Climate Change Refugees: Regional Agreements Can Better Fill the Gap in Legal Protection

Climate Change Refugees: Regional Agreements Can Better Fill the Gap in Legal Protection

By: Kelsey Moe

Current estimates suggest that climate change could cause over 200 million people to be displaced by 2050.[1] In a report introduced by the UNHCR, it found that “climate change exposes people to increased vulnerability and creates impetus in driving them into areas of conflict and ultimately across borders into exile.”[2] Climate change displacement is a reality, and it will cause an increased flow of migrants, due to its accelerated affects.[3] The effects of climate change are already contributing to migration and the displacement of people.[4] Climate change effects can be linked to impacts on agriculture, the economy, food shortages, extreme weather events, and access to water.[5] Parts of the world will no longer be habitable, able to support agriculture, or produce clean water, and people will be forced to relocate in order to survive.

This is a major problem primarily because of the lack of legal framework and protection for individuals vulnerable to climate change displacement. The 1951 Refugee Convention, and 1967 Protocol defines a refugee as, “person who is outside his or her country of nationality or habitual residence; has a well-founded fear of persecution because of his or her race, religion, nationality, or membership in a particular social group or political opinion; and is unable or unwilling to avail himself or herself of the protection of that country, or to return there, for fear of persecution.”[6] The 1951 Convention definition does not cover individuals displaced by climate change, which leaves a gap in the legal protection for climate change refugees.[7]

Many solutions have been suggested to address the lack of protection for climate change refugees. One solution is the development of a new international treaty, specifically to address climate refugees. In the Harvard Environmental Law Review, authors Tyler Giannini and Bonnie Docherty propose the idea of a new independent international convention.[8] The authors believe current legal instruments are unable to protect climate change refugees, and that a new international treaty is the only adequate solution.[9] Another argument is the proposal for a regional treaty to protect climate change refugees.[10] The author suggests the development of a regional treaty over a new international treaty, because a new global agreement would be problematic.[11] Williams concludes that efforts could be better coordinated through regional agreements under the international umbrella of the Kyoto Protocol and the UNFCCC.[12]

Current international and domestic laws are unlikely to provide the needed legal protection for climate change refugees. Regional agreements can better fill the gap in legal protection for climate refugees because of similar cultural, geographical, and family ties within regions, adaptation capabilities of countries, and the likelihood of internal and migration to nearby countries.[13] Cultural norms vary widely across countries, regions, and social groups; and regional agreements help countries communicate how they want to be perceived both in terms of climate change and with migration and displacement. International movement in the context of climate change is “conceived of differently because of particular geographical, demographic, cultural, and political circumstances, and it may be that localized or regional responses are better able to respond to their needs.”[14] Ultimately, regional agreements focus attention on culturally-sensitive outcomes for people in particular contexts, and respond to the nature, timing and location of predicted movement within, from, and to particular countries, and their views on how they want to be perceived.[15]

Regional agreements are also better for adaptation because they can take into account commonalties between countries, and their specific capabilities and priorities regionally. Regional agreements can appeal to both host and home countries, because they consider the different aspects of the affected communities, and how and when people should migrate.[16] Certain countries may wish to remain in their home countries as long as possible, while others are concerned with immediate relocation, or gradual migration over time. Countries have different priorities for climate change and displacement. This is the case in Tuvalu and Kiribati.[17] Kiribati is interested in including an international agreement for relocation, while Tuvalu is against it, because of their fear of the power of industrialized nations to force relocation.[18]

For example, the country of Kiribati is concerned with unemployment and sanitation issues.[19] The President of Kiribati is responding to climate change displacement by prioritizing options for labor migration in New Zealand and Australia.[20] Tuvalu is concerned with unemployment as well, but is also dealing with pollution and a lack of resources.[21] When formulating policy on climate change and displacement, different relocation priorities may depend on these issues, and concerns like the right to work, access to public services, and the right to citizenship or territory in host countries. Migration will also depend on unknown factors such as when people are forced to migrate, if migration is an accepted adaptation strategy, and other types of assistance available in particular communities. Regional agreements are better for adaptation because they can take into account these different capabilities and priorities.

Regional agreements are also preferred because of the likelihood of internal migration, and migration to neighboring countries. International treaties may be inappropriate because current evidence shows that most movement from climate change will be internal and gradual.[22] The basis of an international treaty is international movement and regional responses are a better platform for more community specific responses.[23] They are also preferable because of the likelihood of family or friends living in nearby countries within the region. Regional agreements also benefit from proximity, and the likelihood of shared interests regionally, because the majority of migration will be internal or to nearby countries.

Lastly, regional agreements are more effective because of their ability to influence behavior and ensure compliance differently than international systems.[24] Regional agreements benefit from the proximity of nearby countries, and can complement existing international frameworks. They are also preferable for enforcement because they resonate with local conditions better than a global system can.[25] For example, a more judicial approach to enforcement may be appropriate in some regions, while a non-judicial approach like commissions or peer review may be more appropriate in others. In general, regional agreements are a better platform for listening to the concerns of different countries, and formulating solutions based on each country’s priorities.

[1] Oli Brown, Climate change and forced migration: Observations, projections and implications, Human Development Report Office, (2007).

[2] UN High Commissioner for Refugees (UNHCR), Climate Change, Vulnerability and Human Mobility: Perspectives of Refugees from the East and Horn of Africa, (June 2012), www. unhcr.org.

[3] UN High Commissioner for Refugees (UNHCR), Frequently asked questions on climate change and disaster displacement, (Nov. 2016), www.unhcr.org.

[4] UN High Commissioner for Refugees (UNHCR), Summary of Deliberations on Climate Change and Displacement, (Apr. 2011), www.unhcr.org.

[5] Id.

[6] UN General Assembly, Convention Relating to the Status of Refugees, (July 28, 1951), 189 U.N.T.S. 137., www.unhcr.org.

[7] Id.

[8] Tyler Giannini and Bonnie Docherty, Confronting a Rise Tide: A Proposal for a Convention of Climate Change Refugees, 33 Harv. Envtl. L. Rev. 349, (2009).

[9] Id.

[10] Angela Williams, Turning the Tide: Recognizing Climate Change Refugees in International Law, 30, Law Policy (2008).

[11] Id.

[12] Id.

[13] Jane McAdam, Swimming against the Tide: Why a Climate Change Displacement Treaty is Not the Answer, 23 International Journal of Refugee Law No. 1 p. 2–27, (2011).

[14] Jane McAdam, Climate Change, Forced Migration, and International Law, Oxford University Press, (2012).

[15] Jane McAdam, Swimming against the Tide: Why a Climate Change Displacement Treaty is Not the Answer, 23 International Journal of Refugee Law No. 1 p. 2–27, (2011).

[16] McAdam at 4.

[17] Jane McAdam and Maryanne Loughry, We Aren’t Refugees, (June 30, 2009).

[18] We Aren’t Refugees, (June 30, 2009).

[19] We Aren’t Refugees, (June 30, 2009).

[20] Id.

[21] Id.

[22] Jane McAdam, Swimming Against the Tide (2011).

[23] Jane McAdam, Swimming Against the Tide, at 8, (2011).

[24] Christof Heyns, David Padilla, and Leo Zwaak, Schematic Comparison of Regional Human Rights Systems: an update, Sur, Rev. int. direitos human. vol.3 no.4 São Paulo, (June 2006).

[25] Id.

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