Atwal, Jasleen --- "Uncharted Waters: Reimagining Legal Responses to Climate-Induced Displacement in the Anthropocene" [2024] UNSWLawJlStuS 3; (2024) UNSWLJ Student Series No 24-3

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UNCHARTED WATERS: REIMAGINING LEGAL RESPONSES TO CLIMATE-INDUCED DISPLACEMENT IN THE ANTHROPOCENE

JASLEEN ATWAL

I INTRODUCTION

Migratory paths have undergone profound processes of transformation and diversification since the conception of the Convention Relating to the Status of Refugees (‘the Convention’).^[1] The effects of climate change threaten to provoke an unprecedented level of human displacement, compelling states to act conjointly in developing and implementing strategies for affected populations. This study firstly identifies the gaps in the international protection regime and analyses proposals to either amend the Convention or to create a new treaty providing for the protection of climate change displaced persons (‘CCDPs’). It concludes that both options are unfeasible and unproductive. Part VI draws on experiences in South Asia to demonstrate that the continued development of soft law initiatives and regional polices will more effectively promote the dignity and self-determination of CCDPs, with a focus upon framing migration as adaptation. This study ultimately makes clear that CCDPs signify a novel class of refugees, one which the international community should recognise as independent and distinct.

II CLIMATE CHANGE AND DISPLACEMENT

A Nature and Scope of Crisis

No country in the world is exempt from experiencing the effects of changing climatic conditions and land degradation.^[2] Climate impacts can be separated into two categories: sudden impact disasters or slow on-set disasters.^[3] Examples of the former include earthquakes, floods and bushfires, whereas the latter involves rising sea-levels, desertification and droughts.^[4] Predictions on the number of persons displaced by the effects of climate change range from 50 million to 1 billion by the year 2050.^[5] While it is uncertain what climate change will mean for the distribution of human populations, it is clear that a crisis of forced migration is imminent.^[6] This threat is especially pronounced in South Asia as it is densely populated and comprises of a large number of low-lying deltas. To illustrate, approximately 129 million people reside along the Ganges-Brahmaputra-Meghna river, spanning from Bangladesh and India to Nepal, Bhutan and China.^[7] This river is vulnerable to rising sea levels and extensive flooding, rendering increased levels of migration unavoidable.^[8] Bangladesh, a densely populated delta nation, is annually subjected to catastrophic events such as cyclones and storm surges, and also to slower processes such as coastal erosion.^[9] It is often cited as the country to produce the largest number of CCDPs in the world, with predictions estimating that 30 million Bangladeshi’s (or one in seven people) will be displaced by 2050.^[10] The issue is aggravated by historical animosities within the region, with neighbouring Burma and India reluctant to accept foreigner populations.^[11] Similarly, should the current rate of warming persist in the Andean region of South America, most glaciers will dissolve within 20 years, threatening the water supplies for over 70 million people.^[12] Residents from Palca, a Bolivian town that is dependent on glacier meltwater for their survival, have already started to migrate to other towns.^[13] As questioned by Solón, a Bolivian ambassador, ‘what do you do when your glacier disappears, or your island is under water?’.^[14] These environmental crises can be observed all over the world; in Bangladesh, India, Bolivia and beyond, hundreds of millions of people are expected to be displaced due to the effects of climate change.

B Study Justifications

While classifying CCDPs as ‘refugees’ bears significant political utility and normative expression, it has no legal foundation in international law as they are not recognised under the Convention.^[15] This study does not seek to formulate an exclusive or rigid definition for the reasons discussed in Part III. To define loosely, CCDPs refers to individuals who are forced to migrate across international borders due to reductions in the availability and quality of food and water, loss of habitat and infrastructure, as well as ‘increased exposure to ill‐health, injury and even death arising from natural disasters or changes in the physical environment in situations where return is not possible’.^[16] Current research indicates that the majority of climate-related displacement will occur within national borders.^[17] However, this study is predicated on cross-border migration as internally displaced persons are primarily governed under domestic legislation and soft law, namely the United Nations Guiding Principles on Internal Displacement.^[18]

III EXISTING GAP

Despite recognition of the imminence and gravity of climate change, a legal gap exists within international law in the management and protection of CCDPs. Primary developments in this area relate simply to the inclusion of climate mobility language in instruments such as the Sendai Framework for Disaster Risk Reduction and the Global Compact for Safe, Orderly and Regular Migration.^[19] These are buttressed by the 2012 Nansen Initiative on Disaster-Induced Cross-Border Displacement, as succeeded by the Platform on Disaster Displacement, which serves as an institutional hub for harmonising a common understanding of the issue and promoting regional cooperation.^[20]

