The Office of the United Nations High Commissioner for Refugees (UNHCR) is the primary international organisation advocating for refugee rights. The UNHCR 1951 Convention and 1967 Protocol Relating to the Status of Refugees constitute the fundamental international legal instrument for the protection of refugee rights. According to Article 1A(2), a refugee is defined as 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, is unable or, owing to such fear, is unwilling to return to it (UNHCR, 1951 & 1967).
The term “climate change refugee,” however, is not defined within this text. While states (i.e. countries) have obligations to protect refugees, the definition of “refugee” is a highly specific one that contains many components, posing a problem for the incorporation of climate change-related displacement.
A family crosses the flooded streets of Pakistan. Source: Flickr.
Migration can take many forms – it can be international or internal; forced or voluntary; involving a direct persecuting agent or a nebulous global problem; resulting from discriminatory or non-discriminatory forces. Most individuals and communities displaced by climate change will internally relocate, appear to relocate voluntarily, or not be persecuted by a discriminatory state on one of the five convention grounds (i.e. race, religion, nationality, or membership of a particular social group or political opinion). Due to these distinctions and definitional requirements, environmental refugees cannot be considered “refugees” under current international law.
It is also highly unlikely that states will agree to further widening of international refugee law in the future. State parties to the 1951 Convention and 1967 Protocol have immense political incentives to denying responsibility for climate change, or even denying the existence of climate change (e.g. the Trump administration). Since states have an integral relationship to the existence of international refugee law, it would be incredibly hard (if not impossible) to create a new binding document on climate change refugee rights. As James C. Hathaway argues, “the type of collective consensus needed to drive a meaningful body of law is largely absent,” creating a barrier to further development of international human rights law.
Even if the legal definition was modified so that climate change-related displaced persons could be considered refugees (and thus states would be obligated to protect them) this does not necessarily mean that states would protect them in actuality. In fact, many states do not act in accordance with duties prescribed to them under international law – many individuals who fulfill all definitional “refugee” requirements are not protected and are denied of human dignity. Many refugees are instead referred to as noncitizen “asylum seekers,” and not given the human rights protection that host states are obligated to give them. The host state, in many instances, not only withholds protection, but also actively violates and abuses refugees. While international refugee law aims to impact domestic law, the past 25 years have been filled with examples of extensive backlash against sections of the 1951 Convention and 1967 Protocol Relating to the Status of Refugees. To illustrate, Australia, Europe, and the United States have now, as a matter of policy, begun systemically violating international refugee law through adopting extensive deterrence measures. These include imposing time limits on asylum applications, categorizing asylum seekers by the safety of their country of origin, and even using military ships to seize and return boats filled with migrants to their departure point. Measures like these serve to prevent asylum seekers (many of which actually satisfy all requirements for the “refugee” label) from accessing state protection, harming the human security of those seeking asylum. These new restrictive policies are not comforting for any potential refugees hailing from countries affected by climate change, since, as refugee scholar Jane McAdams states, the “existing legal regimes do not provide adequate protection or migration pathways for cross-border movement.”
Without even referring to refugee law, it is undeniable that humanitarian crises – like the potential disastrous and deadly effects of climate change – are threats to international peace and security. Despite not possessing the obligation to protect those displaced by climate change, states are under the obligation do everything they can to ensure the protection of human rights within their state. Jane McAdam argues that it is unavoidable that “climate change will impact upon people’s enjoyment of their human rights.” However, the reality is also that many poor countries will be unable to fund, create, and sustain sufficient climate-induced adaptation measures. Thus, migration may be the only practical option for these communities, whether internal or international – regardless of whether the 1951 Convention and 1967 Protocol provides legal protection for this movement. While states may not have any practical duties towards climate refugees per se, climate change will impact the potential for individuals’ enjoyment of human rights and the potential for human development. An explicit concern for human rights is important when considering the potential effects of climate change.
Instead of pushing for the inclusion of climate change displaced persons into the “refugee” definition (which oftentimes does not ensure that refugees will actually be protected and given the rights they deserve), states should acknowledge the inability to ascribe the refugee label and the consequent threat to global human security. States will not be able to prevent the coming humanitarian crises – both disaster (e.g. floods) and slow-onset (e.g. desertification) – unless they acknowledge this reality. Through universal legal instruments such as the Paris Agreement (the United States cannot legally withdraw until 2020) and the United Nations Framework Convention on Climate Change and its Kyoto Protocol, the international community is obligated to minimize the effects of the imminent humanitarian disaster. There is no quick fix, and the longer climate change continues to progress, not just vulnerable places will be rendered uninhabitable. These affected areas will grow, until they eventually encompass the whole globe. Simply relocating will not fix the problem of climate change-related displacement. Since climate change is a global problem, we need to mobilize the whole globe to fix it.
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