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International law for a new approach towards climate mobility

  • Published at 05:50 pm November 12th, 2019
climate mobility
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The impact of climate change on human mobility

The impact of climate change on human mobility

As far back as 1990, the IPCC predicted that one of the gravest effects of climate change would be on human mobility. Yet, while there is a growing body of research focused on “climate migration”, we are still behind in terms of concrete international engagements and laws to protect those affected the most by climate change impacts and forced to move and look for new livelihoods. 

It is an issue of semantics around “climate migration” or “climate refugees” are of secondary importance until the first three intertwined contention points remain unresolved. Mainly they concern the scope (who will be concerned, what impacts of climate change will be covered etc.) and scale of displacement as well as traceability of the displacement to climate change as it causes. Indeed, estimations of the number of possibly displaced people attributable to climate change are varying due to the complex multi-causal nature of the decision to move. Moreover, despite that, we have today the intuition and conviction that climate change work as a multiplying and intensifying force of the factors influencing the human decision to move, there are still gaps in understanding the mechanism behind it and in quantifying specific effects of climate change impacts. 

However, considering the importance of the question and the impossibility to ignore longer the effects that climate changes impose on human mobility, scholars have so far examined two main legal pathways towards the recognition or at least consideration of trans-border “climate migrants” rights. The first pathways aim at identifying “climate migration” as a distinct category in the current global dynamic of human mobility. Indeed, it would call for the adoption of instruments to cover all the stages of human movement induced by climate (pre-displacement, displacement and resettlement) or at least the adoption of a particular provision under the current climate change legal framework of the UNFCC. Still, this pathway is mainly depending on today’s lacking international political will of states to limit their sovereign power in terms of protecting their national borders and regulating the entry into their national space. 

Thus, as second pathways have been put forward which aims at considering “climate migration” as a part of the global migration dynamic, therefore calls for protection of trans-border “climate migrants” under the currently available international migration legal framework. However, this pathway contains several flaws. Firstly, this proposal implies a broadening of the scope of the now strictly accepted definition of migrants and refugees. But, those strict definitions and the rigid scope of application of the international conventions are the reason in the first place for their broad adoption on the international arena. Indeed, as we already mentioned, states are not willing to easily constraint their sovereign powers over their borders. Therefore, just like in the first pathway, the idea of redefining existing categories in the current political context seems hardly feasible. 

Secondly, those international conventions were created to address a specific case of displacement. Therefore, even if we could identify potential “climate migrants” their situation would call for requalification of facts to make sure they enter the scope of the definition provided by the convention on refugee, for example. Thus, they must be “refugee” first and “climate refugee” secondly, which limits heavily the number of potential populations protected under the convention. 

According to Article 1 of the Refugee Convention from 1951, a refugee is considered, a person that has the proof of a well-founded fear of persecution based on his or her race, religion, nationality or belonging to a particular social group or political opinion. The convention further explains “persecution” as the infliction of harm and suffering resulting in severe deprivation of fundamentals rights and targeting a particular group of people (as mentioned above), and either resulting from direct governmental action or other entity the government is not able or willing to control. As such, there is no mention of climate change. Furthermore, the element of discrimination that is essential in qualifying an act of persecution is also missing when considering climate change as its impacts are not discriminatory per se in nature. The only protected cases by the convention that could involve an element of climate change would be the situation in which climate impacts allow the states to take discriminatory actions against a group of people under their jurisdiction. For example; by restricting help after a natural disaster that they should experience. However, what is being condemned is the state action in response to climate change impacts. 

Considering the ill-fitted use of international convention to protect trans-border “climate migrants” by trying to fit them in the existing definition of refugee or migrant, perhaps another angle of approach for the second pathway could be adopted by examining if climate change impacts could per se be considered as a form of persecution. Therefore, shifting attention towards the qualification of climate impacts, instead of their observed consequence in the form of population displacement. 

As such, climate change is not discriminatory in its impact as some regions due to their geographical position are more exposed and vulnerable to it. Still, the lack of mitigation actions from the most polluting states could be seen as discriminatory towards the developing and vulnerable nations which often have much smaller emissions. This approach would call of course for some adjustment of the “persecution” definition, mainly by broadening it to actions by a state causing situations of persecution suffered by population in another state. It could also result in a stronger obligation for global mitigation actions and reinforce the emerging doctrine of “responsibility to protect”. Even though the doctrine did not emerge in the context of climate change at first, it could find a broad scope of application in the context of climate displacement for its prevention and provision of permanent and sustainable solutions for those forced to be on the move. As such the doctrine entails the obligation for states to protect their citizens from avoidable disaster and shifting this obligation, in the case when the primary state can’t or don’t want to protect its population, toward the broader community of states. By allowing trans-border migrants to claim protection against climate impacts from their countries or the international community more effectively. 

Anne-Laure Pilat, has a background in Public and European environmental law.

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