CLIMATE REFUGEES IN DOMESTIC AND INTERNATIONAL LAW

INTRODUCTION

Scientists have seen changes in climate in every region of the world, some of which are unprecedented. Sometimes, such changes occur naturally, but the significant emissions of carbon dioxide and other greenhouse gases have led to the novel nature of the current planetary circumstance. The Intergovernmental Panel on Climate Change, among other sources, indicates that continuing at current levels will lead todisastrous environmental developments. Certain regions are more affected by these changes than others. A separate report from the IPCC indicates that “approximately 3.3 to 3.6 billion people live in contexts that are highly vulnerable to climate change… the largest adverse impacts observed in many locations and/or communities in Africa, Asia, Central and South America, LDCs, Small Islands in the Arctic.” 

Much attention has gratefully been given to the direct impacts of climate change. The concept of human security—“a concern with human life and dignity”—is relevant to our changing planet in all its forms. There are seven main categories of human security: economic, food, health, environmental, personal, community, and political security. All of these concepts are affected by climate change, but most notably for our purposes, we will be highlighting communal and political security. 

A.    Impact of climate change on immigration and the refugee crisis

In scholarship, it emerges that there is a “clear link between” climate change, disaster, displacement, and migration., Many organizations predict that the amount of people displaced from climate change due to slow-onset impacts is over 200,000,000, moving from areas irrevocably affected by water shortages, crop productivity, and storms. One would, therefore, anticipate the core international texts regarding refugees to acknowledge climate change and its impacts. Yet, that is not the case. The first anchoring text regarding refugees, the 1951 Convention and Protocol Relating to the Status of Refugees, has an explicit definition of “refugee”:

As a result of events occurring before 1 January 1951 and owing to 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.

This language, emerging from the Office of the UN High Commissioner for Refugees (UNHCR), was a product of a post-World War II atmosphere, specifically with its temporal limitation of pre-1951 cases. In 1967, the limitation was eliminated, but the initial definition remained unchanged. Ultimately, this raises a pressing question in the modern world: how do domestic and international bodies and treaties respond to the increasingly worrying phenomenon?

I. IN INTERNATIONAL LAW

A. Readings of the 1951/1967 Conventions

It would be dishonest to say that it is universally accepted that climate refugees would not fall under these traditional definitions of refugee. Alexander and Simon assert “at length that these persons will indeed lack a nationality… those in this position who lack any other nationality will not longer be considered a national by any state… [t]hey will therefore meet the legal definition of de jure statelessness.” If a state is uninhabitable, its habitants would leave, unable to return; this would potentially be considered “outside the country of his former habitual residence.”

States have not used this reading in practice. In New Zealand’s Supreme Court, a case was presented regarding a man who had lived in Kiribati’s capital, Tarawa. The case acknowledged the difficulties those living in that city experienced.

[26] Life generally became progressively more insecure on Tarawa as a result of sea-level-rise. From the late 1990s onwards, Tarawa suffered significant amounts of coastal erosion during high tides. Also the land surface was regularly flooded and land could be submerged up to knee-deep during king tides. Transportation was affected as the main causeway separating north and south Tarawa was often flooded. [27] This caused significant hardship for the appellant, his wife and family as well as other inhabitants on Tarawa.

Ioane Teitiota and his wife were granted visas to New Zealand, which expired in 2010. They remained in the country unlawfully, and after a traffic stop apprehension, Teitiota applied for refugee status, citing an inability to return to his home country. After a Refugee and Protection Officer rejected the application, Teitiota appealed to the Immigration and Protection Tribunal.

While the Tribunal considered ways environmental degradation can, at some point, create pathways for refugeehood, it ruled that a broader, the climate-change-inclusive definition of “refugee” was not at play here. “It is clear,” the Tribunal ruled, that this “may be termed a voluntary adaptive migration” and that the “legal concept of ‘being persecuted’ rests on human agency.” New Zealand would not house an individual whose homeland “will likely experience more than 100 days of flooding every year by century’s end.”

