There remains uncertainty on how severe global warming will be and its precise impacts on society but there is a 97 per cent consensus among experts that a rapid build-up of greenhouse gas is due to human activities. The Earth’s climate is gradually changing due to the continuous concentration of anthropogenic greenhouse gas (GHG) emissions into the atmosphere. The Earth’s surface temperature is getting warmer at a disturbing rate, and has become significantly warmer in the last 150 years after 10,000 years of relative stability. Most climate change projections are based on a two-degree Celsius increase in global mean temperature from the temperature in 1850, which has now been agreed by most States as the threshold for ‘dangerous’ climate change.
The consequences of climate change are more obvious now due to the increased prevalence of rising sea levels, extreme weather conditions, drought and desertification, and these consequences will have significant effects on the ecosystem, specifically on food security, migration, and health. The political, economic, and social capacity of a country, which includes its infrastructure, economic stability, and ability to help its population when in need, will affect individual’s ability to cope with the impacts of climate change, and therefore the impacts will be felt differently in different communities. In the 1980s and 1990s, climate change was primarily viewed as an environmental and scientific issue, but in 1990 the potential impacts of climate change on human migration were identified by the Intergovernmental Panel on Climate Change (IPCC). The IPCC stated that millions of people would likely be uprooted by shoreline erosion, coastal flooding, and agricultural disturbances (such as salination of crops), and that climate change might require consideration of ‘migration and resettlement outside of national boundaries.’
Ever since the IPCC first noted that ‘migration and resettlement may be the most threatening short-term effects of climate change on human settlements’,the assertion that climate change causes forced migration has often been made, but international evidence suggests that States are yet to agree on the links between climate change and migration.The relationship between climate change and forced migration has emerged as one of the most studied, but contested, fields of inquiry,and the lack of agreement on the links between climate change and forced migration explains why the call for the recognition of so-called ‘climate change refugees’ has been unsuccessful. Legally, there is no such thing as a ‘climate change refugee,’ and this point will be expanded upon later in this paper, but there is, however, evidence that people are moving in response to the effects of climate change. Cross-border displacement resulting from natural disasters and the effects of climate change has therefore been identified as a normative gap in the international legal protection regime.Determining how exactly climate change affects people’s decisions to move is crucial in determining how appropriate the call for the inclusion of people displaced by gradual or sudden environmental impacts within the refugee protection framework.
Link Between Climate Change and Migration
Relevance of Refugee Law
As discussed above, there is an ongoing debate and scepticism as to the direct link between climate change and displacement, but there is now mounting evidence which supports the plight of so-called ‘climate change refugees’ and demands attention from the international legal community.The term ‘climate change refugee’ is often used to describe those who will be forced to leave their homes because of climate change impacts. In this section, I will focus on the extent to which international refugee law may apply, and discuss why, by and large, it is an inappropriate framework for responding to the needs of the displaced.
The first official use of the term ‘climate change refugee’ was by Essam El-Hinnawi in a United Nations Environment Programme (UNEP) report, where he described people who are forced to leave their places of residence because of human or naturally induced environmental issues as ‘environmental refugees’. El-Hinnawi was not trying to make a legal argument for the extension of refugee law to cover those displaced for environmental reasons, but instead was using the term to highlight the potentially devastating effects of unchecked development and pollution. Since then the term has been used in almost any discussion involving the impacts of climate change and forced migration. While those displaced internally (within their own countries) can be protected using the United Nations Guiding Principles on Internal Displacement mechanism, or even by the national law of their own countries, those displaced by environmental impacts and who are crossing or wish to cross their countries’ borders currently have no legal basis for this type of movement in international law.
The term ‘refugee’ is defined in The 1951 Refugee Convention as a person who:
‘owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable, or owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence as a result of such events, is unable or, owing to such fear, is unwilling to return to it.’
While persecution lies at the centre of the refugee definition, all of its elements must be satisfied to achieve refugee status and a surprisingly large number of litigants have aspired to the historic designation of the world’s first official climate change refugee. There are a number of obstacles that make it difficult to argue that people displaced by the impacts of climate change can claim refugee status, and asylum claims have foundered on several bases: 1) the convention only applies to people who have already crossed an international border; 2) difficulty in demonstrating persecution; 3) difficulty in identifying a ‘persecutor’; and 4) the inability to meet the requirement that persecution must be for reasons of an individual’s race, religion, nationality, political opinion, or membership of a particular social group.