Drafted in a post-war context and initially conferring status to political refugees, the Convention has a restrictive definition that limits refugee status to a narrow interpretation.^[21] The first core element under article 1(A)(2) necessitates there must be a ‘well-founded fear of being persecuted’.^[22] Although state policies, such as authorising mass deforestation, may give rise to claims of liability or contributory negligence, they are unlikely to constitute ‘persecution’.^[23] This is demonstrated by the fact that every application brought in Australia claiming climate-related displacement has been rejected.^[24] The Tribunal in 0907346 held that the impacts of climate change did not constitute persecution as there was no discriminatory aspect.^[25] Discrimination is an essential element as established in Applicant A v Minister for Immigration and Ethnic Affairs.^[26] The finding of an absence of discrimination is potentially flawed and misleading as it overlooks the fact that individuals from low socio-economic backgrounds and impoverished conditions face elevated risks. Even if legal causation could be established, the definition requires that persecution be based on a person’s ‘race, religion, nationality, membership of a particular social group or political opinion’.^[27] There is no manifest provision for CCDPs within this definition, resulting in an almost legal void of their recognition and protection.

IV EXPANDING THE DEFINITION

Expanding the mandate of the Convention to encompass CCDPs has been proposed by states such as Bangladesh and the Republic of the Maldives, however it has not garnered significant scholarly support.^[28] While there is a ‘temptation to start with definitions that would be derivative of existing concepts’,^[29] it does not address the many unique issues of climate related displacement including the time consideration of pre-emptive movement, the preservation of Statehood and culture or the reality of the juridical element of assistance by the home nation.^[30]

A Understanding the Phenomenon

Conflating the term ‘refugee’ to encompass both traditional refugees and CCDPs obfuscates critical differences of experience between the two, including that the nexus linking CCDPs and their home countries has not been ruptured through persecution. While Convention refugees seek refuge away from their own states (or actors that the state is unwilling or unable to protect them from), a CCDP is not fleeing from their government, but usually wishes to stay within their home country as reflected by communities in Tuvalu and Kiribati.^[31] As discussed by McAdam, this represents a ‘complete reversal of the refugee paradigm’ as the persecuting actor has been de-linked from the land on which flight occurs^[32] It is usually the actions of other (industrialised) states that compel climate-related displacement, rather than tyrannical acts by their own governments. Additionally, CCDPs are likely to still receive protection by their home governments when displaced.^[33] Many sudden and slow onset climate disasters can be predicted, allowing anticipated migration movements to be planned with leadership by the home governments.^[34] Therefore, climate-related displacement is primarily an issue of development policy, demonstrating that CCDPs should not be foisted into a pre-existing framework that was specifically created for a distinct issue and objective. Given the movement is anticipatory, the protection of CCDPs requires multifaceted and interdisciplinary responses that rely on collaborative efforts at a regional level.

B Reactive vs Proactive

The Convention is ill-suited to address climate-related displacement as it is reactive, rather than proactive.^[35] Its mechanisms are generally activated in the wake of displacement events and contribute little, if anything, to address the causes of forced migration.^[36] Addressing climate change requires a proactive approach, as has been framed in other climate instruments such as the Paris Agreement.^[37] The United Nations High Commissioner for Refugees (‘UNHCR’) itself has issued caution in amalgamating CCDPs with Convention refugees as it is likely to undermine the protection of both groups and overlooks the fundamental causes and unique dynamics of climate-related displacement.^[38] A unique opportunity exists for the international community to proactively tackle the anticipated surge in forced human migration before it becomes truly irrepressible. It is vital for any proposed ‘solution’ to focus on mitigation and disaster risk reduction as key strategies, given that simply broadening the current definition is insufficient to tackle the problem effectively. This is especially important as many climate-affected individuals do not wish to relocate.

C The ‘Refugee’ Label

The label of a ‘climate refugee’ is eschewed by many CCDPs as illustrated by McAdam’s discussions with Kiribati and Tuvaluan communities.^[39] These communities resoundingly scorned the label of a ‘refugee’ on both a personal and institutional level, asserting that it imparts a lack of dignity and sense of powerlessness which fundamentally negates their strong pride of Pacific identity.^[40] Rightfully or wrongfully, the term ‘refugee’ generally invokes emotive images of meagre camps and families walking great distances or desperately huddled into small boats. Instead of recognising refugees as resilient individuals who have escaped perilous circumstances, they are unfortunately regarded by many as passive victims languishing in camps. The drama and desperation are inescapable. Refugees worldwide also encounter discrimination and racism whereby host governments often do very little to address their treatment.^[41] This unfortunate reality helps elucidate why those affected do not wish to be identified as ‘climate refugees’. Their concerns also highlight failures of the international protection regime as the lack of political will by states to engage in global responsibility-sharing has resulted in the neglect of millions of refugees in protracted circumstances with little hope for durable solutions.^[42] Recognition as a ‘refugee' under the Convention is clearly accompanied with significant baggage, highlighting that reform to the definition is not an adequate substantive solution.

