“Petro-persecution” accounts for the source of “persecution” as the dependence of entire economies, industries, and industrial processes upon fossil fuels (e.g., industrial agriculture, steel production, and other manufacturing). Oriented around an understanding of “petro-persecution” as fundamentally deterritorialized (and not limited to one’s country of origin), international refugee law might instead center the ability or inability of a nation-state to protect its own people from the effects of the climate crisis. Likewise, resettlement or funding for resettlement might be weighted toward wealthier nations and nations most resilient to the effects of the climate crisis, especially if such wealth were procured through exploitative fossil fuel extraction, refining, and distribution itself.
What is required is a new international convention that recognizes climate refugees and establishes comprehensive and legally binding protections. Yet articulating new and revised approaches, strategies, and instruments around such an understanding of “persecution” under the global climate crisis first requires an account of existing approaches to climate-induced migration within national bodies and international bodies. The creation of a new refugee convention, the Convention Relating to the Status of Climate Refugees, or the revision of the 1951 Refugee Convention must follow from this key development in our understanding of the issue at hand.
Existing Approaches to Climate-Induced Migration
National Bodies and Climate-Induced Migration
Many countries have included provisions on assistance and protection for persons affected by natural disasters in their country, including IDPs, in their disaster management legislation. For disaster-induced cross-border displaced persons, some states have enacted systems of temporary or subsidiary protections. For example, the US Immigration and Nationality Act provides for the possibility to grant Temporary Protection Status (TPS) for nationals of a foreign state in the following cases: 1) there has been an environmental disaster in the foreign state resulting in a substantial, but temporary, disruption of living conditions;377 2) the foreign state is unable, temporarily, to handle adequately the return of its own nationals; and 3) the foreign state officially has requested such designation.378
One benefit of TPS is the ability to extend protections for a country based on their recovery progress. For example, there are 57,000 Hondurans and roughly 2,550 Nicaraguans with TPS, as of 2018 estimates. Immigrants from Honduras and Nicaragua who qualify for TPS must have been living in the United States as of December 30, 1998, following Hurricane Mitch, which killed more than 5,600 people in Honduras and more than 3,000 in Nicaragua, and caused damages of $5 billion and $1.3 billion, respectively.379 Although a series of environmental disasters—including storms, earthquakes, and a volcanic eruption—have hampered recovery efforts, the Department of Homeland Security said in a 2017 announcement that conditions in Nicaragua had improved enough that the TPS designation would be terminated in January 2019. As a result of an injunction by a US district court, however, the end date for TPS for the country has been extended to January 2020.380
The primary shortcoming of TPS, however, is the sometimes arbitrary nature of its activation and deactivation. For example, in other disasters of similar severity, including the devastating 2008 floods in Haiti, this system was not activated.381 Likewise, TPS for Nicaragua would Existing Approaches to Climate-Induced Migration not have been extended were it not for the US district court’s intervention.
In some cases of climate-induced displacement, some states have admitted and received displaced persons through humanitarian visas. In June 2014, a New Zealand court decision allowing a family from Tuvalu to remain in the country was initially seen as the first legal recognition of climate refugees, yet the family was permitted to stay based on humanitarian grounds and not through protection under refugee or human rights law. The family argued that they should be granted refugee status because their ability to provide for their family was hindered by the scarcity of land and fresh drinking water in Tuvalu due to the climate crisis. Yet the court allowed the family to stay because they had strong family ties within New Zealand.
The decision highlighted two limits of such humanitarian approaches to climate-induced displacement. First, although the New Zealand court determined that it is possible that natural disasters could create a humanitarian situation, it rejected the family’s claims concerning the role of the climate crisis.382 Second, the ruling was “discretionary,” neither creating an obligation for any other country nor creating any legal precedent, even in New Zealand.
Regional Bodies and Climate-Induced Migration
The United Nations and other regional bodies, such as the Association of Southeast Asian Nations, African Union, European Union, and Organization of American States, have pursued various mitigation and adaptation strategies to respond to the climate crisis—albeit with agreements that are insufficiently compulsory and legally binding. Each has recognized to some degree that “persecution” under the climate crisis needs to be recognized as a regional and global dynamic, and accounted for as such within mitigation and adaptation strategies for the climate crisis. This is true in terms of the exploitation and manufactured vulnerability of the world’s most marginalized peoples in their home countries, as well as their subsequent displacement and need for safe and adequate sites for resettlement.
