A well-founded fear of (Anthropogenic) Climatic Change: International Resistance

to Climate Refugees

A Seminar Paper

Submitted to:

BA.LL.B. program

Nepal Law Campus, Tribhuvan University

(In the Partial Fulfillment of BA.LLB degree)

Submitted By:

Sadikshya Acharya

Roll No.: 58

4th Year

T.U Reg.no: 8-2-0041-0054-2015

BA.LLB program

Nepal Law Campus

Exhibition Road, Kathmandu

2019
 Acknowledgements

I would like to extend my sincere gratitude to Nepal Law Campus, B.A.LL. B Department for
encouraging me to undergo the study on the topic “A well-founded fear of Anthropogenic Climatic
Change: International Resistance to Climate Refugees”. I would like to thank my supervisor, Mr.
Tejman Shrestha, for his guidance, feedback and encouragement during my work with this
Seminar. I am also greatly indebted for his intellectual insights and his guidance in my academic
upliftment during the Seminar class lectures that he delivered this year. Thank you.

Sadikshya Acharya

BA.LLB, 4th year

Nepal Law Campus

 Preface

There exists a consensus amongst the Scientists worldwide that climate change poses the most
tremendous challenge to the survival of the world species.

Post Industrial Revolution, the natural landscape and balance of the Earth has altered due to
anthropogenic activities viz burning large amounts of fossil fuels. This in turn has caused the
considerable increase in greenhouse gas emissions into the atmosphere over the past 150 years.
The carbon dioxide (CO2) released from the burning of fossil fuels cannot be absorbed Since
millions of acres of forests are cut down each year. The growth in CO2 emissions has led to
increases in mean surface temperatures and therefore the incidence of such disasters as; hurricanes,
floods, desertification and diseases. In brief, it could be said that climate change is the human-
driven(anthropogenic) threat to future generations.

What is most important to note here is that there is a two-way relationship between climate change
and human mobility. They both trigger each other. People are forced to migrate directly due to the
impacts of climate change. According to Internal Displacement Monitoring Centre, since 2008, an
average of 36 million people across the globe have been forced to flee their homes due to natural
disasters. Moreover, the World Bank Group published a research of great importance on the impact
of climate change on migration in 2018. As a result, a new concept has born to the ever-expanding
terminology of environmental issues: ‘Climate Refugee’.

Although it is frequently used, the term ‘climate refugee’ does not have a legal basis under
International Refugee Law. The definition of a refugee provided by the 1951 United Nations
Convention relating to the Status of Refugees does not recognize a category of the people known
as climate refugees. Furthermore, International Human Rights Law does not address critical issues
such as their admission, stay, and basic rights. Nonetheless, this paper will employ the notion of
‘climate refugees.

Sadikshya Acharya

C
 Acronyms/Abbreviations

AALCO: Asian- African Legal Consultative Organization

WWI: First World War

WWII: Second World War

UN: United Nations

IDPs: Internally Displaced Person

OAU: Organization for African Unity

IRO: International Refugee Organization

CO2: Carbon dioxide

WBG: World Bank Group

IRL: International Refugee

UNFCC: UN Framework Convention on Climate Change

WFP: World Food Programme

UNHCR: United Nations High Commission of Refugees

MECLEP: Migration, Environment and Climate Change: Evidence for Policy

COP: Conference of the Parties

NASA: National Aeronautics and Space Administration

UNRRA: United Nations Relief and Rehabilitation Administration

D
Contents
Chapter One .................................................................................................................................................................1
Introduction .................................................................................................................................................................1
1.1 Background of the Study ...........................................................................................................................1
1.2 Statement of Problem........................................................................................................................................2
1.3 Objective of the study ................................................................................................................................3
1.4 Significance of the study ............................................................................................................................3
1.5 Methodology of the study .................................................................................................................................4
1.6 Limitations of the Study ............................................................................................................................4
1.7 Overview of the Literature ...............................................................................................................................4
Chapter Two ................................................................................................................................................................7
Introduction .................................................................................................................................................................7
2.1 Introduction I: Refugees ...................................................................................................................................8
2.2 Introduction II: Climate Change ...................................................................................................................10
Chapter Three ............................................................................................................................................................17
The notion of Legality ...............................................................................................................................................17
3.1 Are climate change refugees, de jure refugees? ............................................................................................17
3.1.1 Climate change refugees ..........................................................................................................................17
3.1.2 Refugee Criterion .....................................................................................................................................19
3.1.3 The existence of “persecution”, a sine qua non for Refugee Status. ....................................................23
Chapter Four .............................................................................................................................................................25
Existing Legal Frameworks ......................................................................................................................................25
Chapter Five...............................................................................................................................................................29
Non-refoulement and Climate Refugees ..................................................................................................................29
Chapter Six.................................................................................................................................................................31
Recognizing Climate Refugee under International Refugee Law .........................................................................31
6.1 Changing the Legal Definition of ‘Refugee’ ..................................................................................................32
6.2 The new face of the fear of persecution .........................................................................................................33
6.3. Preemptive Relocation ...................................................................................................................................35
6.4 Country’s Development Agenda ....................................................................................................................35
Chapter Seven ............................................................................................................................................................36
Findings, Conclusions and Recommendations ........................................................................................................36
Bibliography ...............................................................................................................................................................39
Conventions ...........................................................................................................................................................39
Books ......................................................................................................................................................................39
Articles ...................................................................................................................................................................40
Websites .................................................................................................................................................................41
 Chapter One

Introduction

1.1 Background of the Study

The 1967 Protocol to the UN Convention on the Status of Refugees defines a refugee as one who:

Owing to a well-founded fear of being persecuted for reasons of race, religion, nationality,
membership in 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, is unable or, owing to such fear, is unwilling to return to it.

The concept of “persecution” is not defined in the 1951 Convention or in any other international
instrument. From Article 33 of the 1951 Convention it can be inferred that a threat to life or
physical freedom constitutes persecution, as would other serious violations of human rights.
Furthermore, “persecution” is not limited to human rights abuses. It also encompasses other kinds
of serious harm or intolerable predicament. Persecution means that the country of origin of the
refugee is unwilling, or in the case of persecution by non-state actors unable, to fulfill its basic
duty of guaranteeing peace and security to its citizens thus destroying the ‘bond of trust, loyalty,
protection, and assistance between the citizen and the state [that] constitutes the normal basis of
society’.

This definition does not, in any plausible way, cover people fleeing their homes because of
environmental disruption, including disruption caused by climate change. Those fleeing disruption
caused by climate change are not plausibly thought of as being persecuted, and so cannot have a
well-founded fear of persecution. The danger caused by climate change is indiscriminate, and
hence the danger faced is not ‘on account of’ one of the ‘protected grounds’– race, religion,
nationality, membership in a particular social group, or political opinion. Given this, two essential
elements of the refugee definition are missing in the case of those fleeing the impact of climate
change.
1
For this reason, the climate refugees are excluded from the 1951 definition of Refugee Convention
by virtue of which, they are not given the right to non-refoulement and a durable solution.
However, at present times, the anthropogenic activities have given rise to climate change due to
which the human mobilization has amplified than ever before. However, there does not exist a
legal instrument to provide shelter to these refugees. In fact, some scholars argue that climate
refugees are a misnomer and that they cannot be called refugees in the first place. It is unfortunate
that the international community is showing least concern to such an issue which is not only
sensitive but a concern of whole mankind.

In these circumstances, an argument is placed that the right to non-refoulement and a durable
solution, is owed to the subset of those displaced by anthropogenic climate change of expected
indefinite duration, where international movement is necessitated, and where the threat is not just
to a favored or traditional way of life, but to the possibility of a decent life. In addition, given the
horrific data of human migration inflicted due to these climate change, the right to asylum ought
to be extended to the group picked out above. The number of people who face serious difficulty
from climate change is very large in comparison to the number who would be picked out by this
account, so it is important to see why only this group must be given this form of aid.

If an environmental problem is of temporary duration, such as the typical damage from a hurricane,
earthquake, or flood, it is reasonable to expect people to return to their homes once the danger has
passed, at least if help in restoring communities to functioning levels is granted. Because of this,
some form of temporary protection will usually suffice for those forced from their homes because
of environmental problems. However, the issues such as loss of island, or inhuman whether
conditions are very likely to be never settles. In this regard, the climate refugees are to be awarded
with the same protection given to political refugees within the 1951 Convention.

1.2 Statement of Problem

Like persecution, climate change-related disasters may constitute serious threats to life. In a
broader sense, those displaced by the effects of climate change may face similar dangers as
refugees, albeit for different reasons. Although, from a legal perspective, there is an intrinsic
difference between the two categories: international refugee law is rooted in the notion of the
surrogate nature of international protection, i.e. the idea that persons persecuted by the state of
origin can by definition no longer turn to its authorities to get protection, and thus depend on

2
protection provided by the country of asylum in particular and by the international community in
general.

