BY BERIVAN GUNES
As COP29 gets underway in Baku, ILPA’s Legal and Parliamentary Officer, Berivan Gunes, touches on some of the limitations, and also the use of, international refugee law principles for those in need of protection as a result of climate change, and suggests some ways to address the key issues surrounding this deepening humanitarian emergency.
The United Nations Office for Disaster Risk Reduction defines a ‘disaster’ as “[a] serious disruption of the functioning of a community or a society at any scale due to hazardous events interacting with conditions of exposure, vulnerability and capacity, leading to one or more of the following: human, material, economic and environmental losses and impacts.” According to the recent data published by the Internal Displacement Monitoring Centre, at the year end of 2023, 7.7 million people had been displaced by natural disasters. The European Union’s 2023 Copernicus Climate Change Service report maps out the rise of extreme weather conditions across Europe (and the rest of the world), indicating that climate change is escalating into a crisis more rapidly than initially projected.
As the adverse effects of climate change persist, rendering many regions uninhabitable, the environmental degradation of homelands predominantly affects those with limited resources to mitigate climate change impacts. Indigenous and marginalised communities and people living in poverty bear a disproportionate burden of the climate crisis, leading to forced displacement. The World Bank estimates that without drastic and unified initiatives to mitigate climate change, as many as 216 million people may be displaced by 2050, with some estimates exceeding 1 billion. Environmental catastrophes are driving migration, making it imperative for existing international refugee law principles to recognise protection claims arising from a climate change and disaster context. It is now crucial to advocate for change and use the international refugee framework to account for the impacts of climate change, including deadly environments constituted by intentional human acts (or omissions).
Background and examples
The foundation of international refugee law lies in the 1951 Refugee Convention and its 1967 Protocol, which define refugees as individuals who have a well-founded fear of persecution in their country of origin or habitual residence. Currently, persecution is defined within the confines of race, religion, nationality, membership of a particular social group, or political opinion. Consequently, individuals forced to migrate due to environmental degradation or disaster may not be considered to neatly come within the legal definition of a “refugee”, but may nevertheless be in need of international protection if they were forced to return to face, for example, death or inhuman and degrading treatment.
In November 2020, when twin hurricanes Eta and Iota barrelled into Central America, followed by tropical storms Amanda and Cristobal, millions of people in Guatemala, Honduras, Nicaragua, and El Salvador became displaced and in need of protection. Lack of food, resources, and safety disproportionately affected marginalised communities, including women and LGBTQ+ people who were already at a heightened risk of violence and persecution. An encouraging number of countries in Central America, including Belize, Guatemala, and Honduras, have chosen to incorporate climate-induced migration into their national climate strategies, which includes the establishment and strengthening of a legal and institutional framework to address the issue.
In many countries, climate change and climate-related disasters quickly become ‘political’ and a state’s unwillingness to protect can, in turn, be for Convention reasons. Most recently, the 7.7 and 7.6 magnitude earthquakes which hit Turkey (and Syria) on 6 February 2023, exposed and exacerbated existing ethno-religious inequalities in the country. Kurdish and Turkish Alevis, among other smaller communities, were met with disaster-relief discrimination, despite being at the epicentre of the earthquake, due to their history and increased likelihood of political dissent with the current Regime. The discriminate lack of aid left many marginalised ethno-religious communities vulnerable and displaced, with little to no state support or protection. These occurrences are likely to increase around the globe as climate-related disasters intensify.
Fortunately, there is growing acceptance that it is often inaccurate to link migration choices to one single event. Instead, climate change is better understood as one in a nexus of factors, including violence, conflict, and disaster. Historically, numerous countries in Africa and South America have offered refugee status to individuals who have crossed their borders for climate-related reasons. Considering the growing urgency and higher risk of climate-related disasters, it is now more crucial than ever for countries in the Global West to take note of the actions of other countries.
