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Climate Refugees

This document discusses the debate around providing international legal protections for "climate refugees" displaced by environmental degradation or climate change. While some advocate expanding refugee law, others argue existing legal mechanisms could apply. The director of an international law project suggests looking beyond international law to regional and national solutions. Small island nations facing sinking due to sea level rise may be the most in need of assistance. Developing complementary temporary protection policies and analyzing examples like New Zealand's Pacific Access Category could help address gaps until international norms evolve.

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0% found this document useful (0 votes)
149 views10 pages

Climate Refugees

This document discusses the debate around providing international legal protections for "climate refugees" displaced by environmental degradation or climate change. While some advocate expanding refugee law, others argue existing legal mechanisms could apply. The director of an international law project suggests looking beyond international law to regional and national solutions. Small island nations facing sinking due to sea level rise may be the most in need of assistance. Developing complementary temporary protection policies and analyzing examples like New Zealand's Pacific Access Category could help address gaps until international norms evolve.

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Rosa Emma Clara
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© © All Rights Reserved
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Climate refugees?

Addressing the international


legal gaps Part II - Ben
Glahn
Looking to international law alone to solve the problem of climateinduced migrations is unwise. This article argues that a mix of
policies and a strengthening of state law are likely to be more
effective.
Across the international community, from humanitarian agencies to
policy organisations to national governments, the prospect of largescale climate-induced migrations is causing alarm. The potential for
population displacement in the order of hundreds of millions of people,
increasing in scale as the climate warms, has generated a sense that
urgent international action is needed, with many policy-makers,
researchers and academics suggesting that the international
community must put in place new kinds of international legal norms to
cope with the coming population shifts. The international agencies
responsible for managing current refugee issues, especially the United
Nations High Commission for Refugees (UNHCR), as well as many
national governments, however, remain highly reluctant to create such
new norms, especially any new categories that would include
references to climate or environmental refugees.

International debate
The problems with the term climate refugee,
discussed in the first part of this article (published in
the June 2009 issue of IBN), have thus been at the
heart of an international legal debate consisting of two main sides.
While some advocate either amending the 1951 Refugee Convention
or creating a new convention for this new category of migrants, others

recommend aggregating existing legal mechanisms and producing


something similar to the 1998 Guiding Principles on Internal
Displacement, but for environmental migrants.
This debate illustrates a fundamental challenge to international legal policy,
namely whether new mechanisms and institutions are needed to deal with
potential population displacement caused by climate change, or whether the
current international legal system is capable of producing evolving legal
norms that can fill gaps and solve major legal problems.

Out of this debate, two things seem clear: first, the term climate refugee is
good for raising public consciousness, but it has no legal meaning
whatsoever, and its use does not currently help to advance protection
mechanisms that might be provided for displaced persons fleeing
environmental degradation climate induced or not. And, secondly,
because international law does not include this potential group of people
within its existing definitions, and is unlikely to for some time, solutions may
have to be found outside the current international legal framework.
Jane McAdam, Director of the International Refugee and Migration Law
Project at the University of New South Wales in Australia, and a leading
figure in this debate, suggests that the international community needs to
start looking beyond international mechanisms, conventions and definitions
and instead look for regional and national solutions to specific challenges.
The current state of the international refugee regime began in an ad hoc
and regional way, McAdam says, suggesting that there is a precedent for
evolving norms through regional approaches. A lot of people who arent
lawyers tend to look to international law for solutions, but international law is
not necessarily going to provide solutions on the ground.
Where, then, might the international community look for potential solutions,
evolving norms and existing legal strategies that could point the way
towards greater advancements in this debate? What would these evolving
norms look like and include? What specific precedents exist? And how can

both international and domestic systems of legal rights, obligations and


instruments best be mobilised to protect them? To answer those questions,
it is important to consider where the majority of migrants are likely to come
from and where might they go.

