International attention concerning the climate crisis emerged as early as the late-1980s when the Intergovernmental Panel on Climate Change (IPCC) was established to collect and assess evidence on the phenomenon. In 1995, the IPCC’s Second Assessment Report not only concluded that the climate was changing, but also that it was changing due to “a discernable human influence.” This was among the first times that the link between human activity and global environmental change was officially recognized.137
Since then, dialogue surrounding climate change has largely focused upon its impacts on ecosystem health and natural resource management, and increasingly on climate change mitigation and adaptation. Largely overlooked, however, has been the impact of the climate crisis on communities that can no longer remain in place due to short-term and long-term natural disasters. This elision extends to international and intranational protections for climate-induced displaced person. In order to advance a working definition of cross-border climate refugees and build the case for the need for a legally binding and comprehensive international framework necessary for their safe resettlement, this section recounts debates surrounding the term and the normative gaps in legal protections vis-à-vis international and intranational climate-induced displacement.
Lack of Agreed Terminology
Inventing the Terminology
A first gap in the present normative framework to cover those individuals and communities displaced due to the short- and long-term effects of the climate crisis is the lack of an agreed terminology. Efforts to develop such terminology began early on, prior to widespread recognition of climate change itself. In the 1970s, Lester Brown, an environmental activist and founder of the Worldwatch Institute, coined the term “environmental migrant” to describe a broad category of people choosing or forced to migrate due to environmental factors. The first such recognition of the category of migrants, the term was modified and popularized by Essam El-Hinnawi of the UN Environmental Programme, who in 1985 defined “environmental refugees” as:
“...those people who have been forced to leave their traditional habitat, temporarily or permanently, because of a marked environmental disruption (natural and/or triggered by people) that jeopardized their existence and/or seriously affect the quality of their life. By ‘environmental disruption’ in this definition is meant any physical, chemical, and/or biological changes in the ecosystem (or the resource base) that render it temporarily or permanently, unsuitable to support human life.”138
This terminology has been contested by the UN High Commissioner for Refugees, which expressed reservations because of its lack of basis in international refugee law and risk of undermining this legal regime.139
The attention that coalesced around migration due to environmental factors allowed for literature and public debates to flourish once climate change was named. In 1990, the IPCC published its First Assessment Report with scientific reports on the causes and effects of climate change, warning the international community of potential environmental and social impacts. In that report, the IPCC warned that “the greatest single impact of climate change could be on human migration” due to displacement caused by environmental catastrophes, such as severe droughts and shoreline erosion.140 Soon Lack of Agreed Terminology after, in 1992, the International Organization for Migration and the Refugee Policy Group published a report titled “Migration and Environment” warning that the number of global migrants “could rise substantially as larger areas of the earth become uninhabitable as a result of climate change.”141
While international attention linking climate change and human migration surfaced and expanded in the 1990s, the momentum did not last. This was due in part to disagreements in terminology and, by extension, binding protections and directions for additional research. A 2009 International Organization for Migration report titled “Migration, Environment, and Climate Change on Assessing the Evidence” attributed neglect of the topic to “little consensus over the years among researchers about whether or not environmental migration is a distinct form of migration worthy of special study.”142 The question is valid, as debates have surrounded the limitations of both terms of the expression “environmental migrant.” Regarding the “environment,” Kälin and Schrepfer recount that environmental factors are just one reason why people are displaced, with a variety of economic, social, and cultural factors, including the “vulnerabilities of affected communities or the lack of governmental capacity to properly respond to disasters being equally important.”143
Regarding “migrants,” Kälin and Schrepfer recount that social scientists use “migration” as a generic term encompassing both voluntary and forced movements, and that international law does not use the term “migrant” in the context of forced movements but refers to “displaced persons” and “refugees.”144 Thus, the term “environmental migrant” obfuscates the causes and nature of such displacement and is unsatisfactory from a legal point of view.
