Today many more people are displaced by disasters and climate change than by conflict and violence. But people fleeing persecution, conflict or violence can seek asylum under the 1951 Refugee Convention; in contrast, no international legal framework protects those fleeing environmental peril.
What’s the context?
Each year, many millions of people are displaced by the impacts of climate change and disasters – about one person per second. Most of these people move within their own countries, but some are forced across international borders.
Many more people are displaced by disasters than by conflict and violence. Climate change intensifies this risk. But whereas the Refugee Convention protects people fleeing persecution, conflict or violence, there is no clear international legal framework to protect those fleeing environmental peril.
Who is in need of protection?
Legally, there is no such thing as a ‘climate refugee’ or an ‘environmental refugee’. While people fleeing environmental impacts may need protection or assistance, they do not generally meet the refugee definition set out in the Refugee Convention – namely, someone who has a well-founded fear of being persecuted because of their race, religion, nationality, political opinion or membership of a particular social group.
Furthermore, the Refugee Convention applies only to people displaced across borders, whereas most people who are displaced in the context of climate change and disasters will move within their own countries.
Human rights law protects people from being returned to life-threatening conditions or inhuman or degrading treatment. So, if circumstances are dire – say, if water, food, shelter and healthcare become too scarce – then protection might be forthcoming on these grounds. But it doesn’t provide protection in anticipation of such conditions materialising in the future. There is, accordingly, a protection gap.
What is the international community doing about this?
The Global Compact for Safe, Orderly and Regular Migration, to be adopted in December 2018 by the UN General Assembly, is the first international instrument to reflect specific commitments about climate change, disasters, environmental degradation and displacement. Although not legally binding, the Global Compact provides an important framework for governments to address this issue, including through greater international cooperation, better preparedness, and new migration opportunities.
The Global Compact builds on the recommendations of the Nansen Initiative on Disaster-Induced Cross-Border Displacement. In 2015, it produced a Protection Agenda which outlined a number of responses to help people remain in their homes for as long as possible, and to assist those who wished to move. This document was endorsed by 109 governments, including Australia. Its successor organisation, the Platform on Disaster Displacement, continues to work with governments and affected communities to implement these recommendations, which include:
- reducing disaster risk and helping affected communities adapt to the impacts of climate change;
- developing temporary forms of protection, such as humanitarian visas or extended-stay arrangements, that give short-term relief to people who are displaced by a disaster;
- creating and enhancing voluntary migration opportunities – such as free-movement agreements, training programs, and special access to existing visa schemes – so that people can move with dignity before disaster strikes or slow-onset environmental changes make their homeland uninhabitable;
- planning relocations to help people move out of danger zones before disaster strikes, or safe areas to move to if they have already been displaced.
Does New Zealand admit people displaced by climate change?
In late 2017, New Zealand’s newly elected Prime Minister, Jacinda Ardern, announced a proposal to create a special humanitarian visa for Pacific Island residents who are forced to migrate because of rising sea levels. The plan would provide for up to 100 such visas annually. Before finalising any plan, NZ is discussing the scheme with Pacific nations. On account of the limits of existing international and domestic law, NZ courts have previously rejected dozens of such claims. Australia has likewise rejected protection claims based on environmental threats by people from a number of different countries.