Climate Change Refugees in the Time of Sinking Islands.

• Author: Steffens, Jane

TABLE OF CONTENTS I. INTRODUCTION 729 II. BACKGROUND 731 A. The Relationship between Climate and Human Migration Patterns 731 1. Understanding Causes of Climate Change Migration 731 a. Sea Level Rise 731 b. Water Availability 732 c. Extreme Weather Events 733 2. Non-Environmental Factors as an Intersectional Concern 734 B. Typology of Climate Migration 736 1. Migration as a Form of Adaptation 736 2. Internally Displaced Peoples and Cross-Border Displacement 736 3. Voluntary and Forced Migrants, Both Temporary and Permanent 737 C. Case Study: Small Island Developing States 738 D. Governance of Climate Change Refugees and Divisions within the Global Community 740 1. Human Rights Regime 740 a. 1951 UN Geneva Convention Relating to the Status of Refugees. 740 b. Office of the UN High Commissioner for Human Rights... 741 c. Advisory Group on Climate Change and Human Mobility 742 d. UN High Commissioner for Refugees 743 2. Environmental Regime 743 a. Cancun Adaptation Framework, 2010 744 b. Warsaw Mechanism, 2013 744 c. Paris Agreement 745 d. Intergovernmental Panel on Climate Change 746 3. Other Notable Developments 746 a. The Nansen Initiative 746 b. International Organization for Migration 748 c. New Zealand Proposal 748 III. ANALYSIS 749 A. Obstacles to A Meaningful Resolution 749 1. Violence as a Collateral Impact of Climate Change Migration 749 2. Political Barriers 751 a. Lack of Political Will 751 b. Fear of Regression 752 c. Asylum Applications 753 3. Analyzing the Scope of the Problems 754 B. Challenges for International Law 755 1. Reconciling Separate Legal Regimes 755 2. Problematizing the Use of Inconsistent Terminology 757 3. Problems with Expanding the Current Legal Framework of the Geneva Convention 758 4. Problems with a Universal Treaty 759 5. Problems with Soft Law Solutions 760 IV. PRIVATE CLIMATE-GOVERNANCE INITIATIVES 761 A. The Changing Landscape Allows for Private Governance Initiatives 762 B. Examples of Current Private-Public Initiatives ... 763 1. Projects Preventing the Displacement of Vulnerable People 763 2. Projects Helping Displaced Peoples 764 3. Pressure from Shareholders, Investors, and Employees 765 C. Potential Private-Public Partnerships for the Future 767 1. Infrastructure and the Housing Crisis 767 2. Climate Legacy Registration 767 3. Man-Made Island Colonies 769 V. CONCLUSION 771 I. INTRODUCTION

It is indisputable that we are in the throes of large-scale climate change. (1) An astonishing 2 billion people could become displaced from their homes by the year 2100 due to climate change--related rising ocean levels. (2) Thousands of others flee their homes in the context of slow-onset hazards such as droughts. (3) When considering population size, in Vanuatu and Tuvalu, Cyclone Pam displaced 55 and 25 percent of the countries' populations, respectively. (4) Antigua and Barbuda had approximately ninety-seven thousand residents before Hurricane Irma, most of whom are now living in third-party countries. (5) A CNN report in mid-September stated that for the first time in three hundred years, not a single person was living in Barbuda after the hurricane. (6) The island was virtually destroyed and its surviving residents relocated abroad. (7) The term "climate change refugee" is often used in the media to define a person displaced by disasters like those mentioned above. (8) However, international law does not adequately address this concept, resulting in a legal vacuum when considering the protection and recognition of those displaced by climate-related events. (9)

Environmental phenomena, compounded by other factors, can create situations of vulnerability that ultimately result in human migration. (10) In its first assessment report, the Intergovernmental Panel on Climate Change (IPCC) predicted that the greatest single impact of climate change may be on human migration. (11) Although this prediction was made as early as 1990, the international community has been painfully slow to react. (12) Both sudden and slow-onset climate-related events, combined with rapid urbanization, population growth, and pre-existing social vulnerabilities and poverty, are likely to increase displacement and migration in the future. (13) While the international community has already begun addressing some aspects of disasters, climate change, and human mobility, (14) in order to really make progress, it is essential to bring together different strands of the discourse to develop a comprehensive response that also anticipates future challenges associated with climate change.

