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A Convention for Persons Displaced by Climate Change
Climate change displacement refers to population migration caused by the effects of climate change, which include rising sea levels, heavier floods, more frequent and severe storms, drought and desertification.
The Intergovernmental Panel on Climate Change, the World Bank and many other organisations warn that the effects of climate change will cause large-scale population movements. Climate displacement presents an urgent problem for the international community.
The existence and scope of such displacement are often established by reference to the likely numbers of displaced people. The most cited estimate is 200 million climate change migrants by 2050 or one person in every forty-five.
There is a broad consensus among lawyers considering the issue of climate change migration that current protections at international law do not adequately provide for a number of the categories of persons likely to be displaced by climate change. International refugee lawyers generally agree that persons displaced by climate change would not be the subject of protection under the 1951 Convention Relating to the Status of Refugees (the ‘Refugee Convention’) and its 1967 Protocol.
Further, the United Nations Framework Convention on Climate Change (UNFCCC) does not contemplate or address the issue of displacement; the UNFCCC provides a framework for future action and cooperation by states on climate change; its Kyoto Protocol places quantifiable obligations upon states to decrease their levels of greenhouse gas emissions. Displacement is not a focus of the UNFCCC; its concerns lie elsewhere. Its structure and institutions are not designed to address displacement and the issues associated with it. Moreover, as the Copenhagen and Cancun climate change conferences reveal, the UNFCCC cannot easily be altered in order to accommodate climate change displaced persons; dealing with existing provisions is already problematic.
Finally, there has been no coordinated response by governments to address human displacement, whether domestic or international, temporary or permanent, due to climate change. Given the nature and magnitude of the problem which climate change displacement presents, ad hoc measures based on existing domestic regimes are likely to lead to inconsistency, confusion and conflict. We believe the international community has an obvious interest in resolving the problem of human displacement in an orderly and coordinated fashion before climate change displacement becomes a problem.
We propose a multilateral Convention to address climate change displacement – an issue which is global in its causes, scope and consequences. The Convention would provide a general framework for assistance to climate change displaced persons (what we call CCDPs), and would address gaps in current human rights, refugee and humanitarian law protections for CCDPs.
Our proposal is based on the following principles and deals with the following matters, all of which are more fully set out at our project website, www.ccdpconvention.com:
The Convention would largely operate prospectively; assistance to CCDPs would be based on an assessment of whether their environment was likely to become uninhabitable due to events consistent with anthropogenic climate change such that resettlement measures and assistance were necessary. In other words, we view displacement as a form of adaptation that creates particular vulnerabilities requiring protection as well as assistance through international cooperation. Our Convention contemplates the provision of pre-emptive resettlement to those most at risk in terms of the impacts of climate change.
Small island nations
Rising sea levels and the possibility of small island nations becoming uninhabitable are perhaps the most publicly recognisable consequences of climate change. As one author notes, ‘their small physical size, exposure to natural disasters and climate extremes, very open economies and low adaptive capacity make them particularly susceptible and less resilient to climate change.’ The populations of such small island nations may not only be displaced but may see the effective disappearance of their homelands. As a result, although they will amount only to a fraction of the total number of likely CCDPs, the interests and expectations of the populations of these threatened island nations have a high profile.
The possibility of effective loss of homelands differentiates the plight of small island nations from other regions in which there is likely to be large-scale displacement, and requires specific consideration. Loss of a physical territory may signal the practical end of those states’ national sovereignty and the particular protections and rights of their people. More broadly, it may signify the end of unique ways of life which are intimately connected to precarious physical landscapes. Such a scenario is unprecedented, and existing legal regimes do not adequately articulate the rights that should be accorded to CCDPs from small island nations in order to recognise this loss. We propose the principles of proximity, self-determination and the safe-guarding of intangible culture should be applicable to bilateral displacement agreements between such island nations and host states, such agreements to be negotiated under the aegis of the CCDO.
Conclusion: ‘Will the tiger get me?’
It has been suggested that Australia should take the lead in international efforts to develop a framework for responding to climate change displacement. The broader region in which Australia is situated accounts for 60% of the world’s population; it is also a region that will be significantly affected by the effects of climate change. And, as has been noted, planning for a future of mass displacement due to climate change gives us the opportunity – before millions of people are on the move throughout the world because of climate change – … to develop frameworks and institutions that might not only be politically realistic, but also based on principles that promote human rights and dignity.
Our Convention is, again, in many ways prospective. It would establish a framework within which adaptive assistance to those vulnerable to climate change impacts could be provided. The protection of CCDPs requires large-scale, long-term planning. This in itself presents challenges because, as has been noted with reference to one particular country perhaps most at risk from the effects of climate change, Bangladeshis think mainly of tomorrow. Will there be enough rice? Enough clean drinking water? Will the tiger get me? All of us have the same human tendency to plan for the next day, next week, next year. Projecting … developments 10, 20, 50 years into the future is a chancy business, as imprecise a science in its way as the modelling of climate change. But those are undoubtedly the terms, and the timescales, on which we now have to think.
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