Environment Migrant in International Law

JURIDICUM
ENVIRONMENTAL MIGRANTS IN
INTERNATIONAL LAW
An assessment of protection gaps and solutions
Louise Olsson
SPRING SEMESTER 2015
RV4460 Legal Science C (Bachelor Thesis), 15 credits

Examiner: Anna Gustafsson
Tutor: Tarik Radwan
Summary
This study approaches the issue of environmental migration and examines to what extent
contemporary international law provides protection to people migrating as a result of
environmental factors. The research questions thus concerns to what extent current
international law protect environmental migrants, and how the protection can be improved.
The purpose of this study is to draw attention to the increasing issue of environmental induced
migration, to reveal the protection gaps in contemporary international law, and to stress the
urgent need to address this problem adequately. A framework for the theme issue is provided
by exploring links between environmental change and cross-border human migration.
Evidence is reviewed demonstrating that millions of people have migrated or are likely to
migrate as a result of environmental risk and hazard. Environmental change might cause
displacement in a variety of manners: For example, migration might result from intensified
drought and desertification affecting livelihoods, rising sea levels or intensified acute natural
disasters. Accordingly, the different forms of environmentally induced migration require
different approaches and actions by the international community.
Through a review of refugee law, environmental law, human rights law, the law on stateless
persons and the system of Temporary Protected Status, it is concluded that none of these
systems provides adequate protection to this particular group of people. However, these
systems offer mixed potential to develop in this regard. Also, it is found that terminological
and conceptual gaps exists and that it is crucial to provide a universal definition to this
particular group of people in order to adequately address this issue.
Finally, it is concluded that, due to the complexity of the issue, a combination of the solutions
examined would most probably be the most effective way of filling the protection gaps. It is
argued that international refugee law is an inappropriate forum of addressing environmental
migration for several reasons. The system of Temporary Protected Status is instead proven to
have the most potential of offering protection to people migrating due to rapid environmental
factors. At the same time, it is found that people migrating due to slow onset climate events
would be better served by regional conventions drafted for this purpose, which focuses on
people’s unwillingness or impossibility to return to their state of origin, rather than focusing
on the harm and impact already experienced.
List of abbreviations
1951 1951 Convention Relating to the Status of Refugees
Refugee Convention as modified by the 1967 Protocol
1969 OAU 1969 Convention Governing the Specific Aspects

Refugee Convention of Refugee Problems in Africa
EU European Union
IASC Inter-Agency Standing Committee
IDLO International Development Law Organization
IOM International Organization for Migration
IPCC Intergovernmental Panel on Climate Change

OAU Organization of African Unity
OHCHR Office of the High Commissioner for Human Rights
UN United Nations
UNFCCC United Nations Framework Convention on Climate Change
UNGA United Nations General Assembly
UNHCR United Nations High Commissioner for Refugees
US United States
Table of contents
Part I: Introduction ..................................................................................................................... 1
1.1 Background description .................................................................................................... 1
1.2 Purpose and research questions ........................................................................................ 2
1.3 Limitation ......................................................................................................................... 2
1.4 Method and materials ....................................................................................................... 2
1.5 Disposition........................................................................................................................ 3
Part II: The issue of environmental migration............................................................................ 4

2.1 The magnitude of the issue ............................................................................................... 4
2.2 The complexity of the issue.............................................................................................. 5
2.2.1 Sea level rise and migration ...................................................................................... 5
2.2.2 Rapid onset climate events and migration ................................................................. 6
2.2.3 Slow onset climate events and migration .................................................................. 7
2.3 Terminological and conceptual issues .............................................................................. 8
2.3.1 The difficulties with establishing a universal definition ........................................... 9
2.3.2 Proposed terminology.............................................................................................. 10
Part III: Protection gaps in the contemporary legal framework ............................................... 11

3.1 International refugee law ................................................................................................ 11
3.1.1 The 1951 Refugee Convention ................................................................................ 12
3.1.2 The 1969 OAU Refugee Convention ...................................................................... 14
3.2 International environmental law ..................................................................................... 15
3.3 International law on stateless persons ............................................................................ 16
3.4 International human rights law ....................................................................................... 18
3.5 The system of Temporary Protected Status .................................................................... 20
3.5.1 Temporary Protected Status in domestic systems ................................................... 20
3.5.2 Temporary Protected Status within the EU system ................................................. 21
3.5.2 Temporary Protected Status under customary international law............................. 23
3.6 A synopsis of the protection gaps reviewed ................................................................... 24
Part IV: Possible means of filling the protection gaps ............................................................. 25

4.1 Extending the scope of the 1951 Refugee Convention .................................................. 25
4.2 Creating a new framework that encompasses environmental migration ........................ 26
4.2.1 Creating a broad international hard law convention................................................ 27
4.2.2 Creating regional customized conventions.............................................................. 27
4.2.1 Creating soft laws that may eventually lead to hard law treaties ............................ 28
4.3 Adding a protocol to the UNFCCC ................................................................................ 29
4.4 Extending the system of Temporary Protected Status.................................................... 29
Part V: Concluding remarks ..................................................................................................... 32

Bibliography ............................................................................................................................. 34
Part I: Introduction
1.1 Background description

