Climate change and international refugee law: A predicament approach

Lauren Nishimura
RefLaw, Editorial Advisory Panel
Oxford University, Doctoral Candidate

Climate change is a reality, producing both extreme weather events like cyclones and storms and slower processes like drought, salinization, and sea level rise.[1] Since 2008, it is estimated that an average of 22.5 million people a year have been displaced by sudden onset impacts alone,[2] with slower onset processes also affecting individuals’ vulnerabilities and acting as drivers of additional human mobility.[3] As these impacts have become more apparent, there have been regular calls for attention to the plight of “climate refugees.”[4] The consensus among legal scholars, however, is that this category is a misnomer; use of the term has been called “scholarly suicide in the world of international refugee law.”[5] But the analysis does not have to end there. The need to provide protection for those who move in the context of climate change is critical; it will require creative work to both develop new frameworks and make use of those that already exist. In this spirit this article reconsiders the potential application of international refugee law in the context of climate change.

The first section of this article explores the arguments for why those who move in the context of climate change do not fit within the definition of a refugee under the Refugee Convention.[6] These arguments are not wrong, but they also do not exhaust all potential applications of refugee law in the context of climate change. The second section of the article then examines scenarios in which refugee protections may still be applicable. This includes situations in which climate change contributes to conditions that become grounds for protection, such as armed conflict, and when actions to address climate change involve discrimination. This article also argues, however, that an interpretation of the refugee definition using what has been called “the predicament approach” could provide protections in another subset of situations, in which some of those most vulnerable and already marginalized are forced to move across borders in the wake of climate impacts.

I. Arguments against “climate refugees” as a legal category

Most legal scholarship and current case law dismisses the applicability of international refugee law to mobility related to climate change. This stems from the belief that those moving away from the impacts of climate change do not meet the legal definition of a refugee and consequently are not entitled to the protections that such a status affords.

The Refugee Convention defines a refugee as any person who:

“owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence as a result of such events, is unable or, owing to such fear, is unwilling to return to it.”[7]

An individual is considered a refugee as soon as they meet the relevant criteria, rather than when they receive formal recognition. Accordingly, one does not become a refugee only when recognized as such; rather, recognition merely confirms the status a person who meets the definition already holds.[8]

A. Outside the country of origin

A person who crosses an international border in the context of the impacts of climate change and natural disasters satisfies the first condition of the refugee definition: being outside their country of origin or habitual residence. However, past studies of those who move away from environmental change indicate that most people initially move internally—within their own country.[9] This is also expected to be the case for mobility related to climate change, with many who move predicted to remain within their country.[10] For these migrants, refugee law is not applicable. Yet there are and will continue to be those who cross international borders in the wake of climate and environmental change.

B. Persecution

To qualify as a refugee, a person must have a well-founded fear of being persecuted. Much criticism of the application of refugee law to climate change focuses on the lack of requisite persecution. Persecution involves two elements: serious harm and a failure by the state to protect from such harm.[11] Yet the Refugee Convention does not require that the two elements come from a single source; a “bifurcated understanding” considers persecution as serious harm plus the failure of state protection.[12] Currently, both aspects of persecution have been questioned in the context of mobility related to the impacts of climate change.

Serious harm is the sustained or systemic denial of human rights.[13] The human rights that are impacted by climate change and mobility are many but will often include economic, cultural, and social rights.[14] Refugee status tends to be recognized based on serious harm to certain civil and political rights, although violations of socio-economic rights have increasingly been found to give rise to a refugee claim.[15] This includes claims grounded in the deprivation of an adequate standard of living and associated rights to food, housing, and health.[16] Courts that have heard claims for refugee or protected status due to climate impacts have not found the risk of harm or harm experienced sufficiently imminent or severe to warrant protection. For example, New Zealand courts have concluded that environmental degradation on a small island state like Kiribati is not currently severe enough to place one’s life in jeopardy or to put at risk the enjoyment of an adequate standard of living.[17]

Furthermore, a number of scholars conclude that environmental disruptions or the impacts of climate change—whether rising sea levels, tropical storms, droughts, or flooding—do not amount to persecution.  They highlight difficulty identifying a persecutor, question whether the harm has reached the threshold of persecution, and note that states may be willing to provide protection.[18] Some point out that harm from the impacts of climate change cannot be connected to the specific intent of a persecutor.[19] However, the idea that persecutory intent must be proven has been criticized, as it can place an impossible burden on the refugee to prove the persecutor’s thoughts.[20]

Other scholars do not take a bifurcated approach, arguing that an “agent of persecution” is required and that this is hard to meet when the source of serious harm related to movement is environmental.[21] The need for an agent of persecution often refers to the idea that persecution must emanate from or be imputed to the state.[22] The term ‘agent of persecution,’ however, can be confusing. The need for a link between persecution and government action or authority is not required.[23] Non-state actors can also be responsible for the serious harm caused to refugees.

