Международный правовой курьер

В перечне ВАК с 2015 г.

Climate change migration in Oceania as a contemporary challenge in international law

This article examines the pressing issue of climate change-induced migration in Oceania and its implications within the framework of international law. The increasing impacts of climate change, such as sea level rise, extreme weather events and coastal erosion, are rapidly leading to the displacement of communities in Oceania. By examining the changing legal landscape at both universal and regional levels, this article explores the shortcomings of existing legal mechanisms to effectively address the complex problems of climate-induced displacement. Moreover, through a critical analysis of relevant treaties, customary international law and emerging standards, the article suggests possible ways to improve legal protection and support for climate migrants in Oceania. Ultimately, this study contributes to the ongoing debate on the intersection of climate change, migration and international law, offering insights for policymakers, lawyers and academics seeking to address this contemporary challenge in the Pacific region.

Миграция в связи с изменением климата в Океании: современный вызов в международном праве

Аннотация: В данной статье рассматривается актуальная проблема миграции в Океании, вызванной изменением климата, и ее последствия в рамках международного права. Усиливающиеся последствия изменения климата, такие как повышение уровня моря, экстремальные погодные явления и эрозия берегов, быстро приводят к перемещению населения в Океании. Изучая меняющийся правовой ландшафт как на универсальном, так и на региональном уровнях, в данной статье рассматриваются недостатки существующих правовых механизмов для эффективного решения сложных проблем перемещения, вызванного изменением климата. Кроме того, на основе критического анализа соответствующих договоров, обычного международного права и новых стандартов в статье предлагаются возможные пути улучшения правовой защиты и поддержки климатических мигрантов в Океании. В конечном итоге данное исследование вносит вклад в продолжающуюся дискуссию о пересечении проблем изменения климата, миграции и международного права, предлагая идеи для политиков, юристов и ученых, стремящихся решить эту современную проблему в Тихоокеанском регионе.



Introduction

Oceania’s islands face existential threats from rising sea levels, intensifying tropical cyclones and changing rainfall patterns[1]. Amid these environmental changes, a parallel crisis is unfolding — the forced displacement of communities as a result of climate change-induced events. This phenomenon of migration due to climate change poses a unique and urgent challenge in the field of international law, as existing legal frameworks struggle to adequately deal with the complex and dynamic nature of displacement in Oceania. By addressing the intersection of climate change, migration and international law, this article aims to explore the intricacies of this contemporary challenge and propose avenues for legal solutions to better protect and assist climate migrants in the Pacific region. Through a lens that combines legal analysis with a humanitarian perspective, this study seeks to contribute to the ongoing debate on climate justice and the need for improved legal mechanisms to address the plight of those most affected by climate change in Oceania.

Of particular note is the region of Oceania, where states have faced this problem and the situation will only worsen in the future. Many islands are already threatened by floods.

Currently, in Oceania, where about 41 million people live, international migrants make up almost 22 per cent of the population, with more than a million migrants from Oceania choosing to stay in the region[2]. The migration tendency is expected to escalate, with an estimated 50,000 Pacific islanders at risk of having to leave their homes each year due to natural disasters caused by climate change.[3]

Fig. 1. A map showing where natural disasters caused/aggravated by global warming may occur.[4]

The map shows (Figure 1), the scale of disasters that lead to environmental migration. The scale of disasters that drive environmental migration has increased in recent years as the world faces the devastating effects of climate change and pollution. Rising sea levels, extreme weather events, desertification and loss of habitable land have made many regions increasingly uninhabitable, leading to mass displacement of populations.

In light of this challenge, international law plays a crucial role in providing a framework for addressing the rights and protection of environmental migrants. However, it is important to note that at the international level, there is no specific legally binding instrument dedicated solely to climate change migration. Instead, existing legal frameworks, including human rights law, refugee law and international humanitarian law, are the primary means by which the rights and needs of affected persons are addressed.

Climate change migration is a pressing contemporary issue that interfaces with numerous areas of international law. As the frequency and intensity of environmental violations continue to increase, policymakers, practitioners and academics must work together to develop a robust legal framework that recognises and protects the rights of victims of environmental migration. This will require international cooperation, innovative approaches and a holistic understanding of the complex dynamics at play here to ensure that no one is left behind in environmental crises.

Main part

Terminology

First we need to deal with terminology, namely what to call people who are involved in migration due to climate change. There are several positions and definitions for such a group of people. The terms “environmental migrant”, “climate migrant” and “climate refugee” are often utilized interchangeably alongside various similar expressions, including environmental refugee, environmental emergency migrants, environmental forced migrants, and environmental motivated migrants, also known as environmentally induced economic migrants.