The research problem revolves around the question whether the climate induced disasters entails
the well-founded fear of being persecuted and that the prerequisite of the term ‘persecution’ is met
or not in order to get entitled to the protection similar to that of political refugees under the 1951
Refugee Convention.

Considering the aforementioned background this study has pointed out the following problems,

• Is the current status of climate refugees under international community satisfactory?

• Is the criterion for a refugee reasonable at comtemporary times?

• Do climate migrants pose imminent threat? If yes, what are the threats?

• Is the existing legal frameworks sufficient to render protection to involuntary displacements?

If no, why?

1.3 Objective of the study

The main objective of the paper is to examine the current legal frameworks and the legal protection

of people affected by climate change. This study is conducted with the following main objectives

to address the aforementioned statement of problem, which are:

1. To disemminate a wider interpretation of persecution to encompass the threat of climate

change as enough threshold for persecution.
2. To impart the important triggers of climate migration and current status of climate refugees
under international community.
3. To scrutinize the criterias to qualify as a refugee.
4. To find the possible solution in solving the climate refugee’s problem.

1.4 Significance of the study

Climate refugees, although some scholars argue that it is misnomer, in reality exist. It is
discontented that they face an imminent threat at present times. Considering that the world is facing
the major global warming together with the other anthropogenic climate change, people are forced
3
to migrate. They are obliged to shift from their homeland involuntarily without a hope of ever
coming back. However, the international law pose resistance towards this group of people in
regards to aiding them protection (non-refoulement, durable solution, relocation).

The international community must establish an instrument (multilateral treaties) binding its
member states to provide such affected migrant protection(non-refoulement). This lacuna in
international law must be addressed as soon as possible. In this report, such dark issues are
unfolded and the solution so as to address this problem is rendered. Moreover, as a student of
international refugee law, such burning issue must be the topic we discuss so as to derive a
conclusion possessing utmost significance at the present times.

1.5 Methodology of the study

To accomplish the above stated-objectives of the study, the following methodology has been used.
This study has been conducted on the basis of doctrinal research method. Descriptive method has
been applied. Researcher has gathered mostly secondary and a few primary sources to complete
this research.

This research paper is being focused on the threat posed by the migrants due to ongoing climate
change and lacuna of the international instruments in serving protection sufficient to address the
given problem.

1.6 Limitations of the Study

Some limitations of this study have been listed below:

• The study has heavy reliance on secondary sources of information and lacks primary
sources of information. No interviews or field visit has been conducted in course of the
study.
• The study has given more emphasis to the criteria laid down in 1951 Refugee Convention
and Protocol thereto.
• The study is aimed towards giving apparent idea regarding the topic, i.e. Climate refugees,
refugee criterion, existing legal frameworks and possible solution.

1.7 Overview of the Literature

In the seminar paper, book written by various experts of International Refugee Law is to be taken
into consideration such as Jane McAdam, James Hathaway and Guy Goodwin et al.
4
Guy Goodwin, an expert of refugee law has set various arguments in this regard. The principle of
non-refoulement provides for the protection of refugees from being returned to places where their
lives are threatened. As such, it is binding on all States, including those which have not yet become
party to the 1951 Convention and/or its 1967 Protocol. The principle of non-refoulement, in the
context of International Human Rights Law, is the doctrine which is central to refugee protection,
that strictly prohibits the return of an individual to a country in which he or she may be persecuted.
He stipulates that climate even the unavailability of adequate food, drinking water or health
services in their aftermath may constitute serious threats to life, limb and health. Therefore, those
displaced by the effects of climate change may face similar dangers as refugees, albeit for different
reasons. Still, from a legal perspective, there is an intrinsic difference between the two categories.
It is well established under Refugee law that environmental factors that cause movements across
international borders are not grounds, in and of themselves, for the grant of refugee status.

Jane McAdam argues that 1951 Refugee Convention functions as a lex specialis in all cases, no
matter whether the migrant falls under the scope of the Convention. However, international refugee
law was not conceived to protect persons displaced across borders by the effects of climate change,
even though they flee dangers and therefore may find themselves in a refugee-like situation. James
Hathaway, a leading Refugee law expert, in this regard opines that the concept of persecution as
“the sustained or systemic violation of basic human rights demonstrative of a failure of state
protection”. Therefore, those who are displaced due to the Anthropogenic climate change and its
effect does not fall under the aegis of “protected persons” so as to apply the doctrine of non-
refoulement. However, he places a liberal approach in this regard via his understanding that, ‘there
is nothing implicit in the Refugee Convention that would preclude recognition of environmental
harms amounting to persecution, provided the requisite elements of Article 1 A (2) could be
established.’

Norman Myers has consistently devoted himself in the field of study of environmental refugees
whereby he strongly believes that since the line cannot be drawn clearly between the environment
and climate, the climate refugees can be considered as the environmental refugees. The same is
upheld since a consensus has been reached by the international community that the environmental
refugees exists.

5
Furthermore, an Indian Writer, B.S Chimni through his treatise The Reader brings together a
unique collection of multi-disciplinary materials that put refugee issues into their global context.
Various literatures have been consulted in course of this study to make this study authentic and
further convincing. A number of books, articles, journals, and other materials related with the
matter under discussion written by eminent authors and published by various authorities have been
reviewed for this study. This study has obtained a lot of information from a number of web domain
as well.

Some of the literature that has been studied during the course of the study include the following:

1. Guy S Goodwin-Gill, The Refugee in International Law, 2nd ed. 1996.

2. Jane McAdam, Climate Change, Forced Migration, And International Law 1st ed. 2012.
3. James C. Hathaway, The Law of Refugee Status 2nd ed. 1991.
4. Norman Myers, Environmental Exodus: An Emergent Crisis in the Global Arena 1st ed. 1995
5. International Refugee Law: A Reader 1st ed. 2000.

Apart from the aforementioned authorities, the list of other books, articles, journals and websites
that were studied have been provided under the Bibliography of the study.

6
 Chapter Two

Introduction

“The world will have over 50 million refugees by the year 2020.”

-Ban Ki Moon (Former Secretary General, UN)1

In common discourse, the term ‘refugee’ is understood as a person who has fled his home country
due to a threat to his life. Professor Guy S. Goodwin Gill defines the term as someone in flight,
who seeks to escape conditions found to be intolerable. The reasons for flight stipulates, inter alia,
flight from a threat to life or liberty, flight from prosecution, flight from deprivation, flight from
war of civil strife.2 Hence, implicit in the ordinary meaning of the word ‘refugee’ lies an
assumption that the person concerned is worthy of being and ought to be assisted, and, if necessary,
protected from the causes and consequences of flight.

Post WWI, League of Nations attempted to address the issue of the countless people left stateless
due to the war. As a result, the League defined a refugee as a person who is a) outside his or her
country of origin and, b) who is without the protection of the government of that state.3 The failure
of the League and the effects of the WWII subsequently left those who were stateless even more
vulnerable. Considering the given circumstances, various bodies were formed to address the issue:
first, the UNRRA, which dealt with the repatriation of those who were displaced by the Nazi and
fascist regimes, then the IRO and, finally, the UNHCR in 1951.

The 1951 Statute of the Office of the UNHCR was followed by the 1951 Convention relating to
the Status of Refugees [hereinafter the 1951 Refugee Convention], the international instruments
that still protect the rights of refugees and other persons of concern, inter alia, asylum-seekers,
stateless persons and certain groups of IDPs.

1
UN Secretary General, In Safety and Dignity: Addressing Large Movements of Refugees and Migrants: Rep.
Of the Secretary General, adopted at 21st April 2016 UN Doc. A/70/59.
2
GUY S. GOODWIN-GILL, THE REFUGEE IN INTERNATIONAL LAW, 1 (2ND ED., 1996).
3
United Nations High Commissioner for Refugees, Commentary on the Refugee Convention 1951 (Articles 2-
11, 13-37), October (1997).
7
2.1 Introduction I: Refugees
The 1951 Refugee Convention provides an obsolete definition of refugees enshrined under Article
1A (2)4:

As a result of events occurring before 1 January 1951 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. In the case of a person who has more than one
nationality, the term “the country of his nationality” shall mean each of the
countries of which he is a national, and a person shall not be deemed to be lacking
the protection of the country of his nationality if, without any valid reason based on
well-founded fear, he has not availed himself of the protection of one of the
countries of which he is a national.