Indeed, international non-state actors in developed countries are primarily responsible for the causes of climate change, and these actors are often located outside the state where the gravest impacts may force people to leave their homes. It has been argued, however, that identifying these actors as persecutors “would create substantial difficulties, because one would have to establish the causality between their action/inaction and the respective climate change impact in each individual case,” which is considered “virtually impossible” at this time.[24] This identification has also been called a “reversal of the traditional refugee paradigm” because it involves “delinking” the persecutor or cause of persecution from the territory from which flight occurs.[25]

Additionally, the second element of persecution—a lack of state protection—has been questioned in the case of climate change. A failure of protection occurs when a state is unwilling or unable to protect against the risk of serious harm. With the impacts of climate change, states may be willing to protect those on the move. Many states may also be able—at least for the time being—to provide some form of protection or an alternative location to live without risk of serious harm. Furthermore, some people in places most at risk from the impacts of climate change, including those living on certain small island states, resist the idea of being called refugees.[26]

C. For reasons of race, religion, nationality, membership of a particular social group, or political opinion

In refugee law, serious harm and a lack of state protection is not enough. Discrimination is also required as an element of persecution, and such discrimination must be for at least one of five grounds specified in the Convention: race, religion, nationality, membership of a particular social group, or political opinion. Thus, even if persecution can be established, it must also link to one of the five Convention grounds.

The impacts of climate change are indiscriminate, and not tied to a person’s identity or political beliefs.[27] Those at risk from these impacts are unlikely to qualify as a particular social group, which requires that a person face discrimination on the basis of an identifiable, immutable characteristic. Indeed, it is not the risks to individuals caused by climate change that would create a cognizable social group, but some shared attribute independent of this risk. Cases rejecting the application of refugee law to climate change have highlighted the fact that even if a person faces serious harm, this harm or the failure of state protection is not related to the protected characteristics listed in the Convention.[28]

II. The applicability of the Refugee Convention to climate change

Climate change contributes to situations that have been recognized as triggering refugee movement. First, the impacts of climate change include drought and desertification, which often cause resource constraints. Conflict may occur alongside or be aggravated by such impacts. Competition over resources can turn to conflict, which in turn can lead to increased movement.[29] In the Lake Chad basin, for example, the confluence of climate change impacts and water extraction has resulted in a dramatic shrinking of Lake Chad, which has further constrained resources and acted as one potential driver of ongoing conflict and refugee movement.[30] Certain ethnic or religious groups may also experience disproportionate harmful impacts related to conflict and climate change, including famine and food or livelihood insecurity, which may provide the necessary connection between persecution and one of the five Convention grounds.[31] Thus, some of those who move from places of environmental constraint and conflict—and who cross borders—can qualify as refugees. But they would be classified as refugees on grounds relating to persecution without respect to whether the underlying causes of that persecution involve climate change.

Second, there may be some instances where a government discriminates in the provision of assistance or protection from the impacts of climate change.[32] If discrimination occurs on the basis of one of the enumerated reasons in the Convention, then those who cross borders may be refugees. Similarly, if a state is unable to protect individuals from non-state persecution in an area experiencing significant climate change impacts, then a claim for refugee protection could be warranted. Climate change may also be used as a pretext to target certain groups or individuals, through inter alia policies that affect access to food, agriculture, and water, or via more direct action that destroys resources.

These scenarios, though limited, show that international refugee law provides protection for some who cross borders in the context of climate change.[33] In these cases, however, protection is not based on the harm caused by the impacts of climate change but the discriminatory acts that followed.

A.   Applying the predicament approach

Although there will be limitations, international refugee law may have additional relevance to climate change beyond those situations already identified as contributing to refugee movement. Greater scope for its application hinges on an understanding of the refugee definition that takes a predicament approach to connecting persecution to one of the five Convention grounds.[34] This approach looks at the potential refugee’s predicament—the reasons for their exposure to the risk of being persecuted. It does not require that a persecutor intend to cause serious harm, that such harm is the direct consequence of discrimination based on a characteristic protected by the Convention, or that the harm and discrimination experienced come from the same source. Instead, the predicament approach shifts the focus to the link between the risk of persecution and whether this risk is due to one of the five Convention grounds.