Association of Southeast Asian Nations
The Asia-Pacific region is considered the most at-risk part of the world, given its low-lying coastal regions and islands, and the high population density in such areas. As humanitarian and human rights discourse increasingly turned to the issue of internal displacement in the 1990s, some of the world’s largest populations of IDPs were also identified in Association of Southeast Asian Nations (ASEAN) member states (e.g., Myanmar, Indonesia, the Philippines).383 More recently, the region has seen the large-scale displacement of peoples in the wake of severe weather and other types of natural disasters (e.g., the Indian Ocean tsunami in 2004, Cyclone Nargis in 2008). At the same time, the climate crisis is expected to put many people living downstream of the Himalaya-Hindu Kush mountain range—from 39 million to 812 million South Asians—at risk of water stress.
In the early twenty-first century, despite the looming risks of increased flooding, sea-level rise, and water stress, ASEAN continues to lack comprehensive regional frameworks or related mechanisms to regulate the treatment of refugees, let alone their “in-country” counterparts, IDPs. Few ASEAN member states have signed the 1951 Refugee Convention, including the two key receiving countries, Malaysia, and Thailand. Moreover, the wider context of weak and institutionalized regional cooperation and a patchwork of intraregional protocols and bilateral agreements have not lent themselves to the articulation of an ASEAN protection regime focused on the rights and needs of displaced populations.384
Despite gaps in formal protections and regional arrangements, there is a long-standing regional practice of informal arrangements that allow for large numbers of displaced persons to carve out some form of refuge. This is the case even in the borderlands and urban areas of states that have not signed the convention (e.g., Malaysia and Thailand). Some government officials have also shown an interest in humanitarian practices and institutions, whether in response to a particular refugee or internal displacement crisis, or in meetings and workshops, including with representatives of the UN High Commissioner for Refugees. Examples of such best practices are numerous: the Inter-Governmental Asia-Pacific Consultations on Refugees, Displaced Persons and Migrants, or the Asia-Pacific Consultations on Refugees, Displaced Persons and Migrants, which has met annually since 1996.
Governments across the Asia-Pacific region have also explored possibilities for greater cooperation to combat specific aspects of irregular migration, such as migrant smuggling and human trafficking (e.g., the so-called Manila Process). In this regard, the 1998 adoption of the Bangkok Declaration on Irregular Migration provided a common basis for law enforcement cooperation in a region in which very few states have signed the UN Protocol against Migrant Smuggling.385
ASEAN member countries have also excelled at disaster relief. Concerning the recent humanitarian assistance in Southeast Asia, ASEAN’s role became visible with the Cyclone Nargis flooding in Myanmar: all ASEAN member countries provided disaster relief materials to the cyclone-affected areas based on the ASEAN Agreement on Disaster Management and Emergency Response.386 Furthermore, an ASEAN Emergency Rapid Assessment Team was deployed, comprising government officials, disaster experts, and nongovernmental organizations from the ASEAN countries.387
Over the past several decades, displacements have reached daunting proportions in Africa, particularly sub-Saharan Africa. According to Francis Deng, the first representative of the UN Secretary-General on IDPs, between 1969 and 1994, the number of IDPs in Africa soared to between 10 million and 15 million. In 1994, the long-standing and alarming increase in IDPs prompted the Organization of African Unity to state that internal displacement is “one of the most tragic humanitarian and human rights crises in Africa today.”388 These trends continue today, with the climate crisis increasingly recognized as a determining factor in such displacement and migration. Of the total number of IDPs, 30 percent originate from African nations (12.4 million), and of the total 3.5 million new internal displacements in Africa in 2015, 1.1 million were triggered by rapid-onset natural disasters (principally floods).389
The African Union’s targeted response to the international IDPs crisis has illustrated the capacity for such frameworks to be configured in ways that ameliorate climate-induced displacement. In the context of such historic and ongoing displacement across the continent, in 2009 African leaders within the African Union adopted the Convention for the Protection and Assistance of Internally Displaced Persons of Africa, conventionally known as the Kampala Convention—the first legally binding international instrument on IDPs.
