A TERMINOLOGICAL ISSUE
Climate change, climate-induced, ecological, environmental migrants; or climate change refugees, ecological, environmental refugees … There is a long list of concepts throughout literature referring to the populations affected by consequences of climate change. Whatever the accompanying phrase is, the main problem lies in the use of the concept of migrant and refugee as interchangeable terms when they are not. On a simple terminological level, but always bearing in mind that reality is a much more complex scenario, the difference resides in the fact that ‘refugees are a special class of migrants who under international law deserve protection by their host state’. Hence, migrant is not a legal category and the term only labels people that leave their country of origin either by choice of necessity, however, refugee refers to legal status within the 1951 United Nations Convention framework.
In this way, and according to the working definition of the International Organization for Migration (IOM), environmental migrants are ‘persons or groups of persons who, for compelling reasons of sudden or progressive changes in the environment that adversely affect their lives or living conditions, are obliged to leave their habitual homes or choose to do so, either temporarily or permanently, and who move either within their country or abroad. On the contrary, the notion of climate refugees, or any other variant,does not exist under international law and, therefore, its use can lead to misconceptions or misunderstandings. Indeed, some organizations such as the United Nations High Commissioner For Refugees (UNHCR) and the IOM do not recommend using the term climate refugee. On the contrary, some authors claim talking about climate refugees is a compelling tool despite its legal inaccuracy. This article aims to make an introduction by capturing the essence of the debate around using the concept of refugee in the context of climate change because conceptualisation is central to how a phenomenon is approached.
A BRIEF REVIEW TO THE INTERNATIONAL LEGAL FRAMEWORK
The 1951 UN Convention and then the 1967 Protocol are the only international legal norms specifically applied to refugees. First, Article 1 of the 1951 UN Convention defines the term refugee as a person that, owing to a 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’. It is necessary to mention that neither the international refugee law nor international human rights treaties imply any entitlement for asylum for those who seek it even though they fulfil the conditions and, at the same time, they do not oblige states to grant asylum. Taking into account the post-World War II context in which this Convention was drafted is vital to understand its focus. Second, the 1967 Protocol removed the geographical and temporal restrictions of the 1951 Convention so it could be applied universally. The definition of the status of refugees remains untouched since then, and the UN has not expanded the definition to include those who are forcibly displaced, for example, due to the consequences of climate change. Indeed, later global level conferences, such as the Kyoto Protocol of 2005, the Paris Agreement in 2016, or the United Nations Climate Change Conference in Madrid in 2019 have failed to address the issue of those who are displaced due to the consequences of climate change.
HOW SHOULD CLIMATE MIGRANTS BE LEGALLY PROTECTED BY THE INTERNATIONAL COMMUNITY?
Since those who are forcibly displaced due to the consequences of climate change do not meet the criteria to be recognised as refugees before the law, climate migrants do not qualify for international protection in host countries in case they cross international borders. Indeed, most climate migrants are displaced within the borders of their country. The theoretical perspectives on how climate migrants should be protected can be divided into three depending on their approach to the role of the international legal framework, particularly regarding the UN definition of the term refugee mentioned above.
First, there are those rejecting the expansion of the definition to include climate migrants. They argue that climate migrants’ need for refugee-like protection is either exaggerated, politically motivated, and dangerous, indeed, they insist that changes in the Geneva convention-based definition would create confusion and would be seen as an excuse by many countries not to provide refugee protection. In this line, it is also argued that it is impossible to know and prove if climate change is the reason to migrate, so it would be pointless to expand the definition in this sense.
Second, there is a large group of scholars claiming that adapting to the already existing international legal framework could be an appropriate solution to address the different climate migration scenarios in the short term. For example, B. Felipe Pérez does a comprehensive review of the existing legal regimes that can protect climate migrants listing potentially applicable legal frameworks, such as the international human rights law, the international labour migration law, the international refugee law, the Guiding Principles on Internal Displacement and International law on stateless people. According to this author, those climate migrants crossing international borders are very likely to face ‘refugee-like situations’ and, therefore, extending the scope of the 1951 UN Convention is necessary to address the needs of these populations through legal protection, recognition, and the application of the principle of non-refoulement. However, relevant international organisations, including the UNHCR, refuse to open the debate to consider climate change as a basis for refugee status, and any attempt to claim refugee status grounded on the consequences of climate change has not prospered.
Finally, there are the ones that emphasize the need for a tailored and appropriate international legal recognition for climate migrants beyond the Geneva Convention which would indicate the global accountability and responsibility, acknowledge climate migrants as a ‘new group’ and offer resettlement solutions for these populations. In other words, creating a stand-alone refugee-like treaty to address climate-related migration properly.
Many authors underline that, despite the increasing need, neither an adaptation of the current international legal framework or the creation of a new one is likely to happen due to the little political will. Therefore, all this leads to the following question: how desperate do living conditions must be in climate-vulnerable regions to finally create a proper legal framework that will protect climate migrants?