The predicament approach is consistent with the argument that proof of persecutor intent is not necessary to establish persecution under the Convention. As discussed, this evidentiary hurdle has been questioned or abandoned.[35] UNHCR’s Guidelines on International Protection support the predicament approach, for example, stating:

“[t]here is no need for the persecutor to have a punitive intent to establish the causal link. The focus is on the reasons for the applicant’s feared predicament within the overall context of the case, and how he or she would experience the harm rather than on the mind-set of the perpetrator.”[36]

There is also no need for the serious harm—in this case climate change—and the discrimination an individual faces to come from a single source or actor. Nor must serious harm be directly caused by discrimination based on a Convention ground. Nothing in the Refugee Convention text necessitates these connections. The refugee definition requires that a “fear of being persecuted” be linked to one of the five protected characteristics, rather than a fear of persecution.[37] The choice of wording implies an emphasis on the situation of the potential refugee—their reason for being exposed to serious harm and a failure of state protection—and not the intent of a persecutor or state withholding protection. This focus translates into cases where laws or policies of general application that have a disproportionate impact on certain individuals may “amount to persecution for a Convention reason.”[38]

Thus, the impact or serious harm stems from a general source that is not on its face discriminatory, but that may be in effect or because of existing marginalization. Examples cited as relying on the predicament approach include cases involving conscientious objectors or children. The former set of cases find persecution based on a law of general application that results in harm to those with a political belief opposed to conscription; the latter focus on the risk of persecution due to the vulnerability that can ensue by virtue of being a member in the particular social group of children.[39]

Likewise, the impacts of climate change are in themselves indiscriminate, but will place the greatest stress on those who are already vulnerable, some of whom may be marginalized, in precarious situations, or lacking state protection. For these individuals, serious harm could occur if a state fails to take measures to prevent foreseeable harm from disasters or climate change impacts, the measures it takes are insufficient, or it is unable to address impacts.[40] The analysis of one’s predicament—why they experienced or are at risk of such serious harm—would focus on the reasons for an individual’s vulnerability to impacts. Under this approach, a person who finds him or herself in a particularly vulnerable situation and at risk of serious harm (their predicament) because of one of the Convention grounds (race, religion, nationality, membership of a particular social group, or political opinion), and who then moves across a state border in the wake of climate events or disasters, could qualify as a refugee.

While the Convention was adopted at a time before climate change was contemplated, it is a living instrument that must evolve in order to remain effective.[41] Accordingly, it should be interpreted in light of current conditions and the existing international legal system.[42] Judicial bodies are open to and have driven evolutions in refugee law; they have also acknowledged that the possibility of a refugee claim is not foreclosed simply because serious harm is caused by environmental degradation.[43] Indeed, such degradation, whether caused by climate change or otherwise, may provide a context in which a pathway into the Refugee Convention or claim for recognition as a protected person may be properly grounded.

B. Weighing the predicament approach

The predicament approach could expand the breadth of international refugee law’s application to climate change. It could, for example, allow for claims from individuals in certain groups—religious minorities, indigenous persons, and members of a cognizable social group—whose living conditions or location make them particularly vulnerable to climate change. If these individuals are vulnerable to serious harm because they belong to or are identified as a part of such a group, and they cross borders, then they could be considered refugees.

There are several obstacles to this approach to the Convention’s application. First, it is unclear if the use of the predicament approach is politically feasible or a direction advocates, courts, or other state actors wish to pursue. Two global compacts—one on refugees and one on migrants—acknowledge the role climate change plays in driving human mobility. But they are clear that they do not create any legal obligations.[44] Second, some scholars and advocates argue that any recognition of a new category of refugee will dilute access to protection for those currently considered refugees;[45] their protection is already eroding, particularly in places where rhetoric is increasingly xenophobic. However, while the interpretation of the refugee definition outlined in this article would involve a shift for some judges and scholars, it would not throw open the doors to an unbounded new category of “climate refugees.” Use of the predicament approach does not mean that everyone who moves in the context of climate change is a refugee. Rather, it uses an interpretation of the refugee definition to include some individuals who are at risk from or have experienced serious harm due to the impacts of climate change because of a protected characteristic.

