Archive Regions | Earth Refuge

December 31, 2020August 4, 2021

Climate Passport: A Legal Instrument to Protect Climate Migrants – A New Spirit for a Historical Concept

31 December 2020 – by Robert Los

Introduction

According to the UNCHR, 79.5 million people were seeking refuge away from home at the end of 2019.^[1] This migration is based on a variety of different motives and phenomena, including war, political, cultural or religious persecution as well as economic and humanitarian crises. According to development trends, change in climate is more and more often part of this bundle of motives.^[2] The term ‘climate-induced migration’ includes both sudden migration due to extreme weather events, and slower population movements due to gradually developing long-term climate changes.^[3] Due to the difficulty of determining a single reason for a person’s migration from this bundle of motives, the estimated figures for climate migrants by 2050 range from 25 million to 1 billion people.^[4] Regardless of the exact number, which can deviate anyway due to unforeseen events, the problem is becoming more and more virulent. The international community will have to consider solutions to offer protection to the people affected. One proposed solution includes applying historical knowledge and reissuing a historical instrument.

This short essay explores this concept of a ‘climate passport’ for people compelled to leave their previous residence due to changes in climatic conditions, a concept suggested by the German Advisory Council on Global Change (WBGU) in 2018.^[5] In the course of this essay, the historical dimension of the ‘Nansen‘-passport, the legal instrument upon which the WBGU bases its concept, and the moral embedding of the principle of a Climate Pass will be discussed. Subsequently, the legal side of the concept will be examined and finally it will be concluded that in legal theory an intergovernmental claim already exists.

Nansen-Passports

First of all, it is worth taking a brief historical look at the Nansen Pass. The event that triggered its creation was the Soviet government’s 1922 decision to revoke the citizenship of 800,000 Russian citizens living in exile. These 800,000 people fled from the ongoing fighting of the Russian civil war both during and after World War I, or chose exile in fear of suppression by the newly formed government and were scattered throughout Europe.^[6] In response to this deficiency, the ‘arrangement with respect to the issue of Certificates of Identity for Russian Refugees’ was negotiated in Geneva from 3-5 July 1922 under the leadership of the then-High Commissioner for Refugees of the League of Nations, Dr. Fridtjof Nansen. The ratifying states were obliged to issue passports to the now stateless people so that cross-border movement was an option during their search for a new home. In this way, the trapping dynamics of statelessness were overcome.^[7] In 1933, the agreement was broadened to include Armenian, Turkish and Assyrian refugees.^[8] Until it was discontinued, the passport had secured guest rights in safe countries for hundreds of thousands of people^[9] and was recognized by 52 countries in 1942.^[10]

In 1938 the Nansen International Office for Refugees was awarded the Nobel Peace Prize for implementing this project.^[11] To this day, this solution is still considered a successful individual counter-model to the concept of planned control of migration flows, which implementations historically all have failed.^[12] Though the Nansen Pass no longer exists, its legacy lives on. The refugee travel documents issued today by states on the basis of the Geneva Convention for Refugees can be seen as the successors of the Nansen Pass.

Transferability of the Nansen principles to climate-induced migration

Since existing legal agreements do not explicitly provide for such an instrument or a similar one for climate-related migration, it is necessary to determine whether such an instrument is necessary and, if so, what form it should take.

Current legal protection of climate migrants

The first question to be asked is whether there is a need for such a legal protection instrument. This would not be the case if sufficient protection for climate refugees were already guaranteed by the prevailing legal norms and instruments.

Geneva Convention on Refugees

The basis for the protection of refugees in an international context is generally the Geneva Convention for Refugees of 1951 (GCR). With regard to climate migration, several issues arise concerning the scope of the Convention. Article 1 of the convention defines a refugee as follows:

‘As a result of events […] and 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.’^{^[13]}

Besides the obvious omission of climate-induced migration, the definition raises other less obvious hurdles that preclude analogous application or a broad interpretation.

According to the definition, a cross-border element is required, with the consequence that international refugee law only applies when a refugee leaves their country of origin and therefore the protection of internally displaced persons is primarily the responsibility of the affected state.^[14] This leads to the exclusion of a significant number of climate migrants, since the majority – approx. 80%^[15] – do not cross the borders of their country of origin during their first climate-related movement.^[16]^{^[17]}

Another decisive criterion in the definition of a ‘refugee’ is the existence of persecution, which itself must be based on a severe violation of human rights of a characteristic mentioned in the GCR.^[18] For a climate migrant to fulfil the ‘persecution’ requirement, a favorable and broad understanding of climate-induced destruction would be necessary in order to attest the emission of greenhouse gases (GHG) to a degree of wrongdoing comparable to political, religious or cultural persecution. Moreover, environmental change is unlikely to selectively affect (or persecute) one cultural, political or religious group alone.^[19] A simple analogy can therefore not achieve the desired goal. This is particularly true because expanding the scope to include climate refugees would require a complete reversal of the paradigms underlying the GRC.^[20] Until now, refugee law has protected people who flee persecution in their own state and thus seek protection elsewhere. However, climate migrants mainly need protection from actors in their own states.^[21]

Climate migration is thus only covered by the GRC in more extreme cases. Unless special conditions are met – for example, if state actors deliberately destroy the environment in order to take targeted action against certain groups of people^[22] – the Convention cannot be said to provide adequate protection to climate migrants. Although an amendment to the Convention in favor of environmental refugees is increasingly demanded and discussed, actual implementation of this is unlikely.^[23] This prognosis is supported by current political developments^[24] and the argument that an amendment could lead to a weakening of the existing international consensus on the GRC.^[25]

Other international or regional treaties

Turning to other agreements, disillusionment arises quickly. Auspicious was the Global Compact for Safe, Orderly and Regular Migration, which resulted from the New York Declaration for Refugees and Migrants by the UN General Assembly of 2016.^[26] The Compact cites climate change as a cause of flight and calls for international cooperation.^[27] But even before its ratification in December 2018, the agreement already lost significance due to the withdrawal of the USA in 2017^[28] – not only an important player in world politics, but also one of the largest emitters.^[29] Criticism and headwind also came from the ratifying states. In the face of this, the German Federal Government assured that the Compact would not be a legally binding agreement.^[30] This was however not enough for critics of the Compact, so that even before ratification the Federal Constitutional Court ruled out the possibility of a legally binding agreement in interim legal protection.^[31] Thus, this initially promising agreement rapidly degenerated into so-called ‘soft law’: agreements that may have moral or political effect but are not legally enforceable.^[32]

The proposal of a Global Pact for Environment, which aims to securitize central principles of international environmental law, goes in a similar direction. Among other things, it is intended to establish the right to a healthy environment, which is fertile ground for individual rights of climate migrants.^[33] Whether the Pact, which is to be signed at the Earth Summit 2022,^[34] will ultimately be legally binding and therefore overcome the status of soft law is still unclear, but there is room for doubt.

There are also some agreements that exist to protect refugees at a regional level, but save for the Arab Refugee Convention^[35], even these by definition do not cover environmentally induced migration, or apply solely to internally displaced persons.^[36] While the Arab Refugee Convention^[37] and most other agreements targeting internal migration share the fate of international agreements due to their legally non-binding character,^[38] the African Kampala Convention is an exception to this norm. It is a legally binding agreement that creates a framework for the protection and distribution of internal migrants and obligates ratifying states to protect affected persons.^[39]

The idea of timely migration in the form of the Climate Pass

What all these agreements have in common is the provision of reactive or retrospective protection for migrants affected by climate change. The concept of the Climate Pass developed by WBGU, on the other hand, aims to facilitate active, early, and thus dignified migration from affected regions.^[40] Such a passport would grant the holders not only the right to be admitted by other countries, but rights similar to those of citizenship. The WGBU makes a distinction in order to identify the states that are obliged to admit refugees and those individuals that would be entitled to a passport.

The ‘polluter-pays’ principle should be applied to ensure that climate migrants are fairly distributed amongst the receiving states.^[41] So, those states that are responsible for a large part of the anthropogenic contributions to climate change should shoulder most of the burden. It is imperative that both historically cumulated emissions and current per capita emissions should be taken into account. According to these factors, WBGU proposes the 10 nations with the highest historical cumulative emissions and the 15 nations with the highest per capita emissions as primarily responsible. This is because these countries bear a considerable moral responsibility for the origin of many causes of migration. The gross domestic product, area and population density of the respective countries are recommended as additional indicators.^[42] For reasons of effective protection, however, a further evaluation criterion should be the extent to which the potential host country is affected by climate change themselves. If, for example, Sint Marteen or Trinidad & Tobago – both amongst the 15 countries with the highest per capita emissions^[43] – are themselves threatened by climate change,^[44] protection in a less affected country such as Germany seems more appropriate. After all, the Climate Pass is not intended to shift problems but to offer a dignified future to the migrants by solving them.

When it comes to the question of who is to receive the Climate Passport, a system of prioritization will also have to be conducted, this time according to a time component. Although all those affected should have the right to such a humanitarian instrument, the first step will be to protect those people who will be affected by climate changes at the earliest possible stage. In particular, inhabitants of flat island states are to be mentioned. The exact identification of the particularly affected areas is to be carried out by a commission of scientific experts.^[45]

Finally, it should be mentioned that the Climate Pass is not a silver bullet solution to problems caused by climate change. Rather, it is intended to flank other climate protection measures, and the WBGU points out that it can even support the achievement of other goals. For example, a country that feels overburdened by the obligation to admit refugees could be incentivized to reduce its emissions. The principles developed and presented here are to be understood as guidelines that require concrete implementation. First and foremost, the signatory states would have to agree on measures and guidelines on how to deal with migrants before and after the period of flight in order to prevent migrants from having a precarious existence in the destination country. The focus of these guidelines should not be solely on economic factors. Cultural and social disruption must also be addressed.^[46] The WBGU would prefer the drafting of an international agreement, for instance, an additional protocol to the Paris Convention of 2015.^[47]

Obligation under international law of the issuing states to assume responsibility

The WBGU forms its argument upon the moral obligation of states arising out of responsibility and thus hopes for the creation of an international agreement. It is possible, however, that an intergovernmental obligation under international law already exists.^[48] This would be favorable due to the fact that there is little evidence of an upcoming international consensus in view of the actual political situation, including a failure by many states to meet the Paris Agreement climate targets.^[49]

Basis of liability

In order to establish a binding obligation upon emitting states, a legal basis is necessary by which these states are liable for climate damage caused by emissions. Although the major emitters have recognized responsibility in the Paris Convention, one searches in vain for liability rules.^[50] It is worth noting that it has been stated that the agreement should not prejudice liability issues.^[51]

This leaves recourse only to the liability rules of general international environmental law,^[52] in particular by applying the rules of customary law on the ‘Responsibility of States for Internationally Wrongful Acts’ (ARS). Of primary interest here is the liability norm of Art. 31 ARS, which states the following:

‘1. The responsible State is under an obligation to make full reparation for the injury caused by the internationally wrongful act.

2. Injury includes any damage, whether material or moral, caused by the internationally wrongful act of a State.’^[53]

Whether a presumed violation of law is present, is once again determined by general international law. Here, above all, the international environmental law and its fundamental principle formulated in the IGJ evaluation on the use of nuclear weapons is of importance.^[54] It essentially establishes that all states are obliged to refrain from activities on their own territory that damage or destroy the environment of other states.^[55] As Frank notes, such damages would be rewarded in the case of the loss of entire habitats according to the international legal definition of environmental damage.^[56]

The problem of causation and evidence

The question of liability is followed by the classic problem of causation. Since scientifically calculated climate models are only prognoses, the legal requirements for evidence and causality in environmental law disputes must be addressed.