Subsequently, the 1967 Protocol relating to the Status of Refugees [hereinafter 1967 Protocol]
amended the definition, as provided infra:

For the purpose of the present Protocol, the term "refugee" shall mean any person
within the definition of article I of the 1951 Convention as if the words "As a result
of events occurring before 1 January 1951 and..." and the words "...as a result of
such events", in article 1 A (2) were omitted.5

The OAU Convention Governing the Specific Aspects of Refugee Problems in Africa, a
regional treaty adopted in 1969 adopted the replica definition of refugee mentioned under the 1951
Convection. It further incorporates:

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

4
Convention Relating to Status of Refugees, entered into force on 28th July 1951, 137 U.N.T.S. 189, Art 1.
5
UN General Assembly, Protocol Relating to the Status of Refugees, entered into force on 31st January
1967, 606 U.N.T.S. 267.
8
 to leave his place of habitual residence in order to seek refuge in another place
outside his country of origin or nationality.6

Therefore, it can be inferred that it added more grounds to race, religion, nationality, membership
of a particular social group or political opinion contained in the definition found in the 1951
Convention, which is a more objectively based consideration.

Through the Cartagena Declaration on Refugees, 1984, the colloquium of Latin American
governments, in view of the experience gained from the massive flows of refugees in the Central
American area considered it necessary to enlarge the concept of a ‘refugee’. It further adds
elements other than those enlisted a priori in the 1951 Convention and 1967 Protocol, and the
OAU Convention, i.e., 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.7.
The same is done bearing in mind the situation prevailing in the region.

The refugee definition provided by the AALCO is a definition on the lines of the OAU Convention.
The final text of the revised AALCO 1966 Bangkok Principles on Status and Treatment of
Refugees was adopted in June 2001 at AALCO’s 40th Session in New Delhi.

It defines the term refugee as a person who, owing to a well-founded fear of

persecution for reasons of: Race, Colour, Religion, Nationality, Ethnic origin,
Gender, Political opinion, or Membership of a particular social group, Leaves the
State of which he is a national or habitual resident, or being outside such a State, is
unable or unwilling to return to it. The term also applies to a person compelled to
leave his or her place of habitual residence in order to seek refuge in another place
outside his or her country of origin or nationality, 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.

6
Organization of African Unity, Convention Governing the Specific Aspects of Refugee Problems in Africa,
entered into force on 10th September 1969, 1001 U.N.T.S. 45, Art 1.
7
Cartagena Declaration on Refugees, Colloquium on the International Protection of Refugees in Central
America, Mexico and Panama, entered into force on 22nd November 1984.
9
2.2 Introduction II: Climate Change
Climate change is the human-driven threat to future generations. The climate system is defined as
the five components in the geophysical system, the atmosphere and four others which directly
interact with the atmosphere and which jointly determine the climate of the atmosphere. The five
components are listed below: (a) Atmosphere; (b) Ocean; (c) Land surface; (d) Ice and snow
surfaces (both land and ocean areas); and, (e) Biosphere (both terrestrial and marine).

Posterior to Industrial Revolution, humankind has dramatically altered the natural landscape and
balance of the Earth by burning large amounts of fossil fuels and sacrificing forests. The burning
of fossil fuels caused the massive increase in greenhouse gas emissions into the atmosphere over
the past 150 years. Since millions of acres of forests are cut down each year, the CO2 released
from the burning of fossil fuels cannot be absorbed.8 The growth in CO2 emissions has led to
increases in mean surface temperatures. Summa sammarum the incidence of disasters as;
hurricanes, floods, desertification and diseases are inflicted due to disastrous change in climate.

A change in the state of the climate that can be identified by changes in the mean
and/or the variability of its properties, and that persists for an extended period,
typically decades or longer. It refers to any change in climate over time, whether
due to natural variability or as a result of human activity.

-IPCC

A change of climate that is attributed directly or indirectly to human activity that

alters the composition of the global atmosphere and that is in addition to natural
climate variability observed over comparable time periods.

-UNFCCC

In the view of foregoing, climate change, in both scale and potential impact, is a fact that threatens
the most basic human needs, from food and water to human settlement patterns. Whilst climate
change will impact regions and people differently, one of the major consequences is the flow of
people who will leave their homes because of the changing environment and its impact on their
livelihoods It is difficult, however, to predict the scale of climate migration since migration is

8
‘How many trees are cut down every year?’ Rainforest Action Network (6 March 2017)
https://www.ran.org/the-understory/how_many_trees_are_cut_down_every_year.
10
multi-casual. Intergovernmental Panel on Climate Change (IPCC) has confirmed that
anthropogenic sources affect climate change.9

Consequently, people are forced to migrate directly due to the impacts of climate change.

Since 2008, an average of 36 million people across the globe have been forced to
flee their homes due to natural disasters.

- Internal Displacement Monitoring Centre10

Moreover, the WBG published a research of great importance on the impact of climate change on
migration in 2018.

If no concrete steps are taken against climate change, its effects might cause a
massive movement of over 140 million people and humanitarian crises by 2050,
especially in three regions: Latin America, South Asia, and the sub-Saharan Africa.

- WBG

Professor Walter Kälin, former UN representative on the human rights of internally displaced
persons, together with Nina Schrepfer from the UNHCR, has produced one of the most
comprehensive works on the subject to date. The work lays out the definition of climate change
adopted by the UN Framework Convention on Climate Change (UNFCC), as augmented by
the four key findings of the Intergovernmental Panel on Climate Change relevant to population
movement:

a) reduction of available water;

b) decreases in crop yields;

c) risk of floods, storms and coastal flooding; and

d) negative overall impacts on health (especially for the poor, elderly, young and marginalized).

Important Triggers of Climate Migration

9
Samadu Atapattu, Climate Change, Human Rights and Forced Migration: Implications for International
Law, 27 WIS. INT’L L.J. 607 (2009).
10
Monitoring disaster displacement in the context of climate change, Internal Displacement Monitoring Centre
(December 2009) http://www.internaal-displacement.org/sites/default/files/publications/document.

11
In this section of the report, a nexus is shown between the climate change and migration. For the
same, various triggers of climate migration is discussed. What is most important to note here is
that there is a two-way relationship between climate change and human mobility. A common
consensus has been reached amongst environmental scientists that the change is extremely likely
to not only trigger but amplify the mobility of humans. The narrower category of climate refugees
encompasses victims of three climate change impacts: sea-level rise, extreme weather events, and
drought and water scarcity. Second, they can result of disasters with natural origin (earthquake,
flooding, storm) or finally be of human origin (industrial catastrophe, oil slick).

Food Security

According to WFP statistics11, there are already 975 million undernourished people in the world
and, out of the total global population. By 2050, the world’s total population is expected to be 9.7
billion. Climate change and more extreme weather will however make it difficult for agriculture
to meet the demand. Whilst the poorest countries, together with the low-lying island states, are the
most vulnerable12, food security may be a global threat if crop failure is the consequence of climate
change in important production-regions.

The World Economic Forum (WEF) affirmed in its Global Risks Report 2016 that there are two
ways climate change seriously threatens food security. (i) The first one is a market more prone to
volatility. A rise in temperature and changes in the rainfall pattern will slow the crops, leading to
an increase in food prices and a precarious supply-and-demand balance. (ii) Secondly, climate
change will disrupt food systems, destabilize markets, jeopardize transports and cause local food
crisis. The former Executive Director of the World Food Programme (WFP), Josette Sheeran,
reflected in 2009 that:

“a hungry world is a dangerous world … without food, people have only three
options: they riot, they emigrate, or they die”.13

11
https://www.who.int/news-room/detail/11-09-2018-global-hunger-continues-to-rise---new-un-report-says
12
World Bank (2009).
13
Id.
12
In 2015, the then US Secretary of State John Kerry warned about the consequences on migration
when there is an absence of food and water since the risk of humanitarian emergencies, national
and regional instability and mass migration will increase.14

Water Scarcity

Whilst the right to water as a human right is relatively new, recognized by the United Nations in
2010,15 conflicts over water have occurred throughout history. The Pacific Institute operates a
database showing water conflicts from as early as 2500 BC.16

Agenda 2030, which established the Sustainable Development Goals (SDGs) in 2015, recognizes
the importance of clean water and sanitation. It is noted in the United Nations Agenda 2030 that
bad economics and/or poor infrastructure results in the death of millions of people every year from
diseases associated with inadequate water supply, sanitation and hygiene. As a result, the
movement may increase social tensions.

The latest report of the IPCC predicts increased water shortages in Africa 74 to 250 million people
affected in 2020 and Asia: "Freshwater availability in Central, South, East and Southeast Asia
particularly in large river basins is projected to decrease due to climate change which, along with
population growth and increasing demand arising from higher standards of living, could adversely
affect more than a billion people by the 2050s."17

By 2050, at least 25 percent of the world’s population will be likely to live in countries affected
by chronic or recurring shortages of fresh water.18 The World Water Council noted in its Strategy
2016-2018 that “this unique and irreplaceable resource must be shared between many uses and
users and be managed sustainable, within its finite limits, to ensure water security for the future”.