Third, even if the scope of refugee protection is expanded, it will not cover all forms or situations involving climate related mobility. A number of countries affected by cross-border movement related to climate change are not parties to the Refugee Convention and thus not bound by its obligations.[46] There will also be those who move internally or proactively before the worst impacts are felt.

Finally, the predicament approach would rely on a status determination after serious harm is imminent or has occurred, and following movement. The serious harm caused by the impacts of climate change would need to reach a level where it poses a serious threat to an individual’s basic human rights. This must also coincide with a state’s unwillingness or inability to protect; there may be discrimination that leads to situations of vulnerability, but this may not always be the case. In many places, governments may take action on climate change or possess the ability to find suitable internal relocation options.

Unfortunately, the predicament approach may become increasingly relevant in the future, when the impacts of climate change are so severe that those in their wake face grave risks and states are unable to cope. Timely or fully effective solutions to climate related mobility also require proactive approaches, and human rights protection throughout a migrant’s journey.[47]

III. Conclusion

There are good reasons to question the general applicability of refugee protections to climate change. It is true, for example, that disasters and changes to the environment do not in themselves discriminate. But there are some instances where a traditional understanding of refugee law still applies. Additionally, an interpretation of the refugee definition that embraces the predicament approach could encompass situations in which some of those most vulnerable and already marginalized are forced to move across borders in the wake of climate impacts.

Climate change and the mobility that accompanies it present global, urgent, and complex challenges that require consideration of new and innovative solutions. International cooperation and assistance are needed. New frameworks and existing mechanisms should be considered. Thus, while the predicament approach will not provide a complete solution to climate related mobility, it is an example of what is needed in this context: creative thinking about how to use international protection frameworks to address climate related mobility.

[1] See, e.g., IPCC, ‘Climate Change 2014: Synthesis Report. Contribution of Working Groups I, II and III to the Fifth Assessment Report of the Intergovernmental Panel on Climate Change’ (IPCC 2014) <https://www.ipcc.ch/pdf/assessment-report/ar5/syr/SYR_AR5_FINAL_full_wcover.pdf> accessed 21 August 2018. For more examples, see ‘The Slow Onset Effects of Climate Change and Human Rights Protection for Cross-Border Migrants’ (OHCHR 2018) Conference Room Paper A/HRC/37/CRP.4 <https://perma.cc/CXC9-VNDZ> accessed 21 August 2018.

[2] IDMC, ‘Global Estimates 2015: People Displaced by Disasters’ (2015) 8 <https://perma.cc/YEH8-PNWX> accessed 18 August 2018; Migration and displacement have long been acknowledged as one of the greatest threats posed by climate change. See also IPCC, ‘Climate Change: The 1990 and 1992 IPCC Assessments, IPCC First Assessment Report Overview and Policymaker Summaries and 1992 IPCC Supplement’ (IPCC 1992) 103 <https://perma.cc/R3BY-JUDM> accessed 21 August 2018.

[3] There is no agreed upon legal definition to describe those who move in the context of climate change. In this article, “human mobility” or “mobility” is used as an umbrella term to refer to movement related to climate change, which includes displacement, migration, and the movement that falls on the continuum between the two. See ‘The Slow Onset Effects of Climate Change and Human Rights Protection for Cross-Border Migrants’ (n 1) paras 15-16.

[4] For example, this can be seen in media reports, statements by politicians, and in the work of advocacy organizations. See, e.g., Tim McDonnell, ‘The Refugees The World Barely Pays Attention To’ NPR.org (20 June 2018) <https://perma.cc/VS3L-LHEU> accessed 19 July 2018; Matthew Taylor, ‘Climate Change “Will Create World’s Biggest Refugee Crisis”’ The Guardian (2 November 2017) <https://perma.cc/KA48-JL8A> accessed 19 July 2018; Lara Marlowe, ‘Michael D Higgins Calls for Support of “Climate Refugees”’ The Irish Times (21 July 2015) <https://perma.cc/W8Z9-5QVS> accessed 12 August 2018; ‘Climate Refugees, Advocacy Organization’ (About) <https://perma.cc/QSC8-FD8E> accessed 12 August 2018.