Furthermore, focusing on legal definitions necessitates adjudicating who is ‘within’ or ‘outside’ its scope, rendering it probable that other opportunities for protection may be overlooked during deliberations. This exclusionary approach will also result in the hardening of the notion of a CCDP, defining groups simultaneously as ‘in’ or ‘out’ of protection needs.

D Individualised Assessments

Refugee Status Determination procedures, while varying between states, are at their essence an atomised decision-making process and are not suitable for evaluating the collective claims of CCDPs. In the New Zealand case Refugee Appeal No 72189/2000, the judge held ‘all ... citizens [of the threatened states] face the same environmental and economic difficulties’ as the applicants, thereby precluding them from protection.^[43] This individualistic approach exemplifies that the very nature of the Convention is ill-suited to best protect those affected, even if the definition in article 1A(2) were to be broadened. The Convention itself refers to a refugee as ‘any person’ rather than a specific group,^[44] which overlooks the unique challenges of mass-scale mobility flows prompted by environmental catastrophes. Guidance should instead be sought from schemes such as group determination processes in the Netherlands, temporary protection measures in the European Union and Australia ad hoc visa policies that were engaged in certain crises, such as Kosovo and East Timor.^[45] It may be more productive for states to classify specific regions as exhibiting objective conditions that ‘justify’ migration, therefore eliminating the requirement for CCDPs to demonstrate reasons for why they are personally affected. It is important to note that assessing claims on a case-by-case basis also has its benefits as it allows for more balanced and thorough examinations of the applicant’s credibility. Nevertheless, eschewing individual assessments of claims will provide more resource and time efficient processes whilst allowing for a holistic examination of the numerous drivers of movement which render a state unacceptable for inhabitation.

E Political Considerations

It is clear from the current refugee regime that the main impediment to an adequate solution is not the absence of law, but a lack of political will.^[46] While there are 149 state parties to the Convention and/or its Protocol, accompanied by a strong international agency, the displacement of millions of people remains unsolved with no systemic resolution in sight.^[47] Considering that signatory states already bear legal obligations towards Convention refugees, yet the crisis worsens every year with 108 million people displaced today with limited international accountability measures, why would states willingly expand the existing mandate or commit to another protection treaty?^[48] Attempts to expand article 1(A)(2) will likely be met with severe resistance and concerns that it will unleash the ‘refugee floodgates’ due to the enormity of climate change and its expected implications.^[49]

Exposing the Convention to re-negotiation may also weaken the protection regime for refugees completely by reducing current standards and focusing excessively on ‘flaws’, which are inherently subjective, political judgements.^[50] There is strong consensus among legal practitioners and scholars that if the Convention were negotiated in the contemporary political climate, states would aim to weaken existing legal norms, leaving even more people vulnerable beyond its mandate.^[51] This concern is supported by the fact that many signatory states already deem the Convention’s provisions too generous.^[52] This also illuminates why calls to expand the Convention definition have largely been stagnated on a theoretical level and why legal scholars have not advocated meaningful reform in this domain.^[53] As Fitzpatrick explains, ‘[t]he reluctance of the international community to abandon the 1951 foundation reflects not only a sense that the Convention embodies indispensable and enduring end values, but also a pragmatic awareness that hoped-for advances might instead dilute standards of protection’.^[54] Seeking to expand the definition in article 1A(2) is therefore infeasible at best and perilous at worst.

V NEW TREATY

A proposed solution to the shortfall of legal responses is the creation of a new treaty that recognises the plight of CCDPs and provides a framework for their protection. For instance, Docherty and Gianna have proposed an ‘independent’ convention that contains ‘guarantees of assistance, shared responsibility, and administration’.^[55] The benefits of a treaty include that it can bridge the legal gap and provide a clear framework to specifically address the issue, while ensuring the rights of CCDPs are well-defined and protected.^[56] The formal recognition of climate-related displacement as a grave issue would stimulate international awareness, possibly resulting in increased advocacy by civil society sectors and concerted efforts by states. Additionally, a treaty with binding provisions can enable accountability; allegations of treaty violations can be brought by individuals, organisations or states to bodies such as the United Nations High Commissioner for Refugees or the Australian Human Rights Commission. However, the powers of these bodies are severely limited as they can only issue non-binding recommendations or opinions.

A Feasibility

While development of legal jurisprudence is required in this area, a treaty cannot be the sole response to climate-forced displacement. Firstly, a treaty would inevitably be a document of compromise, and even once drafted, individual states must possess the political will to ratify and enforce it. Attributing responsibilities and burden-sharing cuts to the very core of state sovereignty and would be incredibly difficult to achieve universal agreement upon. The history of negotiating the Paris Agreement illustrates that climate change remains a controversial subject;^[57] a treaty aimed at protection goes beyond the Paris Agreement as rather than simply imposing reforms, the treaty will require states to open their borders and accommodate influxes of migrants. Given the aversion of powerful states, such as the United States, to assent to the most rudimentary of commitments in the Paris Agreement, achieving satisfactory consensus on the terms of a new treaty appears highly improbable.

