The Impasse of International Law on Climate-Induced Migration: Recent Developments and the United Nation's January 2020 Decision on Climate Refugees.

• Author: Gunes, Burak
• Position: ARTICLE

Introduction

Recent trends show that there has been a gradual increase in climate-induced migration around the world. In 2018, the United Nations General Assembly (UNGA) warned that "climate, environmental degradation, and natural disasters increasingly interact with the drivers of refugee movements." (1) The Internal Displacement Monitoring Centre (IDMC) analyzed data from 148 states and released the finding that 17.2 million people were displaced internally in 2018 as a result of climate change, whereas 10.8 million people were displaced due to violent conflicts. (2) Following this, approximately seven million people left their homes due to climatic reasons in the first half of 2019. (3) However, Myers predicted in 2002 that "200 million people overtaken by sea-level rise and coastal flooding, by disruptions of monsoon systems and other rainfall regimes, and by droughts of unprecedented severity and duration," (4) would emigrate in the coming years, while the IDMC demonstrated that around 265 million people already had to leave their country of origin owing to climate-related disasters between 2008-2018. (5)

As climate change is associated with the increase in migration, it raises the question of whether the existing legal concept of refugees is adequate in the face of this challenge. The present legal framework is based on the 1951 Geneva Convention, which while critical for protecting refugee rights, cannot account for the status of climate refugees due to the novelty of the concept, in practice as well as in literature. Therefore, any new decision that could constitute case law in terms of refugee law is quite important. Taken together all these points raises the important question of how difficult it is to establish the objective legal status of climate refugees, an issue that constitutes the main topic of the argument of the study. In this paper, we will provide a legal and political review of climate-induced migration by examining the tension between state sovereignty and human necessities. In other words, by examining the relationship between climate-induced threats and sovereignty, we attempt to show how climate-induced problems could also undermine state sovereignty, which is deemed as the sole regulatory principle of the state system.

In doing so, we ask whether sovereignty is being jeopardized because of external physical effects such as climate change by investigating the case concerning Mr. Ioane Teitiota's, who sought refugee status from New Zealand in 2013, citing as causes of climate change, rising sea levels, and water shortages in Kiribati, and the rejection of his application in 2015, application to New Zealand for protection as a climate refugee, as this was the first of its kind. Ultimately, we conclude that the sole regulatory and indispensable principle of the state system, i.e., sovereignty, has been challenged in its primary position as the highest principle that denies any rule restricting it. The environment has been forcing sovereignty and sovereign states to adapt to new situations. Therefore, in the legal sense, there are attempts by some authorities to mediate between state sovereignty and threats external to the state system, like climate change. We argue that this way of thinking ultimately will deadlock the system.

In the next section, we will discuss the relationship between climate change and migration. Additionally, the paper contains a general background about climate change in Kiribati, focusing on how climate change affects this small island country in the Pacific (the Archipelagic State). After we analyze the case of Ioane Teitiota, we finally examine, through the field of migration studies, the historical decision by the UN in January 2020 on climate-induced refugees, that could lead to changes in state practices and therefore court decisions.

Environmental Migration: Relationship between Climate Change and Migration

Climate has always naturally changed throughout history but for the first time, the world has been faced with human-induced climate change. Even though this period has been called the 'Anthropocene Epoch' by many scholars, (6) this label is not yet officially accepted by the International Union of Geological Sciences (IUGS) and the International Commission on Stratigraphy, which specifies global units and determines the global time scales to fix the global standards. (7) The Industrial Revolution has been accepted as a turning point of human-induced climate change due to being associated with high carbon emissions and the production of various pollutants. (8) Although a significant part of the emissions is caused by fossil energy consumption, urbanization, and land use at various scales also have an important effect on climate change. (9) The causal role of emissions in climate change has been exemplified by greenhouse gases (GHGs) which have caused the 'greenhouse effect.' (10) To date, various studies have assessed the increase of atmospheric C[O##2] since the Industrial Revolution. (11) For instance, the 2019 special report of the Intergovernmental Panel on Climate Change (IPCC) titled "The Ocean and Cryosphere in a Changing Climate" illustrates this point clearly. (12) According to the report, the level of global temperature has increased by 1.0 [degrees]C since pre-industrial levels. It means that the consequences of the current 1.0 [degrees]C increase in global warming are already with us in the form of extreme weather events, rising sea levels, the melting of the arctic ice, deforestation, and others.