An increasing number of people are being forced from their homes by weather-related
disasters, environmental degradation and changing climatic conditions.1 Growing water
scarcity, desertification, and decreased agricultural output are causing people to migrate,
either because of a current or anticipated danger, or in order to support livelihoods.2 Others
are forced to move as a result of the increasing number of extreme weather events, such as
storms, floods or tropical cyclones, which has resulted in areas of the world becoming
inhabitable.3 In addition, the prospect of entire nations submerging is real for small island
states that, due to their large coastal areas and low elevation, will exacerbate the effects of
environmentally induced disruptions.4
While refugees from persecution and war are protected by international law, it is unclear to
what extent international law protects people being internationally displaced as a result of
environmental factors. As a first protection gap, there is no universal definition of this
particular group of people, and accordingly no agreement concerning who should be protected
on reasons of environmentally induced displacement.5 Articulating a clear definition of
persons displaced due to climate change would thus appear to be a crucial starting point for
international protection. However, creating a universal definition is problematic due to the
difficulties with establishing the causal relationships between environmental changes and
migration, and further due to the many different forms that environmentally induced
migration may take.6
In addition to terminological gaps, there are also significant protection gaps in contemporary
refugee law, environmental law, the law on stateless persons and human rights law. Thus,
none of these systems adequately address cross-border migration induced by environmental
factors. Furthermore, despite the fact that the system of Temporary Protected Status under
domestic, regional, and customary international law has the potential of offering protection to
the environmentally displaced, the current system has an equal amount of gaps which further
leaves this vulnerable group of people in a legal vacuum.
Due to the foregoing causes, this is an issue that the international community has to address
urgently, and that this study seeks to provide possible solutions for.
1
OHCHR, Climate Change, Migration and Human Rights: Address by Kyung -wha Kang Deputy High
Commissioner for Human Rights Office of the United Nations High Commissioner for Human Rights at the
Conference on Climate Change and Migration: Addressing Vulnerabilities and Harnessing Opportunities.
2
McAdam, Climate Change, Forced Migration, and International Law , p 52; Renaud, Dun, Warner & Bogardi,
A Decision Framework for Environmentally Induced Migration, 1; Biermann & Boas, Preparing for a Warmer
World: Towards a Global Governance System to Protect Climate Refugees, p 69.
3
European Parliament, Kraler, Cernei, & Noack, Legal and Policy Responses to Environmentally Induced
Migration, p 20.
4
Migration, p 27.
5
Warner, Global Environmental Change and Migration: Go vernment Challenges, p 403.
6
Gibb & Ford, Should the United Nations Framework Convention on Climate Ch ange Recognize Climate
Migrants?, p 2.
1
1.2 Purpose and research questions
This study aims to draw attention to the increasing issue of environmentally induced
displacement, and to stress the urgent need for international law to address this problem
adequately. The study thus assesses and evaluates contemporary international law with the
purpose of revealing the gaps in its protection of environmental migrants. Further, it aims to
provide suggestions for evolution of the legal framework currently in place in order to arrive
at more comprehensive responses to environmentally induced migration.
In order to fulfill this purpose, this study focuses specifically on the following questions: To
what extent does current international law protect environmental migrants, and how could the
protection be improved?
1.3 Limitation
This study addresses environmental migrants who cross, or intend to cross, an internationally
recognized border as a result of the adverse effects of diverse environmental events. In
addition to this type of cross-border migration, the vast majority of movement because of
environmental factors is domestic. However, this will not be the focus for this study because
the latter primarily benefit from the protection of their respective government, as well as of
the Guiding Principles on Internal Displacement.7 The adequacy of those protections falls
outside the scope of this study.
1.4 Method and materials

This paper initially uses non-legal sources to describe the phenomena of environmental
migrants and to identify the need for certain international protection.
The study then uses the legal dogmatic method to describe the current state of international
law. Through this method, the paper evaluates contemporary international law and assesses
whether it offers sufficient protection for environmental migrants. Then, from the perspective
of needs, it identifies gaps in the law with respect to protecting the previously recognized
needs of environmental migrants.
After having assessed the current protection under international law, the paper then surveys
various proposals that have been made to fill the gaps as well as the author’s own reflection
on how the gaps could be filled. Thus, the study addresses the question on how international
law should be modified in order to adequately protect the environmentally displaced.
The materials chosen are established primary and secondary sources of international law,
referring to those laid down in article 38 of the Statute of the International Court of Justice.
Specifically international conventions but also international custom has provided the basis for
the discussions of the study. Also, as subsidiary means for the determination of rules of law,
the teachings of the most highly qualified publicists of the various nations has been utilized,
as found in books, articles, and working papers of relevant organizations.
7
UNHCR, Guiding Principles on Internal Displacement.
2
Due to the lack of relevant case law, the author has instead taken advantage of the diversity of
literature on the subject. Additionally, a limited extent of domestic legislation has been
examined in order to explore to what extent the instrument of Temporary Protected Status,
which exists in some domestic systems, has the potential of providing adequate protection to
environmental migrants.
1.5 Disposition
Following the introduction, the second part of the study clarifies the urgent need for adequate
protection of the environmentally displaced. The issue of environmentally induced migration
is described and discussed, in particular its magnitude and complexity. It specifically develops
upon three categories of migration that is caused by environmental factors: Namely, migration
as a response to sea level rise, rapid onset climate events, and slow onset climate events. This
section is crucial in order to create an understanding of in what way, and to what extent,
international law needs protect this particular group of people. The second part of the paper
additionally surveys the diverse opinions among scholars concerning the definition of this
group of people. As will be revealed, the lack of a universal definition constitutes a major gap
in the contemporary normative framework, and articulating a clear definition of persons
displaced due to climate change thus appears to be a crucial starting point for international
protection. After having assessed the complexity of defining environmentally induced
displacement, and the different approaches towards it, the paper describes why
‘environmental migrant’ is the most appropriate term to define this particular group of people,
and consequently also the term that will be used throughout the study.
In its third part, the paper analyses the contemporary international law that might relate to
environmentally induced migration. Specifically, international refugee law, international
environmental law, international human rights law and the law on stateless persons will be
examined in further detail, and the existing gaps in their application and protection of
environmental migrants will be revealed. The same will be done for the practice of Temporary
Protected Status, as it exists in domestic law, EU law, as well as customary international law.
The paper will thus examine to what extent the system of Temporary Protected Status
currently offers protection to environmental migrants.
The fourth part of the study assesses possible means of filling the gaps identified in the third
part, and advantages as well as disadvantages of adapting the respective measures will be
further provided. Four different variations of filling the protection gaps will be discussed in
further detail: Namely, the extending of the scope of the 1951 Refugee Convention, the
creating of a new instrument that encompasses environmental migration, the adding of a
protocol to the UNFCCC, and the extending of the system of Temporary Protected Status.
The study then ends with a section of concluding remarks, aiming to summarize the findings
provided in the fourth part, and to provide a number of definitive general observations and
conclusions on the subject.
3
Part II: The issue of environmental migration
This chapter provides an examination of the widespread nature of environmental migration, as
well as the different forms of and reasons for this phenomenon. The objective of this chapter
is to create a stable platform that the subsequent chapters, concerning protection gaps in the
contemporary international law and the proposals for more adequate legal covering of
environmentally induced migration, will then be able to build upon.
2.1 The magnitude of the issue

