With Our Feet to the Fire: Regional Agreements as Mechanisms of Changing International Law to Include Persons Displaced by Climate Change

• Citation: Vol. 35 No. 3
• Publication year: 2021
• topic: Environmental Law

With Our Feet to the Fire: Regional Agreements as Mechanisms of Changing International Law to Include Persons Displaced by Climate Change

Danna Yu

WITH OUR FEET TO THE FIRE: REGIONAL AGREEMENTS AS MECHANISMS OF CHANGING INTERNATIONAL LAW TO INCLUDE PERSONS DISPLACED BY CLIMATE CHANGE

Introduction

As climate change becomes an increasingly dire problem, the global community has equally and in tandem become more fraught in coming up with a solution.¹ With the Trump administration in the United States denying or quietly withdrawing support for policies that would cut carbon emissions, it seems the global community is sliding backwards in the arena of climate change.²

This poses particular problems for individuals since there currently exists little protection for persons fleeing their home countries due to sudden and incremental effects of climate change.³ These effects include both the increase in frequency of natural disasters such as drought and desertification and the strengthening of the impact of the socio-economic deprivation that follows.⁴ Lack of food, water, and education caused by the lack or reduction of resources as a result of climate change would not ordinarily sustain a refugee claim under the 1951 United Nations Convention Relating to the Status of Refugees ("1951 Convention").⁵ António Guterres, the former United Nations High Commissioner for Refugees, "has called for a new international protection framework for people who have been forced to leave their own country and who may not qualify for refugee status under international law, including people displaced as a result of catastrophic environmental events."⁶

This Comment will explore the potential avenues by which the international community can address the increasingly pertinent problem of international displacement as a result of climate change. First, this Comment will argue that existing international law framework is inadequate to handle the growing issue

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of climate change displaced persons. Then, it will discuss the viability of using pre-existing international refugee and migrant law to encompass climate displaced persons.⁷

Although there have historically been expansions of the definition of both "refugee" and "migrant" in international law, there are still substantial gaps left by trying to stretch the definition of "refugee" to include climate change displaced persons.⁸ As a result, this Comment suggests a different international framework is required to deal with the humanitarian crisis—one unique to climate change displaced persons (and indeed, has been called upon by various figures of international prominence).⁹

I. Climate Change: We Didn't Start the Fire—or Did We?

It is a truth nearly universally acknowledged that our planet's climate has been changing to devastating effect.¹⁰ 2019 was the second-hottest year on record, resulting in, inter alia, the severe heatwaves that hit various parts of the globe.¹¹ In June 2019, northern Europe experienced a record-setting heatwave that led France and Germany to shut down nuclear reactors.¹² The hot air then migrated to Greenland, where temperatures rose to as much as fifteen degrees Fahrenheit above normal, causing the surface of Greenland's ice sheet to melt at

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near-record levels.¹³ In one week in late July, fifty-seven people in Japan died due to heat-related medical issues and thousands more were hospitalized, resulting in the second highest number of hospitalizations due to high temperatures on record in Japan.¹⁴ A particularly devastating result of the series of heatwaves was the 1.5 million-acre fire that ignited across Australia in late 2019.¹⁵ The fire resulted in the devastating loss of property and animal and human life.¹⁶

Certainly, some part of the heatwave that sparked the wildfires in Australia is due to periodic occurrences.¹⁷ For example, short-term weather patterns, like the Indian Ocean Dipole, pushed away moisture from Australia in the spring preceding the wildfires.¹⁸ This, therefore, made the country drier in spring and thus likely contributed at least somewhat to the wildfires in the summer.¹⁹ Additionally, high temperatures and dry weather are generally typical symptoms of summer.²⁰ Australian experts note that the dry season has been getting longer and more frequent, which is a phenomenon that has been linked to climate change.²¹

As of January 2020, the fires have been somewhat contained with the arrival of rains.²² However, the ramifications and future effects of the blaze on Australia's unique ecosystems and human health remain to be seen.²³

Australia is, unfortunately, not the only country to have suffered enormous loss due to natural disasters. Since 2008, catastrophic weather disasters have