These issues are ongoing even as climate change, which has quickly precipitated into an existential crisis (thus our adoption in this report of the term “climate crisis”), becomes increasingly recognized as a core driver of migration. The case for climate refugees has been made as early as the mid-2000s, when the former UN High Representative for Least Developed Countries, Landlocked Developing Countries and Small Island Developing States, Anwarul Chowdhury, advocated for an expansion of the legal definition of refugees to include people displaced by the climate crisis, arguing that “the most vulnerable countries affected by the degradation of the environment and had [themselves] advocated for recognition of the resulting refugee situations.”145
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.146 Yet the compact avoided naming such peoples (whether migrants or refugees), thus avoiding the question of legal protections altogether.
Two Schools of Thought on Climate Refugeehood and International Protections
Since the concepts of “environmental migrant” and “environmental refugee” were first conceived, two schools of thought have guided discussions concerning the relationship between environmental change, the number of disasters causing displacement, and the number of persons affected by such factors: the “maximalist” school and the “minimalist” school. The maximalist school sees the link between migration and the climate crisis as “causative and direct”—a case supported by findings from the scientific community that continues to generate consensus on the scale and inevitability of environmental change and migration driven by the climate crisis. However, such links have been drawn without a comprehensive account of the social, economic, and political forces that interact with such environmental factors. Conversely, the minimalist school focuses on the complex interaction between environmental and social issues, questioning any supposedly direct causal links between environmental change and migration.147 The school has focused less on predicting the numbers of current and future persons displaced due to environmental factors, and instead interrogated the relationship between the environment, migration, and refugeehood itself.148 As a result, the minimalist school has disavowed the terms “climate refugee” and “environmental migrant,” among others.
The tensions between these two schools have materialized in international climate change agreements and negotiations, including those pertaining to migration specifically.149 Within international climate change assessments and agreements, a shift toward the minimalist perception of environmental migration in the context of the climate crisis has been clear. This is especially true in the context of the IPCC’s change in rhetoric in the late 1990s and early 2000s. After the First Assessment Report in 1990, the IPCC demonstrated reluctance to use the term “environmental refugee” altogether, changing their tone from alarming accounts and calls to action to nuanced treatments of environmental change and human migration.150 Hence in 2001, the IPCC report did not mention the link between climate change and human migration.
The tensions between these two schools have likewise materialized within agreements and negotiations pertaining to international protections for climate refugees. For example, the 2011 Nansen Conference: Climate Change and Displacement in the 21st Century deliberately avoided using the term “climate refugees” or “environmental refugees.” One of the key messages from the session “Filing the Gaps in the Protection Regime” was that referring to cross-border movements driven by extreme weather events as “external displacement” supposedly did away with the “legally inaccurate and misleading” terms “climate refugees” and “environmental refugees.”151 In other words, the ostensible infeasibility of a legal framework for “climate refugees” rather than any kind of missing link between the climate crisis and displacement precluded discussion of climate-induced refugeehood altogether. Likewise, the 2018 UN Global Compact for Safe, Orderly, and Regular Migration—the first UN compact to recognize the climate crisis as a driver of migration—avoided the terms.
The international community’s opposition to the terms “climate refugees” and “environmental refugees” because of their financial and political implications hinders recognition of the links between the climate crisis and displacement, globally. It also evades discussions of international accountability and avenues toward a legally binding framework for climate-induced displaced persons crossing national borders.152 Thus, as Kälin and Schrepfer argue, highlighting the maximalist protection perspective without adopting its alarmist stance would allow policies to be shaped on the basis of needs of populations displaced by the climate crisis rather than xenophobic and self-interested limits on resettlement.153
The international community’s increasing acknowledgement of the growing problem of climate-induced displacement hits a wall when it comes to legal protections. Debates on how to define this group of persons—as “climate refugees,” “climate migrants,” or “environmental migrants”—highlights how even within legal scholarship, there is little consensus on the need for legal protections and how they might be afforded. The 1951 Refugee Convention—the principal international framework for refugee protection—has not been amended to incorporate climate-induced migration.211
Even people who agree that climate-induced displaced persons are in dire need of protections argue against a framework that grants them refugee status for a number of reasons: climate migration is mainly internal; isolating environment/climatic reasons is difficult especially vis-à-vis humanitarian, political, and social, conflict, or economic reasons; and other humanitarian avenues may be available.212 Additionally, of major concern is the risk of “opening up” the 1951 Refugee Convention to new restrictions during an especially heated political climate.