[5] François Gemenne, ‘The refugees of the Anthropocene’, in Research Handbook on Climate Change, Migration and the Law 394–404, 394 (Benoît Mayer & Francois Crepeau eds., 2017). This article focuses on refugee as a legal term, and does not engage with the use of “climate refugees” as a tool in advocacy or raising awareness. See id. at 396, 400 (advocating the use of the term “climate refugees” to highlight the plight of those moving and to avoid the label of migrant and the current de-politicization of migration).

[6] See Convention Relating to the Status of Refugees, 28 July 1951 (‘Refugee Convention’ or ‘Convention’).

[7] Refugee Convention (n 6) art 1(A)(2).

[8] James C Hathaway and Michelle Foster, The Law of Refugee Status (Cambridge University Press 2014) 1, 25.

[9] François Gemenne, ‘Migration Doesn’t Have to Be a Failure to Adapt’ in Jean Palutikof and others (eds), Climate Adaptation Futures (John Wiley & Sons 2013) 238; Koko Warner and Tamer Afifi, ‘Enhancing Adaptation Options and Managing Human Mobility: The United Nations Framework Convention on Climate Change’ (2014) 81 Social Research: An International Quarterly 299, 307 <https://perma.cc/AP6C-96SC> accessed 21 August 2018 (finding rainfall variability and its effect on food production systems caused migration “almost entirely within national borders”).

[10] See, e.g., Chaloka Beyani, ‘Protection of and Assistance to Internally Displaced Persons’ (2011) A/66/285 para 19 <https://perma.cc/HQ8C-HMLF> accessed 21 August 2018.

[11] The Refugee Convention does not define persecution, but courts and scholars have interpreted the concept to require a violation of human rights. Hathaway and Foster (n 8) 182–211, 288-319 (being persecuted involves serious harm plus a failure of state protection, with human rights as a benchmark of such harm); Jane McAdam, Climate Change, Forced Migration, and International Law (OUP 2012) 43 (persecution involves serious violations of human rights); AF (Kiribati) [2013] NZIPT 800413 (Immigration and Protection Tribunal) para 53 <https://autlawiel.files.wordpress.com/2014/07/af-kiribati-2013-nzipt-800413.pdf> (adopting Hathaway’s definition of persecution as “the sustained or systemic violation of core human rights, demonstrative of a failure of state protection”).

[12] Hathaway and Foster (n 8) 183–86; see also Guy S Goodwin-Gill and Jane McAdam, The Refugee in International Law (3rd edn, OUP 2007) 92 (fear of persecution and lack of protection are interrelated).

[13] (n 11).

[14] ‘The Slow Onset Effects of Climate Change and Human Rights Protection for Cross-Border Migrants’ (n 1) paras 36-45; OHCHR, ‘Report of the Office of the United Nations High Commissioner for Human Rights on the Relationship between Climate Change and Human Rights’ (Human Rights Council 2009) A/HRC/10/61 paras 25-41 <https://perma.cc/NK3P-BP8R> accessed 21 August 2018.

[15] Michelle Foster, International Refugee Law and Socio-Economic Rights: Refuge from Deprivation (Cambridge University Press 2009) 87–111.

[16] For further discussion and cases see ibid; Hathaway and Foster (n 8) 228-38.

[17] See, e.g., AF (Kiribati) [2013] (n 11) para 74 upheld by Ioane Teitiota v The Chief Executive of the Ministry of Business, Innovation and Employment [2013] NZHC 3125 <https://perma.cc/EQJ4-S7VW> accessed 21 September 2018; see also Ioane Teitiota v The Chief Executive of the Ministry of Business, Innovation and Employment [2015] NZSC 107 para 12 <https://perma.cc/NUW6-LQ54> accessed 21 September 2018; see also AC (Tuvalu) [2014] NZIPT 800517-520 paras 45-6 <https://perma.cc/QVN5-9GTQ> accessed 21 September 2018.

[18] See, e.g., McAdam (n 11) 43-45; see also Walter Kälin, ‘Conceptualising Climate-Induced Displacement’ in Jane McAdam (ed), Climate Change and Displacement: Multidisciplinary Perspectives (Hart Publishing 2010) 96–7.

[19] Christel Cournil, ‘The inadequacy of international refugee law in response to environmental migration’ in Research Handbook on Climate Change, Migration and the Law 85–107, 100 (Benoît Mayer & Francois Crepeau eds, 2017).

[20] Hathaway and Foster (n 8) 192–93; Goodwin-Gill and McAdam (n 12) 96–102. Some jurisdictions still require evidence of persecutory intent to establish nexus to a Convention ground. See Hathaway and Foster (n 8) 368–73 (discussing cases in US, Australia, and Germany that require showing of persecutory intent).

