In the movie The Day After Tomorrow changes in ocean current circulation from global warming result in the northern hemisphere freezeing over and US citizens fleeing to Mexico in search of a warmer environment. In An Inconvenient Truth we are told the world is already too warm with rising sealevels now displacing some Pacific islanders. Meanwhile, in the real world, it seems there really is no such a thing as a climate change refugee …
The Refugee Convention establishes a procedure for States to determine whether the individual is entitled to the status of a refugee. Once status determination takes place, with health and security checks, if the individual is a refugee then he/she is entitled to the human rights specified in the Convention–such as access to health care, education, employment, housing, social security etcetera.
The main problem with trying to include people displaced by climate change within the definition in Article 1(A)(2) of the Refugee Convention is that such persons do not meet the requirements of the definition. To be a refugee, an individual must have:
1) crossed an international frontier–ie. be outside of his/her country of origin. If the individual remains in his/her country of origin, then the individual is an Internally Displaced Person (IDP) and not a refugee
2) “owing to a well-founded fear of being persecuted” –the person left his/her country of origin because of the fear of being persecuted –the person left or cannot return to his/her country of origin because of the fear of being persecuted
3) the persecution is for reasons of race, religion, nationality, membership of a particular social group or political opinion
4) the individual is unable or unwilling to avail himself of the protection of his country of origin–the main aim of the Refugee Convention was to attach an individual without the protection of a State to another State.
5) subject to cessation and exception clauses–mainly for war-criminals, serious criminals, and persons under the protection of another State/UN agency.
Since the definition of a refugee requires persecution for one of the five specified reasons (race etcetera), the indiscriminate nature of climate change means that people displaced by climate change are not refugees. The issue of how international law will resolve climate change displacement is only just emerging. However, the only academics that have written papers considering the issue are scientists without legal training, who generally don’t understand the definition of a refugee. No legal academics have written about the issue yet. However, Dr Jane McAdam, an expert in Refugee Law, has been getting increasing numbers of questions on this issue from Non-Government Organisations. Jane started the course ‘Forced Migration’ last year so that she could teach refugee law and consider whether it could extend to other circumstances where people are forcibly displaced, such as climate change, development induced displacement and internal displacement. Jane is also the director of the Centre for Climate Change in the Gilbert and Tobin Public Law Centre at the University of NSW.
While it is possible to open up negotiations for an extension of the Refugee Convention, through an Optional Protocol to vary the original Convention, there is significant resistance to doing this from the UN High Commission for Refugees and legal academics. Under International Law, States must consent to the obligations to be bound by them. At present it is unlikely that States will consent to an extension of their obligations to refugees in the current political climate, where most Developed States are actively pursuing policies to avoid responsibilities under the Refugee Convention.
The other alternative is for the negotiation of a separate treaty to specifically address the needs of people displaced by climate change. It is arguably preferable to adopt this approach, particularly considering the negative perceptions of ‘refugees’ in media discussions of immigration policy in Developed States (such as Europe, US and Australia). There is also the advantage of creating a definition that allows for arrangements to be made for resettlement before people are actually displaced by climate change, rather than persisting with the crossing an international border requirement.
It is also important to take into account that there were 9.9 million refugees in 2006. The vast majority of those refugees were in Developing States, such as Pakistan with 2.1 million Afghan refugees; and about 2 million Iraqi refugees in Iran, Syria, Jordon and Turkey. Since the international community has failed to equitably share the burden of refugees on Developing States, it is questionable whether increasing the numbers of people within the refugee definition will lead to durable solutions, such as resettlement in another State.