Climate change threatens to displace millions of people either across national borders or to new regions of their own country. While scientists cannot predict the exact number, a joint academic, civil society, and UN study concluded that “the scope and scale could vastly exceed anything that has occurred before” (CARE International et al, iv). Extreme weather events, rising sea levels, desertification, and other environmental disruptions will make certain parts of the globe uninhabitable. Residents of developing countries and small island states are particularly vulnerable to being driven from their homes.
Academics and advocates have urged states to take immediate action and recommended various ways to minimize the disruption faced by cross-border and internal migrants. This essay examines two model instruments. A Convention on Climate Change Refugees was proposed by Tyler Giannini and me in a 2009 article in the Harvard Environmental Law Review. The Peninsula Principles on Climate Displacement within States were initiated by the nongovernmental organization Displacement Solutions and finalized and adopted by in 2013 by an international group of climate change experts that included lawyers, policy makers, and scholars. While these instruments differ in structure and scope, a comparison illuminates elements essential to any framework seeking to address the humanitarian impact of climate change migration: a focus on victims, a range of assistance, shared responsibility, and implementation mechanisms. Both models also approach a complex legal problem from an interdisciplinary point of view.
The proposed convention strives to address the needs of cross-border climate change migrants. It defines a climate change refugee as “an individual who is forced to flee his or her home and to relocate temporarily or permanently across a national boundary as the result of sudden or gradual environmental disruption that is consistent with climate change and to which humans more likely than not contributed” (Docherty & Giannini, 361). The proposed convention’s provisions fall into three categories. First, they mandate different types of assistance for climate change refugees. Second, they spread responsibility across host states, home states, and the international community. Third, they establish administrative bodies to ensure other provisions are effectively implemented. The proposed convention would ideally come in the form of a stand-alone legally binding instrument.
The Peninsula Principles seek to minimize the impact of climate change migration on individuals displaced within the boundaries of their own country. They define climate displaced persons as “individuals, households or communities who are facing or experiencing climate displacement,” which is “the movement of people within a State due to the effects of climate change including sudden and slow-onset environmental events and processes, occurring either alone or in combination with other factors” (Peninsula Principles, 16). The principles open with a preamble laying out their humanitarian purposes and international sources as well as an introduction with definitions and overarching provisions. The rest of the document is divided into five sections: general obligations, climate displacement preparation and planning, displacement, post-displacement and return, and implementation. Conceived as an international normative framework, the Peninsula Principles aim to provide “a clear and consistent soft law basis for… practical actions” (Peninsula Principles, 10).
The proposed convention and the Peninsula Principles adopt divergent strategies to an emerging global crisis. While the convention would be a legally binding instrument covering climate change refugees, the principles are designed as a non-binding set of norms applicable to climate displaced persons. A closer look, however, reveals common elements that should serve as the basis for any legal framework that deals with climate change migration.
Focus on Victims
Both the proposed convention and the Peninsula Principles focus on the needs of climate change victims, not the interests of the states from which or within which they migrate. These humanitarian instruments stress the importance of nondiscrimination in order to ensure that individuals receive assistance regardless of their age, sex, race, religion, or other status (Docherty & Giannini, 377-378; Peninsula Principles, 16). In addition, they emphasize the value of victims’ involvement in choices that affect their future. The proposed convention requires the agency established to implement its provisions to “take into account the opinions and concerns of climate change refugees themselves and allow them to participate in decision-making” (Docherty & Giannini, 388). According to the Peninsula Principles, states should consult with climate displaced persons and obtain their consent before relocating them, except when there is an imminent threat to life or limb (Peninsula Principles, 19, 22).
Range of Assistance
The proposed convention and the Peninsula Principles agree that states should provide a range of legal and practical assistance to climate change migrants. Both frameworks require protection of human rights and delivery of humanitarian aid. Drawing on the model of the 1951 Refugee Convention, the proposed convention obligates states to guarantee both civil and political rights, such as access to courts and the freedom to associate, and economic, social, and cultural rights, including rights to education, employment, and housing (Docherty & Giannini, 376-377). The proposed convention goes beyond the Refugee Convention, however, in order to ensure that “basic survival needs are met” (Docherty & Giannini, 378). The Peninsula Principles similarly call upon states to ensure climate displaced persons receive “support in claiming and exercising their rights,” and they specifically highlight rights related to housing, livelihood, and access to the justice system (Peninsula Principles, 17, 27). On a more practical level, the principles declare that states should provide humanitarian assistance, such as food, water, shelter, health services, and sanitation (Peninsula Principles, 25).
While the frameworks mandate remedial measures after migration has occurred, they also urge states to take preventive steps. Under the proposed convention, home states are obliged “to the extent possible, to address increased refugee flows before they reach the crisis stage. Crisis prevention could consist of either attempting to eliminate the need for migration or preparing to handle it in an organized way” (Docherty & Giannini, 381). The Peninsula Principles devote a section to “climate displacement preparation and planning.” The principles state that, in advance of climate displacement, countries should develop risk management strategies, identify possible relocation sites, and create institutional frameworks to facilitate the provision of assistance when it becomes necessary (Peninsula Principles, 19-25).