The acknowledgment of the increasing issue of environmentally induced displacement has
grown considerably during the past decades, and this has led to an awareness and discussion
among scholars as well as international organizations concerning the need to protect
environmental migrants.8 For example, the IPCC stated as early as 1990 that: ‘The gravest
effects of climate change may be those on human migration as millions are uprooted by
shoreline erosion, coastal flooding and agricultural disruption.’9 Similarly, the OHCHR has
acknowledged that climate change may affect hundreds of millions of people in various ways,
including through permanent international displacement.10 In 2008, the Deputy High
Commissioner for Human Rights correspondingly provided:
By 2050, hundreds of millions more people may become permanently displaced due to
rising sea levels, floods, droughts, famine and hurricanes. The melting or collapse of ice
sheets alone threatens the homes of 1 in every 20 people. Increased desertification and the
alteration of ecosystems, by endangering communities' livelihoods, are also likely to
trigger large population displacements. 11
Accordingly, experts in environmental communities as well as in human rights communities

have expressed their concern in the context of environmentally induced migration. Although
the exact calculations of the number of environmental migrants vary between different
assessments,12 there at least seems to be a general agreement concerning the fact that the
environmentally induced migration crisis will surpass all known refugee crises in terms of the
8
Reeves & Jousel, Climate Refugees, p 14; Chimni, International refugee law – A reader, p 272.
9
Myers & Kent, Environmental Exodus: An Emergent Crisis in the Global Arena , p 134.
10
OHCHR, United Nations Joint Press Kit for Bali Climate Change Conference: The Human Rights Impact of
Climate Change.
11
Conference on Climate Change and Migration: Addressing Vulnerabilities and Harn essing Opportunities.
12
According to Myers, in 1995 there were already 25 million environmental refugees. Myers estimates that the
total number of people at risk from sea-level rise by 2050 is likely to be 162 million. In addition, 50 million
people could become refugees due to droughts and other climate change impacts. In total, Myers expects 212
million climate refugees by 2050. See: Myers, Environmental Refugees: A Growing Phenomenon of the 21st
Century, p 609, 611. The Stern Review on the Economics of Climate Change maintains that Myers estimate has
not been rigorously tested, because climate change will lead to the displacement of ‘hundreds of millions more
people without sufficient water or food to survive or threatened by dangerous foods and increased disease.’ See:
Stern, N, The Stern Review on the Economics of Climate Change, p 77. The UNFCCC offers a more immediate
estimate for 2010 of possibly 50 million environmentally displaced people. This figure appears more or less in
line with predictions that build on longer timeframes. See: UNFCCC Executive Secretary, Press Release of the
Secretariat of the United Nations Framework Convention on Climate Change. In sum, most estimates currently
appear to expect an additional number of climate refugees of about 200–250 million by 2050.
4
number of people affected.13 Thus, environmental change will fundamentally affect the lives
of millions of people who, either already have been forced, or will be forced over the next
decades to migrate in order to seek protection in other areas.14 Yet, as a working paper
provided by the IASC has noted:
Neither the UN Framework Convention on Climate Change, nor its Kyoto Protocol,
includes any provisions concerning specific assistance or protection for those who will be
directly affected by the effects of climate change .15
The same goes for the other most relevant regimes of international law: Namely, refugee law,
the law on stateless persons, and human rights law.16 Thus, despite the fact that there is an
increasing awareness concerning the issue, international law has not yet provided an answer
for it. The reason for this is among other factors the complexity of the issue which will be
developed upon in the forthcoming section.
2.2 The complexity of the issue

