by Eloise Judd
Cities and states are gradually being submerged by rising sea levels, food and water security are threatened by temperature and rainfall variability, and diseases are spreading with increasing frequency and severity – to name but a few effects of climate change. Refugees coming from such regions find themselves in a legal lacuna of protection in international law. This ‘slow violence’ that is ‘not just attritional but exponential’ is exacerbated with each passing day of political inaction. The inertia of legal developments mirrors the very threat faced by these refugees, with climate change and its correlative forced migration as the epitome of ‘delayed destruction’.
Climate-induced migration will also be, for the most part, gradual, with the exception of sporadic, mostly internal, migration shifts in response to significant climatic events such as cyclones or king tides. However, by focusing on transnational migration, specifically from low-lying, ‘disappearing’ island states, pertinent and unanswered questions around statelessness, international law, and human rights obligations are highlighted.
The slow violence of climate change is consistently an issue of representation, accruing in the shadows of the ‘immediate’, ‘explosive’ and ‘spectacular’ violence that dominates rapid news cycles and political agendas. This article seeks to bring the legal lacuna in which climate refugees are positioned to the fore. By challenging the ‘slow violence’ of political inaction, it advocates for an amendment to treaty law on the basis of international human rights obligations.
Despite its poignant resonance, the term ‘climate refugee’ does not exist in international law. For this reason, many authors avoid this label as it is considered an ‘international misnomer’ which ‘does not accurately reflect in legal terms the status of those who move’. Instead, alternative appellations such as ‘environmentally displaced person’ or ‘climate change migrant’ are adopted. Yet, in doing so, authors present an implied acceptance of a differential standard of legal protection according to the source of harm from which one is fleeing.
Climate refugees fall within a ‘protection gap’ – a legal lacuna – unprotected by the 1951 Convention Relating to the Status of Refugees (1951 Convention) (UNHCR, 1951) and the 1954 Convention Relating to the Status of Stateless People (1954 Convention). The former is ‘the centrepiece of international refugee protection’ however the criterion of Article 1A(2) is limited to those with a ‘fear of persecution for reasons of race, religion, nationality, membership of a particular group or political opinion’.
Extensive literature has debated whether ‘climate change counts as persecution.’ This focus, however, is misguided. The centralisation of ‘persecution’ overshadows the elaboration in Article 1A(2) of one ‘being unable… to avail himself of the protection of [his] country’. By encouraging the notion of ‘protection’ to take precedence in debate, a case can be made in favour of extending the 1951 Convention to obligate international protection for human rights when state assurance is inhibited.
Under international law, human rights are the positive obligation of a citizen’s nation-state. Climate change may undermine the state’s capacity to protect and ensure numerous human rights: including the right to life, the right to health, the right to a nationality, and the right to political freedoms. In Tuvalu and Kiribati, for example, this cessation will ensue on a slow and violent continuum: the state will become increasingly uninhabitable, with resources such as freshwater supply threatened until the point that it is lost below sea level. Consequently, climate refugees are de facto stateless; a status that should not be limited to the de jure loss of nationality but to the loss of ‘protection resulting from nationality’.
This is a novel form of statelessness, unprotected by the 1954 Convention which, when drafted, was formulated around state absorption, merger, and dissolution (with successor states). The loss of low-lying island states, however, is not met by a territorial replacement. Contributing further to the lacuna of protection, the right to nationality outlined in article 15 of the Universal Declaration of Human Rights is not present in customary international law. This lacuna of protection is highly significant for de facto stateless climate refugees who are unable to rely upon the legal obligation of the international community to grant a new nationality.
Solutions posited to the legal lacuna centre around the principles of non-refoulement and ‘complementary protection’. The former is exemplified in the Teitiota ruling in January 2020, heralded as a ‘landmark’ and ‘historic’ case. Although valuable in its unprecedented recognition of climate refugees, the legal protection afforded in insufficient. The case made by Teitiota, a Kiribatian man seeking asylum in New Zealand, formed the basis of the UNHCR ruling against the deportation of persons who’s right to life may be threatened by climate change upon return.
However, the protection offered by non-refoulement is conditional and temporally latent, premised upon an individual reaching the host state before any form of security is granted. It is also a highly individualised form of protection, wholly inadequate to meet the demands of entire populations as states disappear below sea level. Similar ad hoc protection is reflected in ‘complementary protection’ regimes – nation-state responses to persons outside of the 1951 Convention seeking asylum. These are premised upon national discretion rather than a universalized obligation. Without a binding treaty, disparate nation-state displays of altruism are ineffectual.
Nevertheless, ‘complementary protection’ regimes do exemplify political will to meet the post-1951 Convention demands of refugeehood on the basis of human rights. This notwithstanding, political will must be transformed into action to explicitly incorporate climate refugees in the mandated protection afforded by the 1951 Convention. Some authors, such as McAdam and Saul and Williams critique that the Convention cannot, or should not, be amended; arguing that the incorporation of specialised sub-groups would devalue current refugee protection by fragmenting the legal regime.
This contention is flawed, however, as the 1951 Convention itself is additional to the refugee criterion established in the Arrangements of 12 May 1926 and 30 June 1928, the Conventions of 18 October 1933 and 10 February 1938, the Protocol of 14 September 1939, and the Constitution of the Refugee Organisation. The Convention encompasses former refugee definitions, thus broadening rather than devaluing protection.
Expansion to meet novel contexts, such as climate change and its correlative forced migration, was anticipated when drafting the Convention in 1950: the French delegate critiqued the narrow criterion, affirming that ‘new and undreamed-of categories of refugees might be created’ and ‘in view of the turbulent state of the world, no such list could ever be complete’. Thus, it was acknowledged in Recommendation E of the Conference’s Final Act that the Convention could be extended in response to changing demands. Ad hoc extensions of the contractual scope have been exemplified at the national level by ‘complementary protection’ regimes. However, until climate refugees are explicitly protected by the 1951 Convention, they will continue to exist precariously in a lacuna of international legal protection.
Eloise Judd is currently completing an MA in Conflict, Security & Development within the War Studies Department at King’s College London. Formerly specialising in Political Geography at Durham University, she is currently researching protracted refugee situations and the interaction between camp architecture and human rights. Eloise hopes to pursue a career in conflict resolution and peacebuilding. You can connect with her on LinkedIn, or follow her on Twitter: @eloise_judd