freezing baselines or setting exact EEZ boundaries, artificially propping up coastlines, and reinterpreting
UNCLOS. The main problem lies with small islands because marine territory could be threatened with
the submersion of an entire island. This loss of territory could also affect the rights to a marine territory.
Resolving these issues may require legal innovations within and outside of the UNCLOS framework
90 Rafael Leal-Arcas / Procedia - Social and Behavioral Sciences 37 ( 2012 ) 86 – 96
(Jurgielewicz). It is not clear whether refugee law, as defined by the 1951 Convention Relating to the
Status of Refugees, would apply to persons displaced by climate change. Furthermore, there is no
international obligation for countries to take such immigrants into their own territories. On a similar note,
protections in the U.S. and Europe for victims of environmental disasters are only temporary and do not
leave room for full residency. However, there are options in international institutions such as the
International Organization on Migration and the UN High Commissioner for Refugees to provide more
aid and support to climate-displaced people. Moreover, the 2010 COP-16 in Cancún recognized the
importance of “measures to enhance understanding, coordination and cooperation with regard to climate
change induced displacement, migration and planned relocation, where appropriate, at national, regional
and international levels” (UNFCCC, 2010), which places the UNFCCC as a potential platform for climate
change resettlement situations. Some commentators have suggested that the existing treaties and
institutions suffice to address climate adaptation (Richardson; Tàbara, J. et al.). Others, however, have
called for a new international agreement to address the rights of environmentally displaced people
(Boano, C., Morris, T., and Zetter, R). And others even claim that without wide ratification and
implementation, a treaty will not solve the humanitarian issue (McAdam, 2011). If victims of climate
change are forced to resettle, some argue that they should be able to recover damages for harms received.
There are several possible legal bases for the establishment of a violation of international law: breach of
treaty claims under the UNFCCC, the human right of self-determination, the duty under the Convention
Concerning the Protection of the World Cultural and Natural Heritage to preserve natural and cultural
heritage, and UNCLOS protections against ocean acidification. If such remedies are legally possible,
which courts are appropriate to hear such claims and enforce remedies? The International Court of Justice
is empowered by Chapter XIV of the UN Charter as the principal UN judicial organ, although with
limited powers, including advisory opinions (Article 96 of the UN Charter). Article 14.6 of the UNFCCC
offers advisory commissions which may hear such cases. Some scholars have examined long-term
adaptation options so that island nationals can remain on their homelands for as long as possible
(Wannier). For instance, possibilities include island-wide structural projects such as sea walls and large-
scale sand imports, and even innovative housing design. Small island governments would also need to
update existing institutions to prepare administratively for sea level rise and possible relocation.
4. Existing Applicable Law in Climate Migration
Prior to analyzing these proposals, it is beneficial to understand the existing legal framework in which
context these proposals have been made. An examination of some of the national and international laws
that can potentially address migration resulting from climate change reveals that they are lacking in
certain areas. First, climate change migrants do not have the right to resettle in another country, even
those with no other option, such as citizens of an island nation that may disappear due to climate change.
As discussed below, it is unlikely that climate change migrants will be granted refugee status even if they
cross an international border. According to current laws, the only way for climate change migrants to
resettle permanently in a foreign country will be by fitting themselves into categories within the
immigration laws of their destination country. In general, national laws lack specific provisions to make
environmentally-induced immigration easier. Second, climate change migrants do not have the right to
funding from the international community to help with the relocation costs incurred as a result of climate
change. Nor do their home or host States have the right to such funding. There is, of course, international
assistance targeted at increasing development, mitigating climate change and helping communities adapt.
However, there is no specific monetary assistance for internal or cross-border migration related to climate
change. This lack of funding may prove particularly difficult in the case of poor migrants and developing
countries. There are existing international funding sources available to vulnerable countries to help adapt
to climate change, although there is no dedicated source of funding to assist specifically with climate
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migration. Development aid agencies may provide funding that helps with adaptation to climate change.
In addition, there are dedicated sources of funding for adaptation to climate change, although overall
climate finance is much more focused on climate mitigation than adaptation. The Parties to the Kyoto
Protocol established an Adaptation Fund to support projects and programs aimed at assisting adaptation to
climate change in developing countries. Funding for specific projects, supported by monies derived from
a fee on the Clean Development Mechanism transactions, is distributed by the Adaptation Fund’s Board,
and such support has now begun to flow to a handful of projects. The criteria for funding neither specify
nor preclude projects which facilitate migration or ameliorate its consequences. Below is an examination
of the existing law that can be applied to internal and cross-border migration.