The term “environmental refugee” was first proposed by Lester Brown in 1976.[5]

International Organization for Migration (IOM) proposes the following definition for environmental migrants: “Environmental migrants are persons or groups of persons who, for compelling reasons of sudden or progressive changes in the environment that adversely affect their lives or living conditions, are obliged to leave their habitual homes, or choose to do so, either temporarily or permanently, and who move either within their country or abroad”.[6]

Moreover, IOM identifies three main types of environmental migration: environmental emergency migrants, environmental forced migrants, and environmental motivated migrants, also known as environmentally induced economic migrants. Each type represents a distinct category of individuals who are compelled to move due to environmental factors, highlighting the diverse nature of environmental migration challenges.

Climate migrants refer to those who engage in movement driven by the impact of sudden or gradual climate change, such as “abnormally heavy rainfalls, prolonged droughts, desertification, environmental degradation, or sea-level rise and cyclones”.[7]

Climate refugees are persons or groups of persons who, for reasons of sudden or progressive climate-related change in the environment that adversely affects their lives or living conditions, are obliged to leave their homes, either temporarily or permanently, and who move either within their country or abroad.[8]

The choice between «climate refugee» and «climate migrant» is not merely semantic; it affects how the international community responds to these individuals. Campaigners argue for the term «climate refugee» to emphasize the urgency and severity of their plight, as «refugee» has a stronger emotional appeal and implies duress. Conversely, «migrant» suggests a voluntary move, which may downplay the seriousness of their situation. According to the 1951 UN Convention on Refugees, the term «refugee» is restricted to those fleeing persecution based on specific grounds (like race or political opinion). Many affected by climate change may not meet this definition, particularly if they remain within their home country as Internally Displaced Persons (IDPs). Additionally, environmental conditions (e.g., sea level rise) do not allow for a right of return, further complicating the use of «refugee.»

There is significant resistance among developed nations to expanding the refugee definition, fearing it would obligate them to extend the same protections afforded to political refugees. International institutions like the UNHCR, already stretched thin, are hesitant to broaden their mandate to include those displaced by climate change.

Terms like «climate evacuee» suggest temporary displacement, while «climate migrant» focuses on the attractiveness of the destination rather than the pressures at the origin, which can diminish the accountability of the international community. For now, these displaced individuals often lack visibility and support within existing international frameworks.The International Organization for Migration (IOM) suggests defining “environmental migrants” as those who are forced to leave their homes due to adverse environmental changes. This definition aims to encompass both those who move temporarily or permanently, either within their country or abroad.

Analysing the terms, I believe that the term climate refugee is exhaustive among the proposed terms, as it reflects the peculiarities of the region and is reflected in the case studies (Ioane Teitiota v. New Zealand)[9],[10]. However, one cannot deny the achievements and progress in the development of IOM terminology on environmental migration.

Legal framework

With regard to the legal aspect of climate change migration, it is important to note that there is no universally recognised legal framework specifically addressing this issue. However, existing international and national laws do provide some degree of protection and assistance to people forced to migrate due to environmental factors.

— International human rights law: Human rights instruments such as the Universal Declaration of Human Rights (article 3: Right to life, liberty, and security of person; article 14: Right to seek asylum from persecution in other countries; article 25: Right to an adequate standard of living, including food, clothing, housing, and medical care.)[11], the International Covenant on Civil and Political Rights (article 6: Right to life, stating that no one shall be arbitrarily deprived of their life; article 9: Right to liberty and security of person; article 26: Equal protection before the law without discrimination, ensuring that refugees receive equal treatment)[12] and the International Covenant on Economic, Social and Cultural Rights (article 11: Right to an adequate standard of living, including adequate food, clothing, and housing; article 12: Right to the highest attainable standard of physical and mental health; article 15: Right to take part in cultural life and enjoy the benefits of scientific progress)[13] protect people’s rights, including the right to life, security and an adequate standard of living.

These rights can apply to people displaced by environmental factors.

— Refugee Law: The 1951 Refugee Convention[14] and its 1967 Protocol define the status and rights of refugees[15].

Article 1 of the 1951[16] Convention defines a refugee as a person who has a well-founded fear of persecution based on race, religion, nationality, membership in a particular social group, or political opinion. To be considered a refugee, this individual must be outside their home country and unable or unwilling to seek protection there. The definition also applies to stateless individuals outside their former habitual residence.

