It is estimated that 200 million people will

It is estimated
that 200 million people will have to leave their home before the year 2050 due
to climate change. Recent figures suggest that this new generation of forced
migrants will “dwarf the number of traditional refugees”.1 This
mass movement of persons could lead to legal and humanitarian crisis, that if
not catered for, will have long lasting effects on the international community.

This is the first time in history that states will have adequate time and resources
to research and prepare for a problem of this scale. The strongest argument suggests
that in its current state, the current international legal frame work
(including the 1951 Refugee Convention2)
fails to afford any protection to persons displaced due to environmental
disasters and climate change. Due to the difference between the traditional
refugee, and those fleeing these conditions, it is important to consider how
you should define this group of persons, as well as how you should afford them
the relevant protections. The strongest argument suggests that extending the
Convention to include this new form of migrant would be counterproductive and
unsuccessful. Thus, we should protect persons fleeing environment
disasters and climate change through taking an “innovative, international and
interdisciplinary approach”.3
This focuses on states taking shared responsibility for the effects of climate
change and grants the migrants a legal right to inhabit a country.

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                  With
the problem being on such a huge scale, it is important to determine specifically
the group of persons that are to be protected and thus should be included in
the scope of the relevant law. Firstly, it should be considered that the idea
of populations migrating due to environmental change is not a new idea. People have
historically moved due to environmental factors such as the depletion of a
natural resource. This means it is important to separate the traditional group
of migrants who move due to social reasons from the newly emerging group of
people fleeing due to climate change. Similarly, McAdams
discusses the theoretical impossibility of differentiating between those who ‘deserve’
protection and those undergoing mere economic hardship4 as
their conditions will be near identical. Moreover, as
Myers5
argues, the overall effect of climate change is far too wide-reaching for us to
simply define those affected as ‘refugees’. The strongest argument suggests
that states should take into account the actual scientific evidence that has
been gathered. For example, states should use real time information to discuss
what group of people are affected by climate change, and come together
internationally to identify them in their own group. This is furthered by
examining the issue of water scarcity alone, as this could affect an eventual
400 million people, causing them to migrate from their place of birth.

Therefore, if an umbrella term is placed over this number of persons, it could
easily lead to an unmanageably large group. Thus, it must be considered whether
persons having to flee due to a secondary effect of climate change, such as the
loss of farm land due to flooding leading to famine, should be included in any
definition of the group. Williams argues that this group of migrants should be
included within the proposed definition as it is generally a “progressive degradation
of environmental resources”6
that causes these persons to flee. Many writers believe the term ‘environmental
refugee’ would be suitably restrictive for this purpose, as first argued by
McCue7
and consistently referred to since. However, it should be
open to debate whether the definition allows for such persons to return home if
the environmental situation improves. An example of this is the yearly flooding
in Bangladesh that frequently forces millions to migrate for nearly a third of
the year.8 Finally,
it is important to link the human interference through
emissions and the effect that it has on climate change, which then leads to an
increase of environmental disasters. Many arguments in this subject rely wholly
on the idea that the chance of these incidents occurring would be very small
had human interference not occurred. Scott uses scientific reports to assert
that there are “certain extreme heatwaves…that climate change was the
predominant cause of”.9 This
suggests that the frequency of environmental disasters can, on a basic level,
be increased due to human interference through climate change. In conclusion,
it is clear that there is a need for a legal definition of the group that will
be prescribed rights, however, the difficulty in restricting the numbers within
this group is significant and problematic when creating any legal precedent.

 

                  Some argue that the group of persons fleeing
environmental disasters and climate change should be protected in the same way as
the traditional refugee. Despite this, the Refugee Convention10
provides the definition of a refugee to be someone who is part of a specific
social group with a ‘well-founded fear of facing persecution’. Due to this criterion,
it is clear that this definition would not be suitable in its current form for
the encompassing of persons fleeing environmental disasters or climate change.

In sum, the current system of law provides marginal to no protection to the
aforementioned persons. Currently, the main responsibilities are with the home
country, which many believe “contradicts the global responsibility”11
for climate change and its effect on the population. Williams furthers the importance of
this when she argues that “given that environmental change cannot meaningfully
be separated from political and economic changes”,12
we should be protecting the moving persons as a new form of migrant rather than
deeming them to be simply refugees. Further, this
form of protection is unlikely to be successful as the international outlook on
the refugee crisis has been a negative one due to its political influence. Many states have been resistant to allow
migration into their country, doing so through a variety of policy changes that
create a more rigid framework and thus reducing net migration. However, some
states have increased their allocation of refugee status due to major events. This
includes Germany, who throughout the Syrian crisis have accepted 800,000
immigrants, the equivalent of 40% of Europe’s intake. The disparity of
immigration levels throughout states furthers the point that the current
refugee system would unlikely be able to afford the relevant rights.