In its commentary on the ARS Draft, the ILC positions itself in such a way that in the event of serious and irreversible damage, full scientific certainty of causation is not required.^[57] A North American court of arbitration provided a more concrete definition, as it defined its requirements as ‘clear and convincing evidence of the damage’ in Trail Smelter of 1939 and 1941.^[58] What constitutes the exact inner nature of the terms, however, was not answered by the court. Wolfrum classifies this criterion between the criteria ‘preponderance of evidence’, where sufficient probability is already adequate, and ‘beyond reasonable doubt’, which presupposes the removal of any reasonable doubt,^[59] so that a high degree of persuasiveness of the evidence – but no conclusive certainty – is required for clear and convincing evidence.

It is likely that these requirements could be met by today’s climate projections from internationally recognized scientists, because even if they cannot provide an exact prediction of the future, they make substantial and sufficiently concrete statements. Nevertheless, it is doubtful whether the arbitral tribunal intended to apply this newly created criterion to claims for damages. This doubt is supported by the fact that the court only adopted this standard in the second part of the judgment when assessing preventive claims and felt compelled to give specific reason for this, and that ‘preponderance of evidence’ was already adequate for prove of damage.^[60] So, there are good reasons for applying the preponderance of evidence, but since the WBGU Climate Passport also contains preventive purposes, the stricter interpretation should be considered. Because current climate predictions are sufficient under the stricter interpretation, a decision in dispute at this point is not decisive for the purposes of this essay.

For the existence of a causality link in the sense of the conditio sine qua non formula, Art. 47 ARS requires first a breach of duty by the state itself. At the same time, however, a contributory causality is sufficient.^[61] Whether a state’s greenhouse gas emissions are a contributory cause depends on whether the damage caused by climate change can be attributed to it via an individualized causal chain.^[62] As Sands/Peel note, GHG-emissions lead to higher concentrations of greenhouse gases in the atmosphere worldwide.^[63] Consequently, a contributory cause for climatic changes is given for damages, which can be attributed to this increased concentration in the upper atmosphere. This will be applicable to ‘slow onset’- effects but cannot yet be conclusively answered for extreme weather events due to difficulties in providing evidence.^[64]

The limitations of the court in Trail Smelter that excluded such environmental impacts that are ‘too indirect, remote and uncertain’ are irrelevant to the question of liability causation. The court only wanted to limit the scope of damage and exclude general indirect, economic damage, since it is ‘purely speculative’.^[65]

Obligation of result or obligation of conduct?

The decision is arguably the starting point for the question of liability. Both an obligation of result as well as an obligation of conduct are being discussed. The latter would require a violation of due diligence to avoid environmental damages in other states. When answering this question, three judgments of international law are relevant to the outcome.

As mentioned, Trail Smelter is the starting point. The court of arbitration concluded that there was both an obligation of conduct and an obligation of result with the two differentiated according to the nature of the claim. The first would thus apply to the prevention of environmental damage on foreign territory, while the latter would apply to the compensation of damage.^[66] The court also clarified that the implementation of preventive measures does not exclude a claim for compensation.^[67]

Those supporting a general obligation of conduct rely primarily on the Pulp Mills ruling from the ICJ^[68]. It is true that the court was examining the due diligence of the Uruguayan environmental audit system and even reprimands it for shortcomings. However, this position overlooks that the court explained its decision already with lacking causality and thus with its judgement no statement about the arrangement kind of the obligation was made.^[69]

But most recently, with both the ICJ rulings in the proceedings Costa Rica v. Nicaragua and Nicaragua v. Costa- Rica,^[70] the court has tipped the balance in one direction by again taking up the differentiation from Trail Smelter. In both decisions, the court makes a strict distinction between ‘procedural obligations’ regarding avoidance of possible environmental hazards on the territory of other states and ‘substantive obligations concerning transboundary harm’ regarding compensation. Exclusively on a ‘procedural level’ the court requires a violation of due diligence. According to the reasons for the judgement, liability depends solely on the causality and the extent of the damage. ^[71]

For the Climate Pass, this implies that different requirements may apply depending on when its validity is enforced between countries. In the WBGU’s ideal scenario, it should also facilitate preventive migration. This would mean that the state to which the claim is made would have to violate its duty of due diligence. The ICJ sets strict standards for this duty. The Court states that the ‘determination of the content of the environmental impact assessment should be made in light of the specific circumstances of each case’,^[72] reinforcing its ruling in Pulp Mills.^[73] If the investigation reveals possible environmental damage, the acting state is obliged under international law to find a solution in good faith with the affected states to eliminate or minimize the risk.^[74] According to current scientific findings on climate change, such a risk can be affirmed without too much difficulty, so that even in the case of a procedural due diligence requirement, there is an obligation imposed on the emitting states.

The only question that remains is how the content of the obligation can be structured.

Content and Scope of Liability

This last question can again be divided into two parts: first, are the states jointly and severally liable and second, what exactly is the liability of the states?

States as joint and several debtors

The question of whether states are jointly and severally liable in addition to their own partial responsibility is answered by Art. 47 ARS:

‘1. Where several States are responsible for the same internationally wrongful act, the responsibility of each State may be invoked in relation to that act.’^{^[75]}

In the commentary on the ARS, the authors give examples of when such a joint interaction exists. On the one hand, this is supposed to be the case if states act in a way in which they are considered to be acting together from an external perspective. For instance, through the action of a common organ.^[76] This possibility alone could be sufficient under international agreements in which the states have recognized joint responsibility.^[77] On the other hand, it can also occur when several states contribute to the pollution or damage of an object or area. Here the pollution of a river is mentioned as an example. As Frank correctly states, the case is very similar to that of greenhouse gas emissions. Here too, several actors contribute to the pollution of an environmental medium with corresponding consequential damage. Joint and several liability must therefore be assumed.^[78] As drawn from national legislation, Art. 47 ARS in its second paragraph also permits a later internal equalization of all liable states.^[79]

Content of Liability

With regard to the preventive intent of the Climate Pass, a claim for compliance could arise from the mirroring of the prevention obligation under Art. 3 ARS. For this purpose, Art. 2 (a) in conjunction with Art. 3 ARS presupposes that considerable damage is imminent and that there is a high probability of its occurrence.^[80] Although it would be possible to subsume climate damage and the resulting migration as imminent damage with a high probability of occurrence, it seems highly questionable whether this claim could constitute an active obligation on the part of emitters in addition to a claim to cease and desist from greenhouse emissions. Prevention will principally mean to refrain from damaging behavior. Irreversible environmental processes that have already been set in motion and are resulting in damage are then more a question of the justification of the extent of the damage in a claim for compensation. Additionally, it is important to note the difficulty of identifying and proving a single motive from a bundle of causes for displacement in this instance.

A claim for damages already incurred is less problematic. According to Art. 31 ARS, the obligated state owes full reparation for damage that has been sustained. Under international law, this also includes adequately caused indirect damage.^[81] Thus, the loss of one’s livelihood due to climatic change caused by temperature or sea level rise is also included. Art. 35 ARS basically establishes that damages must be compensated in the form of in rem restitution. Frank argues that in case of climate migration this would require states to help climate migrants to continue living a dignified life in a new environment.^[82] This interpretation is supported by the basic principle arising out of Factory of Chorzow. Accordingly, states are obliged:

‘to wipe out all consequences of the illegal act and to reestablish the situation which would, in all probability, have existed if that act had not been committed ‘.^{^[83]}

Conclusion

In conclusion, it can be said that the WBGU’s concept of a Climate Passport, at least in part, has an anchoring in international law in addition to a moral anchoring in the ‘polluter-pays’ principle. This anchoring could in turn establish an obligation for states to implement the goals of a Climate Passport at least indirectly. This would apply at least to instances in which damage in the concrete form of habitat destruction by climatic change has already occurred.

Whether there is an obligation arising as a counterpart to the prevention prohibition to participate beyond this is doubtful. However, in view of the ideal version of the Climate Pass, this leaves the legal obligation with the following unsatisfactory ‘procedural’ hurdles, which run the risk of undermining the actual objective, namely, to enable early and humane migration.

The first hurdle is that the claim exists only between states. As a result, people who are actually affected by the changes would have to trust that their government would bring a claim on their behalf. This presupposes that the states not only recognize the dramatic situation of their own people, but also admit their own inability and powerlessness to remedy it. In states that are particularly badly affected, this may seem tangible as a last resort, but in states that are affected by ‘slower’ catastrophes in particular, political power mechanisms are pushing this solution further into the distance. The probability that such a claim will be asserted too late for large sections of the affected population, or at least too late to enable dignified migration seems highly probable. An aggravating factor is that in the majority of cases the current global political reality would prefer monetary support at contractual level until the very last moment rather than actual participation in a project like the Climate Passport. Monetary support in the sense of adaptation at home can certainly have a positive effect and is probably preferable to fleeing to farther-flung parts of the world for socio-cultural reasons. That is provided, of course, that these regions have the capacity and opportunities to shoulder these groups of people. From the perspective of legal protection, however, a securitized right in the form of a recognized Climate Passport is preferable for individuals.

Another hurdle is judicial enforcement. Individual legal disputes can delay ad-hoc decisions for an unnecessarily long time and make it difficult to enforce existing claims. An individual case-by-case approach to such a complex global situation in court cannot be the desired outcome and common goal of the international community.

An international agreement would therefore be compelling not only for reasons of protection, but also for reasons of effectiveness. Standardization would facilitate processes and would indeed establish a ‘lighthouse’ of humanity,^[84] as WBGU was aiming for with the proposal of this concept. Without standardisation, such a lighthouse, would have to be fought for continuously on a case-by-case basis and and would not radiate enough light to create an impact.

Robert Los is a student of law at the Bucerius Law School in Hamburg, Germany. His interest and commitment to climate law issues extends mainly to voluntary work alongside his studies and work

References

^[1] UNCHR (2020): Global Trends – Forced Displacement in 2019.

^[2] Rigaud/Sherbinin/ Jones/Bergmann/Clement/Ober/Schewe/Adamo(Mccusker/Heuser/Midgley (2018): Groundswell – Preparing for Internal Climate Migration; WBGU – Wissenschaftlicher Beirat der Bundesregierung Globale Umweltveränderungen (2008): Welt im Wandel: Sicherheitsrisiko Klimawandel. Hauptgutachten; WBGU (2014): Klimaschutz als Weltbürgerbewegung. Sondergutachten.

^[3] WBGU (2018): Zeitgerechte Klimapolitik: Vier Initiativen für Fairness, p. 25.

^[4] Ionesco/Mokhnacheva/Gemenne (2017): The Atlas of Environmental Migration; cf. WBGU (2018): Zeitgerechte Klimapolitik: Vier Initiativen für Fairness, p. 25.

^[5] WBGU (2018): Zeitgerechte Klimapolitik: Vier Initiativen für Fairness, p. 24 et seqq.

^[6] http://www.arkivverket.no/eng/Using-the-Archives/Online-Exhibitions/The-Nansen-Passport/Nansen-the-humanist (Last Access: 21.11.2020).

^[7] League of Nations, Arrangement with respect to the issue of certificates of identity to Russian Refugees, 5 July 1922, League of Nations, Treaty Series Vol. XIII No. 355, https://www.refworld.org/docid/3dd8b4864.html (Last Access: 21.11.2020).

^[8] League of Nations, Arrangement of 12 May 1926 relating to the Issue of Identity Certificates to Russian and Armenian Refugees, 12 May 1926, Treaty Series Vol. LXXXIX, No. 2004.

^[9] WBGU (2018): Zeitgerechte Klimapolitik: Vier Initiativen für Fairness, p. 24.

^[10] Marrus (2013): Nansen-Pass. In: Diner, D., Enzyklopädie jüdischer Geschichte und Kultur 44.

^[11] https://www.nobelprize.org/prizes/peace/1938/nansen/lecture/ (Last Access: 21.11.2020).