To address environmentally induced migration comprehensively under international law is a
complex task because it requires a diversity of different approaches depending on the different
types of factors that induces migration in different parts of the world. Some situations may
require permanent international displacement, as will be the case of for example submerging
states due to rising sea levels, or some cases of desertification or drought. In other situations
temporary international protection might suffice, as could be the case of occasional storms or
tropical cyclones. In such cases, even internal displacement might sufficiently respond to the
needs of the people concerned, especially if the environmental impact is limited to only a
portion of an affected state.
Three main categories of climate change effects are expected to contribute most to migration
flows: Namely, submerging island states due to rising sea levels, an increasing quantity and
intensity of storms, and drought, desertification, and water shortages.17 In the upcoming
section, these events will be divided into subsections of sea level rise and migration, rapid
onset events and migration, and slow onset events and migration.
2.2.1 Sea level rise and migration
Sea level rise may be characterized as a slow onset gradual environmental change as well as a
rapid onset climate event because it is also a contributor to the impact of flooding and storms.
13
Biermann & Boas, Preparing for a Warmer World: Towards a Global Governance System to Protect Climate
Refugees, p 61.
14
Refugees, p 61; Reeves & Jousel, Climate Refugees, p 14; Myers & Kent, Environmental Exodus: An Emergent
Crisis in the Global Arena, p 14; Chimni, International refugee law – A reader, p 272.
15
IASC, Climate Change, Migration and Displacement: Who will be affected?, p 1.
16
Nishimura, ‘Environmental migrants’: Impediments to a Protection Framework and the Need to Incorporate
Migration into Climate Change Adaptation Strategies, p 8.
17
Bush, Redefining Environmental Refugees, p 555; Docherty & Giannini, Confronting a Rising Tide: A
Proposal for a Convention on Climate Change Refugees, p 355; Biermann & Boas, Preparing for a Warmer
World: Towards a Global Governance System to Protect Climate Refugees, p 69. For a general description of sea
level increases, see also: IPCC, Summary for Policymakers.
5
This specific aspect is therefore allocated its own section. Further, given the possible
disappearance of island states, and consequently the effective statelessness of inhabitants of
the islands in question, sea level rise might be regarded as the most dramatic manifestation of
climate change.
There is a genuine risk of complete submergence for small island states that will exacerbate
the effects of environmentally induced disruptions because of their large coastal areas and low
elevation.18 The Maldives, for example, could see portions of its capital flooded by 2025, and
half of the island is estimated to be flooded by 2100. 19 Further, the islands of Kiribati and
Tuvalu, the Marshall Islands, and several Caribbean islands, are urgently threatened and will
eventually end up completely submerged.20 In such cases of complete submergence of states,
the island residents are effectively rendered stateless and can consequently neither be
displaced internally nor enjoy any other protection of their respective governments.
While some states may cease to exist, others might lose portions of territory, which would in
turn spur migration. Especially in regions of Asia major disruptions loom for certain low lying
shoreline areas.21 For example, Bangladesh consist to eighty percent of a delta, and IPCC
calculations indicate that a rise in sea levels of 45 centimeters would displace 5.5 million
people and submerge over 10 percent of Bangladesh.22 Increased levels of migration are thus
unavoidable.
2.2.2 Rapid onset climate events and migration
There has been much publicity about rising sea levels and potentially submerging states.23
However, extreme weather events such as storms, floods, earthquakes, volcanic eruptions, and
tropical cyclones are examples of rapid onset climate events that equally cause inhabitants to
migrate.24 Often, this kind of migration occurs in an even more urgent manner as the
populations have not been able to anticipate and prepare themselves for such events. Such
events have nevertheless not received as much attention in the discussion concerning
environmental migration. Yet, the number of these kinds of extreme weather events are
predicted to grow as a result of environmental changes, 25 and people are thus increasingly
18
Migration, p 20, 27.
19
Mcinerney-Lankford, Darrow & Rajamani, Human Rights and Climate Change: A Review of the International
Legal Dimensions, p 14; Views Regarding the Work Programme of the United Nations Framework Convention
on Climate Change, Ad Hoc Working Group on Long Term Cooperative Action under the Convention,
Submission of the Maldives on Behalf of the Least Developed Countries, p 19.
20
Docherty & Giannini, Confronting a Rising Tide: A Proposal for a Convention on Climate Change Refugees,
p 356; Bush, Redefining Environmental Refugees, p 562; McAdam, Climate Change, Forced Migration, and
International Law, p 19.
21
Myers, Environmental Refugees: A Growing Phenomenon of the 21st Century, p 611, Biermann & Boas,
Preparing for a Warmer World: Towards a Global Governance System to Protect Climate Refugees, p 72.
22
Williams, Turning the Tide: Recognizing Climate Change Refugees in International Law, p 505.
23
Migration, p 20.
24
Migration, p 20.
25
IPCC, Synthesis Report. Contribution of Working Groups I, II and III to the Fourth Assessment Report of the
Intergovernmental Panel on Climate Change, p 12, 52, 72.
6
displaced to avoid physical harm or loss of life, and because homes and livelihoods such as
crops and productive assets are destroyed.26
The occurrence of migration related to rapid onset events is probably the easiest to identify
because the impacts of the environmental events are relatively observable.27 People migrating
due to rapid onset climate events should accordingly be less difficult to encompass under
international law. However, rapid onset events rarely lead to long-term and long-distance
migration but rather short-term internal displacements,28 unless social factors exacerbate the
impact of the disaster, for instance if the affected society is highly dependent on the natural
environment in order to support livelihood, and the natural environment is heavily damaged
due to the extreme weather event in question.29 The extent of cross-border migration depends
further on the frequency and as well as on the extent of damage, and also on the management
of the disaster response.30
As previously mentioned, the people that are cross-border migrating as a result of rapid onset
climate events requires urgent protection responses by the international community. However,
they habitually require only temporary protection as they will most likely be able and willing
to return to their state of origin as soon as it is safe and the damage is repaired. The capacity
to migrate over long distances is often also limited because of lack of the required resources. 31
What is required of international law in order to provide adequate protection for people
migrating due to rapid onset climate events is thus a reliable system that determines where the
migrants are entitled at least temporary protection, the extent and content of which might vary
depending on the specific needs and circumstances of each case.
2.2.3 Slow onset climate events and migration
Drought, desertification and land degradation are the main slow onset events which are
exacerbated by climate change and that contribute substantially to the number of
environmental migrants.32
Globally, 10-20 percent of drylands33 are already degraded.34 The more than 2 billion people
who live in these degraded areas are particularly vulnerable to loss of essential resources such
26
Tacoli, Crisis or Adaptation? Migration and Climate Change in a Context of High Mobility, p 518; IPCC,
Synthesis Report. Contribution of Working Groups I, II and III to the Fourth Assessment Report of the
Intergovernmental Panel on Climate Change, p 53.
27
Warner, Environmental Change and Migration: Issues for European Governance and Migration Mana gement,
p 2.
28
Kolmannskog & Trebbi, Climate change, Natural Disasters and Displacement: a Multi-track Approach to
Filling the Protection Gaps, p 717.
29
Kolmannskog & Trebbi, Climate Change, Natural Disasters and Displacement: a Multi-track Approach to
30
Tacoli, Crisis or Adaptation? Migration and Climate Change in a Context of High Mobility, p 518.
31
European Parliament, Kraler, A, Cernei, T & Noack, M, Legal and Policy Responses to Environmentally
Induced Migration, p 20.
32
Refugees, p 69; Tacoli, Crisis or Adaptation? Migration and Climate Change in a Context of High Mobility, p
517-518; Williams, Turning the Tide: Recognizing Climate Change Refugees in International Law, p 504.
33
Note: ‘Drylands include all terrestrial regions where water scarcity limits the production of crops, forage,
wood, and other ecosystem provisioning services.’ See: Renaud, A Decision Framework for Environmentally
7
as water supply.35 Because water scarcity is anticipated to intensify as an effect of climate
change, desertification will correspondingly be further exacerbated.36 The people living in
those areas might be affected economically as it will eventually be more difficult to support
livelihoods, for example because of decline in agricultural productivity.37 Consequently,
desertification might cause mobility or at least be a contributing environmental push factor to
migration, in addition to the often already existing social and economic factors that induce
migration.
Even though a much larger number of people are anticipated to migrate as a result of slow
onset climate events rather than rapid onset climate events, 38 the links between drought, land
degradation, desertification and migration are multifaceted and more difficult to identify.39
Because the environmental changes are slow, it is difficult to assess to what extent these
factors contribute to migration. Furthermore, these slow impacts lead to more pro-active
forms of migration rather than the kind of forced migration occurring during or after sudden-
onset events,40 and this type of environmental migration is therefore particularly difficult to
address under the protection framework.41
Even so, over time, slow onset change will give environmental push factors an increasingly
important position in the migration process. 42 Slow onset climate events thus requires being
addressed by international law just as much as rapid onset events, however it is a more
complex task.
2.3 Terminological and conceptual issues