4.1. Internal Movement
According to current law, if climate change does result in people moving internally, the nation-state to
which they belong will be primarily responsible for them. Respect for national sovereignty dictates that
internal migration be perceived primarily as an internal matter, and internal migrants will be protected
under domestic laws. For instance, if the United States government takes possession of property in areas
vulnerable to increased flooding due to climate change with a view to reducing possible damage, the
procedures the government must follow, as well as the compensation it must pay to affected property
owners, are subject to domestic takings law. However, international law still applies in some cases to the
internally displaced. International law maintains that countries must respect the human rights of people
within their territories. On top of any applicable domestic laws, countries will face obligations under
international human rights law for the way they treat climate-affected people within their jurisdictions.
Climate change is likely to affect human rights such as the right to life, the right to food, and the right to
water, among others. The Guiding Principles on Internal Displacement: It will also be relevant to internal
climate-induced migration, in the case of people moving involuntarily, e.g. because the area they live in
becomes vulnerable to increased flooding due to climate change, and the government designates it
inhabitable. The Guiding Principles are relevant to “persons or groups of persons who have been forced to
or obliged to flee or to leave their homes or places of habitual residence, in particular as a result of or in
order to avoid the effects of armed conflict, situations of generalized violence, violations of human rights
or natural or human-made disasters, and who have not crossed an internationally recognized State
border.” Whether the Guiding Principles apply to slow-onset disasters resulting from climate change or
only to sudden-onset disasters is unclear according to Hodgkinson et al., and is a matter still under debate.
However, Walter Kälin maintains that the Guiding Principles are applicable to people “whose place of
origin has become uninhabitable as a consequence of a slow-onset disaster” (Kälin ). Countries are not
legally bound by the Guiding Principles as they are to the 1951 Refugee Convention. Still, the Principles
do have influence, to the extent that some States have incorporated them into domestic law and policy. If
countries are to codify existing international human rights, then the Guiding Principles may also bind
them indirectly. Introduced in 1998, the Guiding Principles were elaborated under the direction of the
Representative of the United Nations Secretary-General on Internally Displaced Persons. They state that
“people have the right to be protected against arbitrary displacement, have rights to reside in safety and
dignity during displacement, and have the right to safe return or resettlement and reintegration”
(Brookings Institution Project on Internal Displacement ).
5. Cross-border Movement
In the case that climate change causes individuals to leave their home country and permanently
relocate the question arises: do they have the right to settle permanently in a new country? Below is an
examination of national and international law regarding this issue.
92 Rafael Leal-Arcas / Procedia - Social and Behavioral Sciences 37 ( 2012 ) 86 – 96
5.1. National immigration laws
Domestic immigration laws generally control who is granted entry into a country. However,
international law does exert some influence over national border control. The Refugee Convention and
the non-refoulement principle, discussed below, are examples of international law restrictions on
domestic immigration control. There are three categories to most countries’ immigration laws, and people
looking to relocate permanently need to belong to one of the three categories: the economic category,
which grants entry to those with skills and qualifications required in the destination country; the family
category, which admits family members of citizens or other immigrants; and the humanitarian category,
through which the host country allows people to enter, for example, because they are refugees, as defined
under the international Refugee Convention. The humanitarian category generally admits fewer peo ple
than the economic or family categories. It is possible to have other categories of immigration within
national laws. For instance, a country may grant a special status facilitating permanent entry to nationals
of specific countries for reasons stemming from historical ties or foreign policy. New Zealand has a
Pacific Access Category (PAC) that grants permanent resident status to up to 75 qualified persons per
year from each of the threatened island nations of Kiribati and Tuvalu (as well as 250 citizens of Tonga).
The PAC was not set up with an aim to making climate migration from these island nations easier. More
likely, it demonstrates New Zealand’s historical inclination to grant immigration preferences to its Pacific
Island neighbors.
One or the other of the three main categories of national immigration laws may prove relevant to those
looking to move to a different country as a result of the effects of climate change in their home country.