^[12] Oliver-Smith/de Sherbinin (2014): Resettlement in the twenty-first century. Forced Migration Review 45, p. 23–25; cf. WBGU (2018): Zeitgerechte Klimapolitik: Vier Initiativen für Fairness, p. 24.

^[13] Article 1A II of Convention relating to the Status of Refugees.

^[14] cf. Nümann(2019): Rechtliche Schutzmöglichkeiten für ‘Klimaflüchtlinge’, bpb-Dossier ‘Migration und Klimawandel’, https://www.bpb.de/gesellschaft/migration/kurzdossiers/283563/rechtliche-schutzmoeglichkeiten-fuer-klimafluechtlinge- (Last Access: 21.11.2020).

^[15] Adger/Pulhin/Barnett/Dabelko/Hovelsrud/Levy/Oswald Spring/Vogel (2014): Human security, p. 767.

^[16] EACH-FOR Environmental Change and Forced Migration Scenarios (2009): Synthesis Report, S. 72; Nümann(2019): Rechtliche Schutzmöglichkeiten für ‘Klimaflüchtlinge’, bpb-Dossier ‘Migration und Klimawandel’.

^[17] Later, further escapes – e.g. because of poverty – as late consequences of the first climate-induced flight are probably still regarded as flights for the respective reasons. This leads to problems in questions of liability under international climate law and will be discussed below.

^[18] Nümann(2014): Umweltflüchtlinge? Umweltbedingte Personenbewegungen im internationalen Flüchtlingsrecht, p. 254 et seqq.

^[19] Cf. Hathaway (1991): The Law of Refugee Status, S. 92 f.; Zimmermann/Mahler(2011): Article 1 A, para. 2 1951 Convention. In: Zimmermann: The 1951 Convention Relating to the Status of Refugees and its 1967 Protocol. A Commentary. Oxford und New York, p. 440.

^[20] See McAdam (2010): Climate Change Displacement and International Law. Side Event to the High Commissioner’s Dialogue on Protection Challenges 8 December 2010, p. 2, www.refworld.org/pdfid/4d95a1532.pdf (Last access: 20.11.2020).

^[21] cf. Nümann, Rechtliche Schutzmöglichkeiten für ‘Klimaflüchtlinge’, bpb-Dossier ‘Migration und Klimawandel’, 2019; McAdam (2009): From Economic Refugees to Climate Refugees?, Melbourne Journal of International Law, 2009, p. 592.

^[22] One example of this is the draining of the marshlands in the 1990s by Sadam Hussain in Iraq in order to take action against the predominantly Shiite marsh Arabs; cf. Nümann(2014): Umweltflüchtlinge? Umweltbedingte Personenbewegungen im internationalen Flüchtlingsrecht, p. 313 et seqq.

^[23] WBGU (2018): Vier Initiativen für Fairness, p. 24 et seqq.

^[24] While the European Union and the USA deal ingloriously with migration in the Mediterranean and Central America respectively, projects to deal with climate migration are being put off. It is all the more fatal that Finland and Sweden have repealed their existing rules for climate refugees in the face of the refugee crisis in 2015; see Kraler/Katsiaficas/Wagner(2020): Climate Change and Migration, Legal and policy challenges and responses to environmentally induced migration.

^[25] Hanschel (2017): Klimaflüchtlinge und das Völkerrecht. Zeitschrift für Ausländerrecht und Ausländerpolitik 1, p. 1–8; WBGU (2018): Vier Initiativen für Fairness, p. 24 et seqq.

^[26] UN General Assembly (2016): New York Declaration for Refugees and Migrants. Resolution Adopted by the General Assembly on 19 September 2016. New York: UNGA.

^[27] United Nations (2018): Global Compact for Safe, Orderly and Regular Migration. Final Draft. New York: UN.

^[28] USA saw its sovereignty curtailed by the agreement, cf. https://www.theguardian.com/world/2017/dec/03/donald-trump-pulls-us-out-of-un-global-compact-on-migration (Last Access: 20.11.2020).

^[29] Edenhofer/Jakob (2019): Klimapolitik – Ziele, Konflikte, Lösungen, p. 25.

^[30] https://www.welt.de/politik/deutschland/article184525526/Antrag-von-SPD-und-CDU-Koalition-schliesst-eine-rechtliche-Wirkung-von-UN-Migrationspakt-aus.html (Last Access: 20.11.2020).

^[31] BVerfG, Beschluss der 2. Kammer des Zweiten Senats vom 07. Dezember 2018 – 2 BvQ 105/18 -, para. 1-23.

^[32] Markard (2018): Migration wird erstmal das Thema aller, Der Tagesspiegel v. 18.11.2018; https://www.tagesspiegel.de/politik/un-migrationspakt-erstmals-eine-gemeinsame-haltung-der-welt-zu-migration/23648828.html (Last Access: 20.11.2020).

^[33] WBGU (2018): Vier Initiativen für Fairness, p. 24 et seqq.

^[34] United Nations (2019): Resolution adopted by the General Assembly on 30 August 2019.

^[35] Art. 1 Arab Convention on Regulating Status of Refugees lists ‘natural disasters’ as a reason for migration.

^[36] Kälin (2017): Klimaflüchtlinge oder Katastrophenvertriebene. German Review on the United Nations 65 (5), 207–212; cf. WBGU (2018): Vier Initiativen für Fairness, p. 24 et seqq.

^[37] Kälin/Schrepfer (2012): Protecting People Crossing Borders in the Context of Climate Change. Normative Gaps and Possible Approaches. UNHCR, Division of International Protection, Legal and Protection Policy Research Series. Genf, p. 34. www.unhcr.org/4f33f1729.pdf (Last Access: 21.11.2020).

^[38] Ferris/Bergmann (2017): Soft law, migration and climate change governance. Journal of Human Rights and the Environment 8 (1), 6–29.; cf. WBGU (2018): Vier Initiativen für Fairness, p. 24 et seqq.

^[39] Art. 5 IV, 12 II African Union Convention for the Protection and Assistance of Internally Displaced Persons in Africa; cf. cf. Nümann(2019):Rechtliche Schutzmöglichkeiten für ‘Klimaflüchtlinge’, bpb-Dossier ‘Migration und Klimawandel’.

^[40] WBGU (2018): Vier Initiativen für Fairness, p. 28.

^[41] WBGU (2008): Welt im Wandel: Sicherheitsrisiko Klimawandel. Hauptgutachten.; WBGU (2009): Kassensturz für den Weltklimavertrag – Der Budgetansatz. Sondergutachten.

^[42] WBGU (2018): Vier Initiativen für Fairness, p. 29 et seqq.

^[43] Sint Marteen: 19,5 t CO2 per capita; Trinidad & Tobago: 34,2 t CO2 per capita; cf. WBGU (2018): Vier Initiativen für Fairness, p. 30.

^[44] cf. for Trinidad & Tobago see World Health Organization (2020): Health & Climate Change – Country Profile 2020, Trinidad & Tobago; cf. For Sint Marteen see Gerges/Hirschfeld/Hutar/Salzman/Sorensen/Meyer (2018): Corruption in an Era of Climate Change: Rebuilding Sint Maarten after Hurricane Irma, Northwestern Public Law Research Paper No. 18-13, Available at SSRN: https://ssrn.com/abstract=3179203 (Last Access: 21.11.2020).

^[45] WBGU (2018): Vier Initiativen für Fairness, p. 28.

^[46] Serdeczny (2017): What Does It Mean To ‘Adress Displacement’ Under the UNFCCC? Discussion Paper No. 12.; cf. WBGU (2018): Vier Initiativen für Fairness, p. 29.

^[47] WBGU (2018): Vier Initiativen für Fairness, p. 28.

^[48] Individualized claims of migrants against emitting states are also being discussed. But there are considerable doubts; cf. Vöneky/Beck (2017): in Prölß, Internationales Umweltrecht, p. 166.

^[49] Cf. for failing to meet climate targets see Climate Action Network Europe (2018): Off target Ranking of EU countries’ ambition and progress in fighting climate change.

^[50] Frank (2019): Klimabedingte Migration, in: Neue Zeitschrift für Verwaltungsrecht 2019, p. 529.

^[51] Art. 8 para 1 Paris Agreement, 2015; https://unfccc.int/files/essential_background/convention/application/pdf/english_paris_agreement.pdf; Nr. 53 Adoption of the Paris Agreement, 2015; https://unfccc.int/resource/docs/2015/cop21/eng/l09r01.pdf (Last Access: 21.11.2020).

^[52] Frank (2016): Anmerkungen zum Pariser Klimavertrag aus rechtlicher Sicht, Zeitschrift für Umweltrecht 2016, p. 354.

^[53] ILC, Responsibility of States for Internationally Wrongful Acts; https://legal.un.org/ilc/texts/instruments/english/draft_articles/9_6_2001.pdf (Last Access: 21.11.2020).

^[54] Frank (2019): Klimabedingte Migration, in: Neue Zeitschrift für Verwaltungsrecht 2019, p. 531 et seqq.; Schmalenbach (2017): Verantwortlichkeit und Haftung, p. 215 et seqq., in: Prölß, Internationales Umweltrecht, 2017.

^[55] ICJ (1996): Legality of the Threat or Use of Nuclear Weapons, ICJ Rep 1996, 226 (242) (para 29).

^[56] Frank (2019): Klimabedingte Migration, in: Neue Zeitschrift für Verwaltungsrecht 2019, p. 532.

^[57] ILC-Prev. Draft Art. 3 Com. (14).

^[58] Trail Smelter Arbitration (USA v. Canada), Reports of International Arbitral Awards (1938/41), Vol. III, 1964 et seqq.

^[59] Wolfrum (2013): International Courts and Tribunals, Evidence, In: Max Planck Encyclopedia of Public International Law 2013 para. 10 and para. 69 et seqq.

^[60] Frank(2014):Klimahaftung nach Völkerrecht in Neue Zeitschrift für Verwaltungsrecht – Extra 11/2014, p. 4 et seqq.

^[61] ILC, Responsibility of States for Internationally Wrongful Acts; https://legal.un.org/ilc/texts/instruments/english/draft_articles/9_6_2001.pdf (Last Access: 21.11.2020).

^[62] Frank (2019): Klimabedingte Migration, in: Neue Zeitschrift für Verwaltungsrecht 2019 p. 531; dissenting: Vöneky/Beck (2017): Umweltschutz und Menschenrechte in Prölß, Internationales Umweltrecht, p. 133 et seqq.

^[63] Sands/Peel (2018): Principles of International Environmental Law, p. 298.

^[64] Rahmstorf/Schnellnhuber (2019): Der Klimawandel, p. 68 et seqq.

^[65] Trail Smelter Arbitration, Reports of International Arbitral Awards (1938/41), Vol. III, p. 1931 f.

^[66] Frank (2019): Klimabedingte Migration, in: Neue Zeitschrift für Verwaltungsrecht 2019, p. 532.

^[67] Trail Smelter Arbitration, Reports of International Arbitral Awards (1938/41), Vol. III, p.1980.

^[68] Pulp Mills on the River Uruguay (Argentina v. Uruguay), 20.4.2010, ICJ Reports 2010, p. 14.

^[69] Frank (2019): Klimabedingte Migration, in: Neue Zeitschrift für Verwaltungsrecht 2019, p. 532.

^[70] Certain Activities Carried out by Nicaragua in the Border Area (Costa Rica v. Nicaragua) u. Construction of a Road along the San Juan River (Nicaragua v. Costa Rica), Judgement, ICJ Reports, 2015, 615 et seqq.

^[71] Frank (2019): Klimabedingte Migration, in: Neue Zeitschrift für Verwaltungsrecht 2019, p. 533.

^[72] Certain Activities Carried out by Nicaragua in the Border Area (Costa Rica v. Nicaragua) u. Construction of a Road along the San Juan River (Nicaragua v. Costa Rica), Judgement, ICJ Reports, 2015, p. 707.