A new report, Climate Change, Water and Economy, published by the World Bank in 2016,
found that changes in water availability and variability can induce migration and trigger civil

14
World Economic Forum, 2016 Global Report on Internal Displacement: An overlooked crisis with no end in
sight 50-53 (2016).
15
UN General Assembly, The human right to water and sanitation, UNGA Res. 1803 (XVII), 17 U.N. Doc.
/undocs .org/en/A/RES/64/292" \t "_top" A/RES/64/292 (2010).
16
Pacific Institute, The Protection Gap, (2017).
17
Intergovernmental Panel on Climate Change (IPCC), Climate Change 2007: Mitigation. Contribution of
Working Group III to the Fourth Assessment, (2007).
18
World Economic Forum, 2016 Global Report on Internal Displacement: An overlooked crisis with no end in
sight 12-13 (2016).

13
conflicts. Water scarcity is, thus, accepted as one of the important conflict triggers and reason of
mass migration.

Sea-Level Rise

NASA noted in its latest measurement of the sea level that the global sea level rise has been 81.1
mm since 1993.19 With more than 600 million people living in low-lying coastal zones, sea level
rise poses a huge challenge.20

The IPCC identified low-lying islands as the most vulnerable to the impact of climate change in
its 4th assessment report.21 Leaders of Kiribati, Tuvalu and the Maldives, have therefore been
critical about the inadequate efforts taken to reduce greenhouse gas emissions which melt the polar
ice caps and raise the sea level. As a precautionary measure22, low-lying island countries in the
Pacific and Indian Oceans have been discussing options to relocate their populations and finding
the necessary financial resources to do so.

Giam Kibreab argues that the “climate refugee” hosting states encourage the usage of the refugee
label as this put “climate refugees” outside the legal definition of a refugee and outside the legal
obligation to provide protection according to the 1951 Refugee Convention.23

Desertification

While rising seas threaten coastal regions, drought can create climate refugees inland. When
people cannot grow crops on the land where they live, they must move somewhere else in order to
survive.

For instance, the Gobi Desert in China expands more than 3,600 square kilometers every year.
Farmers and merchants in the area surrounding the Gobi migrate to China’s crowded urban areas
as grasslands are overtaken by desert. Morocco, Tunisia, and Libya each lose more than 1,000

19
United Nations News Service, UN-World-Bank Panel for fundamental shift in water management (March
2018).
20
THOMAS GRAY, MIGRATION AND DISPLACEMENT 17 (2ND ED. 2009).
21
Intergovernmental Panel on Climate Change (IPCC), Climate Change 2007: Mitigation. Contribution of
Working Group III to the Fourth Assessment, (2007).
22
MCADAM, J, COMPLEMENTARY PROTECTION IN INTERNATIONAL REFUGEE LAW 35 (1ST ED.
2007).
23
Markus Larsson and Adam Reuben, Climate Refugees the Science, The People, The Jurisdiction and The
Future, (2016).

14
square kilometers (386 square miles) of productive land every year to desertification. These
residents on the edge of the Sahara Desert may move to cities in the Maghreb, a region of northwest
Africa. They may also choose to move to the more developed countries of Europe.

Residents near the Horn of Africa are especially vulnerable to drought and desertification. Most
rural residents in Somalia, Ethiopia, and Eritrea engage in subsistence agriculture. Subsistence
agriculture means that the farmers produce enough crops for themselves, their families, and
communities. They do not sell their produce on the national or international market. Many
subsistence farmers depend on their crops to feed their livestock. Years of severe drought prevents
crops from growing, which also prevents livestock from being raised. Thousands of Somalis and
Ethiopians, threatened by starvation and poverty, have already fled to refugee camps in Kenya.
Camps that were designed to provide temporary shelter for 90,000 people are now home to twice
that number.

On one hand, there are many well-known cases of mass population departures, in Africa (Sahel,
Ethiopia) but also in South America (Argentine, Brazil), in the Middle East (Syria, Iran), in
Central Asia and in Southern Asia. Hammer presents an impressive table of forced migration
due to droughts and floods during the period 1973 – 1999 in the Sahel with a maximum figure of
one million displaced persons during the drought in Niger in 1985. On the other hand, many
researchers strongly relativize the possible direct link existing between drought and emigration by
highlighting the fact that the latter, in general, is the last resort when all other survival strategies
have been exhausted. Consequently, during the 1994 drought in Bangladesh, only 0.4 per cent of
households had to resort to emigration.24

Most affected by rapid-onset events were South and East Asia and the Pacific, making up 16.3
million (85 percent of the total number of displaced by disasters) in 2015, with China, India and
Nepal being the three countries with the highest number of displaced people i.e. 3.7, 3.6 and 2.6
million respectively.25

For example, 75 percent of the Chinese displacement was triggered by one flood disaster and three
large-scale typhoons.26 In a 2011 study published by the European Parliament, it is noted that the

24
SMITH BERHMAN, CLIMATE REFUGEES BEYONG THE LEGAL IMPASSE? 67 (2ND ED. 2001).
25
NRC/IDMC (2016).
26
NRC/IDMC (2016).

15
level of vulnerability will impact the level of displacement. Rapid-onset events will mainly result
in a short-distanced, often internal, and short-term displacement with a return to the area of origin
as soon as possible.

In other words, the displacement takes place to avoid loss of life and/or physical harm. If, however,
the area is frequently damaged by disaster, permanent displacement may be more likely. Whilst
the disasters forced people to leave, the affected areas will also be more desirable since farmland
may be fertilized by the floods.27

27
Albert Kraler, Marion Noack, Tatiana Cernei, Legal and Policy Responses to Environmentally Induced
Migration, (2011).

16
 Chapter Three

The notion of Legality

3.1 Are climate change refugees, de jure refugees?

In this section of my Seminar Paper I will explain the legal reasons as to why the climate refugees
are not currently counted as refugees. It is astonishingly true that the frequently used term ‘climate
refugee’ does not have a de jure basis under International Refugee Law.

"How you define somebody can be an issue of life and death for them.”

- Anthony Oliver Smith

3.1.1 Climate change refugees

To start off, a climate refugee is a person who is forced to leave their homeland and live somewhere
else because of climate change on their homeland. Usually, climate refugees are part of a larger
group referred to as environmental refugees, which are people forced to leave their homelands due
to natural disasters. The notion of human displacement occurring as a result of climate change is a
relatively recent conceptualization compared to the more traditional ideas associated with
refugees, such as persecution based on race, religion, nationality, membership in a particular social
group or political opinion.

The definition of “climate refugees” was introduced in 1985 but the idea of an “ecological refugee”
was first mentioned in 1948 and has been on the agenda of researchers since the 1970s. The IPCC
wrote in its 1990 report that “the greatest single impact of climate change could be on human
migration”, and there has since been considerable interest in the issue of migration and climate
change. Efforts made by the international community have, often, been either weak or without
enough political willingness to deal with “climate refugees”. As a result, the term “climate
refugees” is neither recognized by international law, nor endorsed by the United Nations.

The International Organization for Migration (IOM) proposed in November 2007 the following
broader working definition:

17
“Environmental migrants are persons or groups of persons, who, for compelling reasons of sudden
or progressive changes in the environment that adversely affect their lives or living conditions,
are obliged to leave their habitual homes, or chose to do so, either temporarily or permanently,
and who move either within their country or abroad”

This notion covers all the persons compelled to move from their places of residence because of
environmental disruptions.

In some scholarly definition it is suggested that the ‘climate migrants’ coexist with that of
‘environmental migrants’28. In that context, at the UN Environment Programme (UNEP)
conference held in Nairobi in 1985, UNEP expert Essam El-Hinnawi defines 'environmental
refugees' as:

“… those people who have been forced to leave their traditional habitat, temporarily or
permanently, because of marked environmental disruption (natural and/or triggered by people)
that jeopardized their existence and/or seriously affected the quality of their life.”

El-Hinnawi’s definition of “environmental refugees” is also often used to define the term “climate
refugees”. Catherine-Amélie Chassin wrote that “environment” would include both human and
non-human environmental activities, whilst “climate” is limited to the impact of climate change.
A “climate refugee” would, in that case, be a more restrictive term than “environmental refugee”.29

Norman Myers, introduced a further definition in 1995 as:

“… persons who can no longer gain secure livelihood in their traditional homelands because of
environmental factors of unusual scope, notably drought, desertification, deforestation, soil
erosion, water shortage, climate change and also natural disasters.” 30

Further, the Climate Institute defines an environmental refugee as:

28
Benoit Mayer, The International Legal Challenges of Climate-Induced Migration: Proposal for an
International Legal Framework 22 COLO. J. INT’L ENVTL. L. & POL’Y 382 (2011).
29
CHASSIN, GLOBAL REFUGEE CRISIS: A REFERENCE HANDBOOK 56 (2ND ED. 2015)
30
NORMAN MYERS, ENVIRONMENTAL EXODUS: AN EMERGENT CRISIS IN THE GLOBAL ARENA 22 (1ST ED.
1995).

