In recent years, tens of thousands of people have fled Central American countries like Guatemala and Honduras, leaving not just because of gang violence but also drought and extreme weather conditions that have made it impossible to grow crops.
In Bangladesh, hundreds of thousands of people are displaced every year by larger and more unpredictable monsoon floods, a trend throughout the region, which the World Bank estimates over 8 million people have left in recent years.
In West Africa’s Sahel region, heavy floods and food shortages have combined with violence and instability to drive people to other regions. In the Caribbean, massive hurricanes regularly push residents out of their homes.
Far from being a future concern, climate change-driven migration and displacement are already taking place. A majority of the 30.7 million people displaced in 2020 were fleeing floods, wildfire, drought or heat waves, according to a report released last week by the International Federation of Red Cross and Red Crescent Societies. And these trends are only likely to increase in the next decades.
According to a World Bank report released in September, more than 200 million people are likely to migrate over the next three decades because of extreme weather events or the slow degradation of their environments. Most are displaced within their home country. But experts say that about a fourth of the people who flee will cross borders, seeking a better life in a different land.
But international law has no clear mechanism to process, address or facilitate climate migration. The 2015 Paris climate agreement called for a task force on climate migration, and the 2018 U.N. global compact for migration cited climate change as one factor in outlining the need for protection of those on the move. Yet climate migrants do not easily qualify as refugees, and so are not granted the same rights and protections.
The 26th gathering of the Conference of the Parties to the United Nations Framework on Climate Change that began in Glasgow on Oct. 31 includes a host of events addressing the connections between climate change and migration. There are discussions with people already displaced by climate change, presentations on mitigation practices and research from countries and regions already experiencing mass displacement.
But none of these events are designed to come up with or help implement legal mechanisms to protect climate migrants. And the official schedule of events for COP26 does not mention migration. This absence, legal and climate migration experts say, is evidence of a lack of international will to find protective solutions for climate refugees.
Little or No Protection Under Existing Laws
The 1951 Refugee Convention has been signed by most countries in the world. It defines a refugee as 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.” Hurricanes, floods, droughts or the inability to grow crops do not fit neatly within this definition.
“Currently climate displaced people enjoy very limited protection within the law,” said Ama Francis, a lawyer and climate displacement project strategist at the International Refugee Assistance Project. (Francis uses “they” pronouns). “There’s just about nothing the law says about what governments are required to do to protect that person.”
Some countries have broadened their own definition of refugee law beyond the 1951 convention. For example, the African Union’s Refugee Convention, signed in 1969, expanded the definition of refugee to include every person who is compelled to leave home “owing to external aggression, occupation, foreign domination or events seriously disturbing public order.” Legal scholars have argued that the clause about public order could be used for those fleeing climate change disasters. The 1984 Cartagena Declaration on Refugees, signed by several countries in Latin America, similarly includes a clause about public order.
However, Francis said, even under the 1951 convention, some climate migrants could qualify as refugees: “There are climate displaced people that already meet the refugee definition,” they said. “So even without amending the Geneva Convention, there are things governments could be doing to more fairly apply asylum and refugee law to protect people right now.”
In 2015, Ioane Teitiota urged New Zealand to do just this. A native of the island nation of Kiribati, Teitiota and his family applied for asylum in New Zealand, on the grounds that their home country had become uninhabitable as a result of pollution and rising sea levels. New Zealand rejected the application, and deported them. Teitiota filed a complaint with the U.N. Human Rights Committee, and in January 2021, in its first ruling regarding someone seeking asylum because of climate change, the committee said that in the future, countries “may not deport individuals who face climate change-induced conditions that violate the right to life.” The rulings of the committee are not internationally binding, however.
The Paris Agreement is Key
Consecutive United Nations climate conferences and migration treaties have stressed the need for legal protections for people displaced due to climate change and laid out principles for these protections. But they have stopped short of agreeing on any concrete or binding measures to address climate migration.
After several climate conferences in the early 2000s, for instance, Norway and Switzerland in 2011 created a process called the Nansen Initiative, which created a “protection agenda” for people displaced by climate change. This agenda was endorsed by 109 nations in 2015, but it is not binding on the nations that signed onto it. In 2016, however, several countries created the Platform on Disaster Displacement, an initiative that works with states to implement the recommendations of the agenda.
The Paris Agreement in 2015 also came up short in providing or suggesting concrete legal protection for those fleeing climate change. Migration and mobility are largely left out of the document, though the accord did lead to the creation of a Task Force on Displacement which was called on to create recommendations on how countries could “avert, minimize and address displacement” related to climate change. The task force delivered recommendations at the U.N. climate conference in 2018, which were endorsed by the conference, though the endorsement did not create any legal structures to implement the recommendations.
Still, Atle Solberg, the head of the Secretariat of the Platform on Disaster Displacement, said that the Paris Agreement was vital to addressing issues of displacement, in that it is a binding treaty that commits countries to reducing emissions.
“The Paris Agreement is fundamentally important for this area of work,” he said. “Insofar as if you are able to reduce greenhouse gas emissions that will have a huge positive impact on those already displaced and avoiding that people need to move in the first place.”