^[73] Pulp Mills on the River Uruguay (Argentina v. Uruguay), 20.4.2010, ICJ Reports 2010, p. 83.

^[74] Certain Activities Carried out by Nicaragua in the Border Area (Costa Rica v. Nicaragua) u. Construction of a Road along the San Juan River (Nicaragua v. Costa Rica), Judgement, ICJ Reports, 2015, p. 707.

^[75] ILC, Responsibility of States for Internationally Wrongful Acts; https://legal.un.org/ilc/texts/instruments/english/draft_articles/9_6_2001.pdf (Last Access: 21.11.2020).

^[76] cf. Frank (2019): Klimabedingte Migration, in: Neue Zeitschrift für Verwaltungsrecht 2019, p. 534.

^[77] f.i. United Nations Framework Convention on Climate Change or the Paris Agreement

^[78] Frank (2019): Klimabedingte Migration, in: Neue Zeitschrift für Verwaltungsrecht 2019, p. 534.

^[79] ILC, Responsibility of States for Internationally Wrongful Acts; https://legal.un.org/ilc/texts/instruments/english/draft_articles/9_6_2001.pdf (Last Access: 21.11.2020).

^[80] Frank(2014):Klimahaftung nach Völkerrecht in Neue Zeitschrift für Verwaltungsrecht – Extra 11/2014, p. 3 et seqq.

^[81] cf. Art. 31 com. (9) u. (10) ARS.

^[82] Frank (2019): Klimabedingte Migration, in: Neue Zeitschrift für Verwaltungsrecht 2019, p. 534.

^[83] ICJ, Factory of Chorzow, Urt. v. 13.9.1928, PCIJ Series A No. 17 (Merits).

^[84] WBGU (2018): Vier Initiativen für Fairness, p. 30.

December 29, 2020August 4, 2021

Earthquakes, Fires and Floods: How the Climate Crisis Will Transform Global Migration

29 December 2020 – by Eliana Stern

It was not meant to last forever in the real world. But why admit that, when you can go on doing what you always do, mourning and laying blame, always the two together. I don’t need your praise to survive. I was here first, before you were here, before you ever planted a garden. And I’ll be here when only the sun and moon are left, and the sea, and the wide field. I will constitute the field.^{^[1]}

— excerpt from Witchgrass, Louise Glück

1. Introduction: The Threat of Displacement

When high-tide hits, Ioane Teitiota races to his flimsy sea wall, quickly patching up holes in the fragile boundary between his home in the archipelago nation of Kiribati, and the ever-menacing ebb and flow of the Pacific Ocean. Today, the nation of Kiribati exists as a collection of small land strips struggling to stay afloat in the increasingly precarious Pacific. Teitiota, the world’s first official climate refugee, currently resides with his wife and three children in the nation’s main island Tarawa, which measures a mere 3m (9.8ft) above sea level at its highest point. His days are spent either preparing for high tide or reeling from it, with periodic attempts to treat the red patches that cover his children’s skin––an adverse effect of bathing in the island’s contaminated groundwater. When asked about his futile battle for recognition as a climate refugee, Teitiota declared somberly, “I’m the same as people who are fleeing war. Those who are afraid of dying, it’s the same as me.”^[2]

The historian Will Durant once wrote that “there have only been twenty-nine years in all of human history during which a war was not underway somewhere.”^[3] Given this calculation, we can easily conclude that conflict is an innate aspect of human nature and history. For as long as nation-states have existed, so has war and conflict. And for as long as war and conflict have existed, so have refugees. Refugee crises––i.e., the mass-movement or mass-reception of forcibly displaced persons––have been rampant along the US and European borders for generations. Today, however, the face of this crisis is beginning to change. A new age has introduced a new player, one who acts cruelly and mercilessly, who cannot be prosecuted against or pleaded with, and who has little regard for the value of human life: our home, Planet Earth.

As partisan as they may seem in news and politics, the widespread effects and challenges of climate change are no longer something we can ignore, no longer something to be confined to the far-left of the political spectrum. With unprecedented levels of greenhouse gases in the atmosphere, the face of our planet is transforming rapidly: temperatures rising, ice sheets melting, sea levels surging, forests burning, oceans acidifying, soils depleting––and that’s only the beginning. The heightened frequency and extremity of natural disasters, particularly along the Earth’s lower latitudinal belt, has rendered many regions and homelands unlivable, causing devastation for millions of citizens around the globe.^[4] As we face an increasingly hazardous world at the hands of anthropogenic climate change, it is imperative that we adapt and mitigate risk by means of transforming our current migration system. While the ultimate solution undoubtedly lies in a more pervasive, preventative approach––including reducing global emissions and making a worldwide shift to renewable energy––a more immediate solution must encompass sustainable development in regions most vulnerable to environmental and climate impacts, as well as stronger migratory aid and support through policy-based regulation and protection within domestic and global migration pathways.

2. The Effects of Climate Change

On March 14, 2019, the Tropical Cyclone Idai struck the southeast coast of Mozambique, culminating in a reported 146,000 displaced persons, 100,000 damaged homes, 1 million acres of destroyed crops, $1 billion worth of demolished infrastructure, and approximately 1.85 million people in need of assistance.^[5] Though this event was without question the single worst storm in Mozambique’s history, various studies have shown that “unprecedented”^[6] storms such as this one will soon become ordinary, setting a new and frightening standard for what we can expect from the weather. In 2017, 68.5 million people were forcibly displaced around the world; one third of those displacements took place due to extreme weather events. What’s more, “scientists fear that extreme events of this sort will increasingly occur in clusters, with one disaster following immediately after another––much as Hurricanes Irma and Maria followed Harvey in August-September 2017.”^[7] The potential consequences of this trend are daunting, with both its capacity for unparalleled destruction and its power to inhibit or disincentivize aid from outside parties.

There’s no shortage of critical issues the international community will face as a consequence of climate change. Soil depletion, land degradation and ocean acidification will continue to increase the stress on resources such as food, water and energy, especially in underdeveloped countries. In many poor and divided countries, officials fear that resource scarcity will give way to conflict among internal factions, endangering fragile governments and providing breeding grounds for terrorist groups and organizations.^[8] If we do not change our practices rapidly and radically, the combination of resource scarcity, extreme weather hazards, rising sea levels, and increased vulnerability to disease outbreaks will undoubtedly lead to mass displacement and mass migration on a perennial scale.

It is important to note that the effects of climate change are not evenly distributed. Far from it, the World Bank estimated in 2018 that “three regions (Latin America, sub-Saharan Africa, and Southeast Asia) will generate 143 million more climate migrants by 2050.”^[9] The countries most likely to feel pressure from climate change are those with low adaptive capacities, vulnerable geographies, fragile ecosystems, and reliance on climate-sensitive industries such as agriculture or fishing.^[10] At the same time, it is the citizens living in these countries––generally the poorest and most vulnerable––who often lack adequate resources needed to migrate. While more developed and diversified countries may not feel the stress of climate change as imminently or severely as other regions do, climate calamities in other parts of the world will vastly increase the flow of migrants to the US and European borders. In a 2015 memorandum, the Department of Defense (DoD) wrote to Congress that “climate change is an urgent and growing threat to our national security, contributing to increased natural disasters, refugee flows, and conflicts over basic resources such as food and water. These impacts are already occurring, and the scope, scale, and intensity of these impacts are projected to increase over time.”^[11]

In 2008, the Organization for Economic Cooperation and Development (OECD) released environment working papers which ranked port cities around the world by their exposure and vulnerability to climate extremes. These papers served as the first official estimate of the world’s largest port cities’ vulnerability to coastal flooding and high wind damage due to storm surge, and further aimed to explore how climate change will affect future exposure in port cities, population growth, and urbanization. The top ten cities that this assessment (conducted in 2005) found to be most exposed in terms of population were “Mumbai, Guangzhou, Shanghai, Miami, Ho Chi Minh City, Kolkata, Greater New York, Osaka-Kobe, Alexandria and New Orleans; almost equally split between developed and developing countries.”^[12] However, while the exposure of coastal cities may be evenly split along the developed and developing world, it is important to note that exposure does not always translate into impact. The impact of high winds or storm surges in coastal cities nearly always depends on the scope and scale of protection measures. And predictably, cities in richer countries tend to have vastly more thorough protection systems in place than those in the developing world. The policy implications of this report were evidently in favor of greater mitigation and adaptation at the city-scale, especially with regard to global mitigation efforts buying time for cities to put forth more adaptive measures.

A second paper released by the OECD in 2008 served to assess the economic impacts of climate change at the city-scale, focusing on sea level rise and storm surge, using Copenhagen as a case study. The study used a statistical analysis of past storm surges in Copenhagen coupled with geographical information on the city’s population in order to accurately estimate the direct (i.e., damage to infrastructure) and indirect (i.e., unemployment) losses of storm surge. In conclusion, the study found that while Copenhagen’s vulnerability to coastal flooding is relatively low, without the protective measures that are already in place, losses would still reach EUR 3 billion by the current 120-year storm surge event.^[13] Because the high level of protection and low level of risk in Copenhagen is not realistic for all cities, the study went on to apply the same methodology to a virtual city––based on Copenhagen but without its current protective measures––in order to estimate the more general economic cost of climate change-induced sea level rise. This approach found that the increased risk due to climate change would prove overwhelmingly destructive in many cities if the global community does not support a massive upgrade in widespread flood protection. In conclusion, the papers note that “even though a coastal city might be very well protected today, the risks of climate change will require attention to the maintenance and upgrade of coastal flood protection in order to limit future risks in the face of future sea level risk and increased storm surge.”^[14] Moreover, “it is important to build defenses in a way that allows for flexibility, taking into account the certainties in projections and making it possible to upgrade them if sea level rise is larger than expected.”

3. The Climate-Migration Nexus

When Ioane Teitiota applied for his family’s refugee status in New Zealand in 2015, his case made it all the way to the High Court of New Zealand but was ultimately rejected, and he was later deported for overstaying his visa. Now, back in the disappearing nation of Kiribati, Teitiota stands by his demand, stating “I think being a refugee is the best way of protecting myself. Especially if something happens to Kiribati.”^[15] With sea levels rising at approximately 12mm/year, eight Pacific Islands have already been submerged completely. Two more are on the brink of going under, and “by 2100, it is estimated that 48 islands overall will be lost to the rising ocean.”^[16] Though the various New Zealand tribunals and courts that considered Teitiota’s case did accept that he was telling the truth, they did not believe the dangers he was describing to be imminent. Specifically, the New Zealand government did not accept that Teitiota’s circumstances were similar enough to those described under international refugee law, and therefore they refused to grant him refuge.

In a similar vein, islands within the Pacific nation state of Tuvalu “have become meaningful spaces in cosmopolitan discourses only as they disappear.”^[17] Identified in the 1980s as a region at risk from rising sea levels due to climate change, Tuvalu’s nine coral atolls and reef islands have become a central motif in the climate change debate, along with the nation’s 10,000 inhabitants. In an ineffectual attempt to address the massive environmental justice issue posed by rising sea levels, “members of parliament, diplomats and community leaders repeatedly highlight that Tuvaluans face significant climate change impacts and yet make little contribution to reducing the fossil fuel use that causes them.”^[18]

The term “climate refugee” plays an interesting role in today’s discussions on the climate-migration nexus. Though the official definition of a refugee given by the United Nations High Commissioner for Refugees (UNHCR) is “someone who has been forced to flee his or her country because of persecution, war or violence… [and] has a well-founded fear of persecution for reasons of race, religion, nationality or political opinion,”^[19] the mainstream definition tends to be much more all-encompassing. Typically, any person who is forcibly displaced from their home due to factors out of their control may be considered a refugee by the general public. Historically, refugees have sought asylum for reasons linked to religious or ethnic conflict and political instability. However, the circumstances that refugees find themselves forced into remain overwhelmingly alike, whether the displacement occurs due to internal conflict, violence, or natural causes.