However, these legal frameworks focus mainly on people fleeing persecution or conflict rather than environmental factors. As a result, people displaced solely for environmental reasons do not always meet the traditional definition of refugee.

— National laws and policies: Many countries have implemented their own laws and policies to address environmentally induced internal displacements. These may include resettlement, compensation, social support and land tenure schemes. However, the scope and effectiveness of these laws can vary considerably from country to country..[17]

Interestingly, while legal frameworks exist, specific rights and protections for people affected by environmental migration can be limited and inconsistent. Developing a comprehensive international legal framework to address this issue is an ongoing challenge, and discussions are ongoing in various international fora to better understand and address the needs of environmentally displaced persons.

There are also some additional points on the legal aspects of environmental migration, such as:

— The principle of non-refoulement[18]: The principle of non-refoulement, a cornerstone of refugee law[19], prohibits the forced return of people to a place where their life or freedom is at risk. In the context of environmental migration, this principle can be used to argue that people should not be returned to areas seriously affected by environmental pollution or natural disasters.

— Gaps in protection: One of the challenges in addressing environmental migration is the existence of gaps in protection within the existing legal system. As mentioned earlier, traditional refugee law may not cover those displaced solely because of environmental factors. This has led to calls for the development of new legal instruments or the expansion of existing ones to include persons affected by climate change and environmental degradation.

— Agreements on climate change: International agreements on climate change, such as the United Nations Framework Convention on Climate Change (UNFCCC), recognise the importance of protecting and assisting vulnerable groups. While these agreements focus primarily on mitigation and adaptation efforts, there is growing recognition of the need to address climate change-induced displacement and migration.

The Paris Agreement represents a significant shift in global climate action, emphasizing a bottom-up approach where countries set their own climate goals, known as Nationally Determined Contributions (NDCs). This flexibility aims to encourage participation from all nations, regardless of their economic capabilities.

Following the challenges faced during the Copenhagen Conference in 2009, the UNFCCC, under the leadership of executive secretary Christiana Figueres, sought to revitalize negotiations. This effort culminated in the establishment of the Durban Platform at the 2011 United Nations Climate Change Conference (COP17), which aimed to develop a legal instrument governing climate change mitigation measures starting in 2020. The Durban Platform’s mandate was to be informed by the Fifth Assessment Report of the Intergovernmental Panel on Climate Change (IPCC) and the work of the subsidiary bodies of the UNFCCC.

— Evolving legal approaches: Some countries have started exploring new legal approaches to address environmental migration. New Zealand, for example, has introduced a visa category called «climate change refugee»[20], allowing persons displaced by the effects of climate change to obtain residence permits. allowing persons displaced by the effects of climate change to obtain residence permits. Pacific island states also call for a regional agreement on climate change-induced migration.

— Humanitarian aid and development efforts: In addition to legal frameworks, humanitarian aid and development efforts play a crucial role in supporting people affected by environmental migration. International organisations, NGOs and governments provide assistance in the form of emergency relief, resettlement, livelihood support and infrastructure development.

It is important to emphasise that the legal landscape related to environmental migration is still evolving and discussions are ongoing at national, regional and international levels on the specific needs and rights of environmentally displaced persons. The complexity of the problem requires a multifaceted approach that combines legal, policy, humanitarian and development efforts to ensure the protection and well-being of victims of environmental migration.

Ioane Teitiota v. New Zealand

The case of Ioane Teitiota v. New Zealand[21] is an important court case involving the issue of climate change and its impact on human rights.

Ioane Teitiota, a Kiribati national, sought asylum in New Zealand in 2013, claiming that he faced persecution in his home country due to the effects of climate change. Teitiota argued that rising sea levels and environmental degradation in Kiribati made it unsafe for him and his family to return, and therefore he should be granted refugee status under the UN Refugee Convention.

The case was heard in New Zealand courts, including the High Court and the Court of Appeal, and was eventually heard by the Supreme Court of New Zealand in 2015. However, it is important to note that the Supreme Court refused to hear Teitiota’s appeal on the basis that it did not raise issues of public or general importance.

The legal analysis of this case revolves around whether a person can be considered a refugee under international law solely on the basis of risks related to climate change in their home country. Determining refugee status generally requires a well-founded fear of persecution on specific grounds, such as race, religion, nationality, political opinion or belonging to a particular social group.

Although climate change is a global problem with serious consequences, existing international refugee law does not recognise it as a separate ground for refugee status. The legal definition of a refugee under the 1951 Refugee Convention[22] and its 1967 Protocol[23] does not include persons displaced or forced to flee their homes solely because of environmental factors.

