Someone is displaced by a disaster every second. Each year, more people are displaced within their own countries by the impacts of environmental disasters and climate change than by conflict and persecution. Climate change is likely to result in disasters on steroids, as events become more frequent and more intense.
Although most displaced people will not cross an international border, many will — and their legal status can be precarious. Generally, they will not qualify as refugees under the Refugee Convention, which protects people with a well-founded fear of being persecuted for reasons of race, religion, nationality, political opinion, or membership of a particular social group. Human rights law may assist them, to the extent that it prohibits the removal of people when it poses a real risk that they will be deprived of life or subjected to inhuman or degrading treatment — but perhaps not until they face a more immediate risk of harm, given the scope for intervening adaptive measures.
There is, therefore, a protection gap. Responding to this gap requires a number of complementary measures to:
- help people stay in their homes, where possible — through disaster risk reduction, climate change adaptation, and resilience building;
- protect people who are displaced;
- help people to move out of harm’s way safely (by providing “self-help” mechanisms).
Such strategies must be consistent with international and regional human rights law.
In accordance with the United Nations Guiding Principles on Internal Displacement , states should provide people displaced within their own countries with protection and assistance, and establish the means for them to find sustainable solutions to their plight. Even though the Guiding Principles are not legally binding, they are based upon and reflect binding international law and thus provide detailed instructions for the protection and assistance of internally-displaced people. However, to be effective, the Guiding Principles need to be better integrated into domestic laws and policies. Vanuatu’s National Policy on Climate Change and Disaster-Induced Displacement, which is based on the UN Guiding Principles, is one such example.
People displaced across borders in the context of climate change and disasters will not generally qualify as refugees under the Refugee Convention. Nevertheless, disasters may take place in the context of other kinds of harm that fall within the purview of existing international protection regimes — for example, if a disaster triggers armed conflict, results in a breakdown of law and order, or is used as a pretext for persecutory acts.
Existing practice shows that states are often willing to admit, or at least not return, people who are seriously and personally affected where their life or safety is endangered by an ongoing or imminent and foreseeable disaster in their country of origin; they have been wounded, lost family members, or lost their livelihoods as a direct result of a disaster; or they face serious hardship or even risks to their life or health in their country of origin, particularly because they cannot access necessary humanitarian protection and assistance there.
Rather than waiting until people are forced to flee, a more proactive and rights-sensitive approach helps people to move before disaster strikes. This encompasses measures such as evacuation, planned relocation, and migration, which can help people cope with, or adapt to, adverse environmental impacts.
The duty to protect the right to life may oblige states to temporarily evacuate people at imminent risk of death, but only where there is no other way to save lives. In more extreme cases, states may need to undertake planned relocations to move people away from dangerous areas permanently. Planned relocations may also provide a lasting solution for people who have been displaced or evacuated in anticipation of, or in response to, a sudden disaster. However, given their propensity to create further vulnerabilities, dislocation, and impoverishment, planned relocations must be undertaken with extreme caution and should generally be a measure of last resort.
Migration can be an important adaptation and risk management strategy because it allows people to move before a disaster occurs. International law does not explicitly address the rights of those who migrate in anticipation of, or in response to, disasters. For this reason, states should consider creating new domestic and regional laws and agreements to facilitate temporary, circular, and permanent migration, in accordance with applicable international human rights and labor law standards. This could allow people to have a measure of control over when and where they move.
The Nansen Initiative on Disaster-Induced Cross-Border Displacement and its successor, the Platform on Disaster Displacement, have been instrumental in putting climate change and disaster displacement on the global policymaking map. These state-led yet bottom-up consultative processes involving government officials, experts, affected communities, and civil society have helped to generate and coordinate research on disaster displacement, and have led to more nuanced understandings about the phenomenon. In turn, they have secured the inclusion of important language on disasters, climate change, and human mobility in a number of international instruments. These include the Sendai Framework for Disaster Risk Reduction 2015–2030, the 2030 Agenda for Sustainable Development, the 2015 Paris Agreement, the Agenda for Humanity (annexed to the UN Secretary-General’s report for the 2016 World Humanitarian Summit), and the 2018 Global Compact for Safe, Orderly and Regular Migration. A Task Force on Displacement was also developed as part of the UNFCCC process “to develop recommendations for integrated approaches to avert, minimize, and address displacement related to the adverse impacts of climate change.”
The most recent of these instruments — the Global Compact for Safe, Orderly and Regular Migration — was adopted by most of the world’s governments in December 2018, although the United States notably withdrew at the outset. Ironically, its withdrawal may have enabled a significant development. For the first time, the international community made specific commitments to protect people seeking to escape the impacts of climate change, natural disasters, and environmental degradation, thanks to a compelling, eleventh-hour intervention by Pacific island states that highlighted the existential importance of the issue for them.
Drawing expressly on the recommendations of the Nansen Initiative, the Global Compact sets out the need to: (a) strengthen information sharing and analysis to better understand and address mobility in the context of disasters, climate change, and environmental degradation; (b) develop adaptation and resilience strategies, which may include migration; (c) integrate displacement considerations into disaster preparedness strategies; (d) ensure access to humanitarian assistance and promote sustainable outcomes that increase resilience and self-reliance; and (e) develop coherent approaches to address the challenges of migration in this context. The compact also commits states to respect prohibitions against returning migrants to situations of irreparable harm, and to ensure the effective respect, protection, and fulfillment of their human rights.
The Global Compact addresses proactive migration as part of the solution. It is a strong signal that governments recognize that the impacts of natural disasters, climate change, and environmental degradation will continue to generate movement and that evidence-based strategies are needed to address this. However, the compact is not a treaty and does not create any new legal obligations. Translating its moral commitments into reality will be a challenge, but the inclusion of such detailed commitments in an instrument drafted by states is nevertheless a significant first step.
Jane McAdam is Scientia Professor of Law at UNSW and the director of the Andrew & Renata Kaldor Centre for International Refugee Law. She is the editor-in-chief of the International Journal of Refugee Law.