18
" any person fleeing from environmental crises, whether natural or anthropogenic events (such as
developmental projects) and whether short or long term. or development projects."31

More specifically, the academic researchers Docherty, states:

“a 'climate refugee' definition should include the following parts: 'forced migration, temporary or
permanent relocation, movement across the borders, disruption consistent with climate change,
sudden or gradual environmental disruption, and a more than likely standard for human
contribution to the disruption.”32

Hence, Environmental refugees are those who’ve been forced to flee their homeland and are unable
to return due to environmental factors and Climate refugees are those who are forced to flee their
homeland and are unable to return because of events, environmental or non-environmental, due to
climate change. The overlapping instance of an environmental and climate refugees is the
Peruvian refugees. Since floods and crop and water contamination forced them to flee Peru
without being able to return and live in humane conditions qualifying them as an environmental
refugee. Such refugees are also ‘climate refugees,’ as the relevant flooding and contamination
issues were caused by rapid glacial melt due to historically anomalous global warming spikes.
Notably, however, the two terms do not overlap completely.

Owing to the lack of an official definition, the internationally agreed definition of ‘Climate
Refugee’ is absent.33 One thing I found incredibly interesting is that the term “climate refugee”
itself has been facing criticism recently. Some argue that climate refugee is a misnomer because
the image of a refugee is one of pain, suffering, loss of dignity and helplessness. This in fact makes
Climate refugees Sui generis.

3.1.2 Refugee Criterion

In stricto sensu, A person is only a ‘refugee’ as that term is defined in the 1951Convention and
1967 Protocol. The term ‘refugee’ is a legal term of art. The legal definition of a ‘refugee’, and the

31
Norman Myers, Environmental Exodus: An Emergent Crisis in the Global Arena 87 (1995).
32
Bonnie Docherty & Tyler Giannini, Confronting a Rising Tide: A Proposal for a Convention on Climate
Change Refugees, 33 HARV. ENVTL. L. REV. 349, 363 (2009).
33
Id; OLIVIA V. DUN & FRANCOIS GEMENNE, DEFINING ENVIRONMENTAL MIGRATION,
FORCED MIGRATION REVIEW 10 (2008).

19
rights and entitlements which a refugee is owed, are set out in the 1951 Refugee Convention
relating to the Status of Refugees, read in conjunction with its 1967 Protocol. The definition
mentions some conditions under which displaced people qualify for refugee status. Refugees who
meet these requirements are known as de jure refugees. These criteria are maintained in the current
UN policy framework34. The International Red Cross estimates that there are more environmental
refugees than political refugees fleeing from wars and other conflicts.

Craig Johnstone, the United Nations High Commissioner for Refugees (UNHCR) Deputy High
Commissioner, said at a conference organised by the Institute for Public Policy Research (IPPR)
in London on 29 April 2008 that humanity is facing a “global-scale emergency” whose effects
would accumulate over the next four decades. He said it was impossible to forecast with confidence
the numbers of people who would lose their homes through climate change. But he pointed to
assessments of between 250 million and one billion people losing their homes by 2050.

Therefore, environmental change would become the first factor of forced migrations and it would
threaten to trigger the biggest refugee crisis in human history. It would supplant religious, ethnical
and political reasons.

The leading Australian scholar, Jane McAdam, for example, does not write about this kind of
division in her book Climate Change, Forced Migration and International Law when she quoted
El-Hinnawi, and continued by acknowledging that “in legal terms, there is no such thing as a
‘climate change refugee’”.35

It is an open secret that, what many people refer to as ‘refugees’ in a common parlance are not
‘refugees’ within the meaning of the 1951 Convention and 1967 Protocol. Let us see what criteria
are underpinned in the Convention for a displaced person to qualify as a refugee in stricto sensu:

In accordance with that Article36, displaced person:

(a) who is outside his/her country of origin;

34
United Nations High Commissioner for Refugees, Commentary on the Refugee Convention 1951 (Articles
2-11, 13-37), October (1997)
35
JANE MCADAM, CLIMATE CHANGE, FORCED MIGRATION, AND INTERNATIONAL LAW (1st ed. 2012).
36
Convention Relating to Status of Refugees, entered into force on 28th July 1951, 137 U.N.T.S. 189, Art 1.

20
 (b) who cannot be returned to his/her home country due to well-founded fear of
persecution on the grounds of religion, race, nationality, affiliation to a specific
social group and political ideas; and

(c) who cannot enjoy the protection of his/her country of origin due to the fear of
persecution;

is granted the legal status of refugee.

First, the refugee definition only applies to people who have already crossed an international
border. As noted above, much of the anticipated movement in response to climate change will be
internal, and thus will not meet this preliminary requirement.

Secondly, there are difficulties in characterizing ‘climate change’ as ‘persecution’. ‘Persecution’

entails violations of human rights that are sufficiently serious, either because of their inherent
nature, or because of their repetition (for example, an accumulation of breaches which,
individually, would not be so serious but which together constitute a severe violation). It remains
very much a question of degree and proportion. Whether something amounts to ‘persecution’ is
assessed according to the nature of the right at risk, the nature and severity of the restriction, and
the likelihood of the restriction eventuating in the individual case. Although adverse climate
impacts such as rising sea-levels, salination, and increases in the frequency and severity of extreme
weather events; for instance, storms, cyclones, floods are harmful, they do not meet the threshold
of ‘persecution’ as this is currently understood in law. Part of the problem in the climate change
context is identifying a ‘persecutor’.

For example, the governments of Kiribati and Tuvalu are not responsible for climate change, nor
are they developing policies which increase its negative impacts on sectors of the population. One
might argue that the ‘persecutor’ in such a case is the ‘international community’, and
industrialized countries, whose failure to cut greenhouse gas emissions has led to the predicament
now being faced. These are the very countries to which movement might be sought if the land
becomes unsustainable. This is a complete reversal of the traditional refugee paradigm: whereas
Convention refugees flee their own government (or private actors that the government is unable
or unwilling to protect them from), a person fleeing the effects of climate change is not escaping
his or her government, but rather is seeking refuge from—yet within— countries that have

21
contributed to climate change. This presents yet another problem in terms of the legal definition
of ‘refugee’: in the case of Tuvalu and Kiribati, the government remains able and willing to protect
its citizens.

Finally, even if the impacts of climate change could be characterized as ‘persecution’, the Refugee
Convention requires such persecution to be on account of an individual’s race, religion, nationality,
political opinion, or membership of a particular social group. Persecution alone is not enough. The
difficulty here is that the impacts of climate change are largely indiscriminate, rather than tied to
characteristics such as a person’s background or beliefs. Although climate change more adversely
affects some countries, by virtue of their geography and resources, the reason it does is not
premised on the nationality or race of their inhabitants. An argument that people affected by its
impacts could constitute a ‘particular social group’ would be difficult to establish, because the law
requires that the group must be connected by a fundamental, immutable characteristic other than
the risk of persecution itself.

So far, there have been a small number of cases in Australia and New Zealand where people from
Tuvalu and Kiribati have sought to argue they should receive refugee protection from climate
change impacts. They have all failed. Two case examples illustrate the reasoning. In New Zealand,
the Refugee Status Appeals authority explained: This is not a case where the appellants can be
said to be differentially at risk of harm amounting to persecution due to any one of these five
grounds. All Tuvalu citizens face the same environmental problems and economic difficulties living
in Tuvalu. Rather, the appellants are unfortunate victims, like all other Tuvaluan citizens, of the
forces of nature leading to the erosion of coastland and the family property being partially
submerged at high tide.

However, in most cases people displaced by climate change are unlikely to gain protection as
refugees. There is, however, no agreed definition of “climate refugees” and the term is not
endorsed by the United Nations. The absence of a universally accepted definition is one of the
obstacles for the international community, because it is commonly accepted that a precise
definition is important for practitioners and policy makers in order to develop effective policy
responses and decide on the legal rights of those crossing borders. In international law, there are
currently two conventions that protect the cross-border migration of people.

22
 An analysis
3.1.3 The existence of “persecution”, a sine qua non for Refugee Status.

It is inferred that the essential requirement for a person to qualify as a refugee, under 1951
Convention and 1967 Protocol is ‘persecution’. However, it is argued by various scholars that
‘persecution’ which entails refugeehood under International Refugee Law is missing in re ‘climate
refugees’. Shacknove further argues that persecution is a fundamental aspect of being a refugee,
which implies that climate refugees are not refugees and should not be extended the protections
designed to help refugees.

In turn, those not fleeing persecution are not recognized as a Convention refugees as the scope of
the 1951 Convention does not cover environmentally displaced persons. As a result, they lack a
comparably entrenched right under international law not to be forcibly returned to the threats they
fled i.e. non-refoulement. The Convention governs only political refugees fleeing persecution. It
is evinced from the historical fact that the international refugee law has been designed to deal with
geographically limited flows. However, it is upon us, as member of international community to
brew new questions that; whether it is just? whether 1951 Refugee Convention criteria still
relevant in today’s world? Because a cosmic paradigm shift has occurred in re threat of
persecution, in the past several years, inter alia, climate change.