Are climate refugees not also forced from their homes, separated from those they love, driven by violent forces they have no control over? Climate refugees, like other refugees, live in fear of an ever-pursuing, elusive enemy. Climate refugees, like other refugees, lose everything they have, and are left with nowhere to turn. And yet, these refugees have no mention in the 1951 refugee convention which we still refer to today––a document written in post-war Europe, long before climate change became an international threat.^[20]

The current system in place for helping aid refugees does not take into account the existence of climate refugees, and therefore is nowhere near well-equipped to manage a world of increasing climate stressors. Because climate migrants are not recognized as refugees under international law, they are not afforded the same legal protection in seeking asylum. Not only does this force many people to remain in dangerous or hazardous environments, but it makes the migratory journey that much more treacherous for those who are forcibly displaced. In order to truly transform our global system of migration into one that is well-prepared to address climate-related crises, we must first establish an official status for climate migrants that caters to their specific climate-related fears and grants them legal recognition and protection as individuals displaced at the hands of the environment. Without this, climate refugees will be forced to continue migrating under extremely strenuous circumstances, with little to no aid from the international community.

4. The Solution: Restructuring the Global Migration System

First and foremost, measures must be taken by the international community in order to reduce forced climate migration to the extent possible. Much can be done through disaster risk reduction (DRR), a systematic approach to managing and mitigating natural hazards such as earthquakes, floods, droughts, and cyclones.^[21] The mentality behind this approach lies in the distinction between hazards and disasters. Hazards, which consist of natural, climate-related causes, often lead to disasters in communities where the hazard took place. However, the severity of these disasters depends on a myriad of factors, including exposure, vulnerability, and most importantly, resilience. While we may not be able to control exposure or even vulnerability, we have significant power in building and strengthening resiliency in regions which may be hit the hardest. This can be done through a widespread upsurge in sustainable development, e.g., stronger sea walls, hurricane-proof glass, improved early evacuation/warning systems, and the implementation of DRR in urban development/planning.^[22] With more systems in place to reinforce durability and resilience in regions most vulnerable to climate stressors, a significant portion of climate displacement could feasibly be eliminated. However, preventative measures––as crucial as they may be––are not enough. Prevention is the logical first step in adapting to climate change, but by no means is it the comprehensive solution we need.

The second step in alleviating climate migration is, predictably, aid to migrants. When climate displacement cannot be avoided by means of DRR or sustainable development, it is crucial that migrants receive support and recognition from the international community. In 2015, the UN International Organization of Migrants (IOM) created a Migration, Environment and Climate Change (MECC) Division––the first of kind, dedicated to solving issues within the migration-climate nexus. Dina Lonesco, head of the MECC division, wrote that “regular migration pathways can provide relevant protection for climate migrants and facilitate migration strategies in response to environmental factors.”^[23] If migration pathways for climate migrants were actualized, they could serve as a means by which the international community provides “status for people who move in the context of climate change impacts, such as humanitarian visas, temporary protection, authorization to stay, regional and bilateral free movements’ agreements, among several others.”^[24] Though the MECC division is currently responsible for “overseeing, supporting and coordinating the development and policy guidance for activities with a migration, environment and climate change dimension,”^[25] their efforts thus far have been relatively small-scale, and they have yet to implement any of the truly radical transformations needed to ease the stressors of climate migration.

Whereas the MECC division within the IOM has thus far worked mainly in research and advocacy, a new international framework known as The Nansen Initiative is emerging as “a bottom-up, state-led consultative process with multi-stakeholder involvement”^[26] in order to establish a protection agenda for those who have been displaced internationally in the context of climate change-induced disasters. On the topic of its mission and goals, The Nansen Initiative wrote that “while people displaced within their own countries are covered by national laws, international human rights law, the UN Guiding Principles on Internal Displacement and a few regional instruments, a serious legal gap exists with regard to cross-border movements in the context of disasters and the effects of climate change.”^[27] As previously stated, “these people are not refugees under international refugee law, and human rights law does not address critical issues such as their admission, stay and basic rights.” The Nansen Initiative, therefore, is working to fill this legislative gap, and has begun doing so through inter-governmental regional consultations and civil society meetings in the Pacific Islands, Central America, the Horn of Africa, and Southeast Asia. The “bottom-up” strategy of The Nansen Initiative consists of starting small in order to build a foundation which can be used globally. It approaches this strategy by holding sub-regional consultations which build a consolidated knowledge base, then moving into a global dialogue to set an official protection agenda (which may include new laws, soft law instruments, and binding agreements), and finally ending with dissemination and follow-ups in regions around the world.

The protection agenda which The Nansen Initiative is working to build will be based on three main pillars: international cooperation and solidarity; standards for the treatment of affected people (i.e., admission, status and stay); and operational responses such as funding processes behind international and humanitarian aid. With a mission as ambitious as this one, it is important for the leaders of The Nansen Initiative to lay out a structured timeline for their agenda, which they outline on their mission page. Similar to the proposals I have already put forth, The Nansen Initiative plans for three distinct phases. First on the agenda is preparation before displacement occurs, much like what I laid out in my description of Disaster Risk Reduction. The second phase is comprised of protective and assistive efforts during displacement, whether this be through policy implementation, international aid, or a combination of the two. Lastly, the agenda would not be complete without delineating a transition to solutions in the aftermath of a disaster. Jane McAdam, a law professor at the University of New South Wales who specializes in refugees and climate change migration, wrote about The Nansen Initiative, saying, “it’s not a one size fits all approach, but a disaster toolkit.”^[28] In a world of increasing unpredictability with regard to natural disasters and climate calamities, The Nansen Initiative’s model for flexibility and versatility seems the only feasible solution.

5. Conclusion: Moving Forward

Climate change will always be a hard pill to swallow, as is anything which inhibits our profit-making capacity, our beloved practices and traditions, or the reality of any foreseeable future. Monetary means, as well as plain inertia, have served as a barricade by which the industrialized world protects itself from the effects of climate change. In doing so, we have turned a blind eye to nations which do not have this option, ignoring the direct consequences of our inefficient energy practices which we do not have the misfortune of experiencing firsthand. The failures of international asylum laws have culminated in global catastrophe, and the repercussions of these failures will only continue to grow.

Despite the proposals laid out in this paper, the only real strategy for combating climate change lies in eliminating the root of the problem: the burning of fossil fuels. Because “the human activities causing climate change are a more essential foundation of world economies, and less amenable to simple technological correctives,”^[29] the solution must ultimately encompass a vast economic and technological transformation on a global scale. While a restructuring of the global migration system is a necessary adaptation to climate change and climate migration, there will be no future for this system if we do not also address the heart of anthropogenic climate change, and alter our ways of life. The vast transformations needed to solve this issue has turned the climate crisis into a generationally-divisive topic, with many younger activists taking a stand against an older generation of global emitters. One such activist, 16 year old Greta Thunberg, spoke at the UN Climate Action Summit this past September, declaring pointedly to her audience that “you are failing us. But the young people are starting to understand your betrayal. The eyes of all future generations are upon you… Right here, right now is where we draw the line. The world is waking up. And change is coming, whether you like it or not.”^[30] Until then, Ioane Teitiota sits and waits in his cinder-block home in Tarawa.

Eliana is a sophomore at Stanford University majoring in Earth Systems, with minors in Arabic and Creative Writing. While on campus, Eliana could often be found planting, harvesting, and planning community events at the O’Donohue Family Stanford Educational Farm, where she serves as Vice President of Stanford RooTS. Since returning home due to the Covid-19 pandemic, Eliana has continued to foster her passions for food systems and social justice by working with The Farmlink Project, a volunteer-run, grassroots movement founded by students in response to the exploding food insecurity crisis. Farmlink connects farmers with surplus to food banks in need—getting food into the hands of those who need it and providing a source of income for farmers and truckers hit hardest by the pandemic.

Concerned with both the application and education of environmental justice, Eliana has taken unexpected advantage of the current remote situation by working with Curious Cardinals, another student start-up, where she mentors young students in writing, art, and environmental science.

References

^{^[1]} Glück, Louise. “Witchgrass.” Read A Little Poetry, 5 Mar. 2011, readalittlepoetry.wordpress.com/2005/09/29/witchgrass-by-louise-gluck/.

^[2] McDonald, Tim. “The Man Who Would Be the First Climate Change Refugee.” BBC News, BBC, 5 Nov. 2015, www.bbc.com/news/world-asia-34674374.

^[3] Hedges, Chris. “War Is a Force That Gives Us Meaning.” War Is a Force That Gives Us Meaning, PublicAffairs, 2014, pp. 16–36.

^[4] Dessler, Andrew E., and Edward Parson. The Science and Politics of Global Climate Change: a Guide to the Debate. Cambridge University Press, 2020.

^[5] Podesta, John. “The Climate Crisis, Migration, and Refugees.” Brookings, Brookings, 4 Sept. 2019, www.brookings.edu/research/the-climate-crisis-migration-and-refugees/.

^[6] Podesta, “The Climate Crisis, Migration, and Refugees,” 2019.

^[7] Klare, Michael. “If the US Military Is Facing up to the Climate Crisis, Shouldn’t We All? | Michael Klare.” The Guardian, Guardian News and Media, 12 Nov. 2019, www.theguardian.com/commentisfree/2019/nov/12/us-military-pentagon-climate-crisis-breakdown-.

^[8] Klare, “If the US Military Is Facing up to the Climate Crisis, Shouldn’t We All?” 2019.

^[9] Podesta, “The Climate Crisis, Migration, and Refugees,” 2019.

^[10] “5 Facts on Climate Migrants.” Institute for Environment and Human Security, 26 Nov. 2015, ehs.unu.edu/news/news/5-facts-on-climate-migrants.html.

^[11] Klare, “If the US Military Is Facing up to the Climate Crisis, Shouldn’t We All?” 2019.

^[12] Nicholls, R., et al. (2008), “Ranking Port Cities with High Exposure and Vulnerability to Climate Extremes: Exposure Estimates”, OECD Environment Working Papers, No. 1, OECD Publishing, Paris, https://doi.org/10.1787/011766488208.

^[13] Hallegatte, S., et al. (2008), “Assessing Climate Change Impacts, Sea Level Rise and Storm Surge Risk in Port Cities: A Case Study on Copenhagen”, OECD Environment Working Papers, No. 3, OECD Publishing, Paris, https://doi.org/10.1787/236018165623.

^[14] Hallegatte, S., et al. “Assessing Climate Change Impacts, Sea Level Rise and Storm Surge Risk in Port Cities: A Case Study on Copenhagen,” 2008.

^[15] McDonald, “The Man Who Would Be the First Climate Change Refugee,” 2015.

^[16] Podesta, “The Climate Crisis, Migration, and Refugees,” 2019.

^[17] Farbotko, Carol. “Wishful Sinking: Disappearing Islands, Climate Refugees and Cosmopolitan Experimentation.” Wiley Online Library, John Wiley & Sons, Ltd (10.1111), 12 Apr. 2010, onlinelibrary.wiley.com/doi/full/10.1111/j.1467-8373.2010.001413.x?casa_token=LBnGClY1O7MAAAAA%3AdZWtnhgT8VaN7gS_Vh2qgdHewKzcHwdcQMah7HmuWmhw-_HScnPM7jptNHLMi_WEItquvLwTvA.

^[18] Farbotko, “Wishful Sinking: Disappearing Islands, Climate Refugees and Cosmopolitan Experimentation,” 2010.

^[19] “How to Help Refugees – Aid, Relief and Donations: USA for UNHCR.” How to Help Refugees – Aid, Relief and Donations | USA for UNHCR, www.unrefugees.org/.

