No Refuge for Climate Refugees: How International Environmental Law and Human Rights Law Can Guide Lex Specialis

“The law must be stable, but it must not stand still”, argued Justice Roscoe Pound.[1] Yet, millions of climate refugees remain stuck in legal limbos and gaps, as existing legal frameworks fail to acknowledge new realities presented by climate change and tailor protections for people forcibly displaced by climate disasters.[2] In international law, lex specialis, that is, the specialised field of relevant law takes primacy over general rules.[3] In the case of climate refugees this entails that international refugee law should preside over more general legal outlets and protections, such as international environmental or human rights law. Nonetheless, to adapt to changing circumstances in the Anthropocene, these fields may offer opportunities and guidance for the lex specialis in creating adequate protections for climate refugees.

The emerging concept of climate refugee is heavily debated among scholars.[4] Climate change induces migration through its various impacts like increased flooding, drought, sea level rise and extreme weather.[5] Such climate disasters forcibly displaced over 376 million people since 2008, and it is predicted that some 1.2 billion people could be forced to leave their homes by 2050.[6] Despite such alarming figures, the pace of adaption of the lex specialis, international refugee law, to accommodate climate refugees and recognise their protections, has struggled to keep up with the urgency of climate change.

Drafted in 1951, the Refugee Convention did not account for the enhanced impacts of climate change. Climate change is not recognised as basis for refugee status, as it does not fulfil the two requirements of this narrow legal interpretation, namely a “well-founded fear of being persecuted” and reasons for persecution restricted to “race, religion, nationality, membership of a particularly social group or political opinion”.[7] Under the latter, climate refugees are not granted protections as they are not seen as victims of discriminatory persecution.[8] The fact that climate disasters are not under the scope of the Convention was affirmed in precedents such as A and Another.[9] Under the former, however, a question of agency arises: the requirement of fear of being persecuted implies the existence of a persecutor, an aspect that is hard to pinpoint in the case of transboundary climate change.[10] Even as environmental harm is often precluded by human activity, but even that leads to largely indiscriminate effects, which again negates the requirements of the Convention.[11] The only attributable question of agency could be that of general protections, which would fall under state competencies, yet even that can be refuted as the principle of surrogacy is arguably not triggered with the unpredictable and inevitable profile of climate change, which imposes no hard obligations for remedy for climate refugees under current regimes.[12] The criticism of agency provides merit to explore both environmental and human rights principles and opportunities they offer when incorporated into the rigid framework of the Convention.

International human rights law is often cited as the ideal approach to climate-amplified displacement.[13] The interdependence is recognised by the 1972 Stockholm Declaration’s right to “[…] adequate conditions of life, in an environment of a quality that permits a life of dignity and well-being”.[14] Human rights law’s main pillars: universality, inalianibility and indivisibility, indeed offer three valuable lessons for the creation of climate refugee protections. Indivisibility of human rights in relation to climate change-induced displacement could be guaranteed through individual assessments of need.[15] This implies the negation of the requirement of agency of the persecutor, and instead focuses on broader circumstances, to protect rights such as right to life, water, sanitation, food security, shelter, health.[16] Risk of harm (phrased in the Convention as ‘persecution’) should be assessed cumulatively, as climate change exacerbates already poor protections on the ground.[17] Such an approach would either call for a broader interpretation of the criteria, whereas climate refugees fit within the definition in the Convention as harm can also be attributed to the government which fails to grant them protections and thus outlines a form of persecution.[18] Alternatively, climate refugees could be incorporated into the Convention through expanding the requirements to include cumulative assessments of individual circumstances.[19] Furthermore, universal and inalianable protections are needed. Climate change as a transboundary problem requires uniform approach with differentiated and tailored commitments, due to varying levels of vulnerability to climate-related harms.[20] Universality can emerge from precedents and subsequent legal principle creation via climate litigation on human rights grounds.[21] Notably, the question of agency as for persecution requirement under the Convention has been, albeit indirectly, tackled by cases such as Urgenda v The Dutch Government, or even reports such as the one of UN Human Rights Committee finding Australia responsible for not providing the indigenous of the Torres Island adequate protections from climate change hazards and ultimately breaching their rights.[22] The need for introduction of individual assessment and application of non-refoulment principle in the case of climate refugees was reinforced by New Zealand decision-makers.[23] A series of cases from New Zealand also affirmed that in principle climate refugees should qualify for refugee status and protections under human rights law, as also argued in Teitiota v New Zealand.[24]