B Universal vs Local

At the very core of international law is its tendency to universalise: to produce norms that stagnate the ‘particular’ to a level of broad applicability and to consign individual rights as ‘human rights’ as one and the same.^[58] There lies an inherent danger in this as the treaty provisions may be so general and vague that they cannot be translated into rational, practical policies and prescriptive frameworks.^[59] Hence, while a possible benefit of a treaty is its ability to offer guidance to governments in developing uniform strategies and policies to manage climate displacement, this consistency comes at a cost. The particular and local do not always respond well to an international governance or law regime, whereby its general applicability requires broad, universalising statements. Furthermore, international treaties tend to create rights-based frameworks whereas climate-related displacement must fundamentally be addressed through a needs-based approach, such as ensuring housing and employment.^[60] An international treaty is not the most appropriate pathway to ensure real and effective change for populations devasted by the effects of climate change.

C Misplaced Focus

1 Addressing Needs and Responsibility

Solutions cannot simply be pinned on a treaty, especially when considering the nature of climate-related movement, the wishes of affected communities and the fact that a multilateral instrument will not resolve humanitarian concerns. If a treaty becomes the focal point of global policy development, focus will be shifted away from more immediate and alternative responses that may allow people to travel safely in their own countries or to migrate in a strategic manner.^[61] For instance, slow on-set disasters such as changing rainfall, desertification and droughts generate distinct patterns of movement. Movements are frequently internal and from regional areas to cities.^[62] When individuals do cross a border, it is generally to find work. Hence, while climate change is a dominant cause of their movement, the main driver is employment. For example, a Colombian farmer affected by changing patterns of rainfall describes:

Rains recently have been very intense – very intense ... [w]e don’t want to leave our land: here are our past, our memories, our ancestors. We don’t want to move to other parts, we don’t know what to do there. We would turn into delinquents. We’d enter into a cycle of poverty which happens in the cities.^[63]

This concern underscores the necessity for a needs-oriented approach to the protection of CCDPs, focusing on essentials such as securing lawful employment. These central requirements involve questions about urban development and employment that cannot be solved by simply modifying the Convention definition or creating a new treaty.

Focusing extensively on a treaty can also paradoxically foster inaction on climate change as conversations tend to become entangled in linguistic intricacies rather than substance.^[64] The negotiation process itself can serve as a justification for inaction until an agreement is reached; an instrument that will be the result of significant compromises as consensus necessitates concessions, which may be forced to come from less powerful states, with those states being the most affected by climate change. Similarly, one is forced to question the appropriateness of isolating a group of ‘climate-displaced persons’ in an international treaty, given that the drivers of movement are primarily attributable to international political and economic structures that continue to perpetuate an ever-widening chasm between poor and rich nations.^[65] The ‘blame’ for climate change is not necessarily imputable to the omissions or acts by the home state, as seen in Bangladesh, but to industrialised nations.^[66] A new treaty may perpetuate unjust hierarchies of power given that by calling for multilateral action, states in the Global North can assume the moral high-ground while simultaneously shifting the ‘burden’ from themselves onto the global community as a whole. This is especially pertinent as there are growing calls for industrialised nations to accept CCPDs proportional to their contributions to greenhouse gas emissions. A multilateral treaty may enable powerful states to evade this responsibility.^[67]

2 Drivers of Displacement

Focusing exclusively on climate change as the driver of migration is misplaced and inaccurate. The deeply political, economic and social nature of climate change within which existing issues of marginalisation and discrimination are exacerbated and shape people’s vulnerability is unlikely to be satisfactorily addressed by a rights-based framework.^[68] Climate change must be understood within a social and political context as its consequences are often exacerbated by external factors such as socio-economic inequality, neoliberal policies, poor governance and racism.^[69] Even the term ‘CCDP’ is predicated on a contrived mono-causality: it insinuates a direct causal connection between climate change and displacement, whereas experts maintain ‘that the assumption that climate variability leads to migration in a linear way is not supported by empirical investigation’.^[70] Therefore, any ‘solution’ should not focus on climate change as the single driver of displacement but must meaningfully seek to tackle issues such as conflict and poverty, which can most effectively be achieved through soft law and regional initiatives.

This raises the question, so what is the solution? One response, as advocated by many civil society organisations, is the concept of ‘migration with dignity’.^[71] This encompasses various elements, such as planned relocation where whole communities relocate together, allowing for the maintenance of family connections and cultural values.^[72] It can alternatively entail migration ‘bit by bit’ and integration into new societies, such as by working abroad.^[73] This would best be achieved through bilateral agreements and regional initiatives.

