Refugees Under International Law
Current international law regarding refugees dates back to the years immediately after the holocaust and World War 2 when the international community established an agreement on the status of refugees of that war and a framework for displaced people going forward. Article 14 of the Universal Declaration of Human Rights of 1948 recognized the right of persons to seek asylum from persecution in other countries. Later the 1951 Convention relating to the Status of Refugees and the 1967 Protocol outlining its application defines a refugee as a person who, “owing to a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion is outside of the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country.”
The 1951 Convention and 1967 Protocol guarantee anyone the right to seek asylum in any signatory country and require that signatory countries either accept those asylum seekers as refugees or facilitate safe passage to a safe third-country willing to accept them as refugees. While asylum seekers not granted refugee status may be relocated to a safe third country, the refugee convention bars signatory countries from returning asylum seekers to a country where they face danger of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion.
Seeking asylum, then, is constructed in international law as a last resort and refugee status is only to be granted to migrants with no other safe alternative. This construction of refugee status necessarily characterizes refugees as helpless and at the mercy of their host country. While this frame is useful in garnering sympathy for climate migrants, it can also rob the people at the front lines of the climate crisis of their agency and autonomy.
There is no requirement under the Convention or Protocol to seek asylum in the first safe country an asylum seeker travels through, nor is there any requirement for asylum seekers to present themselves at a specific port of entry. As a result, central American migrants traveling to the United States through Mexico have an absolute right under international law to seek asylum in the US either at a port of entry or shortly after crossing into the US outside of a port of entry. Further, at this writing (January 2019) the United States does not recognize Mexico as a safe third country so returning central American migrants to Mexico would constitute a violation of the US’ obligations under the 1951 Convention.
The situation is slightly different within the European Union. The Dublin Protocol requires asylum seekers arriving in the EU to request asylum and be fingerprinted in the first EU country they arrive in and that their asylum claim be processed there. This system has forced much of the burden of the current refugee crisis on EU border states and acted to shield some of the wealthier EU states from increases in migration.
Notably, international law regarding refugees and asylum seekers only applies to people who are forced to cross national borders. People who are forced from their homes but are able to migrate within the borders of their home countries are categorized as internally displaced people (IDPs). Internally displaced people are granted some protections under the UN’s Guiding Principles on Internal Displacement and often some support from the UN High Commission on Refugees, but generally speaking, the wellbeing and treatment of internally displaced people is considered to be within the prevue of national authorities.
A New Paradigm in Climate Migration
Although climate-induced migration bears many similarities to other historical modes of migration, the climate crisis presents the world with a brand-new frame for international migration. Where historic flows of migration could be ebbed by addressing the factors leading to displacement—ending violent conflicts, improving local economic conditions or offering protections to persecuted populations—the time when climate change could be completely prevented has long passed. While serious action to reduce emissions of greenhouse gasses is necessary and can likely ameliorate some of the most devastating consequences of climate change, environmental conditions around the world are rapidly changing and no amount of political posturing or climate change denial is going to change that.
Further, many of the worst effects of climate change are fully anticipatable. It may be difficult to predict where war, famine or economic depression will lead to mass displacement, but current climate change models offer some reliable predictions about areas of the world that are likely to become uninhabitable. As sea levels rise large swaths of land will find themselves underwater, as temperatures rise some arable farmland will become less viable, and as glaciers melt regions will see their rivers dry and lose key sources of potable water.
The predictable nature of climate change allows for communities on the front lines of the climate crisis to make plans to adapt or migrate before conditions actually deteriorate. While waves of mass migration are often reactive—people fleeing war, natural disaster, or famine—climate induced migration can be anticipatory. By making plans and beginning to migrate before disaster sets in, people on the front lines of the climate crisis can reduce the human and financial costs of being forced to flee their homes.
Anticipatory climate migration, however, demands a new paradigm for international migration. Current international law only offers refugee protection to people who can no longer stay in their home countries (and then only if their displacement is caused by persecution based on race, religion, nationality, membership of a particular social group or political opinion). Public and political support for humanitarian aid for people displaced by disasters is strong. In the aftermath of Typhoon Haiyan, the international community raised more than $300 million in aid, and after Hurricane Mitch battered much of Central America the US government offered Temporary Protected Status for migrants from Honduras and Nicaragua. But to date, there have been no similar mobilizations of support for people leaving their homes in anticipation of climate change.
The reactive nature of traditional responses to humanitarian crises assures a worst-case scenario for people forced from their homes by changes in their climate. Without viable options for planned migration in anticipation of changes in the climate, people on the front lines of the climate crisis are forced to wait until disaster strikes before receiving aid or legal immigration status on dry ground.
Forcing communities to wait for conditions to deteriorate to the point that storms, floods and other acute events forces residents to evacuate often leads to people leaving their homes and possessions behind, without time to make plans for their travel or destination . The consequences of waiting for disaster strike can be devastating.
It is telling that the cautionary tale about not preparing for climate change that is cited again and again in the literature on climate migration is not a small island in the Pacific Ocean. Rather, it is an industrialized city that is home to two oil refineries and at the time did not teach climate change as a fact in its public schools: New Orleans. When Hurricane Katrina hit New Orleans, more than a million people were forced from their homes with 600,000 still displaced months later; damages climbed to $150 billion, and at least 986 people were killed. Forty-percent of those killed in the storm drowned in the flooding .
In New Orleans, policymakers had the hubris to deny that climate change was even happening and they refused to make serious adaptation plans. And when it was clear that a major storm was coming, the evacuation plan left the most vulnerable—poor Black residents who could not afford to load up their SUV and drive north for a few days—behind to die in the flood.
Beyond the human and financial costs of failing to take steps to adapt to the changing climate, preventing people from migrating before conditions deteriorate create serious political instability, fueling conflict and leaving behind a string of failed states. As early as 2004, US military leaders recognized the military and security risks of unaddressed climate change, commissioning the study, “An Abrupt Climate Change Scenario and Its Implications for the United States.” Later, in 2008 Congress mandated that the national-security impacts of climate change be included the Department of Defense Quadrennial Defense Review. Climate change is now widely recognized by security experts as a threat multiplier for instability because of its potential to generate resource scarcity, conflict over those scarce resources and mass migration .
With the benefit of projections about the most severe impacts of climate change, people living on the front lines of the climate crisis are taking action to avoid some of the most disastrous consequences of climate change imaged in these security assessments. In many cases, populations vulnerable to the effects of climate change are implementing adaptation measures to allow them to stay in their homes—or at least in their home countries. In other cases, comprehensive and early preparation are ensuring a best-case-scenario for planned migration, ensuring that migrants have the best-available knowledge about the risks and opportunities and are able to make choices that are appropriate for themselves and for their communities .
In order for people to effectively plan and adapt to the changing climates we must remove the artificial boundaries preventing people from moving. We need to open borders around the world to allow people and communities on the front lines of the climate crisis to identify and actualize long-term, culturally appropriate strategies to adapt to the changing global climate.
Introduction | Open Borders | Communities at the Front Lines | Front Line Solutions