The Kampala Convention designates the state as the primary actor in addressing and mitigating internal displacement in collaboration with civil society and humanitarian organizations. The convention creates a legally binding definition for IDPs that is identical to the guiding principle’s definition and requires that states provide IDPs with legal documentation. Furthermore, the convention includes state obligations for the prevention of internal displacement, for protection and assistance during displacement, and for the creation of durable solutions and compensation. The agency of IDPs is emphasized throughout the Kampala Convention’s obligations, stating that IDPs must be consulted and allowed to participate in decisions about protection and assistance during displacement and be involved in the decision-making of whether they will be returned, locally integrated, or relocated.
While the provisions of the Kampala Convention are extensive, implementation remains uneven—25 states have ratified the convention while 18 have signed but not ratified it.390
Those states that have implemented the Kampala Convention—and even states that have been inspired by the convention but have not yet signed or ratified it—have established clear examples of good practices. Long before the Kampala Convention was created, Uganda was a pioneer in such efforts, adopting the National Policy for Internally Displaced Persons in 2004. In Somalia and Mali, the convention has helped widen the scope of consultation among international partners to develop national laws and policies. Although Kenya is not yet a party to the Kampala Convention, it has developed and adopted a comprehensive framework to address displacement issues. Likewise, Burundi is not yet a party to the convention, yet the 2000 Arusha Peace and Reconciliation Agreement includes multiple provisions relating to internal displacement that are consistent with it (e.g., guaranteeing access to people in need and the security of international personnel and provision of humanitarian aid).391
Ultimately, while several states have adopted domestic laws and policies to incorporate the convention’s obligations (explicitly or not) , more action is needed, and insufficient resources are currently being allocated to the implementation of policies.
Between 2000 and 2014, weather variations in 103 source countries translated into asylum applications to the European Union, which averaged 351,000 per year. A December 2017 study by Columbia University climate researchers projected that as global temperatures continue their upward march, applications for asylum to the European Union could increase 28 percent to nearly 450,000 per year by 2100.392 The Global Compact on Refugees is an intergovernmentally negotiated agreement prepared under the auspices of the United Nations. A blueprint for governments, international organizations, and other stakeholders to ensure that host communities and refugees alike get adequate support, the agreement was formally endorsed by the UN General Assembly on December 17, 2018. Likewise, the Global Compact for Migration—which describes itself as covering “all dimensions of international migration in a holistic and comprehensive manner”—was formally endorsed by the UN General Assembly on December 19, 2018.393
Both compacts do make some reference to the climate, yet the refugee compact stops short by regarding climate simply as one of many factors that “may interact with the drivers of refugee movements.” Conversely, the final draft of the migration compact calls on UN members to “better map, understand, predict Climate Refugees: The Climate Crisis and Rights Denied 56 and address migration movements, including those resulting from sudden- and slow-onset natural disasters, environmental degradation, the adverse effects of climate change” and “cooperate to identify, develop and strengthen solutions, including planned relocation and visa options” for climate migrants.394
However, against calls for the compact to recognize climate refugees and thus make specific demands for their protections, Louise Arbour, the UN official leading the latter compact, told the European Union that the document would not grant “specific legal international protection to climate-induced migrants.”395 Regardless, both agreements are voluntary in nature and not legally binding instruments. Despite such progress, the United Nations and other regional bodies, such as the European Union, African Union, ASEAN, and Organization of American States, and others need to further pursue vigorous adaptation strategies for climate refugees through agreements that are compulsory and legally binding.
