Studies indicate that there could be up to 1.2 billion people forcibly on the move due to climate change mid-century. Although most displaced people will move within the borders of their own countries, becoming internally displaced persons (IDPs), or regionally to neighboring countries, many people will also be forced to cross borders in search of security and opportunities unavailable in their home countries, where their governments lack the capacity to respond adequately to climate disasters or climate change effects are so extreme that they simply make areas uninhabitable. Despite this increasingly prevalent reality and its global implications, there remains a vast gap in international law around protecting persons displaced by climate change who are forced to cross borders. Crucially, human rights frameworks can present a viable pathway for extending the scope of legal protection afforded to these climate refugees.
The below report will propose a rights-based approach for addressing the legal protection gap, which takes as its point of departure the understanding that there is no way to address climate refugeehood without recognizing the underlying human rights at play. It adopts an environmental justice perspective with respect to the common but differentiated responsibilities of Global North and South governments to take measures to implement this approach.
The central findings of the report are presented through and further discussed in light of a unique table illustrating the connections between climate change-induced displacement and violations of human rights demarcated in international and regional agreements, along with an analysis of past and ongoing legal cases centered around such connections, which draws from the Earth Refuge Legal Database.
Alongside Dr. Camila Bustos, Assistant Professor of Law at the Elisabeth Haub School of Law at Pace University, and Monica Iyer, Clinical Fellow and Senior Lecturing Fellow at Duke University School of Law, along with other experts in the field, Earth Refuge was invited to submit a written brief to the Senate Committee for their review.
“An atlas of human suffering,” a “damning indictment of failed climate leadership” and a “survival guide for humanity” – these are a few of the words that United Nations Secretary-General António Guterres has used to refer to the Intergovernmental Panel on Climate Change’s (IPCC) Sixth Assessment Report (AR6), released March 20, 2023.
While the full report has not yet been released, the published Summary for Policymakers alludes to the increasing certainty of the UN’s leading scientific body on the link between climate change impacts and human mobility, which has been evolving throughout the five preceding IPCC Assessment Reports, published since 1990. Just as those that have preceded it, the summary will play a key role influencing the political agendas of governments on climate change.
What does the AR6 say about climate-related migration & displacement?
The summary specifies that climatic and weather extremes are increasingly driving migration, involuntary mobility and disaster displacement in almost every region of the world, noting the disproportionate impacts of climate-related mobility for Small Island Developing States (SIDS). These findings are consistent with the realities that climate and disaster-related displacement are occurring across the globe, with an average of more than 20 million people displaced internally related to extreme-weather events each year since 2008, with South Asia, East Asia and the Pacific being the hardest hit regions.
The report emphasizes that exposure to climate-related hazards, which increase the vulnerability of frontline communities to a host of displacement drivers – such as floods, storms, droughts and sea-level rise – is set to worsen with every 0.5℃ of warming. Weather extremes are expected to increase in frequency and intensity, yielding to greater climate variability, posing serious threats to crop productivity, related livelihoods and food security across local and global scales. Heatwaves, for example, will likely occur 4.1 times more frequently with 1.5℃ of warming.
Overall, the summary highlights that climate change impacts on people and ecosystems are already more widespread than expected and future risks will escalate rapidly as temperatures rise – which is already having, and will only continue to have devastating impacts for the forced displacement of increasingly vulnerable communities.
While the 2013/2014 IPCC Fifth Assessment Report (AR5) offered a nuanced approach into the ways in which migration can be – and for many in several parts of the world already is – a viable adaptation strategy, the AR6 Summary for Policymakers does not thoroughly cover migration as a form of adaptation. Instead, the summary briefly mentions that voluntary migration may reduce exposure to climate-related risks, if facilitated in a safe and orderly fashion and cautions that migration should not always be considered a form of adaptation. The report points out that migration, relocation and resettlement can be considered forms of response to climate change, without diving deeper into ongoing policy debates which highlight the opportunities and problematics of migration as a form of adaptation.
Migration as a form of adaptation to climatic and environmental impacts? Framing the issue.
On one hand, the caution imbued within the IPCC’s AR6 approach to migration as a form of adaptation speaks to the needs and aspirations of many frontline communities to voluntarily remain in place and adapt (voluntary immobility), and the importance of climate adaptation policies which empower people to do so. On the other hand, growing evidence of migration as an adaptation strategy around the world brings the issue into the spotlight. For example, migration is increasingly used as an adaptation strategy in the case of the millions of India’s landless Dalits, the victims of desertification in northeast Brazil and the historic floods in Pakistan, exposing the escalating effects of climate (in)justice.