A first gap in the contemporary normative framework is the lack of an agreed terminology.
Terms such as migrant, displaced person, and refugee are often used synonymously and
interchangeably.43 However, from a legal perspective, such words have relatively distinct
meanings and also describe regulatory brackets under which persons may invoke protection
from states.44
As long as disagreement exists as to the definition over who may be covered by an instrument
protecting the environmentally displaced, no adequate solution to the issue can be reached.
Thus, articulating a clear definition of persons displaced due to climate change would appear
34
Induced Migration, p 20; IPCC, Synthesis Report. Contribution of Working Groups I, II and III to the Fourth
Assessment Report of the Intergovernmental Panel on Climate Change, p 30, 49, 65.
35
European Parliament, Kraler, A, Cernei, T & Noack, M, Legal and Policy Responses to Environment ally
36
Renaud, Dun, Warner & Bogardi, A Decision Framework for Environmentally Induced Migration, 1.
37
Tacoli, Crisis or Adaptation? Migration and Climate Change in a Context of High Mobility, p 517.
38
39
Warner, Hamza, Oliver-Smith, Renaud & Julca, Climate Change, Environmental Degradation and Migration,
p 697.
40
IOM, Migration, Environment and Climate Change: Assessing the Evidence, p 24.
41
42
Warner, Hamza, Oliver-Smith, Renaud & Julca, Climate Change, Environmental Degradation and Migration,
p 696.
43
Warner, Global Environmental Change and Migration: Government Challenges, p 403.
44
Gogarty, Climate-Change Displacement: Current Legal Solutions to Future Global Problems, p 169.
8
to be a crucial starting point for international protection. Before turning to the adequacy of the
current legal framework for the protection of displaced persons, and the proposed means of
filling protection gaps, it is therefore important to examine the widespread dissensions
concerning suitable terminology.45 Also, in order to facilitate further discussion concerning
the subject, this section will propose the terminology that is considered best suited to
adequately cover the phenomena of environmentally induced migration, and that terminology
will then be used throughout this study.
2.3.1 The difficulties with establishing a universal definition
To define environmental migrants is complex due to a variety of factors. For example,

