Photo: Mathias Eick, EU/ECHO, September 2013

Climate Refugees: How Guterres Can Protect The Unprotected

Photo: Mathias Eick, EU/ECHO, September 2013

On 13 October, António Guterres was elected to be the next United Nations Secretary-General (UNSG). Guterres is probably best known for having been, not only prime minister of Portugal, but also the United Nations High Commissioner for Refugees (UNHCR) from 2005 to 2015.

With the refugee and/or (depending on definitions) migration “crises” occupying much of the political debates, both nationally and internationally, and the potential for the upcoming liberation of Mosul to only further worsen the situation, one can wonder how the former head of UNHCR will tackle these problems. And, at a time when the effects of climate change are being felt around the world, a particular question that comes to mind is the protection of climate refugees, an issue that experts, and Guterres himself, have been struggling with for years.

Climate refugees can be considered people who have had to flee their homes due to environmental factors that can be partially attributed to climate change, such as drought, extreme weather conditions and natural disasters. The International Displacement Monitoring Centre estimates around 20 million people a year are forced to do so.

The lack of protection of these individuals is immediately apparent when one realizes that there is no international legal definition of “climate refugee.” Indeed, climate refugees do not fall under the definition of “refugee” under the 1951 Refugee Convention or any other treaty. The closest to a legal definition is in the UN’s 1998 Guiding Principles on Internal Displacement which includes those who are forced to flee “natural … disasters”. However, these principles are not legally binding and clearly do not protect individuals who are forced to cross an international border.

Furthermore, there is a link between the ongoing rise of temperatures and an increase in situations in which people are forced to flee their homes. Although climate change, a problem that requires a global response, causes such displacement, very little is being done to protect these refugees. This is exemplified by the 2015 Paris Agreement on climate change. It is set to enter into force today, on 4 November 2016, and is, arguably, the most far-reaching achievement in the fight against climate change. However, it says nothing about forced migration resulting from climate change. Only in the preamble to the Agreement, it says that states have to “respect, promote and consider … the rights of … migrants” when they “address climate change.”

Climate refugees clearly fall through the cracks of international legal protection. This gap in the protection of climate refugees is something that has to be addressed, and the incoming UNSG, as a former UNHCR head, might just be the person for the job. The UNHCR already protects more than just traditional refugees. The organization also attempts to alleviate the plight of IDPs and stateless people. Thus, Guterres is familiar not only with the gap in protection within the current regime but also with the possible solution of widening the competences of UNHCR.

As UNSG, there are a number of options available. Guterres could push for an amendment of the 1951 Convention. Including climate refugees in the refugee definition would greatly assist in their protection. However, leaving aside the implementation problems of the current regime, such a change is not realistic as re-negotiating existing treaties typically encounters numerous difficulties.

Another option is the creation of an international treaty or an additional protocol to the 1951 Convention. This would also be a strong form of protection. But, the feasibility of such a project is just as questionable, especially considering the fact that when it comes to making progress on the migration issue, the most recent, global agreement was the New York Declaration. The declaration does little more than give states two years to agree on two compacts, one on refugees and another on migration. Making progress when it comes to tackling migration is thus difficult enough never mind aiming for a new treaty.

The most Guterres can probably hope for is including climate refugees in the compacts. The question then becomes, in which one of the two: the one on refugees or the one on migration? Considering the plan for the compact on refugees (Annex I to the New York Declaration) does not even mention environmental issues, the most realistic option would be to include the protection of climate refugees in the migration compact. Another option would be to tackle the problem more from the climate change side (as opposed to a migration side).

The issue of migration could be described as politically toxic, making extending protection unlikely. Using future climate change agreements for the protection of climate refugees might be more achievable. From 7 to 18 November COP 22 will take place and, considering the progress made at COP 21, there may be some form of recognition of the need to protect climate refugees that Guterres could use to put climate refugee protection firmly on the international agenda once he assumes office.

Whatever format an agreement might take, it will require content that is specifically tailored to the needs of climate refugees. For example, it is important to realize that, unlike traditional refugees, climate refugees are more unlikely to return to their homes because of irreversible damage. Furthermore, elements like preemptory, planned relocation can be envisaged in situations where it is foreseeable that people might fall into a situation in which they are unable to leave a precarious area.

To conclude, both in terms of format and content, Guterres will face complex challenges. He will either have to work with weak instruments or approach the problem from the perspective of climate change. In terms of content, he will need to resolve the problem of defining climate refugees and the appropriate protections specific to climate refugees. However, hoping that his election signals the international community’s intent to do so, the new UNSG might capitalize on a new concerted willingness to act.

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