Part II of this Note discusses the causes, effects, and problems associated with climate-induced migration, along with the gap in current international law. Part III addresses the obstacles to a meaningful resolution, along with the challenges for international law. Part IV introduces private governance initiatives as an effective instrument that can be utilized by the international community.

2. BACKGROUND

   1. The Relationship between Climate and Human Migration Patterns

      1. Understanding Causes of Climate Change Migration

         The UN has identified sea level rise, water availability, and extreme weather events as three of the main climate change issues that affect migration. (15) These climate change events can cause a multitude of both short-term and long-term consequences that may induce an individual to migrate. (16) Such consequences include: loss or reduced habitability of housing; loss of living resources; reduced land productivity; lack of food, energy, and/or water security; and loss of social and cultural resources. (17)

         1. Sea Level Rise

            Sea level rise plays a unique role in the climate change context because it is both a long-term, gradual process and a contributor to storm surges and flooding. (18) Predictions of climate change migration numbers from coastal regions are often difficult to estimate because the numbers will depend on the response capacity of communities and governments through a range of options, such as increased protection of infrastructure, modification of land use, construction technologies, and, most pertinent to this Note, planned relocation. (19)

            In the case of rising sea level, the number of people forced to move will depend on adaptation initiatives as well as wider national planning strategies. (20) For example, sea level rise can result in degradation such as coastline erosion, which some countries proactively mitigate through sea walls and other man-made barriers. (21) Without such planning strategies in place or the resources to execute them, individuals are more at risk of climate-induced migration. (22) One major obstacle to creating such planning mechanisms, however, is the difficulty in predicting both the effects of sea level rise and the phenomenon of sea level rise itself. (23) For example, uncertainty regarding the extent of changes in rainfall patterns and disaster prediction are serious limitations for any realistic long-term assessment of the link between sea level rise and migration. (24) At the same time, is it important to understand migration as just one tool in the toolkit that can be used to adapt to sea level rise. (25)

         2. Water Availability

            Freshwater availability will continually decrease, affecting up to 1 billion people in Asia by 2050. (26) The relationship between drought and cross-border migration is extremely complex and involves analysis of many factors. In some regions, water availability may only lead to internal movements. (27) Even among regions where water availability may result in cross-border migration, water availability statistics are often complex and confusing to untangle for lawmakers attempting to address the problem. (28)

            Many figures assessing water shortages include in their counts people living in areas of risk, but not necessarily those directly affected by water shortages. (29) For example, there is case-specific evidence of countries with plentiful water resources where poor households do not have adequate access to affordable water, and countries with scarce water resources where poor households are comparatively well served. (30) Furthermore, even if water availability seems like the main cause of migration, other intersectional concerns may be the driving factor in an individual's choice to migrate. (31) Anthropological research from the late 1990s in northern Mali found that up to 80 percent of households interviewed had at least one migrant member, but this high level of mobility was actually related to economic opportunities and the need to diversify income sources rather than the direct consequence of desertification. (32)

         3. Extreme Weather Events

            Common extreme weather events include floods, hurricanes, and landslides. (33) These events are well publicized in the mainstream media because they are sudden and often leave displaced people extremely vulnerable. (34) One might lose his or her housing due to an extreme weather event like river or sea flooding or mudslides. (35) Migration as a result of extreme weather events is the easiest type of climate-induced migration to address, in part because the current legal framework of the Geneva Convention could theoretically be stretched to include those displaced by environmental disasters, but also because the link between extreme weather events and migration is politically palatable and easier to identify than slow-onset climate events. (36)

            After an extreme weather event, a large outpouring of climate change migrants typically occurs, along with a strong call for a political response to accommodate and provide resources for those affected. (37) Such an outpouring of migrants can only be limited by responses from authorities and the general international community. (38) For example, after the Indian Ocean tsunami in 2004, out-migration was limited and mass migration never occurred in part because of the rapid humanitarian response and the substantial mobilization of nonprofit groups to...