CLIMATE-INDUCED MIGRATION & FREE MOVEMENT AGREEMENTS.
Author | Francis, Ama |
INTRODUCTION
Climate change increases the frequency and severity of disasters, and in turn, increases the number of people forced to leave home. (1) Climate impacts--such as increased flooding and drought, stronger storms, and sea level rise--are already displacing millions. Approximately 265 million people have been displaced due to natural hazards since 2008. (2) More than 17 million were internally displaced by sudden-onset disasters in 2018 alone. (3) The World Bank estimates that climate change could force more than 143 million people in just three regions--South Asia, Sub-Saharan Africa, and Latin America to migrate within their home countries by 2050. (4) Indeed, while most climate migrants are forced to move within their home countries, many people are also forced to move abroad. (5)
Cross-border climate migrants enjoy no protection under international law. While international refugee law offers protection to people displaced across borders by instances of social upheaval such as political conflict, international refugee law provides no protection to people displaced solely by climate-related disasters. Recent international processes like the Global Compact for Safe, Orderly and Regular Migration, the Sendai Framework for Disaster Risk Reduction, and the United Nations Framework Convention on Climate Change have underscored the importance of addressing climate-induced migration, however, international law has yet to provide a governing framework for climate-induced migration. The absence of both legal rights and a comprehensive governing framework creates a key protection gap for cross-border climate migrants.
This essay argues that free movement agreements (FMAs)--provisions within (sub-)regional economic integration schemes that liberalize migration restrictions between participating member states--can provide critical protection benefits in the absence of a governing legal framework and guaranteed legal rights for climate migrants. Approximately 120 countries worldwide participate in FMAs, with the European Union serving as the most well-known example. FMAs are useful in the climate context because FMAs can enhance individual and structural economic resilience and bypass the political hurdles of creating an international legal status for climate migrants, while providing a rights-responsive framework for facilitating mobility increased by climate-related disasters. Given that displacement exacerbates vulnerabilities and can result in human rights violations and abuses, especially for women, policy and legal measures that address climate-induced migration remain critical.
DEFINING CLIMATE-INDUCED MIGRATION
The International Organization for Migration (IOM) defines environmental migrants as "persons or groups of persons who, for compelling reasons of sudden or progressive change 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." (6) Although international law provides no definition of a climate migrant, climate-induced migration falls within the sub-category of environmental migration. Like environmental migration, climate-induced migration can describe movement that is temporary or permanent, voluntary or forced, internal or cross-border.
Climate-induced migration occurs mostly within national borders, over short distances, while wealthier and more educated migrants tend to cross national borders. Policy experts identify five categories of movement: i) migration prompted by sudden-onset disasters, such as flooding and hurricanes, which tends to be temporary and internal; ii) slow-onset degradation, for example rising sea levels, increased groundwater, or soil salinization, which often results in permanent migration; iii) "'sinking' small island states" which present a unique case of slow-onset disasters wherein rising sea levels combined with low-lying island topography renders islands uninhabitable; iv) high risk zones that governments declare dangerous for human habitation; and v) forced displacement due to violence, armed conflict, or unrest because of a scarcity of essential resources like water, arable land, or grazing grounds. (7)
Across all categories, adverse environmental impacts do not lead to migration in a linear way. Empirical studies have shown that economic, social, and political drivers factor into the decision to move or stay, alongside environmental indicators. (8) Research also shows that climate change is a driver of migration and increases the number of people at risk of being displaced. (9)
The Legal Protection Gap Around Climate-Induced MIGRATION
A protection gap exists for migrants displaced across borders by climate-related disasters, particularly from island and low-capacity states. This protection gap largely arises from the fact that international law does not confer a general right of entry for admission into a foreign country, although migrants who qualify for protection under refugee law or complementary measures are protected from being rejected at the border. (10) Thus, when displacement occurs across borders, climate migrants find themselves with no right to enter another state, remain there, or be protected against forcible return. (11)
The only situation in which international law may afford a right of entry to climate migrants occurs when environmental drivers combine with established grounds for protection under the 1951 Convention Relating to the Status of Refugees (Refugee Convention). (12) The Refugee Convention extends protection to petitioners with a well-founded fear of persecution because of race, religion, nationality, political opinion, or membership of a particular social group. The petitioner must also be unable to gain protection from their home country. Although home governments may be unable or unwilling to protect those affected by climate-related events, the narrow grounds for persecution hinders the application of the refugee convention to climate migrants seeking to resettle in receiving countries. Persecution usually requires human agency (that is, a government or group who acts as a persecutor in the petitioner's country of origin). (13) Furthermore, fleeing a disaster does not trigger any Refugee Convention ground. (14) To date, no court has extended protection based on international refugee law to a climate migrant.
However, some regional bodies have expanded the refugee definition such that...
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