Organization of American States
In the Americas, the nonbinding Cartagena Declaration on Refugees, crafted in 1984 in response to the wars in Central America, sets regional standards for providing assistance not just for those displaced by civil and political unrest but also those fleeing “circumstances which have seriously disturbed the public order.” The Organization of American States (OAS) has also passed a series of resolutions offering member states additional guidance on how to respond to refugees, asylum seekers, stateless persons, and others in need of temporary or permanent protection.396
In 2016, the OAS released a report entitled, “Climate Change: A Comparative Overview of the Rights Based Approach in the Americas.” The report dedicated little to the issue of climate-induced migration, though what connections it did make did so through human rights frameworks. The report stated that the biggest threats to the “right to inviolability of the home” (Article X) are “sea level rise claiming beach homes and homes in close proximity to flood plains, changes in living stock and quality of resources; clean/quality water availability diminished causing forced displacement; floods, hurricanes, cyclones and landslides causing forced displacement; risk of urban floods in riverine and coastal areas, inducing property and infrastructure damage in North America.” Beyond such recognition of the relationship between the climate crisis and human migration, and the threats to human rights, OAS efforts have remained limited.
International Bodies and Climate-Induced Migration
International Climate Crisis Negotiations
A result of the 2010 Cancún Climate Change Conference was Article 14 of the Cancún Agreements: Outcome on Long-term Cooperative Action, under the UNFCCC, which invited states to enhance action on adaptation.397 The meeting and article were important because it was the first time that the international community officially recognized the humanitarian consequences of climate crisis-related population movements as an adaptation challenge. Echoing Cancún, in 2011, the Norwegian government, in partnership with the Norwegian Refugee Council and the Centre for Climate and Environmental Research, hosted the Nansen Conference: Climate Change and Displacement in the 21st Century. During the event, civil society, nongovernmental organizations, international organizations, private sector, and other parties convened for two days to discuss climate-induced migration.
After 16 years of avoiding mentioning the topic altogether in the UN Climate Change Conference (COP), climate-induced displacement was firmly addressed by the parties within the 2015 COP21 decision adopting the Paris Agreement (rather than the treaty itself).398 Under the heading of “loss and damage,” the decision declared the need to establish a task force “to develop recommendations for integrated approaches to avert, minimize, and address displacement related to the adverse impacts of climate change.”399
At COP24, countries “welcomed” the guidelines set forth by the task force and agreed to include them in their final report. They also agreed to let the task force continue its work on displacement indefinitely—a symbolically important gesture and one that will make it easier to hold governments accountable in the future.
International Human Rights and Security Negotiations
Climate crisis-related security challenges have been addressed by the UN Security Council (UNSC) and used as a means to promote migrant rights and protections. Small island developing states (SIDS) were among the first to push for this agenda, as rising sea levels pose a direct threat to their existence, which could, inter alia, lead to territorial disputes and puts military bases at risk.400 When SIDS first discussed the climate crisis at the UNSC in 2007, it was seen as a “socioeconomic development issue” appropriate for the UN General Assembly and the UNFCCC.401 In 2009, the UN General Assembly requested the UN Secretary-General to submit a comprehensive report to the assembly on the possible security implications of the climate crisis.402 The report highlighted the security implications of the climate crisis and the relevance of population movements in particular.
In 2011, the UNSC considered the impact of the climate crisis under the item “maintenance of international peace and security.” While not directly referring to population movements, the UNSC expressed its concern over the potential of adverse climate crisis impacts, including those related to loss of territory, aggravating existing threats to international peace and security. In 2015, during the open UNSC debate on peace and security threats to SIDS, China acknowledged that SIDS are experiencing “non-traditional security threats,” and in 2017, Russia acknowledged the climate crisis in specific conflict regions, such as Lake Chad.403
However, after a decade of efforts, the SIDS campaign and other campaigns did not translate to a meaningful resolution, nor international legal norms designed to account for the disappearance of nations because of environmental processes or acknowledge climate or environmental refugees altogether.404 Ultimately, the security aspect of climate-induced migration should be used to promote the rights and protections for migrants and not to erode their rights, exacerbate their vulnerability, or limit their mobility.405