While the Longer AR6 Report calls upon states and key stakeholders to work in cooperation to remove barriers by opening up safe, orderly and humane pathways for migration in the context of climate change and disasters, it fails to examine the ways in which such measures can be linked to states’ broader adaptation and resilience-building efforts. This is crucial because the vast majority of policy developments dealing with human mobility in the context of climate change have placed greater emphasis on reducing migration and displacement drivers through mitigation and adaptation efforts, and less on facilitating movement explicitly. Further, despite that climate change impacts pose serious threats to the enjoyment of human rights, as has been recognized within the Paris Agreement and the UNFCCC, the IPCC summary only briefly allied to human rights and the need for rights-based approaches to address the adverse effects of climate change, without mentioning rights in the context of climate-related migration and displacement.
What could AR6 findings and shortcomings mean for the rights-based protection of displaced persons?
The AR6 Long Report underscores that rights-based, socially-just and redistributive approaches to mitigation and adaptation tend to lead to greater outcomes for reducing vulnerability and exposure to climate risks, enhanced resiliency and more sustainable development. However, the document fails to explicitly link these findings to questions of climate-related mobility and displacement. As protecting and upholding the rights of all persons in the context of climate change poses a series of challenges for climate change, disaster risk reduction, migration and sustainable development policies, an enhanced focus on these links to the nuanced debates on migration as a form of adaptation and voluntary and involuntary immobility is urgent and should not be overlooked.
Under international human rights law, states hold obligations to protect the rights of individuals. These include basic rights to food, housing, employment and education, access to health, water and sanitation, gender equality and Indigenous rights, as well as the right to migrate and seek asylum. Recent and momentous developments, such as the United Nations resolution declaring the human right to a clean, healthy and sustainable environment and the historical resolution adopted by consensus at the United Nations General Assembly (UNGA) requesting an advisory opinion from the International Court of Justice (ICJ) on the obligations of States with respect to climate change, are catalysts for rights-based climate action on multiple levels. In line with the Paris Agreement, governments should integrate their existing human rights obligations and commitments into national climate and broader environmental policies, particularly through their National Adaptation Policies (NAPs) and Nationally Determined Contributions (NDCs).
States must not miss the opportunities for scaling up climate action as outlined in the IPCC summary, but should go beyond in their the efforts to ensure that the human rights of all – whether they migrate, are forcibly displaced or remain in place (voluntarily or involuntarily) – are respected and protected in the context of climate change.
I was very excited when the email arrived in my inbox last May informing me that I had been accepted to the first-ever International School on Climate Migration (ISCM), hosted by Earth Refuge and the Department of Development Studies at SOAS University of London. As a sociocultural anthropologist, I hoped to learn more about ways to investigate climate migration using ethnography in rural and peri-urban areas of Mexico. Although I had been studying migration from Central Mexico to the US for many years, changing environmental conditions and international reports about “climate refugees” piqued my curiosity about how environmental factors shaped migratory flows.
The ISCM brought together experts addressing climate migration from different angles, (especially in Africa, India, and Southeast Asia) and perspectives, such as those of community leaders, activists, peacekeepers, lawyers, development specialists, and academics. Stretched across multiple time zones and connected through Zoom, over the course of five weeks, they shared on-the-ground experiences working with climate migrants and diplomatic, legal, and community efforts to address climate migration. The experiences of those most vulnerable to changing environmental conditions, as well as the historical processes and structural factors that created their vulnerability, often took center stage in our discussions. The ISCM successfully brought to life the complexity of this issue and some of the ways people are imagining better futures. Here are my five takeaways from the ISCM.
1. It’s difficult to distinguish climate migrants from other people on the move
Which factors determine when people move, how they move, who they move with, and where they go? Since the 19th century, researchers have studied the many drivers of migration. The voluminous research on migration theory has mapped out how economic, social, cultural, and political factors shape mobility in different times and places. There is a consensus among 21st century researchers that migration will not be caused by environmental factors alone. Rather, climate and environmental change will act as “threat multipliers” that will exert further pressure on the economic, social, cultural, and political factors which have always been important in shaping mobility. Even in the case of abrupt, sudden changes (for example, flooding caused by stronger and more frequent hurricanes), previous circumstances and underlying conditions shape who can leave, where they can go, and which resources they have access to.
