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Climate Migrants: Who Are They and What Legal Protections Do They Have

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More and more populations are experiencing substantial environmental changes as human-induced climate change exacerbates the scarcity of resources and disrupts traditional weather patterns.[1] As international efforts and responses to climate change continue to be debated, other pressing questions remain relevant, such as: How should countries respond to and protect those deemed “climate migrants?”

Recently in September of 2021, the United States had to grapple with the intersection of human rights and the environment as thousands of Haitian asylum seekers made their way to the U.S.-Mexico border following declining conditions in Haiti.[2] Despite the crippling effect of the recent 7.2 magnitude earthquake on Haiti and its people, the protections available and opportunities for refuge remain ambiguous, much like the indeterminate future of some twenty-two million others displaced by profound environmental changes and disasters globally.[3]

II. Who are climate migrants?

There is currently no formal definition or protections for those that are either internally displaced or seeking refuge as a result of climate change. As it stands, there are several working definitions and competing terms of reference utilized. The terms discussed and differentiated within this article include: environmental refugee, environmental migrant, and climate migrant.[4]

A. Environmental Refugee

The phrase “environmental refugee” has been around since the mid-1970s, and is likely the first expression used to illustrate displaced persons as a result of a change in climate and related variables.[5] However, there are inherent complexities and juxtapositions within this terminology alone. The usage of the word “environmental” within this expression could serve to expand the scope of application from only those experiencing displacement due to climate change to those migrating due to more natural, anthropogenic causes.[6] However, it may also serve to minimize the socio-political impact that contributes to climate-related displacement.[7] Additionally, the use of the term “refugee” is inherently misleading, as those displaced as a result of environmental changes and natural disasters are not protected under the UN definition of refugee and are thus not afforded any of the same protections.[8] There has also been discourse regarding reservations of the employment of the term “refugee” due to the ability for States to evade any responsibility to provide asylum.[9]

B. Environmental Migrant

In 2007, the International Organization for Migration (“IOM”), a branch of the World Health Organization, presented a broad definition for environmental migrants, stating that they are “persons or groups of persons who, predominantly for reasons of sudden or progressive change in the environment that adversely affects their lives or living conditions, are obliged to leave their habitual homes, or choose to do so, either temporarily or permanently, and who move either within their country or abroad.”[10] More narrow definitions have since been introduced and include expressions such as climate migrant, planned relocation, and trapped populations.[11]

C. Climate Migrant

As of 2019, the IOM has defined climate migrants as “a person or groups of persons who, predominantly for reasons of sudden or progressive change in the environment due to climate change, are obliged to leave their habitual place of residence, or choose to do so, either temporarily or permanently, within a State or across an international border.”[12] Climate migrant has since been understood to reflect a subcategory of the environmental migrant definition introduced in 2007, one in which changes in the environment brought on by climate change are specified.[13] This definition is utilized with legally binding attributes in the Cancun Agreements on Climate Change Adaptation and has also been employed by the World Bank.[14]

II. The Migration-Climate Nexus

There has been some reluctance among the international community in recognizing the direct link that climate change has on atypical and accelerated rates of human migration.[15] At this time, it is more widely held that climate change does have an attributable impact on increases in migration and displacement.[16] According to the World Bank, climate change influences one’s decision to migrate once the overarching variables such as “the economy, environment, and political systems they live in” have been affected.[17] The World Bank, in their 2018 report on preparing for internal migration, explains the following direct impacts that climate change will have on migration patterns:

“Climate change will influence migration through warming and drought, which will affect agricultural production and access to water; rising sea level, which makes coastal areas and island states uninhabitable; the increasing intensity and frequency of natural disasters; and competition over natural resources, which may contribute to drivers of conflict.”[18]

Additional considerations include institutional distinctions made between slow-onset events, such as land degradation and sea-level rise, and sudden-onset events, such as floods and severe storms.[19]

It is estimated that approximately 24 million individuals have been displaced following extreme weather conditions globally each year since 2008.[20] By 2050, the World Bank estimates that the regions of Latin America, sub-Saharan Africa, and Southeast Asia, will generate an additional 143 million climate migrants.[21] The increased levels of migration-related to climate change are sure to strain existing systems for asylum, as Columbia University projects that asylum applications to the EU alone will see an increase of 28% come 2100.[22]

Despite these exorbitant statistics, international law has yet to adapt to and develop protections for those displaced due to environmental conditions. One reason for the fragmented response amongst the international community regarding climate migrants can be attributed to the fact that there has been no consensus on which branch of international law bears the responsibility for protecting climate migrants. These various fields include international refugee law, international environmental law, and international human rights law.[23] In considering all three, the global community remains stagnant on which one is the most relevant and should, therefore, oversee the enforcement of rights for climate migrants.