Specifically, Nina Birkeland, the Norwegian Refugee Council’s Senior Adviser on Disaster Displacement and Climate Change, argues that “climate migrants should [not] be made into climate refugees and be part of the refugee convention” largely because opening up the 1951 Refugee Convention for debate and revision during a time of heightened nationalism and anti-immigrant sentiments might undermine such legal protections altogether.213 At the same time, she argues, expanding the refugee convention to include climate refugees would create distension as it would be challenging to determine if and how the migration was induced by the climate crisis, thus complicating state obligations that already exist under the 1951 Refugee Convention.
The necessary conditions for refugeehood within the 1951 Refugee Convention and across refugee law presents another key barrier. The definition of “refugees” found in Article 1A(2) of the Refugee Convention contains three key elements concerning those it applies to: 1) a “well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion”; 2) presence “outside the country of [one’s] nationality”; and 3) inability or unwillingness to “avail [oneself] of the protection of that country.”
People displaced across borders by the short-term and long-term effects of the climate crisis fulfill the second element of having crossed an international border. However, they do not fulfill the principal element of being persecuted, as stated in the Refugee Convention itself, and as understood by legal scholars, policy-makers, and researchers alike—an important barrier given that international protection regimes, from their origins in the wake of World War II and into the present, hinge upon such claims of persecution.
As legal scholars and migration experts argue, the definition of “persecution” itself is in conflict with the nature of climate-induced displacement, thus hindering the possibility of expanding the 1951 Refugee Convention or creating a new convention, the Convention Relating to the Status of Climate Refugees. There are three reasons for this conflict in particular:
- Scholars argue that qualifying main polluters or even the international community as a persecutor would create substantial difficulties because one would have to establish the causality between their action/inaction and the respective climate crisis impact in each individual case—something that is virtually impossible at the present stage of scientific knowledge.
- A person fleeing the effects of the climate crisis is not escaping their government or other public and private entities specific to their home state. Rather, they are seeking refuge from a phenomenon born of the actions of entities across a number of states. Thus, scholars argue that qualifying the main contributors to the climate crisis—from methane released from landfills, to natural gas and petroleum industries, to agriculture and livestock, to the destruction of carbon sinks like forests and marine flora—would also “reverse the refugee paradigm” by delinking the actor of persecution from the territory from which flight occurs. This move would be entirely unknown to refugee law.
- A person fleeing the effects of the climate crisis might be fleeing a nation and government that has not turned against its citizens but rather wants to protect them. Some of the people experiencing the most disastrous effects of the climate crisis are living in nations that have long recognized the issue and that have appealed to the international community for support. Thus, the narrow legal notion of refugee in the 1951 Refugee Convention cannot generally guarantee protection to persons displaced across borders due to the impacts of the climate crisis.214
Collectively, any push for protections for climate refugees—whether by amending the 1951 Refugee Convention or developing a new legally binding international agreement—that fails to challenge the territorial nature of “persecution” within refugee law, will fail in its efforts to secure such protections. Thus, what is required is a new understanding of “persecution” that could account for the reality of the climate crisis and climate-induced displacement, and serve as the basis for a normative framing of “climate refugee” protection. Such a deterritorialized understanding of “persecution” under the climate crisis would need to continue accounting for the ability of one to survive and avail themselves of a sufficient degree of protection within their country of origin. Yet it would also need to recognize that the “actors” of persecution and the respective climate crisis impact are fundamentally indeterminable.
Displacement due to the impacts of the climate crisis by and large takes place within affected states. There were 28 million new IDPs in 2018 due to conflict, violence, and disasters—far greater than the 1.1 million refugees that same year.215 Weather-related hazards triggered the vast majority of the new displacements (17.2 million), with storms and tropical cyclones accounting for 9.3 million displacements and floods accounting for 5.4 million displacements.216 While the gap in protections for climate-induced displaced persons is most pronounced when such migration takes place across national borders, legal frameworks for persons displaced within national borders have the potential to cover climate-induced internal displacement.