This Part has not argued against the advancement of law but seeks to highlight the significant obstacles in implementing treaty-based solutions, as well as the constraints of a treaty if drafted. While there is a clear legal gap in the protection of CCDPs, it should be addressed by a rigorous evaluation of the empirical evidence, rather than an assumption that existing structures ought to be expanded. Focus must be placed on ensuring culturally-sensitive results for persons in specific contexts, with consideration of how they wish to be perceived. This will facilitate a more dignified and productive approach.

VI SOFT LAW

The aim of international instruments is to promote responsibility-sharing and provide a framework for collaborative efforts in the creation of national legislation and policies.^[74] As an alternative to expanding or creating a multilateral treaty, regional agreements and other soft law initiatives can achieve the ultimate aims of an international instrument while extenuating or eliminating the shortcomings discussed above.

A Regional Initiatives in South Asia

Regional initiatives can allow for multiple levels of engagement and be grounded on the individual capability of each nation as well as the severity of the issue in that region.^[75] Bilateral or regional agreements that build on existing economic and geopolitical relationships, while enabling states to formulate receptive policies within a timespan appropriate to the capacity of the states involved, would be an effective model. To illustrate, it is cited that 60% of labour migration from Bangladesh to Southeast Asia has been due to social networks and kinship relations.^[76] Such measures minimise disruption in the communities being uprooted, the receiving communities and the legal system itself.^[77]

Regional initiatives are likely to achieve greater levels of commitment than attempts at the international level. While a disadvantage of soft law instruments is that they are non-binding and do not provide legal grounds for redress or accountability, their principles tend to legally ‘harden’ overtime as exemplified by the 2009 African Union Convention for the Protection and Assistance of Internally Displaced Persons in Africa.^[78] This evolution highlights how the norm-creating function of regional agreements can gradually solidify into binding commitments, contributing to a more cohesive global strategy.^[79] Compliance and the success of regional initiatives is also evidenced by the Inter-American Court of Human Rights and the 1969 Organisation of African Unity Refugee Convention, both of which apply more expansive interpretations than the Convention in the protection of refugees.^[80] Furthermore, soft law initiatives are incredibly valuable when considering the concerns of South Asian states that international law unjustly reflects and upholds the interests of Western states.^[81] Modes of governance that account for a region’s particularities would foster South Asian empowerment.^[82] In the twentieth century, initiatives such as the Bandung Conference and the Non-Aligned Movement birthed by India’s Jawaharlal Nehru sought to question the ‘universal standards’ of the West.^[83] Portrayals of Asian values have continuously sought to emphasise the retention of national identities over international human rights norms, as reflected by non-accession to the Convention.^[84] Chimni similarly argues that Western ideals of international law comprising of precision, obligations and delegation are not the only way to conceive of international relations or responsibility-sharing.^[85]

B Migration as Adaptation

Migration is often depicted as an option of last resort, and as a consequence ‘migrants have often been portrayed as lacking resources, as helpless victims of environmental forces beyond their control’.^[86] To challenge this unfavourable and unproductive representation, the Asian Development Bank recommended that any ‘solution’ should reconceptualise migration as a form of adaptation.^[87] Such initiatives will ensure individuals are not driven out of their countries without support mechanisms.^[88] One example is the proactive approaches to migration between the Philippines and Sri Lanka. The Philippines issues licences to recruitment agencies, promotes its workers globally, has entered into 56 bilateral agreements with receiving states and has communication channels for its migrants in the embassies of destination states.^[89] Guidance can also be taken from New Zealand’s Recognised Seasonal Employer program, in which labour deficiencies in New Zealand’s agricultural sector are filled with workers from Pacific Island states.^[90] Other stated objectives of the initiatives are to foster economic development and regional integration.^[91] Ultimately, a pluralistic approach is required that encompasses different institutions and stakeholders to address climate displacement.^[92] To illustrate, a farming community compelled to leave their homes due to droughts and erratic rainfall may benefit from seasonal labour migrations and policies of income diversification. Communities in a deltaic area periled by rising sea levels may conversely benefit from resettlement and immigration regimes.^[93] Notably, cross-border transhumance agreements are prevalent in West Africa, including regional arrangements that govern the movement of livestock and herders.^[94] By implementing a multidisciplinary, pluralist approach and mobilising migration as adaptation, South Asia can establish effective institutional practices to manage climate-related displacement.

As an influential regional actor and a key destination for CCDPs, India can push for a robust displacement framework in South Asia. A state-led consultative forum with active engagement of other stakeholders, as seen in the 2012 Nansen Initiative by the governments of Norway and Sweden, would be effective in creating and harmonising standards.^[95] Mitigation and adaptation policies will be most effective if they are copiously integrated within a sustainable development plan.^[96] Due to the transboundary nature of climate change in South Asia, collaboration and cooperation is even more critical as are joint efforts in building institutional capacity, knowledge sharing and fostering structured dialogue at all levels.^[97] Such a framework would not only mitigate regional apprehensions about the threat but also improve the effectivity of domestic entities managing transboundary issues associated with migration and climate change.

