Climate refugees: realizing justice through existing institutions

1 Climate refugees: realizing justice through existing institutions Justin Donhauser Abstract This chapter examines avenues for realizing effective responses to mounting ‘climate refugee’ justice issues through UN refugee and climate policy mechanisms and institutions. It begins with a discussion of key normative justice issues that are unique to climate refugee cases, and explanation of the legal reasons climate refugees are not currently extended rights to nonrefoulement, asylum, and relief, available to other sorts of refugees under the UN Refugee Convention. Subsequently, I assess five complementary proposals for addressing climate refugee issues and consider how the five proposals could be co-implemented to realize effective international responses to emerging climate refugee issues. Keywords Climate Refugees; Climate Adaptation; Refugee Justice; United Nations Refugee Convention; United Nations Framework Convention on Climate Change Introduction Numerous chapters in this collection attend to the ethical and more theoretical considerations of addressing climate justice concerns. This chapter complements those works by critically examining concrete proposals for addressing climate refugee issues in particular. ‘Climate refugee’ describes migrants forced to flee their homelands and seek asylum due to experiencing losses and damages cause by events linked to global climate change. Such losses include, for example, damages from extreme storms, severe droughts and floods, sea-level rise, and numerous pollutant contamination issues. One paradigm case of climate refugeedom is Peruvian immigrants seeking asylum in the United Sates after their potable water and agricultural resources became poisonous due to heavy metals being released through rapid glacial melting and contaminating these necessities (cf. Gosling et al, 2011; Donhauser, 2018). Many sources document peoples who’ve been forced to migrate and not return to their homelands due to events linked to climate change, and leading advisory organizations point out that data suggests that the number of climate refugee cases will inevitably grow in coming years 2 (see, e.g., Climate Refugee and Climate Change and Disasters). Among other things, now unavoidable global temperature increases will continue to cause more food crop shortages, more severe and erratic weather and weather patterns, and sea level rise. These things alone will continue to cause losses and damages that will make some world regions uninhabitable, and will in some cases make peoples’ homelands disappear altogether (e.g. small island nations) (see Christensen, 2017; Risse, 2009; USGCRP, 2017). There is no question that there is a worsening climate refugee problem. The urgent practical and normatively significant questions to answer are how to determine who should be legally responsible for climate refugees and what are effective and ethical ways of helping such refugees. This chapter critically examines avenues for realizing effective responses to mounting ‘climate refugee’ justice issues through UN refugee and climate policy mechanisms and institutions. I begin by discussing key normative justice issues that are unique to climate refugee cases, and explaining the legal reasons climate refugees are not currently counted as refugees, and thus not extended rights to non-refoulement, asylum, and relief available to other sorts of refugees, under the UN Refugee Convention (§1). Subsequently, I assess three proposals for addressing climate refugee issues in the literature on climate justice, and propose two other approaches that can complement those existing proposals (§2). The examined proposals include: (i) revising the criterion for refugeedom, and associated provisions of the UN Refugee Convention, so that climate refugees are extended the rights and protections of the Convention; (ii) devising a system to issue a new kind of emergency passports to climate refugees; (iii) preemptively relocating people in places that will soon experience losses and damages due to climate change (e.g. those on small island nations); (iv) pursuing 3 responses through the “risk sharing” and ‘losses and damages” provisions of the UN Framework Convention on Climate Change; and (v) using new climate science modelling techniques to assist in devising and prioritizing response strategies. I critically evaluate each proposal, and conclude by reflecting on ways these five proposals could be incentivized and co-implemented to realize effective and ethical international responses to emerging climate refugee issues (§3). 1. The Special Challenges of Climate Refugees Cases of climate refugeedom require innovative new forms of response because they differ in substantive ways from other sorts of refugeedom. Accordingly, observing some coarse distinctions between ‘sociopolitical,’ ‘environmental,’ and ‘climate’ refugeedom helps in evaluating ethical, legal, and practical obstacles those differences make. ‘Sociopolitical refugees’ are those who have been forced to flee their homeland and are unable to return because of sociopolitical factors like war or genocide. ‘Environmental refugees’ are those who’ve been forced to flee their homeland and are unable to return due to environmental factors (Lister, 2014). ‘Climate refugees’ are those who are forced to flee their homeland and are unable to return because of events, environmental or non-environmental, due to climate change (Donhauser, 2018). The abovementioned case of Peruvian refugees are an example of environmental refugees, since floods and crop and water contamination forced them to flee Peru without being able to return and live in humane conditions. Such refugees are also ‘climate refugees,’ as the relevant flooding and contamination issues were caused by rapid glacial melt due to historically anomalous global warming spikes. ‘Climate refugee’ and ‘environmental refugee’ class designations overlap. Notably, however, they do not overlap completely. 