Tuvalu – Cabot Institute for the Environment blog

What protections are available to people displaced by climate change?

Posted on June 20, 2022April 16, 2023 by janet.crompton

Climate change will impact all our lives in the coming years and many people will experience extreme events due to climate change resulting in displacement, both internally and across international borders. This has become the reality for some already within low-lying archipelago islands within the South Pacific, such as Tuvalu and Kiribati. Despite the certainty of increased climate change-related displacement, there is still no specific frameworks which protect those moving for climate related reasons (see a detailed discussion here).

The site of the village of Tebunginako, Kiribati – relocated due to severe coastal erosion and saltwater intrusion (image: Department of Foreign Affairs and Trade, Australia)

Are people displaced by climate change refugees?

Under Article 1(A) of the 1951 Refugee Convention, climate-related displacement does not constitute grounds for international protection. I will take the essential elements of Article 1(A) in turn. First, a refugee must have crossed an international border, whereas climate-related displacement is expected to be predominantly internal.

Second, a refugee must have a well-founded fear of persecution. Persecution requires an egregious violation of human rights, which is assessed in light of the nature of the right and the severity of the violation (see here for further discussion). It also requires that the fear of persecution must be well-founded – this does not require certainty – but it must not be far-fetched and should be based upon both an objective assessment of the likelihood of persecution and the subjective nature of the individual’s fear (see Chan v Minister for Immigration and Ethnic Affairs, 1989). Climate change is unlikely to fulfil this requirement despite the detriment it can have on an individual’s access to human rights. It is unlikely to meet the severity threshold even in relation to socio-economic rights and, as McAdam (2016) highlights, it is difficult to identify a ‘persecutor’ that the refugee fears; instead, many refugees are likely to be moving to states that are major greenhouse gas contributors.

Third, persecution must be related to a reason given by the Convention of ‘race, religion, nationality, membership of a particular social group or political opinion…’ The impacts of climate change do not discriminate. Even if an individual did establish persecution based upon an egregious socio-economic rights violation caused by climate change, they would need to argue that this affected them because of their membership of one of these groups. At best, an individual could argue that a government had consciously withheld assistance to address the impacts of climate change to a specific group, amounting to persecution (see here) but the group must be connected by an immutable characteristic (Applicant A v Minister for Immigration and Ethnic Affairs, 1997), not just the impact of the climate change.

Courts have firmly established that the Refugee Convention does not protect victims of natural disasters, slow-onset degradation, poor economic conditions or famine – even when the country of origin is unable or unwilling to provide protection (Canada (Attorney General) v Ward, 1993; Horvath v Secretary of State for the Home Department, 2001). UNHCR has echoed this in its own discussions of how to respond to climate-related displacement (see here and here).

What protections are available to people displaced by climate change?

A response to climate-change related displacement must therefore be sought through other international legal mechanisms. In 2009, the UN Human Rights Council recognised under resolution 10/4 that there is a ‘core inter-linkage between human rights and climate change’ such that those displaced by climate change would be able to rely on the obligations outlined in the ICCPR and the ICESCR. In particular, this would include state’s non-refoulment obligations as the cumulative effect of socio-economic harms can amount to inhumane and degrading treatment such that an individual cannot be returned to such conditions (see Sufi v Elmi, 2011). However, courts may require an immediacy to the rights violation such that future fear of climate-related impacts is insufficient grounds to provide protection from return (see AF(Kiribati), 2013).

In the specific situation of small island states whose territory is threatened by climate change, the law relating to statelessness may also be able to provide some protection and a remedy (see the 1954 Statelessness Convention; Rayfuse 2009). UNHCR has a mandate to prevent and reduce statelessness enabling them to work with states to respond, including coordinating international cooperation, providing protection and resettlement. However, issues concerning when a state will have ceased to exist under international law remains unsettled. For example, for a state to be recognised by international law, Article 1 of the Montevideo Convention requires a permanent population, territory, government and capacity to enter international relations (see Lauterpacht, 1944, and Crawford, 2007, for further discussion). However, there is a lack of clarity on when these criteria will cease to be fulfilled. The problem that international law has grappled with until now has been when new states are formed, not when existing ones have disappeared. As a result, it is unclear when protection for stateless persons of ‘disappeared’ states will be triggered.

