Report summary: “Climate refugees” legal and policy responses to environmentally induced migration

UKCCMC report summaries synthesise key documents on the topic of climate change and migration. They do not intend to provide analysis. For analysis on current issues and policy see the Blog section of this website. 

The European Parliament has released a report looking at how European countries could provide protection for people displaced by environmental change.  Like Protecting People Crossing Borders in the Context of Climate Change, the report concludes that significant gaps in legal protection exist. Both authors conclude that a new international treaty is not desirable. Instead “Climate refugees” legal and policy responses to environmentally induced migration examines how existing law applies or could be extended to support those affected.

“Climate refugees”, legal and policy responses to environmentally induced migration by the European Parliament, Directorate General for Internal Policies

  • Climate change will exacerbate existing pressures on migration, and could lead to changes in migration patterns.
  • There are several legal options available. Renegotiating the Refugee Convention and entirely new frameworks are problematic. Options that extend existing protection are more promising.

The relationships between the impacts of climate change and migration are complex. However, it is clear that a changing climate is likely to lead to increased mobility and to alter exiting migratory patterns.

A distinction can be made between rapid onset events such as flooding and cyclones and slow onset events like land degradation and desertification. Rapid onset events tend to lead to short and temporary movements. Whether displacement is long term depends on how the disaster is managed. For example good advanced planning and well devised reconstruction will result in less people being displaced and more people returning sooner. Slow onset events lead to the deterioration of livelihoods over long periods of time. This could in turn lead to displacement. But because the changes are slow and there are many other factors influencing migration, it is difficult to state with confidence that a particular movement is caused by climate change. The exception is sea level rise where it is easier to identify people at risk. Migration should not be seen as a failure to adapt, it can be a positive adaptation strategy.

There are several gaps in legal protection for people who migrate or are displaced by environmental change. Several options exist for improving protection:

1. The scope of the 1951 Refugee Convention could be extended. It might be relatively simple to renegotiate the convention but risks devaluing the status of existing ‘convention’ refugees. Renegotiating  could result in some areas  being weakened. Proposals  which exist for creating and entirely new legal instrument include one from Swedish MP Tina Acketoft. Additional proposals have come from Docherty and Gianni, Dana Zartner Falstrom, Beirmann and Boas and law specialists at University of Limoges.

2. Some have proposed adding new protocol under the UNFCCC that defines and protects people displaced by climate change.  In 2011 adopted the Cancun adaptation frame work which includes a paragraph on climate change and displacement. The report argues that this is a “small step” which “opens new windows” to work on climate induced displacement.

3. Many countries already offer temporary protection to people who have been displaced by conflict or natural disasters. For example, after Hurricane Mitch many Nicaraguans and Hondurans were granted temporary protection in the US. These measures could be amended to provide protection for people displaced by environmental change. However it is difficult to see how this could protect people moving due to slow onset events, or people unable to return as it applies only to those already in country.

4. Resettling people has been tried with varying degrees of success. Many Pacific island states have used resettlement, mainly in response to mineral extraction. Some of the projects were probably in conflict with the Guiding Principles on Internal Displacement. In response to problems caused by resettlement the World Bank and the Asian Development Bank have drawn up guidelines for carrying out resentments.

4. Reducing vulnerability. This should involve initiatives that a) build resilience that will help people to stay, such as good land management. It also means reversing policies that make land management harder, such as many land privatisation policies b) initiative also need to protect migrants at their destinations. Projects are needed to build infrastructure and create jobs.

Several areas of law within the European Union already protect migrants, refugees and displaced people. Some of these areas could already provide protection for people displaced by the effects of climate change. Other areas could conceivably provide protection. The existing areas of law fall within four categories:

1. Complementary protection.
The Qualification Directive sets out who qualifies for international protection and who does not. It is unlikely that people displaced by the effects of climate change would qualify for protection under the directive. However the Directive could be amended, for example by extending the definition “serious harm” to cover harm resulting from rapid onset natural disasters. The Temporary Protection Directive could also provide some protection. However it  applies only to a mass influx of people amd is granted only in exceptional circumstances.  It is entirely at the discretion of an EU member state whether to grant it or not. It cannot be applied for by an individual, it can only be invoked to deal with a large group of people. Very few countries have introduced national legislation specifically to protect environmentally displaced people, however several countries do have legislation that could be interpreted in a way that could provide protection. Cyprus, Finland, Italy and Sweden all have legislation that explicitly provides some protection for people displaced by natural disasters. Belgium, Bulgaria, Spain, Ireland, Lithuania, Latvia, Malta and Slovakia have legislation that could be interpreted as providing protection.  The report does not state whether any of them have been tested.

2. Resettlement.
In 2009 the European Commission published it’s communication on the “Establishment of a Joint EU resettlement programme”. It states that within the context of a Common European Asylum System the EU should be more engaged in resettlement of refugees from outside the EU. Under the European Refugee Fund member states can claim “compensation” from the EU for every person they resettle. The Fund defines several priority categories of especially vulnerable people for which the money is available. The Commission has argued that the current categories are “too rigid” and do not allow the fund to respond to “newly arising needs” such as people displaced by the effects of climate change. This could be addressed by regularly reviewing and updating the priorities. If such people were included this would prove a financial incentive for countries to offer resettlement. The annual report of the European Commission has stated that the negotiations on the Joint EU Resettlement Programme must reach an “operational and positive end”.

3. Alternative measures within the EU Global Approach to Migration.
The EU Global Approach to Migration is the external dimension of the EU’s migration policy. In 2011 the European Commission organised a consultation to look at the links between climate change and migration. The results from this consultation fed into the review of the Global Approach. The Commission’s own background documents for the consultation stated that “existing legal instruments” within the EU should be explored as ways of protecting and accommodating environmental migrants. Other issues raised by the consultees include: the concept of “responsibility to protect” developed by the ICISS; the extension of labor exchange agreements as a way of responding to slow onset events; whether the EU Development Corporation could offer more adaptation funding focused on preventing migration and on migration as adaptation.

4. Possible options under other areas of EU migration policy.
It might be possible for environmentally displaced people to invoke other aspects of migration and refugee legislation, for example the right to family reunion or non-refoulment in the European Declaration of Human Rights and the Charter of Fundamental Rights of the European Union. It might also be possible in the future to establish an EU wide policy governing the extension of existing visas to people who may be at risk of environmental hazards if they return. But neither of these options specifically protect people who were displaced by environmental degradation or natural disasters in the first place.

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