 

It is clear that the opening of the definition of refugee to include
people fleeing these environmental reasons will potentially overload the
institutional capacity.13 This
means that the current regimes are not suited to adequately protect the millions
of potential emerging migrants. Docherty and Giannini go on to argue that there
is a major void in the framework with regards to social and policy factors
which would severely limit its effectiveness if over-exposed. Finally, for an
effective Convention to work, it is of the essence that all participating
states accept responsibility for climate change and its effect on the
environment across the world. This is unlikely to occur in a majority of states
due to them boasting disproportionate emission levels, thus having a differing
impact on the environment. Therefore, it is clear that no protection will be
able to be given through the current Convention, and by altering to include
environmental refugees, it would be fundamentally flawed and inefficient.

 

                  Some also argue in favour of an
international protection regime through the use of current human rights
principles. Scott describes this potential process14 when
he examines the use of Article 3 of the European Convention on Human Rights within
a few cases. He generalises the application of the Convention rights and
summarises the protection they could give. He provides that the Court is yet to
address Article 3 in this context, but due to its fundamental importance within
the Convention they have “reserved for itself sufficient flexibility”15
to determine its relevant use. Thus, the use of Article 3 will rely heavily on
the Courts next judgement addressing this issue, especially as the Convention
is a to be treated as a living instrument. Despite the lack of relevant case
law, it is clear that when the environmental disaster cannot be linked to
climate change then human rights can rarely by used. Therefore, the reliance on
Article 3 at this stage would be unwise unless significant further developments
open up its use for all environmental disasters or put in place an institution
dedicated to scientifically researching the causes of the specific cases.

 

                  The strongest argument suggests that we should
protect environmental refugees through the creation of a new international
system involving the co-operation of states in order to afford a set of general
rights. McAdams argues that the best response to this mass movement would be a
form of ‘international protection paradigm’16,
one which, like refugee law, requires states to not send people back to
climate-related harms whilst granting them legal status. Meaning This means
that persons affected will have a legal right to occupy a country in order to
escape whatever harm the environmental disaster or climate change has caused.

However, this idea can be romanticised, with many disagreeing with the
potential effect of any internationally developed principles which have to be
backed by political will to be successful. For any instrument to successfully
afford rights to the relevant persons, it is clear it must contain a variety of
provisions. These are suitably summarised by Docherty and Giannini to be
broadly defined as ‘guarantees of assistance, shared responsibility and administration’.17 Generally
it must guarantee basic assistance to the class that it defines throughout the
process, whilst ensuring the maintenance of basic civil and political rights,
as well as extending to the economic, social and cultural rights which are
needed for survival in new environments. Further, any legal instrument should
contend to oblige states to contribute humanitarian aid in the event that it is
needed. Docherty and Giannini contend that this aid should be given ‘to varying
degrees’18
dependant on contributory factors. A system is contained within the Convention
of Cluster Munitions,19 in
which the interference by the state is required when necessary on grounds to
provide social and economic inclusion. This argument is strong as it would
require states to intervene when they are required to. However this would
require great amounts of administration. For any instrument to have any real
impact on the affording of rights on a large group of persons requires an
agency to monitor the human rights protections and humanitarian aid program. Moreover,
it is suggested that the institution should create a ‘global fund’ responsible
for the collection, allocation and distribution of monies throughout the
relevant organisations. This is vital as it would allow states to pay a
standard amount to the body in order to protect the relevant persons throughout
the process, rather than pay on a case-by-case basis that would be ineffective.

Furthermore, there should be an agency established to co-ordinate the
implementation of the instruments provisions. It is noted that this body will
be specifically useful if it shadowed the form of the UCHCR but with specific
provisions tailored towards climate change. The strongest argument suggests
that this should be implemented in order to deal with migration caused by environmental
disasters and climate change, as it will afford the relevant persons a legal
right to habit a safe environment whilst also allowing the institution to
monitor the process throughout.

 

                  International protection
relies heavily on those contributing to accept that they are in part
responsible for the outcome of their actions. In this scenario, it asks the
states to accept that they have contributed to climate change, and through this
admittance they will accept their positive obligation to act when they are
required. This shared responsibility should engage every state, since “climate
change is international in origin”20
so should it be in solution. Once this has been established, the most likely to
be successful method of doing so is to distribute the responsibility to a
variable degree dependant on the states actual contribution. As Docherty and
Giannini state, it should create ‘multiple flows of assistance’21
which outline exactly who, when and what assistance should be given. This is
vital to the effectiveness of any new instrument as the common debate over
disproportionate contributions to climate change have led to a variety of
states refusal to acknowledge their impact on the persons fleeing.