- International Border
As previously mentioned, most of the current and anticipated movement in response to climate change will be internal, and therefore will not meet the first requirement. The Refugee Convention does not facilitate direct resettlement from the country of persecution, thus even if the Refugee Convention were to be extended to include people displaced by climate change they would face this same limitation. Of the four requirements, this is by far the most straightforward and met, the case of Teitiota v Chief Executive of the Ministry of Business, Innovation and Employment provides an example of a situation where an individual, or a family in this case, met the requirement as they were across an international border on an expired work permit in New Zealand.
- Difficulty in Demonstrating Persecution
An immediate issue with trying to include those displaced by environmental impacts or degradation within international refugee law is characterising it as ‘persecution’. ‘Persecution’ entails violations of human rights that are particularly serious, either because of their inherent nature or because of their repetition (an accumulation of breaches, which individually would not be so serious but together constitute a violation). Whether something amounts to persecution is a question of degree and proportion, and is assessed according to the nature of the right at risk, the nature and severity of its restriction or impairment, and the likelihood of the restriction or impairment eventuating in the individual case.
There is nothing explicit in the Refugee Convention that would preclude recognition of environmental harm as ‘persecution’, and arguments have been made for characterising climate change as ‘persecution’. Christopher Kozoll argues that as ‘persecution’ is generally understood as serious threats to life, freedom, or human rights, and on this basis if a serious enough environmental problem exists, then an asylum seeker might claim that the threat is to her life and therefore ‘persecution’. Additionally, he argues that the impacts of climate change could be deemed ‘persecution’ on the ‘cumulative breaches’ grounds, in other words the accumulation of impacts due to climate change which lead to deprivation of the right to earn a livelihood, practice religion, or access normally accessible educational facilities amounts to persecution. Jessica Cooper argues that the governments of the developed world persecute millions of people by refusing to commit their collective resources to fight global warming. She holds that the individuals who are at greatest risk of inundation from sea level aren’t receiving assistance they need to protect their homes, and as the governments of developed countries continue to cause global warming and expose individuals to the consequences, government persecution occurs. She likens this inaction in addressing global warming to the Soviet Union’s persecution of its people by causing the Chernobyl nuclear plant explosion and in allowing the subsequent deterioration of its people’s environment.
The arguments made by Kozoll and Cooper could make sense to a casual observer with limited familiarity with international refugee law, but I do not find these arguments to be very convincing. Although climate impacts such as rising sea levels, salination and severity of extreme weather events (storms, floods, etc.) are harmful, and sometimes fatal, they do not meet the threshold of ‘persecution’ as is currently understood in international law. Additionally, in refugee law, for deprivation to move beyond a non-realisation of a right in a manner than amounts to persecution, a discriminatory element is required. It needs to be shown that the persecutor is acting in such a way because of an attribute of the persecuted, it cannot simply be a random attack. There must be a differential impact upon the individual or individuals claiming persecution as against the rest of society as a whole. As the New Zealand Refugee Status Appeals Authority (RSAA) affirmed in relation to refugee claims from Tuvalu, where they stated that they could not be victims of ‘persecution’ (and therefore could not be refugees) as they had not been treated differently from anyone else:
“All Tuvalu citizens face the same environmental problems and economic difficulites… the appellants are unfortunate victims, like all other Tuvaluan citizens, of the forces of nature…”
In summary, it is not simply harm to an individual or deprivation of a right or freedom that renders a person in need of international protection; the level of harm or deprivation must reach the level of ‘persecution, it must be on account of one of the five Convention grounds, and the individuals government must be unable or unwilling to shield that person from such persecution. Accordingly, a refugee claim based generally on the broad impacts of climate change will not succeed in amounting to ‘persecution’ for the purpose of the Refugee Convention.