Poorest countries are expected to be hit by its effects the hardest, and often these countries are less well-equipped to protect the human rights of their people.[25] In light of this, regional efforts could guarantee inalianability of human rights of climate refugees, to account for different levels of protections needed. Examples include the 1969 OAU Convention in Africa and the 1984 Cartagena Declaration, which include recognition of climate-induced displacement and climate refugees.[26] Such regional considerations could be supported by environmental law’s principles of transboundary harm and common but differentiated responsibilities.

International environmental law can also offer helpful insights to the creation of climate refugee protections through its sustainable development, trounsboundary harm and common but differentiated responsibilities principles. The 1994 International Conference, UN Global Compacts, COP24 and the Cancun Adaptation Framework all recognised the causal link between migration and development, therefore such targets were also transcribed into the UN 2030 Agenda for Sustainable Development.[27] The Nansen Initiative 2012 went as far as to recognise the legal gap in protection for climate refugees and was widely endorsed.[28] The hybrid Paris Agreement established the Task Force on Displacement in 2015 to support climate refugees.[29] Nonetheless, the non-binding nature of such steps often invokes citicism. Many argue for the development of UNFCCC to facilitate climate refugees, as it provides structure to tackle the root cause of climate change and has already gathered political support.[30] At the same time, alongside the Kyoto Protocol, it has been dismissed for lacking language that could address social and human rights impacts of climate change, such as migration.[31] Under this framework, displacement remains a secondary issue, yet to be developed and solidified into hard law over set of principles.[32] Principles can however enhance transboundary understandings. This principle highlights one of the main contradictions between lex specialis and environmental law: whilst the Convention focuses on cross-border movement, most climate refugees are displaced internally,[33] making them fall in the legal gap that grants them no protections. Internally displaced climate refugees are therefore recognised, as demonstrated in the ICRC principles,[34] by UNHCR and regional apparatus such as the Kampala Convention.[35] This differentiation presents a paradox: upon trounsboundary harm, climate refugees are denied protections upon crossing borders, fleeing from a trans-border global phenomena; right of entry is only to be granted if reasons for displacement combine with those enlisted in the Convention.[36] The issue is quickly transformed to whether appeal should be made for refugee protections or those for stateless persons.[37]Statelessness is at the center of discussion of both transboundary harm and common-but-differentiated principles, as adverse effects of climate change will be felt differently across nations, in the most severe cases with the possibility to leading to disappearance of territory, one of the key elements of statehood.[38] Using the principle of common-but-differentiated, the faults in the persecution requirement from the Convention could be mended: instead of character of the threat, the severity and adverse affecting of basic human rights could be considered.[39] Just as the Kyoto Protocol laid out common-but-differentiated responsibilities for greenhouse gas emmissions, and “respective capabilities for nations”,[40] such considerations of distinctions should be made for establishing refugee status across different climate-induced scenarios, and agency of persecutors and liabilities, ultimately to fully account for root causes of climate change. Importantly, climate change affects people indiscriminately but to discriminate effects, and such should be considered in granting protection to climate refugees as to not exacerbate structural violence and other inequalities.[41]

Overall, lex specialis can denote lex imperfecta if it fails to change alongside new realities. Climate refugees are not adequately protected by international refugee law, but international human rights and environmental law can guide their facilitation into the framework of lex specialis, through the incorporation of principles and lessons learned. A transboundary, indiscriminate-discriminating phenomena bound of no agency, such as climate change, calls for the rethinking of lex specialis and the protections cemented by it.

[1] Pound, The Scope and Purpose of Socialogical Jurisprudence, 25 Harv. L. Rev. 140, 156-157 (1912).

[2] European Parliamentary Research Service. The Concept of “Climate Refugee”: Towards a Possible Definition. European Parliament, 2021. https://www.europarl.europa.eu/RegData/etudes/BRIE/2021/698753/EPRS_BRI(2021)698753_EN.pdf, p. 2.

