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EJPT
Article
The common but
differentiated responsibilities
of states to assist and
receive ‘climate refugees’
Robyn Eckersley
University of Melbourne, Australia
Abstract
This paper examines the responsibilities of states to assist and to receive stateless
people who are forced to leave their state territory due to rising seas and other
unavoidable climate change impacts and the rights of ‘climate refugees’ to choose
their host state. The paper employs a praxeological method of non-ideal theorising,
which entails identifying and negotiating the unavoidable tensions and trade-offs asso-
ciated with different framings of state responsibility in order to find a path forward that
maximises the protection of climate refugees within the constraints imposed by political
feasibility. It argues that the responsibility of states to support climate refugees through
financial and technical assistance should be treated separately from their responsibility
to receive them. The former is a differentiated responsibility grounded in the ability to
pay principle, or relative capability, while the latter is a common responsibility grounded
in the fact that all states have causally contributed to their plight, albeit in varying
degrees which cannot be, and need not be, precisely determined. A common state
‘responsibility to receive’ is linked with a right on the part of climate refugees to choose
their host to suit their circumstances, which would provide a form of partial compen-
sation for the injustice and trauma of their loss and damage. This right is expected to
become more viable, and the political willingness of states to receive them more likely,
the more that climate refugees are assured of adequate support for resettlement
according to states’ differentiated responsibilities to assist.
Keywords
Climate-induced migration, ‘Climate refugees’, common but differentiated responsibil-
ities, polluter pays principle, beneficiary pays principle, ability to pay principle, non-ideal
theory, United Nations Framework Convention on Climate Change, Warsaw
International Mechanism on Loss and Damage
European Journal of Political Theory
0(0) 1–21
! The Author(s) 2015
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DOI: 10.1177/1474885115584830
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Corresponding author:
Robyn Eckersley, School of Social and Political Sciences, University of Melbourne, Victoria 3010, Australia.
Email: r.eckersley@unimelb.edu.au
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Introduction
Since the signing of the United Nations Framework Convention on Climate
Change (UNFCCC) in 1992, debates about state burden sharing have been pre-
occupied with the allocation of responsibilities for mitigation, adaptation and cli-
mate finance. This paper draws on these debates to address the relatively neglected
question of the responsibilities of states to assist and receive international migrants
who are forced to leave their territory as a result of the unavoidable impacts of
climate change. This is a politically opportune time to be asking such questions
given that the parties to the UNFCCC agreed in 2013 to establish the Warsaw
International Mechanism for Loss and Damage associated with Climate Change
Impacts (UNFCCC, 2013). This mechanism is expected to serve as a vehicle to
channel financial, technical and other support to developing countries that are
particularly vulnerable to the impacts of unavoidable climate change (including
slow and sudden onset events), which extends to population displacement, climate-
induced migration and loss of statehood. The structure and mandate of the Loss
and Damage mechanism will be reviewed in 2016, which provides an opportunity
to ask whether the agenda should be expanded to include what might be called ‘the
responsibility to receive’ on the part of host states, and the rights of climate
migrants to choose their host when internal migration is no longer an option.
1
Migration induced by climate change, like other forms of migration, sits along a
continuum ranging from those seeking a better life to those who are moving to save
their lives. While the Warsaw mechanism should extend to cover all cases of loss
and damage associated with unavoidable climate change impacts, the particular
focus of this discussion will be confined to international climate migrants who are
forced to leave their territory permanently due to rising seas and other unavoidable
climatic impacts.
2
These climate migrants, most of which are expected to come
from small island developing states (SIDS), do not qualify as refugees under the
1951 Refugee Convention because they are not fleeing political persecution.
Moreover, some SID leaders, such as Kiribati’s President Anote Tong, have
rejected the refugee label as undignified, since island people do not wish to
move, and they do not wish to be treated like political refugees (ABC, 2014).
Nonetheless, I use the term ‘climate refugees’ to describe this particular group in
order to focus on the similarities and differences with political refugees that might
be ethically and politically relevant in determining state responsibilities and refugee
rights (without endorsing this label for the proposed protection regime).
The UNFCCC’s burden sharing principles of ‘equity and common but differ-
entiated responsibilities and respective capabilities’ (hereafter CBDR-RC) apply to
both mitigation and adaptation (see Articles 3(1), 4(1) and 4(3)). On one view,
international migration may be regarded as the ultimate form of adaptation to
devastating climatic impacts and therefore the UNFCCC principles should
extend to guiding the allocation of the burden sharing for climate refugees (e.g.
Bierman and Boas, 2008).
3
Yet it can also be argued that this particular form of
migration is a response to the limits of in-country adaptation and, in any event, is a
form of loss and damage that cannot be reduced to adaptation. The preamble to
the decision establishing the Warsaw Mechanism acknowledges that loss and
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damage ‘includes, and in some cases involves more than, that which can be reduced
by adaptation’ (UNFCCC, 2013: 6). In the negotiations leading to the establish-
ment of the Warsaw mechanism, China and the G77 had argued that loss and
damage should form a third pillar of the Convention, in addition to mitigation and
adaptation, while the US insisted that it should be considered only as part of the
adaptation agenda (ENB, 2013: 18; Zhu, 2013). The US prevailed, with the final
text declaring that the mechanism would fall ‘under the Cancun Adaptation
Framework’ but the quid pro quo was that the US agreed to the 2016 review
(UNFCCC, 2013). The words ‘liability’ in relation to loss and damage are con-
spicuously absent from the text and the questions of who is responsible for provid-
ing assistance and on what basis have not been determined.
This uncertainty calls for critical reflection and guidance on the nature of state
responsibility for climate refugees. In particular, should state responsibility be
understood as a simple humanitarian responsibility to provide support and a
safe haven, which is left to the discretion of each state (like the current arrangement
for accepting a particular quota of political refugees)? Or should state responsibil-
ity be understood as a stronger legal and/or moral responsibility to provide redress
for loss and damage for which the host state is causally responsible? Should state
responsibilities to provide financial and other support to climate refugees, and to
host them, be connected or can they be separated? And how might various per-
mutations of these responsibilities affect a possible right on the part of refugees to
choose their host?
