Climate Change Refugees: Law, Human Rights and Ethics

Chapter 2
Climate Change Refugees: Law, Human Rights and Ethics

Donald A. Brown

Introduction: The Enormous Challenge of Climate Refugees

This chapter examines the legal, human rights and ethical dimensions of the fact that human-induced climate change is already displacing people from their communities while threatening to create millions of climate refugees, that is people who are forced to leave their homes, communities and often their nations because of the adverse effects of global warming. Although as a matter of international law, the word refugee is often limited to individuals who are displaced from their country, this chapter will use the term refugee to include all people who are forced to leave their communities because of climate change without regard to whether they leave their nation and cross national boundaries.

In addition to the immense personal human suffering that people experience when they are forced to leave their communities because the ecological systems on which their life depends no longer will support life as usual due to climatic change, the problem of climate refugees is also expected to create enormous challenges for the international community. This is so particularly for those parts of the world in which millions of people may need to relocate due to increased droughts, flooding, rising seas, soil and coastal erosion, loss of water supplies, agricultural incompatibility with higher temperatures, and desertification. As we will see, waves of refugees may also be created when climate change degrades ecological systems to levels that trigger violent conflict and war.

The exact number of climate refugees that are expected in this century is somewhat contentious because some of the climate events that will force people to abandon their communities are difficult to predict with accuracy. In fact, there are at least four scientific problems with predicting the number of refugees that will be caused by climate change at any one time.

First, although the number of climate refugees that will be caused by a changing climate between now and 2100, for instance, will depend on the magnitude of warming experienced in this century, the amount of warming experienced will depend upon atmospheric concentrations of greenhouse gases (ghg) in the next 85 years. Yet it is impossible to know accurately future ghg atmospheric concentrations because these levels will depend upon the energy policies enacted, technologies installed and population levels in this century, as well as whether global temperatures increase to levels that begin to release carbon that is stored in the biosphere. Because there is considerable scientific uncertainty about when carbon stored in oceans, soils and forests will be released by specific temperature increases, predicting atmospheric ghg concentrations in this century can only be accomplished by making assumptions about what temperatures will create positive feedbacks from stored carbon as well as how parts of the biosphere that are now absorbing some of the carbon being released by human activities will become saturated and thereby, because of their inability to store additional carbon, cause more rapid elevated atmospheric carbon concentrations.

Second, even if future ghg atmospheric concentrations could be determined, there is still some scientific uncertainty with what temperatures will be experienced by different atmospheric ghg concentrations, an issue referred to as the problem of ‘climate sensitivity’. The scientific community deals with the uncertainty about climate sensitivity the way it deals with other climate issues about which there is some uncertainty, namely making predictions about what temperatures will be at different atmospheric concentrations that are accompanied by probability bounds.

Third, even if it were possible to predict with confidence temperatures that will prevail during this century, it is very difficult to predict climatic change impacts at any one place on the earth because of the limitations of global climate models to predict with accuracy climate conditions at the local scale. It is also very difficult to predict climate impacts at the local scale due to the fact that the climate system is somewhat chaotic, meaning small changes in one part of the system can trigger big changes in other parts of the system. Yet how many climate refugees will be created in this century will depend on, among many other things, where specifically harsh climate impacts are experienced at the local scale including where intense storms and droughts precisely arise that cause floods or diminish agricultural productivity or drinking water supplies.

Fourth, the number of climate refugees that are actually caused by climate change will depend on whether adaptation responses are taken in anticipation of a changing global climate. If, for instance, people move from small island states which are vulnerable to rising seas before the rising oceans force them to move, people on these islands may not be strictly classified as climate refugees because people who are moved peacefully and consensually from places of declining natural resources are not usually counted as refugees.

For these and other reasons it is difficult to predict with high levels of confidence how many people will become climate refugees in this century and where the greatest needs of climate refugees will arise. However it is still very likely that human induced climate change will produce tens of millions of climate refugees by 2100. Recent estimates of the number of climate refugees that will be created in this century range from 50 million predicted by the Intergovernmental Panel on Climate Change (IPCC) in 2007 (Vidal 2009) and 150 million by 2050 predicted by the Climate Justice Foundation (Pearce 2014).