2. Some people are more impacted by climate change and mobility than others through ongoing legacies of colonialism
Some communities and social groups are already suffering, and some will suffer to an even greater degree, from more frequent heatwaves and drought, rising sea levels, and more frequent and intense storms and flooding. Women and girls, indigenous peoples, more economically vulnerable people, racialized communities, and migrants are more vulnerable to environmental change because of ongoing legacies of colonialism. Colonialism subjugated non-Europeans – dispossessing them of land and other material resources, as well as their autonomy and independence. These processes of dispossession continue in the present, both through ongoing, and often violent, appropriation of resources and the failure to recognize and respect the rights of marginalized groups. Furthermore, many so-called solutions to environmental and social change—designed without the input of indigenous groups and those who are economically vulnerable— exacerbate the existing challenges which communities are facing in trying to mitigate and adapt to changing conditions. It is paramount to account for the legacies of colonialism in our understanding of climate-induced displacement, as well as in the programs and policies now being developed and implemented to address it.
3. Where someone has a right, another has a duty: We need to build a legal toolkit that protects people displaced by climate change
Although the term “climate refugee” has gained currency in policy circles and popular usage, the reality is that refugee law—the 1951 Refugee Convention in particular—is not necessarily an adequate legal tool to protect people displaced by climate change. The Convention is best equipped to assist people fleeing persecution based on “race, religion, nationality, membership of a particular social group or political opinion”. Moreover, the impacts of climate are extremely varied, therefore it will be difficult to arrive at a single definition of “climate migrant” that will protect people and not exclude others who may be equally deserving and in need of protection. An alternative is a human rights-based approach to disaster and climate related displacement. In other words, determining how environmental change violates human rights can become a pathway to holding states accountable to their citizens. This accountability would apply to different phases of displacement: in the period prior to displacement, including prevention and preparedness for disasters, during evacuation and displacement, and finally, in the creation of durable solutions. Therefore, legal solutions should be fine-tuned to local conditions to attend to the specific circumstances that different communities face.
4. The relationship between climate change and conflict needs to be contextualized to find locally sustainable and durable solutions
It is well-established that there are now more people displaced as a result of natural disasters than political conflict, and that these displacements are happening all over the world. At the same time, disasters and politics are more frequently acting together to create displacements. In fact, 95% of new displacements in 2020 occurred in countries that have high or very high levels of vulnerability to climate change. Despite these general macro-scale correlations, however, establishing causation is more difficult. Experts clearly outlined how important it is to carefully contextualize people’s experiences with climate change impacts and conflict. Climate change may introduce new threats to livelihoods and/or exacerbate ongoing economic, social, and political problems that may lead to displacement. If they are to be effective, responses to conflict must be grounded in the specific local situations. Universal ideas—including that climate migration will result from greater and more violent competition for resources, for example—are damaging because they can result in bad policies. In another example, we learned that resettling populations to reduce the risk of hazards can be a violent process, one that silences and erases community histories. Such a process may generate more conflict instead of reducing it. The knowledge(s) and experiences of the people at the heart of conflict must be privileged in the process of creating durable solutions. In the words of one expert: “Solutions must be owned by the people who will live with them.”
5. How mobility is framed matters in science and policy
Researchers have pointed out that the idea of “climate refugees” is problematic because it stokes fears that people displaced by climate change will threaten national security of the countries of the Global North, place burdens on social welfare programs, and negatively affect the cultures and traditions of destination countries. These fears have been exacerbated by populist politicians who capitalize on the othering of migrants, convincing their constituents of the need to increase border control and further restrictions of legal paths to migration. In response to this, the idea that mobility is an adaptation to climate change has gained acceptance among academics and policy makers. This puts a positive spin on migration and highlights how migrants have agency and make appropriate decisions for themselves and their households in the face of changing environmental circumstances. However, this framing can also be problematic because migration may not always be adaptive. Whether or not migration will increase individuals’ and households’ wellbeing will likely be related to whether they had time to plan prior to migrating, as well as the conditions at the destination to support migrants once they arrive. What’s more, even if material wellbeing is achieved through migration, resettling can nevertheless lead to a sense of loss, especially with respect to cultural heritage, identity, and territory (see point 4). Finally, migration as adaptation can let powerful actors—such as those who created the unlivable conditions which forced communities to migrate in the first place—off the hook, shifting the focus onto migrants and away from the root causes of displacement.