There have been other positive moves toward the recognition and protection of climate refugees within the UN Human Rights Council (UNHRC). In 2008, the UNHRC recognized that the human being is the center of sustainable development, and the right to development must be viewed in the context of fulfilling the needs of future generations. A year later, the council adopted another resolution where it acknowledged the impact of the climate crisis on human rights. In this particular resolution, the council noted the challenges that the climate crisis poses to the fulfillment of Millennium Development Goals and the eradication of poverty.406 It pointed out that the climate crisis impacts rights such as the right to life and the right to adequate food, especially of the most vulnerable people of the society.407
In July 2017, the UNHRC resolution 35/20 requested that the UN High Commissioner for Refugees “organize an intersessional panel discussion prior to the commencement of phase II of the intergovernmental process leading to the global compact on safe, orderly and regular migration, with the theme ‘Human rights, climate change, migrants and persons displaced across international borders.’”408 The panel discussion set out to “identify opportunities for States, civil society and other relevant stakeholders to facilitate the protection and fulfillment of the human rights of migrants in the context of the adverse impacts of climate change,” and to “contribute to relevant processes that address migration in the context of climate change,” including the stocktaking efforts for the global compact on safe, orderly, and regular migration and the work of the Task Force on Displacement (TFD) under the UNFCCC.409
International Migration and Development Negotiations
The Office of the UN High Commissioner for Refugees (UNHCR) has highlighted the legal gap for cross-border displaced persons for several years. The existence of such a gap was again recognized at the 2010 Dialogue of the High Commissioner on Protection Challenges.410 The UNHCR was also addressing the protection gap in the area of cross-border movement in the context of the 2011 commemorations of the 1951 Refugee Convention and 1961 Statelessness Convention. Presently, the UNHCR plays a leading role in the Global Protection Cluster for protecting and assisting people who are forcibly displaced inside their countries and cannot return safely home.411 The UNHCR is also a standing invitee to the Steering Group of the Platform on Disaster Displacement—a state-led initiative focused on the implementation of the Nansen Initiative’s Protection Agenda.
Further, the UNHCR has developed planned relocation guidance together with Georgetown University and other partners for the relocation of at-risk populations 59 belonging.berkeley.edu @haasinstitute to protect them from disasters and the impacts of the climate crisis while respecting their human rights.412 In 2018, in the implementation of the Workplan of the TFD, the UNHCR pushed to map existing international and regional guidance and tools aimed at addressing the adverse impacts of the climate crisis, including its effect on migration, while accounting for the adverse effects of the climate crisis that were presented at COP24 and adopted by parties.413
Throughout, the UNHCR has provided technical support to the UNFCCC process since 2008, including through the Advisory Group on Human Mobility and Climate Change and in its role as a member of the TFD mandated by the Executive Committee of the Warsaw International Mechanism on Loss and Damage.414
Likewise, the 2018 UN Global Compact for Safe, Orderly, and Regular Migration reaffirmed the New York Declaration for Refugees and Migrants and expanded it to account for migration driven by “natural disasters, the adverse effects of climate change, and environmental degradation”—the first UN compact to recognize the climate crisis as a driver of migration. Specifically, Objective 2 on addressing drivers of migration contains a subheading specific to disasters, the climate crisis, and environmental degradation, and calls to “develop adaptation and resilience strategies” to disasters and adverse effects of the climate crisis that take into account migration; to “integrate displacement considerations into disaster preparedness strategies”; to address the vulnerabilities of persons affected by disasters and provide them with the necessary humanitarian assistance; and to “develop coherent approaches” to address the challenges of migration and displacement.
Although the United Nations had proposed the compact (alongside the Global Compact on Refugees) as a vehicle to address the large movements of forced migrants, and although the compact was a nonbinding document during the negotiation process, there was major resistance to the compact taking up climate. For example, Vera Songwe, Executive Secretary of the Economic Commission for Africa, acknowledged the “significant contributions and proposals” from the Africa Group, including protection gaps and vulnerabilities related to disasters and climate-induced migration, which was included as a separate objective as proposed by the Africa Group.415 Indeed, the Africa Group, countries in the Pacific, and some Latin American countries all pushed to have a distinct objective on the climate crisis and displacement and threatened to pull out without the inclusion of one.