Farbotko and Lazrus maintain that climate change is both a 'discursive' and 'material' phenomenon, hence it is essential that analyses of the regions affected by climate change should also consider the sociological, psychological, and biological aspects, otherwise results only obtained with scientific data may cause misinformation. (13) In this context, the concept of 'climate-induced migration' has emerged as a new phenomenon since the Cold War. (14) As Betsy Hartmann notes, the narratives of climate-induced migration "seem very much like old wine in a new bottle," as even 'migration' itself is as old as human history. The 2020 World Migration Report has highlighted factors that are associated with climate change and migration. (15) Previous approaches have rarely accepted a linear connection between climate change and migration due to the confounding interaction with economic, cultural, political, and demographic conditions that encourage people to either move or continue to stay in a locale. (16)

Antonio Guterres, then the UN High Commissioner for Refugees, maintained that climate change is one of the main driving forces of displacement with its direct impact on the environment, and as a trigger for extreme poverty and conflict. (17) Since 2018 there is a growing body of literature on how climate change and the ecological balance directly impact migration by reason of climate-related hazards, based on cases such as those of Mozambique, the Philippines, China, India, and the United States of America. (18) It is almost certain that the rates of climate-induced migration will increase in the near future, as even in 2018, almost three out of four of 144 cases of displacement movements had been caused by climate change, while only one of 55 cases were caused by conflicts and violence. (19)

While natural disasters such as the rise of the sea level in the Pacific, desertification in Africa, hurricanes in the U.S., have been mainly discussed in terms of material phenomenon, the legal status of displaced people, and even the redefinition of 'refugee' has begun to be discussed from the perspective of discursive phenomenon. Even though numerous terms are used to describe climate-induced migrants, such as climate refugee, ecological refugee, or environmental refugee, it was not until the late 1970s that research into climate-induced migration or displacement was considered worthy of scholarly attention. The term 'ecological refugees' was first used by Lester, Mcgrath, and Stokes in 1976. (20) They emphasize that the environmental impact of high human and livestock populations could result in desertification and correspondingly, migration rates would increase, and this process would continue to spread around the world as a cycle. The concept of 'environmental refugee' (21) is first used and popularized by Essem el-Hinnawi in 1985 (22) and Myres in 1995. (23) According to Myres, these were "people who can no longer gain a secure livelihood in their homelands because of drought, soil erosion, desertification, deforestation, and other environmental problems." (24) As a result, people desperately look for new places as permanent and semi-permanent safe abodes, either through force or voluntarily, as internally or externally displaced persons.

This much is certain, that climate-induced migration has become one of the major concerns for international law. The status of climate-related refugees has begun to attract attention globally, however, there is a lack of a clear definition and protection within international law. It is this incongruity between reality, interest, and legal status that creates problems. There are many definitions of 'refugee' that are used in studies but in practice, the label has not worked legally for a long time. Before discussing this issue, we wish to lay the groundwork for our case study by discussing the case of climate change and Kiribati.

Ioane Teitiota's Refugee Application to New Zealand and Debates on Climate-Related Refugees

A Sinking Island in the Pacific: Kiribati

I am the same as people who are fleeing war. Those who are afraid of dying, it is the same as me. (25) In March 2018, the World Bank published a report which focuses on the three regions most affected by climate change: Sub-Saharan Africa, South Asia, and South and Central America. The report points out that approximately 143 million people from these...