Resist grand narratives, focus on specifics
My main takeaway from the ISCM was to resist the grand narratives about climate migration. Our understandings of the multiple drivers of different migratory flows must be contextualized in specific histories, environmental contexts, ongoing processes of dispossession, and migrants’ agency and possibilities in sending, transit, and destination countries. Prevention, preparedness, response, and the construction of durable solutions will not be successful without meaningful collaboration with the people affected by climate-induced displacement. Their voices, needs, desires, and experiences must be at the center of efforts which respond to climate migration in specific places.
Alison Elizabeth Lee is a sociocultural anthropologist at the Universidad de las Américas Puebla. Her research focuses on international migration, gender, borders, and political economy.
Over the past few decades, it appears that meaningful international action towards mitigating climate change has been hard to come by. Even less ground has been covered when addressing the increasingly prevalent issues around climate migration. If no action is taken, the World Bank estimates that more than 143 million people will be displaced by 2050 – largely impacting the most marginalized and disadvantaged global communities.[1]
Climate change is defined as a “wicked problem” – so vast and complex that it seems impossible to resolve due to the multiple interdependent factors at play.[2] However, one simple overarching principle is necessary if we, as an interdependent world, are to bring about justice for those affected and displaced by climate change: empathy.
Why Should Policymakers Apply Empathy?
Applying empathy to climate change policy is a fundamental starting place [3], especially if world leaders hope to move beyond the political tug-of-war to establish long-term climate justice. Without it, they are likely to develop approaches that only benefit countries in the Global North in the short-term.[4]
There is a surprisingly simple theoretical concept that could be used by world leaders to apply empathy in their decisions on climate change policy. This concept is so intuitive that my daughters use it without any prompts. When they pull the last coveted cookie from the jar, they instinctively understand the fairness in one of them cutting the cookie while the other chooses which half to take. When she who holds the knife doesn’t know which half she will get, she is incentivized to make the split as even as possible. Cut the left side larger, and she is sure to be stuck with the smaller right side when her sister gets the first pick.
This basic concept has been the subject of the late 20th century political philosopher John Rawls, who defines it as the “original position”[5]. Rawls believed that when dealing with a specific issue, the decision maker is behind a “veil of ignorance”, because when determining the most effective path forward they are not sure which end of the policy they will ultimately be on, nor the timeframe over which the issue may occur. Cut the cookie unequally, and they could be left with the smaller half once the veil is lifted and their position is revealed.
When it comes to climate change in particular, the veil becomes so opaque that it even obscures important external factors. This is especially true when considering the extent to which various geographical regions will be affected by climate change, despite recent advancements in scientific models which can predict these factors[6]. So how might the effects of climate change develop over time?
Looking Beyond the Veil
With these unknown issues at play, the application of Rawls’ thought experiment becomes somewhat more clear. Climate policy makers represent different countries from around the world, with some of those countries being destinations for migrants, while others are the heavily affected locations those migrants must leave behind. As they come together, these policy makers are faced with a question they have never comprehensively addressed: under what circumstances should migrants whose own home countries have been made unlivable as a result of rising sea levels, unbearable temperatures, or drought be allowed entry into lesser-affected countries?
Immigration is a heated political topic for many countries in the Global North, including the United States [7], with policymakers facing intense scrutiny from all sides. In order to apply Rawl’s original position framework, the policymaker has to decide on an appropriate policy without truly knowing which position they will occupy – either at present or in the future. While it might seem politically desirable for the receiving country to limit climate-induced migration, the decision maker might find that once the veil is lifted, they may also be in the same position as the migrant at some point in time. Placing oneself on both sides of the situation, especially before adopting any appropriate policies, is crucial to achieving a just result.
Further complicating this dilemma are the inherent quirks within the human response of empathy. For one, humans have a tendency to worry more about today than tomorrow, even though our children will live in the tomorrow which we shape.[8] Moreover, we paradoxically feel more moved to help a single person in need, but when large groups of people are in danger, our empathy and compassion can “collapse”.[9]Ultimately, this could mean that climate change decision makers are working against their own natural impulses. They are tasked with establishing policy to protect populations in the long-term, which in the Global North can be perceived as protecting large, faceless groups of people from other parts of the world.
However, studies have shown some success in overcoming this empathy gap, mainly by viewing climate change through a political lens, as opposed to a purely scientific one.[10] This feels unsatisfying, because many believe the biggest barrier to meaningful progress is precisely a political one.[11] It is far from clear how to overcome this political will issue but the answer lies at the heart of pushing toward empathetic policy.
