Solutions

Protection

People displaced by disasters and other climate impacts must have their rights respected and protected – whether they move within their own country or across an international border.

Video/Vlad Sokhin

Sometimes, even with the best efforts to support people to prepare, adapt and stay in their homes for as long as possible, disasters and other impacts of climate change can force people to seek refuge elsewhere. Maybe a cyclone rips through the village, pillaging not just belongings but the walls and roofs that contained them. Maybe the riverbank collapses, taking homes, schools and other vital infrastructure with it. Fires and floods can also force people from their homes, striking in many different parts of the world.

In such cases, some people may only move a few kilometres from home; others may go further afield. Whether they remain in their own country or cross an international border, they may need assistance and protection.

Most people are displaced within their own country. Worldwide, in 2022 there were at least 32.6 million internal displacements linked to disasters. The Internal Displacement Monitoring Centre acknowledges these figures are imprecise and likely an underestimate.

Evacuations

Much internal displacement begins with an evacuation. Evacuations are intended as a life-saving measure to get people out of imminent danger until they can safely return home.

However, sometimes it’s not that simple. People may not be able to go back for some time – or at all. As the Kaldor Centre's Director, Professor Jane McAdam, has noted, at least two years after Australia’s devastating fires of 2019–20, some families were still living in caravans. At least five years after Japan’s Fukushima disaster, some people were still in temporary accommodation. And a decade after Hurricane Katrina, thousands of evacuees had never returned.

In such cases, people may find themselves homeless, jobless, disconnected from their community and living in very challenging circumstances. Their human rights and security may also be compromised.

Protracted displacement can also compound disadvantage. People who are already facing uncertainty or marginalisation may find themselves in even greater difficulty. With climate change driving more frequent and severe disasters, emergency plans need to take account not only of the immediate disaster but also what happens in the aftermath.

The UN Guiding Principles on Internal Displacement provide a useful blueprint for governments to assist and protect people before, during and after their displacement, and many countries would benefit from implementing them into their domestic laws and policies.

The world-first Pacific Regional Framework on Climate Mobility notes that ‘emergency evacuations and internal displacement following disasters are already common across the Pacific and are likely to increase as the impacts of climate change including extreme weather events and slow-onset climatic occurrences take hold with the potential for cross-border displacement becoming an eventuality’. In endorsing the Framework in November 2023, Pacific countries committed to strengthening regional efforts to ‘assist and protect’ people at risk of displacement.

Despite their widespread use, evacuations have been largely overlooked as a concept in the forced migration scholarship and they are siloed in policy and practice. The Kaldor Centre’s Evacuations Research Hub is undertaking the first sustained, integrated legal analysis of how, when and why evacuations are carried out across multiple countries and contexts. By recognising that evacuations can be a form of displacement, the Hub aims to identify the legal and policy innovations required to ensure that evacuees’ human rights are respected and that they do not end up in arbitrary or protracted displacement without durable solutions.

Image/Vlad Sokhin

Video/Vlad Sokhin

When people cross borders to escape the effects of climate change

While most disaster displacement is internal, some people will cross international borders. Does international law address their situation? Not expressly – but that certainly doesn’t mean it is irrelevant.

Climate change and its impacts were not envisioned when international refugee law, human rights law and the law on statelessness were developed. But these bodies of law do contain principles that affect what countries can and can’t do when people fleeing the impacts of disasters or climate change seek their protection.

Let’s consider each of these legal areas in turn, to see to what extent they might help.

The accompanying text explaining how international law addresses (or fails to address) cross-border climate mobility is based on this 2021 talk by Professor Jane McAdam, ‘Legal responses to cross-border ‘‘environmental’’ mobility’, which you can watch here.

International refugee law

When people seek protection in another country, the focus often turns to refugee law. While refugee law will assist some people displaced in the context of climate change and disasters, it won’t help everyone.

As explained in the Climate Mobility Hub’s Facts section, a refugee is defined in the Refugee Convention 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. Countries are prohibited from removing refugees to any territory where they face such a fear (known as the principle of non-refoulement).

It is difficult to show that the impacts of disasters or climate change, on their own, amount to ‘persecution’, especially for one of the Convention reasons noted above.

However, climate change and disasters can certainly amplify a risk of persecution. Conflict, persecution and disasters are often interlinked, and the fallout from a disaster could ‘reinforce … claims for refugee status’ – for instance, by exacerbating discrimination or resulting in a breakdown of law and order.

In October 2020, UNHCR set out some legal considerations regarding protection claims linked to disasters or climate change. The document emphasised the importance of understanding climate change impacts within a broader social and political context. Dr Matthew Scott, who co-leads the Human Rights and the Environment thematic area at the Raoul Wallenberg Institute of Human Rights and Humanitarian Law, explains that the ‘deeply social nature of disasters’ means that they can make matters worse for people already marginalised or experiencing discrimination. This means that there is really no such thing as a ‘natural’ disaster: disasters are always contingent on underlying social, economic, political and environmental factors.

