Table of Contents
Introduction
In June 2019, UN statistics suggested that over 70 million people globally had been displaced with over 25 million of those being refugees. Refugees are argued to be among some of the most vulnerable people in the world so are therefore entitled to protection from the international community. This protection varies from State to State but often includes humanitarian assistance, migrant status as well as social and economic rights. While international law has arguably developed to respond to new surges of refugees from the middle-east and Africa, the law has failed to respond to new displacement triggers such as climate change.
The Internal Displacement Monitoring Centre statistics show that in 2018 over 17 million people and in 2019 over 7 million people were forcibly displaced by natural disasters. One of the leading academics, Myers, notes that because of environmental shifts such as rising sea levels, drought and famine that the level of environmentally displaced persons is due to significantly increase. However, under the 1951 Refugee Convention these persons are not afforded the protection extended to those fleeing conflict and/or persecution because of the definition in Article 1.
In this essay it will be argued that while many academics push for the expansion of the refugee definition to include climate refugees due to reasons such as the definition being outdated, it is unlikely that this will occur due to political reasons such as state unwillingness and the UN refugee definition itself. Instead this essay will propose that a smaller -scale agreement such as a continental convention or domestic law would be more effective to protect the rights of the climate refugee.
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Climate Refugee Under the Current Refugee Definition
Under the 1951 Convention, broadly, a refugee is a person with a ‘well-founded fear of being persecuted…, is outside the country of his nationality and is unable … to avail himself of the protection of that country’. This definition under the 1951 Refugee Convention remains at the heart of all international refugee law and allows those who qualify extensive legal protections. For example, the jus cogens principle of non-refoulement which prohibits states from returning refugees to the state in which they fear persecution. The term ‘climate change refugee’ is often disputed in law and in practice due to reasons such as global warming denial and the refugee definition itself. While scholars argue that Climate Change does not necessarily trigger the displacement of people, they promote the idea that its affects such as drought, famine, war and predominantly death do.
The first requirement of a refugee is that they must fear persecution. Persecution entails serious violations of human rights therefore, to determine whether threats or actions will amount to persecution, all circumstances of a claim must be taken into account. This a significant hurdle for people fleeing environmental harms because while the House of Lords has adopted a human rights approach to persecution, the environment/ climate cannot itself persecute a person. The second hurdle for climate refugees is that persecution can only give rise to refugee status if the person falls under one of the reasons listed in the convention: race, nationality, political opinion, religion or particular social group. The ‘particular social group’ has been interpreted fairly broadly to include gender, sexuality, and victims of trafficking. It is clear, however, that there is no group for those forcibly displaced due to climate change and would therefore need the scope to be broadened to include environmental harms.
Shacknove states that, currently, for a person to be a refugee they must cross an international frontier. This causes issues in the modern world as over 40 million (more than 50%) people have been internally displaced meaning they are not classified as refugees, therefore they do not have the same rights as those who have crossed an internal frontier. This is particularly the case for climate refugees as reports from the UNHCR suggest that large proportions of climate refugees are internally displaced and do not cross a frontier.
Support for expanding the definition
It is argued that the refugee definition needs to be expanded to meet the needs of current generations. Scholars argue that the definition under the Refugee Convention was created based on displacements within Europe caused by the World Wars. Due to this the current definition is not considerate of displacement caused by issues that have arisen since 1951 such as climate change. While the definition does allow for some discretion under S.1 regarding other members of social groups, the refugee definition itself still offers protection to a narrow group of persons. This is problematic as Lister describes as the refugee convention was created by the UN to protect the most vulnerable and the type of people who need protection have totally changed since 1951 especially since the introduction of the EU to promote equality and peace.
Lister argues that this internationally accepted definition has caused severe issues for those fleeing Global Warming related threats. McAdam argues that States take this definition literally meaning that because of state discretion they will not accept Climate Change Refugee as they are not fleeing persecution but rather environmental harms. This is contradicted by the fact that may scholars argue that the UN definition should be interpreted as a base for domestic expansion of the term so States can separately decide what makes a refugee distinctly different from the rest of the international community.
Resistance to Expanding the Refugee Definition
Firstly, the internationally accepted definition of a refugee has not changed in almost 70 years. During this time over 140 States have integrated the Refugee Convention into their domestic law, creating legislation based around the definition as it stands. Modifying the definition would lead to mass reforms needed in each individual states’ law which could potentially lead to a rejection of the refugee principle itself. Additionally, scholars such as Suhrke propose that the inclusion of a ‘climate refugee’ would undermine the term ‘refugee’ itself which the Convention defined. It is important to note here that even when the 1967 protocol removed the geographical restriction imposed by the Convention, the definition fundamentally stayed the same
Secondly, McAdams argues that there is an unwillingness of States to accept more refugees or finance international refugee agencies. Political pressures, such as sovereignty and Brexit, prevent the expansion of the definition as parties are forced to act in a way that is desirable to the electorate rather than address issues that may be globally troubling. States’ reluctance to grant political deference and financial support show that
While Shacknove criticizes the current refugee definition/status as too narrow he observes that his proposition of a refugee being someone whose basic needs are unprotected by their country of origin may be too broad and open for exploitation as well as its potential negative impacts on State resources. Millar’s analysis confirms that any expansion of the term ‘refugee’ to encompass those threatened by climate change would come at a substantial cost in terms of weakening the force of the refugee regime. Consequently, whilst it may look desirable to develop the refugee law, it comes at significant risk of damaging the protections already given to those who are fleeing persecution in their home state.
Possible Alternatives
Due to the reasons discussed above, it can be argued that the existing refugee framework would require a total reformulation in order to deal with people displaced as a result of environmental factors. Therefore, a better proposal to protect the rights of environmentally displaced may be create a new legal regime completely.
Rather than changing the UN Convention definition, a more local approach could be taken to incorporate climate refugees. Shacknove points to the fact that while the UN Convention is generally used as a foundation, there are in fact many definitions in effect within various jurisdictions. This is important to note because with climate refugees being highly vulnerable a more proactive stance may be to incorporate lower-level law offering protection to those displaced by environmental factors. For instance, the Organisation of African Unity (OAU) have removed the element of persecution and instead allows for factors such as ‘events seriously disturbing public order’ to be considered. While this law still would not integrate climate refugees explicitly, it shows that there is room for development. It also offers an alternative mechanism for smaller groups of States to join and enforce climate change refugee rights without having to have the will of a majority.
Morrisey in his article also raises the key point that it is often difficult to separate environmental ‘push factors’ from political, social and economic contexts. Cooper furthers this idea by stating how environmental harms are generally not the sole factor in why people become displaced, but rather it is ‘government induced environmental degration’ such as nuclear disasters or rising sea levels.
Conclusion
In conclusion, the refugee definition does not need to be expanded in order to respond to climate-induced displacement. In this essay it has been argued that while the 1951 refugee definition is universally accepted between the 140+ signatories, it is considered to be widely out-dated by scholars. This essay has explored how the existence of a potential ‘climate refugee’ might signal the need for expansion of the definition to cover new forms of refugee arising since the Convention’s euro-centric focus in 1951.
However, while it may be desirable to reform the definition in order to broaden the scope of protection to more vulnerable people, there is a lack of state willingness and motivation to amend the law. Due to reality that climate refugees are unlikely to be recognized as refugees unilaterally under international law, it may be more beneficial for rights and protections to arise from stand-alone provisions whether they be international or domestically produced. This essay suggests developing the law through smaller international bodies such as the European Union in order to start movement towards a universal acceptance of climate refugees.