A primary impediment is that South Asia is beset with diplomatic strains and relationships among governments have not yet reached a level of strong mutual interest and trust.^[98] Discussions within the South Asian Association for Regional Cooperation (‘SAARC’), the region’s principal organisation, have been largely paralysed due to hostilities between India and Pakistan.^[99] Additionally, South Asian states differ in size and extent of influence, such as India vis-à-vis Nepal, hence bilateral agreements may not allow for the involvement of all stakeholders in crucial decision-making. However, transnational civil society groups are assuming more influential roles in fostering regional dialogue and action. For instance, the Asian Disaster Preparedness Centre has been actively involved in capacity building and knowledge sharing among Asian states in responses to emergency disasters, facilitating a more effective and unified regional response.^[100] As highlighted by Elliot and Fagan, ‘the impetus for governments to respond regionally to environmental challenges has ... been generated by a growing regional activism and agency on the part of domestic nongovernmental [organisations].’^[101] Hopes and aspirations for regional cooperation should therefore not be lost. It is also misleading to claim that South Asian states do not make adequate provision for refugee protection due to geopolitical tensions or the fact they are not parties to the Convention. Such a claim is often rooted in bias as Western scholars tend to focus primarily on accession to the Convention while neglecting the reality of the region’s history, which ‘is (in relative terms) no poorer than the current record of the rich North with its formal commitment to the Convention’.^[102] It is also important to acknowledge that while political will may currently appear to be lacking, the leadership in states such as India are arguably drawn to an absence of binding commitments.^[103] It is thus clear that regional initiatives can allow for more productive engagements in addressing climate-related displacement than at the international level.

VII CONCLUSION

Climate-forced displacement is a crisis of unimaginable scale that demands the involvement of multiple stakeholders in any solution. While binding instruments would be ideal, they are unattainable and cannot adequately address the needs and particularities of regional concerns. Rather than a top-down method of obedience to universal treaties that are themselves the result of significant compromise, endeavours to truly manage climate-related displacement should ‘draw ... on the best practices of all [civilisations].’^[104] In doing so, stakeholders can develop adaptable strategies that not only mitigate the effects of climate displacement but also uphold the dignity and rights of those affected.

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^[1] Convention Relating to the Status of Refugees, opened for signature 28 July 1951, 189 UNTS 137 (entered into force 22 April 1954) art 1A(2) (‘Convention’), read in conjunction with the Protocol Relating to the Status of Refugees, opened for signature 31 January 1967, 606 UNTS 267 (entered into force 4 October 1967) (‘Convention’).

^[2] Jane McAdam, ‘Current Developments: Protecting People Displaced by the Impacts of Climate Change’ (2020) 114(4) American Journal of International Law 708, 709 (‘Current Developments’).

^[3] Sireesha V Chirala, ‘Acclimating to Climate Change: Filling the International Policy Void for Environmentally Displaced People’ (2013) 35(2) Houston Journal of International Law 359, 364.

^[4] Ibid 365.

^[5] Elizabeth Ferris, ‘Research on Climate Change and Migration Where Are We and Where Are We Going?’ (2020) 8(4) Migration Studies 612, 612.

^[6] McAdam, ‘Current Developments’ (n 3) 708.

^[7] Angela Williams, ‘Turning the Tide: Recognizing Climate Change Refugees in International Law’ (2008) 30(4) Law & Policy 502, 505.

^[8] Ibid; Sanjay Chaturvedi and Timothy Doyle, ‘Geopolitics of Fear and the Emergence of “Climate Refugees”: Imaginative Geographies of Climate Change and Displacements in Bangladesh’ (2010) 6(2) Journal of Indian Ocean Region 206, 211.

^[9] Williams (n 7) 505.

^[10] McAdam, ‘Moving with Dignity: Responding to Climate Change-Related Mobility in Bangladesh’ in Jane McAdam (ed), Climate Change, Forced Migration, and International Law (Oxford Academic, 2012) 161, 163 (‘Moving with Dignity’).

^[11] For an overview on historical tensions in South Asia, see Stanley J Tambiah, Leveling Crowds: Ethnonationalist Conflicts and Collective Violence in South Asia (University of California Press, 1996).

^[12] David Hodgkinson et al, ‘“The Hour When the Ship Comes in”: A Convention for Persons Displaced by Climate Change’ [2010] MonashULawRw 4; (2010) 36(1) Monash University Law Review 69, 69.

^[13] Ibid.

^[14] Elisabeth Rosenthal, ‘In Bolivia, Water and Ice Tell of Climate Change’, New York Times (New York, 14 December 2009).

^[15] McAdam (n 11) ‘Moving with Dignity’ 16.

