The United Nations' recognition of climate refugees: a call for the reform of refugee law

Abstract

Throughout history, people have been known to migrate internationally or nationally, voluntarily or compulsorily, temporarily or permanently, and regularly or irregularly for several political, social and economic reasons. There have always been several additional factors such as age and gender that have been known to influence movement. However, over the years the patterns and nature of migration has changed and in recent times the international community has been confronted by cross-border migration driven by the negative environmental effects caused by climate change. The increase in gas emissions have resulted in the earth's temperature increasing, with dire consequences for the environment. As these conditions and the events exacerbated, they affected the habitability of states and the human rights of communities, forcing people to abandon their homes in search of assistance and protection. In the event that people move internally in these circumstances, they are protected by law.

However, in the event that climate induced displacement is external, there is no corresponding framework that provides for the recognition and protection of these people. This leaves them vulnerable to human rights violations. This was practically illustrated by the matter of a Kiribati citizen who fled the island that is slowly disappearing due to rising sea levels to apply to New Zealand for refugee status. Based on the international and domestic requirements for qualification as a refugee, NZ denied his application and found that he did not fulfil the necessary requirements. The matter was appealed and was eventually heard by the United Nations Human Rights Committee, who found that the conditions on the island did threaten the human rights of the applicant, more specifically the right to life. As a result, it was found that his return would violate the non-refoulement principle. With this, they recognised the existence of the category of climate refugees for the first time.

With this in mind, this study sought to determine whether the existing international, African regional and South African refugee law frameworks are sufficient to protect climate refugees or whether reform is required. In order to do so, this study identified these three legal frameworks and presented an in-depth analysis of its historical context and more specifically the elements of the definition of a refugee as provided for in law. The study further evaluated the application of these elements to climate refugees. It then arrives at an explanation of the term climate change and a practical illustration of the negative effect it has on the environment. The premise of this study is that climate change is a reality and that it results in the external displacement of people. Therefore, these people need international recognition and protection. Their recognition as refugees is indicative of the seriousness of the matter.

Against this background, the study finds that the existing refugee law frameworks are not sufficient to realise the rights of climate refugees as each framework presents its own weaknesses and shortcomings. This includes other types of frameworks such as human rights law, regional agreements, environmental law and soft-law measures. Furthermore, it includes the extension of existing frameworks by adopting protocols. The study proposes the formation and adoption of a unique treaty that can provide for the international recognition and protection of climate refugees, and which is strengthened by the implementation of local and regional measures. It is suggested that the framework incorporates a proper and comprehensive definition of a climate refugee and that it provides for the implementation of measures such as acceptance, assistance, responsibility, adaptation, prevention and relocation. The study makes a contribution in that it identifies a gap in the existing refugee law frameworks and it investigates the numerous solutions that have been proposed. This culminates in certain recommendations that may investigated in more depth in the future.