^[20] McDonald, “The Man Who Would Be the First Climate Change Refugee,” 2015.

^[21] Climate Change and Disaster Risk Reduction. United Nations, 2008, Climate Change and Disaster Risk Reduction.

^[22] Climate Change and Disaster Risk Reduction. United Nations, 2008, Climate Change and Disaster Risk Reduction.

^[23] Lonesco, Dina. “Let’s Talk About Climate Migrants, Not Climate Refugees – United Nations Sustainable Development.” United Nations, United Nations, June 2019, www.un.org/sustainabledevelopment/blog/2019/06/lets-talk-about-climate-migrants-not-climate-refugees/.

^[24] Lonesco, “Let’s Talk About Climate Migrants, Not Climate Refugees,” 2019.

^[25] “Migration, Environment and Climate Change (MECC) Division.” International Organization for Migration, 15 Feb. 2019, www.iom.int/migration-and-climate-change.

^[26] “Towards a Protection Agenda for People Displaced across Borders in the Context of Disasters and the Effects of Climate Change.” The Nansen Initiative, www.nanseninitiative.org/.

^[27] “Towards a Protection Agenda for People Displaced across Borders in the Context of Disasters and the Effects of Climate Change.” The Nansen Initiative, www.nanseninitiative.org/.

^[28] McDonald, “The Man Who Would Be the First Climate Change Refugee,” 2015.

^[29] Dessler, and Parson, “The Science and Politics of Global Climate Change: a Guide to the Debate,” 2020.

^[30] Staff, NPR. “Transcript: Greta Thunberg’s Speech At The U.N. Climate Action Summit.” NPR, NPR, 23 Sept. 2019, www.npr.org/2019/09/23/763452863/transcript-greta-thunbergs-speech-at-the-u-n-climate-action-summit.

December 16, 2020August 4, 2021

The Climate is Changing and so is Human Trafficking

published on 17 December 2020 – by Aubrey Calaway

Abstract: Where climate change wreaks havoc, human trafficking will follow. This piece untangles the ways that natural disaster, slow-onset environmental change, and modern-day slavery are already co-constructing cycles of suffering around the world. While the solution is not simple, there are some potential interventions that may help to mitigate the damage.

The Climate is Changing and So Is Human Trafficking Download

Aubrey Calaway is writer and researcher who has investigated issues of climate change, human trafficking, and community resilience. She currently works as a research fellow at Human Trafficking Search.

December 15, 2020August 4, 2021

The Criminalization of Climate Migrants Webinar

15 December 2020 – by Berkeley Center on Comparative Equality and Anti-discrimination

The Immigrant Justice and Climate Refugee Working Group at the Berkeley Center on Comparative Equality and Anti-discrimination are a group of academics and activists across the 6 continents working to address issues of inequality and discrimination.

There are two seemingly disparate trends building momentum across the globe that have yet to be examined in relation to one another. The first is climate change. Acknowledgment and awareness of climate change has steadily increased, although with more controversy in some nations than others. The second trend is the use of prisons to deter migration. At the same time that leaders are exploring ways of addressing climate change, countries that have tended to receive more of the world’s migrants are increasingly relying on criminalization and imprisonment to deter migration. These two challenges may be related, and each has its own racial justice and equality implications.

This interdisciplinary conversation explores the potential relationship between these problems and aims to create a foundation to inform the development of strategies to simultaneously address these problems and further equality, immigration justice, and solutions to climate change.

December 13, 2020August 4, 2021

What’s in a Definition: Refugee Protection is Failing Folks Fleeing Climate Disaster in Bangladesh

14 December 2020 – by Dharma Khalsa

INTRODUCTION

Climate change is slated to create the largest number of refugees in the coming decades. Yet, the current refugee definition does not adequately protect the increasing number of people bound to flee these inhospitable conditions. In 2016 extreme weather-related disasters displaced around 23.5 million people.[i] What is lost in this statistic are the people forced to flee their homes because of slow-onset environmental degradation like droughts, sea level rise, and melting permafrost.[ii]

Imagine for a moment that you are a Bangladeshi villager. For years you have watched as water creeps closer to your home. Then, one day, you return from a walk in the fields to find your house under water. Although you are used to some amount of flooding, this time the damage is too much. The next day, you pack up what you can and make the trek to a new home in the big city of Dhaka. This home is in a slum of the Mirpur district because you cannot afford anything else. You find somewhere to land, packed in like sardines next to your new neighbors; likely folks from other parts of the country, fleeing similar situations. After months with no job, nearly no food or clean water, and inadequate sanitation, you decide to try your luck elsewhere. You pack up your things, yet again, and hop on a bus to the Indian border. However, once you arrive you encounter a fence and are turned away before you can enter. With nowhere else to go you take a huge risk and flee to Europe.

For many this is a reality. Bangladesh is on the frontlines of the worst climate impacts. It is known as the ‘Land of Rivers’ because in a nation about the size of New York state there are nearly 800 rivers.[iii] Its low elevation, high population, inadequate infrastructure, and heavy reliance on farming makes Bangladesh a major generator of climate refugees.[iv] Bangladeshis have long used migration as a coping strategy because of the country’s natural susceptibility to extreme weather. However, the rate of migration has drastically increased with the modern onslaught of climate change.[v]

Bangladeshis are far from the only population facing an increase in climate refugees. However, the state is relatively poor, and therefore often struggles to suitably provide for its’ internally displaced citizens.[vi] Many end up fleeing the country altogether. In fact, in May 2017, Bangladesh was the largest single origin of migrants arriving in Europe.[vii]

Although there is an obvious need to assist people fleeing climate driven disasters and slow-onset environmental degradation, the current legal frameworks are insufficient. Climate refugees likely have a well-founded fear of living under hostile conditions, yet the current refugee definition only includes those with a “well-founded fear of persecution on account of race, religion, nationality, membership in a particular social group or political opinion.”[viii] This definition is far too narrow and leaves out folks fleeing their homes due to climate change.

This paper will examine the definition of a refugee as contemplated by the 1951 Convention through a hypothetical asylum claim for Janaki Aktar, originally from Kushtia, Bangladesh who flees to Dhaka after rising sea levels flood her home. It will then look at some of the regional expansion of the refugee definition to see if they might better apply to climate refugees. It will ultimately conclude that none of the current definitions are flexible enough to account for the thousands of people displaced by climate related events every year.

CLIMATE REFUGEES LIKELY DO NOT FIT THE 1951 CONVENTION DEFINITION OF A REFUGEE

At the individual level, a grant of asylum hinges on meeting the definition of a refugee.[ix] Mercifully, there may be some room to stretch the definition to account for instances where a government fails to care properly for its most vulnerable citizens who have been displaced by climate change. If the government is in such a state of disfunction that the fleeing person is “unwilling or unable” to avail themselves of state protection, they might be able to make a claim for asylum.[x] However, climate refugees will likely have to fight the definition at every turn, which makes the definition unsuitable for the increasing number of climate refugees seeking protection from the international community.

The Country Conditions

In May 2017, the largest single origin of migrants arriving in Europe were from Bangladesh. [xi] This is largely because Bangladesh is vulnerable to climate change. Generally, people do not flee their homes and villages at such a drastic rate without a good reason. The largest city in Bangladesh, Dhaka, is often the first stop for rural peoples who must abandon their homes. However, this city is already stretched to its limits.[xii] The fact that such a large number of Bangladeshis are leaving speaks to a state in peril.

States have a responsibility to protect and create conditions of dignity for their citizens. In Bangladesh, unlike in the United States, which has a higher level of economic stability, folks who are affected by climate change tend to end up falling outside of governmental protection. For example, after Hurricane Katrina, in New Orleans, there were many people displaced who were given temporary state protection until they got back on their feet. Bangladesh has had climate events that far surpass Katrina, yet folks, more often than not, are left unprotected by the government.[xiii] Unlike Katrina, Bangladeshis that leave their country do so because the state social nets are not equipped (or are non-existent) to support poor, rural communities who have lost their homes due to climate change.

Well-Founded Fear

The wide-spread migration happening in Bangladesh is a result of these general country conditions and it further lends itself to meeting the well-founded fear requirement.[xiv] A well-founded fear is “the likelihood of harm” and is often based on a pattern or an ongoing practice of persecution.[xv] The pattern of internal relocation to quell the suffering of losing one’s home, livelihood, and community, rather than providing resources to rebuild or fortify current residences exacerbates the degradation of human dignity faced by climate refugees in Bangladesh. Thus, this pattern contributes to the unreasonableness of relocating within the country.

Although “[a]n applicant cannot establish a well-founded fear or threat to life or freedom if she could avoid harm by ‘relocating’ to another part of the country,” this is only true if “such relocation would be reasonable.”[xvi] Therefore, the opposite of this must also be true. If it is unreasonable for an applicant to relocate to another part of the country, then they should be able to establish a well-founded fear or threat to life or freedom. Bangladesh’s reluctance to invest in cities, besides Dhaka, further contributes to the unreasonableness of relocation within the country.

On the list of circumstances potentially making relocation unreasonable is lack of “economic infrastructure” and “geographical limitations.”[xvii] In this case, Janaki attempted to relocate to Dhaka because that was likely the only option within Bangladesh to find work to support her family. Yet, the state was unable to provide the necessary economic infrastructure for her to meet these needs. Additionally, because the majority of Bangladesh (including Dhaka) is so vulnerable to climate change, the country is inherently limited by geography to provide a more secure place for Janaki to move. Without a reasonable alternative for relocation within Bangladesh, Janaki might be able to prove a well-founded fear through a pattern of persecution.

Persecution

“Persecution” is the “sustained or systemic violation of basic human rights demonstrative of a failure of state protection.”[xviii] In this case, the “persecution” at issue is not (as might be expected upon first blush) the climate event or even climate change itself, but rather it is the government’s inability to provide care and protection to its citizens. Such an inability results in the total loss of economic personhood.[xix]

In Kovac v. INS the court held that although the persecution is not direct, “economic proscription so severe as to deprive a person of all means of earning a livelihood may amount to physical persecution.”[xx] In that case, Kovac was a trained chef who was unable to find work cooking in Yugoslavia. Here, Janaki is not just looking for a “better” job or even a job in her previous field, she is seeking to maintain a sense of human dignity by finding any work at all. She is seeking to feed herself and her family, to have access to clean water, and not to contract a disease. Therefore, the economic proscription is so severe as to completely deprive Janaki of all means to earn a living. As Janaki has been denied all employment opportunities due to the state’s lack of economic infrastructure, her economic persecution far surpasses the economic deprivation experienced in Kovac.

When contemplating the application of economic deprivation in Dhaka (a city that is already incredibly overpopulated) living in a slum where “communicable diseases fester and fires sporadically raze homes” might be the only option due to a lack of work, and therefore a lack of financial resources.[xxi] In this sense, economic deprivation likely rises to the level of physical persecution as it is directly tied to the experienced physical discomfort. However, proving this is still a difficult task because courts have recognized that poverty, disease, and illiteracy exist in every country and do not in themselves amount to persecution. Thus, the surrounding circumstances, including the country conditions and nexus of persecution will help slide the scale one way or the other.

On Account Of “Social Group”

Here is where the definition gets harder to meet because a climate refugee does not appear to clearly fit into a Convention group. The well-founded fear of persecution must be on account of “race, religion, nationality, membership in a particular social group or political opinion.” [xxii] The most likely option is that this persecution is on account of social group. Specifically, Janaki is part of a group of displaced, rural citizens with little education, who have lost their home, land, and community. Yet, it is tricky when trying to discern whether her persecution was on account of this social group or this group resulted in de facto persecution by the state.