There are also regional frameworks that provide broader protections to displaced people, beyond the narrow 1951 definition. In particular, the 1969 OAU Convention Governing the Specific Aspects of Refugee Problems and the 1984 Cartagena Declaration both contain provisions relating to ‘events seriously disturbing public order’, which could be taken to include the events resulting from the effects of climate change. These are both non-binding instruments, whereas Article 5(4) of the Kampala Convention is within a binding instrument and explicitly includes protection for those affected by climate change:

States parties shall take measures to protect and assist persons who have been internally displaced due to natural or human made disasters, including climate change.

This focusses protection on internally displaced individuals and ensures that signatory states are required to provides protection and assist those displaced by climate change.

The Kampala Convention is largely based upon the UN Guiding Principles on internal displacement which, under Principle 6(d), outlines that internal displacement is prohibited including in the context of disasters. The principles then provide a framework for states to respond to internal displacement, including that resulting from disasters. The extension of human rights protections to those fleeing climate change is echoed in the Global Compact on Migration, which calls for humanitarian visas for people migrating due to natural disasters and climate change (see objective 2 and 5), as well as similar commitments in the Sustainable Development Goals. Such a response to climate-change related displacement is required under the commitments of Article 14(f) of the Cancun Adaptation of the United Nations Framework Convention on Climate Change (UNFCCC). This aims to enhance understanding, coordination and cooperation with regard to climate change induced displacement…’ These instruments represent moves by the international community to consolidate existing legal frameworks to respond to climate-change related displacement. However, they are not binding treaty law. They demonstrate political commitments not legal obligations. It is evident that, outside the Africa region, mechanisms for protecting individuals from climate-change related displacement are often non-binding and ad-hoc.

The future of climate-related displacement

The term ‘climate refugee’ is conceptually flawed. Such individuals will not constitute refugees for the term ignores the complex causation involved in any displacement, let alone that related to climate change, which in itself is a multi-causal phenomenon. Whilst human rights law, the law relating to statelessness and regional arrangements do provide for some protections to individuals displaced by climate change, these approaches remain disparate and uncoordinated. A lack of clarity can lead to legal loopholes that are abused by states to limit protections.

To respond to this complexity, there are calls for a separate framework for cross-border climate migrants. Commitments within the Global Compact on Migration and the Sustainable Development Goals, as well as the Cancun Agreement, represent attempts by the international community to start to coordinate and elucidate protection for climate-related displacement. However, much more must be done to ensure clarity on the personal, material and temporal scope of protections and obligations for climate change-related displacement.

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This blog is written by Dr Kathryn Allinson, a Lecturer in Law, University of Bristol Law School. Her research concerns the establishment of state responsibility for breaches of international law focussing on the interaction of human rights and humanitarian law in relation to displacement, and the protection of socio-economic human rights during conflict.

Kathryn Allinson

A previous MMB blog by Ignacio Odriozola looked at a landmark decision by the United Nations Human Rights Committee on people seeking international protection due to the effects of climate change: Climate-change displacement: a step closer to human rights protection.

Environments without Borders

Posted on May 3, 2017April 5, 2023 by janet.crompton

The effects of climate change vary hugely across political borders, and have wide-ranging impacts on different communities and environments. Climate policy responses must recognise this global interconnectedness, and integrate international cooperation with effective
local action. This is why global treaties such as the Paris Agreement are so important in the fight against climate change, but individual nations must also do their bit to achieve the objectives set out in the agreement. In Environments without Borders (part of Research Without
Borders), a panel debate hosted by Bristol Doctoral College and the Cabot Institute on Wednesday 10^th May, we will discuss some of these issues, using examples from our research on particular challenges facing our global ocean and water environments.

Iceberg photo taken on a research trip to Antarctica, by
Eric Mackie

Rising Sea Levels

Many climate change impacts require a policy response that balances mitigation with adaptation. Mitigation, by reducing global greenhouse gas emissions to achieve a zero-carbon economy, can drastically reduce some of the worst effects of climate change. However, we are already committed to certain climate change impacts, and these will require humanity to adapt. Sea level rise is a prime example. Global sea level has already risen 20cm since 1900, and the rate of sea level rise is increasing. We know this trend will continue throughout the 21^st century and beyond, but the question is, how much will sea level rise, and how fast?

Projections of global sea level rise by 2100 range from a further 30cm, assuming drastic mitigation action, to 1m or more in “business-as-usual” scenarios with increasing carbon emissions. Cutting carbon emissions can hugely reduce the number of people at risk of displacement by sea level rise globally, from up to 760 million in a scenario with 4°C of warming, down to 130 million if warming is limited to 2°C in line with the Paris Agreement. Mitigation is therefore essential if we want to avoid the worst effects, but adaptation is also necessary to ensure humanity is resilient to sea level rise that is already locked in.

