A protection gap currently exists under international refugee law in that the Convention Relating to the Status of Refugees (Refugee Convention), the international convention which recognises and offers protection for refugees, does not recognise those fleeing from the effects of climate change as refugees. The protection regime under the Refugee Convention is therefore not applicable to those fleeing from the impacts of climate change, resulting in those fleeing across international borders being denied access to the territory of the State where they are fleeing to. This blog post briefly examines why this protection gap must be addressed, including how international refugee law and the Refugee Convention may be reformed to protect these environmental refugees.
II. Setting the Stage
This section examines the definition of environmental refugees and discusses the importance of protecting environmental refugees.
a. Who are environmental refugees?
Environmental refugees are persons forced to migrate due to the impacts of environmental deterioration according to this article. However, this definition is controversial, as reiterated by an international refugee law expert, Jane McAdam in her report, arguing that the environment is a trigger but not a cause of migration decisions.
b. Why the need to protect environmental refugees?
It has been predicted that 36 million people would be newly displaced in 2008 due to sudden onset natural disasters. This prediction has been confirmed by the Intergovernmental Panel on Climate Change (IPCC) in its 2007 report. Not only does climate change contribute to displacement, according to this article, the number of environmental refugees has increased rapidly, leading to an increased urgency to accord these people with international protection.
III. The Current State of International Refugee Law
This section examines the current state of international refugee law and how it is inadequate in addressing the protection gap of assisting environmental refugees.
a. Where is the problem in international refugee law?
Pursuant to Article 31(1) of the Vienna Convention on the Law of Treaties, the general rule of interpreting an international treaty is to interpret it in accordance with the ordinary meaning of the words in the context of the treaty and in light of its object and purpose. The object and purpose of the Refugee Convention is to protect persons of concern (including asylum claimants, refugees, internally displaced persons, and stateless persons) from human rights violation in the form of persecution. However, an ambiguity exists in that the term “persecution” is not defined anywhere within the Refugee Convention.
According to a United Nations High Commissioner for Refugees (UNHCR) training manual, the term “persecution” is deliberately not defined in the Refugee Convention, in order to allow for the flexibility of encompassing various forms of persecution depending on the context. However, academics such as University of Oxford professor emeritus, Guy S. Goodwin-Gill in his book, have long criticised the lack of guidance in the Refugee Convention regarding the definition of “persecution”.
IV. Resolving the Protection Gap
The protection gap may be addressed through a suggested one of three ways namely by: expanding the definition of “persecution” to include environmental refugees, recognising environmental refugees as members of a “particular social group”, or creating an entirely new international treaty to protect the rights of environmental refugees.
a. Reforming the definition of “persecution”
It has been suggested by some that the Refugee Convention should be renegotiated to include the effects of climate change in order to recognise those fleeing from such effects as refugees.
States have a duty under international law to protect the lives of their populations, as derived from the Universal Declaration of Human Rights, which is reflective of customary international law (the subjective belief that States are bound by a legal norm). According to the UNHCR’s submission, failure of a State to protect its nationals would amount to a violation of human rights under international law if the State knew or ought to have known about the existing dangers. To establish climate change or environmental harm as persecution, a causal link between climate change and the harm must first be established. According to the IPCC’s report, there is a 90% chance that global warming was human-induced by “industry, transport, deforestation and other human activities”. Further, the principle of “common but differentiated responsibility” as derived from the United Nations Framework Convention on Climate Change and the Rio Declaration, implies that there is a causal connection between environmental degradation and degree of State responsibility.
The definition of “persecution” may be reformed to include environmental refugees, for instance, where, according to Jessica Cooper in her article, the State has acted as the persecutor of its own people through causing or contributing to environmental degradation, where examples include: the desertification of the African Sahel, and the Chernobyl Nuclear Power Plant disaster.
b. Environmental refugees as members of “a particular social group”
Article 1A of the Refugee Convention defines a refugee as someone who is fleeing from persecution on account of his or her “race, nationality, religion, membership of a particular social group, or political opinion”. It has been suggested in the case of Denissenko v. Haskett (Australia v. Islamic Republic of Iran) as well as by Norman Myers in his article that environmental refugees satisfy the “common characteristic” ground of “membership of a particular social group” by their lack of ability to protect the environment, since environmental refugees do not have a voice to be heard.
c. Renegotiating a new treaty to recognise environmental refugees
Renegotiating a new treaty to protect environmental refugees is another method that may be employed to address the protection gap. However, this approach is not without criticism, such as the difficulty of defining what events would constitute climate change sufficient to warrant protection. Another criticism is the problem of determining what protections are specifically accorded to environmental refugees that do not overlap with existing protection mechanisms found in international human rights law instruments and the Refugee Convention. A third criticism may stem from the fact that defining environmental refugees may be a problem in itself given a broad definition would create a “floodgates” problem, while a narrow definition would create a gap for those who legitimately require the protection.
As briefly discussed, a protection gap exists currently under international refugee law to protect environmental refugees fleeing from the effects of climate change. The recommendations previously discussed include: expanding the definition of “persecution”, recognising environmental refugees as members of “a particular social group”, or creating an entirely new treaty. While these recommendations are non-exhaustive, the consensus thus far is that something must be done to address this protection gap, in order to better protect environmental refugees from future harm.
Jenny Poon is a PhD Candidate at the Faculty of Law at the University of Western Ontario, specialising in refugee law. She has published work on the topic in, among others, the European Papers and the McGill Journal of International Law & Legal Pluralism. Ms Poon is also a qualified barrister and solicitor in the Province of Ontario.