4 This is because people can become environmental refugees due to events that were not caused by climate change (e.g. industrial or nuclear contamination) and can become climate refugees for non-environmental reasons. As an example of the latter, peoples forced to migrate because of severe drought due to climate change may inhabit a nearby region and thus displace the original inhabitants of that place. This has occurred in numerous instances in East Africa (see, e.g., van Baalen & Mobjörk, 2017). In such cases, refugeedom is caused by political instability and security issues due to events linked to climate change, and would thus be at once cases of climate refugeedom and sociopolitical refugeedom. In other cases, sociopolitical, environmental, and climate, factors are mutually reinforcing. For instance, we have seen Syrian refugees fleeing because of losses from historically unprecedented long-term droughts due to climate change, but also because of safety issues due to political instability and war arguably enabled by those poor environmental conditions (see Culbertson, 2016; Wendle, 2016). Although it is difficult, and in some ways futile, to try to neatly sort cases of refugeedom into types, it is nevertheless crucially important to make distinctions between different kinds and causes of refugeedom because institutions and legal provisions designed to help refugees must have criteria for whom they are designed to help and how. This becomes clearer upon consideration of the following normative justice issues regarding climate refugees. Numerous considerations of normative justice concern establishing culpability and liability for losses and damages suffered by climate refugees. Unlike cases of sociopolitical and non-climate related environmental refugeedom, most cases of climate refugeedom are the result of the impacts of aggregated contributions to greenhouse gas emissions on global warming. And notably, the developed nations who played the most substantial causal roles in driving climate rise in recent decades (e.g. the US and China) are also those whose development has given them 5 the most resources to help climate refugees. Below I explain how new climate science methods permit researchers to assign statistical degrees of liability to the governments of countries for losses and damages due to events linked to climate change. Yet, even a cursory consideration of the situation shows that such nations are liable of knowingly putting at least some climate refugees at substantial risk. Consider, for example, losses and damages resulting from the actions of nations who took those actions when there was ample evidence that they could significantly raise the probability of exactly those kinds of losses and damages. For instance, take the case of Peruvian climate refugees again. Major emitter nations continued to fail to reduce emissions, even when scientific consensus showed that doing so would likely cause such losses and damages due to glacial melting (see Friedrich, 2017; Oreskes, 2004; Shockley & Boran, 2014). Climate refugee cases like this are clear-cut climate justice cases where degrees of culpability seem obvious—even if aggregated. Accordingly, it would seem that the major emitter nations who are members of the UN, and subject to offering asylum and protections to refugees under UN laws, surely must offer asylum and aide in at least these sorts of cases. Yet, this brings us to another set of normative issues that concern whether climate refugees should be assisted under the legal provisions developed to address refugees in general. Some legal scholars argue that fleeing from persecution is a fundamental aspect of being a refugee, which implies that climate refugees are not refugees and should not be extended the protections designed to help refugees (see Shacknove, 1985; Price, 2009; Cherem, 2016). Defenders of this position seek to uphold the current criteria for refugee status given in the UN Refugee Convention (UNRC). Those criteria are stipulated in the 1967 Protocol to the UN Convention on the Status of Refugees, which says refugees are persons who: 6 Owing to a well-founded fear of being persecuted for reasons of race, religion, nationality, membership in a particular social group, or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence, is unable or, owing to such fear, is unwilling to return to it. These criteria are maintained in the current UN policy framework (see UNHCR 2017). Hence, it is argued that climate refugees should not be helped through UN channels for assisting refugees, because the UN’s narrow legal definition of ‘refugee’ does not count them as refugees. Some contend that the UN definition should be broadened since there is no in principle reason to link persecution and refugee status. Lister (2016; 2014; 2013), for example, argues that the UN criteria should be broadened to include refugees not counted under the 1967 protocol by deemphasizing persecution and asylum within the definition. He proposes that refugee status is warranted when there is dislocation due to, ‘disruption of expected indefinite duration, where international movement is necessitated, and where the threat is not just to a favored or traditional way of life, but to