In Teitiota’s case, the New Zealand courts ultimately concluded that Teitiota’s situation did not meet the threshold for refugee status. They ruled that the adverse conditions caused by climate change in Kiribati, while undoubtedly difficult, did not constitute persecution as required by the existing legal framework.

Noteworthy, the case triggered important discussions on the interface of climate change and human rights. Although Teitiota’s specific claim for refugee status was not granted, the case highlighted the need to further explore and develop an international legal framework to address the unique challenges of climate change-induced displacement and migration.

The ICCPR covers a wide range of rights, including the right to life and the prohibition of torture or ill-treatment. These rights extend to asylum seekers and refugees.

The UN Human Rights Committee highlights the need for national and international efforts to prevent rights violations due to climate change. The threat of whole countries being flooded is an extraordinary risk, and living conditions in such countries no longer meet the right to a dignified life before the threat becomes a reality.[24]

Conclusions

Climate change migration is a hot topic in international law that needs urgent attention. The lack of a comprehensive legal framework to address this problem exacerbates the vulnerability of affected populations and hinders effective responses. To adequately address environmental migration, it is essential to develop new legal instruments that recognise the specific needs and rights of people displaced by environmental factors. In addition, international cooperation and burden-sharing mechanisms must be put in place so that responsibilities are shared fairly among states. By prioritising the development of robust legal frameworks, the international community will be better able to protect and support individuals and communities affected by environmental migration in a rapidly changing world.

Vulnerabilities:

-Lack of a uniform legal framework: There is currently no universally recognised system of laws and standards for environmental migration at the international level. This can cause problems in providing protection and assistance to people forced to leave their homes for environmental reasons.

-National interests: In some cases, the interests of individual states may oppose the establishment of effective international mechanisms and rules to control environmental migration.

-Complexity of status determination: determining the status of environmental migrants and recognising them as refugees or persons in need of international protection is a complex task due to the lack of clear criteria and legal definitions.

Opportunities:

-Development of new legal instruments: The issue of environmental migration can spur the development of new international legal instruments that will help protect the rights of environmental migrants and ensure they receive adequate assistance and support.

-International cooperation: Opportunities for closer cooperation between states, organisations and civil society to address environmental migration and develop strategies to manage environmental migration:

-Integrated approach: Opportunity to develop an integrated approach to managing environmental migration that includes not only legal aspects, but also social, economic and environmental measures. This can contribute to more effective adaptation and reintegration of environmental migrants.

Threats:

-Economic barriers: economic interests and national priorities may hinder the development and adoption of effective mechanisms to provide protection and assistance to environmental migrants.

-Social problems: in countries hosting climate refugees, problems with integration and rejection by the local population may arise.[25] This can cause social tensions and complicate the management and assistance of this category of refugees.

Overall, climate change migration is a contemporary challenge in Oceania. New legal instruments need to be developed, international cooperation strengthened and an integrated approach adopted to effectively address the problem. I believe that, based on all of the above, a regional level document should be created, since all states in the Oceania region have been particularly affected by climate change.  Such a document could be based on the definition of a refugee in Article 1 of the Refugee Convention[26] and modified based on the danger of natural problems caused by climate change, as well as include provisions from the proposals of the International Organisation for Migration.


[1] WMO Site Climate change transforms Pacific Islands URL: https://wmo.int/media/news/climate-change-transforms-pacific-islands

[2]Migration Data Portal // URL: https://www.migrationdataportal.org/

[3] Campbell J. R. Climate Change, Migration and Land in Oceania //Climate Change and Conflict in the Pacific. – Routledge, 2019. – С. 66-81.

[4] SPIEGEL, DER. «Photo Gallery: Is Environmental Migration Really Rising? — DER SPIEGEL — International». // URL: www.spiegel.de.

[5] Brown, L.R., 1976. Twenty-Two Dimensions of the Population Problem. Worldwatch Paper 5.

[6] IOM NINETY-FOURTH SESSION (MC/INF/288). // URL: https://www.iom.int/sites/g/files/tmzbdl486/files/jahia/webdav/shared/shared/mainsite/about_iom/en/council/94/MC_INF_288.pdf

[7] Refugees, United Nations High Commissioner for. «Climate change and disaster displacement». UNHCR // URL: https://www.unhcr.org/us/what-we-do/build-better-futures/environment-disasters-and-climate-change/climate-change-and (access 10.01.2025)

[8] Solntsev A.M. «Environmental And Climate Law: Comparative Analysis of Russia and Other Countries.» p.10. URL: https://esg-library.mgimo.ru/publications/ekologicheskoe-i-klimaticheskoe-zakonodatelstvo-sravnitelnyy-analiz-rossii-i-zarubezhnykh-stran/ (access 10.01.2025)

[9] Ioane Teitiota v. New Zealand (advance unedited version), CCPR/C/127/D/2728/2016, UN Human Rights Committee (HRC), 7 January 2020, available at: https://www.refworld.org/cases,HRC,5e26f7134.html.