People...tendtolooktointernationallawforsolutions,but[it]isnot
necessarilygoingtoprovidesolutionsontheground
Jane McAdam
University of New South Wales

Sinking island scenario


As well as those hotspots shown in the graphic on p49 opposite, there is
also the sinking island scenario, or low-lying islands at risk of disappearing
altogether because of sea-level rise set off by climate change. Seen from an
international legal perspective, this is perhaps the most troublesome case,
and the one that is most likely to warrant a near-term and concerted
international legal response. Today, there are 24 Small Island States, many
of which are vulnerable to flooding, increases in the salinity of their fresh
water reserves, loss of land from coastal erosion and sea-level rise. Many of
these island states Tuvalu, Vanuatu, Kiribati and the Maldives, all below
three or four metres above sea level at their highest point have begun
making plans for population relocation. The president of the Maldives,
Mohamed Nasheed, and the president of Kiribati, Ante Tong, have, in fact,
made recent headlines by announcing their intentions eventually to relocate
the entire populations of their islands to other countries. Mohamed Nasheed
has called this his countrys dry-land option and, earlier this year, on the
eve of his inauguration, told The Guardian: we can do nothing to stop
climate change on our own, so we have to buy land elsewhere. Its an
insurance policy for the worst possible outcome we do not want to leave
the Maldives, but also do not want to be climate refugees living in tents for
decades.

The problem is that under current international law these Maldivians would
have no international protections as climate refugees. Though there would
certainly be protections in place to deal with any immediate humanitarian
catastrophes, legal mechanisms to provide refuge in the classic sense
another place where populations could legally reside would not be
available. As Walter Klin, the UNs Special Representative for the Human
Rights of Internally Displaced Persons has said: the main challenge is to
clarify or even develop the normative framework applicable to persons
crossing internationally recognised state borders in the wake of suddenonset disasters, as a consequence of slow-onset disasters, in the aftermath
of the sinking of Small Island States, or in the wake of designation of their
place of origin as a high risk zone too dangerous for human habitation.

Road ahead
In Klins analysis, one that has received widespread praise for its clarity
and practicality, there are two main tasks ahead for the international
community. First, it must identify the specific rights and protections available
to those people that are forced to leave their sinking islands by sea-level
rise, including the particular responsibilities of the international community
when it comes to relocation. In this area, there is a clear gap in existing
international law and an important role for international legal organisations
to play in working to determine a recognised legal status for these potential
migrants. And, secondly, the international community needs to clarify its role
in relation to other kinds of environmental migrant that have crossed a
national border and are unable or unwilling to return. In this case, Klin
argues: exactly as we do for refugees, we should ask ourselves: under
what circumstances should persons displaced across borders by the effects
of climate change not be expected to go back to their country of origin and
therefore remain in need of some form of surrogate international protection,
whether temporary or permanent?
There is, however, another question worth asking, one that suggests the
potential for an intermediate step between current international law and the
development of an evolutionary normative framework such as the 1998
Guiding Principles on Internal Displacement, which many people point to as

an innovative way to create new international norms: what examples of


national, sovereign state law, bilateral agreements and regional instruments
could provide a roadmap for developing interlocking systems of
complementary and temporary protections? And, is it possible to aggregate
and analyse this substantial body of law in a way that could provide
practical options to national governments and advocacy tools for
international organisations when issues of environmental migration and the
need for humanitarian protection intersect?

Thecurrentfocus...onfindingsolutionswithininternationallaw...
shouldnotbetheonlyoption

Complementary and temporary protections


There are currently a variety of national and regional examples that could
be looked at to derive a roadmap or handbook on strategies for migration
policy, asylum policy and complementary and temporary protection in cases
of environmental migration. New Zealand, for example, has received a great
deal of popular press for supposedly agreeing to accept the entire
population of Tuvalu should the islands become overwhelmed by sea-level
rise. In fact, no such agreement exists. Instead, New Zealand has
implemented a new labour migration policy called the Pacific Access
Category (PAC), which allows 75 citizens of Kiribati, 75 citizens of Tuvalu
and 250 citizens of Tonga (including their partners and dependent children)
to establish residency in New Zealand each year. While no mention is made
in the PAC of any environmental issues, let alone climate change, accepting
migrants from at-risk Pacific islands can be seen as one aspect of important
new bilateral policies aimed at contributing solutions to these issues. This
example also points to a possible focus on labour migration policy that other
states, many of which may be hesitant to accept environmental refugees,
could use as a means to loosen their immigration gates for some atrisk