[3] International Law Commission. Fragmentation of International Law: Difficulties Arising from the Diversification and Expansion of International Law. Report of the Study Group on Fragmentation of International Law. United Nations, 2003. https://legal.un.org/ilc/sessions/55/pdfs/fragmentation_outline.pdf, p. 4.

[4] Jaswal, Paramjit S., and Stellina Jolly. “CLIMATE REFUGEES: CHALLENGES AND OPPORTUNITIES FOR INTERNATIONAL LAW.” Journal of the Indian Law Institute 55, no. 1 (2013): 45–58. http://www.jstor.org/stable/43953626, p. 54.

[5] Ibid, p. 46.

[6] European Parliamentary Research Service. The Concept of “Climate Refugee”: Towards a Possible Definition. European Parliament, 2021. https://www.europarl.europa.eu/RegData/etudes/BRIE/2021/698753/EPRS_BRI(2021)698753_EN.pdf, p. 1.

[7] United Nations. Convention Relating to the Status of Refugees. Adopted July 28, 1951. United Nations Treaty Series, vol. 189, p. 137. https://www.unhcr.org/1951-refugee-convention.html.

[8] Earth.org. “Climate Refugees: The Overlooked Victims of Climate Change.” Earth.org, April 20, 2023. https://earth.org/climate-refugees/.

[9] Ibid.

[10] Calum T. M. Nicholson, Climate Change, Forced Migration, and International Law. By Jane McAdam., Journal of Refugee Studies, Volume 26, Issue 2, June 2013, https://doi.org/10.1093/jrs/fet009, p. 312.

[11] El-Hinnawi, Essam. Environmental Refugees: The Case for Recognition. Nairobi: United Nations Environment Programme, 1985. https://archive.org/details/fp_Environmental_Refugees-The_Case_for_Recognition/page/n3/mode/2up, p. 30.

[12] Shacknove, Andrew E. “Who Is a Refugee?” Ethics 95, no. 2 (1985): 274–84. http://www.jstor.org/stable/2380340, p. 277.

[13] Jaswal, Paramjit S., and Stellina Jolly. “CLIMATE REFUGEES: CHALLENGES AND OPPORTUNITIES FOR INTERNATIONAL LAW.” Journal of the Indian Law Institute 55, no. 1 (2013): 45–58. http://www.jstor.org/stable/43953626, p. 45.

[14] United Nations. Declaration of the United Nations Conference on the Human Environment (Stockholm Declaration). Adopted June 16, 1972. United Nations. https://www.un.org/en/conferences/environment/stockholm1972.

[15] Earth.org. “Climate Refugees: The Overlooked Victims of Climate Change.” Earth.org, April 20, 2023. https://earth.org/climate-refugees/.

[16] Cournil, Christel, and Benoit Mayer. “How Domestic Courts Are Using International Refugee Law and Human Rights Law in the Context of Climate Change and Disasters.” EJIL:Talk! Blog of the European Journal of International Law, November 1, 2021. https://www.ejiltalk.org/how-domestic-courts-are-using-international-refugee-law-and-human-rights-law-in-the-context-of-climate-change-and-disasters/.

[17] Ibid.

[18] Jaswal, Paramjit S., and Stellina Jolly. “CLIMATE REFUGEES: CHALLENGES AND OPPORTUNITIES FOR INTERNATIONAL LAW.” Journal of the Indian Law Institute 55, no. 1 (2013): 45–58. http://www.jstor.org/stable/43953626, p. 53.

[19] Ibid, p. 54.

[20] Jaswal, Paramjit S., and Stellina Jolly. “CLIMATE REFUGEES: CHALLENGES AND OPPORTUNITIES FOR INTERNATIONAL LAW.” Journal of the Indian Law Institute 55, no. 1 (2013): 45–58. http://www.jstor.org/stable/43953626, p. 45.

[21] European Parliamentary Research Service. The Concept of “Climate Refugee”: Towards a Possible Definition. European Parliament, 2021. https://www.europarl.europa.eu/RegData/etudes/BRIE/2021/698753/EPRS_BRI(2021)698753_EN.pdf, p. 8.

[22] Ibid.

[23] AC (Eritrea) [2023] NZIPT 802201–202, New Zealand: Immigration and Protection Tribunal, 3 November 2023.