[10] Solntsev A. Priotkryvaya yashchik Pandory: analiz mneniya Komiteta po pravam cheloveka o “klimaticheskikh” bezhentsakh 2020 goda [Half-opening Pandora’s box: review of the Human Rights Committee’s 2020 view on climate refugees] //Mezhdunarodnoe pravosudie. – 2020. – Т. 10. – №. 3. – С. 41-54.

[11] UN General Assembly, Universal Declaration of Human Rights, 10 December 1948, 217 A (III), available at: https://www.refworld.org/docid/3ae6b3712c.html

[12] UN General Assembly, International Covenant on Civil and Political Rights, 16 December 1966, United Nations, Treaty Series, vol. 999, p. 171, available at: https://www.refworld.org/docid/3ae6b3aa0.html

[13] UN General Assembly, International Covenant on Economic, Social and Cultural Rights, 16 December 1966, United Nations, Treaty Series, vol. 993, p. 3, available at: https://www.refworld.org/docid/3ae6b36c0.html

[14] UN General Assembly, Convention Relating to the Status of Refugees, 28 July 1951, United Nations, Treaty Series, vol. 189, p. 137, available at: https://www.refworld.org/docid/3be01b964.html

[15] UN General Assembly, Protocol Relating to the Status of Refugees, 31 January 1967, United Nations, Treaty Series, vol. 606, p. 267, available at: https://www.refworld.org/docid/3ae6b3ae4.html

[16] UN General Assembly, Protocol Relating to the Status of Refugees, 31 January 1967, United Nations, Treaty Series, vol. 606, p. 267, available at: https://www.refworld.org/docid/3ae6b3ae4.htm

[17] CDE-DM website; Climate Migration in Oceania May 2022 by J. Bautista, J. Choe, E. McAnany// URL: https://www.cfe-dmha.org/

[18] Scissa C. et al. The principle of non-refoulement and environmental migration: A legal analysis of regional protection instruments //DIRITTO, IMMIGRAZIONE E CITTADINANZA. – 2022. – Т. 3. – С. 1-36.

[19] UN High Commissioner for Refugees (UNHCR), UNHCR Note on the Principle of Non-Refoulement, -, November 1997, https://www.refworld.org/policy/legalguidance/unhcr/1997/en/36258

[20] The Guardian. New Zealand considers creating climate change refugee visas; URL: https://www.theguardian.com/world/2017/oct/31/new-zealand-considers-creating-climate-change-refugee-visas

[21] Ioane Teitiota v. New Zealand (advance unedited version), CCPR/C/127/D/2728/2016, UN Human Rights Committee (HRC), 7 January 2020, available at: https://www.refworld.org/cases,HRC,5e26f7134.html

[22] UN General Assembly, Convention Relating to the Status of Refugees, 28 July 1951, United Nations, Treaty Series, vol. 189, p. 137, available at: https://www.refworld.org/docid/3be01b964.html

[23] UN General Assembly, Protocol Relating to the Status of Refugees, 31 January 1967, United Nations, Treaty Series, vol. 606, p. 267, available at: https://www.refworld.org/docid/3ae6b3ae4.html

[24] Ioane Teitiota v. New Zealand (advance unedited version), CCPR/C/127/D/2728/2016, UN Human Rights Committee (HRC), 7 January 2020, available at: https://www.refworld.org/cases,HRC,5e26f7134.html

[25] Climate Refugees // URL: https://www.climate-refugees.org/why

[26] UN General Assembly, Convention Relating to the Status of Refugees, 28 July 1951, United Nations, Treaty Series, vol. 189, p. 137, available at: https://www.refworld.org/docid/3be01b964.html

Infornation about the author:

Baryshkov Pavel — postgraduate student, assistant of the Department of International Law, People’s Friendship University of Russia named after Patrice Lumumba (RUDN). 117198, Moscow Miklukho-Maklaya Street 6, Moscow, Russia.

Информация об авторе:

Барышков Павел Евгеньевич — аспирант, ассистент кафедры мждународного права Российского университета дружбы народов имени Патриса Лумумбы (РУДН). 117198, Москва улица Миклухо-Маклая 6, Москва, Россия.

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