Climate Refugees
Climate 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
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
People...tendtolooktointernationallawforsolutions,but[it]isnot
necessarilygoingtoprovidesolutionsontheground
Jane McAdam
University of New South Wales
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
Thecurrentfocus...onfindingsolutionswithininternationallaw...
shouldnotbetheonlyoption
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
One need not look further than uncooperative and highly at-risk states such
as Myanmar to recognise the limits of TPS-type legislation.