The scope of the definition provided by the 1951 Refugee Convention is narrow as it is not
applicable to such displaced groups as economic migrants and displaced victims of gender-based
violence, as well as the victims of natural disasters. Disasters such as storms, earthquakes, and
floods pose enough threat to the human life and property, but the origin of this damage is not based
on race, religion, nationality, or the membership of a certain political group.

For the State Parties to the 1951 Geneva Convention, the United Nations High Commissioner for
Refugees (UNHCR) published the ‘Handbook on Procedures and Criteria for Determining
Refugee Status’ in 1979 for the purpose of ensuring uniformity in granting refugee status. In this
handbook, natural disasters are not recognized as a factor leading to the acquisition of refugee
status. UNHCR only provides protection for refugees within the scope of the 1951 Geneva
Convention.

23
People who are entitled to refugee status enjoy several rights including but not limited to the right
to life, protection from torture and ill-treatment, the right to citizenship, the right to freedom of
movement, access to public relief and assistance, and the principle of nonrefoulement. Pursuant to
Article 33 of the 1951 Refugee Convention, States parties are obligated not to forcibly return or
expel anyone to a country where they are in danger of being subjected to torture and ill-treatment.
The prevention of refoulement could be considered as the primary advantage of being entitled to
a refugee status.

24
 Chapter Four

Existing Legal Frameworks

In the first half of the report, we have examined the relationship between climate change and
migration. We recognize that the impact of climate change will vary across nations and regions
and affect communities differently. When the state will no longer be able to guarantee mitigation
of climate change or effective adaptation to combat climate change, people will feel pressured to
leave their homes for another area, within their country or across borders. Whether the decision to
leave is forced or voluntary remains part of the discussion that prevents the international
community from reaching one single definition of “climate refugees”, and thus, makes policy
responses difficult to achieve.

The UNFCCC Agreements: from Copenhagen to Marrakech

The UNFCCC was funded in 1992 during the UN Earth Summit in Rio de Janeiro, and the parties
to the UNFCCC have since 1995 met annually during the Conference of the Parties. The UNFCCC
rarely mentions climate migration, and when doing so, generally does it in vague terms and without
defining the term. The framework thus has legal limitations for climate-related migration. Bonnie
Docherty and Tyler Giannini noted in their 2009 article that the UNFCCC, “like the refugee
regime, was not designed for, and to date has not adequately dealt with, the problem of climate
change refugees”.37 The finalised agreement of COP15 is exemplified by both Hodgkinson et al.
and Docherty and Giannini as to why there is a need for a separate agreement for “climate
refugees”.

In the climate meeting of COP16 in Cancún, the Cancun Adaptation Framework, made the
following reference to climate change and migration in paragraph 14(f):

“…measures to enhance understanding, coordination and cooperation with regard

to climate change induced displacement, migration and planned relocation, where
appropriate, at national, regional and international levels.”

37
Bonnie Docherty & Tyler Giannini, Confronting a Rising Tide: A Proposal for a Convention on Climate
Change Refugees, 33 HARV. ENVTL. L. REV. 349, 363 (2009).

25
All in all, paragraph 14(f) of the Cancun Framework may well be the most relevant of the UN COP
references to “climate refugees”, since it laid the foundation for the Nansen Initiative.

The Paris Agreement

The adoption of the United Nations Paris Agreement in 2015, including its ratification in 2016, is
regarded as a milestone in international environmental diplomacy.38 In terms of specific assistance
and protection for those directly affected by climate change impact, the advance is more modest.
Whilst its predecessor, the Kyoto Protocol, did not include provisions on these issues, the preamble
of the Paris Agreement vaguely acknowledges them:

“Parties should, when taking action to address climate change, respect, promote
and consider their respective obligations on human rights, the right to health, the
rights of indigenous peoples, local communities, migrants, children, persons with
disabilities and people in vulnerable situations and the right to development, as
well as gender equality, empowerment of women and intergenerational equity”.

The reference to “climate refugees” in the Paris Agreement is nevertheless vague and non-binding,
just as in the other UNFCCC documents.

The Nansen Initiative

United Nations Cancun Framework in 2010 recognized the need for an inter-governmental process
to deal with the protection gaps and challenges of cross-border displacement. Borrowing the name
of the polar explorer, scientist, Nobel Peace Prize laureate and first High Commissioner for
Refugees, who introduced the “Nansen passport”, Fridtjof Nansen39, the Norwegian government
hosted the Nansen Conference on Climate Change and Displacement in June 2011. The outcome
of the conference, held in the Norwegian capital, is reflected in the ten Nansen Principles. These
principles, inter alia, highlight the need for adequate knowledge, set out the roles and
responsibilities of relevant actors, require improved prevention and resilience at all levels, using
existing international law and address its gaps and increase international cooperation.

38
The Paris Agreement (2015).
39
https://www.regjeringen.no/globalassets/upload/ud/vedlegg/hum/nansen_prinsipper.pdf.

26
The tenth principle held that:“the voices of the displaced or those threatened with displacement
[…] must be heard and taken into account, without neglecting those who may choose to remain”.

Following the UNHCR Ministerial Conference in December 2011, the Swiss and Norwegian
governments established the Nansen Initiative, a state-led bottom-up consultative process to build
consensus and address cross-border in the context of disasters.40 The mission of the Initiative was
expressed as not seeking to develop new legal standards, but rather to find agreement between
states and “its outcome may … lead to new laws, soft law instruments or binding agreements”.

With the adoption of the Protection Agenda, the Nansen Initiative was replaced by the Platform
on Disaster Displacement, responsible to follow up and implement the recommendations of the
Nansen Initiative. In relation to “climate refugees”, the New York Declaration vaguely states a
commitment to “combat environmental degradation, and ensuring effective responses to natural
disasters and the adverse impacts of climate change” in reference to the SDGs. It also reaffirms
the commitment to the Paris Agreement and acknowledges that migration is a response to climate
change. It does not, however, provide or recommend any protection for “climate refugees”.

The UNHCR Mandate

One option available to the UNHCR when considering displaced persons is to apply the “good
office” procedure available to the organization even outside the mandated functions.

The Statute also specifies that the UNHCR shall “provide international protection to refugees who
fall within the scope of the … Statute and seeking permanent solutions for the problems of
refugees” (Chapter I (1)). The UNHCR Statute provides a wider definition to anyone fearing
persecution and outside his or her country of nationality. Furthermore, both the General Assembly
and the UN Secretary-General has the power to provide the UNHCR with policy directions.41 In
other words, the Refugee Convention provides the signatory parties with legal obligations to
provide protection and refugee-status to those who meet the legal definition of a refugee. The
UNHCR Statute, on the other hand, considers the responsibility of the international community to
protect those displaced from their country of nationality, thus applying a social definition of

40
Nansen Initiative https://www.nanseninitiative.org/secretariat/
41
Breanne Compton, The Rising Tide of Environmental Migrants: Our National Responsibilities, 25 COLO.
NAT. RES. ENERGY. & ENVTL L. REV. 370 (2014).

27
refugee to meet the humanitarian need of the displaced people.42 Nevertheless, the “good office”
mandate has yet to be applied to “climate refugees”. In Nina Hall43 article, Hall wrote that a
drought in Somalia led to mass migration to Kenya and other neighbouring countries. Whilst the
UN Office for the Coordination of Humanitarian Affairs called this a “climate change driven crisis
whilst acknowledging the impact of the Somali civil war”44, UNHCR staff at the refugee camps
did not consider the drought to be the issue of the migration but rather a fear of persecution and/or
war. UNHCR Kenya staff did acknowledge that drought and famine had increased the migration
from Somalia and suggested that the famine was linked to the civil war. The migration was never
called climate induced by the UNHCR for the displaced to be within the mandate and protection
of the UNHCR.45 UNHCR has attempted to extend its mandate to also consider climate
displacement. The then High Commissioner for Refugees (now Secretary-General of the UN)
António Guterres made a speech in November 2011 to the UN Security Council in which he stated
that “more and more people are being forced to flee due to reasons that are not covered by the
1951 Refugee Convention” and that it was humanitarian imperative to assist “climate refugees”.46
He repeated his call to expand the UNHCR mandate to climate change displacement at the
UNHCR Ministerial Meeting in December 2011. The states did, however, not provide such a
mandate and raised concerns whether the UNHCR had enough resources for an expansion,
“particularly given they had enough difficulty fulfilling their obligations to refugees”.47

The UNHCR does, nevertheless, provide protection from climate change as evident in its report
UNHCR, the Environment and Climate Change. The UNHCR is also party to the Nansen Initiative
and its successor the Disaster Development, planned relocation and in the UNFCCC Advisory
Group on Climate Change and Human Mobility. These are examples of the way in which the
UNHCR provides assistance to “climate refugees” within its existing mandate.