populations, without having to wade into the complicated chasm of


international legal definitions and asylum policy.
A second area of current state practice worth closer examination is the
inclusion of environmental migrants in official state immigration and asylum
policy. Currently, both Sweden and Finland recognise environmental
migrants as a category of person in need of protection, and, at least on
paper, offer protective measures for those people. In Sweden, for example,
the Aliens Act (2005:716) offers subsidiary protections for a person
otherwise in need of protection, who is outside the country of the aliens
nationality, because he or she is unable to return to the country of origin
because of an environmental disaster. On the surface, this legislation would
seem to offer a positive protection framework for populations displaced by
the effects of climate change. However, there are two major problems with
the Swedish legislation. First, according to the Division for Migration and
Asylum Policy at the Swedish Ministry of Justice, the legislation is based on
a preparatory foundation that limits its applicability to cases of sudden
environmental disasters and does not extend to cases of continuous
environmental decline meaning that populations displaced by storms
would be eligible for subsidiary protection but those displaced by drought
would not. And, secondly, no person has ever been granted subsidiary
protections in Sweden for environmental reasons, raising questions about
whether Sweden would be prepared to deal with a large number of cases of
environmental asylum, should they arise. In the Finnish Aliens Act
(301:2004), on the other hand, the legislation states that an alien may be
granted asylum if they are, in their home country, under threat of death
penalty, torture or other inhuman treatment or treatment violating human
dignity, or if they cannot return there because of an armed conflict or
environmental disaster. In the Finnish case, the preparatory framework
informing the legislation does not contain the same limitations as in the
Swedish case, and according to the Finnish Immigration Service, includes a
specific reference to cases when the aliens home environment has become
too dangerous for human habitation either because of human actions or as
a result of natural disaster. Although the Finnish Immigration Service
confirms that this specific aspect of the Finnish Aliens Act has been used
rarely, this kind of legislation points to the ability of individual states to

create immigration and asylum policy in ways that can provide legal
categories of protection for environmental migrants. The inclusion of human
causes may also point towards a way of ensuring that the legislation covers
cases where climate-change-induced displacement represents a clear
causality.
A third area of state practice that may require greater attention is in the area
of temporary protection, even where that temporary protection may start as
an ad hoc reaction to environmental events. In this area, the reaction to the
Asian tsunami in 2004 provides an interesting example. Following the
tsunami, the UNHCR recommended that all countries suspend the return of
failed asylum seekers to affected areas in India, Indonesia, Somalia and Sri
Lanka. As a result, Canada, Malaysia, Switzerland and the United States all
suspended returns to many if not all of these areas, and the United
States implemented a special temporary protected status for students from
affected regions, allowing them to remain in the country. Canada and
Australia also fast-tracked applications for immigrants from tsunami-affected
regions, offered permanent residents from these regions the opportunity to
expedite the procedure for sponsoring family members, and fast-tracked the
procedure for temporary visas.

Morethan600millionpeopleliveinlowlyingcoastalzones

US TPS legislation
Another example of temporary protection status worth closer examination is
the Temporary Protected Status (TPS) legislation enacted by the US
Congress as a part of the Immigration Act of 1990. The TPS is currently
operated by the United States Citizenship and Immigration Services, and
enables the Secretary of Homeland Security to designate citizens of a