There is now a well-developed debate among climate ethicists and climate
justice theorists on the question of how to assign responsibility to states for
mitigation and adaptation (e.g. Caney, 2005, 2010; Gardiner, 2011; Meyer and
Roser, 2010; Moellendorf, 2014; Page, 2012; Vanderheiden, 2008, 2011). Most of
this debate has taken place within the contours of liberal moral theory (broadly
conceived), although there are also some distinctive strains of critical political
ecology with Marxist roots (e.g. Parks and Roberts, 2010; Roberts and Parks,
2007). There are also well-worn lines of debate among the parties to the
UNFCCC over the interpretation and application of the convention’s principles
of CBDR-RC. The problem is that while the debate among climate ethicists and
climate justice theorists has become increasingly refined over the past two dec-
ades of climate negotiations, the division among many of the key players (par-
ticularly between the Umbrella group led by the US and the so-called BASIC
group of China, India, South Africa and Brazil) has widened and hardened. This
yawning gap between ‘the ideal and the real’ provides a serious challenge for
those seeking justice for climate refugees, who are among the least responsible
for, and the most vulnerable to, the impacts of climate change. Although many
of the scholarly debates are informed by the real-world climate negotiations,
there have been very few attempts by moral philosophers and normative political
theorists to bring the ethical and real-world political debates into any kind of
close, critical encounter for the purposes of developing action-guiding norms that
have some reasonable prospect of implementation (an exception is Pickering and
Barry, 2012).
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The article seeks to arrange such an encounter in order to expose the yawning
chasm between the most mooted ideal and real-world arguments relating to state
responsibilities, identify the ethical and political trade-offs associated with these
different framings of responsibility and negotiate a set of action-guiding norms that
is likely to maximise the protection for climate refugees. The normative method
draws inspiration from the tradition of Critical Theory, which can be traced back
to Marx, which seeks to understand rather than bracket the course of history in
order to find emancipatory possibilities that are immanent in real-world develop-
ments. Andrew Linklater has called this method ‘praxeology’, which entails critic-
ally reflecting upon and harnessing those moral resources within existing social
arrangements that might enable new forms of community with higher states of
freedom (Linklater, 1998: 5), or in this case, forms of community that do not
entail the obliteration of freedom for some. Praxeology requires making practical
and context-dependent judgments about which norms are most likely to provide
the best protection for climate refugees given feasibility constraints. This includes
probability assessments that require an understanding of the history of the inter-
national climate negotiations and the relationships between the parties whose
agreement is required to implement reforms. For reforms to be feasible they
must be capable of being implemented politically, which means that there must
be historical agents with the capability and the will to carry out the reform, and
that the reform must be relatively stable rather than short-lived (see, for example,
Gilabert and Lawford-Smith, 2012: 813). Acknowledging feasibility constraints
does not mean limiting ethical horizons but rather using ethical horizons as a
guide to finding more creative and practical ways of addressing some of the motiv-
ational constraints that stand in the way of better protection for climate refugees.
In this case, the relevant agents are the parties to the UNFCCC. However, other
agents (such as domestic actors or international organisations) are also relevant
insofar as they have the capacity to influence states.
Finally, judgments that seek to reconcile what is ethically desirable with what is
politically feasible are necessarily time sensitive insofar as political opportunities
and ‘policy windows’ can open and close in ways that can alter strategic assess-
ments of political feasibility. In this case, while major flows of climate refugees are
not imminent they are nonetheless inevitable, and the particular policy window
that is identified is relatively short. The analysis that follows focuses on which
action-guiding norms might gain political traction by the time the parties to the
UNFCCC embark upon the scheduled review of the Warsaw Mechanism on Loss
and Damage in 2016. Until then, the negotiations are expected to remain focused
on the provision of financial and other support. By 2016 the parties may be ready
to revisit and expand the agenda to consider and clarify the question of the respon-
sibility to receive.
The primary focus of the encounter will be the most mooted ethical principles
for fleshing out the meaning of CBDR-RC, namely, the polluter pays principle
(PPP), the beneficiary pays principle (BPP) and the ability to pay principle (APP).
These principles will be situated in the context of real-world debates about CBDR-
RC in the international climate negotiations and, where relevant, the real-world
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politics of managing flows of political refugees. I conclude by defending a norma-
tive package that separates the responsibility of states to provide financial and
other assistance to climate refugees from the responsibility of states to receive them.
Historical responsibility
The simplest ethical principle for causal responsibility for climate change is the
PPP, according to which the polluter should pay for the costs of pollution. This
principle was first formulated by the OECD in 1972 as an economic principle to
ensure the ‘internalisation’ of negative environmental externalities in the price of
goods to avoid distortions in international trade and investment, and it has since
been interpreted to mean that the polluter is liable for the costs of pollution that
have been externalised onto third parties (Attapattu, 2006: 440, 448–451; OECD,
1972). In the case of climate refugees, it would apply as an ex post obligation by
states to compensate climate refugees on the basis of each state’s relative causal
contribution to the loss and damage suffered, measured in terms of total cumula-
tive emissions rather than current aggregate or per capita emissions.
However, the PPP found very little favour with the negotiators of the UNFCCC
– indeed, the Alliance of Small Island States was the lone supporter (Ashe et al.,
1999: 215). The main resistance by developed countries arose from concern over its
legal implications, including a lack of consensus over whether the PPP imposed an
ex ante obligation to internalise the environmental costs of production or an ex
post obligation to compensate victims on the basis of strict liability (Attapattu,
2006: 454–455; Bodansky, 1993: 501). China and the G77 rejected the PPP because
it was ‘development blind’, preferring to focus instead on the historical responsi-
bility of the ‘early developers’ and the development needs of the ‘late developers’.