Specifically, climate-induced displaced persons who relocate internally fall within the ambit of general human rights protections and the UN Guiding Principles on Internal Displacement, which defines IDPs as:
“Persons or groups of persons who have been forced or obliged to flee or to leave their homes or places of habitual residence, in particular as a result of or in order to avoid the effects of armed conflict, situations of generalized violence, violations of human rights or natural or human made disasters, and who have not crossed an internationally recognized State border.”217
The UN Guiding Principles restate and compile existing international human rights and humanitarian law germane to the internally displaced and also attempt to clarify gray areas and gaps in the various instruments with regard to situations of particular interest to the internally displaced. Yet, despite addressing “natural or human made disasters” and other such causes of internal displacement, the primary limit to the potential of the UN Guiding Principles is that it is not legally binding. Instead, it leaves it to national governments to adopt strategies and policies. Some nations and regional bodies have indeed taken such initiative. For example, in 2009, African leaders within the African Union adopted the Convention for the Protection and Assistance of Internally Displaced Persons of Africa, known as the Kampala Convention—the first legally binding international instrument on internal displacement.
For climate-induced displaced persons forced to relocate internally as well as those forced to cross international borders, across international humanitarian law, human rights law, refugee law, and other bodies of law, protections are limited, piecemeal, and not legally binding. Yet, although most climate-induced migration is internal and although legally binding protections for climate-induced IDPs have been achieved, this report continues to focus on climate-induced displacement across international borders (i.e., climate refugees). It does so because of the international cooperation required for such protection and because the climate crisis and its effects, broadly, require global accountability.
Migration and Labor
Although the topic of labor is relevant to both internal forced migration and cross-border forced migration, it deserves special attention because of the fact that—regardless of their reasons for moving—most people who migrate find jobs. According to the International Labour Organization, there are 164 million migrant workers in the world—a rise of 9 percent since 2013, when they numbered 150 million.218 In the context of the climate crisis and the anticipated surge of climate-induced displaced persons, formal pathways for labor migration are necessary and may actually aid efforts to mitigate the havoc that the climate crisis may wreak on source countries and host countries alike.
Under the climate crisis, the need for secure and comprehensive pathways for labor migration is especially pronounced when it comes to key populations, such as migrant workers themselves. Migrant workers typically move to areas that are highly exposed to climate impacts, including low-lying land that is susceptible to floods, storms, or landslides, and many live in poorly constructed housing, compounding their vulnerability.219 For example, during the 2011 floods in Thailand, migrant workers were among those most seriously affected: more than 800,000 migrants experienced the floods, while 600,000 were stranded in areas without food, water, or electricity.220 These risks are thus pronounced for people already displaced due to social, political, economic, and environmental reasons in that they may face secondary or repeated displacement due to the impacts of the climate crisis.221
One can see how, in the context of the climate crisis, migrant agricultural laborers in particular are prone to such repeated displacement: they rely on natural resources for their revenue and subsistence, and they are also heavily concentrated in regions that are increasingly experiencing extreme weather events and in areas with weak infrastructure, limited financial institutions, and few opportunities to diversify their income streams.222
Clearer and more secure pathways for labor migration may mitigate some of these challenges and form part of proactive, long-term, and comprehensive strategies for addressing displacement, especially in the context of the climate crisis. Yet existing labor migration schemes highlight the obstacles along the way. For example, such pathways may result in more men migrating, leaving women behind and facing more work; those targeting unskilled and low-skilled workers may expose them to exploitation and abuse; and schemes may be too small in scope to deliver significant benefits.223 Additionally, migrant workers may be driven into the informal economy, thus perpetuating dual economies and placing downward pressure on wages and benefits for all workers.224 It is therefore vital that schemes or policies aiming to increase and enhance labor migration opportunities for people impacted by the climate crisis are driven by the needs of families and communities, including women; have robust safeguards in place to prevent exploitation; and provide opportunities for permanent and seasonal migration.225
Additionally, existing labor migration schemes are information-poor, thus undermining their potential. Specifically, there is limited data in many low- and middle-income countries concerning labor migration patterns, the skills of native-born and migrant workers, and labor market needs.226 Collecting reliable labor market information is an important step for considering how genuine labor shortages may be linked to improving the skills of workers in communities that are especially vulnerable to the effects of the climate crisis.
