In the aftermath of COP21 in December 2015, when the world celebrated the adoption of a new climate treaty, several commentators and academics asked an all important question: what about climate migrants? Many articles have since sprung up analysing whether and how climate migration has been addressed by the Paris Agreement. But the field is divided between those proclaiming that the treaty failed climate migrants or that they have been “displaced” from the Paris Agreement and those hailing it as an important stepping stone for tackling the issue.
In the midst of a migration crisis in Europe, climate migration – or the question of how global warming affects human mobility and vice versa – has started making headlines again. It is a global issue that is highly politically charged but also subject to statistical uncertainty. While forecasts of numbers of future climate migrants have proven difficult, looking back, the Internal Displacement Monitoring Centre (IDMC) estimates that since 2008 an average 22.5 million people have been displaced every year due to climate or weather-related disasters such as floods and storms. However this statistic neglects displacement due to slow-onset climatic impacts, such as sea level rise, droughts and other forms of gradual environmental degradation resulting from warming temperatures. Indeed, should global average temperatures rise beyond 2°C relative to pre-industrial levels – thus exceeding the upper limit (the 2-degree target) set in Paris – associated slow-onset climate impacts could very well lead to a significant increase in the number of people forced to leave their homes.
But climate migration also raises important legal issues, starting from the very question of how you define a climate migrant. There is currently no universally accepted definition and the field is fraught with varying terminology, labelling persons relocating or forced to relocate due to climate-related impacts as climate refugees or eco-refugees, environmentally displaced persons or environmentally motivated migrants, amongst others. “What’s in a name?” one might be inclined to ask. Indeed, some academics and non-governmental organizations have faced criticism for using the term “climate refugees” since refugee status is protected under key international agreements, first and foremost the 1951 Refugee Convention, which safeguards the rights of those fleeing political persecution. Environmental factors forcing a person to leave their country are not recognised under the Convention, as was exemplified in the recent case of Ioane Teitiota, a native of Kiribati, who was seeking asylum in New Zealand on the basis of global warming’s adverse environmental effects on his homeland. The Supreme Court of New Zealand dismissed the argument that the danger of climate change amounts to such persecution as defined by the Convention.
This has led some authors to suggest that there exists a regulatory gap when it comes to the protection of climate migrants. To date, several attempts have been made to remedy this gap through regional instruments, voluntary guidelines and initiatives, legal instruments proposed by academics, the reinterpretation of human rights instruments and, finally, through grassroots level action. The merits of some of these solutions were recently discussed by a panel of legal experts on human mobility during the Climate Law and Governance Symposium in Cambridge, which I had the pleasure of attending.
So how does the Paris Agreement address this highly political and complex issue?
While the Agreement does not address climate migration per se, its preamble does contain a reference cautioning State Parties to “respect, promote and consider their respective obligations on human rights, the rights of […] migrants, […] and people in vulnerable situations”. Although the preamble is not legally binding on State Parties as compared to the operative part of the Agreement, the reference can be construed as the first recognition of the issue of climate migration in the text of an international climate treaty. Though a more explicit link may have been desirable, the inclusion of specific language addressing migration in the context of climate change has been hailed as a breakthrough by human mobility advocates.
Could the Paris Agreement have done better?
The COP Decision accompanying the Paris Agreement addresses “displacement related to the adverse impacts of climate change” under the section on Loss and Damage (Paragraph 50), calling for the creation of a task force to complement and build upon the work of existing bodies and experts with the aim of developing recommendations on the issue. Like the preamble, the COP decision is not legally binding, though it could provide guidance for interpreting the treaty text. (Also this is not the first time that a COP decision under the UNFCCC addresses climate migration: two prior decisions were adopted in 2010 and 2012, under adaptation and loss and damage, respectively). Nonetheless, the COP Decision is important since it quite clearly indicates that in the UNFCCC context, climate migrants should be dealt with under the loss and damage regime. (Loss and damage is a key concept in climate governance that seeks to develop ways to attribute responsibility for any losses and damage, economic or otherwise, resulting from climate change impacts.)
The invitation to set up a task force on climate displacement is a first step in the right direction towards consolidating the work of academic experts, international and non-governmental organisations on climate migration and feeding this knowledge into the UNFCCC process. At the same time, the COP Decision leaves many unknowns, since it does not provide any information on how the task force, once set up, will work, how it will be funded, its precise relationship with other international bodies working on climate migration, by when it would have to formulate recommendations, let alone what will happen with those recommendations.
Now while the Paris Agreement has been hailed as a “stepping stone” for climate migrants by the International Organization for Migration (IOM), the negotiation history of the treaty paints a much more sobering image. Prior to Paris, an Advisory Group on Climate Change and Human Mobility made up of leading academic and civil society experts on the topic, identified a much broader range of possibilities on how climate migration could be incorporated into the Paris Agreement than a mere reference to “migrants” in the preamble. Furthermore, the State Parties negotiating the Paris Agreement initially debated the creation of a “climate change displacement coordination facility”, which would have had a considerably stronger mandate than the task force. For example, the facility was to provide for the organised migration and planned relocation of displaced persons, secure emergency relief, and to arrange for compensation for those displaced – i.e. those elements that would give the task force some teeth. The idea of creating such a facility, which was first introduced into the UNFCCC process at COP-20 in Lima in December 2014, gained traction during subsequent meetings but was shot down ahead of the Paris negotiations through opposition from Australia.
Considering what might have been achieved, the inclusion of climate migration in the Paris Agreement certainly falls short of expectations. The mere reference to migrants in the preamble, rather than an explicit reference to climate migration in the operative parts of the treaty, is disappointing, so is the lack of detail in the mandate of the new task force (which at the time of writing is yet to be set up). But knowing the treaty is the result of a carefully crafted compromise between 195 State Parties with differing economic and security agendas, the creation of a dedicated task force embedded within the UNFCCC process indeed provides an important, dedicated platform to formalise what has hitherto been a highly fragmented field.
Ultimately, whether the new task force on climate displacement can live up to expectations, or whether it will turn out to be just another paper tiger, will depend largely on how it is operationalised.
In a first step, the Executive Committee (ExCom) of the Warsaw International Mechanism for Loss and Damage met in Bonn in February 2016 to discuss amongst other issues the establishment of the task force as mandated by the Paris COP Decision. A working group under the ExCom was put in charge of developing a draft road map to guide this process which envisages drafting the terms of reference (TOR) as well as a work plan for the task force. While the TOR have not been made available to date, the work plan will be presented at ExCom 3 in April 2016. It is anticipated that the task force will meet for the first time in the second half of 2016 ahead of COP22 in November 2016 in Marrakech. Further information on the ExCom process can be accessed here.
Header image: Courtesy of Sebastian Lasse