Many climate ethicists have also questioned the fairness of the PPP to ground
historical responsibility as a form of strict liability. The most common objection is
that of excusable ignorance. Why should the earlier industrialisers be made respon-
sible for the cumulative emissions that they have generated since their industrial-
isation when they did not know of their harmful effects? Critics have also pointed
to the difficulties of measuring relative contribution, the fact that past carbon
polluters are now dead, and that the PPP cannot address climate-related harms
that cannot be attributed to particular polluters (e.g. Caney, 2010; Gardiner, 2011;
Meyer and Roser, 2010; Page, 2012; Vanderheiden, 2008, 2011).
In response to the main objection of excusable ignorance, some climate ethicists
have suggested a less demanding application of the PPP to the effect that developed
countries should be held responsible for their historical emissions from the date at
which the problem was known (e.g. Gardiner, 2011). This is not as straightforward
as it might first appear, since knowledge of climate change and its impacts has
evolved slowly and fitfully over more than a century. If we take the most ‘lenient’
version of this approach and argue that, at the very least, states have known about
the problem of climate change since they started negotiations for the UNFCCC in
1990, then this would result in the US and China taking on the largest burden to
support and to receive climate refugees since together they account for the largest
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share of cumulative emissions since 1990. Given the rapid growth in China’s aggre-
gate emissions it would soon overtake the US in bearing the largest burden. We
would expect strong resistance from China, given its unmet development needs and
the fact that it is much more vulnerable to climate change than US.
In the international climate negotiations, the ‘development sensitive’ case for
historical responsibility for mitigation and adaptation waged by China and the G77
has been based on the right to develop and the notion of a ‘carbon debt’ or ‘eco-
logical debt’ owed by the North to the South for using up a disproportionate
amount of ‘ecological space’ or greenhouse gas absorption space in the Earth’s
atmosphere. Many developing countries, led by Brazil and strongly supported by
India and China, have long maintained that responsibility for mitigation according
to CBDR-RC should be understood in terms of a state’s historical (i.e. cumulative)
emissions, unswayed by arguments about excusable ignorance. Although China’s
aggregate emissions are now larger than the US and its cumulative emissions are
growing, the US has made a much greater cumulative contribution, and it is the
growing stock of greenhouse gases in the atmosphere rather than the size of annual
aggregate emissions in any one year that ultimately will determine the degree of
planetary warming. From the standpoint of developing countries, this is why devel-
oped countries are under an obligation to take the lead in mitigation under Article
3(1) of the UNFCCC, and it likewise underpins the obligation of developed coun-
tries to contribute to climate finance to pay developing countries to decarbonise
and adapt to climate change under Articles 4(1) and 4(4). The alternative would be
to ‘kick the ladder down’ and deny the developing world their legitimate right to
develop.
These arguments have also found support among critical political ecologists,
who have drawn on Marxist dependency theory and World System theory to frame
the problem of the carbon debt as but one manifestation of a broader ecological
debt resulting from the ‘ecologically unequal exchange’ in the flows of energy,
materials, resources and emissions between North and South. Ecologically unequal
exchange is understood as the legacy of the colonial period and, more recently, the
shifting international division of labour between countries in different stages of
development in an increasingly integrated global economy (Andersson and
Lindroth, 2001; Parks and Roberts, 2010; Rice, 2007; Roberts and Parks, 2007).
On this analysis, the notional carbon debt arises not simply from the longer period
of industrialisation enjoyed by developed countries but also from the ‘offshoring’
of emissions made possible by increasing international specialisation and exchange,
whereby emissions-intensive industries are increasingly relocating to ‘Factory Asia’
and other rapidly growing economies of the developing world. This is camouflaged
by the UNFCCC’s production-based accounting system, which only measures the
emissions that are produced within the territory of states without adjusting for
trade. This has enabled an ‘outsourcing’ of both emissions and responsibility;
that is, as many developed countries move towards a low-emission service economy
their consumers are able to enjoy the benefits of imported emissions-intensive
goods without having to take responsibility for the emissions, which are attributed
to the developing countries in which they are produced. As we shall see, the
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structural character of this problem makes it increasingly difficult to attribute
responsibility to particular agents.
However, as Pickering and Barry (2012) have argued, while it is possible to
develop a defensible ethical account of historical responsibility it is clear from the
history of the climate negotiations that this argument would not provide a polit-
ically fruitful basis for advancing the negotiations on a new climate agreement or
climate finance contributions. The same can be said for negotiations for a new
agreement or mechanism to manage climate refugees. As Pickering and Barry
further note, ‘many developing countries (including highly vulnerable small
island states) have themselves eschewed the rhetoric of climate debt in favour of
other strategies for boosting collective responsibilities to address climate change’
(2012: 679). Whether this is out of political necessity and/or a growing split within
the G77 between the major emerging emitters and the Least Developed Countries is
not clear but is most likely both reasons, although it does not necessarily follow
that the same reasoning would apply to loss and damage. What is clear is that there
is a growing sense of frustration and despair on the part of the most vulnerable
states, including SIDs, with the intransigence of all the major emitters.
Beneficiary pays in lieu of polluter pays?
While the negotiators and many climate ethicists have rejected the PPP as an
appropriate basis upon which to determine responsibility for mitigation and adap-
tation, some climate ethicists have developed an alternative ‘no fault’ approach to
historical responsibility that focuses on the benefits derived from cumulative emis-
sions since industrialisation (the beneficiary pays principle). On this account, the
way in which a state derives its ability to pay (for mitigation, adaptation and we
can add responsibility to receive climate refugees) has a bearing on the nature of its
duty to pay (Page, 2012: 307). Whereas the PPP seeks to identify damage, causation
and wrongfulness, the BPP asks the major beneficiaries to ‘give up’ rather than ‘pay
back’ the benefits they have unwittingly but unjustly acquired (Page, 2012: 314).
This argument is clearly sympathetic to the idea of a carbon debt but seeks to
avoid the language of blame by focussing on preserving developing countries’ right
to develop. The early developers have exploited the storage and sink capacity of the
global commons and thereby placed late developers in a tragic dilemma: either they
must sacrifice their cherished development goals by giving up the same cheap
opportunities for enrichment or exploit these opportunities and suffer a dispropor-
tionate share of the consequences of climate change arising from their greater
vulnerability (which is linked to their developing country status). The only way
out of this dilemma is for those who unwittingly benefited from this unjust enrich-
ment to pay those who did not have the opportunity to develop in the same way.