Labor market analysis—such as value chain development and analysis of the potential for job creation, including green jobs—could strengthen the supply of decent work opportunities. Critically, they could do so while also taking into account future expected impacts of the climate crisis on labor markets. Such work is indeed underway: International Labour Organization assessments on the potential for green jobs have already helped guide the development of employment policies in Bangladesh, China, Lebanon, Mauritius, Mexico, Mozambique, and Portugal.227
Despite these gaps, existing labor agreements have indeed offered secure pathways for migrants. Bilateral labor mobility agreements have been especially fruitful. Agreements between Spain and Colombia, as well as island states, such as Papua New Guinea and New Zealand and Australia, for example, have integrated into their seasonal worker programs considerations for the development of climate-affected areas. Workers from communities affected by natural disasters are given special consideration for work placement abroad. The benefits are clear: in the case of small island states, these arrangements have been instrumental in generating remittances in communities severely compromised by sea-level rise and flooding. In Spain, temporary agricultural work visas are supplied to workers from Colombia, targeting people from high-risk zones for natural disasters, including volcanic eruption.228
However, to be most effective, institutional and regulatory frameworks—whether bilateral or multinational—would need to be aligned with international labor standards, human rights law, and humanitarian law as they account for at-risk areas and climate-induced displacement. Toward such ends, the Committee on the Protection of the Rights of All Migrant Workers and Members of their Families (CMW) within the Office of the High Commissioner for Human Rights has raised the climate crisis in their work. Specifically, the CMW referred to climate change in its List of Issues for Paraguay and it asked the state to provide information about measures it had taken to address the causes of irregular migration, including the climate crisis.229
- 137 “Second Assessment: Climate Change 1995” (Geneva, Switzerland: Intergovernmental Panel on Climate Change, 1995), https://www.ipcc.ch/site/assets/uploads/2018/06/2nd-assessment-en.pdf.
- 138Essam El-Hinnawi, “Environmental Refugees” (Geneva, Switzerland: UN Environment Programme, 1985).
- 139Walter Kälin and Nina Schrepfer, “Protecting People Crossing Borders in the Context of Climate Change: Normative Gaps and Possible Approaches” (Geneva, Switzerland: UN High Commissioner for Refugees, Division of International Protection, February 2012); Antonio Guterres, “Climate Change, Natural Disasters, and Human Displacement: A UNHCR Perspective” (Geneva, Switzerland: UN High Commissioner for Refugees, October 23, 2009), https:// www.unhcr.org/protection/environment/4901e81a4/ unhcr-policy-paper-climate-change-natural-disasters-human-displacement.html.
- 140 Frank Laczko and Christine Aghazarm, “Migration, Environment and Climate Change: Assessing the Evidence” (Geneva, Switzerland: International Organization for Migration, n.d.), http://publications.iom.int/system/ files/pdf/migration_and_environment.pdf.
- 141Laczko and Aghazarm, “Migration Environment, ” 13.
- 142Laczko and Aghazarm, “Migration Environment, ” 14.
- 143 Kälin and Schrepfer, “Protecting People Crossing Borders,” 28–29.
- 144 Kälin and Schrepfer, “Protecting People Crossing Borders,” 28–29.
- 145Amy Lieberman, “Where Will the Climate Refugees Go?” Al Jazeera, (December 22, 2015), https://www. aljazeera.com/indepth/features/2015/11/climate-refugees-151125093146088.html.
- 146 Aurora D’Aprile, “The First Global Migration Pact to Include Measures to Cope with Climate Change,” Foresight: The CMCC Observatory on Climate Policies and Futures (blog), (August 9, 2018), https://www. climateforesight.eu/migrations/the-first-global-migration-pact-to-include-measures-to-cope-with-climatechange/; “Global Compact for Safe, Orderly, and Regular Migration” (Geneva, Switzerland: International Organization for Migration, July 13, 2018).