Recognizing that climate change is a “global problem” with an “international cause and transboundary effects,” the two frameworks create systems of shared responsibility (Peninsula Principles, 12; Docherty & Giannini, 379). Both instruments place primary responsibility on the state where the migrants are located. The proposed convention obliges the host state to take the lead on protecting climate change refugees’ rights and providing them adequate humanitarian aid. The home state should supplement that assistance “to the extent possible” by implementing preventive measures and facilitating emigration when it is necessary and refugee return when it is feasible (Docherty & Giannini, 379-382). Because there is no host state in the case of climate displacement, the Peninsula Principles assign all of those responsibilities to the home state.
Given affected states’ limited resources and the problem’s global origin, the two frameworks identify international cooperation and assistance as essential to the solution. According to Docherty and Giannini, “The home and host states should not have to bear the burden of climate change refugees alone because, for the most part, their actions are not the root of the problem” (382). The proposed convention obligates the international community to provide support either to affected states directly or to humanitarian organizations that can deliver aid (Docherty & Giannini, 384). The Peninsula Principles list international cooperation and assistance as one of their general obligations, stating that “[c]limate displacement is a matter of global responsibility, and States should cooperate in the provision of adaptation assistance . . . and protection for climate displaced persons.” The Peninsula Principles grant affected states the right to seek assistance and demand that other states and international agencies provide it (Peninsula Principles, 18).
To make the above elements a reality, the two frameworks require implementation mechanisms. The proposed convention focuses on three international bodies. It creates a global fund to “manage the provision of international assistance” (Docherty & Giannini, 385). It establishes a coordinating agency, akin to the Office of the UN High Commissioner for Refugees, to facilitate protection of human rights and delivery of humanitarian aid (Docherty & Giannini, 388-389). It also forms a body of scientific experts to determine who qualifies as a climate change refugee, assess each state’s financial responsibility, and conduct studies to help states better prepare for migration (Docherty & Giannini, 389-391). The Peninsula Principles urge affected states to implement the provisions on preventive and remedial measures at “local, regional, and national” levels (Peninsula Principles, 18). According to the principles, states should adopt relevant laws and policies, earmark financial resources, and “take all appropriate administrative, legislative and judicial measures . . . [to] support and facilitate the provision of assistance and protection to climate displaced persons” (Peninsula Principles, 24).
An Interdisciplinary Approach
Neither human rights law nor international environmental law adequately addresses the humanitarian problem of climate change. Traditional definitions of refugees and internally displaced persons do not encompass climate change migrants, and environmental law does not specifically deal with human migration. For this reason, the proposed convention and the Peninsula Principles take an interdisciplinary approach.
In general, human rights law influences the types of assistance mandated by the climate change migration instruments, while international environmental law informs their more administrative provisions. The proposed convention turns to the Refugee Convention for guidelines on human rights protections for cross-border migrants (Docherty & Giannini, 376-377). It draws on the 1992 UN Framework Convention on Climate Change (UNFCCC) for models for its global fund and body of scientific experts, and for the precedent of assigning international assistance duties according to the standard of “common but differentiated responsibilities” (Docherty & Giannini, 385-391). The Peninsula Principles explicitly build on the 1998 UN Guiding Principles on Internal Displacement by requiring human rights protections and humanitarian aid for climate displaced persons (Peninsula Principles, 16). The Peninsula Principles also call on states to include climate displacement in their National Adaptation Programs of Action, which are mandated by the Conference of the Parties to the UNFCCC (Peninsula Principle, 24).
The interdisciplinary approach of the two climate change migration instruments extends to borrowing from other sources of law, including humanitarian disarmament and indigenous rights. The proposed convention bases its humanitarian aid requirements on the groundbreaking victim assistance provisions in the 2008 Convention on Cluster Munitions, which absolutely bans cluster munitions and establishes positive obligations to mitigate the harm caused by the weapons’ past use (Docherty & Giannini, 378). The designers of the proposed convention also recommend an independent and inclusive negotiating process similar to the Oslo Process that created the cluster munition treaty (Docherty & Giannini, 398-400). The Peninsula Principles look to the 2007 UN Declaration on the Rights of Indigenous Peoples, which recognizes these peoples’ unique relationship to the land. To reduce the impact of climate change on indigenous peoples, the principles state that relocation planning should maintain or replicate “rights to access traditional lands and waters” (Peninsula Principles, 24). Because no existing legal framework comprehensively deals with climate change migration, these solutions to the problem combine components of various precedents that have been tested and found effective.
The proposed Convention on Climate Change Refugees and the Peninsula Principles apply to different categories of climate change migrants and represent different types of legal instruments. Their commonalities, however, should be seen as essential elements of climate change migration law whatever form it may take. The interdisciplinary approach espoused by both the proposed convention and the Peninsula Principles is also crucial to the success of efforts to help people forced to flee their homes and ways of life. Climate change migration is a new humanitarian problem that requires an innovative solution.
Bonnie Docherty is a lecturer on law and senior clinical instructor at Harvard Law School’s International Human Rights Clinic.