 

                  In conclusion, the strongest
argument suggests that international protection should be granted in full to
the persons forced to flee due to climate change and environmental disasters. However,
the essence of the question revolves around the ability to differentiate between
persons who are displaced solely due to climate change and environmental
disasters, and those who migrate due to economic hardship.  The extension of the current Refugee
Convention would lead to many complications and is unlikely to be accepted on
an international scale due to the inference of the many new refugees being
created. However, any successful affording of protection by states requires
each participating state to accept shared responsibility for a portion of the
effect of climate change. If this aim is considered achievable it should be
noted that due to this being the first time that such a large migration of
persons can be predicted and prepared for. The complicated web of institutions
proposed by Docherty and Giannini would lead to the most suitable affording of
rights to the relevant persons.

1 Bonnie Docherty and Tyler Giannini,
‘Confronting a Rising Tide: A Proposal for a Convention on Climate Change’
2009 33(1) Harvard Environmental Law Review 349-403

2 UN High Commissioner for Refugees (UNHCR),
The 1951 Convention Relating to the Status of Refugees and its 1967 Protocol,
September 2011, available at: http://www.refworld.org/docid/4ec4a7f02.html
accessed 14 January 2018

3 Bonnie Docherty and Tyler
Giannini, ‘Confronting a Rising Tide: A Proposal for a Convention on Climate
Change’ 2009 33(1) Harvard Environmental Law Review 349, 350

4 Jane McAdams, ‘Swimming against the Tide:
Why a Climate Change Displacement Treaty is Not the Answer’ 2011 23(1)
International Journal of Refugee Law, page 13

5 Norman Myers, ‘Environmental refugees: a
growing phenomenon of the 21st century†’ 2002 357(1) Philosophical
Transactions of the Royal Society of London B 609–613

6 Angela Williams, ‘Turning the Tide: Recognizing Climate Change
Refugees in International Law’ 2008 30(4) Law &
Policy 506

7 Gregory Mccue, ‘Environmental Refugees:
Applying International Environmental Law to Involuntary Migration’ 1994 6(1)
Georgetown International Environmental Law Review 90-151

8 Clark Gray and Valerie Mueller, ‘Natural disasters
and population mobility in Bangladesh’ 2012 109(16) Proceedings of the National
Academy of Sciences of the United States of America 6000-6005

9 Matthew Scott, ‘Natural Disasters, Climate Change and
Non-Refoulement: What Scope for Resisting Expulsion under Articles 3 and 8 of the
European Convention on Human Rights?’ 2014 26(3) International
Journal of Refugee Law 404, 421

10 Matthew Scott, ‘Natural Disasters, Climate Change and
Non-Refoulement: What Scope for Resisting Expulsion under Articles 3 and 8 of
the European Convention on Human Rights?’ 2014 26(3) International
Journal of Refugee Law 404, 421

11 Frank Biermann & Ingrid Boas, ‘Protecting
Climate Refugees: The Case for a Global Protocol’ 2008 Environment: Science
and Policy for Sustainable Development, 50(6), 8-17

12 Angela Williams, ‘Turning the Tide: Recognizing Climate Change
Refugees in International Law’ 2008 30(4) Law &
Policy 509

13 Bonnie Docherty and Tyler Giannini,
‘Confronting a Rising Tide: A Proposal for a Convention on Climate Change’
2009 33 Harvard Environmental Law Review 349, 359

14 Matthew Scott, ‘Natural Disasters, Climate
Change and Non-Refoulement: What Scope for Resisting Expulsion under Articles 3
and 8 of the European Convention on Human Rights?’ 2014 26(3) International
Journal of Refugee Law 404-433

15D.

v. the United Kingdom (1997) 30240/96 (ECHR, 2 May 1997)

16Jane McAdams,
‘Swimming against the Tide: Why a Climate Change Displacement Treaty is Not the
Answer’ 2011 23(1) International Journal of Refugee Law 1, 4

17Bonnie Docherty
and Tyler Giannini, ‘Confronting a Rising Tide: A Proposal for a Convention on
Climate Change’ 2009 33((1)) Harvard Environmental Law Review 349, 373

18Bonnie Docherty and Tyler Giannini,
‘Confronting a Rising Tide: A Proposal for a Convention on Climate Change’
2009 33((1)) Harvard Environmental Law Review 349, 378

19 Article 4, Convention on
Cluster Munitions

20 Bonnie Docherty
and Tyler Giannini, ‘Confronting a Rising Tide: A Proposal for a Convention on
Climate Change’ 2009 33(1) Harvard Environmental Law Review 349, 382

21 Bonnie Docherty
and Tyler Giannini, ‘Confronting a Rising Tide: A Proposal for a Convention on
Climate Change’ 2009 33(1) Harvard Environmental Law Review 349, 384