environmental change may be an important factor for the decision to migrate but it does not
occur in isolation. While climate change may be the proximate trigger of migration, the
impetus to migrate or not is often embedded in underlying and interacting economic, social,
religious, cultural, political, and personal factors.46 Accordingly, climate change often affects
most those who are already vulnerable, such as poor persons or persons that depend on
agriculture, environmental resources or ecosystems to be able to support their livelihood.47
Existing political or social tensions may also be exacerbated due to climate change impacts,
which could lead to internal conflicts and thereby further induce cross-border displacement.48
It has thus been difficult to establish the causal relationships and consequences of
environmentally induced migration.49 This heightens the challenge of quantifying such
migration and explains the wide range in expert estimates of environmental migrant
populations. Further, this complexity makes it difficult to agree on who should be included in
the definition, and who should not.
How international law should address different forms of environmental change constitutes
another layer of complexity. As provided in previous sections, climate change contributes to
both rapid onset events and slow onset events. Due to the diversity of the different types of
environmental change, the migration might be forced or voluntary, permanent or temporary,
and cross-border or internal. The phenomena may thus be defined with a broad term
encompassing all types of migration caused by environmental factors, or the migrants may be
divided into subsections more specified according to the different needs of each group. There
are important contrasts when it comes to migration as a result of rapid onset events versus
migration as a result of slow onset events. Rapid onset events, such as disaster scenarios,
often mean that needs are immediate and displacement is large-scaled. In contrast, slow onset
events might trigger migration in search of stability, security, opportunities to support
livelihoods, and maintainable sources of food and water.50 Due to these differences, there are
45
Khan, Climate Change Vulnerabilities - Legal Status of the Displaced People, p 327.
46
Gibb & Ford, Should the United Nations Framework Convention on Climate Change Recognize Climate
Migrants?, p 2.
47
Migration into Climate Change Adaptation Strategies, p 6; Hunter, Migration and Environmental Hazards, p
287.
48
McAdam, Climate Change, Forced Migration, and International Law , p 35; Nishimura, ‘Environmental
migrants’: Impediments to a Protection Framework and the Need to Incorporate Migration into Climate Change
Adaptation Strategies, p 6.
49
Warner, Environmental Change and Migration: Issues for European Governance and Migration Management,
p 2.
50
McAdam, Climate Change, Forced Migration, and International Law , p 18-19.
9
different opinions concerning whether or not slow and rapid onset events should be separated
for protection purposes and, if so, how.51
This study suggests that what is required is a flexible definition and a framework capable of
including a broad diversity of situations. There might well be a need for different approaches
to the different types of environmental migration under international law. However, for the
purposes of defining this group of people in order to facilitate discussions, prevent
misunderstandings, and be sure to not preclude anyone from legal protection, this study
suggests the use of the term ‘environmental migrant’ for reasons provided for in the upcoming
section.
2.3.2 Proposed terminology
The lack of an agreement on a formal legal definition of this group of people need not
preclude international action. Instead it should permit for more flexible responses. For
instance, despite the fact that ‘terrorism’ has no uniform definition, there are many terrorism-
focused UN Security Council resolutions and treaties. However, in order to facilitate the
discussion concerning legal protection of the group of people in question and to prevent
misunderstandings, this study advocates the usage of a universal definition.
This study will avoid terms such as ‘climate refugees’ or ‘environmental refugees’, for
reasons that will be more profoundly developed upon later on, and instead make use of the
term ‘environmental migrants’, which is a more general term that has the potential to cover all
the different types of environmental migration without suggesting that such recognition would
grant the group some special status or special rights as would the referring to the group as
refugees.
The IOM has correspondingly suggested the use of the term ‘environmental migrants’ defined
as follows:
Environmental migrants are persons or groups of persons who, for compelling reasons of
sudden or progressive change in the environment that adversely affects their lives or
living conditions, are obliged to leave their habitual homes, or choose to do so, either
temporarily or permanently, and who move either within their country or abroad. 52
Such definition is conceivable to cover migrants that are migrating due to slow onset climate
events, rapid onset climate events or sea level rise. However, even though the definition is
capable of including most forms of environmentally induced migration, it might be preferable
that the different types is nevertheless approached and protected differently under
international law. That is a factor which will be examined in subsequent sections of this study.
A consistent agreed definition of this particular group facilitates the discussion of whether this
group of people is currently offered adequate protection under international law and, if not,
what measures should be taken to fill eventual protection gaps. It also prevents
misunderstandings. Despite the fact that the different forms of environmental migration might
require different approaches, they all have need for some form of enforceable protection
under international law. A broad, flexible, definition is therefore to prefer.
51
52
IOM, Migration, Environment and Climate Change: Assessing the Evidence, p 19.
10
Part III: Protection gaps in the contemporary legal
framework
In addition to lacking a clear definition, environmental migrants do not fit neatly into any
international protection regime. As will be provided in this part, the most relevant regimes of
international law - refugee law, climate change law, the law on stateless persons, and human
rights law - do not address environmentally induced displacement adequately.53
The reason for this is that environmental migrants do not usually experience the sort of
persecution that is necessary to fulfill the requirement of refugee. Further, the persons in
question are not protected under current international environmental law agreements, as these
tend to focus on the relationships and rights of states rather than individuals. 54 Environmental
migrants cannot be considered completely stateless, even though a de facto statelessness is
present, because the definition of statelessness in the 1954 Convention Relating to the Status
of Stateless Persons is premised on the denial of nationality through the operation of the law
of a particular state, rather than through the disappearance of a state altogether. 55 Furthermore,
despite the fact that a diversity of human rights are affected by environmentally induced
migration, there are today no explicit human rights protections for it and little recourse for
potential violations.56
With the purpose of identifying a system adequate to cover the issue of environmentally
induced migration, this section also examines whether the system of Temporary Protected
Status offers protection to environmental migrants under domestic legislations, the EU
system, as well as under customary international law.
3.1 International refugee law

Common definitions of people displaced due to climate change are ‘environmental refugees’
or ‘climate refugees’. While this terminology might be useful from a political perspective, in
that it is a strong and definitive term that emphasizes the serious nature and urgency of the
issue, 57 it is legally flawed for several reasons that will be further examined in this section.
The author of this study therefore holds the position that international refugee law is, by and
large, an inappropriate normative framework for responding to the needs of those forced to
migrate internationally on account of environmental impacts. Nevertheless, it is admitted that
refugee law despite this has a useful standard to offer any new protection-oriented instrument,
namely the forward-looking assessment of potential, future harm. 58
53
54
Nishimura, ‘Environmental migrants’: Impediments to a Protection Framework and the Need to Inc orporate
Migration into Climate Change Adaptation Strategies, p 8; Docherty & Giannini, Confronting a Rising Tide: A
Proposal for a Convention on Climate Change Refugees, p 358.
55
McAdam & Saul, An Insecure Climate for Human Security? Climate-induced Displacement and International
Law, p 9.
56
McAdam, Climate Change, Forced Migration, and International Law , p 54.
57
58
11
3.1.1 The 1951 Refugee Convention
The use of the terms ‘climate refugees’ and ‘environmental refugees’ is inaccurate and
misleading from a sociological viewpoint as it presumes a single causality in the migration
decision. It is equally misleading from a legal perspective because, under international law,
the notion of ‘refugee’ has a distinct meaning.
While environmental factors can contribute to prompting cross-border movements, they are
not in and of themselves grounds for the granting of refugee status under the 1951 Refugee
Convention. Under the current state of international law, a refugee is someone who:
[O]wing to well-founded fear of persecution for reasons of race, religion, nationality,