Some regional refugee definitions, such as in the Organization of African Unity Convention and the Cartagena Declaration in Latin America, apply to people fleeing events ‘seriously disturbing public order’. Some experts, and UNHCR, say that ‘people displaced by the adverse effects of climate change and disasters can be refugees under regional refugee criteria’.

Who is a refugee? A refugee is someone 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.’ From the 1951 Convention relating to the Status of Refugees

Human rights law

The principle of non-refoulement, which prohibits countries from removing refugees to any place where they face a real chance of being persecuted, is also part of human rights law. There, it relevantly prohibits countries from removing people to places where they face a real risk of being arbitrarily deprived of life, or subjected to cruel, inhuman or degrading treatment.

The UN Human Rights Committee – an authoritative group of experts that monitors countries’ implementation of their human rights obligations and issues legal commentary and views on individual complaints – has recognised that ‘without robust national and international efforts, the effects of climate change … may expose individuals to a violation of the[se] rights … thereby triggering the non-refoulement obligations of sending states’.

It emphasised that the right to life includes ‘the right of individuals to enjoy a life with dignity’, and that ‘conditions of life … may become incompatible with the right to life with dignity before the risk is realized’ – meaning that protection should be forthcoming before the situation is imminently life-threatening. This reflects longstanding scholarly views, as well as ‘soft law’ instruments such as the Sydney Declaration of Principles on the Protection of Persons Displaced in the context of Sea Level Rise.

There is also a long line of UK and European jurisprudence recognising that ‘destitution’ or ‘dire humanitarian conditions’ may constitute inhuman or degrading treatment. However, protection has only been forthcoming when a country's direct actions or omissions have resulted in the ill-treatment.

Human rights law is not just there to help when things go wrong. Countries also have positive duties to respect, protect and fulfil human rights to safeguard people from foreseeable harm. In certain circumstances, the duty to protect the right to life may even require countries to evacuate or relocate people. Both are considered measures of last resort, and permanent relocation, in particular, is a complex and fraught process that requires in-depth consultation and planning to avoid greater vulnerability. [See Solutions: Planned relocation.]

The law on statelessness

Since the land mass of some low-lying small island States is at risk from sea-level rise, it is often asked whether their citizens might be rendered stateless.

The short answer is ‘probably not’ – at least, not directly because of sea-level rise. The statelessness treaties deliberately restrict protection to people who are ‘not considered as a national by any State’. Statelessness is more likely to arise in this context because of domestic nationality laws that strip people of their citizenship if they reside abroad for a particular period of time, or prevent them from passing on nationality to their children.

In any case, long before territory ‘disappears’, people in small island States may need to move as fresh water supplies decline, temperatures become intolerable and some areas become unsafe to live. Small island States are already dealing with the serious problem of water scarcity, thanks to more frequent and severe droughts, and the salination of the freshwater lens through storm surges, king tides and overtopping waves. The changing climate will only exacerbate these challenges.

The UN’s International Law Commission and the International Law Association are currently examining legal questions associated with the preservation of statehood and the protection of people in the context of sea-level rise. In November 2023, the Pacific Islands Forum adopted a Declaration on the Continuity of Statehood and the Protection of Persons in the face of Climate Change-Related Sea-Level Rise. This affirms that ‘international law supports a presumption of continuity of statehood and does not contemplate its demise in the context of climate change-related sea-level rise’, and declares that ‘the statehood and sovereignty of Members of the Pacific Islands Forum will continue, and the rights and duties inherent thereto will be maintained, notwithstanding the impact of climate change-related sea-level rise’.

Legal gaps,
legal solutions

Thanks in large part to the efforts of the State-led Nansen Initiative on Disaster-Induced Cross-Border Displacement (2012–15) and its successor, the Platform on Disaster Displacement, important language on disasters, climate change and human mobility is now reflected in a range of international instruments, including:

As well, in 2015, the Task Force on Displacement was established under the auspices of the UNFCCC Warsaw International Mechanism for Loss and Damage associated with Climate Change Impacts ‘to develop recommendations for integrated approaches to avert, minimize and address displacement related to the adverse impacts of climate change’.

While there are some legal gaps in the protection of people displaced in the context of disasters and climate change, there is not a complete void. There are also many effective practices that countries could implement now to address mobility in this context.

Some countries already provide emergency, temporary humanitarian protection, as happened following the 2023 earthquake in Türkiye and Syria. Argentina recently created a new community-sponsorship humanitarian visa for people displaced by disasters in Mexico, Central America and the Caribbean.

And in 2021, the United States acknowledged that it has ‘a national interest in creating a new legal pathway for individualized humanitarian protection … for individuals who establish they are fleeing serious, credible threats to their life or physical integrity, including as a result of the direct or indirect impacts of climate change.’

International law is based on long-standing principles, but it also evolves in light of new circumstances. As the climate changes, the law will continue to adapt to protect people in need. However, governments also need to step up and provide more immediate solutions. Some examples of what they could, and should, do are detailed in the Kaldor Centre Principles on Climate Mobility.