This ‘paying back’ (or ‘paying forward’) could extend to receiving a larger share of
climate refugees and providing a greater share of financial assistance to enable
them to resettle.
Although the BPP seeks to provide a bridge between the backward-looking PPP
and a more forward-looking APP by connecting benefits unintentionally derived
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with present capabilities to assist, the differences between ‘paying back’ and ‘giving
up’ are likely to be too subtle for the largest cumulative emitters in the developed
world, who have already made it clear that they will not accept the notion of
carbon debt or historical responsibility. Moreover, just as the PPP raises challen-
ging questions of calculating relative contribution, so too does the BPP. Indeed, the
BPP would appear to be harder to operationalise than the PPP or APP. How
should the additional benefits derived from unjust enrichment be identified and
calculated? Page suggests looking at national wealth rather than income as a proxy
for historical benefits derived, but this does not necessarily reflect historical con-
tribution to the problem of climate change if wealth has been acquired by means
other than emissions-generating activity. In short, this approach struggles to sep-
arate out what might be called ‘clean wealth’ from the ‘dirty wealth’, which could
lead to the situation whereby clean wealthy countries end up contributing as much
as dirty wealthy countries simply by virtue of their wealth and therefore capacity to
assist (Caney, 2010: 216).
A better proxy indicator for historical benefits and therefore the degree of unjust
enrichment would be the combined domestic and foreign income derived from the
exploitation, production, sale and use of fossil fuels since industrialisation because
whatever the economic benefits are derived from these activities they would, ipso
facto, amount to unjust enrichment. However, a development blind version of this
approach would draw in a large number of developing countries who would doubt-
less wish to seek exemption on the basis of their unmet development needs while a
development-sensitive approach would see most of the burden concentrating on the
so-called Umbrella group of industrialised countries in Annex 1 of the UNFCCC
(principally, the US, Canada, Australia, Norway, Russia and Ukraine). With the
possible exception of Norway, this group is expected to strongly resist such an
approach and in any event the discharge of this burden is unlikely to be sufficient
to cover the loss and damage suffered by climate refugees (Caney, 2010: 212).
Beyond the liability model: Relative capability and the APP
The political difficulties and measurement complications associated with mounting
any kind of argument for historical responsibility suggest that it would be more
productive to abandon the fault-based or unjust enrichment approach to allocating
the ‘responsibility to receive’ climate refugees, since it clearly fails the feasibility
test. This leads directly to the APP, which would require all states to do what they
can within the limits of their respective ability to assist climate refugees, irrespective
of their causal contribution to the problem. Yet the greatest virtue of the APP is
also the greatest drawback from the standpoint of climate refugees. On the one
hand, it is much less complicated and contentious than the PPP or BPP to frame
state responsibility for climate refugees as a collective responsibility of all states
that is differentiated in accordance with relative capabilities. On the other hand,
this is only likely to be politically accepted if relative capability is determined
subjectively by each state rather than according to objective measures such as
relative GDP or the human development index. This would effectively convert
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state responsibility into a charitable responsibility to provide humanitarian relief,
leaving it to states to make their own subjective judgments as to how many climate
refugees they are able to receive, and how much they are able to spend on providing
relief, in the context of the wide range of competing demands on their budgets and
resources. Given the discretionary nature of this judgment, then even the richest
states may decide that providing relief to climate refugees must be a low priority in
the light of their competing responsibilities. It is precisely because of the discretion
attached to humanitarianism that climate justice advocates prefer the liability
model, since agents who are found morally or legally liable to pay damages to a
victim as compensation or restitution for harm suffered, and who are able to pay,
cannot appeal to cost or competing considerations to absolve them of their
liability.
We have seen that a simple liability model grounded in the PPP or BPP faces
major challenges in terms of political acceptance and calculability. The situation
becomes further complicated when undeserved harm is systematically produced by
social structures rather than, or in addition to, the wilful or reckless actions of
individual agents. There is now a growing body of critical social and political
theory that has called into question the usefulness of a simple ‘liability’ model of
responsibility that looks for a clear chain of causation between guilty culprits and
innocent victims for particular harms according to the liberal moral grammar of
responsibility – especially in a global risk society (Beck, 1995; Lavin, 2008; Young,
2011). In situations of complex interdependence, this is seen as a hopeless task
because it deflects attention from the main ‘culprit’, which are the social structures
that enable the systematic generation of harm. Most notably, these include capit-
alism but also the state system, both of which create incentives for firms and states
to privatise gains and externalise costs onto third parties in space and time. For
Ulrich Beck, conventional models of individual responsibility serve to normalise
the system of ‘organised irresponsibility’ that generates ecological risks (Beck,
1995: 64–65). For Iris Marion Young, ‘the liability model of responsibility’ natur-
alises unjust social structures and therefore deflects attentions from the collective
action that is required to transform them; it also singles out guilty agents, and
thereby absolves everyone else from taking responsibility; it produces highly defen-
sive and politically unproductive behaviour on the part of those who are singled
out; and it is backward looking and deflects attention from the future political
work that needs to be done (Young, 2011: 105–106).
Young’s account of political responsibility to transform unjust social structures
is grounded in a ‘social connection model’ which arises ‘not from living under a
common constitution, but rather from participating in the diverse institutional
processes that produce structural injustice’ (Young, 2011: 105). However, she
recognised that not all agents are equally capable of exercising political responsi-
bility and she provides some broad parameters for thinking about how it might be
differentiated according to each agent’s relative power, privilege and capabilities
(Young, 2011: 142–151), which are largely (although not exclusively) derived from
their social location within the social structures that need to be transformed. For
present purposes, we may collapse ‘power, privilege and capabilities’ into a general
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notion of relative ability to transform social structures so that they no longer
generate undeserved harm.
Although Young’s primary focus was sweatshop labour in developing countries
rather than climate change, and the political responsibility of citizens rather than
states, her arguments provide a fresh perspective on the APP by directing attention
to the structural character of globally generated risks such as climate change.