^[16] Thea Philip, ‘Climate Change Displacement and Migration: An Analysis of the Current International Legal Regime’s Deficiency, Proposed Solutions and a Way Forward for Australia’ (2018) 19 Climate Change, Displacement and Migration 639, 639.

^[17] Ibid.

^[18] United Nations High Commissioner for Refugees , Guiding Principles on Internal Displacement, 54^th sess, Agenda Item 9(d), UN Doc E/CN.4/1998/53/Add.2 (11 February 1998).

^[19] Jane McAdam, ‘Moving Beyond Refugee Law: Putting Principles on Climate Mobility into Practice’ (2022) 34(3-4) International Journal of Refugee Law 440, 441.

^[20] Ibid.

^[21] Hodgkinson et al (n 12) 70.

^[22] Convention (n 1) art 1A(2).

^[23] Williams (n 7) 505.

^[24] Jane McAdam, ‘Current Developments: Protecting People Displaced by the Impacts of Climate Change’ (2020) 114(4) American Journal of International Law 708, 708.

^[25] 0907346 [2009] RRTA 1168.

^[26] (1997) 190 CLR 225.

^[27] Convention (n 1) art 1A(2).

^[28] Frank Biermann and Ingrid Boas, ‘Climate Change and Human Migrations: Towards A Global Governance System To Protect Climate Refugees’ in Jurgen Scheffren et al (eds) Climate Change, Human Security and Violent Conflict (Springer 2012) 291, 294.

^[29] Jane McAdam, ‘The Relevance of International Refugee Law’ in Climate Change, Forced Migration, and International Law (Oxford Academic, 2012) 39, 42.

^[30] Jane McAdam, ‘“Refusing Refuge” in the Pacific: (De)constructing Climate-Induced Displacement in International Law’ in Etienne Piguet, Antoine Pécoud and Paul de Guchteneire (eds) Migration and Climate Change (Cambridge University Press, 2011) 102, 115 (‘Refusing Refuge in the Pacific’).

^[31] McAdam, ‘Refusing Refuge in the Pacific’ (n 30).

^[32] Ibid 117.

^[33] Ibid; Biermann and Boas (n 28) 295.

^[34] Biermann and Boas (n 28) 295.

^[35] Philip (n 16) 646.

^[36] Ibid.

^[37] United Nations Framework Convention on Climate Change, Report of the Conference of the Parties on Its Twenty-First Session, Held in Paris from 30 November to 13 December 2015, UNFCC Dec 1/CP.21, UN Doc FCCC/CP/2015/10/Add.1 (29 January 2015) (‘Paris Agreement’).

^[38] United Nations Refugee Agency, ‘The Environment: A Critical Time’ (2002) 127 Refugees 5, 8.

^[39] McAdam, ‘Refusing Refuge in the Pacific’ (n 30) 114.

^[40] Ibid; Jane McAdam, “Protection” or “Migration”?: The Climate Refugee Treaty Debate’ in Climate Change, Forced Migration, and International Law (Oxford Academic, 2012) 186, 195 (‘Climate Refugee Treaty Debate’).

^[41] Alex Randall, ‘Don’t Call Them “Refugees”: Why Climate-Change Victims Need a Different Label’, The Guardian (online, 18 September 2014) <https://www.theguardian.com/vital-signs/2014/sep/18/refugee-campsclimate-change-victims-migration-pacific-islands>.

^[42] McAdam, ‘Refusing Refuge in the Pacific’ (n 30) 114.

^[43] Refugee Appeal No 72189/2000 [2000] RSAA (17 August 2000) 2−3 [4].

^[44] Convention (n 1) art 1A(2).

^[45] See eg Migration Regulations 1994 (Cth) sch 2: subclass 448 Kosovar Safe Haven (Temporary); McAdam, ‘Refusing Refuge in the Pacific’ (n 30) 115.

^[46] McAdam, ‘Climate Refugee Treaty Debate’ (n 40) 190.

^[47] Ibid.

^[48] United Nations High Commissioner for Refugees, ‘Figures at a Glance: 108.4 Million People Worldwide Were Forcibly Displaced’, UNHCR (Web Page, 14 June 2023) <https://www.unhcr.org/about-unhcr/who-weare/figures-glance>.

^[49] Williams (n 7) 511.

^[50] Philip (n 16) 645.

^[51] Ibid.

^[52] Luara Ferracioli, ‘The Appeal and Danger of a New Refugee Convention’ (2014) 40(1) Social Theory And Practice 123, 128.

^[53] Ibid.

^[54] Joan Fitzpatrick, ‘Revitalizing the 1951 Refugee Convention’ (1996) 9(5) Harvard Human Rights Journal 229, 234.

^[55] Bonnie Docherty and Tyler Giannini, ‘Confronting a Rising Tide: A Proposal for a Convention on Climate Change Refugees’ (2009) 33 Harvard Environmental Law Review 349, 352.

