A Nation Going Under: Legal Protection for "Climate Change Refugees"

By Ni, Xing-Yin | Boston College International and Comparative Law Review, January 1, 2015 | Go to article overview

A Nation Going Under: Legal Protection for "Climate Change Refugees"


Ni, Xing-Yin, Boston College International and Comparative Law Review


INTRODUCTION

Sinking islands in the Pacific, drowning deltas in South and Southeast Asia, desertification across the West African Sahel and Mexico, and extreme weather events occurring with increasing frequency around the world- climate change-driven natural hazards are displacing millions of people each year.1 The Intergovernmental Panel on Climate Change (IPCC) predicted in its first assessment report in 1990 that the "gravest effects of climate change may be those on human migration."2 Experts now estimate that by 2050, 200 million or more people will be displaced from their homes due to climate change.3

Accounts of displaced migrants have received widespread and often sensationalized media attention.4 In particular, the so-called "sinking island" phenomenon has become symbolic of the plight.5 Those displaced by climate change are often inaccurately dubbed "refugees," which is a legal term of art that does not extend protection to those forced to relocate for environmental reasons.6 Current international law does not provide climate-induced migrants with mechanisms to secure resettlement rights or financial assistance.7 This wide gap left by law and policy has provoked vigorous academic debate and numerous proposals to address the problem.8 Although no single solution has been effective, recent developments suggest that the international community is making progress.9

Part I of this Note explores the complex relationship between climate change and migration, particularly in the Pacific island nation of Kiribati. Part II discusses a recent claim for "climate change refugee" status in New Zealand, which highlights the broad scope of climate-induced migration and the limited scope of international refugee law. This Part also explores existing forms of protection for climate-induce migrants beyond the Refugee Convention. Part III examines the limitations of past litigation and considers alternative legal recourses that may be more effective for the Pacific region. This Note concludes by suggesting that a combination of legal and policy approaches-national, regional, and international-will be most successful at protecting persons fleeing from climate-induced environmental threats.

I. BACKGROUND

A. Climate Change and Migration

Scientists have established with increasing certainty that greenhouse gas emissions by industrialized nations are largely to blame for climate change.10 In 2014, the IPCC assessment report stated that "[w]arming in the climate system is unequivocal" and human influence is "extremely likely to have been the dominant cause of the observed warming since the mid-twentieth century."11 Although humans have long turned to migration to cope with environmental and climatic change, climate-induced migration today is particularly troublesome because of the speed with which it is predicted to occur and the vast number of people it is poised to affect.12 As a result, the rate and scale of climate-induced migration will likely exhaust the traditional adaptive capacity of many human communities, placing them in vulnerable positions.13 For those facing environmental displacement, migration has become a "survival mechanism of last resort."14

Adding to the urgency of the problem is the fact that environmental displacement disproportionately impacts developing countries, which already face a lack of food and mobility options.15 The sad irony confronting developing states is that, though they have contributed the least to greenhouse gas emissions, they will ultimately bear the brunt of the burden.16 Small island developing states are particularly vulnerable to the effects of climate change, given their limited territory, susceptibility to extreme weather events, and lack of resources to adapt to the effects of climate change.17 Continued sea level rise is expected to compound coastal hazards, such as storm surges and erosion, and to place the longevity of island communities at risk.18 The quality of water resources and human health are predicted to suffer as a result of climate change, as are the viability of fisheries and coral reefs. …

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