Caroline Mair-Toby examines climate displacement and migration in international climate change law and negotiations in this in-depth policy brief.
Novermber 2012
Introduction
This paper tries to break down the complicated journey of how climate displacement and migration have been handled in legal and normative frameworks, primarily looking at how the issue has been addressed within the UN Framework Convention on Climate Change (UNFCCC). This paper by no means attempts to be a comprehensive analysis of the situation, but rather a mere introduction into elements of the highly complex legal framework surrounding individuals vulnerable to displacement induced by climate change.
Climate displacement and migration is a pressing and urgent issue that is increasing in scope and challenge every year. Climate change is already contributing to migration and displacement. [1] The main difficulty is that climate change does not cause damage we can see immediately. The damage caused by climate change is one of slow-onset threats: salination of freshwater aquifer lens, rising sea-levels, loss of habitable and arable lands, destabilisation of once-regular climate patterns. However, it does serve as a catalyst and an amplifier of droughts, floods and cyclones/ monsoons/ hurricanes. It is increasingly important to look at climate change impacts – and the effects they have on communities and persons – hand in hand with disaster risk reduction efforts.
The Intergovernmental Panel on Climate Change (IPCC) released a summary of its Special Report on Managing the Risks of Extreme Events and Disasters to Advance Climate Change Adaptation [2] in November 2011, which warns of ever more frequent disasters in a warming world. The report indicates that economic losses from weather- and climate-related disasters have increased, and estimates of annual losses have ranged since 1980 from a few US$ billion to above 200 billion, with the highest value for 2005. Some estimates are difficult to value and monetize, such as loss of human lives, cultural heritage, and ecosystem services, and these are poorly reflected in estimates of losses. [3] The report underscores that extreme events will have greater impacts on sectors with closer links to climate, such as water, agriculture and food security, forestry, health, and tourism. Climate-related extremes are also expected to produce large impacts on infrastructure, although detailed analysis of potential and projected damages are limited to a few countries, infrastructure types, and sectors. [4]
While the report states that developed countries experience higher economic, including insured, disaster losses associated with weather, climate, and geophysical events, it is the developing countries that face a higher incidence of fatality rates and economic losses expressed as a proportion of gross domestic product (GDP). From 1970 to 2008, over 95% of deaths from natural disasters occurred in developing countries. In small exposed countries, particularly small island developing states, losses expressed as a percentage of GDP have been particularly high, exceeding 1% in many cases and 8% in the most extreme cases, from the period 1970 to 2010. [5]
Introduced by the UN High Commissioner for Refugees (UNHCR) António Guterres at a side event of the 2012 Rio+20 Summit on Sustainable Development, a report - ‘Climate Change, Vulnerability and Human Mobility’ - finds that climate change exposes people to increased vulnerability and creates impetus in driving them into areas of conflict and ultimately across borders and into exile. [6] Climate change may lead to increased flow of migrants from neighbouring countries due to the accelerated effects of climate change.
Climate migration and adaptation
There has been a shift in the way the international community has viewed and approached climate change. In its emergence as a world issue in the 1990s, climate change was conceptualized as a problem for which the primary solution was mitigation – where the main aim was reducing carbon emissions to avoid climate change. Early negotiations under the UNFCCC were focused mainly on mitigation, while adaptation initially figured to a considerably lesser extent. It has been internationally accepted that climate change impacts are no longer preventable and are already apparent, and as such, adaptation to climate change had achieved a much higher profile in the climate negotiations. The focus on adaptation deepened in the UNFCCC climate negotiations in 2007 with the thirteenth Conference of the Parties (COP 13). Here, attention was paid to the potential impact of climate change on communities and regions, and the Bali Road Map [7] that was adopted laid out the strategy for a new negotiating process for climate change, including adaptation. This included the Bali Action Plan, [8] which created the Ad Hoc Working Group on Long-Term Cooperative Action (AWG-LCA). The Bali Action Plan underscored the need for risk reduction strategies, including risk sharing and transfer mechanisms such as insurance; and for consideration of disaster reduction strategies and means to address loss and damage. The AWG-LCA also featured many discussions on risk management and insurance.