A coastal scene taken on a research trip in the South
Pacific, by Alice Venn

Disappearing Islands

The South Pacific is home to some of the world’s states most vulnerable to climate change impacts. Sea-level rise threatens coastal erosion, the widespread displacement of people and the inundation of the lowest-lying islands in Tuvalu, Kiribati and the Marshall Islands, while oceanic warming and acidification threaten the livelihoods of many remote coastal communities. More intense tropical cyclones, Cyclone Pam in 2015 and Winston in 2016, have recently resulted in tragic losses of life and damages in excess of $449 million and $470 million respectively. The devastation facing Small Island Developing States in the region, when juxtaposed with their negligible contribution to global greenhouse gas emissions which is estimated at just 0.03%, serves to illustrate the need for the international community to urgently step up efforts to provide support. Enhanced financial assistance for adaptation is essential, however this must be accompanied by strengthened legal protection for communities, readily accessible compensation for loss and damage, capacity building and a strengthened role for civil society organisations giving voice to community needs and traditional knowledge in policy-making processes.

The Lion Fish is an example of an aggressive invasive fish
in the Caribbean Sea, and has had an impact over native species, ecosystems and
local economies.

Invasive Aliens

Biodiversity in water environments can be adversely affected by invasive fish species, which originate from different sources, including marine ballast, fisheries improvements, and aquaculture. Invasive fish species can cause environmental concerns such as changes in the nutrients cycle, transmission of diseases, competence for resources, displacement and extinction of native species. Success in the establishment of invasive species depends on propagule size, physiology of the proper species, and current biotic and abiotic factors in the invaded system. Invasive species represent a global issue, and when combined with climate change their effects can be sharpened. Some limiting abiotic factors are expected to change as the climate changes, favouring new invasions and the spread of established invasive species to new ranges. Milder winters in northern latitude lakes, worldwide flooding and salinisation of coastal freshwater systems will provide suitable thermal conditions, new pathways for escape and dispersion, and the increase in dominance by invasive fish species adapted to brackish water systems. Deficient planning for future responses in water management can also result in favourable conditions for dispersion of undesirable aquatic organisms. For example, this is the case with the Nile tilapia, an invasive species in tropical ecosystems of southern Mexico and Tanzania, where flooding causes its dispersion but alternative management policies could improve the situation. More information see the Invasive Species Specialists Group.

Sustainable Resource Management

Against the backdrop of climate change, which will exacerbate the impact of human activities on natural resources, today’s environmental challenges require above all a strong and consistent commitment by national governments to better implement ambitious environmental policies that they previously adopted. However, traditional decision making approaches often are not equipped to ensure that precious resources are protected, if not enhanced. Sustainable management of natural resources is without doubt complex and creates conflicts between users that compete for access. For instance, there still seems to be too great a divide between the environmental and the business sector and these policy domains are as yet not fully integrated. Nonetheless, there are good examples of governments (and sub-national governments) that were successful in getting all key policy sectors on board when implementing difficult and ambitious environmental policies. For instance, the Scottish Government’s approach in implementing the Water Framework Directive demonstrates that with a strong political commitment, coupled with very proactive efforts in balancing the decision making towards more inclusive and cooperative policy processes, and with an intense and systematic use of evidence to back up policy proposals, it is possible to build trust between sectors and to act upon the barriers to implementation.

It’s clear that each of these challenges requires imminent action, but what are the right approaches, actors, and requirements to make meaningful progress? Whether you’re a member of the public, a policy maker, or someone working in the field, we invite you to join us at the Environments without Borders event on Wednesday 10 May for a lively and provocative debate about the challenges we face and how, collectively, we can spur action for change.

Blog authors (and panel members): Laura De Vito is a postgraduate researcher in the School of Geographical Sciences. Carlos Gracida Juarez is a postgraduate researcher in the School of Biological Sciences. Alice Venn is a postgraduate researcher in the School
of Social Sciences and Law. Erik Mackie is a postgraduate researcher in the School of Geographical Sciences, working together with the British Antarctic Survey, and kept up a blog during his recent fieldwork in Antarctica. Blog originally posted on the Policy Bristol Blog.

The sinking Pacific – climate change and international aid in Tuvalu

Posted on March 25, 2013April 20, 2023 by janet.crompton

Sarah Hemstock (University of the South Pacific) came to visit the Cabot Institute on 20 March 2013 and presented the case study “Impacts of international aid on climate change adaptation in Tuvalu”. Here I sum up the main points raised by Sarah during her lecture. Please note all figures mentioned below are from Sarah’s talk.