To take one example, Kenya has historically provided refugee status to Somalis who arrived during 2011-2012, mostly in the Dadaab region’s camps. Many Somalis were recognised using a group-based approach under broader refugee criteria, primarily through registration. Whereas some, who believe the influx was driven by drought and its impact on livelihoods and food security, see the response as humanitarian (i.e. Somalis arriving in Kenya were registered as “refugees” for humanitarian reasons, not because they necessarily qualified under the 1951 Convention), others see the Somalis arriving due to drought and food insecurity as refugees fleeing conflict, insecurity, or disruption to public order. This view aligns with the 1969 Organisation of African Unity Convention Governing the Specific Aspects of Refugee Problems in Africa (OAU Convention). The same can be seen in Ethiopia in its acceptance of Somalis affected by the drought between 2011 to 2012. It is clear that the applicability of the “events seriously disturbing public order” ground in the OAU Convention, played a key role in recognising that climate-related reasons for forced migration are one element in the matrix of relevant facts which may form the basis of an asylum claim. A similar approach can be seen in Mexico, when it recognised Haitians affected by the 2010 earthquake as refugees under broader refugee criteria on the grounds of disruption of public order.
In the 2016 New York Declaration, the UN General Assembly reaffirmed that “international refugee law, international human rights law and international humanitarian law provide the legal framework to strengthen the protection of refugees” and committed to “ensure, in this context, protection for all who need it”. It took note of regional refugee instruments, such as the OAU Convention and the Cartagena Declaration on Refugees, acknowledging the significance of regional frameworks for protecting those with refugee status. The General Assembly understood that many people move for a combination of reasons, including reasons linked to climate change and other environmental factors, that refugees are among such movements of people, and that efforts are needed to strengthen their protection.
So what can we do?
From a soft-law perspective, the Global Compact for Migration, which although not internationally binding and does not offer legal protections, does reveal that the international community is aware that climate change is a factor that influences those seeking refugee protection.
Furthermore, the COP21 in 2015 resulted in the Paris Agreement, in which almost all states agreed, for the first time, on partially binding intended nationally determined contributions (INDCs) to limit climate change. The COP Decision established a task force under the Warsaw International Mechanism to “develop recommendations for integrated approaches to avert, minimize and address displacement related to the adverse impacts of climate change.” Although some helpful recommendations were made, the question of legal status, protection and assistance for those relocating in the context of climate change was not addressed.
With this in mind, the following recommendations may be valuable:
- Raise awareness and encourage legal representatives to consider using international refugee, human rights and humanitarian protection principles and frameworks in their arguments and submissions for individuals seeking protection, where climate or disaster-related factors may also be relevant;
- Development of legislation and policies on a national level that can limit and address climate and disaster-induced migration, while upholding our human rights obligations;
- Provide assistance to people who are displaced internationally;
- Encourage safe migration pathways for individuals affected by climate change and disaster;
- Enhance and fund research for improved data collection and information sharing to better tackle climate change and understand and manage climate-induced migration.
More ambitious recommendations may include:
- Revision of the 1951 Refugee Convention and 1967 Protocol, bearing in mind a number of issues that would arise in doing so, including potential weakening of existing refugee status, and nation states re-ratifying the Convention (bearing in mind some nation states’ lack of political will to even implement the Convention as it stands).
- Creating a new Convention for climate change and climate-induced migration to address the gap in legal protection. The Faculty of Law at the University in Limoges has already proposed a draft convention on environmentally displaced persons which can be read here.
- Similar to what countries in Central America have adopted, nation states can try to collectively meet their obligations under the climate law framework introduced by the United Nations Framework Convention on Climate Change (UNFCCC). If nation states met their obligations, the international community could reduce climate change to 1.5 degrees Celsius compared to pre-industrial levels. This is more of a mitigating change to limit the number of displaced individuals.
In the meantime, the Home Office and the UK Government should acknowledge the connection between climate change and migration as we know it, and recognise that disasters and crises, regardless of their causes, may require similar responses. Earlier this year, the Refugee Law Initiative published their ‘Declaration on International Protection in the context of Disasters and Climate Change’, which helpfully applies the established international refugee law principles to the assessment of protection claims arising from a climate and disaster context. A fuller legal analysis on this piece can be read in this accompanying analytical paper by David Cantor et al.
It might also be helpful for the Home Office to recognise that rights under Article 8 of the European Convention on Human Rights can go beyond national borders and help shape domestic responsibilities. It is important to recognise and push for the adoption of a broader approach which takes into account humanitarian concerns and international obligations in responding to disasters caused by climate change.
Berivan Gunes has been ILPA’s Legal and Parliamentary Officer since September 2023. She is also a qualified solicitor with experience in a broad range of immigration and nationality law.
ILPA invites members and other leading experts to contribute articles to its monthly blog. The views expressed in all blog posts are the authors’ own and are not necessarily those of ILPA.
- Document Date
- Wednesday November 13, 2024