Some international migration agreements have also focused on issues of climate displacement. In 2018, the U.N. General Assembly endorsed the Global Compact for Safe, Orderly and Regular Migration. The compact is a non-binding agreement, but it mentions climate migration directly, urging nations to work to mitigate the factors that force climate migration, to implement the recommendations of the Nansen Initiative, and to “identify, develop, and strengthen” legal solutions for climate migrants, such as humanitarian visas, private sponsorships and temporary work permits.
But these protections will have to be determined locally. “States in general are not really interested in having a global, binding framework on cross-border disaster displacement,” said Solberg. “There is no appetite for that.”
In addition, Solberg said he wondered if having a binding global standard was even a good idea, given that the circumstances people are leaving are very different and the challenges are very different. Solberg gave as an example the differing needs of people fleeing an immediate disaster like a hurricane and people fleeing years of heat and environmental degradation. “It’s hard to think of one global tool, both what that could be, and if that really in effect could protect these people,” he said.
Barring comprehensive international approaches and global standards for legal protections, many experts are looking to regional approaches to climate migration.
The report published by the International Federation of Red Cross and Red Crescent Societies this week called on countries to “integrate climate-related displacement into national laws, policies and strategies,” as one of the key recommendations in addressing problems of climate displacement.
At the International Refugee Assistance Project, one of the things Ama Francis focuses on is finding existing legal structures and pathways that could provide protection to climate migrants. They have written about the benefits of including what are called Free Movement Agreements—compacts between countries that allow people to move more liberally, sometimes without visas, and include provisions for work or other social rights. (The members of the Schengen Zone in Europe, for example, have signed a free movement agreement).
Francis found that these agreements in the Caribbean allowed people displaced by hurricanes in 2017 to move more safely, to access labor markets and sometimes to stay in a new location long-term. Francis believes that the use of Free Movement Agreements as part of the policy response to climate migration can bypass political hurdles to creating a new international treaty and provide stable solutions for those on the move.
“In the most ambitious version of this proposal, you would have countries with greater resources agreeing to participate in freedom of movement agreements with countries that have fewer resources,” Francis said, noting that most migration occurs within a person’s home region. “I think the question is, ‘How can we think about regional solidarity in a way that includes countries that are in very different economic situations?’” In order to be effective, wealthy countries like Australia would have to include smaller, poorer island nations in a free movement agreement.
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The Platform for Disaster Displacement protection agenda lists a host of other national legal options that could be used to provide entry and protection to climate migrants: granting special disaster or humanitarian visas, granting temporary stay to people fleeing climate disasters and reviewing how asylum law can be applied differently, among others.
The United States also is looking into some legal pathways to provide protection for climate migrants. This month, the White House released a report on the impact of climate change on migration. The report focused largely on the need to provide aid to countries with greater impacts from climate change, but it also said the United States would need to find better mechanisms to protect those displaced by climate change. One possibility suggested in the report was reforming the current Temporary Protected Status (TPS) statute, which allows people from certain countries experiencing armed conflict or environmental disasters to temporarily live and work in the United States, so that it allows more people to enter the country and stay longer.
Beyond these recommendations, there are other provisions in regional and national laws for people fleeing the effects of climate change. In January 2021, an appeals court in Bordeaux granted a man from Bangladesh an “ill foreigner” residence permit in France, taking into account not just his asthma and sleep apnea but the dangerously high levels of air pollution in his home country. His lawyer said that it was probably the first time the environment had been considered in a case of that kind in France.
But all these regional solutions require political will, especially the political will of richer countries with more resources that are less likely to be affected by the worst impacts of climate change.
A Lack of Political Will
“To really address the problem, some countries need to step up and agree to take in large numbers of people displaced by climate change,” said Michael Gerrard, a climate litigator and the director of the Sabin Center for Climate Change Law at Columbia Law School. In 2015, Gerrard wrote an op-ed in the Washington Post suggesting that industrialized countries accept a number of people displaced by climate change proportional to how much a country has contributed to the emissions causing global warming. In his estimate, this would have the United States taking in 27 million people by 2050.
“The math is very easy but the politics are inconceivable,” said Gerrard.
He said that this year’s U.N. climate conference is meant to address the root causes of climate displacement by holding industrial countries to commitments to reduce emissions and stepping up aid for regions that are most affected.
These will already be difficult targets to hit, Gerard added. “The political difficulty of international migration is so great that this just isn’t being seriously touched by the U.N. climate negotiations,” he said. “The U.N. climate negotiations have an extraordinarily difficult time with their current agenda without adding even more difficult items.”
The U.K. Cabinet Office organizing this year’s U.N. climate conference did not respond to multiple requests for comment on this year’s agenda and the issue of climate migration.
Amali Tower, the founder and executive director of the research and advocacy nonprofit Climate Refugees, called this year’s conference “a manifestation of the lack of political will to address the injustice of climate change.” She is frustrated, she said, with the continued focus on controlling emissions, and cited this year’s climate conference as an example.
“We don’t need COP26 to be a redux, we should have met those pledges, we should now talk about how that’s insufficient,” she said.
There should be much more focus, she added, on the need for financing for poorer, more-affected countries as well as the legal protection issues for those displaced.
“How much data and evidence and pledges and facts and climate tipping points do we need before we are willing to address the truth of this?” she said.