the possibility of a decent life at all’ (2014; 2016). These criteria would count climate, environmental, and sociopolitical refugees as refugees, such that they would have rights to asylum and non-refoulemont granted under the UNRC. Lister has argues moreover that the need for asylum needn’t be emphasized, as there are other ways to help refugees besides providing asylum through the provisions of the UNRC like providing relief aid and military support. In response, Cherem (2016) has contended that the UN definition of ‘refugee’ should not be expanded to include climate refugees because that would be impractical. He argues that the legal provisions and unilateral protection measures that pertain to refugees under the UNRC would be less effective than alternative ways of assisting climate 7 refugees. Of course, this proposal begs the main question this chapter seeks to answer: What are the potential ways of effectively helping climate refugees? 2. Proposals for Helping Climate Refugees 2.1. Changing the Legal Definition of ‘Refugee’ Lister’s suggestion to revise the criteria for refugeedom in the UNRC is one simple way to begin to provide rights to asylum, non-refoulement, and relief options to climate refugees. And though I think this can and should happen, since there is no in principle reason to uphold the current criteria, this proposal has practical drawbacks. For starters, the provisions of the UNRC will be insufficient on their own to enable adequate responses to climate refugee justice issues; because of their inevitable increasing magnitude and severity. This is because the UNRC does not lay out protocol for dealing with such severe problems, but is an artifact of responding to relatively rare and clear cases where sociopolitical refugees sought asylum in nearby countries. Revising the criteria will also require international negotiations between all UN parties, which are difficult and generally take decades. Yet, there are already climate refugees, and it is likely that there be many more in the near future. It is thus crucially important to devise complementary responses to climate refugee cases more immediately (Donhauser 2018, p. 11). 2.2. Emergency Passports One potential way to help climate refugees that does not require retooling the UNRC, is to issue climate refugees emergency, “Nansen,” passports. “Nansen passports” where the first issued to peoples who became stateless due to forced migrations or unclear international laws; to allow them to lawfully enter and seek asylum in relatively safer countries. Clare Heyward and 8 Jörgen Ödalen (2016) have argued that climate refugees meet the criteria for those who have been issued Nansen Passports in the past, and propose that climate refugees be issued a new sort of Nansen Passport which they call a ‘Passport for the Territorially Disposed’; which is essential a quicker way to grant climate refugees rights to asylum and non-refoulement. This too, I think can and should be pursued as a response. However, this proposal also faces practical impediments. Beyond having to pass through UN negotiations, individual countries will need to devise protocol and allocate funding for handling individuals issued such passports. What’s more, like the proposal to revise the UNRC, clear threshold criteria for issuing such passports will need to be devised (Donhauser 2012, p.12). So, while this proposal should be pursued as well, it is nonetheless crucial to seek further complementary responses to climate refugee cases. 2.3. Preemptive Relocation Anote Tong, president of the island of Kiribati, proposed a further complementary response at the 2008 General Assembly of the UN. As one of several small island states, Kiribati’s residents have been watching the ocean slowly swallow their homeland due to climate driven sea-level rise and suffer losses due to potable water salinization. Tong asked the UN Assembly to consider offering preemptive relief through a large-scale systematically relocation of his people; so that, in his words, “when [my] people migrate, they will migrate on merit and with dignity” (United Nations, 2008). Risse (2009) considers ways of justifying and motivating such preemptive strategy for addressing inevitable climate refugeedom. In sum, Risse proposes, not just relocation, but systematic large-scale redistribution of peoples in imminent danger of becoming climate refugees throughout the world. Here the idea is to incentivize such a preemptive response by 9 fairly distributing such refugees so that no single nation has to endure the most of the burden of taking in such refugees. This proposal broaches the general implementation details of a way to respond to climate refugee cases, and, in Kiribati, has begun to be realized through a multi-phase relocation and adaption plan—which enables those residents who wish to relocate to do so (Kiribati Adaptation Program). One problem of such a response, that is visible in the case of Kiribati, is that many will choose to remain in their homeland, and will therefore continue to suffer unjust losses and damages (see Walker 2017). Yet, even if these injustices can be offset with additional forms of relief, certain practical considerations must be addressed to implement such responses for other climate refugee cases. Two considerations are especially important. First, realizing such preemptive responses requires determining what institutional and economic channels can be used to do so in particular cases. Second, systematic criteria and means of evaluating risks of populations being more or less likely to experience imminent losses and damages are needed to determine and prioritize where to enact such responses (Donhauser, 2017, pp.266-267; Donhauser, 2018, pp. 13-14). The two remaining proposals are responsive to these concerns finding institutional channels for implementing responses to emerging climate refugee cases and devising criteria and risk thresholds for determining and prioritizing where to enact adaptive and preemptive responses. 