[21] Cournil (n 19) 99. The impacts of climate change can be linked to human behavior and not solely to naturally occurring environmental factors. Accordingly, it is not simply the “‘environment’ that is causing displacement” as Cournil emphasizes, but rather state and non-state actors that produce the emissions that cause climate change; see also ibid.

[22] UNHCR, ‘Agents of Persecution – UNHCR Position’ (1995) <http://www.refworld.org/docid/3ae6b31da3.html> accessed 10 September 2018.

[23] See ibid; Goodwin-Gill and McAdam (n 12) 98.

[24] Walter Kälin and Nina Schrepfer, ‘Protecting People Crossing Borders in the Context of Climate Change Normative Gaps and Possible Approaches’ (UNHCR 2012) 31 <https://perma.cc/9XJU-KGVS> accessed 21 August 2018.

[25] McAdam (n 11) 45; see also Jane McAdam, Bruce Burson, Walter Kälin, and Sanjula Weerasinghe, ‘International Law and Sea-Level Rise: Forced Migration and Human Rights’ (Fridtjof Nansen Institute 2016) para 83 <https://perma.cc/KRX3-CMU2> accessed 21 August 2018.

[26] Jane McAdam, ‘The Normative Framework of Climate Change-Related Displacement’ (The Brookings Institution 2012) 1–2 <https://perma.cc/F64F-Q389> accessed 21 August 2018 (describing pushback against “refugee” label in Kiribati and Tuvalu); Gemenne (n 5) 395 (describing opposition to refugee status by developing countries because it was thought to undermine adaptation efforts); see also Peter Penz, ‘International Ethical Responsibilities to “Climate Change Refugees”’ in Jane McAdam (ed), Climate Change and Displacement: Multidisciplinary Perspectives (Hart Publishing 2010) 152 (challenging the idea that victimhood and agency are mutually exclusive for refugees).

[27] McAdam (n 11) 46.

[28] AC (Tuvalu) (n 17) para 45 (finding no basis for refugee claim because whatever harm claimants faced “due to the anticipated adverse effects of climate change, it did not arise by reason of their race, religion, nationality, membership of any particular social group or political opinion”); AF (Kiribati) [2014] (n 11) para 75 (finding no suggestion “that the Government of Kiribati has in some way failed to take adequate steps to protect him (claimant) from such harm as it able to for any applicable Convention ground.”); Ioane Teitiota, [2013] (n 17) para 11 (finding a person who crosses borders due to environmental change or the impacts of climate change cannot “for that reason alone, [argue] that he or she is being persecuted for reasons of religion, nationality, political opinion, or membership of a particular social group.”).

[29] ‘The Slow Onset Effects of Climate Change and Human Rights Protection for Cross-Border Migrants’ (n 1) para 104; see also Ioane Teitiota [2013] (n 17) para 27.

[30] UNICEF, ‘No Place to Call Home: Protecting Children’s Rights When the Changing Climate Forces Them to Flee’ (UNICEF 2017) 18 <https://perma.cc/AKB9-F2GL> accessed 21 September 2018; see ‘The Slow Onset Effects of Climate Change and Human Rights Protection for Cross-Border Migrants’ (n 1) paras 95, 104.

[31] UNHCR, ‘Legal Considerations on Refugee Protection for People Fleeing Conflict and Famine Affected Countries’ (UNHCR 2017) 1–2 <http://www.refworld.org/docid/5906e0824.html> accessed 3 September 2018.

[32] See The Nansen Initiative, ‘Agenda for the Protection of Cross-Border Displaced Persons in the Context of Disasters and Climate Change’ (2015) Vol 1 27 para 55 <https://perma.cc/8H79-R5TD> accessed 21 August 2018; see also McAdam (n 11) 47.

[33] Regional instruments can expand the definition of a refugee. The Organization of African Unity (OAU) Convention and Cartagena Declaration broaden the definition to include those fleeing due to events seriously disturbing public order. This provides the potential for those fleeing the effects of climate change that have significant impacts on public order to qualify as a refugee.

[34] For more on this approach, see Hathaway and Foster (n 8) 376–82.

[35] ibid sec I.B.