However, this fresh perspective is sobering because it also highlights the problem
that those social agents (such as states, corporations and the owners of capital
generally) with the greatest capability to transform structures typically (although
not invariably) have the weakest motivation to do so because of the benefits they
enjoy under such structures by virtue of their privileged social location. Conversely,
those who benefit least or suffer the most from the so-called side effects of produc-
tion and consumption, and inter-state rivalry, typically have the least capacity to
transform social structures or otherwise alleviate their plight by virtue of their more
marginal location with such structures. This is certainly the case for climate refu-
gees and herein lies one of the greatest tragedies of the climate challenge. This helps
to explain why Young chose to focus on the political responsibility of citizens
rather than states; she considered the latter to be insufficiently motivated to address
structural injustice in the absence of the political mobilisation by citizens (Young,
2011: 151).
In all, Young’s analysis highlights complications and challenges facing climate
refugee advocates by highlighting the inverse relationship between capability and
political motivation. Moreover, in focussing on the political responsibility to trans-
form social structures she devoted very little attention to the question of respon-
sibility for loss and damage for structural injustices that are already locked in. That
said, a more critical reading of Young helps us to see a major irony in her critique
of the liability model and the potential future importance of the liability model. As
Anthony Langlois (2014: 56) has pointed out, if we examine more closely what has
made the anti-sweatshop campaign a success in improving the situation of workers
in the garment industry, it was not the ‘forward-looking’ responsibility taken by
transnational corporations to improve their human rights practices for the future,
since the codes of practices that were developed were weak and primarily motivated
by a concern to protect brand reputation. Rather, it was the application of the
liability model on behalf of workers, which required backward-looking assessments
of fault and the determination of compensation.
Finally, Young’s account differs from a straightforward liberal cosmopolitan
approach towards those who suffer undeserved harm, which depends on nothing
more than our common humanity as a good enough reason for everyone to
render as much assistance as possible within the limits of our capability. For
Young, political responsibility still depends on finding a nexus of some kind (in
this case a ‘social connection’) between capable agents and victims of unde-
served harm, albeit mediated by social structures. This would mean that highly
capable agents who disconnect from such social structures would presumably
have no political responsibility whatsoever towards those suffering undeserved
harm.
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However, those who have grappled specifically with the structural character of
the undeserved harms generated by climate change have defended a cosmopolitan
interpretation of the APP. For example, Darrell Moellendorf, like Young, rejects a
retrospective account of remedial responsibility based on the PPP or BPP in favour
of a prospective account of social responsibility based on the APP (2014: 157). He
argues it is enough merely to be a privileged member of a certain kind of arrange-
ment or institutional order, rather than the recipient of a benefit produced by an
historic injustice, to ground ‘social responsibility’ for mitigation (Moellendorf,
2014: 173–174). Whereas Young’s account has its roots in Marxist political econ-
omy, Moellendorf draws on the Rawlsian idea that the fairness of a cooperative
arrangement should be judged by its effects on the least well off. This means that
the allocation of the burden of mitigation to states should not set back the pro-
spects of the poor living in the least-developed and developing countries.
Accordingly, mitigation responsibilities should be assigned to states on the basis
of the APP, measured in terms of a state’s level of human development
(Moellendorf, 2014: 176).
In a similar vein, Bukovansky et al. (2012) have developed an ethic of ‘special
responsibilities’ for climate change that links structural vulnerability, dependency
and capacity in ways that are specific to particular problems. This is a distinctive
type of cosmopolitan ethic that seeks to respond to a world characterised by the
formal equality of states and their inequality of material capability. This is a for-
ward-looking approach insofar as it focuses on those states (and other agents) with
the greatest relevant capability to alleviate the plight of the most vulnerable simply
and precisely because the most vulnerable are largely at the mercy of their actions
or inactions (Bukovansky et al., 2012: chapter 6). In relation to mitigation these are
the greatest aggregate emitters (essentially, the top 20 emitters, who are collectively
responsible for around 80% of global emission), since they have the greatest rela-
tive capability to address the problem. However, the relevant capability in relation
to the loss and damage suffered by climate refugees would be the relative capability
to provide financial, technical and other assistance to resettle and this would be a
much larger group of states than the top 20 emitters and could extend to all
countries, adjusted for level of development (and exempting the least developed
countries).
Focussing on those states with the financial and technical capability to provide
assistance and relief to climate refugees has the merit of focussing on what is
required to get the job done for climate refugees. But one can anticipate objec-
tions from the so-called clean wealthy countries to the effect that the ‘dirty
wealthy countries’ should be required to pay more. Bukovansky et al. accept
these qualifications to their ‘relevant capability’ approach by suggesting that spe-
cial responsibilities should be weaker in relation to the most capable states that
have neither caused, nor benefited from, the vulnerability of others, and stronger
in relation to the most capable states that have made the greatest causal contri-
bution to, or enjoyed the greatest benefits arising from, the relevant vulnerability
(Bukovansky et al., 2012: 219–220). Of course, these concessions reintroduce all
of the problems we have noted with the PPP and BPP, albeit through the
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back door. Moreover, this cosmopolitan ethic of special responsibilities does not
address the difficult question of why the most capable states would be motivated
unilaterally, or by multilateral agreement, to accept this kind of responsibility
towards the most vulnerable as a moral or legal duty as distinct from a voluntary
act of charity.
Indeed, since the negotiations launched at the 17th conference of the parties
(COP17) in Durban in 2011 for a new climate agreement to be signed in Paris in
2015, to be ‘applicable to all’, the parties have effectively given up on trying to
reach a principled agreement on the meaning and allocation of CBDR-RC.