However, if she fails to show direct persecution for a convention reason, thus establishing ‘nexus,’ all hope might not be lost. In fact, “where the risk of being persecuted at the hands of a non-State actor is unrelated to a Convention group, but the inability or unwillingness of the State to offer protection is for a Convention reason,” nexus may still be established.[xxiii] This is called bifurcated nexus, where direct harm or the failure of state protection against persecution on the basis of a Convention reason can meet the definition. Therefore, although climate change did not target Janaki for a Convention reason, as climate is generally an indiscriminate force without such an agenda, all might not be lost. She may yet prove that the state failed to protect her from economic deprivation on account of being a displaced person from a rural community. Assuming the state does not extend its lack of protection to everyone in Dhaka, equally, a case for persecution based on bifurcated nexus might exist.

Furthermore, the UNHCR does not endorse the term “climate refugee” and tends to only recognize refugee status of a person displaced by climate events if there are “nexus dynamics” at play. [xxiv] Arguably, in any case that a climatic event rises to the level where conditions exist that force a person to flee across borders, these dynamics exist. Thinking back to the case of Katrina, had the Bangladeshi (or any) state created a social net to provide for displaced folks, they likely would never have left the country. Even so, Janaki will likely have to evidence that “nexus dynamics” in the form of bifurcated nexus resulted in persecution on account of her social group. Unfortunately, it is likely that the state would treat a poor urban citizen the same as a displaced rural citizen, and thus she will likely not be able to meet this element.

Courts in the U.S. have noted that “aliens fleeing general conditions of violence and upheaval in their countries, would not qualify for asylum.”[xxv] This likely includes climate refugees as they would have to fight the definition at every turn. Therefore, a broader definition is needed to account for climate refugees seeking asylum. Some regional Conventions have sought to address broader scales issues of violence and upheaval in their definitions. This is where the idea of an effects versus intent framework may be important to consider.

CLIMATE REFUGEES LIKELY DO NOT MEET THE ORGANIZATION OF AFRICAN UNITY (“OAU”) OR THE CARTAGENA CONVENTIONS DEFINITION OF A REFUGEE IN A MEANINGFUL WAY

Looking at the social framework of refugee protection, if climate change drives a person from their homeland because they are not cared for by their own state, this may result in de facto loss of state protection. Yet, the original 1951 Convention definition is too narrow to account for such a social framework. The refugee definition has been stretched by the Organization of African Unity (“OAU”) and the Cartagena Convention, in an attempt to provide protection for refugees fleeing larger events than individual persecution. However, even this expansion of the definition does not meet the ever-expanding needs of climate refugees who still very much feel the effects of displacement, regardless of the basis for that displacement.

The OAU was the first regional Convention to expand the definition of a refugee. The:

term “refugee” shall also apply to every person who, owing to external aggression, occupation, foreign domination or events seriously disturbing public order in either part or the whole of his country of origin or nationality, is compelled to leave his place of habitual residence in order to seek refuge in another place outside his country of origin or nationality.[xxvi]

On its face, this definition should accommodate a climate ‘event’ like a hurricane or a flood. But it still does not seem to account for slow onset climate change, such as increased salinity or rising sea levels. Furthermore, in application the OAU definition is primarily geared towards large social events like civil war and the repercussions therein. Climate issues have been taken into account under the OAU to some degree but, generally, like the 1951 Convention definition, only when they include “nexus dynamics.”[xxvii]

The second expansion of the definition happened at the Cartagena Convention and:

includes among refugees, persons who have fled their country because their lives, safety or freedom have been threatened by generalized violence, foreign aggression, internal conflicts, massive violation of human rights or other circumstances which have seriously disturbed public order.[xxviii]

This expansion comes the closest to protecting climate refugees. For example, following the 2010 earthquake in Haiti, Haitian refugees used the Cartagena Convention to argue for asylum.[xxix] Many of these claims succeeded under a humanitarian argument that focused on the impact of the earthquake on displaced Haitians rather than particularized persecution executed by the state or an individual.[xxx]

This is important because it illustrates the kind of broad, social, humanitarian thinking that will likely be necessary to adequately protect climate refugees. However, the 2010 earthquake is still the only time in the modern era that this argument has been successful at such a large scale and it will likely be contested as these impact claims become commonplace. Furthermore, the Cartagena Convention is a limited expansion in South America that does not extend to places like Bangladesh.

CONCLUSION

As this paper shows, there is often a tension in the way refugee status is applied between the individual status of an asylum seeker and the social imperative to protect human dignity. When definitions become too narrow—as to list permissible grounds—it becomes easy for certain people to fall through the cracks. The refugee definition has lost touch with its intended purpose when it must be stretched so far that it breaks in order to grant asylum to folks fleeing climate disaster. Therefore, a great need exists for new safety nets and protections to replace the piecemeal apparatus that climate refugees currently have to stitch together to gain back human dignity.

As climate change begins to ravage more and more communities, it also takes on a human face. In order to protect human rights, it is increasingly important to consider what our intention is as a global community. Whether we wish to prioritize a narrow view of refugee protection that focuses on the perpetrator of harm or throw open the doors and accept the effects of harm experienced be people as a basis for protection. It may be that climate refugees have to take a note from the UNHCR and stop using the term “refugee” altogether. And perhaps, to their benefit, a wholly different mechanism must be developed that is flexible enough to account for the variety of harms that climate change so often creates.

ALL IMAGES TAKEN BY AUTHOR ON A TRIP TO KUSHTIA, BANGLADESH IN FEB. 2014:

Dharma grew up New Mexico, on a piece of property that borders one-hundred acres of BLM land. At 11, she spent 6 years attending a boarding school in Amritsar, India, where she graduated from high school. Dharma then attended Mount Holyoke College, where she earned a B.A. in history and fine art in 2013. After graduating, she spent 6-months visiting 22 countries on six continents (including Bangladesh). She then moved to Portland, Oregon where she worked on the front lines for Greenpeace as an environmental activist.

Dharma now attends the University of New Mexico School of Law, where she is working towards the Natural Resource and Environmental Law certificate, is co-editor-in-chief of the Natural Resource Journal, was on the Environmental Moot Court team, and tutored for the Property I. In the summer of 2019, Dharma clerked for Kennedy, Kennedy & Ives, working mainly on plaintiff civil rights litigation. In 2020, she worked for the USDA (from her kitchen). In her free time (not during a pandemic), Dharma can be found at a hot-yoga studio, a poetry slam, coffee-shop, on an airplane to some foreign country, or exploring the local outdoors.

References:

[i] All statistics taken from: Environmental Justice Foundation (“EFJ”), Climate Displacement in Bangladesh, https://ejfoundation.org/reports/climate-displacement-in-bangladesh.

[ii] Id. The actual number of climate refugees is likely much higher

[iii] EJF, No Place Like Home–Bangladesh: Land of Rivers, https://ejfoundation.org/films/bangladesh-land-of-rivers.

[iv] EJF, Climate Displacement in Bangladesh, https://ejfoundation.org/reports/climate-displacement-in-bangladesh.

[v] Id. The number of people displaced by sea level rise, storms, cyclones, drought, erosion, landslides, flooding, and water salinization has not been otherwise seen in the modern era.

[vi] Id. Between 1,000-2,000 people move to Dhaka every day (largely due to the changing environment).

[vii] Id.

[viii] 1951 Convention relating to the Status of Refugees; 1967 Protocol relating to the Status of Refugees; See INS v. Luz Marina Cardoza-Fonseca, 480 U.S. 421 (1987) (defining a refugee as any person outside of their country… who is unable or unwilling to return to, and is unable or unwilling to avail… of the protection of, that country because of persecution or a well-founded fear of persecution on account of race, religion, nationality, membership in a particular social group, or political opinion.); Contrast with UN Protocol Relating to the Status of Refugees, 19 U.S.T. 6223, T.I.A.S. No. 6577, Art. 1(2) (defining a refugee as an individual who “owing to a 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…”)

[ix] See Sale v. Hatian Centers Council, 509 U.S. 155 (1993).

[x] See Tatiana Pavlova v. INS, 441 F.3d 82 (2d Cir. 2006).

[xi] EJF, Climate Displacement in Bangladesh, https://ejfoundation.org/reports/climate-displacement-in-bangladesh.

[xii] Poppy McPherson, The dysfunctional megacity: why Dhaka is bursting at the sewers, THE GUARDIAN, https://www.theguardian.com/cities/2018/mar/21/people-pouring-dhaka-bursting-sewers-overpopulation-bangladesh

[xiii] EJF, No Place Like Home – Bangladesh: Land of Rivers, https://ejfoundation.org/films/bangladesh-land-of-rivers.

[xiv] Criteria for Determining Refugee Status (Geneva, 1979) (explaining that fear is considered well-founded if it is establish, to a reasonable degree, that continued stay in the country of origin has become intolerable for the reasons stated in the definition, or it would be, for the same reasons, intolerable to returned).

[xv] See INS v. Luz Marina Cardoza-Fonseca, 480 U.S. 421 (1987).

[xvi] 8 C.F.R. §§ 1208.13(b)(3), 1208.16(b)(3).

[xvii] Id.

[xviii] See Hathaway, The Law of Refugee Status at 104-105 (1991).

[xix] See Djordje Kovac v. INS, 407 F. 2d 102 (1969).

[xx] Id.; Dunat v. Hurney, 297 F. 2d 744 (1961).

[xxi] Poppy McPherson, The dysfunctional megacity: why Dhaka is bursting at the sewers, THE GUARDIAN, https://www.theguardian.com/cities/2018/mar/21/people-pouring-dhaka-bursting-sewers-overpopulation-bangladesh

[xxii] 1951 Convention relating to the Status of Refugees; 1967 Protocol relating to the Status of Refugees.

[xxiii] UNHCR Social group guidelines at ¶ 23.

[xxiv] Climate change and disaster displacement, UNHCR, https://www.unhcr.org/en-us/climate-change-and-disasters.html (“The term “climate refugee” is often used in the media and other discussions. However, … Climate change affects people inside their own countries, and typically creates internal displacement before it reaches a level where it displaces people across borders. There may be situations where the refugee criteria of the 1951 Convention or broader refugee criteria of regional refugee law frameworks may apply, for example if drought-related famine is linked to situations of armed conflict and violence–an area known as “nexus dynamics.” Regardless, the term “climate refugee” is not endorsed by UNHCR, and it is more accurate to refer to “persons displaced in the context of disasters and climate change.”)

[xxv] See Matter of Mogharrabi, 19 I. & N. Dec. 439 (BIA 1987).

[xxvi] OAU Convention Governing the Specific Aspects of Refugee Problems in Africa, Art. I(2), (June 20, 1974) https://www.unhcr.org/en-us/about-us/background/45dc1a682/oau-convention-governing-specific-aspects-refugee-problems-africa-adopted.html (emphasis added).

[xxvii] Sanjula Weerasinghe, In Harm’s Way: International protection in the context of nexus dynamics between conflict or violence and disaster or climate change, UNHCR, 38-58 (Dec. 2018), https://www.unhcr.org/5c1ba88d4.pdf.

[xxviii] Cartagena Declaration on Refugees, Art. III(3), (Nov. 22, 1984) http://www.refworld.org/docid/3ae6b36ec.html (emphasis added).

[xxix] Sanjula Weerasinghe, In Harm’s Way: International protection in the context of nexus dynamics between conflict or violence and disaster or climate change, UNHCR, 60-86 (Dec. 2018), https://www.unhcr.org/5c1ba88d4.pdf.

[xxx] Id.