- 147James Morrissey, “Rethinking the ‘debate on environmental refugees’: from ‘maximilists and minialists’ to ‘proponents and critics’,” Journal of Political Ecology, 19, No. 1 (2012).
- 148 Morrissey, “Rethinking the debate,” 38
- 149Kälin and Schrepfer, “Protecting People Crossing Borders,” 11.
- 150Morrissey, “Rethinking the debate,” 39
- 151 “Nansen Conference on Climate Change and Displacement in the 21st Century, ” (Oslo, June 6–7, 2011), 14.
- 152 François Gemenne, “One Good Reason to Speak of ‘Climate Refugees,’” Forced Migration Review, No. 49 (2015).
- 153 Kälin and Schrepfer, “Protecting People Crossing Borders,” 13.
- 211The 1954 Convention relating to the Status of Stateless Persons addressed the 1951 Refugee Convention’s gap in content about the status of stateless persons and protocols intent on reducing statelessness. Article 1 of the 1954 convention stated that the treaty applies to stateless persons under the protection of the UN High Commissioner for Refugees but not to those under the protection of other UN agencies. It does not apply to persons with rights and obligations acknowledged by their country of residence as indistinguishable from those attached to the possession of that country’s nationality. In the context of the climate crisis, stateless peoples displaced due to short-term and long-term natural disasters would be covered under the 1954 convention and thus less reliant upon a new convention specific to climate-induced displacement.
- 212 Ionesco, “Let’s Talk About Climate Migrants.”
- 213Carolyn Beeler, “UN Compact Recognizes Climate Change as Driver of Migration for First Time,” Public Radio International, accessed September 10, 2019, https:// www.pri.org/stories/2018-12-11/un-compact-recognizes-climate-change-dri….
- 214 Kälin and Schrepfer, “Protecting People Crossing Borders,” 32.
- 215Internal Displacement Monitoring Centre, Global Report on Internal Displacement 2019.
- 216Internal Displacement Monitoring Centre, Global Report on Internal Displacement 2019.
- 217“Guiding Principles on Internal Displacement” (Geneva, Switzerland: UN High Commissioner for Refugees, September 2004), 1.
- 218“Global Estimates on International Migrant Workers,” (Geneva, Switzerland: International Labour Organization, December 5, 2018), https://www.ilo.org/ global/publications/books/WCMS_652001/lang--en/ index.htm.
- 219Julie-Anne Richards and Simon Bradshaw, “Uprooted by Climate Change: Responding to the Growing Risk of Displacement” (Oxford, UK: Oxfam International, 2017).
- 220Allan Beesey, Siriwan Limsakul, and Euan McDougall, “Hazard Exposure and Vulnerability of Migrants in Thailand: A Desk Study for the Capacity-Building Programme ‘Reducing the Vulnerability of Migrants in Emergencies’” (Geneva, Switzerland: International Organization for Migration, 2016).
- 221Richards and Bradshaw, “Uprooted by Climate Change.”
- 222Michelle Leighton and Meredith Byrne, “With Millions Displaced by Climate Change or Extreme Weather, Is There a Role for Labor Migration Pathways?” Migration Policy Institute, (February 13, 2017), https://www. migrationpolicy.org/article/millions-displaced-climatechange-or-extreme-weather-there-role-labor-migration-pathways.
- 223Richards and Bradshaw, “Uprooted by Climate Change.”
- 224 Leighton and Byrne, “With Millions Displaced.”
- 225Richards and Bradshaw, “Uprooted by Climate Change.”
- 226 Leighton and Byrne, “With Millions Displaced.”
- 229 “States’ Human Rights Obligations in the Context of Climate Change” (Washington, DC: Center for International Environmental Law; Global Initiative for Economic, Social and Cultural Rights, 2019), https://www.ciel.org/ wp-content/uploads/2019/03/HRTB-Feb.-2019-update-2019-03-25.pdf