London Climate Action Week: Climate refugees – an international legal conundrum

In the last week, Philip Alston, the UN special rapporteur on extreme poverty and human rights said the world was increasingly at risk of “climate apartheid” where the wealthy pay to escape the impact of climate change and the rest of the world is left to suffer.

In a heart breaking news story from the same week which illustrated the human rights which are already at risk, Oscar Alberto Martinez and his daughter were pictured after having drowned trying to cross the US border to claim asylum.  Martinez was fleeing El Salvador, one of the three Central American countries whose nationals have been leaving in increasing numbers. The reasons behind the rise in asylum seekers from the region are complex but there is a growing consensus that climate change has played a significant role in the poverty and instability driving the movement of people.

Those who do reach the US from Guatemala, El Salvador and Honduras and claim asylum, will have to show they fit within the definition of ‘refugee’ set out in the 1951 Convention which defines a refugee as a person who:

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."

As such, an individual would not be able to make a successful asylum claim, under the current international legal definition, on the basis of climate change.

The lack of an available international remedy is going to become an increasing conundrum as more and more people find themselves displaced as a direct or indirect result of climate change. Estimates suggest that by 2050, the number of persons displaced due to environmental factors could be anywhere from up to one billion people!

We saw the humanitarian and political consequences of the refugee crisis in Europe in 2015. In that year, it is estimated that just over one million migrants and refugees arrived in Europe. This is a figure which looks set to be eclipsed in the future as natural disasters, droughts, famines and other environmental crises force millions to leave their homes.

There is a clear ‘protection gap’ for these people. The Refugee Convention was derived from a series of international agreements originally conceived after the first world war in response to the millions of people that war had displaced. When millions more were displaced after the second world war, a bigger response was necessary and was codified in the 1951 Convention. The 1967 protocol expanded the geographic and temporal scope of the convention to have applicability outside of those displaced prior to 1951.

In 1951, the international community recognised and respected the need to provide protection and safe harbour to those displaced for reasons outside their own control. It is difficult to see why those displaced by climate change ought to be treated differently. That said, the sheer scope of the potential future migration is daunting and must be considered in a political environment increasingly shaped by populist and nationalist viewpoints.

There are some bright spots on the horizon. The Nansen Initiative, funded primarily by Norway and Switzerland, is a “state-led consultative process to build consensus on a protection agenda addressing the needs of people displaced across borders in the context of disasters and the effects of climate change.” Its work on the ‘protection gap’ has led to the creation of the Platform on Disaster Displacement which advocates for the ‘Protection Agenda’. Acknowledging the reality of climate based displacement of people and the lack of available remedies, this agenda aims to improve preparedness of states to prevent, avoid and respond to disaster displacement as well as encouraging states to take positive action to give “full respect for the rights of the individual in accordance with the letter and spirit of applicable bodies of law, names human rights law, international humanitarian law and refugee law”.

Crucially, this agenda does not call for a new international convention but seeks to draw on the most effective approaches states are already taking to protect those displaced persons. One example of this may be ‘humanitarian protection’, protected under the Qualification Directive in EU law and thus recognised in the UK. This offers international protection to those who fall outside the definition of the refugee convention but still require protection because “substantial grounds have been shown for believing that the person concerned, if returned to the country of return, would face a real risk of suffering serious harm and is unable, or, owing to such risk, unwilling to avail themselves of the protection of that country”.

Humanitarian protection can be granted where return to a country of origin would subject the applicant to treatment which breaches their Article 3 ECHR right not to be subjected to torture, inhumane or degrading treatment. It is accepted that in exceptional circumstances, conditions in a country such as lack of access to food, water and basic shelter may be so unacceptable that they would amount to inhumane or degrading treatment. It is possible that a person displaced due to a climate related disaster could qualify for humanitarian protection in these circumstances.

These state led, internationally supported initiatives are critical in establishing a response to the ‘protection gap’ so called climate refugees currently face. With large parts of the inhabited world forecast to be unliveable within our lifetimes, this is an issue we simply cannot afford to ignore. To avoid climate apartheid, a human rights focused response to disaster displacement must be front and centre.