Developing countries, the Alliance of Small Island States (AOSIS) in particular, controversially argued from early in the negotiations that states harmed by climate-related loss and damage should have the ability to seek compensation to rehabilitate their societies. [9] Adaptation gained greater traction after the IPCC Fourth Assessment Report in 2007 illustrated the negative consequences of climate change on human society. Adaptation finance and the implementation of risk management and risk transfer measures were discussed to help vulnerable countries to adapt and manage loss and damage. Other adaptation efforts included the Adaptation Fund, and the Nairobi Work Programme. At COP 17 in Durban in 2011, Parties operationalized the Adaptation Committee [10] (decision 2/CP.17), the major advising body on adaptation under the UNFCCC. [11]
Perhaps the most direct and comprehensive UNFCCC reference to climate displacement and migration was elaborated in 2010 in Tianjin by the AWG-LCA in the negotiating text to be presented for adoption at COP 16. It invited Parties to enhance adaptation action under the Adaptation Framework, “whereby developing country Parties shall be supported by developed country Parties,” to undertake:
"[m]easures to enhance understanding, coordination and cooperation related to national, regional and international climate change induced displacement, migration and planned relocation, where appropriate[.]" [12]
Dr. Koko Warner discusses the nuances and evolution of the various transitions of text, and how migration was addressed in UNFCCC documents:
"[I]n December 2008 at the Poznan talk, the assembly text referred to only ‘migration and displacement’, in the June 2009 AWG-LCA draft the term ‘climate refugees’ was used (prompting objections by one Party about terminology. By Copenhagen, the terminology was ‘climate change induced displacement, migration and planned relocation’. And finally by Tianjin the text took its present, more differentiated form where different types of measures (research, coordination, cooperation), different types of mobility (displacement, migration, planned relocation), and levels (national, regional, international) of mobility were articulated." [13]
The issue of climate displacement and migration has only just started to come up through these channels of the AWG-LCA, where the goal of negotiations is to reduce the current impacts of climate change and increase resilience to future impacts. Paragraph 14(f) of the Cancun Adaptation Framework, resulted from negotiations on enhanced action on adaptation as part of the Bali Action Plan under the AWG-LCA:
14. Invites all Parties to enhance action on adaptation under the Cancun Adaptation Framework, taking into account their common but differentiated responsibilities and respective capabilities, and specific national and regional development priorities, objectives and circumstances, by undertaking, inter alia, the following: (f) Measures to enhance understanding, coordination and cooperation with regard to climate change induced displacement, migration and planned relocation, where appropriate, at the national, regional and international levels [14]
Though a weakened version of Tianjin’s paragraph 4(f), Cancun’s paragraph 14(f) could signal a first step towards a consideration of addressing climate displacement and migration, and underscores potential movement towards UNFCCC inclusion of the issue. Paragraph 14 (f) should serve both as a challenge and a call for action to continue and strengthen this trend, and to guard against further dilution.
Climate displacement and migration, disaster risk reduction, and loss and damage
In the context of the threat of more extreme natural disasters as stated by the IPCC, the international community must confront the nuanced and complex dimensions of climate displacement and migration. Though adaptation processes can significantly reduce many potentially dangerous impacts of climate change, the technical, financial and institutional capacity, and the actual planning and implementation of effective adaptation, are currently quite limited in many regions. Adaptation efforts will begin to strain and buckle as the limits of adaptation are exceeded. Instead of merely adapting to the changes brought about by slow onset climate change, the reality of heightened population vulnerability to disasters and environmental degradation and a corresponding increase in migration and displacement must be faced.
Disaster Risk Reduction (DRR)
Natural disasters are compounded by climate change, such as drought, floods and cyclones, which render poor communities vulnerable to devastation, threaten public health and livelihoods, and increase the likelihood of climate displacement and migration. Risks associated with climate change must therefore be targeted within broader development and disaster management efforts. Disaster risk reduction (DRR) and insurance mechanisms have played a more important role in the creation of a loss and damage framework. In fact, the term ‘loss and damage’ first appeared formally in 2007 at COP 13, where the Bali Action Plan called for enhanced action on adaptation including the consideration of “disaster risk reduction strategies and means to address loss and damage associated with climate change impacts in vulnerable countries.”[15]
Scope for displacement and migration in ‘loss and damage’
It has been recognised that Parties need to address rehabilitation and compensation for both climate displacement and migration as well as dealing with the loss and damage associated with natural disasters, as they are increasingly understood to be interlinked. In 2008, AOSIS put forward a proposal to the AWG-LCA at COP 14 in Poznan as an essential part of a post-2012 agreement. [16] The proposal for an international climate insurance facility was a multi-window mechanism with three elements: (1) insurance to help vulnerable countries manage the financial risk associated with increasingly frequent and severe extreme events, (2) rehabilitation or compensation to address loss and damage associated with the impacts of climate change and (3) risk management to support risk assessment and inform the other components of the framework.