For instance, they may have skills that happen to be in demand in their destination country, or they may
belong to a country given special immigration preference by the host country. On the whole, national
immigration laws do not allow for permanent entry on the basis of people being vulnerable to climate
change, or simply needing to move due to environmental factors. Sweden and Finland, however, are two
countries whose national immigration laws do contain provisions granting permanent residence to
environmental migrants. According to Swedish legislation, a person who is unable to return to his or her
native country because of an environmental disaster is permitted to remain temporarily and perhaps
permanently in the country. In passing this provision, Swedish legislators were evidently aiming to help
victims of environmental disasters such as Chernobyl, which means it may not apply to those uprooted by
slow onset changes related to climate change. Finnish legislation holds that “aliens residing in the country
are issued with a residence permit on the basis of a need for protection if […] they cannot return because
of an … environmental disaster” (Martin, 2010). The Finnish Immigration Service indicates that “this
includes where the environment has become uninhabitable owing to human actions” (McAdam, 2009).
Overall, existing national immigration laws lack provisions for victims of climate change to use the
status of climate change migrant in order to permanently resettle in a different country. Some national
laws, however, include provisions for temporary protection that may apply to people seeking temporary
relocation as a result of environmental factors. For instance, U.S. legislation includes a category of
Temporary Protected Status (TPS). Foreigners already in the U.S. may avail of TPS to extend their stay
temporarily if “(i) there has been an earthquake, flood, drought, epidemic, or other environmental disaster
in [their home] … state resulting in a substantial, but temporary, disruption of living conditions in the area
affected, (ii) the foreign state is unable, temporarily, to handle adequately the return to the state of aliens
who are nationals of the state, and (iii) the foreign state officially has requested designation under this
subparagraph.”
Also, European Union legislation has the Temporary Protection Directive, offering temporary
protection in the case of mass influxes, which may be relevant to people displaced because of
environmental factors. Those facing sudden onset and short-term climate related disasters such as weather
crises may find the TPS and the Temporary Protection Directive useful. Those who need to move
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permanently to another country to escape the impacts of climate change, however, are unlikely to find
these temporary protection devices very helpful.
5.2. International law
People wishing to settle in a different country because of climate change most likely do not have the
right to do so, according to international law as it currently stands. Below is an analysis of international
law as it applies to refugee law and the non-refoulement principle.
5.2.1. Refugee Law
According to the definition of refugees in the 1951 UN Convention Relating to the Status of Refugees,
climate change migrants most likely would not qualify as refugees. Therefore, they could not benefit from
the protections offered by the Convention or claim refugee status under those national immigration laws
that follow the Convention definition and may provide refugees with permanent residence status. The
definition of who qualifies as a refugee is rather a narrow one, according to the 1951 Refugee
Convention, read in conjunction with a 1967 Protocol to the Convention. For example, under the
Convention definition, people who escape their home country because of war do not necessarily qualify
as refugees, although regional refugee protection provisions may apply to them.
The definition of a refugee in the Refugee Convention is a person who “owing 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” (1951 Refugee Convention, Article 1(A)(2)). Therefore, those migrating as a
result of climate change are not likely to count as refugees under this definition because they are unlikely
to be considered “persecuted.” Five grounds of persecution are listed in the Refugee Convention: race,
religion, nationality, membership of a particular social group, and political opinion. So even if climate
change is considered a form of persecution, it is not likely that migrants will be considered persecuted.
Also, the Convention definition dictates that those claiming refugee status be outside the country of which
they are nationals. Therefore, even if climate change victims could demonstrate that they faced
persecution on one of the listed grounds, they would have to leave their country prior to being able to
claim refugee status under the Refugee Convention.
In Australia and New Zealand there have already been decisions that rejected claims of refugee status
based on climate change under the Convention definition. In a 2009 Australian case rejecting a claim for
refugee status from a citizen of Kiribati, the tribunal stated:
The Tribunal does not believe that the element of an attitude or motivation can be identified, such that
the conduct feared can be properly considered persecution for reasons of a Convention characteristic as
required. It has been submitted that the continued production of carbon emissions from Australia, or
indeed other high emitting countries, in the face of evidence of the harm that it brings about, is sufficient
to meet this requirement. In the Tribunal’s view, however, this is not the case. There is simply no basis
for concluding that countries which can be said to have been historically high emitters of carbon dioxide
or other greenhouse gases, have any element of motivation to have any impact on residents of low lying
countries such as Kiribati, either for their race, religion, nationality, membership of any particular
social group or opinion. Those who continue to contribute to global warming may be accused of having
an indifference to the plight of those affected by it once the consequences of their actions are known, but
this does not overcome the problem that there exists no evidence that any harms which flow are
motivated by one or more of the Convention grounds.