42
María José Fernández, Refugees, climate change and international law, 49 FORCED MIGRATION
REVIEW 42 43 (2015).
43
Nicole de Moor & A Cliquet, Environmental Displacement: A New Challenge for European Migration
Policy, 7 (2009).
44
Id. at 113.
45
Id.
46
António Guterres, Climate Change, Natural Disasters and Human Displacement: A UNHCR Perspective 2
(2008).
47
Xing-Yin Ni, A Nation Going Under: Legal Protection for “Climate Change Refugees”, 38 B.C. INT’L &
COMP. L. REV. 342 343 (2015).

28
 Chapter Five

Non-refoulement and Climate Refugees

Non-refoulement is a concept which prohibits States from returning a refugee or asylum seeker to
territories where there is a risk that his or her life or freedom would be threatened on account of
race, religion, nationality, membership of a particular social group, or political opinion. The
concept of non-refoulement is relevant in several contexts – principally, but not exclusively, of a
treaty nature. Its best-known expression for present purposes is in Article 33 of the 1951 Refugee
Convention which states:

“No Contracting State shall expel or return (‘refouler’) a refugee in any manner whatsoever to
the frontiers of territories where his life or freedom would be threatened on account of his race,
religion, nationality, membership of a particular social group or political opinion.”

If we accept that anthropogenic climate change does exist, we cannot deny the obvious
implications of this in terms of human rights. Legally the concept of ‘climate refugee’ does not
exist, despite the term being in frequent use, as climate and environmental issues do not fall within
the definition of refugee in the 1951 Refugee Convention. Nevertheless, the principle of non-
refoulement could apply in situations where there was little reasonable hope that migrants will
return to life-threatening situations. Climate change is frequently viewed as a risk multiplier in the
context of the preexisting social, economic and environmental conditions that constitute the key
risk factors for each community. Although it could also be argued that individuals facing extreme
poverty in their countries of origin could be subject to the same justification on the understanding
that there are underlying structural and economic questions beyond their control, this is where the
element of responsibility is vital and, in this sense, agreement on the cause of climate change is
fundamental.

The principle of non-refoulement states, broadly, that no refugee should be returned to any country
where he or she is likely to face persecution or danger to life or freedom.48

48
Supra 2 at 70.

29
This holds even for refugees who have not been granted refugee status, or who entered the country
illegally. Refugee law recognises that people who flee from dangerous circumstances often do not
have the means to follow immigration formalities (hence the protection of people who are not
protected by their own states). If this is the case, states may not deport the „illegal‟ persons upon
entry:

Instead, it is provided that penalties on account of illegal entry or presence shall not be imposed
on refugees „coming directly from a territory where their life or freedom was threatened […]
provided they present themselves without delay […] and show good cause for their illegal entry
or presence‟.

The principle of non-refoulement does not mean that no refugee will ever be deported. If they
present a genuine threat to the state, for example, the state has the right to deport them (it is beyond
the scope of this study to discuss all the exceptions.49 What is important to note is that (i) a person
fleeing from danger should be recognized as a refugee (ii) states (or at least signatories to the UN
Convention, etcetera) have certain duty to accept refugees into their territories, and (iii) once the
refugees have been accepted into their territories, they cannot be deported or resettled in their
countries of origin if the danger from which they fled still exists.

49
Id.

30
 Chapter Six

Recognizing Climate Refugee under International Refugee Law

Unfortunately, climate refugees aren’t legally recognized, so they aren’t able to get help from
countries to keep them safe, unlike political refugees. As far as I’m concerned, there is a need for
developing a new model that will cover the issue of environmental displacement comprehensively
as the existing frameworks have a lot of shortcomings and complexities. I am in support of the
arguments in support of a new international convention that will extend the legal definition of the
term “refugee” to include environmentally displaced persons. Despite huge numbers of people
being forced to leave their homes a result of climate change, the governance of climate refugees
represents a gaping hole in international law. Furthermore, as the implications of climate change
are not a homogeneous across the world and its effects differ depending on region, creating
customized regional arrangements also could fill the existing protection gaps.

In international law, there are currently two conventions that protect the cross-border migration of
people. One is the Convention on the Rights of all Migrant Workers50, which provides the
following definition of a migrant as a person:

“… who is to be engaged, is engaged or has been engaged in a remunerated activity in a State of

which he or she is not a national.”

The other international convention is the 1951 Refugee Convention and its 1967 Protocol51 which
legally defines a refugee as a person:

“… owning 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.” 52

50
United Nations Convention on the Protection of the Rights of All Migrant Workers and Members of Their
Families, Part I, Article 2(1).
51
Supra 1.
52
Id.

31
In order to be recognized as a refugee, a person must thus have a fear of persecution that is well-
founded. The persecution must also be linked to one of the so-called inclusion grounds53. One can
summarize the difference between the two definitions as a migrant leaving her home by choice
whilst the refugee leaves his or her home by force. Using “refugee” in “climate refugee” is,
according to the UNHCR, misleading because the Refugee Convention does not recognize the
environment as a cause for displacement.54 The Migrant Convention does, however, require a
voluntary decision to move that is free from external pressures.55 The United Nations Special
Rapporteur on the Human Rights of Migrants noted in a report to the General Assembly in 2012
that this creates a gap in international law when considering persons that move for environmental
reasons.56 This was further acknowledged by Benjamin Glahn, Deputy Chief Program Officer at
the Salzburg Global Seminar. He noted that “climate refugees” has no legal ground in existing
international refugee and asylum law, nor does the international community agree on what to do
about the problem. “Climate refugees” is therefore both “problematic and controversial”.57

6.1 Changing the Legal Definition of ‘Refugee’

To revise the criteria for refugeehood in the 1951 Convention is one simple way to begin to provide
rights to asylum, non-refoulement, and relief options to climate refugees. However, revising the
criteria will also require international negotiations between all UN parties, which are difficult and
generally take decades. Yet, there are already climate refugees, and it is likely that there be many
more soon. It is thus crucially important to devise complementary responses to climate refugee
cases more immediately. The international community deeply needs to recognize and to create
support and new tools in order to protect environmental refugees in an effective manner. They
should be granted with the same rights as the refugees covered by the Geneva Convention.

53
Williams, A. (2008), Turning the Tide: Recognizing Climate Change Refugees in International Law, Law
and Policy.
54
UNHCR (2016).
55
IOM (2011).
56
Special-Rapporteur on the Human Rights of Migrants (2012).
57
Zetter R. (2011), Protecting environmentally displaced people. Developing the capacity of legal and
normative frameworks, Oxford: Refugee Studies Centre.

32
6.2 The new face of the fear of persecution
The concept of “persecution” is not defined in the 1951 Convention or in any other international
instrument. From Article 33 of the 1951 Convention58 it can be inferred that a threat to life or
physical freedom constitutes persecution, as would other serious violations of human rights. James
Hathaway, a leading Refugee law expert describes the concept of persecution as “the sustained or
systemic violation of basic human rights59 demonstrative of a failure of state protection”.60
Furthermore, the UNHCR61 claims that there are several forms of harm that amount to persecution,
including: (i) serious physical harm62, loss of freedom, and other serious violations of basic human
rights63 as defined by international human rights instruments.

In the view of foregoing, ‘persecution’ is not limited to human rights abuses. It also encompasses
other kinds of serious harm or intolerable predicament. Persecution means that the country of
origin of the refugee is unwilling, or in the case of persecution by non-state actors unable, to fulfill
its basic duty of guaranteeing peace and security to its citizens thus destroying the ‘bond of trust,
loyalty, protection64 , and assistance between the citizen and the state [that] constitutes the normal
basis of society’.65

An analysis:

An inference was drawn in previous chapter that well-founded fear of persecution’66 which entails
refugeehood under International Refugee Law is missing in re ‘climate refugees’ by virtue of

58
Convention Relating to Status of Refugees, entered into force on 28th July 1951, 137 U.N.T.S. 189, Art 33.
59
Human Rights Committee, General Comment No. 20: Article 7 (Prohibition of torture, or other cruel,
inhuman or degrading treatment or punishment), adopted on 10th March 1992, U.N. Doc. HRI/ GEN/1/Rev.7, ¶ 9;
General Comment No. 31 on the Nature of the General Legal Obligation on States Parties to the Covenant,
U.N. Doc. CCPR/C/21/Rev.1/Add.13, adopted on 26th May 2004, ¶ 12;
General Comment No. 6 (2005) on the Treatment of unaccompanied and separated children outside their
country of origin, U.N. Doc. CRC/GC/2005/6, , adopted on 1st September 2005 ¶ 27.
60
JAMES HATHAWAY, THE LAW OF REFUGEE STATUS 104-105 (1991).
61
UNHCR, Handbook and Guidelines on Procedures and Criteria for Determining Refugee Status under the
1951 Convention and the 1967 Protocol Relating to the Status of Refugees, December 2011, § 52.
62
Human Rights Committee, Covenant on Civil and Political Rights, General Comment No. 3, ¶12.
63
Extraterritorial Application of Non-Refoulement Obligations under the 1951 Convention Relating to the
Status of Refugees and its 1967 Protocol, Advisory Opinion 2007 I.C.J. (26th January).
64
UNHCR, Handbook and Guidelines on Procedures and Criteria for Determining Refugee Status under the
1951 Convention and the 1967 Protocol Relating to the Status of Refugees, December 2011, § 52.
65
JAMES HATHAWAY, THE LAW OF REFUGEE STATUS 104-105 (1991).
66
Kara K. Moberg, Extending Refugee Definitions to Cover Environmentally Displaced Persons Displaces
Necessary Protection, 94 IOWA L. REV. 1107, 1121 (2009);

33
which it is implied that climate refugees are not refugees and should not be extended the
protections designed to help refugees.