Beyond Objective 2 and its dedicated engagement with climate, Objective 5 on enhancing availability and flexibility of pathways for regular migration is highly relevant for climate-induced displacement across borders. It calls on states to develop and use practices such as humanitarian visas or temporary work permits for persons displaced by sudden-onset disasters, and planned relocation or visa options for those crossing borders due to slow-onset events. Together, these provisions outline a vision of what needs to be done, and a basis for concrete action at domestic, regional, and international levels. According to Walter Kälin, Envoy of the Chair, “the most important part of the Compact are the provisions on implementation and follow-up.” In this regard, a so-called connection-hub will be created within the United Nations as a capacity-building mechanism.416
Approaches and Strategies
THE USE OF FOSSIL FUELS and other sources of greenhouse gas emissions have been transforming the earth’s climate and putting the world’s most vulnerable communities at risk. Such “petro-persecution” born of our global dependence on petroleum, coal, natural gas, and other fossil fuels, and the global investment patterns behind this dependence, puts pressure on countries to protect their communities from climate impacts. This is a nearly impossible endeavor across the Global South, especially when it comes to island nations threatened by sea-level rise and climate-vulnerable periphery nations that have long been forced into labor-intensive production and extraction of raw materials for the Global North.
Through militarized borders, the criminalization of migration, fewer resettlements, and limited refugee protections, climate refugees also experience “petro-persecution” when it comes to the process of resettlement itself, especially from across the Global South to the Global North.
This report offers several recommendations concerning international and intranational refugee law and resettlement strategies, centering “petro-persecution” as a form of “persecution” not bound by national borders or originating solely from within one’s nation of origin.
Policy Intervention 1: Legal Recognition of “Climate Refugees” via a Convention Relating to the Status of Climate Refugees or Amendment to the 1951 Refugee Convention
in relation to forced migration in the context of the climate crisis, it is not part of international law. The premier comprehensive and legally binding tool for displaced persons, the 1951 Refugee Convention, does not explicitly recognize environmental and thus climatic factors Approaches and Strategies as criteria to define who is a refugee. Furthermore, the definition of “persecution” itself within the 1951 Refugee Convention is in conflict with the nature of the climate crisis, given the current impossibility of determining the “actor(s)” of persecution and linking their actions/inactions to specific cases of climate-induced displacement.
The core issue here concerns the effectiveness of rights and the legal certainty in the context of climate-induced displacement and the definition of “persecution” upon which such rights must be based.
This report proposes two possible pathways forward: the creation of a new refugee convention, the Convention Relating to the Status of Climate Refugees, or the amendment of the 1951 Refugee Convention.
Regardless of the pathway forward (other than whichever offers the path of least resistance), the agreement must satisfy two major requirements. It must first qualify individuals and communities that cannot avail themselves of government relief from the effects of the climate crisis as those who are “persecuted” and thus allowed to formally make a claim for asylum in a country of their choosing. Secondly, it must do so without demanding that such status be linked to a specific “actor” of persecution (whether a private or public entity or agricultural or industrial process). Under either agreement, and in conjunction with the existing circumstances covered under the 1951 Refugee Convention, “climate refugees” would be guaranteed legal protection as follows:
- Situations of sudden- or slow-onset disasters (not necessarily linked to the climate crisis) if authorities deny reasonable assistance and protection to certain people because of their race, religion, nationality, membership of a particular social group, or political opinion and as a consequence expose them to treatment amounting to persecution. The same is true where a natural disaster impact meets the threshold of a persecution because it is the consequence of a respective governmental policy with a discriminatory impact on a specific group of persons possessing such attributes. Such circumstances are covered under the existing 1951 Refugee Convention.
- Situations of violence, serious human rights violations, or armed conflict triggered by disputes over shrinking natural resources if persecutory measures are based on the race, religion, nationality, membership of a particular social group, or political opinion of affected persons. Such circumstances are covered under the existing 1951 Refugee Convention.
- Situations where a person—regardless of their race, religion, nationality, membership in a particular social group, or political opinion—fleeing the effects of the climate crisis might be fleeing a nation and government that has not turned against its citizens but rather cannot protect its citizens. Some of the people experiencing the most disastrous effects of the climate crisis are living within nations that have long recognized the issue at hand and that have appealed to the international community for support. The new Climate Refugee Convention or revision of the existing 1951 Refugee Convention would account for this by not demanding identification of a specific “persecutor,” especially one internal to one’s country of origin.
