What is a “Refugee”? Expanding the UN Refugee Convention in the Face of Climate Change
Over the next few decades, anthropogenic climate change will force hundreds of millions from their homes in a migrant crisis of unprecedented proportions. As global temperatures rise, a series of “slow onset” environmental catastrophes has been set in motion; in many regions of the world, fresh water is becoming scarce, agricultural productivity is declining, and rising sea levels are producing higher storm surges. [1] Modeling the effects of these and other factors—such as heat stress, more extreme weather events, and the loss of habitable land—on “livability,” the World Bank predicts “climate change ... could force 216 million people ... to move by 2050.” [2] While some of these displaced individuals may migrate to safer regions within their home countries, many will choose to move to countries less economically affected by climate change. Ensuring that these future migrants receive government support is necessary to guarantee that they can secure a livelihood and find community in their new homes.
Unfortunately, precedent reveals that status quo international law will fail to guarantee displaced individuals legal protections, permitting nations to deny them the support they need. There is currently no legally binding or widely accepted international agreement granting “refugee” status to those displaced by “slow-onset” environmental disasters; furthermore, it is unlikely that existing definitions of “refugee” status, which are worded in terms of political persecution, will be generalized to serve those displaced by climate change. [3] As such, international law must be amended to explicitly grant “refugee” status to those affected by long-term, environmental harms.
While the bulk of climate change-related displacement will occur in the near future, three cases brought before the governments of Australia and New Zealand highlight the difficulties “climate migrants” have historically faced in securing legal protections. All three cases involve individuals leaving the Pacific island nations of Tuvalu and Kiribati, two countries rapidly becoming uninhabitable due to climate change. In both nations, where most islands sit less than six meters above sea level, rising sea levels have led to the intrusion of saltwater into local drinking wells and the sinking of villages. [4] Meanwhile, climbing temperatures and shifts in rainfall have led to steep increases in diseases such as dengue fever and ciguatera poisoning. [5] Climate change has left residents of Tuvalu and Kiribati without land to live on and water to drink, straining the islands’ healthcare capacity and food supply and leaving residents with little choice but to migrate.
Anticipating these developments, a citizen of Kiribati who moved to Australia in December 2007 applied for a Protection (Class XA) visa from the Department of Immigration and Citizenship, claiming that rising sea levels and the loss of local fruit trees jeopardize his ability to support his family. His visa application was refused by a delegate of the Minister for Immigration and Citizenship in August 2009, a refusal that was sustained upon appeal to the Refugee Review Tribunal in September 2009. [7] As per Australia’s 1958 Migration Act, in 0907346 [2009] RRTA 1168 the Tribunal held that the country would grant the visa if the case fell under Australia’s obligations set forth by the 1951 United Nations Convention Relating to the Status of Refugees. Since the applicant did not “fear persecution for ... membership of a particular social group” —the carbon dioxide emissions the applicant feared were not “motivated” acts of persecution—the Tribunal ruled Australia had no obligation to grant him protected status. [8] In other words, because the man was being threatened by high tides and not by his government, he could not be considered a “refugee.”
In another 2009 case, In re: AD (Tuvalu), a husband and wife from Tuvalu who settled in New Zealand under visitor’s visas were denied resident visas after their visitor’s visas expired. The family attempted a variety of different paths to legal residency, including family visas and work permits, but none succeeded. Finally, they decided to file claims for “refugee and protected persons status” in November 2012; though their claims were initially rejected by the Refugee Status Branch, they were eventually accepted upon appeal to the nation’s Immigration and Protection Tribunal. [9] Although the couples’ petition heavily relied on the impacts of rising sea levels on Tuvalu’s food and water supply, the Tribunal ruled on account of the husband’s elderly mother-in-law residing in New Zealand and their children’s “integration” into New Zealand’s schools that it would be “unjust or unruly harsh for the appellants to be removed from New Zealand.” [10] On the issue of climate change, the Tribunal declined to make an explicit decision, as one was not necessary, but reasoned that while climate change constituted a crisis of a “humanitarian nature,” its impacts were not demonstrated to be unique to the “particular appellant.” [11] Therefore, although the appellants successfully petitioned for resident visas, the Tribunal’s reliance on factors unrelated to climate change prevents In re: AD (Tuvalu) from setting a general precedent for how nations should address climate migration.