Tuvalu

Climate change

Tuvalu is a microcosm for what is going on with climate change globally. There are issues with waste management, sea level rise, politics, energy, food production and others.

Tuvalu grows taro, a staple carbohydrate which is sensitive to saltwater. Due to rising sea levels, Tuvalu is affected by high tides called king tides. These tides can contaminate agricultural land with saltwater and thus the staple crop will not grow.

Flood defences have been built by aid agencies to try to stop sea level rise. Unfortunately they do not work as seawater bubbles up through the island at king tide, flooding the airport and villages. There is now no fresh water and villages are completely dependent on collecting rainwater.

International aid and the economy

Sarah began to explain why Tuvalu needs to move away from aid to become more self empowering. She started to list the facts. Globally, $140bn has been given to international aid between 1970 and 2010, it certainly is a lucrative business. There are four agencies who accept international aid in the Pacific. Three of these agencies have mandates for climate change, fisheries, GIS and mapping etc which prevents any market driven approach to getting aid. Another problem with these agencies is their size. For example, Secretariat of the Pacific Community (SPC) has grown from 300 employees at its inception to 3000 today. Large numbers of employees can see international aid going towards feeding these agencies rather than having a smaller administrative group and diverting the main bulk of funds to helping save the islands of the Pacific. It could be argued that these large companies provide jobs for people in the Pacific, but in reality, these jobs are not very likely to go to people from the small island states such as Tuvalu (for which the aid is supposed to be for), which are isolated and poor.

Tuvalu has a weak economy. There is a lack of exports but a lot of imports to people who are not native to the island and want a little something from home. 83 % of Tuvalu’s energy comes from oil and a shocking 50% of Tuvalu’s annual GDP comes from aid. People in Tuvalu are subsisting on less than $2 a day. However, because Tuvalu receives a substantial amount of ‘aid’ they are recognised as a middle income country, but this aid does not filter down to the people and in fact Tuvalu should be considered as a low income country.

Tuvalu spends $6m on policy development, although these policies rarely do anything and could be considered a waste of money which could be better used in the community. The amount of diesel used for electricity consumption has increased. However, petrol usage has decreased, mainly due to people going back to using traditional canoes as they are cheaper to run.

A desperate situation – a sinking community

Between 2004 and 2007, fossil fuel use increased by 21%. Sarah felt that this was because funders ignore policy. For example, a Japanese company gave Tuvalu three diesel energy generators. Tuvalu asked for generators that could run on coconut oil in line with environmental policy but due to cost, the donators could not provide these. Tuvalu couldn’t afford to run the diesel generators so Japan donates $2m of oil every year to run them making Tuvalu totally dependent on donations for its energy supply.

There is no market, no money and no tourist industry in Tuvalu so there is no way of generating money. It is an isolated island and boats to Fiji run every 5-6 weeks. When weather is bad, food, oil and supplies are not delivered.

Sarah explained how there is no joined up thinking with international aid and no long term plans after the aid has disappeared. An example of this is where water tanks were given to each home in Tuvalu and they were also made in Tuvalu. The problem with the design was that it has a sealed top which meant it could not be stacked. This meant it would have taken 25 years to get everyone a tank, as only six tanks would fit on each ship. The good news was that they managed to get a barge to ship them out, but it is this lack of foresight which hampers the success of aid activities.

Sarah also mentioned how 35% of aid goes straight back to the company who gave the money to pay for ‘technical assistance’ and admin fees. There are other fees which come out of international aid. In fact if aid was taken away from Tuvalu, it wouldn’t affect the people much as the aid hardly reaches them anyway.

Interestingly, the people of Tuvalu are extremely mentally resilient to the threat of climate change. When asked if they would move off the island if climate change flooded their islands, they were determined to stay on the island no matter what. When the question was framed in an economic sense, for example would they move off the island for work, they were more open to the idea of moving off the island. This is a difficult ethical argument. What right do we have to move the islanders to safety, to move them to a different country, culture and language when they do not want to go?

Climate change may be physically sinking the small low-lying islands of the Pacific, but it is the international aid agencies which are arguably sinking them beyond recovery. A drastic change is needed in the management and distribution of international aid in order to save these dying islands from the rest of the world’s actions.

Listen again to Sarah Hemstock’s Cabot Institute seminar.

This blog was written by Amanda Woodman-Hardy (@Enviro_Mand), Cabot Institute

Amanda Woodman-Hardy, Cabot Institute