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Will refugees be protected from climate change?

Will refugees be protected from climate change?

This post follows up on episode 5 of the MissionCreep podcast.

You may remember hearing about a family of four from Tuvalu who fled their country, moved to New Zealand and applied for protected status or residency last year. They claimed that if they were returned to Tuvalu, their life would be endangered and they’d be subject to cruel, inhuman or degrading treatment. The family stated that they had no land or relatives in Tuvalu, that the father could not find a job there and that they had a lack of access to drinking water. The difference between this and many other asylum cases is that the main perpetrator wasn’t other people or groups; it was climate change and the resulting sea level rise.

The family’s claims about how climate change was affecting them garnered much media attention, as everyone gathered around to see if “climate change refugees” would be recognised by a legal tribunal for the first time. The court said from the beginning, however, that the Tuvalu family were not, in fact, refugees. Any harm they might experience as a result of climate change would not qualify them under the technical definition of refugee. In granting the family residency in New Zealand, the court cited other factors, basing the decision on humanitarian and discretionary grounds under a provision specific to New Zealand (and a few other countries). In the end, the case did not create a new precedent to herald in the new wave of climate change refugees.

The Tribunal’s decision was perhaps in part policy-based; if it were to recognise climate change refugees as a protected class in New Zealand, millions of people subject to the consequences of natural disasters could claim protection there. The Tuvalu family is not the first to flee their country due to the effects of climate change. Like many small island nations, Tuvalu sits just a few metres above sea level. Estimates suggest that if the current rate of sea level rise continues, Tuvalu will be underwater in 30 to 50 years–within many of our own lifetimes!

A sign in the island nation of Kiribati reads: "The highest point on South Tarawa 3 meters. Rising seas, drowning islands. Save these islands! Yes we can."
A sign in the island nation of Kiribati. Photo from Wikimedia Commons.

The prospect of disappearing is real for many other small island states as well–including the Maldives, Kiribati, the Marshall Islands and several Caribbean islands. In some larger land-locked countries, drinking water and food security are also at risk. Estimates show that 150 to 300 million people will be displaced due to climate change by 2050, the result of rising sea levels, floods, droughts, famine, hurricanes, increased desertification and the alteration of ecosystems.

The Tuvalu case did not create a favorable precedent for others fleeing the impacts of climate change, but it did highlight the lack of legal protection mechanisms for those individuals. Despite the large numbers of people fleeing their climates, the legal framework on refugees, namely the 1951 Refugee Convention and its accompanying 1967 Protocol Relating to the Status of Refugees, unfortunately does not provide any protection for victims of climate change.

Under these foundational documents, a refugee is defined as someone with a “well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion”. A refugee must have previously experienced some type of harm due to one of these protected characteristics. It also requires that this harm is inflicted by a person or group of people–a “persecutor”–who harmed or wished to harm the refugee.

Someone who may be harmed by the wrath of nature, as opposed to a “persecutor” in the traditional sense of the term, may not technically qualify.

A group of activists in the Marshall Islands holding a sign that reads "Get to work: 350 now!"
Environmental activists in the Marshall Islands campaign for clean energy. Photo from 350.org.

The narrow definition of refugee is not quite prepared for climate change, and limited international or national responses have emerged to address the issue. Major institutions such as UNHCR have not yet indicated an intent to protect climate change refugees, as it does not consider its mandate to include those protections. Likely, the agency is concerned about widening its mandate beyond its capacity.

One of the most promising developments is perhaps the work of The Nansen Initiative on Disaster-Induced Cross-Border Displacement. The initiative met a few weeks ago in Bangladesh to discuss regional solutions for climate change refugees. Later this year, the group will release recommendations drawn from this meeting and four regional consultations in areas of the world that are highly affected by climate change. Their recommendations will be one of the first major calls to action.

In the meantime, there is no international or national legal framework guaranteeing the protection of climate change refugees. Nonetheless, other nuanced areas of international law could apply to certain situations, and it will be interesting to see how these are applied. For example, a customary norm of international law, “non-refoulment,” may provide protection in certain cases, as under this norm, States may not send a person back to their home country where their life or freedom will be endangered. The non-refoulment provision is narrowly implemented at the national level, but nations may choose to apply it to climate change refugees. Protections for stateless people could also eventually apply to citizens of disappearing island states such as Tuvalu.

Nations have also implemented the 1951 Refugee Convention in varying manners that create legal loopholes through which climate change refugees may be able to seek protection. The Tuvalu family, for example, was given residency under New Zealand’s “exceptional humanitarian grounds,” an area of law that New Zealand and very few other governments recognise. Sweden and Finland in some cases grant asylum to people affected by natural disasters. The U.S. sometimes grants “temporary protected status” to individuals fleeing natural disasters, such as was granted to thousands of Haitians after the earthquake in 2010 and to Hondurans and Nicaraguans after Hurricane Mitch in 1998. Predictions show that the number of severe weather events such as hurricanes, floods and earthquakes will continue to increase, as will the individuals seeking protected status under these provisions.

At least these possible protections are something, but they are all temporary solutions and will provide inconsistent results for the millions of climate change refugees to come, who will require a more sustainable solution. Hopefully more workable precedents will begin to be set by others like the Tuvalu family, and motivate nations and international groups to work toward a real solution.

Featured image shows the coast of the island of Funafuti, Tuvalu. Photo from Wikimedia Commons.

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Alison is a U.S. attorney with a diverse background working in human rights issues in Southeast Asia, West Africa and Central America. Her repertoire includes land tenure, legal empowerment and aid, indigent defense and anti-corruption. She is currently in Miami adjudicating refugee and asylum claims and spending lots of time on the beach.

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