Undoubtedly, world leaders will always prioritize the countries they represent in these policy decisions, but all of humanity would be better served if these leaders sought out more empathy-based solutions. Although it is mostly those in the Global North who occupy habitable environments today, if the veil right in front of them is lifted, they may find that it is themselves who also need to seek a new home tomorrow.
Sara Sam-Njogu is a second year law student at Western New England University School of Law. She is a clinician in the International Human Rights Clinic where she studies climate change, climate migration, and how corporations interact with these important issues. Prior to law school, Sara worked in sales and marketing strategy for consumer goods manufacturers. She lives in Longmeadow, MA with her husband and two daughters.
This thesis was submitted to Western New England University School of Law in 2022 – by Brendan McCarthy
Abstract
We must redesign our coastal cities to mitigate the damage caused by increased storm frequency and severity. To do so, we must elevate environmental urban planning to the forefront of urbanization, so that we are able to adequately mitigate the resulting damage caused by rising sea levels, more powerful storms, and coastal flooding.
I am a rising 3L at the Western New England University School of Law with an interest in practicing environmental law upon graduation. Due to this interest, I helped revive the dormant Environmental Law Coalition to bring environmental awareness and sustainability to the forefront of conversation at the school. I graduated from Fairfield University with a double major in Environmental Studies and American Studies, and my time at Fairfield helped solidify my desire to work in the environmental field. I possess a strong belief that the protection of our natural world is necessary to promote human health and wellbeing, and I aim to strengthen these protections as I embark on my legal career.
No edits have been made to maintain the author’s tone of voice.
This thesis was submitted to the University of Pennsylvania in Spring 2021 – by Rachel Steinig
Abstract
Climate change has already begun causing displacement. This isn’t a new problem: since 2008, an average of 24 million people have been displaced each year by catastrophic weather disasters. There are currently at least 100 million forcibly displaced people worldwide – this is the highest level on record ever. However, climate migrants are not considered refugees under international law, according to the definition of a refugee adopted in the 1951 Geneva Convention on Refugees, and thus lack legal protections. In my thesis I investigated the role of existing bilateral and regional agreements to provide protection and asylum for climate refugees. My research question was: what are the conditions under which states agree to legally binding instruments to accommodate climate-induced migration? I collected nine case studies of bilateral and regional agreements that have either been implemented and have provided protection for climate-displaced persons or have been proposed but never implemented. My study presents somewhat of a grim picture for climate-displaced persons. None of my nine case studies provided a convincing example of the feasibility of using current regional or bilateral agreements to accommodate climate-induced displacement. In addition, most governments proved unwilling to even acknowledge climate displacement as a phenomenon.
What inspired you to write and research this piece?
Climate-induced displacement will only be increasing throughout time, and the fact that people displaced by climate change are not considered refugees under international law means that an increasing number of displaced people will be without legal protection or remedy. There isn’t a lot of existing research on the intersection of climate change, migration, and international law, so through my study I wanted to contribute to the budding literature on this topic and explore the feasibility of a potential solution to the lack of international legal protections for climate-displaced persons.
What impact do you hope this research will have?
Climate-included displacement is a phenomenon that will only be increasing in severity throughout time and requires attention and action at the local, national, and international levels. A key takeaway from my study is that there are no easy answers or solutions to climate-displacement, and that countries of destination will likely oppose the acknowledgement of and accommodation of climate-displaced persons. I hope that my study will positively contribute to the literature and that the amount of research on this topic will increase throughout time.
Rachel Steinig (they/she) works with asylum-seekers in Tijuana as a Project Coordinator with the Border Rights Project of Al Otro Lado, a bi-national legal aid nonprofit. They graduated from the University of Pennsylvania in 2021 with a bachelor’s degree in Political Science, a concentration in International Relations, and triple minors in Latin American and Latinx Studies, Spanish, and Modern Middle Eastern Studies.
She spent the summer after graduation volunteering at a migrant shelter on the Mexico-Guatemala border. In July they will be moving to central Mexico to work as a Human Rights Accompanier with the organization Peace Brigades International. They are dedicated to working in solidarity with asylum-seekers to combat the structural racism and violence of our immigration system and to advocate for a world without borders. She plans on working in international human rights law.
No edits have been made to maintain the author’s tone of voice.
On 22 June 2021, an international expert drafting panel commissioned by the Stop Ecocide Foundation shared its proposal for a fifth crime under the Rome Statute of the International Criminal Court (ICC). After approximately a year of negotiations, the new legal definition for the term “ecocide” emerged and was highly praised by a number of environmentalists. However, many are concerned about how the crime of ecocide could be prosecuted in practice.
