The 2021 World Bank report warns that without early climate action, climate change could force 216 million people across six world regions to move within their countries by 2050. The current trend of internal displacements also confirms this estimate. According to the Internal Displacement Monitoring Center, disasters triggered more than 60 percent of internal displacements recorded worldwide in 2021, while more than 94 percent resulted from weather-related hazards. Despite the increasing number of so-called climate refugees, legal proposals advanced so far, including multilateral treaties, are seemingly being disregarded by the international community. Since states have the power but not the interest in recognizing climate refugees, alternative actors should be considered to provide feasible solutions to this growing problem.
A Torrent of Trouble without Legal Solutions
On February 14, 2023, UN Secretary-General António Guterres advocated for urgent action to combat sea level rise. As he recalled in his speech, “for the hundreds of millions of people living in small island developing states and other low-lying coastal areas around the world, sea-level rise is a torrent of trouble” that will lead to “a mass exodus of entire populations on a biblical scale.”
Although this discourse reflects a security narrative on climate refugees that has been partially dismantled by scholars in the field over the last decade, it is a fact that the number of people on the move or displaced in the context of climate change is growing without legal solutions able to protect their human rights. In Pakistan, heavy floods destroyed basic infrastructure and caused the displacement of 33 million people in 2022, leaving them without legal protection. The reasons for this protection gap are numerous; some preliminary clarifications over the nature of climate migration and displacement are necessary before investigating the shortcomings in international law.
To begin with, climate migration is a multicausal and heterogenous phenomenon. This means that people might decide to move for a range of factors, such as economic, social, demographic, political, and environmental. Thus, identifying which factor is key in determining human mobility is far from straightforward. Not only is proving the causal link between migration and environmental factors a challenging issue for legal scholars, but attributing the proper legal category also depends upon the type and severity of environmental disruptions. Indeed, different climate migration patterns might require using different legal categories and terminology. For example, sudden-onset events like storms, floods, or hurricanes often leave inhabitants with no choice but to leave. These negative short-term impacts make large-scale displacement the most common scenario, so the proper legal category to use is “Internally Displaced Persons” (IDPs). By contrast, slow-onset events, such as desertification, drought, and groundwater and soil salinization offer more options. People might opt for anticipatory movements or decide to wait and see before leaving their home countries. Since their movement is voluntary, they are classified as “migrants.” When the environmental degradation at stake makes the country of origin uninhabitable and movement is permanent up to the form of exile, scholars might use either the category of “refugees” or “stateless.”
Given the complexity of human mobility in the context of climate change and disasters, it is very unlikely that one single term can accommodate all these scenarios. Not surprisingly, more than twenty labels and corresponding definitions have been provided by scholars so far, and none have been taken up as a common working definition. Such semantic chaos and conceptual unclarity will not facilitate agreement on a legal definition. Nor does it help provide reliable data, since information can vary significantly depending on the selected definition. As such, it is no wonder that legal proposals for introducing a stand-alone universal treaty ultimately derail.
States are also reluctant to start negotiations for a new legally binding treaty. Introducing a new category of refugees would force states to provide them with assistance, relocation, and resettlement, while they are already facing difficulties in managing “political” refugees, especially after the outbreak of the war in Ukraine in 2022. In this regard, security narratives that do not disentangle the complexity of human mobility have not helped. Indeed, the majority of people displaced in the context of climate change and disasters do not cross the border and mostly become IDPs, so broadening the definition of a refugee would not be as dramatic as states might think.
Climate action is ever more urgent to protect the human rights of the most vulnerable groups. Data shows that women and children are the most affected by disasters and impacts of climate change, as they are up to fourteen times more likely to be killed than men by a climate disaster, such as a hurricane, typhoon, cyclone, or flood. Given the lack of feasible legal solutions, such as a multilateral treaty, are there any other strategies to cope with this issue?
Who Should Take Care of Climate Refugees?
An alternative pathway sometimes overlooked by scholars and practitioners is to consider subjects other than states. Although the most obvious solution to fill a legal gap is creating a new law or treaty, it is not the only option. As another possibility, scholars and activists should consider unlocking the creative powers of judges through climate change litigation, as such individuals can provide a broader interpretation of the term refugee. When people’s human rights are at risk upon returning to their home countries, they should receive international protection regardless of whether they are considered “climate” or “political” refugees. Whether because of wars, persecution, disasters, or environmental disruptions, people who find themselves in the same situation of vulnerability should be treated alike. In this view, judges might invoke both the principle of formal justice and the principle of non-refoulement. The first principle establishes that if two cases are relevantly similar, they ought to be treated alike. The second enshrines that no state shall repatriate a refugee if his/her life is at risk or threatened upon return. Further, judges might help sharpen the unclear figure of climate refugees by evaluating on a case-by-case basis, thus setting the threshold for justifying international protection to people on the move in the context of climate change and disasters.