membership of a particular social group or political opinions, 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 of the
country of his former habitual residence as a result of such events, is unable or, owing to
such fear, is unwilling to return to it. 59
Thus, a migrant that cannot establish persecution based on one these enumerated grounds,
such as an environmental migrant, is accordingly not normally provided the protections set
out by the convention. Only those migrants fleeing persecution or conflict in addition to
climate change impacts, and who cross international borders, will qualify as refugees and
receive the protections that this recognition entails.60 The terms of ‘climate refugee’ or
‘environmental refugee’ accordingly have no legal basis under contemporary international
refugee law.61
Some authors have indeed argued that environmental migrants are protected under the 1951
Refugee Convention. For example, Cooper argues that because persecution occurs when
government action harms individuals, the fact that governments knowingly harm individuals
by causing or contributing to the degradation of their environment mean that the criteria of
persecution is fulfilled.62 However, the argument is unconvincing for the reasons presented
hereinafter.
First, persecution entails violations of human rights that are considered especially grave due
to the inherent nature of the violation or because of the repetition of violations. 63 Although
adverse climate impacts such as desertification, rising sea levels or the increase in frequency
of extreme weather events are harmful, 64 they do not meet the threshold of persecution as
required under the 1951 Refugee Convention. This is the case even if the harm caused by
climate change would be considered breaches of socio-economic rights, which is far from
evident because the one causing the climate change, meaning then the violator of the socio-
economic rights, is most often not the government of the state of origin of the migrants.65
59
The 1951 Convention relating to the Status of Refugees as modified by the 1967 Protocol, Article 1A (2).
60
61
62
Cooper, Environmental Refugees: Meeting the Requirements of the Refugee Definition, p 501-528.
63
64
Conference on Climate Change and Migration: Addressing Vulnerabilities and Harnessing Opportunities.
65
12
Further, in refugee law, for deprivation to go from non-realization of human rights to
persecution, an element of discrimination is required which is linked to the five grounds
recognized in the convention.66 Thus, even if it would be accepted that the non-realization of
human rights that might be the consequence of the effects of climate change would be grave
enough to be covered by the 1951 Refugee Convention, it need to be established that the
violations were of a discriminatory nature, executed for reasons of race, religion, nationality,
membership of a particular social group or political opinions.
As mentioned, there are also difficulties with the defining of a persecutor. Refugees within the
Refugee Convention definition migrate as a result of persecution that is either executed by
their own government or otherwise by actors that the government is unable or unwilling to
protect them from.67 Contrariwise, an environmental migrant is not escaping his own
government. He would be seeking refuge in the states that actually contribute to climate
change, which means fleeing towards the persecutor. This de-linking of the persecutor from
the territory from which the migration occurs is accordingly unknown to current international
refugee law. This, in turn, poses another problem in defining this particular group of people as
refugees.
Furthermore, climate change will rarely be the sole reason for displacement but rather
exacerbate existing problems. It may provide a ‘tipping point’, but interact with other reasons
for displacement.68 The fact that it is problematic to establish that environmentally displaced
persons migrate for the specific reason of environmental changes also makes it difficult to
enable environmental refugees to obtain refugee status.69
Due to the foregoing causes, international refugee law is an inappropriate normative

framework for responding to the needs of those forced to migrate internationally on account
of environmental impacts. Migration due to climate change is accordingly not a reason in and
of itself for someone to be considered a refugee under the 1951 Refugee Convention. Only
those migrants fleeing persecution or conflict in addition to climate change impacts will
qualify as refugees and thereby receive the protections this recognition entails.
Nevertheless, the 1951 Refugee Convention has a useful standard to offer any new protection-
oriented instrument, namely the forward-looking assessment of potential, future harm. 70 The
1951 Refugee Convention’s definition of a ‘refugee’ is forward-looking in its assessment of
harm as it requires the imminence of harm if the refugee in question would return,71 and this
is clearly a prerequisite that environmental migrants would fulfill and a useful tool for
evaluating who should be offered protection. Such focus would benefit an instrument
encompassing also pre-emptive migration as is often the case with migration due to slow
onset events, as it would erase the need to prove that immense harm has already been
experienced, and instead focus on the fact that their homes are becoming more and more
inhabitable and migration is therefore required.
66
Foster, International Refugee Law and Socio-Economic Rights: Refuge from Deprivation, p 104-105.
67
McAdam, Climate Change, Forced Migration, and International Law, p 45.
68
p 359; McAdam, Climate Change, Forced Migration, and International Law , p 21.
69
Afifi & Jäger, Environment, Forced Migration and Social Vulnerability, p 76.
70
71
13
However, the 1951 Refugee Convention at the same time requires that persecution has already
occurred. This element of timing poses particular difficulties for pre-emptive migration due to
slow onset impacts of climate change. Thus, the differentiated characteristics of the reasons
for environmentally induced migration make it difficult to label all different forms refugees.
In some cases, migration might be the only option because of anticipated sea level rise or
increased desertification or drought that is expected to lead to difficulties with supporting
livelihoods. Thus, even if the environmental factors in question would be considered
persecution which is, as previously described, highly disputed, it is difficult to assess when
exactly that persecution would have occurred, and how to address situations where
persecution have not yet occurred but is expected to occur in near future and therefore
requires out-migration. Also, there would be great difficulties with assessing the cases where
environmental push factors has contributed to the migration decision, but is not the only
provocation. Thus, the argument that environmental refugees should be considered
encompassed under the 1951 Refugee Convention is a highly questionable one.
3.1.2 The 1969 OAU Refugee Convention
Under regional law one can find extensions of the definition in the 1951 Refugee convention.
For example, the definition of a refugee in the 1969 OAU Refugee Convention builds on the
one in the 1951 Convention, but is more plausible to encompass environmental migrants as it
is extended to include a person:
[C]ompelled to leave his place of habitual residence in order to seek refuge in another
place outside his country of origin or nationality because of events seriously disturbing
public order in either part or the whole of his country of origin or nationality. 72
Thus, according to this definition of a refugee, it seems likely that cross-border movements
which take place as a result of natural disasters may also, depending on the circumstances, be
encompassed.
However, when people displaced due to climate change in the past have fallen under the OAU
Convention’s auspices, other protection had been given by the host state, and therefore no
precedent exists to show that this convention would in fact cover such situation. 73 Further,
even though people fleeing environmental catastrophes are often granted refugee status in
neighboring states,74 receiving states have not declared that the reason for this would have
been their obligations under the OAU convention. 75 Thus, while it might be considered that
there is state practice to suggest that ‘environmental refugees’ is offered protection under the
OAU convention, the parties to the convention does not seem to interpret the treaty provision
in that way.76
Furthermore, even if the environmental factors causing the migration might be considered as
‘events seriously disturbing public order’, the 1969 OAU Refugee Convention is not forward-
looking in its assessment of harm. By contrast to the 1951 Refugee Convention, which
72
The 1969 Convention Governing the Specific Aspects of Refugee Problems in Africa, art 1 (2).
73
74
Note: For example, the Congolese fleeing the eruption of Mount Nyiragongo in 2002 received refuge in
Uganda. See: Edwards, Refugee status determination in Africa, p 227.
75
Edwards, Refugee status determination in Africa, p 227.
76
14
assesses the risk of potential future harm, the 1969 OAU Refugee Convention requires
evidence of an actual threat, and the protection under the convention is accordingly premised
on having already been compelled to leave the country of origin because of it.77 Thus, its
utility as a tool for providing pre-emptive protection for environmental migrants is limited.
Accordingly, there are no indications that environmental migrants are in fact offered
protection under the OAU convention, despite the fact that the plain language of its articles
might be interpreted that way. The convention has not even been applied in cases of pre-
emptive migration for other than environmental reasons. 78 Accordingly, the 1969 OAU
Refugee Convention offers just as little protection to environmental refugees as the 1951
Refugee Convention. There are thus motives to examine other areas of law to seek protection
for people displaced due to environmental factors.
3.2 International environmental law

