Tue Feb 11

Climate impacts are forcing people from their homes. When, how and why do they have valid refugee claims?

Written by Jane McAdam, Scientia Professor and ARC Laureate Fellow, Kaldor Centre for International Refugee Law, UNSW Sydney

For a long time, it seemed refugee law had little relevance to people fleeing the impacts of climate change and disasters.

Nearly 30 years ago, the High Court of Australia, for instance, remarked that people fleeing a “natural disaster ^[1]” or “natural catastrophes ^[2]” could not be refugees.

Meanwhile, the Supreme Court of Canada had said ^[3] “victims of natural disasters” couldn’t be refugees “even when the home state is unable to provide assistance”.

It was back in 2007 that I first started considering whether international refugee law could apply to people escaping the impacts of drought, floods or sea-level rise. At the time, I also thought refugee law had limited application. For a start, most people seeking to escape natural hazards move within their own country and don’t cross an international border. That fact alone makes refugee law inapplicable.

Refugee law defines a refugee as someone with a well-founded fear of being persecuted for reasons of their race, religion, nationality, political opinion or membership of a particular social group.

So one challenge was in classifying supposedly “natural” events as “persecution”, which requires an identifiable human actor.

It was also widely thought such events were indiscriminate and couldn’t target people on account of their race, religion or one of the other five grounds. This is partly why some advocates ^[4] called for an overhaul of the Refugee Convention to protect so-called “climate refugees”.

However, we have learned a lot in the intervening years.

Syrian refugees make their way in flooded water at a temporary refugee camp, in the eastern Lebanese Town of Al-Faour near the border with Syria, Lebanon

The impacts of climate change and disasters are not indiscriminate. AP Photo/Hussein Malla ^[5]

A new approach

It’s become clear the impacts of climate change and disasters interact with other social, economic and political drivers of displacement to create risks for people.

This is what some legal experts have called the “hazard-scape ^[6]”.

And the impacts of climate change and disasters are not indiscriminate – they affect people in different ways. Factors such as age, gender, disability and health can intersect to create particular risk of persecution for particular individuals or communities.

For example, a person who is a member of a minority may find their government is withholding disaster relief from them. Or, climate or disaster impacts may end up exacerbating inter-communal conflicts, putting certain people at heightened risk of persecution.

Now, we have a much more nuanced understanding of things. Refugee law (and complementary protection under human rights law) do have a role to play in assessing the claims of people affected by climate change.

No such thing as a ‘climate refugee’ under the law

There isn’t a legal category of “climate refugee” – a popular label that has caused confusion. However, there are certainly people facing heightened risks because of the impacts of climate change or disasters. These impacts can generate or exacerbate a risk of persecution or other serious harm.

This means that when it comes to the law, we don’t need to reinvent the wheel.

Instead, by applying existing legal principles and approaches, it’s clear some people impacted by climate change already qualify for refugee status or complementary protection (under human rights law).

One instructive case ^[7], heard in New Zealand, involved a deaf and mute man from Tuvalu who was seeking to avoid deportation on humanitarian grounds. He was found to be at heightened risk if a disaster struck because he could not hear evacuation or other warnings. He also didn’t have anyone who could sign for him or ensure his safety.

In another case, an older couple from Eritrea were found ^[8] to be especially vulnerable to the impacts of climate change because of “their elderly status and lack of family support”, in circumstances where they would be exposed to “conditions of abject poverty, underdevelopment and likely displacement”. This, in addition to other conditions in Eritrea, meant that there was “a real chance they would suffer cruel, inhuman or degrading treatment by way of starvation and destitution”. They were granted complementary protection.

A practical way forward

New Zealand has led the way on showing how existing international refugee and human rights law can provide protection in the context of climate change and disasters. It’s time for the rest of the world to catch up.

With colleagues from Australia, the United States and the United Kingdom, I’ve helped create a practical toolkit ^[9] on international protection for people displaced across borders in the context of climate change and disasters.

This is a detailed resource for legal practitioners and decision-makers tasked with assessing international protection claims involving the impacts of climate change and disasters.

It shows when, why and how existing law can apply to claims where climate change or disasters play a role.

An aerial view of the of the narrowest part of the island is seen north of Funafuti, Tuvalu.

Some people face a heightened risk because of the impacts of climate change or disasters. AAP Image/Mick Tsikas ^[10]

Inaccurate but popular labels aren’t helpful

Inaccurate but popular labels – such as “climate refugee” – have caused confusion and arguably hampered a consistent, principled approach.

Some judges and decision-makers assessing refugee claims may be spooked by “climate change”. They may think they need specialist scientific expertise to grapple with it.

The new toolkit shows why international protection claims arising in the context of climate change and disasters should be assessed in the same way as all other international protection claims. That is, by applying conventional legal principles and considering the facts of each case.

The toolkit stresses that it’s important to assess the impacts of climate change and disasters within a broader social context.

That includes examining underlying systemic issues of discrimination or inequity that may impact on how particular people experience harm.

The toolkit also shows why a cumulative assessment of risk is necessary, especially since risks may emerge over time, rather than as the result of a single, extreme event.

And it emphasises the need to look at the “hazard-scape” as a whole in assessing the future risk of harm to a person.

We hope the toolkit helps to debunk some common misunderstandings and charts a clear way forward. Our ultimate ambition is that people seeking international protection in the context of climate change and disasters will have their claims assessed in a consistent, fair and principled way.