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11 September 2023

Legal protection for environmental migrants

6 mins

As climate and environmental events become more frequent and extreme, we can expect to see a larger number of people being forced to migrate as a result.

Indeed, statistics show that a person is three times more likely to leave their homeland due to climate factors rather than war or persecution. The majority of these people move to a safer place within their country – figures from the Internal Displacement Monitoring Centre show that there were 30.7 million people who were internally displaced due to natural disasters in 2020. However, people are increasingly crossing borders due to environmental factors, and it is estimated that there will be between 25 million and one billion environmental migrants by 2050. Therefore, the need to ensure legal protection for these people is ever more pressing.

Organisations and international bodies have focused on academic studies and policy in relation to environmental migration, rather than formulating legal protections. Action has been taken to combat the root causes, mainly by reducing carbon emissions. Although this will have a long-term positive impact, there is a need to ensure that people are protected legally in the short-term.

Definitional issues have been a barrier to formulating legal protections. Terms including ‘environmentally/climate displaced person’, ‘environmental migrant’ and ‘environmental refugee’ are all problematic. ‘Environmentally displaced person’ is a descriptive term and although it implies forced movement, it is associated with the established concept of ‘internally displaced persons’ as opposed to people who cross borders. The International Organisation for Migration has defined ‘environmental migrant’ as a person ‘who for reason of sudden or progressive changes in the environment that adversely affect their lives or living conditions, are obliged to leave their habitual homes, either temporarily or permanently, and who move either within their country or abroad.’ This definition includes internally displaced persons, but the term ‘migrant’ implies a pull factor rather than a push factor. ‘Environmental refugee’ is a term that is problematic due to ‘refugee’ being a well-established legal term defined in the 1951 UN Refugee Convention and its limitation to those who leave their country of origin. There is also the difficulty of bringing environmental factors within the Convention.

Part of the requirements for a person to meet the definition of a refugee under the 1951 Convention is that they must prove that on return to their country of origin, they would be persecuted on account of race, religion, nationality, political opinion or membership of a particular social group.

It is difficult to establish that a person has been personally persecuted due to environmental factors. It may be that a particular group of people have been made vulnerable to environmental factors but showing causation between a state or organisation’s actions and environmental events is difficult. Although the concept of the Global North being responsible for environmental events in the Global South has been established within the field of climate justice, the science (‘attribution science’) around this is developing. However, it may be easier to show that a person has been persecuted through an unequal distribution of, or access to, resources, in the context of an environmental disaster or climate change. This includes a lack of sanitation, secure housing, or provision of water and food. Alternatively, a person could be persecuted through confining them to an area that is more susceptible to environmental disaster, for example the Rohingya refugees in Bangladesh who have been placed into refugee camps in Cox’s Bazar which is prone to flash floods and landslides.

Furthermore, the location of where a person is living is often the primary reason that they are affected by environmental factors, and this is not one of the reasons listed in the 1951 Convention. It is likely that an environmental migrant may also be persecuted for Convention reasons as they are often interrelated with environmental factors – for example, in Sudan, climate change has caused drought and access to water resources has fuelled conflict, which disproportionately affects women from rural communities. However, in these instances, it is more straightforward for lawyers to prepare asylum claims under one of the existing Convention reasons without including environmental factors that may detract from their claim.

What other provisions are there for environmental migrants?

Governments may provide subsidiary protection for those who do not meet the definition of a refugee in the 1951 Convention which may be more appropriate for environmental migrants. In the UK, claimants may be granted Humanitarian Protection or permission to stay on health grounds under Article 3 of the European Convention on Human Rights. Humanitarian Protection may be granted to those people who would face a real risk of suffering serious harm, including inhumane and degrading treatment, and it could be argued that this is due to the conditions created by environmental factors. ‘Serious harm’ is defined as being inflicted by persons or the state and so harm as a result of environmental factors is unlikely to fall under this unless responsibility can be attributed. Additionally, as a result of the Nationality and Borders Act 2022, those granted Humanitarian Protection are now only given permission to stay in the UK for 30 months as opposed to 60 months for those granted Refugee Status. Permission to stay on the basis of Article 3 may be granted for those who would face a real risk of intense suffering or a significant reduction to their life expectancy as a result of the absence/lack of access to appropriate treatment. However, this is a high threshold to meet, and it may be difficult to prove that environmental factors are not temporary.

The solutions are not straightforward. In the same way that the Geneva Protocol expanded the Refugee Convention and case law has developed the evolving application of Convention reasons to protect a great number of people, perhaps the Refugee Convention can encompass environmental migrants. There is a reluctance to legalise the term ‘climate refugees’ or divert too far from the intention of the Refugee Convention. A better solution is for a new international agreement to provide legal protection to environmental migrants with a focus on the effects of environmental factors rather than causation which is on par with the protection and enforcement of the 1951 Convention.

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