Climate Migrants: A legal vacuum and lack of political will for their protection

Paulina Astroza, Elizabeth Flores Gutiérrez

7 mins - 27 de Febrero de 2024, 07:00

As a society we are increasingly aware of the negative effects of climate change. We are living, suffering, and trying to adapt to them. Many of them are related to water scarcity and the alteration of natural cycles and phenomena, situations that are currently being discussed both nationally and internationally. However, there is another consequence of this climate crisis that is going almost unnoticed, perhaps because of the difficulty of studying it or because of the socio-political consequences that dealing with this issue would entail: we are referring to climate migrations

Climate change is expected to affect human migration in at least three ways: 
  1. Through the intensification of sudden and incremental natural disasters

  2. The adverse consequences of increased temperature and climate variability for livelihood systems, such as food security and human health

  3. Competition for natural resources, with effects on the security and peace of a community.
As an example of the magnitude of this phenomenon, we can cite the case of the many Pacific Island states whose sovereignty and existence is threatened by the progressive rise in sea level due to deglaciation and expansion of the oceans. In the Maldives, the highest point is 2.4 metres, while in Tuvalu it is 5 metres, and in the Marshall Islands 10 metres. The average elevation is much lower, being about one metre for the Maldives and Tuvalu and two metres for other low-lying atoll states. Tuvalu, among other islands, is thus expected to disappear within the next 50 years. Thus, the eventual uninhabitability of certain territories has already become an important policy issue for these countries, which are beginning to evaluate international migration as an adaptation measure.

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Briefly, food insecurity resulting from floods that destroy crops and contaminate freshwater reserves, droughts that make it difficult to maintain livestock and crops, and environmental degradation in general, produce migration both internally and internationally when the situation becomes particularly critical and state authorities are unable to mitigate the consequences. For this reason, developing countries are the main focus of this type of migration.

The legal problem here is that there is currently no legally binding instrument that addresses the issue of climate migration, leaving these migrants in a defenceless position.

If we turn to existing international normative bodies that address the issue of human migration (in this general sense), we find a series of obstacles in terms of their application to climate migrants.

Almost intuitively, one might think of the International Refugee Regime as a suitable response to this problem. However, looking at the 1951 Geneva Convention, climate migrants face a number of problems in its application, the main one being the strict definition of what is meant by “refugee” in the text. Its first article states that this norm was not created to accommodate environmentally displaced persons, and that none of its constituent elements recognise the climate factor as a motivating factor for the exodus or persecution. In addition to this, there is doubt as to who acts as the persecuting agent in these cases, since it cannot be the government of the country of origin, as they are not to blame for climate change and often seek measures to protect their population; blaming developed states is nonsense if refuge is sought in them, as well as being complicated to establish a causal link between the activity or omission of the state and the direct impact on the migrant’s country of origin; while blaming climate change itself is not viable as it does not generate a discriminatory impact in itself.

If we go to the Migrant Workers regime, some climate migrations could be included in situations where a family member is sent to work in another country as an adaptation measure, which could be a temporary solution that, however, does not address the underlying climate issue, handing the burden to the migrants themselves.

Another interesting question is what will happen with the eventual disappearance of island states that we have already discussed: what will happen to their nationals, will they lose their nationality and thus become stateless? This is another question that cannot be answered in international law, since until now a sovereign state has never ceased to exist due to the loss of its territory.

The universal system of human rights is a viable option, given that they are used over and above any circumstance and quality of the migrant, and therefore apply to this case in a kind of subsidiary protection. Thus, the cases that have been brought before national courts for climate migration in New Zealand and Australia have been based on violations of the fundamental rights of these migrants.

However, the problem of not regulating this issue internationally or turning a blind eye to it for other than humanitarian reasons lies in the possibility of using this phenomenon as a bargaining tool with the affected and most vulnerable countries in order to obtain some kind of advantage

A clear example of this already happening is the agreement signed at the end of 2023 by the Prime Minister of Tuvalu, Kausea Natano, and his Australian counterpart Anthony Albanese, in which they agree that Australia will offer residency to the 11,000 inhabitants of the island in the event of the worst predictions of disappearance. However, the rationale for this bilateral agreement is far from humanitarian, demanding as part of the negotiation that Australia have near absolute control over future defence pacts with other countries in the archipelago, given the larger country’s fears of Chinese military advances in the area.

Apart from this exception of a bilateral agreement, it is impossible to deny that there is an international legal gap on the issue and that the only option for this type of migrant so far is to appeal to the will of the states and judges of each country to interpret the existing migration conventions in a broad manner. However, in the actual cases that have been presented of climate migrants seeking asylum in another state, it can be seen that this willingness is currently scarce.

High expectations are raised by the consultation by Vanuatu, another island country, to the International Court of Justice to establish the legal obligations and consequences for those countries that, by their acts and omissions, have caused significant damage to the climate system and other parts of the environment, in relation to human rights. We hope that the Court will be able to clarify this legal vacuum and give hope to the thousands of people whose fundamental rights are affected by climate change on a daily basis. According to the UN’s own figures, this has only just begun...
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