^[56] Ibid.

^[57] Williams (n 7) 517.

^[58] Jane McAdam, ‘Swimming against the Tide: Why a Climate Change Displacement Treaty is not the Answer’ (2011) 23 International Journal of Refugee Law 2, 6 (‘Swimming Against the Tide’).

^[59] Ibid.

^[60] Ibid 8.

^[61] McAdam, ‘Climate Refugee Treaty Debate’ (n 41) 190.

^[62] Randall (n 41).

^[63] Ibid.

^[64] McAdam, ‘Swimming against the Tide’ (n 58) 12.

^[65] Ibid.

^[66] Williams (n 7) 505.

^[67] See eg, Michael B Gerrard, ‘America Is the Worst Polluter in the History of the World. We Should Let Climate Change Refugees Resettle here’, The Washington Post (online, 25 June 2015) <https://www.washingtonpost.com/opinions/america-is-the-worst-polluter-in-the-history-of-the-world-weshould-let-climate-change-refugees-resettle-here/2015/06/25/28a55238-1a9c-11e5-ab92c75ae6ab94b5_story.html>.

^[68] Matthew Scott. ‘Finding Agency in Adversity: Applying the Refugee Convention in the Context of Disasters and Climate Change’ (2016) 35(4) Refugee Survey Quarterly 26.

^[69] Ibid.

^[70] Hodgkinson et al (n 12) 73.

^[71] Randall (n 41).

^[72] Ibid.

^[73] Ibid.

^[74] Ferracioli (n 52) 124.

^[75] Williams (n 7).

^[76] Tasneem Siddiqui and Mohammad Sikder, ‘Rural to Urban Migration for Domestic Work in Bangladesh’ in CR Abrar and Janet Seeley (eds), Social Protection and Livelihoods: Marginalised Migrant Workers of India and Bangladesh (University Press, 2009) 57, 58.

^[77] Jane Steffens, ‘Climate Change Refugees in the Time of Sinking Islands’ (2021) 52(2) Vanderbilt Law Review 727, 735.

^[78] Walter Kälin, ‘Internal Displacement’ in Cathryn Costello, Michelle Foster and Jane McAdam (eds) The Oxford Handbook of International Refugee Law (Oxford University Press, 2021) 848, 852.

^[79] Ibid.

^[80] Ibid.

^[81] Benoit Mayer, ‘Environmental Migration: Prospects for a Regional Governance in the Asia-Pacific Region’ (2013) 16(2) Asia Pacific Journal of Environmental Law 77, 79 (‘Environmental Migration’).

^[82] Ibid 84.

^[83] Andrea Benvenuti, ‘Nehru’s Bandung Moment: India and the Convening of the 1955 Asian-African Conference’ (2022) 21(2) India Review 153, 155

^[84] Mayer ‘Environmental Migration’ (n 81).

^[85] BS Chimni, ‘Asian Civilizations and International Law: Some Reflections’ (2011) 1(1) Asian Journal of International Law 39.

^[86] Asian Development Bank, Addressing Climate Change and Migration in Asia and the Pacific (Report, 2012) 46.

^[87] Ibid.

^[88] Complementary protection may similarly be engaged.

^[89] Asian Development Bank (n 86) 57.

^[90] Ibid.

^[91] Ibid.

^[92] Jamie Draper, ‘Climate Change and Displacement: Towards a Pluralist Approach’ (2022) European Journal of Political Theory 1.

^[93] Bhumika Sharma, ‘Climate Displacement in South Asia and India’s Imperative to Act’, South Asian Voices (13 June 2023).

^[94] Food and Agriculture Organization of the United Nations, Crossing Boundaries: Types of Legal Arrangements for Transboundary Pastoralism (Report, May 2019).

^[95] Sharma (n 93).

^[96] Chirala (n 3) 375.

^[97] Asian Development Bank (n 86) 55–6.

^[98] Mahika Khosla, ‘The Geopolitics of India’s Refugee Policy’ South Asian Voices (22 September 2022).

^[99] Ibid.

^[100] Benoit Mayer, ‘Environmental Migration in the Asia-Pacific Region: Could We Hang out Sometime?’ (2013) 3(1) Asian Journal of International Law 101 (‘Environmental Migration in the Asia-Pacific Region’).

^[101] Mayer, ‘Environmental Migration’ (n 81) quoting Marianne Elliott and David Fagan, ‘From Community to Copenhagen: Civil Society Action on Climate Change in the Pacific’ in Bruce Burson (ed), Climate Change and Migration: South Pacific Perspectives (Victoria University, 2010) 61.

^[102] Sébastien Moretti, ‘Southeast Asia and the 1951 Convention Relating to the Status of Refugees: Substance without Form?’ (2012) 33(2) International Journal of Refugee Law 214, 216.

^[103] Khosla (n 98).

^[104] Chimni (n 85) 46.