And most recently, in Ioane Teitiota v. The Chief Executive of the Ministry of Business, Innovation and Employment (2014), the Supreme Court of New Zealand upheld the rulings of lower courts in denying Kiribati native Ioane Teitiota “refugee... and/or protected person status.” [12] Teitiota moved to New Zealand in 2007 and chose to remain in the country after his visa expired in 2010. Following a traffic stop, Teitiota decided to apply for protected status under New Zealand’s 2009 Immigration Act, claiming “rising sea water levels and the associated environmental degradation will force the inhabitants of Kiribati to leave their islands.” [13] Both the High Court and Court of Appeals referenced the 1951 United Nations Refugee Convention—as in 0907346 [2009] RRTA 1168—to determine whether Teitiota was a “refugee,” and the International Covenant on Civil and Political Rights (ICCPR) to determine whether he was a “protected person.” [14] The Supreme Court ruled that, while the ICCPR had little bearing on Teitiota’s circumstances, the key questions in his case revolved around whether “an ‘environmental refugee’ qualifies for protection under [article] 1(A)2 of the [1951] Refugee Convention.” Ultimately, it concluded that while “Kiribati undoubtedly faces challenges” and “environmental degradation resulting from climate change or other natural disasters could ... create a pathway into the Refugee Convention or protected person jurisdiction,” Teitiota did not demonstrate that he specifically would face “serious harm” if returned to Kiribati. [15]
Following this denial by the New Zealand Supreme Court, Teitiota filed a communication with the United Nations Human Rights Committee (UNHCR), claiming that by removing him from the country, New Zealand deprived him of his right to life under the ICCPR. [16] However, the UNHCR refused to intervene on the grounds that it could only do so if the Supreme Court’s decision was “clearly arbitrary or amounted to a manifest error or denial of justice.” [17] On the merits of Teitiota’s petition, it concluded that although climate change may deprive him of his right to life in the future, Teitiota failed to establish any present and immediate risk of physical harm, lack of access to potable water, or other climate-related impacts. [18] And while the UNHCR acknowledges that in principle, “slow-onset effects may have a gradual, adverse impact on livelihoods,” it held that the forecasted ten to fifteen years before the country submerges “allow for intervening acts by the Republic of Kiribati, with the assistance of the international community, … to protect … and relocate its population.” [19] Even after filing a communication accepted by the UNHCR, Teitiota could not elicit an application of the Refugee Convention definition that would acknowledge his situation.
In all three cases, national courts looked to the 1951 Refugee Convention and its associated 1967 Protocol for Implementation in deciding whether to grant legal protections to those displaced by the impacts of climate change. The definition, given in Article 1(A)(2) of the Refugee Convention, holds that a “refugee” is someone 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.” [20]
In each case, the court concluded in some capacity that this definition, combined with the appellants’ circumstances, did not merit granting “refugee” status. In 0907346 [2009] RRTA 1168, the requirement that an individual be the victim of “motivated” persecution based on their membership in a “particular social group” could not be applied to climate change, a threat that cannot be attributed to a singular, motivated actor. The actors responsible for greenhouse gas emissions are scattered across nations; furthermore, no nation or corporation emits carbon dioxide with the intent of persecuting and displacing individuals. In In re: AD (Tuvalu), the court reasoned that the impacts of climate change were not unique to the “particular appellant,” a problem likely to arise in many climate change displacement cases. Different individuals will have different environmental and economic factors that influence their decision to leave their homeland; even if all of these factors are related to climate change, clarifying and proving this causal relationship can be quite difficult. Related concerns are raised by Teitiota: the New Zealand Supreme Court insisted that Teitiota demonstrate immediate “serious harm” awaiting him in Kiribati. [21] Many climate migrants will choose to leave their homes before violence and food shortages reach their doorstep; their cases might not feature sufficiently “serious harm.” Finally, these same migrants may not receive legal protection if, as the UNHCR reasoned in response to Teitiota’s communication, courts believe that enough time exists for appellants’ home governments to act, regardless of whether or not they are willing or able to.
Although many different approaches exist to constructing an expanded “refugee” definition, no clear path forward has emerged. Article 45 of the Refugee Convention allows countries to propose revisions, but does not put forward a clear procedure for doing so. [22] As such, no proposals currently exist to revise Article 1(A)(2) to cover those displaced by climate change. Another approach might lie in creating a constellation of smaller, regional agreements under an international umbrella. In “Turning the Tide: Recognizing Climate Change Refugees in International Law,” legal scholar Angela Williams argues for such an approach. [23] One proposal she offers would leverage existing regional organizations—like the African Union and the Association for South East Asian Nations—to create mechanisms for engaging with the climate refugee crisis and then host these regional organizations under the United Nations Framework Convention on Climate Change (UNFCCC). [24] The resulting system would ensure that in every corner of the world, climate migrants—including those displaced within their home countries—are protected by action plans tailored to their region.