2.4. “Risk Sharing” and the UN Framework Convention on Climate Change A proposal that is responsive to the aforementioned concerns about finding institutional and economic channels for implementing responses to emerging climate refugee cases is to utilize certain provisions of the United Nations Framework Convention on Climate Change 10 (UNFCCC) Paris Agreement drafted at COP21 (UNFCCC 2015). The UNFCCC and the policy track leading to it focus explicitly on taking steps to implement adaptive responses at all levels to address emerging and imminent problems due to climate change. The agreement entered into force in November 2016, and by the end of 2017 168 parties to the agreement had ratified, officially began steps to collectively reduce the Earth’s current net emissions by 87% and enact “climate action plans” (Paris Agreement Ratification Tracker). It provides the legal and political infrastructure for massive institutional responses climate change, and shows that the international community remains committed to taking steps necessary to respond to climate change in effective and ethical ways (see COP24 for progress). Of particular interest here are the “risk sharing” provisions contained within the Losses and Damages section of the UNFCCC (UNFCCC 2015; cf. UNFCCC 213). The Losses and Damages section directs specified Committees to develop infrastructure to support such international risk-insurance, and “risk-transfer” protocol, to facilitate efforts “develop and implement comprehensive risk management strategies” to respond to losses and damages (¶49).” This risk-insurance pool could be used to realize and fund efforts including the emergency passport and preemptive relocation responses discussed above (Donhauser 2017, pp. 272-274; Donhauser, 2018, p. 14). These provisions could also be used to mitigate losses and damages experienced by climate refugees through distributions of relief and aid funds from the riskinsurance pool. A major upshot of pursuing responses through these provisions of the UNFCCC is that the agreement already in effect, and almost all of the major governments in the world have been taking steps to comply with their commitments to the agreement. Pursuing responses through the UNFCCC thus provides a way to sidestep the practical hurdles to pursuing responses through 11 the UN Refugee Convention. Still, operationalizing the UNFCCC risk-insurance and transfer provisions, and utilizing them to implement mitigatory and response strategies will require a lot of work going forward. And finding means of devising criteria and risk thresholds for determining and prioritizing where to enact adaptive and preemptive responses will be crucially important. My final proposal responds to this need. 2.5. Using Probabilistic Event Attribution studies to help Realize Climate Justice Many climate scientists and ethicists have argued that the methods of Probabilistic Event Attribution studies (PEAs) are useful for decision-making about climate justice issues (see Allen, 2003; Donhauser, 2017; Otto et al, 2017; Thompson & Otto, 2015). PEAs use super-ensemble atmospheric data models and statistical analyses to identify major causes of extreme weather events dues to climate change. PEA researchers generate models massive amounts of data for many variables, and the variables and parameters of those models until they accurately simulate an extreme weather event that actually occurred. They then systematically remove select variables (like US or French emissions during in a certain range of years) until the weather event does not occur in simulations with the same basic model. Then through statistical analyses of such simulation comparisons, they can show the probability of occurrence would have been such that the relevant event would not have occurred, had certain major climate change drivers been absent (see, e.g., James et al, 2014; Stott et al, 2003; Stott et al, 2013, Stone et al 2005; Stone et al, 2013). Thus, for example, by doing such studies researchers can provide objective justification for the claim that droughts Syria or floods in Peru or Puerto Rico would not have occurred had U.S. emissions been a certain degree lower (Donhauser, 2017, pp. 263-264) 12 While it not is possible to reasonably assign singular liability for any particular event due to climate change—since global climate change is caused through aggregated causes—PEAs can be used to establish which nations played statistically larger or smaller roles in bringing about particular events (cf. Biber, 2008). They can thus be used to establish percentages of liability for losses and damages due to events linked to climate change, and used to help “slice up the liability pie” formed via the risk-sharing and pooling provisions outlined in the UNFCCC. Arguably, PEAs could be used to help prorate risk-insurance contributions and risktransfer distributions, and could help realize just responses to experiences losses and damages including those experienced by climate refugees (Donhauser, 2018, p. 13). Thompson and Otto (2016) and Otto et al (2017) present arguments along these lines. They argue that since “historical responsibility of individual countries and regions can now be quantified for specific extreme events” with