December 12, 2020January 2, 2024

Walk With Me

silhouette of people standing on mirror during golden hour

14 December 2020 – by Dave Inder Comar

The failure of states to stabilise the climate, along with the scientific uncertainty of whether the planet can actually stay under 1.5 degrees C of total planetary warming,^[i] suggests the real possibility that dramatic change and damage to the Earth will manifest by 2050 — and humans may not be able to prevent it. In a world plagued with global and enduring inequalities, these changes will also affect people and countries in a disproportionate and unjust way. Low-income nations, saddled by colonial legacies and inferior status in the global order, find themselves in difficult straits in preparing for climate change and are highly vulnerable with respect to climate-related disasters.^[ii] As such disasters increase in scope, migration and displacement from low-income countries will accelerate, leading to tens of millions or even billions of displaced people from already distressed areas to richer countries.^[iii]

Mitigating the scope of this crisis is imperative. But we must be very careful, and intentional, in putting forth the appropriate response. How governments intend to resolve the challenges of the climate crisis is as important as actually resolving the crisis itself. For example, it is not difficult to imagine an authoritarian response to challenges posed by climate change—either in those areas beset by climate damage, or in richer countries seeking to manage people movement, economic dominance, and challenges to the social order brought by displaced peoples or by an unhindered Nature. Traditional Hobbesian theory predicts that grave threats to life are the trigger for a Leviathan armed with broad, even dictatorial powers, in response to those threats.^[iv]

The stakes, then, are not just the continued habitability of the planet. What is also at risk this century is the very concept of the inherent dignity of all people—the foundation for human rights and democratic norms. It is an open question whether the legal and political frameworks that protect this dignity will withstand the climate crisis,^[v] a prospect which should trouble any true friend of civilisation and freedom, irrespective of political or philosophical belief.

The emergence of a cold-blooded and killing Leviathan—or set of Leviathans—in the decades ahead has already been previewed, and here I refer to the reprehensible and cruel responses of governments to the complex and deep-rooted issue of human migration to date. Climate change becomes the magnifier of displacement, the proverbial gasoline to the fire that will increase not only the levels of migration to come, but also the inhuman actions of governments already committed to the politics of the armed lifeboat—a world of militarised borders, aggressive anti-immigrant policing, and indefinite states of emergency and unilateral counter-insurgency actions against domestic and foreign political threats.^[vi]

In this kind of world, the protections of international law and treaties are openly dispensed with as citizens in rich countries consent to floating bodies of children and their parents in the Mediterranean^[vii] or in the Rio Grande,^[viii] the existence of detention camps at international borders operated in criminal conditions,^[ix] and even the Kafka-esque pronouncement that requires toddlers to appear in court to defend themselves at their own deportation proceedings,^[x] all as permissible responses to displacement. The state of exception implemented after 9/11 brought with it the resurgence of torture,^[xi] heinous wars of aggression against countries in the Middle East,^[xii] and indefinite detention of enemies in illicit facilities where the rule of law is not permitted to have effect.^[xiii] This state of exception has yet to be rescinded, and may very well serve as the model or even the backbone, for more perverse deviations from the rule of law as the climate crisis accelerates.

Citizens in high-income countries have broadly accepted brutish practices for decades against the displaced, irrespective of the government in power. In light of this, the political infrastructure has been established not just for an enduring form of climate apartheid^[xiv] that divides the world into a devastated and inundated Global South and more protected (but still impacted) Global North; it is beyond that—much beyond that in fact—more terrifying, more broken, more monstrous than even the 20th century dystopian novels had the capacity to imagine. Those novels could not have foreseen climate breakdown, tens of millions on the move for food, water, and dignity, and the automated machines, virtual barriers, drones, and face-recognition cameras used to gatekeep away the displaced from refuge.

Human consciousness evolved to avoid the traumas associated with Nature; being eaten by a predator, finding food, seeking shelter. It may not have the same capacity to withstand the machine horrors, the uninhibited genocides and crimes against humanity, or the amplified propaganda and messaging systems implemented by some governments to maintain power and keep the reality of a forever-changed planet as removed and as remote as possible. We will all be living in an experiment: both with respect to the imminent breakdown of the climate system, but also with the technological and social response to it. There is simply no precedent for what we as a species, but also in our individual lives, are about to experience.

This ‘Century of Crisis’ and ‘Century of the Displaced’ represents more than a crisis of people movement. It is a crisis of our common humanity, and a crisis of democracy. How will this species elect to share the resources of this planet with one another? What are the institutions and values that we must build and hold in order to create a place in which all humans have basic dignity, the means to explore and exercise their freedom, and access to the shared bounty of the planet (or what is left of it)? How will we transition our extractive economies into an economic and political system that ensures balance and harmony with the planet and with each other? What are the choices we must make—not just as communities and nations, but also individually, as academics, professionals, lawyers, activists, and others—in order to avoid the flawed destiny of climate breakdown and to build a road to a better future?

These are questions that touch not just on politics and economics, but also on philosophy, spirituality, and notions of the ‘good life’. It has never been easier in human history to build a walled garden of pleasure, escape, and tedium, surrounded by crystal screens, the endless scrolling of apps, and empty communications with others equally as empty. But no matter how much this garden is exalted in the popular media or by the modern archons of control as ‘what we all should be doing with our lives,’ the bitter truth is this: the road to a shared global freedom—the road to global democracy, the road to a stable climate, the road to a dignified human future for both rich and poor, those seeking refuge and those providing it—will be built on sacrifice, hard work, and the constant presence of failure.

This is now the task at hand. This road that I speak of is a road that must be paved, and walked, in order for our descendants to even have a chance to live on a planet that is habitable, civilised, dignified, and just. It is a road that will take hundreds or even thousands of years to pave and to walk, requiring reformed and even new international institutions that can plan for multiple generations ahead, rectify the inequalities that are the roots of this crisis, provide for justice, and keep and maintain a fragile peace amongst a species that has never truly known what it means to live in peace in a global and unified way.

These institutions will take a long time to create—longer than you or I have on this planet. Thus, we will have to start this journey though we will never live to see what awaits at the end of such a grand intergenerational project, or even if it will end at all. Who dares to dream a dream that has such uncertainty at its core?

But you and I, living and breathing at this moment, have been given a tremendous and unique honour: the honour of commencing this process, starting this journey, laying the groundwork for those who will stand on our shoulders and become future giants of sustainability, democracy, justice, and peace. We can begin this process today, to give others who we will never meet the opportunity to live in harmony with one another on an Earth that is at peace with itself. We will never see the end of the climate crisis. That glory will belong to others. But we have the honour of beginning the process of solving the problems we have caused or prolonged. It is an honour unique to all of human history.

My friend: I hope to see you, and to walk with you, on this path and on the journey ahead. It is a long walk, so we best get started. Let us walk for as long as we can.

Dave Inder Comar is the Executive Director of Just Atonement Inc. He is also the managing partner of Comar Mollé LLP, a corporate technology firm with offices in San Francisco and New York. Licensed to practice law before the California and New York bars, Mr. Comar has been involved in corporate technology, human rights, and international law for fifteen years. He is passionate about using the law to maintain and preserve global civilization. He holds a law degree from the New York University School of Law, a Master of Arts degree from Stanford University and Bachelor of Arts degrees from Stanford University. He is an advisor to Earth Refuge.

References:

^[i] Will Steffen et al. ‘Trajectories of the Earth System in the Anthropocene’ (2018) 115(33) Proceedings of the National Academy of Sciences 8252 <https://doi.org/10.1073/pnas.1810141115> accessed 25 November 2020 (“even if the Paris Accord target of a 1.5 °C to 2.0 °C rise in temperature is met, we cannot exclude the risk that a cascade of feedbacks could push the Earth System irreversibly onto a ‘Hothouse Earth’ pathway”).

^[ii] J. Timmon Roberts and Bradley C. Parks, A Climate of Injustice (The MIT Press 2007) 83, 131.

^[iii] Michelle Yonetani, ‘Disaster-related displacement in a changing climate’ Vol 65(1) – 2016 <https://public.wmo.int/en/resources/bulletin/disaster-related-displacement-changing-climate> accessed 22 November 2020; Melita H. Sunjic, ‘Top UNHCR official warns about displacement from climate change’ (UNHCR, December 9, 2018) <https://www.unhcr.org/493e9bd94.htm> accessed 25 November 2020; Baher Kamal, ‘Climate Migrants Might Reach One Billion by 2050’ (Inter Press Service, August 21, 2017) <http://www.ipsnews.net/2017/08/climate-migrants-might-reach-one-billion-by2050/?utm_source=rss&utm_medium=rss&utm_campaign=climate-migrants-might-reach-one-billion-by-2050> accessed 25 November 2020.

^[iv] Carl Schmitt, The Leviathan in the State Theory of Hobbes: Meaning and Failure of a Political Symbol (first published 1938, George Schwab tr, Greenwood Press 1996) 31; Leo Strauss, ‘Notes on The Concept of the Political,’ in The Concept of Political (J. Harvey Lomax tr, The University of Chicago Press 1996) 90 (noting that for Hobbes, “the securing of life is the ultimate basis of the state”).

^[v] Stephen Humphreys, ‘Climate change and international human rights law’ in R.Rayfuse and S. Scott (eds), International Law in the Era of Climate Change (Edward Elgar 2012) 56 (“In short, there are excellent reasons to suppose that climate change poses a near insurmountable challenge to the current human rights regime”);

^[vi] Amitav Ghosh, The Great Derangement (The University of Chicago Press 2016) 142.

^[vii] Helena Smith, ‘Shocking images of drowned Syrian boy show tragic plight of refugees’ (The Guardian, 2 September 2015) <https://www.theguardian.com/world/2015/sep/02/shocking-image-of-drowned-syrian-boy-shows-tragic-plight-of-refugees> accessed 25 November 2020.

^[viii] Adam K. Raymond, ‘The Story Behind the Viral Photo of a Drowned Migrant Father and Toddler’ (New York Magazine, 26 June 2019) <https://nymag.com/intelligencer/2019/06/the-story-behind-the-viral-photo-of-drowned-migrants.html> accessed 25 November 2020.

^[ix] Adam Serwer, ‘A Crime By Any Name’ (The Atlantic, 3 July 2019) <https://www.theatlantic.com/ideas/archive/2019/07/border-facilities/593239/> accessed 25 November 2020.

^[x] Christina Jewett and Shefali Luthra, ‘Immigrant toddlers ordered to appear in court alone’ (The Texas Tribune, 27 June 2018) <https://www.texastribune.org/2018/06/27/immigrant-toddlers-ordered-appear-court-alone/> accessed 25 November 2020; Andrew Buncombe, ‘Trump administration admits migrant children as young as 3 appearing in court alone for their own deportation proceedings’ (The Independent, 28 June 2018) <https://www.independent.co.uk/news/world/americas/child-immigrants-us-court-border-family-migrant-immigration-trump-latest-melania-a8422101.html> accessed 25 November 2020.

^[xi] Elisa Epstein, ‘CIA Contractor Details Torture of 9/11 Suspects’ (Human Rights Watch, 27 January 2020) <https://www.hrw.org/news/2020/01/27/cia-contractor-details-torture-9/11-suspects> accessed 25 November 2020.

^[xii] Saleh v. Bush, 848 F. 3d 880 (9th Cir. 2017); ‘Iraq War illegal, says Annan’ (BBC News, 16 September 2004) <http://news.bbc.co.uk/2/hi/middle_east/3661134.stm> accessed 25 November 2020.

^[xiii] Giorgio Agamben, State of Exception (first published 2003, Kevin Attell tr, The University of Chicago Press 2005) 3-4; Elise Swain, ‘It’s still open: will the Guantanamo Bay Prison become a 2020 issue? (The Intercept, 3 March 2019) <https://theintercept.com/2019/03/03/guantanamo-bay-carol-rosenberg-intercepted/> accessed 25 November 2020.

^[xiv] UN Human Rights Council ‘Report of the Special Rapporteur on extreme poverty and human rights: Climate change and poverty, Phillip Alston’ (17 July 2019) UN Doc A/HRC/41/39 <https://undocs.org/A/HRC/41/39> accessed 25 November 2020 [51].