It is herein argued that although environmental harm or the consequences of climate change may
not fall per se within the ambit of a ‘well-founded fear of being persecuted’, it is possible that
conditions in an area rendered uninhabitable by the impacts of climate change, could be such that
returning someone there would expose them to a real risk of death.

Hence, the impacts of climate change hold enough threat to the life of residents and serves as a
basis for the violation of human rights recognized under various international instruments.

In a similar vein, it has been argued tat the OAU Convention unequivocally inludes victims of
environmental crises are incuded, ‘since such events seriously distur the public orde’.67 Some
authors, like Jessica B. Cooper, claim that governments persecute individuals because climate
change has been driven largely by governments’ policies.68 When viewed from this angle,
governments’ activities are considered to constitute persecution and thus the criteria of persecution
is appeared to be fulfilled.

The provisions of the refugee acts peraining to the concept of ‘refugee’ have maintained reference
to ‘persecution’. The importance of the term ‘persecution’ and the lack of a definition thereof by
an International Refugee Law legally binding instrument has prompted

doctrinal approaches to advance the concept. Likewise, and more significantly, case law of various
countries has been progressively developing the concept of ‘persecution’ by analyzing various of
its constitutive elements. The identification of the constitutive elements of the term ‘persecution’
and the understanding of how these elements have been interpreted by doctrine and case law should
contribute to a dynamic, progressive and yet harmonious interpretation of the refugee definition.

67
McCue G.S., ‘Environmental Refugees: Applying International Environmental Law to Involuntary
Migration’, 6 GEORGETOWN INTERNATIONAL ENVIRONMENTAL LAW REVIEW (1993) 153-154.
68
J. B. Cooper, ‘Environmental Refugees: Meeting the Requirements of the Refugee Definition’ ELJ 480
(1998).

34
6.3. Preemptive Relocation
At the 2008 General Assembly of the UN Anote Tong, president of the island of Kiribati, proposed
a further complementary response. As one of several small island states, Kiribati’s residents have
been watching the ocean slowly swallow their homeland due to climate driven sea-level rise and
suffer losses due to potable water salinization. Tong asked the UN Assembly to consider offering
preemptive relief through a large-scale systematically relocation of his people; so that, in his
words, “when [my] people migrate, they will migrate on merit and with dignity”. Here the idea is
to incentivize such a preemptive response by fairly distributing such refugees so that no single
nation has to endure most of the burden of taking in such refugees.

6.4 Country’s Development Agenda

A 2012 Asian Development Bank study argues that climate-induced migration should be addressed
as part of a country's development agenda, given the major implications of migration on economic
and social development. The report recommends interventions both to address the situation of
those who have migrated, as well as those who remain in areas subject to environmental risk. It
says: "To reduce migration compelled by worsening environmental conditions, and to strengthen
the resilience of at-risk communities, governments should adopt policies and commit financing to
social protection, livelihoods development, basic urban infrastructure development, and disaster
risk management."

35
 Chapter Seven

Findings, Conclusions and Recommendations

Findings
In the context of International Refugee Law, the climate refugee is one of the contemporary issues
whereby much attention has not been given. Climate refugees are amongst those problem facing
group who are deprived of international definition and recognition. Climate change is the global
issue. Although various scholars argue that such displaced persons are not ‘refugees’ in the first
place, it is undisputable fact that climate change has brought about larger displacement in the past
decades whereby such migrants are not provided with any protection by the international
community.

Centered around these studies, the major findings of this study are:

• There is no standard definition and no such a category of refugees (climate refugees)

currently exist under international law. But the fact is people who have been uprooted
because of climate change exist all over the world — even if the international community
has been slow to recognize them as such.
• The notion of persecution has been outdated since the grounds so stipulated is exercised
very rarely and issues such as environment and climate has emerged whereby they pose
equivalent threat to these people in regards to their life, dignity and safety.
• Climate Change and migration is intertwined. Scientific certainty and consensus have
accepted that anthropogenic activities dictated by the pursuit of development have led to
the present looming crisis of climate change. Sea level rise, coastal erosion, decrease in
agricultural production, accessibility to clean water and impact on health, are some of the
consequences of climate change which has led to the displacement.
• The island states such as Tuvalu and Kiribati are under sudden catastrophic situations.
Further, the climatic situation has made people suffer in various parts of the world, inter
alia Bangladesh, Syria, Darfur. This status quo has call for protection of climate refugees
at present times more than ever.

36
 • The existing legal framework is currently insufficient to address the vulnerability of
refugees facing environmental problems. The principle of non-refoulement does not bind
the states in regard to climate change refugees under 1951 Refugee Convention.

Conclusions and Recommendation

Human mobility in the form of migration and displacement is a theme of global relevance. Climate
change which is the ultimate outcome of global warming is now universally recognized as the
fundamental triggers of such mobility and displacement of the 21st century. Climate refugees are
a main part of the challenge. In order to provide protection for climate refugees, some have
suggested an extension of the 1951 Refugee Convention, whilst others have suggested that such
an extension is not possible and instead recommend the creation of a new convention. As of yet,
however, a consensus has been out of reach. As Oli Brown, author of the report Migration and
Climate Change, published by the International Organization for Migration (IOM), puts it: “there
has been a collective, and rather successful, attempt to ignore the scope of the problem … so far
there is no ‘home’ for forced climate migrants in the international community, both literally and
figuratively”.

In this regard, currently, there is a general understanding that a solution for climate induced
migration should be found at the global and international level. Nonetheless, the response of the
international community is not adequate enough and is still at the early stages. As this research has
shown, the main difficulty in framing the issue is the normative gap in the legal framework as this
category of people is yet not recognized under the international law. Another obstacle is the
institutional gap, as there is no body currently mandated with responsibility for climate-induced
displacement.

The recommendation has been briefly listed as follows:

• The legality of climate refugees under international community must be reached in consensus.
• The criterion of refugee under 1951 Convention must be extended to the environmental
refugees facing rapid onset climate events considering the contemporary issues. Hence, the
1951 Refugee Convention must be amended for the same.

37
• The states must be under an obligation of principle of non-refoulement. The displaced person
due to the climate change must not be sent back to the territory whereby they face a threat to
their life and dignity.
• The world community must come in one forum so as to address this contemporary
displacement upon adopting international agreement(multilateral) obliging member states
under the principle of burden sharing and non-refoulement.
• In the long term, it is possible that the conclusion and acceptance of various regional
agreements concluded within the remit of the global compact on migration and the
international climate change framework would lead to the creation of customary international
law. While this clearly remains a far-reaching proposition at present, it is worth recognizing
that the climate change related body of law in individual states has developed significantly
over a comparatively short time, and that ultimately it is through such state practice that
customary law evolves.
• These climatic migration and displacement issue require global approach and close attention
of the international bodies such as the UN appears to be crucial.

A commonly used estimation indicates that 200 million people will be “climate refugees” by 2050.
Despite the problematic nature of the issue of climate induced displacement revealed during this
research and the remaining issues associated with it, it is still important to note positive tendencies
in the international approach towards the problem. The issue has been recognized and currently
attracts a lot of attention from scholars, politicians and various international organizations. The
UN as one of the main players in framing and tackling the issue has already devoted a significant
deal of attention and launched numerous research initiatives and field projects. Yet, a lot more is
to be done. And as the rate of climate change does not leave us time for procrastinations, more
acute actions have to be taken as soon as possible.

38
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United Nations Convention Relating to Status of Refuges, 1951

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Cartagena Declaration on Refugees, 1984

United Nations High Commissioner for Refugees, Commentary on Refugees convention 1997

United Nations Convention on the Protection of Rights of All migrant workers and Members of
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https://www.ran.org/the-understory/how_many_trees_are_cut_down_every_year .
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https://www.who.int/news-room/detail/11-09-2018-global-hunger-continues-to-rise---new-un-report-says
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