Climate Change Refugees: Where to Look for Legal Protection
Volume 38 Associate Editor
The Arctic is having an unusually mild winter. In February, the region experienced a period of unseasonably warm weather, with the temperature being twenty degrees warmer than the average. This is the third time this year that dramatically higher than average Arctic temperatures have been recorded.  At the same time, on the opposite end of the globe in Antarctica, sea ice is at the lowest level ever recorded. The climate is changing, and as it does, it is exacerbating existing vulnerabilities in regions across the globe, having a direct effect on the people who live in areas directly impacted by climate change. Rising sea levels, desertification, and other consequences of climate change are forcing people to leave their homes in search of food, water, or security. UNHCR estimates that, annually, 21.5 million people are forcibly displaced by weather-related disasters. As temperatures continue to rise, more and more people will be forced to leave, as all regions of the globe will be affected by climate change. Currently, the largest displaced population is from Asia, accounting for 85 percent of the total population. Unfortunately, the current international legal framework is not equipped to address needs of this pending influx of migrants. According to UNHCR, as of 2013, “few states have actively accounted for internal migration in their National Climate Adaptation or Development Plans, and almost no States have in place legislation or policies to facilitate legal cross-border migration on environmental grounds.” Furthermore, people who cross borders fleeing consequences of climate change, more often than not, are unable to receive protection as refugees under the 1951 Refugee Convention since they are unable to meet the legal requirements set forth in the Convention. And no other legal instrument speaks specifically to displacement caused by climate change. This is particularly concerning, as studies are predicting that by 2050, the number of persons fleeing due to climate change could dwarf the number of persons who meet the traditional refugee definition. Clearly, something needs to be done, and soon. Currently, the international community is at a crucial moment where it has the opportunity to come up with a solution to the emerging crisis before things reach a disastrous level. The problem is that no one can agree about what that solution should be. The 1951 Refugee Convention provides protections to persons who have “a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion” whose government is unwilling or unable to provide protection. The regime distinguishes between forced and voluntary movement. Generally, refugee status decision-makers find that the refugee definition does not encompass persons moving due to climate change disasters since they are leaving voluntarily, are not victims of individualized persecution, or that their home governments have not indicated an inability to address the issue. The unfortunate result is a gap in legal protection providing climate change migrants no safeguard to ensure their rights are respected. Since it is not possible for the Refugee Convention to serve as a source of protection, some experts have called for the creation of a new, independent legal instrument. But negotiating a new treaty would take a significant amount of time, and there is no guarantee that countries today would agree to provide the same protections that are enshrined in the 1951 Convention since the current political climate towards refugees is vastly different from the one that existed to bring forth the refugee convention. A different attempt to fill this gap resulted in the Nansen Initiative, a state-led consultative process seeking to address the challenges of cross-border displacement due to climate change. In other words, a group of states have come together and formed a mechanism to research and address the protection gap that exist in climate change displacement. However, the Initiative does not intend to create new legal standards, but instead focuses on building consensus amongst actors and developing soft law. Such a focus seems to fall short of the protection climate change migrants deserve. Dialogue is a good starting point, but ultimately, if migrants are to prosper in a new location, they must have concrete, legal protections giving them the security to start over. One way to approach this crisis is to broaden the frame. Perhaps trying to fit climate change displacement within the refugee framework is too narrow. Instead, the broader migration system is better apt to address the legal gaps as the system allows for greater flexibility and policy adaptation. Unlike traditional refugees, who may have the possibility of returning home, it may never be possible for those fleeing to return to their home countries. Climate change is transforming the planet through flooding and desertification, making it impossible for people to return. The traditional refugee protection paradigm was not imagined to include permanent displacement. The system exists to provide temporary protection until a durable solution – return to the homeland or permanent residence status elsewhere – is a possibility. If permanent displacement is the future, then refugee protection falls short of the legal scheme that needs to be in place, as climate change migrants will need a more permanent protection than the Refugee Convention is designed to offer. Viewing the issue as one of migration, and not simply refugee protection, offers states and institutions the platform to find innovative solutions to offer this protection. Placing the issue within the broader migration framework would structure the issue as one of movement, and the rights any person who crosses borders should be afforded. Removing the confines of the refugee definition could open up a space for creativity and innovation in finding protection solutions.
 Chelsea Harvey, Temperatures in the Arctic are Skyrocketing for the Third Time This Winter, Wash. Post (Feb. 10, 2017), https://www.washingtonpost.com/news/energy-environment/wp/2017/02/10/temperatures-in-the-arctic-are-skyrocketing-for-the-third-time-this-winter/?utm_term=.a39840f247b7.  Id.  Ian Johnston, The World’s Sea Ice is Melting at Record Levels as Temperatures Soar, Independent (Feb. 17, 2017), https://www.washingtonpost.com/news/energy-environment/wp/2017/02/10/temperatures-in-the-arctic-are-skyrocketing-for-the-third-time-this-winter/?utm_term=.a39840f247b7.  UN High Commissioner for Refugees (UNHCR), Challenges relating to climate change induced displacement, (Jan. 29, 2013), http://www.refworld.org/docid/510a3a372.html.  UNHCR, Climate Change and Disasters (2017), http://www.unhcr.org/climate-change-and-disasters.html.  UNHCR, Frequently Asked Questions About Climate Change and Disaster Displacement, (Nov. 6, 2016), http://www.unhcr.org/en-us/news/latest/2016/11/581f52dc4/frequently-asked-questions-climate-change-disaster-displacement.html.  Id.  Docherty Bonnie & Gianni Tyler, Confronting a Rising Tide: A Proposal for A Convention on Climate Change Refugees, 33 Harv. Envtl. L. Rev. 349, 350 (2009).  UNHCR, Challenges Relating to Climate Change Induced Displacement, 29 January 2013, http://www.refworld.org/docid/510a3a372.html. UNHCR, UNHCR, The Environment & Climate Change, (Oct. 2015), http://www.refworld.org/docid/561f670a4.html.  Bonnie & Gianni, supra note 8, at 349.  Convention Relating to the Status of Refugees, July 28, 1951, 189 U.N.T.S. 137.  Lauren Nishimura, Climate Change Migrants: Impediments to a Protection Framework and the Need to Incorporate Migration into Climate Change Adaption Strategies, 27 Intl. J. Refugee L. 107 (2015).  Id.  Bonnie & Gianni, supra note 8, at 358.  See id.  Nansen Initiative, About Us, https://www.nanseninitiative.org (last visited March 5, 2017).  Id.  See Nishimura, supra note 13 (“[R]eframing the discourse allows the migrants’ rights and needs to become a focal point of policy, and creates a space to incorporate migration into broader climate change adaptation strategies.”).