Among potential international agreements to supersede the Refugee Convention, the 2018 Global Compact for Safe, Orderly and Regular Migration (GCM) holds some promise. Signed by 164 countries (not including the U.S.), the GCM affirms that “external forced displacement may result from” both “sudden-onset natural disasters” and slower-onset “environmental degradation.” [25] By doing so, it enables countries to utilize the Compact’s burden-sharing mechanisms to “[d]evelop adaptation and resilience strategies,… promote cooperation with neighbouring… countries,” and supply “humanitarian assistance” at “subregional and regional levels.” [26] However, as an international treaty, the GCM is not binding and it is unclear to what extent courts will adopt its novel understanding of “external forced displacement” in future cases. Nonetheless, the Crown Law Office of New Zealand noted that “[c]ourts may be willing… to take the Compact into account as an aid” when evaluating issues of “immigration legislation or policy.” [27])
In each instance of climate displacement-related litigation to date, the 1951 Refugee Convention definition of “refugee” has been applied to deny or reduce the likelihood of migrants obtaining legal protection. Therefore, the definition must be expanded or superseded on an international scale to ensure that “climate refugees” across the globe receive the support they need. Hopefully, creating a new “refugee” definition will pave the way for legal support for those internally displaced and international investment in resettlement efforts.
Edited by Radhika Goyal
Sources:
[1] Clement, Viviane, Kanta Kumari Rigaud, Alex de Sherbinin, Bryan Jones, Susana Adamo, Jacob Schewe, Nian Sadiq, and Elham Shabahat. “Groundswell Part 2: Acting on Internal Climate Migration.” Washington, DC: World Bank, September 13, 2021. https://openknowledge.worldbank.org/handle/10986/36248.
[2] Id.
[3] Podesta, John. “The Climate Crisis, Migration, and Refugees.” Brookings (blog), July 25, 2019. https://www.brookings.edu/research/the-climate-crisis-migration-and-refugees/.
[4] Gallagher, Sean, and Eleanor de Jong. “‘One Day We’ll Disappear’: Tuvalu’s Sinking Islands.” The Guardian, May 16, 2019, sec. Global development. https://www.theguardian.com/global-development/2019/may/16/one-day-disappear-tuvalu-sinking-islands-rising-seas-climate-change.; Ives, Mike. “A Remote Pacific Nation, Threatened by Rising Seas.” The New York Times, July 3, 2016, sec. World. https://www.nytimes.com/2016/07/03/world/asia/climate-change-kiribati.html.
[5] Id.
[6] AF (Kiribati) [2013] NZIPT 800413, New Zealand: Immigration and Protection Tribunal, 25 June 2013, 19. http://climatecasechart.com/climate-change-litigation/non-us-case/0907346-2009-rrta-1168/.
[7] Id at 1-3, 22.
[8] Id at 5-17, 46-55.
[9] AD (Tuvalu), [2014] NZIPT 501370-371, New Zealand: Immigration and Protection Tribunal, 4 June 2014, 37-38. http://climatecasechart.com/climate-change-litigation/non-us-case/in-re-ad-tuvalu/.
[10] Id at 9, 19-20, 23-26, 30.
[11] Id at 27-29, 32.
[12] Ioane Teitiota v. The Chief Executive of the Ministry of Business, Innovation and Employment, [2015] NZSC 107, New Zealand: Supreme Court, 20 July 2015, 2. http://climatecasechart.com/climate-change-litigation/non-us-case/ioane-teitiota-v-the-chief-executive-of-the-ministry-of-business-innovation-and-employment/.
[13] Id at 1, 4-5.
[14] Id at 6.
[15] Id at 11-13.
[16] UN Human Rights Committee Views Adopted on Teitiota Communication, CCPR/C/127/D/2728/2016, 16, (United Nations Human Rights Committee, 2019). http://climatecasechart.com/climate-change-litigation/non-us-case/un-human-rights-committee-views-adopted-on-teitiota-communication/.
[17] Id at 12, 16.
[18] Id at 5, 11-15.
[19] Id at 15.
[20] “Convention and Protocol Relating to the Status of Refugees.” United Nations High Commissioner for Refugees, 14. https://www.unhcr.org/protection/basic/3b66c2aa10/convention-protocol-relating-status-refugees.html.
[21] Ioane Teitiota, 11-13.
[22] “Convention and Protocol Relating to the Status of Refugees,” 36.
[23] Williams, Angela. “Turning the Tide: Recognizing Climate Change Refugees in International Law.” Law & Policy 30, no. 4 (2008): 502-29. https://doi.org/10.1111/j.1467-9930.2008.00290.x.
[24] Id at 517-20.
[25] “Global Compact for Safe, Orderly, and Regular Migration.” Global Compact for Migration, 13 July 2019, 9. See also Podesta and “Climate change and disaster displacement in the Global Compact on Refugees,” United Nations High Commissioner for Refugees. https://www.unhcr.org/5c9e13297.pdf.
[26] “Global Compact for Safe, Orderly, and Regular Migration,” 9.
[27] Hardy, Virginia, Victoria Hallum."Advice to Minister regarding Global Compact," December 2018, 2017. Crown Law Office, Ministry of Foreign Affairs and Trade, 2-4.