specific country or territory for TPS protection. Currently, TPS protection is


designated for El Salvador, Honduras, Nicaragua, Somalia and Sudan, and
aliens from these countries, who are temporarily unable to safely return to
their home country because of ongoing armed conflict, an environmental
disaster, or other extraordinary and temporary conditions, are eligible to
stay in the United States and obtain work authorisation, although they are
not eligible for permanent resident status. In relation to potential climate
change displacement, the examples of Honduras and Nicaragua are most
significant, as both countries citizens were designated with TPS status on 5
January 1999, following the devastation caused by Hurricane Mitch. Since
the original designation, the US Government has extended TPS protection
to Honduras and Nicaragua at least seven times, because in both countries
there continues to be a substantial, but temporary, disruption of living
conditions and [they] remain unable, temporarily, to adequately handle
the return of [their] nationals, as required for TPS designations based on
this environmental disaster. According to the latest US Government
extension documents, there are currently 70,000 nationals of Honduras and
3,500 nationals of Nicaragua eligible for extended TPS.
Despite the protections offered under TPS, there are some notable
problems with the legislation that should be taken into account in thinking
about potential solutions for population displacements that may occur as a
result of climate change. Specifically, the TPS is a state-to-state, bilateral
agreement that requires three conditions be met. First, the affected country
needs to be in a temporary state of armed conflict, environmental disaster
or other extraordinary devastation that temporarily prevents the return of its
nationals. Secondly, the affected country must be unable adequately to
handle the return of those nationals. And, thirdly, the affected country must
make a formal request to the US Government to be designated as TPS
eligible. What this means is that there is a tremendous amount of discretion
that can be used to either designate a specific country for TPS status or not.
It also means that in cases where countries might be permanently
devastated, as in the potential submersion of Small Island States, the TPS
is unlikely to apply. And, finally, from a humanitarian protection perspective,
if the affected country is required to request protection for its citizens, and
that country is unwilling or uncooperative, the TPS would also not apply.

One need not look further than uncooperative and highly at-risk states such
as Myanmar to recognise the limits of TPS-type legislation.

Solutions outside international law


Nevertheless, TPS legislation, like targeted labour migration policies, and
specific provisions within national immigration and asylum policies that offer
subsidiary protections for environmental migrants, represents an important
policy option that is currently being used to offer real protections for
displaced populations. Each of these policies labour agreements,
immigration and asylum provisions, and temporary protections in fact
suggest that specific and practical mechanisms are available to national
governments and international organisations in thinking about how to deal
with the growing likelihood of climate change displacement. In this
environment, where the specific migratory consequences of climate change
remain unknown, the current focus in the international community on finding
solutions within international law, perhaps through some kind of expanded
definition of what constitutes a refugee, should not be the only option. The
international legal debate is unlikely to be solved in the near term. Instead of
looking to immediate changes in international law, the international
community might be better served by examining the substantial body of
existing sovereign state law and pressuring individual states specifically
those most likely to be the focus of the greatest number of potential
migrants to explore a mix of policies aimed at increasing labour migration
from at-risk states, incorporating specific asylum legislation for persons in
need of protection from environmental disasters and providing protections
for people temporarily
displaced for environmental reasons. It is this mix of the New Zealand
model, the Scandinavian model and the TPS model that may, as an
intermediate step, be able to provide the most robust and specific
protections for people displaced by climate change and other environmental
challenges, without having to change or adapt existing international legal
protections. In recognition of that, a stronger focus on strengthening state
law in this area, ensuring that a strong system of interlocking humanitarian
protections can be developed by states and regional alliances, may do more

to help create evolving legal norms than a strict focus on adapting


international law. Indeed, some international organisations, most notably the
Norwegian Refugee Council and its legal coordinator for climate change,
Vikram Kolmannskog, have been advocating similar approaches. These
efforts, and other like them, should be receiving greater attention from the
international legal community as they represent significant opportunities to
develop more robust protection and assistance mechanisms.
From what we currently know about the impasse in adopting new
international conventions, adapting existing ones and extending specific
protections to the problematic and as yet undefined category of climate
refugees, an intermediate step that focuses on different policy options at the
state level, perhaps even preparing a comprehensive handbook of current
best practices, could be an extremely important resource. With a clear
sense of the best available policy options, international organisations may
be able more effectively to pressure individual states and regional alliances
to deal with the coming challenges of population displacement. As a
transitional and pragmatic approach, this could represent a major
contribution to a complex and sure-to-be-persistent problem of international
law.

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