The most recent 5th Assessment Report of the IPCC concluded that adverse climate change impacts ‘are already occurring on all continents and across the oceans and the world, in many cases, is ill-prepared for risks from a changing climate’ (IPCC 2014a). IPCC also found that millions of climate change refugees may flood into Europe as they flee extreme weather and food shortages (Spencer 2014). And so, the problem of climate refugees is not only of great concern due to the suffering and hardships experienced by the refugees themselves, climate refugees are also a huge potential threat to parts of the world which may be inundated by tens of thousands of refugees seeking relief from degraded ecological conditions.

Until recently, most of the refugee problems that received the greatest attention of the international community were created by people fleeing war and violence. The concept of climate refugees has arisen as a source of great international concern only in the last decade, an idea that initially conjures up a vision of rising seas, storms or droughts forcing people to flee inhabitable conditions Yet, recent analyses of links between climate change and national security have concluded that climate change is leading to growing military tensions around the world and armed conflict which may create large numbers of additional refugees. For instance a report prepared for the United States found that climate change-induced drought in the Middle East and Africa is leading to conflicts over food and water and escalating longstanding regional and ethnic tensions into violent clashes (Davenport 2014). This report also concluded that climate change effects are ‘threat multipliers that will aggravate stressors abroad, such as poverty, environmental degradation, political instability and social tensions – conditions that can enable terrorist activity and other forms of violence’ (Davenport 2014).

Another recent study found that changes in climate, such as increased drought and above-average annual temperatures, have caused a rise in human violence across the world from domestic violence to riots, civil wars and the break-up of governing institutions (Freccia 2014). This paper also warned that rising ghg emissions could result in greater amounts of violence around the world, a development that will almost certainly lead to more refugees.

The threat of increasing numbers of climate refugees is not simply a potential future nightmare for the refugees themselves, there is strong evidence that several recent very destructive conflicts around the world in Darfur, Rwanda, Somalia and Burundi have been at least exacerbated by droughts caused by climate change (Edwards 2012: 59). In addition, the great human tragedy of the ongoing conflict in Syria has been linked to drought, water shortages, crop-failure and displacement likely caused by or exacerbated by climate change (Femia and Werrell 2014). These conditions led to a massive exodus of farmers, herders and agriculturally-dependent rural families from the countryside to Syrian cities thus triggering internal political unrest. Although the causes of the Syrian conflict include factors other than climate-caused ecological degradation such as poor land management practices and simmering ethnic tensions, Syria is a clear example of a conflict in waiting that could be triggered by deteriorating ecological conditions caused by climate change. For this reason, given marginal food and water supplies with which billions of people around the world are already currently struggling, there is reason to be very concerned about increased violence in a warming world and the growing number of climate refugees that could be generated by this conflict.

Nevertheless, the inability to predict accurately the exact number of climate refugees that will be arise in this century is no justification for concluding that the problem of climate refugees is not likely to be an immense challenge for the international community in the coming decades. In fact, climate change’s most devastating impacts may be those caused by huge conflicts over scarce resources.

Legal Challenges for Climate Refugees

This section examines whether international refugee law, a body of law that creates duties for nations to protect refugees, adequately deals with climate refugees and, given the limitations of this body of law, whether there are potential legal remedies under civil and human rights law for people who are forced to abandon their communities due to deteriorating ecological conditions caused by climate change.

International Refugee Law

The term ‘refugee law’ usually refers to a body of international law created at the international and regional levels to protect the rights of people forcibly displaced by conflict, persecution, natural disasters and development projects. This body of law does not include a category for climate refugees because it was drafted before the problem of climate refugees was recognized. As we shall see, this body of law does contain some provisions that might be relevant to a few of the problems faced by climate refugees, although overall international refugee law falls very short of adequately dealing with the most serious problems of climate refugees.

Fundamental international refugee laws include the 1951 Convention on the Status of Refugees (Convention 1951) and its 1967 Protocol (Protocol 1967). Under the 1951 Convention Section Article 1, Section i(A)2 the term ‘refugee’ shall apply to any person who:

… owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence as a result of such events, is unable or, owing to such fear, is unwilling to return to it (Convention 1951: Article 1(A)2).

Thus, according to this provision, refugees are defined by three basic characteristics:

• they are outside their country of origin or outside the country of their former habitual residence;

• they are unable or unwilling to avail themselves of the protection of that country owing to a well-founded fear of being persecuted; and

• the persecution feared is based on at least one of five grounds: race, religion, nationality, membership of a particular social group, or political opinion (RULAC 2014).

The 1967 Protocol makes no changes to the definition of ‘refugee’ in the 1951 Convention (Protocol 1967).