- Difficulty Identifying a Persecutor
Yes, climate-induced environmental impacts may lead to threats to life or freedom, but who will be assigned responsibility for these threats? Jessica Cooper argues that the blame should be placed on developed countries and industrialized nations, as they knowingly contribute to the degradation of the environment, and even goes as far as to name Organization of Petroleum Exporting Countries (OPEC) as countries to blame. It is more than likely that developed, industrialised countries shoulder the majority of the blame for climate change impacts, and ethically Jessica Cooper’s argument that developed countries should be considered the persecutor’s in the context of refugee law makes sense, but difficulty in law, however, remains that of proof. How would it be possible to prove carbon emissions by United States-based industry are responsible for the environmental degradation in the Pacific State of Tuvalu? Establishing causation in line with legal principles in this regard will be very difficult
In addition to the issue of establishing causation, those attempting to use the Refugee Conventionin relation to climate change impacts completely reverse the traditional refugee paradigm. Standard Convention refugees are fleeing their own government or actors that they government is unwilling or unable to protect them from. A climate change refugee claimant, fleeing from the effects of climate change, is seeking refuge from, but within, the ‘international community’ and ‘industrialised countries’ whose failure to reduce greenhouse emissions has led to their predicament . In other words, climate change refugee claimants are seeking refuge inside the same countries that they are claiming as their persecutors. For example, the governments of Kiribati and Tuvalu are not responsible for climate change, and these governments have even shown a willingness to protect their citizens (their ability to do so is unclear), but claimants are seeking refuge from these countries. The de-linking of the actor of persecution from the territory from which flight occurs is a complete reversal of the traditional refugee paradigm.
The Australian Refugee Review Tribunal (RRT) has firmly rejected the argument that developed, industrialised countries can be considered persecutors to meet the Convention requirement:
“There is simply no basis for concluding that countries which can be said to have been historically high emitters of carbon dioxide or other greenhouse gases, have any element of motivation to have any impact on residents of low lying countries such as Kiribati, either for their race, religion, nationality, membership of any particular social group or political opinion.”
- Inability to Meet Convention Requirements for Persecution on the Grounds of an Individual’s Race, Religion, Nationality, Political Opinion, or Membership of a Particular Social Group
Finally, without conceding climate change qualifies as ‘persecution’, even if it were to qualify as persecution, the Refugee Convention requires that persecution be ‘for reasons of’ and individual’s ‘race, religion, nationality, membership of a particular social group, or political opinion. It will be difficult to frame the impacts of climate change in a way that would meet this requirement as the impacts of climate change are largely indiscriminate, and are not tied to particular characteristics such as a person’s background or beliefs. Climate change may adversely affect some countries more than others by virtue of their geography or ability to counter environmental harms, but this is not premised on the race, religion, nationality, political opinion or social group of the inhabitants of these countries.
Jessica Cooper argues that because through the 50+ years of the Refugee Convention’s history the ‘for reasons of’ requirement has been met on the basis of politics, race, or religion, and this has imposed an artificial limitation on what will satisfy the ‘for reasons of’ requirement, which has led to an inaccurate understanding this requirement. She argues the ‘social group’ basis for persecution is the broadest of the five Convention grounds for persecution and acts as a ‘catch-all’ for individuals that do not fit into persecution for reasons of race, religion, nationality, or political opinion, and bases this argument on the belief that the ‘social group’ category was included in the Refugee Convention specifically to protect refugees persecuted for unforeseen reasons. She states that environmental refugees are persecuted for reasons of their social group, which in this case is the social group of individuals who lack the political power to protect their own environment, and it is on account of this disempowerment that these people become victims of environmental degradation. Christopher Kozoll takes a slightly different approach and argues that environmental harms are so widespread and affect entire segments of populations, therefore individuals should be able to claim that the severity of environmental harms creates a group, which is based on the well-founded fear of persecution. He argues, that under this standard, it may be possible for an individual to claim persecution (environmental degradation) targets their entire racial or ethnic group.