PEAs, such studies can be used to assign statistical liability to individual countries for purposes of litigation to address climate justice issues (Otto et al 2017, p. 759; cf. Bhattacharya, 2003; Field & Barros, 2014; Hulme, 2014; Peterson et al, 2011; Spross, 2014). What’s more, it is argued that PEAs can be used to help make predictions and related estimation regarding potential future extreme weather events and their impacts. Because such studies, “enhancing knowledge about changes in extreme weather event patterns, intensity, and frequency under different climate regimes,” PEAs provide information about how weather events and their causes that can be used to help making decisions about preemptive and mitigatory efforts to minimize the experience of losses and damages (Donhauser, 2017, p.265; cf. Funk 2012; Luo et al, 2014; Yu et al, 2014). The sorts of possible scenario simulations used in PEAs can be also used to help estimate likelihoods of potential future extreme weather events and their possible impacts given a range of probable future climate conditions (Ibid.; cf. Dole et al., 2011; 13 Otto et al., 2012; Pall et al., 2011; Peterson et al., 2013; Rahmstorf & Coumou, 2011; Rozenberg et al, 2014; Yzer et al 2014). Such simulations could also be used to garner insights into how the presence or absence of certain climatic changes effect the likelihoods of weather events that can impact valuable valued resources (e.g. potable water and agriculture) (Donhauser, 2017, p. 266; see also Challinor et al., 2009; Dumas & Ha-Duong, 2013; Kurukulasuriya et al., 2011; Seo & Mendelsohn, 2008). The simulations used in such studies could thus be used to help estimate which peoples will have greater or lesser degrees of risk of experiencing losses or damages due to coming extreme weather events (cf. Donhauser, 2017, pp. 266-267; Donhauser, 2018, p.13). In this way, they can also help prioritize where preemptive responses and mitigation and relief efforts would be most reasonably allocated. 3. Conclusion Above, I have discussed what climate refugeedom is, explained key differences between climate refugees and other sorts of refugees, and critically examined five complimentary proposals for helping such refugees. I’ve also outlined avenues for pursing forms of asylum, aid, and preemptive protection measures to take steps toward realizing just responses to climate refugee cases. I will conclude this chapter now by reflecting on ways some of the five considered proposals could be incentivized and co-implemented to realize effective and ethical international responses to emerging climate refugee issues. The considered applications of PEAs and PEA methods for determining statistical liability, evaluating possible future scenarios, estimating risk potentials, and prioritizing where to purse preemptive responses and mitigation and relief efforts, I think are all objective and fair ways to guide response decision-making and to make determinations about priorities. When 14 coupled with pursuit of justice for climate refugees through the provisions of the UNFCCC agreement, it seems such applications of the methods will be invaluably useful for operationalizing the risk insurance and pooling provisions of the agreement and using them to realize reparative and facilitative forms of justice for existing and future climate refugees (cf. Donhauser, 2017; Thompson & Otto, 2015). Implementing measure to seek asylum, either through revising the UNRC, the provisions of the UNFCCC, or by issuing special Nansen passports, I would like to suggest could be incentivized and realized in more fair ways as follows. First, the idea to distribute climate refugees so that particular nations are not taking on more burden than others could of course be made more fair by statistically distributing refugees that seek this option to reflect the proportions of liability reflected in the determined estimated contributions to the international risk pool (as described in the UNFCCC). Second, offering asylum to climate refugees could be incentivized by treating the contributions to “climate action” of parties to the UNFCCC as “in kind” contributions. If this were so, parties to agreement could then consider tradeoffs between offering refugee groups asylum or contributing in other ways (e.g. through measure to reduce industrial emissions). Third, to help maintain cultural identity, community, and dignity, it would seem more just to attempt to relocate refugees who chose that option such that they are relocated in places where they will be together with member of their family, community, and broader culture. Finally, within the constraints imposed by the aforementioned ideas, it would seem that providing those experiencing climate refugeedom options and the autonomy to choose whether and where they will be relocated is essential to realizing ethically acceptable responses. Of course, the devil is in the details, and realizing effective and ethical responses to cases of climate refugeedom and other form of climate injustice will require further critical discussion, 15 debate, and planning. I have attempted to push these efforts forward; and it is my sincere hope that my discussion has been thought provoking and will help facilitate further progress toward enacting justice for climate refugees. Acknowledgements Thanks to Gillian Barker, Max Cherem, Eric Desjardins, Allen Thompson, and students in my 2018 Environmental Ethics course at Bowling Green State University for helpful discussions during the development of parts of this work. Works Cited Allen, Myles. 2003. 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