Tuesday, June 18, 2019

To Protect Millions of “Climate Change Refugees,” All We Need is One Judge to Think Outside the International Law Box

Small Island States: the Maldives
If drastic action is not taken soon, many small island states may not be around in the next 50 years. The governments of Small Island States have been sounding the alarm for decades, but no progress has been made on cutting global emissions. The government of the Maldives even held a cabinet meeting underwater to galvanize international attention, but to no avail. The truth is, small island states are, well, small and have little clout in the international arena.
Maldives cabinet meeting
What can be done to put pressure on rich countries? One thing you will frequently read in magazines and newspaper articles is that those displaced by climate change are not “refugees” because they haven’t been persecuted. Because the victims of climate change are not refugees, they have no right to seek protection abroad, but must remain inside their own countries and make do as best they can.
This approach is pushed ad nauseam by UNHCR and many international organizations. Because of the relentless dogma on the topic of climate change refugees, to date, no judge has ruled that those displaced only by climate change, and not as a result of war or some compounding factor, are eligible for asylum. Some countries have created ad hoc approaches,granting limited visas or asylum under narrow humanitarian circumstances,but a blanket approach that would cover everyone who needs help?…not so much. As a result, the victims of climate change have no legal recourse. If they receive help, it is as charity, not by right.

Granting Refugee Status to the Victims of Climate Change Would Put a Lot of Pressure on Rich Countries

What we need is for a court following the common law system in a big, wealthy country to find in favor of a blanket application of the 1951 Refugee Convention to persons fleeing climate change. This would set a precedent, allowing other courts to do the same. Currently, there is no incentive for rich countries to do anything about climate change because most rich countries assume they can weather the coming storm, if you’ll pardon the pun.
If you’re hearing more about climate change these days, it’s because people in rich countries are finally getting the message that they may not be able to buy their way out of this one. Granting the automatic right to apply for asylum to the worst-hit victims of climate change in poor countries might also help to drive home the message that rich countries can’t insulate themselves from the effects of climate change. Or it might bring the whole asylum system crashing down. We won’t know unless we try.
But I Thought Climate Change Wasn’t Persecution?
But as a practical matter, there appears to be an enormous legal barrier to “climate change refugees”: the requirement that refugees provepersecution. The refugee regime was created in the wake of World War II and the beginning of the Cold War. It was very much focused on political, racial and religious persecution, the idea that your government had ceased to protect you, but was, instead, out to get you. Climate change, like poverty, is caused by humans, but not, in most cases, with the express purpose of getting you, personally. It’s more of an accidental byproduct of greed, stupidity and ignorance. But this lack of intent on the part of governments doesn’t make climate change any less deadly — far from it.
But as I explain in an academic paper, the requirement of persecution was only included in the 1951 Refugee Convention, the central legal document defining refugee status, for people with a nationality. For those left stateless by World War II or the Cold War, without any country of their own, perhaps because their country had ceased to exist as a political entity, persecution is not necessary. All that is necessary for stateless people to qualify as refugees is to show that you are unable to return to your country.
Take the example of Mr. A, who used to live in Country X. While living abroad for his job in Country Y, Country X goes through a civil war and divides into two new countries, Country L and Country M. But there is no embassy for Country X where Mr. A is working. He is unable to convert his Country X passport into a Country L or Country M passport. Instead, he is stuck with his now useless Country X passport. When Mr. A’s job comes to an end, he looses his visa and is required to return home. But he cannot, because he doesn’t have a valid passport. He goes to the newly opened consulates of Country L and Country M, but neither will issue him with a passport. The police of Country Y arrest Mr. A for overstaying his visa and try to deport him, but to where? No country will accept Mr. A.
Most refugee lawyers would read the above story and tell you that, sadly, there is no hope for Mr. A. He does not qualify for refugee status and, unless he can somehow apply for a special exception for his case in Country Y or figure out a way to be deported, he is stuck in stateless limbo, possibly for the rest of his life. What I am saying in my paper is that this interpretation of refugee law is wrong and that Mr. A is a refugee. And one of the nice things about refugee law is that reasonable fear of future bad events can also be grounds for asylum, even if those bad events have not yet come to pass.
But Most Climate Change Refugees Aren’t Stateless, Are They?
True! Today, most of the people fleeing climate change to another country will not be stateless. Their country will continue to exist and in most cases, the best solution for them will likely be assistance inside their own country. But this will certainly not be true in the case of Small Island States. If a country entirely disappears, its former citizens will be stateless. While not all experts agree on this conclusion, and many governments of small island states resist it, I think most ordinary people would agree that it’s pretty logical. And if the former citizens of small island states are stateless, they don’t have to show persecution to automatically qualify as refugees in, say, Australia, all they have to do is show that they can’t return to their homes, because the land mass on which they used to live is either underwater, or uninhabitable due to a lack of fresh water, or subject to frequent, debilitating storms. Or these threats could be in the future — as asylum law has always been based on reasonable forward-looking fears, the fear that one’s state is likely to be uninhabitable in 10–30 years would be perfectly consistent with the law.
I leave it to the judges to work out the nuances — that’s their job under the common law system. Right now, all we need is one judge to lead the charge and say that a citizen of a small island state that may not exist in 10–20 years is at high risk of being stateless and unable to return to their country. Perhaps in the future, the precedent could be extended to the inhabitants of states threatened by desertification or deforestation? One court case would set a precedent that other judges in other countries could follow, potentially bringing a cascade of cases, and some real changes to the way we all think about risk and responsibility during a global catastrophe.

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