[24] Cournil, Christel, and Benoit Mayer. “How Domestic Courts Are Using International Refugee Law and Human Rights Law in the Context of Climate Change and Disasters.” EJIL:Talk! Blog of the European Journal of International Law, November 1, 2021. https://www.ejiltalk.org/how-domestic-courts-are-using-international-refugee-law-and-human-rights-law-in-the-context-of-climate-change-and-disasters/.

[25] Jaswal, Paramjit S., and Stellina Jolly. “CLIMATE REFUGEES: CHALLENGES AND OPPORTUNITIES FOR INTERNATIONAL LAW.” Journal of the Indian Law Institute 55, no. 1 (2013): 45–58. http://www.jstor.org/stable/43953626, p. 45.

[26] Ibid, p. 66.

[27] European Parliamentary Research Service. The Concept of “Climate Refugee”: Towards a Possible Definition. European Parliament, 2021. https://www.europarl.europa.eu/RegData/etudes/BRIE/2021/698753/EPRS_BRI(2021)698753_EN.pdf, p. 2.

[28] Ibid.

[29] Francis, Ama. “CLIMATE-INDUCED MIGRATION & FREE MOVEMENT AGREEMENTS.” Journal of International Affairs 73, no. 1 (2019): 123–34. https://www.jstor.org/stable/26872782, p. 126.

[30] Warren, Phillip Dane. “FORCED MIGRATION AFTER PARIS COP21: EVALUATING THE ‘CLIMATE CHANGE DISPLACEMENT COORDINATION FACILITY.’” Columbia Law Review 116, no. 8 (2016): 2103–44. http://www.jstor.org/stable/44028186, p. 2103.

[31] Jaswal, Paramjit S., and Stellina Jolly. “CLIMATE REFUGEES: CHALLENGES AND OPPORTUNITIES FOR INTERNATIONAL LAW.” Journal of the Indian Law Institute 55, no. 1 (2013): 45–58. http://www.jstor.org/stable/43953626, p. 50.

[32] Warren, Phillip Dane. “FORCED MIGRATION AFTER PARIS COP21: EVALUATING THE ‘CLIMATE CHANGE DISPLACEMENT COORDINATION FACILITY.’” Columbia Law Review 116, no. 8 (2016): 2103–44. http://www.jstor.org/stable/44028186, p. 2119.

[33] Ibid, p. 2110.

[34] Jaswal, Paramjit S., and Stellina Jolly. “CLIMATE REFUGEES: CHALLENGES AND OPPORTUNITIES FOR INTERNATIONAL LAW.” Journal of the Indian Law Institute 55, no. 1 (2013): 45–58. http://www.jstor.org/stable/43953626, p. 55.

[35] European Parliamentary Research Service. The Concept of “Climate Refugee”: Towards a Possible Definition. European Parliament, 2021. https://www.europarl.europa.eu/RegData/etudes/BRIE/2021/698753/EPRS_BRI(2021)698753_EN.pdf, p. 5.

[36] Francis, Ama. “CLIMATE-INDUCED MIGRATION & FREE MOVEMENT AGREEMENTS.” Journal of International Affairs 73, no. 1 (2019): 123–34. https://www.jstor.org/stable/26872782, p. 125.

[37] Jaswal, Paramjit S., and Stellina Jolly. “CLIMATE REFUGEES: CHALLENGES AND OPPORTUNITIES FOR INTERNATIONAL LAW.” Journal of the Indian Law Institute 55, no. 1 (2013): 45–58. http://www.jstor.org/stable/43953626, p. 47.

[38] Ibid.

[39] Earth.org. “Climate Refugees: The Overlooked Victims of Climate Change.” Earth.org, April 20, 2023. https://earth.org/climate-refugees/.

[40] United Nations Framework Convention on Climate Change. Kyoto Protocol to the United Nations Framework Convention on Climate Change. Adopted December 11, 1997. Entered into force February 16, 2005. https://unfccc.int/kyoto_protocol.

[41] Scott, Matthew. Climate Change, Disasters, and the Refugee Convention. of Cambridge Asylum and Migration Studies. Cambridge: Cambridge University Press, 2020.