The Legal Challenges of Climate Migrants

By Cameren Lofton on February 7, 2020

In my last blog post, I began a series of posts on the issue of climate migration by discussing some of its causes and predicted effects. This week, I will be highlighting some of the complex legal challenges that climate migrants face and how these challenges are being addressed at both national and global levels.

UN Ruling

Last month, the United Nations Human Rights Committee (UNHRC) handed down its first decision on an appeal from someone seeking asylum from the effects of climate change [1]. The defendant, Mr. Teitiota, comes from the Pacific island of Kiribati, which is experiencing sea-level rises that will likely render the island uninhabitable over the next few decades, and he argued that rising sea levels were resulting in “violent land disputes” due to decreases in the amount of habitable land. Mr. Teitiota’s request for asylum was denied by New Zealand in 2015, and he filed a complaint with the UNHRC on the basis of a violation of his right to life [2].

On the one hand, the UNHRC ruled against Teitiota and stated that New Zealand did not violate his right to life because “enough protection measures were put in place to keep [him] safe” [3]. On the other hand, the Committee used this ruling to state that “countries may not deport individuals who face climate change-induced conditions that violate the right to life” and included a statement that addressed the harm that can come from climate change through both slow-onset and sudden-onset climate-related events [4]. While this decision is not legally or formally binding for other countries, it sets a legal precedent that can be used by lawyers in the future. Furthermore, this decision by the UNHRC applies pressure on other countries to incorporate provisions for climate-related claims to asylum into their immigration policies [5].

A “Climate Refugee” Status?

“A refugee… is someone who is unable or unwilling to return to their country of origin owing to a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group, or political opinion.”

This is the formal definition of a refugee from the 1951 Geneva Convention on Refugees and is used to determine the validity of claims to asylum. As you can see, there is no reference to people who are fleeing natural disasters or other slow-onset climate phenomena. While the UN Guiding Principle’s definition of an Internally Displaced Person (IDP) does acknowledge people fleeing natural disasters, there is “no legal framework governing ‘climate refugees’” [6]. Although it is used academically and colloquially, “climate refugee” or “climate migrant” is not a legal term and a legal application of this term could be confusing and possibly counterproductive to the goal of increasing protection for this class of migrants.

One challenge to establishing an umbrella status for climate refugees is the fact that climate change is often not the only reason that people migrate; climate change exacerbates pre-existing problems and increases the need and desire to move. Therefore, it would be difficult for someone to prove that climate change, especially slow-onset events, caused them to migrate [7].

Another challenge lies in the fact that much of the migration motivated by climate change is internal: many people remain within the confines of their own countries, so forging a new status still would not address the needs of these IDPs [8]. However, small island states do not have the same capabilities as other larger countries when it comes to internal relocation, and their inhabitants will likely be forced to seek refuge in other countries as a result of climate change [9]. Lastly, a special legal status for climate refugees or people seeking asylum for climate-related reasons could result in a limited definition of climate refugees that still excludes some groups of people who are unable to establish direct links between their migration and changes in the climate [10].

Addressing Challenges

Although there is no current legal or international framework that handles environmental migrants, many countries and organizations are aware of the effects of climate change on migration and are working to address the challenges that come with this issue.

For example, the 2015 Paris Climate Conference mentioned climate displacement in their documents for the first time in the history of formal talks and negotiations related to climate change. As a result of this conference, the Executive Committee on Loss and Damage established a task force on climate displacement in March 2017 and held a stakeholder meeting in May 2018 to “make recommendations for integrated approaches to address climate displacement”. According to the task force, they have found several weak points in relation to international law, implementation, and funding and presented their findings at the 2018 Climate conference in Poland [11].

Countries in the Caribbean offer another example of how to incorporate climate migrants into immigration policy. Free Movement Agreements between certain member states in the region loosen restrictions on migration and grant important benefits and protections to people who have been displaced by hurricanes [12]. While these programs are helpful, they usually only offer temporary assistance and do not address some of the deeper issues at play.

An important part of the discussion surrounding climate migration is not only determining how to incorporate climate migrants into institutional and legal frameworks but also devising proactive policies that address climate change in the areas most affected by it. For example, a provision in the 2015 Paris Agreement on loss and damages details an exchange of resources between wealthy countries and developing countries as compensation for the disproportionately negative effects that wealthy countries have on the environment [13].

In thinking about how to combat the various effects of climate change, our national and global institutions must consider both preventive and adaptive policies and strategies. In the next post, I will focus on the specific effects of climate change on migration patterns in rural areas in the country of Guatemala.



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