The requirement for the definition of persecution to have a component of human agency is similarly challenging. Many examples of refugees certainly involve an international human decision; a person or group of people makes some form of decision in their treatment of another, and that other group must leave their region because of it. Climate refugees do not have the same immediate relationship with their persecutors. “A climate asylum claim is unlikely to be able to overcome the intent requirement implicit in ‘deliberate imposition,’” writes Smith. “Even if high-emitting actors know they are contributing to climate change.”,

Another questionable component is the destructive partnership between state obligation (or lack thereof) and the concept of “refoulement.” Article 33 of the Convention says that a contracting state may not “expel or return (“refouler”) a refugee in any manner whatsoever to the frontiers of territories where his life or freedom would be threatened.” Yet the Convention does not require states to actually examine asylum claims. If a refugee were to make her way inside a state’s borders, that state would not be legally permitted to send her back to her home country; there is, however, no need for the state to let her within its borders in the first place, creating “a perverse incentive to prevent the initial entry into their territory.”

B. Developments in other major UN bodies

There are a handful of other bodies within the United Nations that ostensibly can help out on this topic beyond just the UNHCR, but these potentially relevant bodies face hurdles based on their mandates. The General Assembly (GA) is severely limited by its minimal practical power; it can “discuss any questions or any matters within the scope of the [UN] Charter or… make recommendations to the Members of the United Nations or to the Security Council or to both on any such questions or matters.” It can also “initiate studies… for the purpose of promoting international cooperation.” But by itself, it can’t push forward a policy that its members are bound to.

The Security Council could also perhaps be relevant to this issue, but it, too, faces challenges. The UNSC is charged with “the maintenance of international peace and security,” and climate change is increasingly viewed as perilous toward such security., It is plausible that realistic climate change scenarios “could potentially destabilize the geo-political environment, leading to skirmishes, battles, and even war due to resource constraints.” Yet the Security Council has not necessarily viewed itself as a primary player in these conversations, despite reminders that “[p]eace can only be maintained if the very forests, soils and rivers that communities depend on are protected and managed sustainably.” Being bound by China and Russia, both of whom are permanent members of the Security Council, makes political will a question as well.

The UNFCCC has, as a core principle, the responsibility of the “specific needs and special circumstances of developing country Parties, especially those that are particularly vulnerable to the adverse effects of climate change.” One would be justified in thinking that it would then be a natural fit, especially following the Paris Agreement, a legally binding treaty which was adopted by 195 parties that provided a list of long-term goals regarding climate change. Yet the Paris Agreement speaks little about displacement and has merely a passing mention of “minimizing… loss and damage associated with the adverse effects of climate change, including extreme weather events and slow onset events.”

C. Other international bodies

There are a handful of other core texts that are noteworthy on this topic. The “OAU Convention,” which deals with refugee problems in Africa, adds to the prior conventions by acknowledging the term refugee’s application to “every person who, owing to external aggression, occupation, foreign domination or events seriously disturbing public order… is compelled to leave his place of habitual residence in order to seek refuge in another place.” This core additional point can, theoretically, be used to justify traditional refugee policy being applied to those who are displaced due to climate change, considering that climate change can fall under the classification of disrupting public order.

Similarly, the Cartagena Declaration on Refugees slightly expands the definition of “refugee” to potentially include those affected by climate change. That document uses a definition of the term refugee, “which, in addition to containing the elements of the 1951 Convention… includes… persons who have fled their country because their lives, safety, or freedom have been threatened by… circumstances which have seriously disturbing public order.” While this document only has regional significance—it does, after all, only apply to Central America—its forward-thinking nature regarding a definition of refugee is helpful for crafting a more inclusive term and, therefore, a global response.

A third noteworthy text is the Kampala Declaration. The document, primarily dealing with internally displaced people (IDPs) as opposed to refugees, details obligations to state actors in Africa as they pertain to displacement. Signatories to the Declaration are obligated to “incorporate their obligations… into domestic law by enacting or amending relevant legislation on the protection of, and assistance to, internally displaced persons.” They similarly must aim to “prevent and avoid conditions that might lead to the arbitrary displacement of persons.” While not relevant on a global scale, such a document gives a good framework for a potential regional response that would address the displacement of a significant number of displaced people due to environmental factors.

II. IN DOMESTIC LAW

The definition of the term “refugee” according to U.S. law is relevant to this discussion. It states that a refugee is someone who is “unable or unwilling to return to, and is unable or unwilling to avail himself or herself of the protection of, that country because of persecution or a well-founded fear of persecution on account of race, religion, nationality, membership in a particular social group, or political opinion.” It also clarifies that the term refugee “does not include any person who ordered, incited, assisted, or otherwise participated in the persecution.”