The argument that people affected by the impacts of climate change could constitute a ‘social group’ would be difficult to establish, because the law requires that the group must be connected by a fundamental, immutable characteristic other than the risk of persecution itself. This goes directly against Jessica Coopers’ argument as the only fundamental, immutable characteristic that environmental refugees share is the risk of facing environmental impacts. Additionally, Kozoll’s argument struggles because as McHugh J explained in Applicant A v Minister for Immigration and Ethnic Affairs although a shared fear may help to define a group, it is the particular attribute ascribed to them, rather than the persecutory acts themselves, that serves to ‘create’ them as a particular social group:
“the actions of the persecutors may serve to identify or even cause the creation of a particular social group in society. Left-handed men are not a particular social group. But, if they were persecuted because they were left-handed, they would no doubt quickly become recognizable in their society as a particular social group. Their persecution for being left-handed would create a public perception that they were a particular social group. But it would be the attribute of being left-handed and not the persecutory acts that would identify them as a particular social group.”
Therefore, the argument that the shared fear of persecution itself creates a social group fails. The individuals must share a fundamental, immutable characteristic that is the reason for the persecution, which as discussed earlier will be very difficult to establish in cases of climate change impacts as climate change is indiscriminate.
Senior courts have made it very clear that the Refugee Convention does not apply to victims of natural disasters or people in search of people in search of better living conditions, even though ‘both of these cases might seem deserving of international sanctuary’ and this is so ‘even when the home state is unable to provide assistance’. This is due to the Refugee Convention’s limited scope, which is largely due to the requirement of ‘persecution’. This limitation is highlighted by the High Court of Australia, the requirement of ‘persecution’ limits the Convention’s “humanitarian scope and does not afford universal protection to asylum seekers. No matter how devastating may be epidemic, natural disaster or famine, a person fleeing them is not a refugee within the terms of the Convention” and people fleeing “natural disasters and bad economic conditions”fall outside the Convention.
There are certain situations in which the impacts of climate change might amount to persecution for a Refugee Convention reason, but these reasons are due to government action actions in response to climate impacts rather than climate change itself. Some situations which might amount to persecution could include:
- ‘victims of natural disasters flee because their government has consciously withheld or obstructed assistance in order to punish or marginalize them on one of the five [Convention] grounds’;
- a government induces famine by destroying crops or poisoning water, or contributes to environmental destruction by polluting the land and/or water; and
- a government refuges to accept aid from other States when it is in need, such as in the aftermath of a disaster.
While individuals in these situations would be refugees due to impacts of climate change, it is not actually the climate change impacts themselves that allow them to fall within the Refugee Convention, but rather it is the actions (or lack of actions in relation to iii.) that allow the individuals to fall within the Refugee Convention, and therefore falls outside the scope of discussion of this paper.
The plight of individuals seeking to claim the status of the world’s first ‘climate change refugees’ is very real, but the argument that the Refugee Convention is a solution to their problems is unfounded. As the House of Lords have observed, the Refugee Convention does not provide protection is all cases of displacement:
“the risk, however severe, and the fear, however well founded, do not entitle him to the status of refugee. The Convention has a more limited objective, the limits of which are identified by the list of Convention reasons”.
In addition to the attempted use of the term ‘climate change refugee’ being pre-emptive and inaccurate legally, it is often considered offensive in nature to those the international legal community is attempting to apply it to. For the most part, citizens of Kiribati and Tuvalu resoundingly reject the label ‘climate change refugee’, as they see it as invoking a sense of helplessness and lack of dignity.AS the President of Kiribati explained:
“when you talk about refugees – climate refugees – you’re putting the stigma on the victims, not the offenders. We don’t want to lose our dignity. We’re sacrificing much by being displaced, in any case. So we don’t want to lose that, whatever dignity is left. So the last thing we want to be called is ‘refugee’.”
Part of their discomfort stems from the fact that most refugees flee from their own government, but in this case the people of Kiribati and Tuvalu have no desire to escape from their governments or countries for that matter, as discussed earlier it is the actions of other States which will ultimately force their movement. Most of their discomfort with the term stems from the fact that refugees are not looked at as people with resilience, who have fled situations of violence or conflict, they are viewed as victims, waiting for help in cams and relying on handouts. Men have described the label of ‘refugee’ as signalling a failure on their behalf to provide and protect their families, citizens of Kiribati and Tuvalu want to be seen as active and valued members of the community, if they were ever to make the move New Zealand, Australia, or elsewhere. For the most part, these issues are outside the scope of this paper as they highlight some of the major issues with international refugee law,but I though raising these issues would help to emphasize the Refugee Convention’s inappropriateness with regard to those displaced by climate change.