Besides the 1951 Refugee Convention, there are regional agreements that grant protections to
refugees. In defining a refugee, the 1969 Organization of African Unity (OAU) Convention Governing
94 Rafael Leal-Arcas / Procedia - Social and Behavioral Sciences 37 ( 2012 ) 86 – 96
the Specific Aspects of Refugee Problems in Africa incorporates the 1951 Refugee Convention
definition, but adds that “‘refugee’ shall also apply to every person who, owing to external aggression,
occupation, foreign domination or events seriously disturbing public order in either part or the whole of
his country of origin or nationality, is compelled to leave his place of habitual residence in order to seek
refuge in another place outside his country of origin or nationality” (OAU Convention, Article 1(2)
(italics added)). Although climate migrants might claim refugee status under the OAU convention by
arguing that climate change qualifies as an “event seriously disturbing public order,” there is not much
support for the idea that the OAU Convention covers “environmental refugees” to which category
climate migrants would belong. Because of the small chance that climate migrants will be considered
refugees under the 1951 Refugee Convention (or the OAU Convention), some objections have been
raised regarding the usage of the term ‘climate refugee,’ on the grounds that it has no legal meaning.
However, the term is still being used.
5.3. Non-refoulement Principle
Climate migrants may wish to look into another international legal path: the non-refoulement
principle. Under this principle, a country is prevented from expelling or returning (“refouler” in French) a
person, if doing so would send the person back to certain dangers (“persecution, torture or cruel, inhuman
or degrading treatment or punishment”). The 1951 Refugee Convention contains a version of the non -
refoulement principle (Article 33). It also is within certain human rights treaties, or has been understood
as applicable to them. Some also argue that that it is a principle of customary international law (Loper).
Existing jurisprudence makes it difficult for climate migrants who use the non-refoulement principle to
argue that they cannot be expelled from the country to which they have relocated. Climate change is not
likely to pose harms dangerous enough for people to make use of the principle, and even if climate
migrants were able to make successful non-refoulement claims, the principle only protects them from
expulsion, but it does not grant them the right of permanent residency in a country.
6. Proposals to Amend the Law
Prompted by the limitations of existing law, a number of proposals for new multilateral international
legal instruments to protect climate change migrants have been brought forward. These proposals draw on
a number of existing legal frameworks and literatures, including refugee law, human rights law, and
environmental law, and the literature recommending the recognition of the concept of environmental
refugees or analyzing the concept. While the proposals for new multilateral conventions share much in
common, they also differ along a number of important dimensions. For instance, some proposals cover
internal as well as cross-border climate migration, while others apply only to cross-border migration,
generally out of respect for national sovereignty in internal affairs. However, not everyone agrees with the
starting point of these proposals, that it is desirable to put considerable effort into developing a new
multilateral protection instrument covering climate migration. Some of the skeptics suggest that instead of
developing a new multilateral instrument, countries might focus on improving existing migration
mechanisms in national immigration laws (Hugo). Another option that has been raised is developing
regional responses to climate change migration, perhaps under an international framework (Williams). A
regional approach might be more desirable than a multilateral approach because individuals who move
due to climate change may be more likely to move within their home country.
In general terms, when arguing for the development of a new multilateral convention, the following
issues should be taken into account: what national interests are at play that might support or oppose such
a new legal instrument? What domestic interests might choose to influence a State’s position on this
question? If a convention were implemented to cover climate migration, would a soft-law or hard-law
95
Rafael Leal-Arcas / Procedia - Social and Behavioral Sciences 37 ( 2012 ) 86 – 96
approach be preferable? Which needs would either approach satisfy or leave uncovered? How broad and
deep should the agreement be? Would it need compliance provisions and side payments for participation?
Would allocations of resources through the Adaptation Fund or the Green Climate Fund satisfy the need?
If so, under what rules and procedures should the Funds be governed? Would alternative funding
approaches be more likely to succeed, i.e., funds not connected to the UNFCCC/Kyoto Protocol? Would
regional agreements in potential immigration “hot spots” such as U.S.-Mexico or North Africa-EU have
more promise?
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... Zapravo, rasprave o promenama u životnoj sredini koje doprinose ugrožavanju ljudske bezbednosti (što onda Dragoljub C. Todić ima za posledicu pojavu migracija stanovništva) snažno su aktuelizovane raspravama o klimatskim promenama koje su pokrenute tokom poslednje dve decenije XX veka (Koubi et al., 2016). U ovom kontekstu se sve više raspravlja o klimatskim promenama kao uzroku brojnih problema sistemskog značaja (Leal-Arcas, 2012). Ova rasprava povezuje se sa razvojnim činiocima i problemima u vezi sa životnom sredinom, naročito u vezi sa pitanjem položaja zemalja u razvoju. ...
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