The Insurance Component would assist SIDS, LDCs and other developing countries particularly vulnerable to the impacts of climate change to better manage financial risks associated with increasingly frequent and severe climate-related extreme weather events. In many cases these impacts now exceed or threaten to exceed the adaptive capacities of these countries, and the need to address loss and damage is paramount. AOSIS proposed that risk sharing and risk transfer mechanisms could reduce the vulnerability of developing country economies to these hazards. It was a daring proposal, which would have had manifold effects on communities combatting climate displacement and migration. However, this proposal was rejected.
It is evident that the mechanism to address rehabilitation and compensation – and potentially by extension, climate displacement and migration – will fall under the domain of loss and damage, seen in the Subsidiary Body for Implementation (SBI) work programme created at COP 16 to consider approaches to address loss and damage associated with climate change impacts in developing countries vulnerable to climate change. In 2011 in Durban COP 17 took an important step forward in elaborating the programme on loss and damage, including a series of expert workshops focusing on the assessment of risks of loss and damage. The COP requested the SBI to agree on activities to be undertaken under the work programme and to make recommendations on loss and damage for consideration at COP 18.[17]
The SBI Work Programme is organised into three thematic areas:
1. Assessing the risk of loss and damage associated with the adverse effects of climate change and the current knowledge on the same
2. A range of approaches to address loss and damage associated with the adverse effects of climate change, including impacts related to extreme weather events and slow-onset events, taking into consideration experience at all levels
3. The role of the Convention in enhancing the implementation of approaches to address loss and damage associated with the adverse effects of climate change [18]
Conclusion
There has been discussion of development of a set of guiding principles around climate displacement and migration [19] independent of the UNFCCC. However, there is little international interest in a binding international convention to protect climate exiles, as these require commitments many countries are not willing to make. Jane McAdam outlines the arguments against a new treaty to address climate displacement and migration, stating that it is problematic to generalise climate displacement and migration and to identify climate change as the primary cause for movement. To determine who is actually covered by the instrument would be difficult, and this categorisation may exclude those in real need of assistance or protection under the instrument. She also highlights the precarious moral and legal difficulties in favouring climate exiles over economic or political refugees, and observes:
Finally—and perhaps most significantly—there seems to be little political appetite for a new international agreement on protection. As one official in Bangladesh pessimistically observed, ‘this is a globe for a rich man’. [20]
Acknowledging the strong resistance of the international community to developing new international instruments but recognising the need to safeguard the rights of the increasing numbers of persons subject to climate displacement and migration, what is then to be done?
The SBI is due to make recommendations on loss and damage at COP 18 in Doha [21]. The focus at COP 18 should be to clarify further actions not only for loss and damage, but for the next step forward for climate displacement and migration in negotiations. Progress has indeed been made, and it is possible to deal with the impact of climate change on communities through adaptation, DRR and approaches to loss and damage. But it is clear that while there has been some mention of climate displacement and migration in the UNFCCC process, there is still is a long way to go in addressing climate displacement and migration in the negotiations. The question now is: will climate displacement and migration finally be fully and bravely addressed in UNFCCC negotiations? Or is the future of climate exiles best determined through bilateral and regional agreements? It is clear that attention has been building with regard to this situation, but more action and international commitment is needed for more concrete steps towards dealing with the individuals vulnerable to climate displacement and migration, who ultimately face a rather bleak and uncertain future without sufficient legal safeguards to protect their rights or interests.
References
[1] K. Warner and C. Ehrhart: “In Search of Shelter, Mapping the Effects of Climate Change on Human Migration and Displacement” by Cooperative for Assistance and Relief Everywhere, Inc (CARE), 2008.