Instead, the negotiators have found a way of stepping around the impasse over
historical responsibility by leaving it to each party to decide for themselves. That is,
instead of negotiating ‘internationally legal binding commitments’ on the basis of a
principled interpretation of differentiated responsibilities and capabilities with
respect to mitigation and adaptation, the parties have agreed to determine their
own ‘intended nationally determined contributions’ (INDCs) for the post-2020
period according to their own national circumstances and their own understanding
of what they consider to be their fair share. This has meant that the political and
ethical debate will shift towards the design of an ongoing review process for these
INDCs, including what matters might be included in national contributions, how
much flexibility should be accorded states in determining these matters, how these
are to be judged and what kind of cycle of review might generate continuous
improvement in contributions. This leaves the door open for parties to include
as part of their INDCs a financial contribution to the Warsaw International
Mechanism to assist the resettlement of climate refugees. This might be extended
to include hosting responsibilities, depending on the choices made by climate refu-
gees; indeed, Risse (2009: 294) has suggested that one country could take a whole
nation and treat it as part of its contribution to adaptation. The adequacy of these
and other related commitments could be included in a technical and equity review
process.
Given the odium surrounding the PPP and the BPP and the state of play in
the climate negotiations, including the modest progress thus far on the Warsaw
International Mechanism on Loss and Damage that demonstrates at least an
implicit promise by the parties to provide assistance to climate refugees, a cap-
ability-based approach to the state responsibility to assist, based on the APP,
appears to be the only politically feasible option in the near term. However, the
APP would also appear to rule out any general right on the part of climate
refugees to choose their host state since not all states would have the same cap-
ability to receive and some states would lack such capability. Moreover, the
sobering history and politics of the Refugee Convention would, in any event,
suggest that states would have little motivation to grant such a right to climate
refugees.
To develop an ethically desirable and politically feasible account of the right of
refugees to choose their host state it is necessary, first, to distinguish climate refu-
gees from political refugees and, second, separate the two dimensions of state
responsibility (to assist and to receive).
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The right to choose
The plight of climate refugees is analogous to political refugees in one major
respect: they are moving to save their lives, which includes avoiding significant
harm to their physical and psychological well-being. However, the source of
harm differs, and this potentially carries two significant consequences when con-
sidering whether climate refugees should have a right to choose their host.
First, the right of political refugees to remain in their host state is temporary.
The normatively distinct claim of the political refugee is non-refoulement, which is
the obligation of states not to return refugees to the state where they face political
persecution (Lister, 2014: 620). This effectively confers on political refugees the
right to remain in a safe country only for so long as they are at risk of persecution
in their home country. In contrast, climate refugees that require permanent resettle-
ment do not have the option of returning to their home state. This means that
choice of host matters more to climate refugees than political refugees, although it
clearly matters a great deal for political refugees, especially when the risks of per-
secution are likely to last a life time.
Second, states that host political refugees typically do not have any connection
with, or bear any responsibility for, the political persecution suffered by political
refugees in their home state. However, connections between host states and polit-
ical refugees can sometimes be drawn in the case of military intervention by the
host state in the political refugee’s home state. Even well-known communitarians,
who uphold the right of communities to determine who should enter and who
should stay within their territory, have accepted that a community has a special
moral responsibility towards political refugees in those circumstances where the
community has contributed to their status as refugees. For example, Michael
Walzer has suggested that contributing to their ‘injury’ creates the relevant affinity
and ‘thus Vietnamese refugees had, in a moral sense, been effectively Americanized
even before they arrived on these shores’ (Walzer, 1983: 49). Whether this obliga-
tion on the part of states to receive should be accompanied by a right of refugees to
choose is less clear.
Under the Refugee Convention there is no formally acknowledged right for
political refugees to choose their host. Asylum seekers who are registered with
the United Nations High Commission for Refugees (UNHCR) and languishing
in refugee camps awaiting resettlement may request to be resettled in particular
states, but states are under no obligation to receive them. The UNHCR refugee
resettlement program is merely a voluntary program designed to facilitate burden
sharing among signatories to the 1951 Convention, and the decision to accept a
particular quota of refugees is purely at the discretion of the host state. Irregular
entry is the only means by which political refugees can ‘choose’ their host state, and
they do this on the strength of the international customary law principle of non-
refoulement, which is binding on all states and also enshrined in the Refugee
Convention. However, the practice of offshore processing and detention has
enabled host states to take away this de facto ‘choice’, and asylum seekers who
are found to be political refugees have no right to choose where they are resettled.
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The responsibility of states to deal with the plight of political refugees is generally
understood as a shared or collective responsibility. In practice, most of the load is
borne by developing states since they tend to be closer to the countries generating
flows of asylum seekers. Given the significant differences in wealth and capacity
between developed and developing countries, the current distribution of refugee
load is widely perceived to be an unfair distribution by refugee advocates, and that
a fairer allocation of responsibilities should focus on the capacity or capabilities of
states to absorb and settle refugees.
In contrast, all states are causally implicated in the plight of climate refugees by
authorising or allowing activities within their territory that generate greenhouse gas
emissions, albeit in varying degrees. Moreover, the increasing risk of displacement
as a result of rising seas and other unavoidable impacts is a direct result of the
collective failure of states to address climate change in an effective matter. Prima
facie, this ‘contribution to injury’ and the ongoing collective failure to prevent the
continuation of the injury with full knowledge of the increasingly severe impacts
that will be suffered by vulnerable populations, combined with the permanent
character of displacement that is collectively caused, provide strong grounds for
a general state duty to receive and a corresponding right on the part of climate
refugees to choose their host. This would rest on the recognition that all states are
collectively and causally responsible for their plight, albeit in varying degrees but
which cannot and need not be disaggregated and measured, and that it would be
profoundly unjust to allow concern over the burden of receiving climate refugees to
trump their fundamental needs.
Yet while it is possible to draw a morally relevant distinction between political
and climate refugees that puts climate refugees in a stronger position than political
refugees to claim a right to choose their host state, this is unlikely to be sufficient to
engender the political motivation of states to accept such a right.
As we have seen, states have resisted any kind of fault-based or strict liability
model or unjust enrichment model of responsibility under the PPP and BPP in the
climate negotiations. We have also seen that states are much more favourably
disposed to the APP in the real world of climate negotiations and refugee politics,
and that this cannot ground a universal right on the part of climate refugees to
choose any state they wish since not all states would have the requisite capacity to
receive. Finally, we can expect states to be reluctant to accept a responsibility to
receive if they consider the application of a common responsibility to receive would
produce unfair or politically unpalatable consequences.