The New Proposed Definition
The panel of international lawyers defined ecocide as“unlawful or wanton acts committed with knowledge that there is a substantial likelihood of severe and either widespread or long-term damage to the environment being caused by those acts”. If the introduction of this definition is welcomed and the efforts to criminalise ecocide are successful, the ICC would effectively be able to hold accountable those responsible for major ecological harms, such as governments and corporations.
The panel described “wanton” to mean: “reckless disregard for damage which would be clearly excessive in relation to the social and economic benefits anticipated” and “severe” as: “damage which involves very serious adverse changes, disruption, or harm to any element of the environment, including grave impacts on human life or natural, cultural, or economic resources”.According to Phillipe Sands, who co-chaired the expert panel, the definition catches “the most egregious acts”, such as major oil spills and transboundary nuclear accidents.
The History of Ecocide
The battle for the recognition of ecocide as an international crime has been a lengthy and challenging process.
The term ecocide was first used in the 1970s, particularly in relation to whether the US was creating an ecocide in Vietnam during the war. In 1970, when speaking at the Conference on War and National Responsibility, Professor Arthur W. Galston suggested that there should be “a new international agreement to ban ecocide”. In 1972, at the United Nations (UN) Conference on the Human Environment, Swedish Prime Minister Olof Palme explicitly described the Vietnam War as an “ecocide”. In 1985, the concept of ecocide resurfaced with a failed attempt to add ecocide to the Genocide Convention. Furthermore, the UN’s International Law Commission decided not to include “environmental crime” as an independent crime in its Code of Crimes against the Peace and Security of Mankind.
In 2016, there was a shift in focus for the ICC, mainly in response to criticism for its unwillingness to investigate major environmental crimes at the time. The ICC’s Office of the Prosecutor, under former ICC Prosecutor Fatou Bensouda, published a policy paper which stated that the ICC would “prioritise” the prosecution of governments and individuals for environmental crimes, such as illegal exploitation of natural resources and land-grabbing.
Challenges in Applying the Ecocide Term
The ICC only has jurisdiction over natural persons, so it does not have jurisdiction to investigate and prosecute corporations. Therefore, where there has been alleged corporate involvement in ecocide, a corporation itself cannot stand before the court because (legally speaking) it is not a natural person. A further hurdle would be which of its corporate officers would be held accountable for the alleged crime of ecocide.
Additionally, a member of the expert panel, Christina Voigt stated that regardless of the exact wording to be adopted by State Parties, altering the Rome Statute to include the crime of ecocide will not be an easy accomplishment. Voigt notes that there will be difficulty in building broader political support and global cooperation around the definition. Thus, it appears that formulating a legal definition is just the first step: a member state needs to propose it to the ICC, thereafter it would need to be approved by a majority of ICC States. If the law is adopted into the Statute, harming nature or the planet will start to feel similar to harming humans. Nonetheless, the process of debating the definition will most likely take numerous years, while some argue it could take decades.
States such as France, Belgium, and Canada have voiced their support for ecocide to be recognised as a crime. However, it is important to note that the world’s top polluters, such as the United States, China, and India, are not members of the ICC.
The ICC is an autonomous and permanent court, established to investigate, prosecute, and try individuals accused of committing the most serious crimes of concern to the international community – namely genocide, crimes against humanity, war crimes, and the crime of aggression. The ICC does not replace national criminal justice systems, it complements them. It can investigate and, where warranted, prosecute and try individuals as a “last resort”, for instance, where proceedings are unduly delayed.
The proposed definition could be a historical development for the entire world as environmental damage is growing dramatically. The existence of “ecocide” will amplify the issue of the environment. If ecocide were to be recognised in international law, corporations, as well as governments, would be held responsible for environmental damage. They would be forced to take the issue seriously and would not escape the consequences without punishment. Immediate action should be taken by including “ecocide” as the fifth international crime against peace.
Mary Rizk is currently undertaking the Bar Professional Training Course at BPP Law School. She holds an LLM from Queen Mary, University of London. Mary has a particular interest in international human rights, criminal, and social justice issues.
On Saturday 13th November, the 2021 United Nations Climate Change Conference (COP26) drew to a close after 2 weeks of charged negotiations between almost 200 nations. The “Glasgow Climate Pact” was adopted late on Saturday evening, but the final hours of negotiations weren’t without some setbacks.