Policy Intervention 2: Linking Scientific Research on Habitability and Climate-Induced Displacement with National Resettlement Plans
If one is a refugee, there are three solutions to the persecution one has faced: 1) returning safely and voluntarily to the country one has fled; 2) integrating in the country one fled to; and 3) resettlement to a third country. As of the end of 2015, the median duration of exile stands at four years (i.e., half of the refugees worldwide have spent four years or less in exile) whereas the mean duration stands at 10.3 years.420 Although the mean duration has been relatively stable since the late 1990s, short- and long-term natural disasters exacerbated by the climate crisis may increase the average duration of exile. Even in the context of shortterm natural disasters (e.g., storms, floods, fires), the devastation may be long-lasting.
Under the climate crisis, there is the added challenge that such disasters are likely strengthening and increasing in frequency. Long-term natural disasters (e.g., sea-level rise and desertification) may mean there is advance warning of displacement, though the risk of extended exile remains that much greater due to potentially permanent environment change and outright land loss. Thus, the challenge is determining the extent to which people who flee from a short-term natural disaster are obliged to return once the danger has passed and the devastation cleared, and the extent to which people need to flee from an impending long-term natural disaster.
The primary legal impediment to the forced return of people in such circumstances is whether, in forcing return, the host state would expose the individual to such risk again in the near future or to a place where one’s livelihood is impossible to recover altogether.421
Scientific knowledge is inherently limited concerning efforts to link the actions of emitters and industries to specific cases of climate-induced displacement in the granting of refugee status.
This report recommends strengthening existing research agendas on the likelihood that the natural disaster in question would recur and strengthen under the climate crisis, as well as scientific research on the longterm transformations a specific region will experience. Specifically, this report recommends strengthening the Warsaw International Mechanism regarding Climate Loss and Damage, which addresses loss and damage associated with the adverse effects of the climate crisis in a comprehensive, in
tegrated, and coherent manner by undertaking, inter alia, the following functions:
- enhancing knowledge and understanding of comprehensive risk management approaches to address loss and damage associated with the adverse effects of the climate crisis, including slow-onset impacts;
- strengthening dialogue, coordination, coherence, and synergies among relevant stakeholders;
- enhancing action and support, including finance, technology, and capacity building, to address loss and damage associated with the adverse effects of the climate crisis, so as to enable countries to undertake actions; and
- strengthening the Warsaw International Mechanism regarding Climate Loss and Damage to aid the pooling of scientific knowledge and resources concerning the duration, intensity, and frequency of short- and long-term natural disasters and their impacts.
This report recommends strengthening existing links between the Warsaw International Mechanism regarding Climate Loss and Damage and the Task Force on Displacement (TFD), which is designed to develop recommendations for integrated approaches to avert, minimize, and address displacement related to the adverse impacts of the climate crisis. A key goal of the TFD is to invite partners and relevant stakeholders to identify capacity needs and support the efforts of developing countries to avert, minimize, and address human mobility associated with the adverse effects of the climate crisis.
This report recommends integrating, within the existing joint efforts between the Warsaw International Mechanism regarding Climate Loss and Damage and the TFD, the resettlement plans of host nations, including plans of forced return.
There are a number of practical measures needed to support the development of labor mobility pathways toward the mitigation of climate-induced displacement for climate refugees and receiving countries alike.
This report recommends the establishment of research and policy priorities concerning labor migration within the Warsaw International Mechanism regarding Climate Loss and Damage and the TFD. Such priorities must include:
- strengthening national capacity to support the collection and dissemination of reliable labor market information and analysis of environmental impacts;
- mobilizing national expertise to map climate vulnerabilities at the regional and national levels with a focus on climate-vulnerable sectors and the populations that fill them;
- developing mechanisms, regional standards, and bilateral arrangements to support the portability and recognition of social security arrangements for workers outside their own countries; and
- developing adaptation plans that link the adverse effects of the climate crisis with a greater need for legal, safe, fair, and regular channels for labor mobility.
The high cost of migration makes labor mobility an unfeasible option for the majority of workers in climate-vulnerable communities, particularly in developing countries. For labor mobility to play a role in adapting to the climate crisis, such targeted goals could represent means of reducing costs, securing work and humane working conditions for migrants, and developing the economies of host countries.