III. International Refugee Law

This year, the United Nations Refugee Convention (“the Convention”) celebrates seventy years since its inception in 1951. The Convention is known for its fundamental principle of non-refoulement, or the assertion that a refugee should not be returned to a country in which they face serious threats to their life or freedom.[24] Likewise, the Convention delineated the definition of and protections afforded to refugees. Under the Convention, refugees are defined as: “Someone who is unable or unwilling to return to their country of origin owing to a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group, or political opinion.”[25] This definition has since been ingrained in customary international law and is thus binding on all nations, regardless of their signatory status to the 1951 Convention.[26] Despite this momentous codification of a single definition attributed to the term “refugee,” the Convention fails to include those that are either internally displaced, not facing persecution or both.[27] This is both because climate change does not itself constitute any fear of persecution and because the use of the term refugee invokes the understanding that an international border has been crossed, whereas this is not the case for internally displaced persons due to climate change.[28]

The subsequent 1967 Protocol, the only amendment to the Convention, removed the geographic and temporal constraints of the 1951 Convention to expand the scope of those deemed refugees.[29] Many now wonder what the benefits, and/or consequences, would be should the Convention be amended yet again. For example, the possibility for the definition of ‘refugee’ to be updated to include those that are displaced and seeking refuge as a result of climate change has been discussed. However, critics argue that an expansion of this degree would undermine the existing goals of the Convention and its well-established norms.[30] They hypothesize that, should the definition be expanded to include a broader applicant pool, states would likely respond to this numerical strain of applications by adopting stricter policies concerning the egregiousness of asylum claims.[31] As is typical for most issues within the realm of international law, there is a delicate balance to achieving and maintaining compliance.

IV. International Environmental Law

Under international environmental law, rights related to the atmosphere and climate are typically understood as a common resource.[32] Consequently, states are not permitted to use their territory in a way that causes harm to another state or person’s property.[33] Despite this, international environmental law typically does not operate on an individual level concerning individual rights. The present extent to which individuals’ rights are considered within international environmental law typically concerns States’ responsibilities to promote and ensure that their constituents live in a healthy environment.[34] This language has similarities to that of international human rights law and helps to illustrate the interconnectedness of the two fields.

V. International Human Rights Law

The connection between human rights and the environment began with the 1972 Stockholm Declaration on the Human Environment (“the Stockholm Declaration”).[35] The Stockholm Declaration is known for its monumental statement recognizing that “man has the fundamental right to freedom, equality, and adequate conditions of life, in an environment… that permits a life of… well-being…”[36] Despite this substantial development acknowledging the interplay between human rights and the environment, there was little expansion on this nexus up until the early 2000s.[37] It was around this time that the UN began a significant discussion on the issue and it has remained a consistent talking point since. One considerable difficulty in linking human rights law and environmental law concerns the complexity resulting from the various degrees and types of environmental changes that are occurring.

While not discussed at length in this blog post, it is worth mentioning that there is a likely possibility that international humanitarian law is also relevant to the discussion of climate migration given the increased likelihood for conflict to result from climate change inducing a scarcity of resources and disrupting other livelihood related variables.[38]

VI. Current International Response: Ioane Teitiota v. New Zealand

Although there is uncertainty surrounding the lack of a uniform definition and who bears the responsibility for displaced persons due to climate change, there has not been a complete preclusion in the international response. One recent example includes the monumental ruling presented by the Human Rights Committee in Ioane Teitiota v. New Zealand in February of 2016.[39] In this case, Mr. Teitiota sought refuge in New Zealand following the displacement from Kiribati, a small neighboring island.[40] Mr. Teitiota argued that New Zealand, by deporting him and his family back to the island which has been rendered uninhabitable for all residents, violated his right to life.[41] Mr. Teitiota cited the ensuing violent land disputes resulting from habitable land scarcity and environmental degradation including freshwater contamination and agricultural difficulties.[42] In its analysis, the Tribunal utilized the “right to life” language that has long been evoked within international human rights law.[43]

Although this was a landmark case concerning asylum resulting from environmental change, the Tribunal ultimately determined that New Zealand did not violate Mr. Teitiota’s right to life.[44] In support of its conclusion, the Tribunal stated that sufficient measures were taken by the state to support his right to life and Mr. Teitiota failed to produce evidence of imminent death or serious harm to him or his family should he return.[45] In particular, the Tribunal considered that Mr. Teitiota lacked the following evidentiary factors:

“(a) the author had been in any land disputes in the past, or faced a real chance of being physically harmed in such a dispute in the future; (b) the author would be unable to find land to provide accommodation for himself and his family; (c) the author would be unable to grow food or access potable water; (d) the author would face life-threatening environmental conditions; (e) the author’s situation was materially different from that of every other resident of Kiribati; or (f) the Government of Kiribati had failed to take programmatic steps to provide for the basic necessities of life, in order to meet its positive obligation to fulfill the author’s right to life.”[46]

This case marked the first ruling on a complaint by an individual seeking asylum in response to the effects of climate change.[47] Ultimately, this ruling concludes that countries may not expressly deport individuals who seek asylum resulting from climate change-induced conditions.[48] Additionally, the Tribunal solidified that there is an obligation on states to fulfill the right to life by taking the necessary measures to provide necessities necessary to sustain life.[49]

VII. Conclusion: Prevention and Next Steps

The international efforts mentioned within this article are not all-inclusive, but a mere sampling. What is discernible, however, is that until there is less international ambiguity on where climate migrants fit and what protections they have, the response will remain fragmented.