The biggest of these revolved around coal, with both India and China having opposed early drafts of the deal due to concerns about the language used around the world’s most polluting fossil fuel. They pushed for an updated version to include a watered-down commitment to a “phase-down” of coal, rather than the original “phase out”.
Scientists have repeatedly warned that global heating beyond 1.5°C above pre-industrial temperatures could lead to irreversible changes in our climate system. Coal emissions are central to discussions around keeping below 1.5°C, as coal is currently responsible for more than 40% of annual CO2 emissions. As such, the diluted language of “phase down” has been met with resistance by climate activists, as it weakens the commitment to getting rid of the use of coal completely. The change of language was a cause for celebration for many coal advocates, since “phase down” represents a “green light for more coal production”, in the words of pro-coal Australian senator Matthew Canavan.
The pledges on emission cuts set out in the pact have been widely criticized, as analysis has shown that they fall short of what is required to meet the 1.5°C of warming agreed at the Paris Climate Accord. A study for the Climate Action Tracker website shows that if the 2030 targets announced at COP26 are implemented in their entirety, temperatures are still projected to rise to 2.4°C by 2100. Warming above 2°C will lead to more extreme droughts, increased Arctic sea ice loss, and almost complete loss of coral reefs, compared to 1.5°C. The Tracker also calculates an “optimistic scenario” which assumes “full implementation of all announced targets” including long-term strategies. This scenario still overshoots the Paris agreement goal, with projected warming sitting at 1.8°C by 2100.
Many poorer countries were left feeling disappointed by the pact, as they felt their concerns around “loss and damage” were not adequately addressed. “Loss and damage” refers to rich countries, who are predominantly responsible for climate change, paying poor countries to compensate them for climate change caused damage which disproportionately affects poorer nations.
Throughout the conference, vulnerable nations emphasised how the climate crisis has already impacted them. A particularly powerful message came from Tuvalu’s foreign minister, Simon Kofe, who made his address to delegates standing knee-deep in seawater, highlighting the impact sea-level rise is having on the low-lying Pacific Island nation.
A group of 55 nations particularly vulnerable to the impacts of climate change, formed the Climate Vulnerable Forum (CVF). At the start of COP, CVF had issued a call for a “Climate Emergency Pact”, which called for at least $500bn in climate finance during 2020-2024, for mitigation and adaptation.
During the closing of the conference, COP26 President Alok Sharma apologised for the pact, saying that he was “deeply sorry” for how the process unfolded and the lacklustre commitments from the international community regarding coal. COP26 concluded with the promise that all countries will return to the negotiating table in a year’s time in Egypt to re-examine national plans.
Evelyn Workman graduated with a Master’s degree in climate physics from Utrecht University in 2020. This degree program allowed her to marry her passions for both physics and climate change. In October 2021 she started a PhD program at the British Antarctic Survey due to her eagerness to pursue further scientific research within the field of climate change. During her PhD studies she will be investigating methane in and above polar oceans.
This article was originally published in the Earth Refuge Archive as part of our collaboration with Human Rights Pulse on the COP26 Summit.
On the penultimate day of COP26, a representative from the Climate Action Network presented Scottish First Minister Nicola Sturgeon with an award called ‘Ray of the Day’. This symbolized recognition for a long overdue action: during the conference, Scotland became the first country in the world to contribute to a Loss & Damage fund, to help countries in the Global South respond to damage caused by climate change. Initially limited to one million pounds, shortly before the award was presented, First Minister Sturgeon even doubled the amount. A great act that deserved the rousing applause in the room as well as the award. Right?
What Constitutes a ‘Loss’ or ‘Damage’?
The term ‘Loss & Damage’ refers to destruction which has already occurred that can be attributed to climate change, despite mitigation and adaptation efforts. ‘Losses’ are permanent and cannot be recovered; loss of human life, extinction of biological species or destruction of cultural assets or culturally important places are among them. ‘Damages’ however, are reversible, at least in theory; examples might include damaged infrastructure or monetary losses from a collapse in the economy.
The History of Loss and Damage
Loss & Damage first came up in international policy in 1991, when the Alliance of Small Island States promoted climate insurance in the drafting of the United Nations Framework Convention on Climate Change (UNFCCC), which can be understood as the most important international agreement aiming to reduce anthropogenic harm to our climate system. Though the term ‘insurance’ did in fact make it into the UNFCCC document as an option requiring consideration , it took more than two decades for a Loss & Damage mechanism to actually be created.