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displaced about twenty-four million people have been displaced by each year.²⁴ In 2016, the ten largest displacement events were climate-related.²⁵ However, natural disasters are not the only potential climate-related threats that cause displacement, both internally and externally. In 2018, the World Bank released a report that projected 143 million people in sub-Saharan Africa, South Asia, and Latin America could be forced to move within their own countries to escape slow-onset impacts of climate change.²⁶

While most displaced people tend to stay within their state borders, there are various regions whose citizens may soon be forced to seek relocation solutions abroad. Island communities situated in the Caribbean, Pacific, and Atlantic Oceans are at the frontline of the climate change crisis.²⁷ As oceans warm and sea-levels rise, such nations may even become uninhabitable.²⁸ Claire Anterea, a 41-year-old climate activist on the Pacific island nation of Kiribati, has noticed the change even within her own lifetime.²⁹ "My family's home floods throughout the year," she stated in an email to NPR.³⁰ "I see the sea getting higher as the coastal areas are eaten away."³¹ Elsewhere in the South Pacific, coastal erosion has stripped so much away that countries have begun contemplating regional migration plans.³² The Solomon Islands' environment minister, Melchoir Mataki, has called such plans a last resort, but also acknowledges that "for some parts of [the Solomon Islands], it is the only reasonable and sustainable option."³³

While Pacific Island nations may face the brunt of the effects wrought by climate change, coastal areas in other countries will be affected.³⁴ One only needs to look at a projected future map of the U.S. coastline; there are cities in

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states like Florida and Louisiana that will no longer exist as a result of encroaching sea levels.³⁵

With the increasing threat to these countries from climate change and the corresponding lack of alternative methods to combat it, the global community must consider how to best act in response to this ever-growing problem. The international community at large must shoulder some responsibility for the results of climate change. Small Pacific Island nations—while saddled with the most obvious effects of climate change—are in actuality the ones who have contributed least to the problem.³⁶ Large economic powers like the United States and China have enormous carbon footprints.³⁷ In comparison, Pacific Island nations like Kiribati and the Solomon Islands produce considerably less greenhouse gas emissions.³⁸ It seems unfair for the burden of providing a solution to so lopsidedly fall on the shoulders of those countries who contribute the least to the problem.

II. Existing Spaces in International Law Definitions

A. Does "Refugee" Apply?

The temptation to classify persons displaced by climate change and disasters as refugees is understandable. For those who are forced to cross international borders by circumstances outside their control, the crux of international legal protection has primarily been concentrated in refugees and, to a lesser extent, migrants.³⁹ The protections offered to persons who fall into the definition of refugee under the 1951 Convention are robust and well-documented.⁴⁰

In 2013, the Teitiota family, citizens of Kiribati, became the first to grapple with the question of whether individuals who have been displaced by climate change can avail themselves of the procedures and laws in place to help

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refugees.⁴¹ The family moved to New Zealand and applied for refugee status there.⁴² Their claim for asylum explicitly stated they were entitled to be recognized as refugees because of the changes to the environment of Kiribati as a result of the rising sea levels attributable to climate change.⁴³

Citizens of Pacific island nations are perhaps the most vulnerable to the rising sea levels associated with climate change and the irreversible damage to their sovereignty climate change poses.⁴⁴ As John Podesta, the founder and director of the Center for American Progress, notes, "[i]slands in the Federated States of Micronesia have drastically reduced in size, washed down to an uninhabitable state, had their fresh water contaminated by the inflow of seawater, and disappeared in the past decade."⁴⁵ This poses a crisis for national sovereignty and individuals, who are forced to relocate as their country literally disappears from underneath their feet.⁴⁶ Although the Teitiota family's case was ultimately dismissed by the High Court of New Zealand, the final judgment declined to completely foreclose the possibility that climate change or other kinds of environmental degradation could lead to protected status as refugees under international law.⁴⁷

1. International Definition of "Refugee"

After World War II, almost eleven million people in Europe had been displaced.⁴⁸ In response, the states of the United Nations banded together to establish a system to "protect civilians who had been forced from their home countries by political violence."⁴⁹ The 1951 Convention, ratified by 145 parties, became the key document that formed the basis of the legal definitions and protections...