One way around this problem might be to restrict or qualify the right to choose
in ways that minimise unfair consequences for states. For example, James Souter
has argued that the causal connection between a particular state’s action and refu-
gee vulnerability must be strong and ongoing, that a state’s responsibility should
only arise when there is a foreseeable connection between the state’s actions and
displacement, and that the refugee’s choice should be given considerable weight but
may nonetheless be overridden by other factors (Souter, 2014: 179). He applies
these principles to both political and climate refugees and defends them as a form
of reparation for past injustices. In the case of climate refugees, he suggests that the
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assignment of reparative responsibilities would implicate only the world’s largest
polluters (Souter, 2014: 340).
However, Souter’s case glides over the important differences between political
and climate refugees. While some political refugees may be able to establish a
strong and ongoing causal connection between the actions of a particular state
and the persecution they are experiencing in their home state, climate refugees
have a case against all states as we have seen. In any event, conferring a right on
climate refugees to single out as their host particular states that are seen to be ‘the
most culpable’ or ‘the most capable’ (via unjust enrichment) as a form of just
dessert is a singularly unproductive way for them to start a new relationship
with their host nation. Nor would climate refugees necessarily wish to single out
the most culpable or capable. In the case of the wholesale evacuations of small
island nations that wish to retain their right of self-determination along with their
control over their submerged territory to which they are entitled under inter-
national law, then settling in the regional neighbourhood in order to retain
access to their territory may be a bigger concern than the right to choose a
major historical emitter or wealthy country. Moreover, island inhabitants might
prefer to settle in those neighbouring countries with which they share a greater
cultural and/or linguistic affinity. This is not to suggest that all island inhabitants
would want to, or have to, make these choices, but it does highlight the fact that
what might matter most to the inhabitants of small island states in choosing where
to resettle may have little to do with the PPP, BPP or indeed the APP and more to
do with geographic proximity and cultural connection. From the standpoint of
climate refugees, the need to relocate is a need of necessity that ought not to be
overridden by state concerns about relative burden sharing. In these circumstances,
a right to choose would provide a form of recognition of, and partial compensation
for, the injustice and trauma of their loss and damage.
Yet we still have two major political obstacles to confront. The first would be
political resistance by states to a right to choose by climate refugees as a form of
reparation for loss and damage. The second would be domestic political fears in
many states that they may be overburdened by climate refugees, and this fear
would have negative consequences for climate refugees in any efforts to negotiate
such rights, or exercise them if granted.
These problems suggest the need for a more creative solution that is able to cater
for the special needs of climate refugees while reducing the potential for political
hostility by states to the idea of a general responsibility to receive climate refugees
and a right to choose. This can be done by severing the connections between the
differentiated state responsibility to assist on the basis of the APP, on the one hand,
and the common responsibility to receive and the right to choose, on the other. The
latter would be based on states’ collective contribution to injury and injustice and
would therefore avoid the contentious politics of singling out and blaming, or
assigning burdens to, individual states by providing incentives. Whereas the right
to choose and the responsibility to receive are necessarily correlative, the respon-
sibility to assist is detachable. This move would enable both receiving states and
climate refugees to receive financial and other assistance to defray the costs of
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resettlement. In the case of receiving states, assistance would be provided on the
basis of relative capacity to receive and relative proportion of refugees received.
There are significant precedents for resource transfer mechanisms to assist develop-
ing countries to meet common legal obligations under particular treaties. For
example, the Multilateral Fund set up under the Montreal Protocol to assist
developing countries to meet their obligations under the treaty served as a prece-
dent to the Green Climate Fund set up under the UNFCCC to assist developing
countries meet their national mitigation and adaptation responsibilities. Likewise,
a differentiated responsibility to contribute to the Warsaw International
Mechanism on Loss and Damage based on the APP would enable all states to
fulfil their common responsibility to receive climate refugees. In short, the case for
the ‘right to choose’ is likely to become more politically viable, and the resistance of
states to accept their common responsibility to receive them is likely to weaken, the
more that climate refugees and their host states are assured of adequate support
from states according to states’ differentiated responsibility to assist under the
APP. It follows that the first political priority should be to focus on building a
robust funding mechanism to assist climate refugees to resettle.
However, while this proposal might soften political resistance by some states it is
unlikely to eliminate it, especially if climate refugees move as a large group. Much
would depend on domestic politics, including the ability of climate refugee advo-
cates to frame the debate in ways that attract public sympathy. And here there is
arguably less cause for public hostility or invasion anxieties due to the absence of
many of the factors that have given rise to mistrust, ignorance and hostility to
irregular entry by asylum seekers. First, the number of climate refugees is expected
to be much smaller than political refugees. On one estimate, the number of people
that is expected to be forced to move as a result of the permanent inundation of
land by sea under a worst-case scenario is around 15 million people over the 100-
year period 2030–2130, allowing for local adaptation (Laczko and Aghazarm,
2009: 88). This is a very small number compared to 16.7 million political refugees
plus 1.2 million asylum seekers counted by the UNHCR in one single year in 2013
(UNHCR, 2013: 2). Second, it would be a relatively easy matter to determine who
is a climate refugee and they would be less dependent on so-called people smug-
glers, since they can be expected to travel with the required documentation, espe-
cially when it is organised as an orderly movement by the relevant governments.
The exception would be emergency evacuation due to sudden onset, climate-related
disasters, which is likely to attract public sympathy in host states.
It might be objected that the foregoing defence of the right of climate refugees to
choose their host would have the unfortunate effect of converting political refugees
into second-class refugees. Indeed, as Luara Ferracioli has argued, the definition of
refugees in the 1951 Convention is under-inclusive insofar as there are many kinds
of serious vulnerability and hardship that lead to forced migration (Ferracioli,
2014). She also notes that there is no motivation on the part of states to negotiate
a new treaty to expand this definition and that if states were to negotiate a new
treaty it would be weaker than the 1951 Convention, which creates political dan-
gers for reform initiatives. The same might be said of the UNFCCC’s burden
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sharing norms, but for the new opportunity presented by the Warsaw International
Mechanism.