[2] IPCC, 2012: Summary for Policymakers: Managing the Risks of Extreme Events and Disasters to Advance Climate Change Adaptation [Field, C.B., V. Barros, T.F. Stocker, D. Qin, D.J. Dokken, K.L. Ebi, M.D. Mastrandrea, K.J. Mach, G.-K. Plattner, S.K. Allen, M. Tignor, and P.M. Midgley (eds.)]. A Special Report of Working Groups I and II of the Intergovernmental Panel on Climate Change. Cambridge University Press, Cambridge, UK, and New York, NY, USA, pp. 1-19. 2
[3] IPCC, 2011: Special Report on Managing the Risks of Extreme Events and Disasters to Advance Climate Change Adaptation [4.5.1, 4.5.3, 4.5.4]
[4] Ibid. [4.3.2, 4.3.5]
[5] Ibid. [4.5.2, 4.5.4]
[6] ‘Climate change drives people into harm's way, says UN Refugee Chief’ UNHCR Press Release, 21 June 2012. http://www.unhcr.org/4fe3129d6.html. See also: L. Godinho, ‘Rio+20 summit: UN refugee chief calls for joint approach to urban refugees, displaced’ UNHCR News Stories, 21 June 2012. http://www.unhcr.org/4fe2e7d76.html
[8] FCCC/CP/2007/6/Add.1, ‘Report of the Conference of the Parties on its thirteenth session’ Decision 1/CP.13, Bali, 2007. Available at: http://unfccc.int/resource/docs/2007/cop13/eng/06a01.pdf
[9] See further analysis at ‘The recent SREX report and the UNFCCC loss and damage discourse – A starting point for the debate’ Germanwatch/Loss and Damage in Vulnerable Countries Initiative, June 2012. Available at: http://germanwatch.org/de/download/6551.pdf (last accessed 25 October 2011)
[11] K. Warner and S. Zakieldeen, ‘Loss and damage due to climate change: An overview of the UNFCCC negotiations’ European Capacity Building Initiative (ECBI), p 3.
[12] UNFCCC, Ad Hoc Working Group on Long-term Cooperative Action under the Convention (AWG-LCA), FCCC/AWGLCA/2010/14, 13 Aug 2010, Chapter II, 4(f) available online at http://unfccc.int/resource/docs/2010/awglca12/eng/14.pdf (last accessed 25 October 2011).
[13] K Warner, ‘Climate Change Induced Displacement: Adaptation Policy in the Context of the UNFCCC Climate Negotiations.’ Legal and Protection Policy Research Series, UN High Commissioner for Refugees (UNHCR), May 2011. http://www.unhcr.org/4df9cc309.pdf
[14] UNFCCC, Decision 1/CP.16, The Cancun Agreements, FCCC/CP/2010/7/Add.1, available online at: http://unfccc.int/resource/docs/2010/cop16/eng/07a01.pdf#page=5 (last accessed 25 October 2011)
[15] See note 8. UNFCCC, Decision 1/CP.13, Sub-paragraph 1(c) (iii)
[16] Alliance of Small Island States (AOSIS), Proposal to the AWG-LCA: Multi-Window Mechanism to Address Loss and Damage from Climate Change Impacts, 2008. http://unfccc.int/files/kyoto_protocol/application/pdf/aosisinsurance061208.pdf
[19] The 1951 Convention relating to the Status of Refugees does not apply to those fleeing environmental degradation. The nonbinding 1998 Guiding Principles on Internal Displacement were established in to deal with the protection gap for internally displaced persons. While they explicitly mention “natural disasters” as a driver of forced displacement, they are aimed primarily at persons forcibly displaced by armed conflict.
[20] For a full summary of the debate, see: J McAdam, Climate Change, Forced Migration, and International Law, Oxford University Press. May 2012.
[21] For a summary of recommendations for the Quatar outcome, see S Huq, ‘Climate change talks from Durban to Bonn’ The Daily Star, Bangladesh, 22 September 2012 http://www.thedailystar.net/newDesign/news-details.php?nid=233983
This article was first published by the Foundation for International Environmental Law and Development (FIELD), written by Caroline Mair.
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