Following protracted, acrimonious negotiations, the Warsaw International Mechanism for Loss and Damage associated with Climate Change Impacts (WIM) was finally drafted in 2013. Its main task is to promote “implementation of approaches to address loss and damage associated with the adverse effects of climate change…in a comprehensive, integrated and coherent manner.”[i] In reality however, the means of WIM are limited to research and dialogue, not implementation at all. And whilst research and the initiation of conversations surrounding climate-induced loss and damage are two urgently needed components in the response to climate change, WIM makes no direct provisions for liability or compensation for loss and damage. Therefore, it must be stated that WIM is by far not as meaningful as the originally proposed climate insurance mechanism.
The case is similar for the so-called Santiago Network, which was established as part of the WIM in 2020. It is focused on ‘the implementation of relevant approaches [for averting, minimizing and addressing loss and damage] at the local, national and regional level, in developing countries that are particularly vulnerable to the adverse effects of climate change”[ii]. Though for too long the lack of implementation of any compensation or liability mechanisms has hindered global progress in this sphere, in a positive move, COP26 discussions have now provided steps towards the operationalization of the Santiago Network.
COP26
At COP26 itself, the words of sympathy were consistently strong, with everyone claiming that they really do want to help. However, it seems that nobody wants to pay for it. Not only is this completely unacceptable, but it’s also tragically ironic. The Global North, with their reticence to contribute financially, is responsible for an unbelievable 92% of climate change[iii], and has made gigantic economic profits through some of the most environmentally damaging activities. To the Global South, on the other hand, devastating damage has been done, with almost no recompense, financial or otherwise. People, cultures, and animal species are dying, local economies are collapsing, and people are forced to flee their homes. Loss & Damage is not about charity, but rather about reparation payments. The money that the affected countries and their populations require should be seen as a duty; something that is owed to them as opposed to a goodwill gesture.
At a side event at the conference, an NGO representative shared his difficult mission back home in Norway. The Norwegian government appears to be of the belief that by agreeing to contribute to what are known as adaptation payments of 100 billion USD per year, they will no longer be required to talk about Loss & Damage, being under the impression that the two payments basically constitute the same thing. The reality couldn’t be further from the truth, though the distinction is actually quite simple.
Adaptation aims to increase resilience in affected areas in a way that makes it possible to live with the consequences of climate change. Examples might include new crop varieties that can cope with changes in precipitation, or the construction of sea walls to protect against rising sea levels. Loss and damage payments, on the other hand, are due when such adaptation measures have failed. For example, if agriculture becomes completely impossible because of droughts, or people are forced to leave their homes and possessions behind because of flooding. Hence, the adaptation fund (which in itself is far from being provided fully) cannot be used as an excuse for not providing money for the Loss & Damage fund.
Author’s Note
It is noted that Scotland’s contribution to the climate fund is a step forward, albeit only a baby step. But at least a start has been made. However, I find it more than questionable that Scotland is being applauded, and its contribution being positioned as a great act of philanthropy. In reality it is only a partial fulfilment of the state’s international duty, and in the grand scheme of things, I believe it constitutes relatively very minor progress towards what is right, just and long overdue. In contrast, there isn’t enough applause for the young people who are fighting tirelessly for climate justice and who were the ones able to persuade Scotland’s First Minister Sturgeon to at least take this first step. I do trust that they will continue their fight and this step will soon be followed by many others.
Ole ter Wey is currently studying International Law and Human Rights at the UN-mandated University for Peace in San José, Costa Rica. He previously lived with a local community in Kiribati for over a year. There, he experienced first hand the consequences of climate change endangering the existence of an entire state. It was then that he began thinking about how to address forced migration and dedicated his Liberal Arts Bachelor to the topics of migration and integration.
This article was originally published in the Earth Refuge Archive as part of our collaboration with Human Rights Pulse on the COP26 Summit.
[ii] UNFCCC (2019): Warsaw International Mechanism for Loss and Damage associated with Climate Change Impacts and its 2019 review, paragraph 43. https://unfccc.int/documents/209506
[iii] Hickel, Jason (2020): Quantifying national responsibility for climate breakdown: an equality-based attribution approach for carbon dioxide emissions in excess of the planetary boundary, page e399. In: The Lancet Planetary Health, Volume 4, Issue 9, September 2020, Pages e399-e404. https://doi.org/10.1016/S2542-5196(20)30196-0
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