[36] UNHCR, ‘Guidelines for International Protection No. 9: Claims to Refugee Status Based on Sexual Orientation and/or Gender Identity within the Context of Article 1A(2) of the 1951 Convention and/or Its 1967 Protocol Relating to the Status of Refugees’ (2012) HCR/GIP/12/09 para 39 <https://perma.cc/9QDS-8MQU> accessed 21 August 2018.

[37] Hathaway and Foster (n 8) 378

[38] ibid (case citation omitted); see also Jason M Pobjoy, The Child in International Refugee Law (Cambridge University Press 2017) 161–62.

[39] For a discussion of these cases, see Hathaway and Foster (n 8) 377; see also Pobjoy (n 38) 162-64.

[40] States should take measures to prevent foreseeable harm from disasters. See Budayeva v Russia App nos 15339/02, 21166/02, 20058/02, 11673/02 and 15343/02 (ECHR, 29 Sept. 2008) [101] – [102] <https://perma.cc/8GBT-MX3Q> accessed 23 September 2018.

[41] Richard K Gardiner, Treaty Interpretation (2d edn, OUP 2015) 308; Hathaway and Foster (n 8) 6–10; but see Cournil (n 19) 91–2 (Refugee Convention is outdated given reality of current human mobility).

[42] Vienna Convention on the Law of Treaties 1969 (1155 UNTS 331) art 31(3)(c); Legal Consequences for States of the Continued Presence of South Africa in Namibia (South West Africa) notwithstanding Security Council Resolution 276 (1970) [1971] ICJ Rep 1971 16 (ICJ) <https://perma.cc/TX4Z-3PKY> accessed 23 September 2018; Award in the Arbitration regarding the Iron Rhine (“Ijzeren Rijn”) Railway (Belgium v Netherlands) [2005] ICGJ 373 PCA 2005 (PCA) <https://perma.cc/WD5R-7ZE2>.

[43] See AC (Tuvalu) [2014] (n 17) para 70; AF (Kiribati) (n 11) para 55; Teitiota [2015] (n 17) para 13 (New Zealand Supreme Court affirming this position).

[44] See, e.g., UN General Assembly, ‘New York Declaration for Refugees and Migrants: Resolution Adopted by the General Assembly’ (2016) A/RES/71/1 <https://perma.cc/4ZE9-VMT2> 21 September 2018; ‘Global Compact for Safe, Orderly and Regular Migration: Intergovernmentally negotiated and agreed outcome’ (2018) <https://perma.cc/J67Y-5HC6> 21 September 2018.

[45] See Norwegian Refugee Council, ‘Climate Changed: People Displaced’ (NRC 2009) 18 <https://perma.cc/R5FQ-5LHH> accessed 21 August 2018; Lauren Nishimura, ‘“Climate Change Migrants”: Impediments to a Protection Framework and the Need to Incorporate Migration into Climate Change Adaptation Strategies’ (2015) 27 IJRL 107, 115, 122 <https://perma.cc/2Q9Q-AUPE> accessed 21 August 2018.

[46] There may, however, be customary law contained in the Convention, human rights obligations, regional or domestic law that is still applicable.

[47] See ‘The Slow Onset Effects of Climate Change and Human Rights Protection for Cross-Border Migrants’ (n 1) paras 137-150; Lauren Nishimura, ‘Responding to Climate Change and Migration: Adaptation and State Obligations’ (RLI, University of London 2018) RLI Working Paper Series Mini-Volume (Papers 23-26) <https://perma.cc/Q6WE-4UKE> accessed 21 August 2018.

1 Comments

  • commonlawradio Posted November 3, 2018 at 5:49 am

    If the predicament approach is rooted in the wording “being persecuted” I wonder what that means about how this situation should be analyzed in countries like Canada that do not use that wording in their statutes that adjudicators are to apply. Specifically, in Canada, s. 96 of the immigration and Refugee Protection Act reads: “A Convention refugee is a person who, by reason of a well-founded fear of persecution for reasons of…”. One answer is that it does not matter to a country’s obligations under the convention if its statutory scheme has not adequately enshrined those obligations in legislation – the obligations exist under international law nonetheless. Another might read the text of Canada’s provision in light of such obligations. But if the phrasing is really important, and Canada’s differs, then perhaps that is important to legislative intent?

    You write:

    “The refugee definition requires that a “fear of being persecuted” be linked to one of the five protected characteristics, rather than a fear of persecution.[37] The choice of wording implies an emphasis on the situation of the potential refugee—their reason for being exposed to serious harm and a failure of state protection—and not the intent of a persecutor or state withholding protection.”

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