It is generally accepted that climate refugees do not meet this definition of the 1951 Convention. However, if a government consciously withholds assistance from victims of climate change in order to punish them for reasons of race, religion, nationality, member of a particular social group or political opinion, then they may qualify for refugee status under the 1951 Convention (Edwards 2012).

The main benefit of being classified as a refugee under the 1951 Convention is that the refugee is protected against refoulement, that is being forcefully returned to the country in which that refugee has a reasonable fear of being persecuted. Classification as a refugee under the 1951 Convention and its Protocol also gives a refugee certain rights including but not limited to rights to identity papers and travel documents, free exercise of religion and religious education, free access to the courts, including legal assistance, access to elementary education, access to public relief and assistance, protection provided by social security, protection of intellectual property, such as inventions and trade names, protection of literary, artistic and scientific work, equal treatment by taxing authorities and the rights to: belong to trade unions, belong to other non-political nonprofit organizations, engage in wage-earning employment, own property, practise a profession, self-employment, access housing, access higher education, choose a place of residence, and move freely within the country (HREA 2003).

Yet under international refugee law there are no conventions or protocols that expressly provide protection and assistance for people crossing international borders because of climate change. As a result there are several important climate refugee issues that are unresolved in international law. One is which nations have responsibility to accept climate refugees that are forced to flee their nations of origin because of deteriorating ecological systems. And another, which nations, if any, are responsible for compensating climate refugees for the harms, damages or reasonable adaptation costs that the climate refugees must endure.

Thus far we have considered issues that arise under international law for refugees that cross national borders. What international legal protections exist for persons displaced by climate change within a county? In this respect, the United Nations General Assembly adopted in 1998 the Guiding Principles on Internal Displacement (UN GPID 1998).

These principles define internally displaced persons as:

[p]ersons or groups of persons who have been forced or obliged to flee or to leave their homes or places of habitual residence, in particular as a result of or in order to avoid the effects of armed conflict, situations of generalized violence, violations of human rights or natural or human-made disasters, and who have not crossed an internationally recognized State border (UN GPID 1998: Scope and Purpose).

Thus, because the guidance on internally displaced persons specifically includes natural or human-made disasters that cause migration as the basis for classifying people as displaced persons, these principles are more applicable to climate refugees than to those who cross national borders under the 1951 Covenant. Yet the responsibility of protecting internally displaced persons under the GPID resides with the nations in which the displaced persons reside (UN GPID 1998: Principle 3). However, the nations in which most persons reside that are displaced internally by climate change are rarely among those nations that are most responsible for climate change. In addition these nations are often very poor without sufficient financial resources to adequately protect internally displaced people.

The GPID provides when property or possessions of the internally displaced persons are not recoverable, the nation has a duty to provide assistance to these persons and to obtain for them appropriate compensation or other form of reparation (UN GPID 1998: Principle 29). Yet the nations who bear this responsibility are not the nations that are usually responsible for climate change, nor do they usually have the financial resources to provide compensation or reparations. Thus, GPID is not the solution to some of the climate refugee’s most vexing problems.

In addition to these above identified international and intra-national legal instruments, that are relevant to how displaced persons are protected under law, are a number of regional agreements which deal with refugee rights. These include the Organization of African Unity Convention Governing the Specific Aspects of Refugee Problems in Africa, adopted in 1969 (OAU Convention 1969), and the Cartagena Declaration on Refugees, adopted in 1984 (Cartagena Declaration 1984). Both of these documents provide a somewhat expanded definition of ‘refugee’ compared to the 1951 Convention in ways that provide more flexibility to include victims of ecological degradation while continuing to limit protection to refugees that cross national borders. Yet as in the other legal instruments on refugees examined above, these regional refugee instruments do not provide means for making those actually responsible for climate change liable for compensation or reparations to those who suffer from the need to be relocated.

Civil Liability for Harms Suffered by Climate Refugees

What theories of legal liability exist for climate refugees to recover damages for the harms that they suffer? Such questions are a matter of tort law in common law jurisdictions.

A tort is a violation of civil duties. That is a tort, in common law, is a civil wrong. Tort law deals with situations where a person’s or entity’s behaviour has unfairly caused someone else to suffer loss or harm. A tort is not necessarily an illegal act but an act that causes harm. Tort law allows anyone who is harmed to recover their losses. Thus tort law is intuitively a good place to look for potential remedies for climate refugees.