Policy Intervention 3 Pooling Funds for Climate-Induced Loss and Damages, and Compensation
In the context of the climate crisis, there will be increasing pressure placed on the infrastructure designed to manage the environmental change itself in the country of origin as well as asylum, reception, and integration systems in the receiving country. Further, the growth of refugee populations has put pressure on local schools and housing. These various pressures are distributed unevenly across geographies, exposing faults in systems of multilevel migration governance and the disproportionate impact of climate-induced displacement and resettlement around the world.
While there are agencies, tasks forces, commissions, and other transnational bodies tasked with streamlining the connections between national and local governments, agencies, and organizations, a key issue remains: imposing climate refugee obligations onto the international community would cost a great deal of money because doing so would multiply the number of individuals that could apply for asylum and attain refugee status. Who resettles various populations? Who funds resettlement efforts? Who receives such funds? These questions lay behind the broad-based hesitation of legally recognizing and protecting climate refugees.
The Warsaw International Mechanism for Loss and Damage, created in 2013, acknowledges that “loss and damage associated with the adverse effects of climate change includes, and in some cases involves more than, that which can be reduced by adaptation.” The Paris Agreement—an agreement within the UNFCCC—provides for the continuation of the Warsaw International Mechanism. However, the agreement explicitly states that its inclusion “does not involve or provide a basis for any liability or compensation.” The inclusion of this clause was the condition on which developed countries, particularly the United States, agreed to include a reference to loss and damage, although the United States has since left the agreement.
In order to establish a pathway for international funding of climate crisis mitigation and adaptation (i.e., loss and damage), this report recommends removing this clause within the Paris Agreement, thus reestablishing a basis for liability and/or compensation vis-à-vis the climate crisis.
Additionally, as part of the Warsaw International Mechanism, the TFD is designed to develop recommendations for integrated approaches to avert, minimize, and address displacement related to the adverse impacts of the climate crisis. This report recommends strengthening the links between the Warsaw International Mechanism and the TFD identifying climate-induced displacement as loss and damages and thus a basis for liability and or compensation.
The topic of loss and damage first emerged in international climate negotiations as early as 1991, when Vanuatu, speaking on behalf of the Alliance of Small Island States, proposed an international insurance pool to compensate SIDS for damages from rising sea levels.422
Within the loss and damage context, market instruments can be distinguished from “solidarity instruments” based on whether a population at risk or the international community assumes the majority of fiscal responsibility. In general, market instruments place responsibility directly on the communities at risk, for example, by expecting them to pay an insurance premium, whereas solidarity instruments transfer responsibility to the international community, including nations with greater historical responsibility for emissions.423 Gradually and over time, solidarity-based proposals, including public sector interventions, taxation, and transfers from developed nations to vulnerable countries, have been downplayed, while private sector insurance-type interventions have been given a central role.424 In order to finance loss and damage, this report recommends the establishment of such an international insurance pool to compensate nations for damages from climate change-induced short- and long-term natural disasters. At the same time, we recommend the establishment of such an international insurance pool to compensate host nations that resettle climate refugees. Thus, two insurance pools for two distinct yet related issues wherein the international community assumes the bulk of fiscal responsibility.
This report recommends a clear shift away from market instruments and back toward solidarity instruments, with higher premiums for nations with greater historical responsibility for emissions and the destruction of carbon sinks. Insurance penetration in developing countries remains low, and in poor countries, on average, only 2 percent of total losses owing to weather-related events are insured.425 In conjunction with historically-specific premiums, this report recommends strengthening the ability of poorer nations to claim losses and receive compensation.
- 377Once the US Department of Homeland Security designates a nation’s immigrants as eligible for Temporary Protected Status, immigrants may apply if they entered the United States without authorization or entered on a temporary visa that has expired. Applicants may also have a valid temporary visa or another nonimmigrant status such as foreign student. Jill H. Wilson, “Temporary Protected Status: Overview and Current Issues,” (Washington, DC: Congressional Research Service, March 29, 2019), https://fas.org/sgp/crs/homesec/ RS20844.pdf.
- 378 “Immigration and Nationality Act (USA),” Pub. L. No. USC§ 244, 8 (n.d.); Kälin and Schrepfer, “Protecting People Crossing Borders,” 45.
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