Policies relating to asylum are among the most politically fraught issues in the United States at the time of this writing, and a desire for greater enforcement played a role in the recent presidential campaigns. It could, therefore, feel backward to discuss expanding, not limiting, asylum protection for those impacted by the environmental crisis; this point is especially relevant considering President Trump’s disdain for climate-conscious policies and shifts in tenor from President Biden toward the end of his presidency, when he began to utilize authority to suspend entry into the United States. The final years of President Trump’s first term were already characterized by a steep decline in refugees admitted; 2019 and 2020 were both, at their times, the years with the fewest refugees admitted in history. “Until recently, the United States offered refuge each year to more people than all other nations combined,” the American Immigration Council wrote. “But the Trump administration drastically reduced the maximum number of refugees that could enter the United States.”

The United States has not adopted the Cartagena Declaration of 1984, which expanded the definition of a refugee to include those impacted by the climate crisis. While other states in the Americas have seen litigation on climate displacement through the Inter-American Court of Human Rights, the USA is not bound to that body. The court, in preparation for an advisory opinion, has received a handful of relevant amicus curiae briefs on the issue.

This development points us to a fundamental truth regarding the American approach to this crisis: the US's inconsistency in applying international perspectives on climate refugees. In 1984, a Yugoslavian man named Predrag Stevic, overstaying his visa to the United States, was facing deportation, and after reevaluating the need for a “clear probability of persecution,” the circuit court ruled that all he needed was a “well-founded fear of persecution,” not “clear probability.” Yet the Supreme Court overruled the circuit court, saying that there is a standard of “clear probability of persecution.” That ruling came in the face of a UNHCR amicus brief arguing against such a standard.

Yet only a few years later, the Supreme Court changed its perspective on the UNHCR’s definition and its relevance to American law. Nicaraguan Luz Maria Cardoza-Fronseca overstayed her visa, and the INS began proceedings to deport her, so she turned toward the notion of “well-founded fear of persecution on account of race, religion, nationality, membership in a particular social group or political opinion” to stay in America. Sandinistas, she said, tortured her brother and, by extension, would torture her as his relative. While she also looked at the “clear probability” standard as a potential legal mechanism for staying, the argument is significantly weaker.

It didn’t matter. The Supreme Court said, “[t]he standard [of being determined a refugee…certainly does not require an alien to show that it is more likely than not that he will be persecuted in order to be classified as a ‘refugee.’” The court was then “further guided by the analysis set forth in the Office of the United Nations High Commissioner for Refugees” that “the applicant's fear should be considered well founded if he can establish, to a reasonable degree, that his continued stay in his country of origin has become intolerable to him.” The idea of utilizing UNHCR documents as a guide toward crafting American asylum policy, while not intuitively novel, has major ramifications for the law.

These are but two examples of the inconsistency American law has showcased when regarding the UNHCR definition of refugee. A ramification of this issue is the confusion American courts continue to have when deciding individual cases. A Harvard Law note explains the issue as follows:

Some courts focus on the deference the Supreme Court has given to the UNHCR and its persuasive reasons for doing so and have directly used the UNHCR’s interpretations to formulate their own jurisprudence. Others, meanwhile, have ignored the UNHCR’s views, emphasized their nonbinding nature, and even criticized other entities such as the BIA for relying too much on the UNHCR’s interpretations.

In light of such confusion, it would be beneficial to readdress how courts look toward understandings of refugeeship.

IV. POLICY POTENTIAL

A. Initial COP21 Idea of CCDCF

COP21, or the Paris Agreement, hardly addressed forced migration, presumably because the emphasis was on emissions. Yet the omission was hardly a given. In preparation for the conference, there were debates and scholarship regarding creating a CCDCF, or a Climate Change Displacement Coordination Facility, within the UNFCCC. Wentz and Burger, for example, outlined “a broad array of considerations for decision-makers as they contemplate whether and how to proceed with the displacement coordination facility.”

This did not materialize. The Paris Agreement came and went with only slight mention of displacement, and so scholars have worked to fill the gap with theoretical renderings of what the CCDCF can look like. The most helpful text in this area comes from Phillip Warren, who concludes his paper with a couple of main areas of argument.

Firstly, he notes the importance of regional determination in policy coordination. Evaluating initially on a smaller scale, as opposed to large multilateral agreements, permits “some level of cultural integrity” for individuals suffering from displacement and gives a greater voice to smaller nations that may be lost in the shuffle of world powers. Preempting a counterargument positing that only those nations most guilty of emissions should be charged with refugee acceptance, Warren says such a move “might not represent the preferences of those actually displaced, which ought to remain a primary concern.” Those major powers, like the United States, may provide greater economic encouragement instead of actual acceptance of migrants themselves.