Moving forward, both human rights and environmental activists should continue placing pressure on states, corporations, and international institutions in the hopes of alleviating some of the projected displacement. Non-governmental organizations should seek to utilize a preventative tactic by filing suit against specific states or corporations failing to address their contributory harm to the environment and people.

A beneficial next step for the international community is likely the development of a uniform definition for the term “climate migrant.” Some critics question the benefit of defining the term “climate migrant,” suggesting that an ad hoc structure might not be detrimental to the trajectory of the cause.[50] Despite this possibility, the creation of a uniform definition would likely help to alleviate some fragmentation in global response and potentially generate established custom later on down the road.

  1. See Max Callaghan et al. Machine-learning-based evidence and attribution mapping of 100,000 climate impact studies, Nature Climate Change (October 11, 2021), p. 1, https://doi.org/10.1038/s41558-021-01168-6. ↑
  2. Lisa Deaderick, A perfect storm of crises and instability leading Haitian migrants to seek U.S. asylum, San Diego Union Tribune (Sept. 26, 2021), https://www.sandiegouniontribune.com/columnists/story/2021-09-26/a-perfect-storm-of-crises-and-instability-leading-haitian-migrants-to-seek-u-s-asylum. ↑
  3. Amanda A. Doran, Where Should Haitians Go – Why Environmental Refugees are up the Creek without a Paddle, 22 Vill. Envtl. L.J. 117 (2011) p. 127. ↑
  4. See IOM Migration, Environment and Climate Change Division, Environmental Migration, World Health Organization, https://environmentalmigration.iom.int/environmental-migration-1. ↑
  5. N. Myers and J. Kent, Environmental Exodus: An Emergent Crisis in the GlobalArena, The Climate Institute (1995). ↑
  6. Jane McAdam, Environmental Migration Governance, University of New South Wales Law Research Series, 2011, p. 6, https://papers.ssrn.com/sol3/papers.cfm?abstract_id=1412002. ↑
  7. Id. ↑
  8. Jane McAdam, Environmental Migration Governance, University of New South Wales Law Research Series, 2011, p. 6, https://papers.ssrn.com/sol3/papers.cfm?abstract_id=1412002. ↑
  9. Id. ↑
  10. IOM, Discussion Note: Migration and the Environment, Session 94, MC/INF/288 (1 November 2007) at ¶ 6. ↑
  11. IOM Migration, Environment and Climate Change Division, Environmental Migration, World Health Organization, https://environmentalmigration.iom.int/environmental-migration-1. ↑
  12. Id. ↑
  13. Id. ↑
  14. Id. ↑
  15. Jane McAdam, Environmental Migration Governance, University of New South Wales Law Research Series, 2011, p. 6, https://papers.ssrn.com/sol3/papers.cfm?abstract_id=1412002. ↑
  16. John Podesta, The Climate Crisis, Migration, and Refugees, The Brookings Institute (July 25, 2019) https://www.brookings.edu/research/the-climate-crisis-migration-and-refugees/. ↑
  17. Kanta Kumari Rigaud, Alex de Sherbinin, Bryan Jones, Jonas Bergmann, Viviane Clement, Kayly Ober, Jacob Schewe, Susana Adamo, Brent McCusker, Silke Heuser, and Amelia Midgley, Groundswell: Preparing for Internal Climate Migration, The World Bank (2018) p. 23, https://openknowledge.worldbank.org/handle/10986/29461. ↑
  18. Id. at p. 24. ↑
  19. IOM Migration, Environment and Climate Change Division, Environmental Migration, World Health Organization, https://environmentalmigration.iom.int/environmental-migration-1. ↑
  20. Tim McDonnell, The Refugees the World Barely Pays Attention To, NPR (June 20, 2018) https://www.npr.org/sections/goatsandsoda/2018/06/20/621782275/the-refugees-that-the-world-barely-pays-attention-to. ↑
  21. Kanta Kumari Rigaud, Alex de Sherbinin, Bryan Jones, Jonas Bergmann, Viviane Clement, Kayly Ober, Jacob Schewe, Susana Adamo, Brent McCusker, Silke Heuser, and Amelia Midgley, Groundswell: Preparing for Internal Climate Migration, The World Bank (2018) p. 23, https://openknowledge.worldbank.org/handle/10986/29461. ↑