Scholars and activists could also consider non-state actors working on the frontlines of disasters. Non-state actors, such as non-governmental organizations (NGOs), civic associations, entities like the International Committee of the Red Cross and Red Crescent Movement (ICRC), and faith-based organizations might complement judges’ creativity in sharpening the understanding of climate refugees as a distinct social group while undertaking trans-local policies and climate actions to resist or adapt to environmental disruptions.
During the pandemic and past environmental disruptions like Hurricane Katrina, we saw how NGOs were crucial in reaching the most vulnerable groups. Irregular migrants and LGBTQIA+ migrants, for example, usually receive scant support from the state and are better rescued and assisted by local associations or NGOs. In this view, non-state actors can better implement tailored policies for accommodating different forms of vulnerability at the individual and community levels. Such policies include first emergency response, disaster relief, and community-based planned relocations.
Funding diversification and an enhanced capacity to influence global policy within the hybrid architecture of the Paris Agreement are crucial steps to increasing the power of non-state actors. In the current global climate governance system, non-state actors are invited to act both as watchdogs of the nationally determined contributions (NDCs) and as governing partners by scaling up their climate actions to be collected and shared in the Non-State Actor Zone for Climate Action platform (NAZCA) or through the Lima–Paris Action Agenda (LPAA). Accordingly, they may help ignite judges’ creativity through climate change litigation and pursue climate actions on their own, building cross-border networks with peers around the world and partnerships with international organizations, especially in the lack of states’ initiatives. In doing so, they will contribute to the establishment of alternative governance systems beyond the state, which might be more successful in dealing with trans-local climate migration and displacement. Indeed, these are more likely to occur in regions particularly vulnerable to the impacts of climate change (the so-called climate hotspots), which rarely coincide with national borders.
Recent initiatives from the United Nations Framework Convention on Climate Change (UNFCCC) Task Force on displacement (TFD) and the International Organization for Migration (IOM) Division on Migration, Environment and Climate Change (MECC) demonstrate the potential, transformative role of non-state actors. In particular, the MECC has been the first institutional setting entirely dedicated to human mobility climate-related issues. Since its creation in 2015, the MECC has strengthened its cooperation on cross-cutting issues with all the IOM’s departments (especially with the IOM gender unit) while collaborating with external actors such as other intergovernmental organizations (IGOs), non-governmental organizations (NGOs), and academics (e.g., Georgetown University). The 2021 launch of IOM’s ten-year Institutional Strategy on Migration, Environment and Climate Change 2021–2030 makes the MECC a promising alternative system of governance to explore the role of non-state actors.
With an even more ambitious plan and funding, the 2015 UNFCCC TFD has succeeded in bringing together the same task force of IGOs, NGOs, international humanitarian organizations, existing bodies, expert groups, representatives of the civil society, the Platform on Disaster Displacement, and the Executive Committee of the Warsaw International Mechanism for Loss and Damage on the ground that no organization alone has the necessary sets of expertise to address the complexity of human mobility in the context of climate disasters. As the UNFCCC TFD explicitly includes the perspective of the least developed countries, it is worth examining the specific contributions of non-state actors operating in these countries.
An outstanding issue in my research on this topic is the key role of non-state actors in transforming these anticipatory, cross-governance models into an “institutional home” aimed at orchestrating relevant actors in the field of migration and displacement to anticipate and address disasters, large-scale displacements, and human rights violations of the most vulnerable groups through an environmental justice and gender-sensitive approach. Scholars have yet to comprehensively address climate-induced migration through either of these lenses, offering a potential avenue for further assessment of the power of non-state actors.
The success of these initiatives in paving the way for the recognition of climate refugees will largely depend on how well non-state actors defend the human rights of the most vulnerable groups. To this end, non-state actors should cooperate as trusted partners on state-led actions, influencing agenda-setting, the decision-making process, policy formulations, and implementation of alternative policies when states fail to protect the human rights of the most vulnerable.
Security narratives have not persuaded states to create multilateral treaties that recognize so-called climate refugees. By ignoring the complexity of human mobility and the empirical reality that most of those displaced by environmental disruptions do not cross the border, states are reluctant to broaden the definition of a refugee. Given their unwillingness to fill this legal and protection gap, the question remains unresolved, and the number of IDPs in the context of climate change and disasters is increasingly growing. As a result, alternative solutions include spurring judges’ creativity through climate change litigation and strengthening non-state actors’ capabilities in taking climate actions in the frontline of disasters and establishing alternative systems of governance beyond the state. In particular, non-state actors’ will be pivotal in promoting and incorporating an environmental justice and gender-sensitive approach into policies advanced by anticipatory, cross-governance models such as the MECC and UNFCCC TFD. These strategies will sharpen the unclear identity of climate refugees while improving tailored policies to address different vulnerabilities within climate hotspots.
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Francesca Rosignoli is the Maria Zambrano postdoctoral fellow at the University Rovira i Virgili in Tarragona, Spain. Her research interests include climate-induced migration, environmental justice, global environmental governance, climate change, and collective capabilities. Her current research focuses on the role of gender and justice in climate-induced migration. Her latest monograph, Environmental Justice for Climate Refugees, was published by Routledge in May 2022.
Image Credits: The African Union Mission in Somalia; rawpixel