Toward a Pragmatic Solution for Climate Refugees Under Environmental, Human Rights, and Immigration Regimes

• Citation: Vol. 5 No. 1
• Publication year: 2023

Toward a Pragmatic Solution for Climate Refugees Under Environmental, Human Rights, and Immigration Regimes

[Page 65]

Evan Patton ^*

Abstract: As the effects of climate change compound, consequences are no longer isolated to discrete areas of the world. Climate refugees, or persons displaced by climate-related events, are increasingly being forced to leave their native lands. These refugees face a novel barrier to immigration: despite the term "climate refugees," displaced persons do not fit the definition of "refugee" under the 1951 Refugee Convention. In the wake of an impending immigration scramble, questions of categorizing climate refugees under the appropriately governing body of law are causing international tribunals to yield widely different results. Outcomes under the auspices of human rights, climate change, immigration, and international arbitration all derive from one common failure: lack of clear guidance for climate refugees. This article will explore the fundamental question driving this lack, namely discussing which regime should house a solution. This article will explore the question of which body of law a new protocol instrument for climate refugees should fall under, exploring international arbitration. This article will then turn to response models that other countries have promulgated through litigation. Lastly, this article will address pending litigation, effectively tying together the bodies of human rights, climate change, immigration, and international arbitration to propose a model solution, addressing foreseeable perils along the way.

Introduction

Scholars generally agree that climate change has created an impending and inevitable crisis of climate-displaced individuals. However, scholars disagree on the epistemology of how to term said individuals, proffering a large array of terms in order to avoid the pitfalls of the term "refugee" under the Refugee Convention of 1951 and its issue. Scholars also disagree on which body of law should govern a proposed solution to the impending crisis, mainly pointing to international human rights and climate change instruments, while others suggest a disparate, grass-roots approach. This article will not address issues of terminology or semantics. Rather, this article will take a pragmatic approach to the legal question of which body of law a possible new protocol or instrument should fall under. Given the collection of foundational principles across

[Page 66]

human rights and climate change—driven law, the rapid changes in our earth's climate create an atmosphere that is ripe for solution-driven proposals to the issue of climate refugees.

Refugee Convention of 1951

The historical development of the Refugee Convention of 1951 contributes to the difficulty of fitting climate refugees squarely within the instrument. The convention developed as a "post-Second World War instrument," meaning that the original purpose of the Refugee Convention was limited to protecting those who suffered political persecution, or related forms. ¹ The convention therefore focused on conflict-induced displacement, rather than climate-induced displacement. ² The main conundrum emanates from the first article, ³ which describes a refugee as someone who:

as a result of events occurring before 1 January 1951 and owing to 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; or who, not having a nationality and being outside the country of his former habitual residence as a result of such events, is unable or, owing to such fear, is unwilling to return to it. ⁴

A 1967 protocol to the convention removed the first portion of Article I, which harkens to the World War II circumstances that inspired it. ⁵ Still, the standing definition can be broken into four distinct elements. First, the refugee must be outside the country of their former residence by reason of fleeing. ⁶ Second, the refugee is unable or unwilling to return. ⁷ Third, the refugee must be unable or unwilling to return due to a fear of persecution based on one of the enumerated particular social groups. ⁸ Fourth, there must be a nexus between the persecution and the refugee's membership in one of the enumerated particular social groups. ⁹

The third and fourth elements are problematic for climate refugees. Some scholars take a narrow view, asserting that due to historical context they must apply only to instances of civil and political violations. ¹⁰ Others would advocate for a broad interpretation, more aligned with human rights. ¹¹ In considering the scope of the definition, it is important to underscore the historical iterations of the instrument. The drafted text submitted in August of 1950 by the Ad Hoc Committee that was assigned by the UN General Assembly reads:

For the purposes of this Convention, the term "refugee" shall apply to any person . . . (3) Who has had, or has, well-founded fear of being

[Page 67]

the victim of persecution for reasons of race, religion, nationality or political opinion, as a result of events in Europe before 1 January 1951, or circumstances directly resulting from such events, and, owing to such fear, has had to leave, shall leave, or remains outside the country of his nationality, before or after 1 January 1951, and is unable, or, owing to such fear or for reasons other than personal convenience, unwilling, to avail himself of the protection of the government of the country of his nationality, or, if he has no nationality, has left, shall leave, or remains outside the country of his former habitual residence. ¹²

The language in this draft has multiple temporal limitations, but the main feature is that the epicenter of the persecution must emanate from World War II. ¹³ The use of the phrase "circumstances directly resulting from such events" implies causation but does not call for a persecutor. ¹⁴ A strict, future temporal restriction is notably missing from this draft. It would allow for a refugee to claim status well beyond the wake of World War II. While the language may be myopic, the lack of future temporal restriction nonetheless indicates that the drafters intended for the instrument to be liberally construed. Contrast this with the text that was approved by the UN General Assembly in December of 1950, not four months later:

A. For the purposes of the present Convention, the term 'refugee' shall apply to any person who: . . . (2) As a result of events occurring before 1 January 1951, and owing to well-founded fear of being persecuted for reasons of race, religion, nationality or political opinion, is outside the country of his nationality and is unable or, owing to such fear or for reasons other than personal convenience, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence, is unable or, owing to such fear or for reasons other than personal convenience, is unwilling to return to it . . . ¹⁵

This version of the definition does not leave the future temporal period unrestricted. The use of the phrase "present Convention" restricts the use of the instrument more closely in time to events related to World War II. ¹⁶ Both drafts contain the phrase "for reasons other than personal convenience." ¹⁷ This creates a de facto contrapositive rule, denoting that if one is relocating for convenience, then one is not a refugee. This provides insight for the intended scope of the draft; it is only meant to apply to World War II refugees. On the other hand, the word "any" is used to describe any person. ¹⁸ A liberal reading of this word suggests that the drafters predicted that the consequences of World War II might manifest in unforeseeable ways. However, the phrase "As a result of events occurring before 1 January 1951" undoubtedly limits the draft's temporal scope to circumstances related to World War II.

[Page 68]

The drafters of the 1967 Refugee Protocol addressed this by removing the temporal and geographic limitations. ¹⁹ The chapeau language states, "it is desirable that equal status should be enjoyed by all refugees covered by the definition in the Convention irrespective of the dateline 1 January 1951." ²⁰ Yet despite the attempt to make the 1967 Refugee Protocol universal, it still does not serve to adequately protect climate refugees. ²¹ Scholars and recent case law agree that the 1967 Refugee Protocol has not protected climate refugees. ²² Notwithstanding its shortcomings, the 1967 Refugee Protocol language expands the reach of the Convention, making it a possible avenue for a new protocol as an addition. Some scholars argue that a new protocol would not be effective, given that states have been reluctant to obey similar responsibilities under other climate-related regimes. ²³ However, other scholars maintain that there is no need to expand the definition of a refugee under the convention, as climate refugees do indeed fit under its definition. ²⁴

A new protocol to the Refugee Convention would need to be in line with the original Refugee Convention and its progeny. The preamble for the Refugee Convention frames the instrument's intention, by stating that its purpose is to protect the fundamental rights of refugees. ²⁵ The preamble begins by "recognizing the social and humanitarian nature of the problem of refugees." ²⁶ A new protocol would likewise have to be humanitarian focused. Alternatively, others suggest simply expanding the original refugee definition to include a broad category of environmental refugees more explicitly. ²⁷

Scholars have noted resistance to the expansion of the Refugee Convention or the Refugee Protocol, specifically referencing difficulty in burden sharing and financial assistance. ²⁸ In 1995, the...