The second aspect that Warren notes is the short-term work. He suggests working with the Nansen Initiative to provide support to different states, along with coordinating studies on areas “most suitable for accepting displaced climate change migrants.” When nations inevitably work on regional or bilateral treaties, the CCDCF would coordinate between the relevant parties. Doing so would potentially enhance the robust nature of the treaties, especially given the likelihood that the United States will be a less reliable player in climate change work, given President Trump’s election.

B. Expansion concept

This phenomenon points us to a core truth about how legal entities have recognized refugees: “a conception of ‘refugee’ is not, strictly speaking, a definition.”

Indeed, much has been written about expanding the legal definition of refugees, both explicitly and implicitly related to environmental factors. More than half of all new displacements occurred because of extreme weather events, and yet the United States has “worked to… narrow the qualifying ground of protection.”

There are a handful of unique issues with defining “refugee” that, when addressed, can lead to a more holistic mode of international law. The first is a requirement of “motivated” persecution, the idea that the only modes of persecution that can create a refugee status are those done with intention. This places climate change in a unique spot, since acts generally only indirectly impact the climate. (One would assume that unleashing carbon emissions into the atmosphere is a side effect, not the end goal, of major polluters.) If a “man was being threatened by high tides and not by his government, he could not be considered a ‘refugee.’” Removing or even moderately altering the language of motivation (e.g., “as a result, direct or visibly indirect, of intentional actions”) can have a tremendous impact on who is affected by refugee law.

Another method that may prove effective is explicitly tying refugee law with human rights violations that come from climate change, beyond the question of the motivation of the primary actors. In doing so, climate change becomes relevant to the conception of refugees due to its blatant violation of certain rights declared in the Universal Declaration of Human Rights: “the right to a standard of living adequate for… health and well-being… including… housing.”

This all relates to the concept of “surrogacy” in international law. Surrogacy—the idea that international law is relevant to the status of a refugee—comes into play when ‘resort to national protection [of the country of origin] is not possible.’” If a country cannot be responsive to human rights concerns because of climate change’s impacts on its borders—even if not intentional—refugee law would be able to take effect.

C. Other

There remains a range of other methods that international law can use to address the issue. One of those comes from a 2008 article by Biermann and Boas called “Protecting Climate Refugees: The Case for a Global Protocol.” In the piece, the two argue that the current ad hoc national responses are insufficient and have failed to provide long-term solutions. A “Climate Refugee Protocol” would operate under the UNFCCC, establish legal recognition of climate refugees, and craft a burden-sharing system among different nations. 

The protocol comprises several major components. It would establish a formal definition of climate refugees, citing specifically those affected by rising sea levels (e.g., Tuvalu and the Maldives) and desertification (e.g., various areas of Africa). It would also stipulate clear rights regarding residency, working, and non-refoulement. It would also establish resettlement programs using funds provided by wealthier nations and operate under the UNFCCC. Biermann and Boas write that this protocol would focus on proactive, planned relocation, rather than responding in the moment.

Another option is for less vulnerable cities to function as “climate havens.” Americans are being pushed around the country because of climate change, and so less affected cities have taken proactive steps to respond to an influx of citizens. Some have noted that post-industrial legacy cities, like Cincinnati and Pittsburgh, may be growing in population because of climate change and have taken steps to welcome those sorts of people. Cincinnati has spent on “improving stormwater drainage systems” and “substantially increasing funding for public transit,” while also incentivizing “neighborhood climate resource plans.” Such infrastructure planning is key for responding to influxes that are still months or years away.

Lastly, the Fund for responding to Loss and Damage (FRLD) is an interesting source of funding and information for this issue. There have been publications already indicating how the FRLD can be responsive to the climate refugees, although the fund is, at the time of this writing, still very novel. In an era where international bodies have been stalling on some loss and damage funding, that novelty will be met with resistance. All decisions and functions of the fund should be mindful of the ways they impact the communities at hand, and the loss of physical homeland should never be compounded with the loss of non-physical entities, such as culture, language, and practices.

CONCLUSION

There is much work to be done on the issue of climate refugees. Their status in law varies from scale to scale and nation to nation, and a lack of clarity and streamlined direction makes resolving the issue immensely difficult. Yet, there are various avenues that different entities can use to help mitigate the impact of this uniquely destructive circumstance, and we hope and urge organizations to recognize the grave nature of this threat appropriately, allowing human communities to be treated with the respect and dignity they deserve, regardless of their location.