A new paper on legal considerations for the international protection of people displaced from their homes by climate change and disasters has received little fanfare. But it marks an important step forward for an organization that has been hesitant to make stark pronouncements about climate displacement.
Published by the United Nations Refugee Agency, or UNHCR, in October, the paper does not seek ultimately to redefine international and regional law relating to protection of forcibly displaced people. However, it does highlight how provisions of the 1951 Convention Relating to the Status of Refugees — or “Refugee Convention” — regional refugee protection agreements, human rights treaties, and human rights law can and should be used to provide more robust protections for those displaced by climate change.
The paper opens the door for the protection of people displaced by climate in a variety of ways.
First, it argues that an assessment of refugee status under the Refugee Convention should not be interpreted narrowly based on the direct impacts of natural disaster — but that social and political considerations must also be taken into account. Importantly, it considers the Refugee Convention’s capacity to address protection for climate-displaced people even outside the context of “nexus dynamics” — or instances where climate change impacts intersect with violence and conflict in ways that give rise to credible refugee claims.
The UNHCR paper notes that the adverse effects of climate change are often worsened by factors such as poor governance, scarce natural resources, socioeconomic inequality, political and religious tensions, and xenophobia — many of which could give rise to claims of persecution.
This is only the first step in ensuring that protection for those displaced by climate change is real.
UNHCR also acknowledges that temporary protection may be insufficient if the country of origin is unwilling or unable to stabilize situations of disaster or adapt to climate change. In these cases, it suggests that displaced people should be able to apply for and receive international protection, whether asylum or another mechanism.
Second, the paper reinforces the relationship between climate change and human rights.
It makes explicit links to the recent Teitiota v. New Zealand case from January, heard by the U.N. Human Rights Committee. In its ruling, the committee found that Ioane Teitiota, an I-Kiribati national who applied for asylum in New Zealand due to climate change and was denied refugee status, would not face imminent harm if he were forced to return to Kiribati. However, the committee went on to acknowledge that the effects of climate change may be more impactful in 10 to 15 years and this assessment may change in future cases.
The legal considerations paper further supports this argument, pointing to a range of human rights that could be negatively impacted by climate change and disasters, including “the right to life; physical integrity; an adequate standard of living; health, water and sanitation; and self-determination and development.” It also notes that those risks could “amount to persecution within the meaning of the 1951 [Refugee] Convention” and that the adverse impacts of climate change “may strengthen rather than weaken the evidence” of a fear of persecution.
The UNHCR legal considerations paper also reaffirms the ability of regional refugee definitions, including the 1969 Convention Governing the Specific Aspects of Refugee Problems in Africa and the 1984 Cartagena Declaration on Refugees, to provide protection for people displaced by climate change and disaster in regional contexts.
Both of these regional frameworks have established a more expansive definition of “refugee,” which includes any individual who flees due to “events seriously disturbing public order.” UNHCR explicitly outlines that people displaced by the adverse effects of climate change and disasters can be entitled to protection under these regional refugee criteria.
So what does this mean?
Most importantly, it demonstrates that UNHCR is evolving and taking climate change seriously as a driver of displacement. This is a good thing. Normative and legal progress will only be made if UNHCR takes on a leading role and translates this guidance to national governments on the ground.
UNHCR can and must ensure that this does not continue to be a theoretical discussion at the international level but explore partnerships with governments willing to be bold enough to follow such guidance and establish case law. This work should be done in close partnership with civil society organizations working on refugee issues on the ground so that refugee status determination and practice are pushed in the right direction and are in alignment.
Additionally, it shows that national governments should start getting serious about addressing climate change at home.
By clearly recognizing that protection outside one’s country of origin should be a viable option for people displaced due to climate change and disasters when the country of origin is unwilling or unable to stabilize or adapt, UNHCR has implicitly called for states to take anticipatory action to prevent adverse circumstances and to respond to them. This means that donors concerned about mass movement related to climate change should increase funding and targeted technical support for climate change adaptation and resilience efforts in particularly vulnerable countries.
UNHCR’s legal considerations paper is novel in many ways. We must applaud it — but we also must get cleareyed about its implications. This is only the first step in ensuring that protection for those displaced by climate change is real.
Valentina Canepa contributed to this opinion piece.