However, we have seen that there are morally relevant distinctions between
political and climate refugees. In addition, climate refugees will not have the cul-
tural possibilities afforded to diaspora populations of political refugees in terms of
further access to their own customs, literature, music, and so forth. A right of
climate refugees to choose their host would therefore provide both political and
cultural justice. In any event, if a policy window has opened for climate refugees,
which is not on the horizon for political refugees or other displaced persons, should
it be passed over out of solidarity with the plight of a broader class of displaced
persons? There is nothing to suggest that the proposed reforms under the Warsaw
International Mechanism would make political refugees and other displaced per-
sons worse off, and it is possible that reforms might serve as a positive precedent for
this broader class of displaced people in the longer term.
The foregoing proposals would require widespread and skilful advocacy not
only by refugee advocates but also like-minded states, and we can expect that
many states would favour only a discretionary responsibility to assist and receive,
and a right on the part of climate refugees to have considerable weight given to
their choice of host, but without any guarantees. SIDS would therefore be wise to
take pre-emptive action by seeking to negotiate individual bilateral treaties with
their preferred states prior to their forced migration. Yet even these negotiations
are also more likely to be successful if it were known that they and their hosts
would receive generous assistance under a funding mechanism such as the Warsaw
International Mechanism for Loss and Damage.
Conclusion
It should be clear from the foregoing discussion that no single principle of allocat-
ing responsibility can provide justice to climate refugees while also treating states
fairly. As Caney (2010, 2012) has shown, whatever principles we select, there is
always ‘a remainder’, which leads inevitably to some kind of hybrid approach. The
PPP leaves unaddressed climate-related harms that cannot be attributed to particu-
lar polluters, and it is likely to be a nonstarter in any international negotiations to
address loss and damage, including climate-induced migration. Yet while the nego-
tiating history of the climate regime has shown that the PPP has been politically
unattractive, it can be expected to play an increasing role in future civil litigation
for climate-related damages at the domestic level which may ultimately force many
of the structural changes, particularly in the political economy of energy produc-
tion and use, which most states have so far resisted. It would therefore be politically
foolhardy to abandon the liability model.
Likewise, the BPP is limited by the degree to which the beneficiary actually
benefited from unwittingly causing a harm, which may not be sufficient to cover
the loss suffered by, or assistance required, by the victim. Like the PPP, this prin-
ciple also faces major measurement challenges. Yet it provides a useful rhetorical
bridge between the PPP; unlike, the APP the BPP does not seek to forget history.
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The APP is the simplest and most politically attractive principle since it avoids
the blame game and is forward looking. Yet in severing the connection between
capability and culpability it leads to a discretionary, voluntarist approach by states,
who are free to choose their own contribution to loss and damage, just as they do
under the existing Refugee Convention, and just as they are doing in preparing
their INDCs in the lead-up to signing a new climate agreement in 2015.
The constraints of political feasibility are clearly profound and expose major
tensions between what climate justice requires for climate refugees and what the
biggest historical emitters and most wealthy states are likely to provide. We have
also seen that the dominant moral and political grammar of responsibility as liabil-
ity remains indispensable but that it is also woefully unsuited to a global risk
society. Any attempt to broaden the grammar of responsibility will need to find
ways of navigating the inevitable slippage between the agents who have caused and
benefited from the problem, those who are culpable and reckless and those with the
relevant capacity to provide redress for those who suffer harm and/or prevent the
problem from continuing. A new grammar of responsibility dealing with complex
interdependence must be matched with practical and workable solutions. The prob-
lem is that domestic legal systems, and the current system of sovereign states, are ill
equipped to manage incalculable, global risks like climate change. In the longer
term, this ultimately points to the need for some kind of global insurance system or
Climate Superfund, to which a myriad of actors could be obliged to contribute
(including states, corporations, financial institutions and individuals) on a regular
basis, and from which a myriad of climate vulnerable communities should be
entitled to draw. Meanwhile, the very least that the parties to the UNFCCC
should offer climate refugees is sufficient compensation under the Warsaw
International Mechanism to enable them to start a new life. And the more that
they are able to provide such compensation, the more states are likely to accept the
right of climate refugees to choose their host, along with their general responsibility
to receive them.
Acknowledgments
The author wishes to thank the editors of this special issue, Adrian Little and Terry
Macdonald, for their editorial contribution and for organising the research workshop on
‘Borders and Justice in Australian Migration Debates’ at the School of Social and Political
Sciences, University of Melbourne at which a first draft of this paper was presented. The
author also wishes to thank Susan Uniacke from the Centre for Applied Philosophy and
Public Ethics at Charles Sturt University as the lead organiser and host of the workshop on
‘Responsibility and Climate Change’ at which a second draft of this paper was presented,
with a special thanks Luara Ferraciolli for her helpful feedback as discussant at this
workshop.
Notes
1. The question of what rights displaced peoples should be entitled to enjoy once they settle
in new states is beyond the scope of this paper. The debates on this question largely turn
on whether basic (individual) liberal rights would suffice, or whether states should allow
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the displaced nations to preserve their national identities and exercise rights of national
self-determination beyond what is required by basic liberal rights (e.g. Lister, 2014; Nine,
2010; O
¨
dalen, 2014; Rayfuse, 2010).
2. Vulnerability to climate change is a function of exposure to risk, sensitivity to risk
and adaptive capacity so some populations will be better equipped to withstand rising
seas or address challenges to food security than others by, for example, building sea
walls or changing patterns of agriculture to adapt to rising temperatures and/or
diminishing fresh water availability. This means that forced international migration
due to impacts other than sea level rise cannot always be solely attributed to climate
change. However, I treat sea level rise as a special case since unlike most other climate
change impacts, it cannot be addressed in situ and is therefore beyond the limits of in-
country adaptation.
3. In contrast, Jane McAdam (2012) has defended regional agreements rather than a treaty
modelled on the refugee convention while David Hodgkinson has argued that inter-
national relocation should be managed through bilateral regional agreements between
‘home’ and ‘host’ states negotiated under the aegis of a multilateral convention
(Hodgkinson et al., 2012).
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