  22. Tim McDonnell, The Refugees the World Barely Pays Attention To, NPR (June 20, 2018) https://www.npr.org/sections/goatsandsoda/2018/06/20/621782275/the-refugees-that-the-world-barely-pays-attention-to. ↑
  23. Jane McAdam, Environmental Migration Governance, University of New South Wales Law Research Series, 2011, p. 6, https://papers.ssrn.com/sol3/papers.cfm?abstract_id=1412002. ↑
  24. UNHCR, Convention and Protocol Relating to the Status of Refugees (December 2010) p. 3, https://www.unhcr.org/en-us/3b66c2aa10. ↑
  25. Id. ↑
  26. Id. ↑
  27. Stewart M. Patrick, How Should the World Respond to the Coming Wave of Climate Migrants?, World Politics Review (March 16, 2020) https://www.worldpoliticsreview.com/articles/28603/how-should-the-world-respond-to-the-coming-wave-of-climate-migrants. ↑
  28. Jane McAdam, Environmental Migration Governance, University of New South Wales Law Research Series, 2011, p. 6, https://papers.ssrn.com/sol3/papers.cfm?abstract_id=1412002. ↑
  29. UNHCR, Convention and Protocol Relating to the Status of Refugees (December 2010) p. 3, https://www.unhcr.org/en-us/3b66c2aa10. ↑
  30. Amanda A. Doran, Where Should Haitians Go – Why Environmental Refugees are up the Creek without a Paddle, 22 Vill. Envtl. L.J. 117 (2011) p. 127. ↑
  31. Id. ↑
  32. Jane McAdam, Environmental Migration Governance, University of New South Wales Law Research Series, 2011, p. 6, https://papers.ssrn.com/sol3/papers.cfm?abstract_id=1412002. ↑
  33. Trail Smelter Arbitration (United States v. Canada) 1938–41 3 RIAA 1905, 1965; see alsoStockholm Declaration, principle 21. ↑
  34. See Article 11 of the 1988 Additional Protocol to the American Convention on Human Rights in the Area of Economic, Social and Cultural Rights. ↑
  35. Ben Boer and Alan Boyle, Human Rights and the Environment – Background Paper for the 13th Informal ASEM Seminar on Human Rights, Sydney Law School (February 2014), p. 5. ↑
  36. UNEP, Declaration of the United Nations Conference on the Human Environment (16 June1972) =http://www.unep.org/Documents.Multilingual/Default.Print.asp?documentid=97&articleid=1503. ↑
  37. Ben Boer and Alan Boyle, Human Rights and the Environment – Background Paper for the 13th Informal ASEM Seminar on Human Rights, Sydney Law School (February 2014), p. 5. ↑
  38. Jane McAdam, Environmental Migration Governance, University of New South Wales Law Research Series, 2011, p. 6, https://papers.ssrn.com/sol3/papers.cfm?abstract_id=1412002. ↑
  39. Ioane Teitiota v. New Zealand, United Nations Human Rights Committee (16 February 2016) UN Doc CCPR/C/127/D/2728/2016. ↑
  40. UNHCR, Historic UN Human Rights case opens door to climate change asylum claims (21 January 2020) https://www.ohchr.org/EN/NewsEvents/Pages/DisplayNews.aspx?NewsID=25482. ↑
  41. Id. ↑
  42. Id. ↑
  43. Id. ↑
  44. Id. ↑
  45. Ioane Teitiota v. New Zealand, United Nations Human Rights Committee (16 February 2016) UN Doc CCPR/C/127/D/2728/2016. ↑
  46. Id. at ¶ 9.6. ↑
  47. UNHCR, Historic UN Human Rights case opens door to climate change asylum claims (21 January 2020) https://www.ohchr.org/EN/NewsEvents/Pages/DisplayNews.aspx?NewsID=25482. ↑
  48. See Ioane Teitiota v. New Zealand, United Nations Human Rights Committee (16 February 2016) (“in many cases, the effects of environmental change and natural disasters will not bring affected persons within the scope of the Refugee Convention, [but] no hard and fast rules or presumptions of non-applicability exist.”) at ¶ 2.8. ↑
  49. Ioane Teitiota v. New Zealand, United Nations Human Rights Committee (16 February 2016) UN Doc CCPR/C/127/D/2728/2016 at ¶ 2.9. ↑
  50. Jane McAdam, Environmental Migration Governance, University of New South Wales Law Research Series, 2011, p. 7, https://papers.ssrn.com/sol3/papers.cfm?abstract_id=1412002. ↑

AUTHOR

Kenzie Poole
Associate Member 2021-2022

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