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Environmental migration has become an undeniable consequence of climate change in the last decade. Despite this alarming situation leading families and entire villages to leave their home, international law considerably fails to acknowledge this issue and to ensure effective protection for these individuals striving for a better life.
If you have turned on the television or read the newspaper lately you will probably be aware of the rapidly rising ocean levels due to climate change. Not only has it resulted in major floods and the gradual disappearance of small islands, but also, the forced migration of individuals living in those areas. Since 2008, an average 26,4 million people a year have had to flee their homes as a result of drought, windstorms, earthquakes and other environmental degradations affecting their access to basic needs such as water, food, and housing. For some, it is possible to move to a nearby area elsewhere in the country, but for others, the journey ends up being more challenging where there is no other choice than crossing the border and subsequently becoming ‘climate refugees’.
The UN encompasses this urgent situation through the 2016 New York Declaration for Refugees and Migrants aiming to adopt a ‘global compact for refugees’ and ‘global compact for safe, orderly and regular migration’. Nonetheless, the problem remains largely untackled in the international legal discourse. The cornerstone of international refugee law is the 1951 UN Geneva Convention and its 1967 Protocol aiming at protecting refugees from being returned to a country where their lives and freedom would be threatened. Surprisingly, climate refugees are not mentioned in the Convention, making it extremely difficult for these individuals to legally reside in a new country after being forced to leave their own. The Convention narrowly defines a refugee as an individual having a well-founded fear of persecution on the grounds of race, religion, nationality, membership of a particular social group or political opinion. The vague requirement of ‘persecution’ as well as these distinct categories results in a complete lack of protection for climate refugees. As Gina Clayton suggests, individuals falling into these categories are ‘the exception rather than the rule’. Indeed, environmental migrants are neither recognised as a category under the Refugee Convention, nor fit under the requirement of ‘persecution’. For example, the University of Sussex Centre for Migration Research reports that 200,000 people in Bangladesh become homeless each year due to river erosion, yet they are unable to legally resettle in neighbouring countries. Thus, while offering protection to some asylum seekers meeting these set requirements, the Convention disregards the problem of climate refugees and fails to protect a significant and increasing number of people facing life-threatening situations in their home country.
It is undoubtedly challenging for international refugee law to strike a balance between two opposing principles: state sovereignty (i.e. in this context, the discretion for States to decide who can remain on their territory) and the moral ethics to help those in need of protection. However, the real problem does not lie in the wide margin of appreciation left to States in deciding who should be returned to their home country, but rather in the narrow scope in which international law protects migrants generally. The UN should take an active step towards widening the categories of people that must urgently be protected under the Convention. Despite the discretion of states to interpret these provisions as they please, such guidance and explicit mention of climate refugees in the Convention would surely encourage more inclusive reforms at regional and national levels.
The outdated nature of the Convention could perhaps justify its lack of protection for this new category of migrants. However, the more recent Paris Agreement on Climate Change (2015) also completely ignores the issue. It simply puts obligations on States Parties to:
“respect, promote and consider their respective obligations on human rights, the right to health, the rights of indigenous peoples, local communities, migrants, children, persons with disabilities and people in vulnerable situations and the right to development, as well as gender equality, empowerment of women and intergenerational equity”
To put it simply, the agreement does not provide any positive measures regarding the critical situation faced by climate refugees which cannot be ignored as a significant consequence of global warming. States must take their responsibilities for this ongoing crisis as part of tackling the problem of climate change as a whole.
The UN warns that this situation can only increase and will affect more and more areas globally. Indeed, the international legal framework needs to expand its definition of migrants in a way that includes a diverse range of migrant experiences such as those of climate refugees. This will ensure that the populations impacted cataclysmically by climate change are duly protected in the international legal framework.