As will be provided in the forthcoming section, international environmental law is, just as the
international law on refugees, limited in its application to people migrating as a result of
environmental factors.
The UNFCCC focuses mainly on climate change prevention and adaptation,79 and the
obligations under the UNFCCC are held between states. Thus, the convention focuses on
interstate relationships rather than individual’s rights and protection and does therefore not
offer adequate protection to people displaced due to environmental factors.80 This is clearly
displayed in article 1 of the UNFCCC which provides that the ultimate objective of the
convention:
[I]s to achieve, in accordance with the relevant provisions of the Convention, stabilization
of greenhouse gas concentrations in the atmosphere at a level that would prevent
dangerous anthropogenic interference with the climate system. 81
The convention does not mention environmental migration expressly. However, there are
several factors that indicate that the convention could be used as an important tool in the strife
towards protection of the climate change displaced. For example, article 8 provides that state
parties shall give extra consideration to special needs and concerns of developing countries
arising from the adverse effects of climate change. This pronouncement is followed by a list
of parties in need of such extra consideration: These are among others small island countries,
countries with low-lying coastal areas, countries with arid and semi-arid areas, countries with
areas prone to natural disasters, and countries with areas liable to drought and
desertification.82 Thus, even though the convention does not mention the rights and needs of
the individuals that migrate due to climate change, the convention recognizes that there is a
need to take measures and cooperate especially when it comes to those most affected. The
77
78
79
UNFCCC; Nishimura, ‘Environmental migrants’: Impediments to a Protection Framework and the Need to
Incorporate Migration into Climate Change Adaptation Strategies, p 10.
80
Docherty & Giannini, Confronting a Rising Tide: A Propo sal for a Convention on Climate Change Refugees,
p 358.
81
UNFCCC, art 1.
82
UNFCCC, art 8.
15
focus is more of a financial one rather than a rights-based one. However, it might be relevant
in the context of preventing and supporting countries affected by environmental migration.
Furthermore, the parties to the convention have actually, during the 2011 Cancun
Conference,83 identified environmentally induced migration as an important issue and even
agreed to undertake:
[M]easures to enhance understanding, coordination and cooperation with regard to

environmentally induced displacement, migration and planned relocation, where
appropriate, at national, regional and international levels .84
Notwithstanding the significance of this acknowledgement, these measures are voluntary and
lack specificity. The result of this lack of specificity is that subsequent adaptation plans and
activities commenced by parties pay little or no attention to environmentally induced
migration.85 Thus, in practice, the agreements have had little to no impact on the situation for
environmental migrants.
Although the Cancun agreements neither obliges its signatories to take action, nor stipulates
how any such implementation should occur, these agreements should be considered as
significant because they embody an international recognition concerning the fact that
environmentally induced migration might look very differently and thereby requires diverse
responses. Further, it proves that the UNFCCC is a proper forum for taking actions and
debating when it comes to at least financing and supporting environmentally induced
displacement, and to raise awareness concerning this widespread issue. These agreements
further indicate that the international community is receptive to the addressing of climate
migration as an issue within the UNFCCC framework, and to cooperate with regard to it.
Nevertheless, even though one might interpret this development as an opening for debate
concerning the issue within the UNFCCC framework, the contemporary system is not, for the
reasons provided for previously, adequate for offering protection for environmental migrants.
3.3 International law on stateless persons
Statelessness could be invoked by the population of low lying small island states that are
heavily affected by sea level rises to the extent that they will end up completely submerged. 86
83
The Calcun Conference was the 16th Conference held by the Parties to the UNFCCC. The conference was
held in Cancun 29 November – 10 December 2011. At the conference, the parties reflected a growing concern of
the international community for migrations induced by climate change, and the outcome of this concern was the
Calcun agreements.
84
UNFCCC, The Cancun agreements: Outcome of the work of the Ad Hoc Working Group o n Long-Term
Cooperative Action under the Convention, in Report of the Conference of the Parties on its sixteenth session,
para 14 (f).
85
86
IDLO, Mayer, Sustainable Development Law and Climate Change: International Law And Climate Migrants:
A Human Rights Perspective, 6. For a general description of the alarming situation concerning the Maldives and
Tuvalu, see: Mcinerney-Lankford, Darrow & Rajamani, Human Rights and Climate Change: A Review of the
International Legal Dimensions, p 14; UNFCCC, Views Regarding the Work Programme of the United Nations
Framework Convention on Climate Change, Ad Hoc Working Group on Long Term Cooperative Action under
the Convention, Submission of the Maldives on Behalf of the Least Developed Countries, p 19; Docherty &
Giannini, Confronting a Rising Tide: A Proposal for a Convention on Climate Change Refugees, p 356; Bush ,
16
This is the future for example in the cases of the islands of Kiribati and Tuvalu, the Marshall
Islands, the Maldives, and several Caribbean islands.87
However, application of the law on stateless persons would require that a state’s territory,
population or government disappear. 88 It does not extend to the situation of de facto
statelessness, namely where a person formally has a nationality, but which is ineffective in
practice.89 Yet, the territories of these low lying islands will become uninhabitable long before
the total submersion of the islands.90 Thus, people will be forced to migrate where there still
exist a government in practice. Therefore, the first gap when it comes to the application of the
law on stateless persons to environmental migration is that there is a need for protection
before there being a complete statelessness and such cases of pre-emptive migration would
thus not be covered by the law on stateless persons.
Further, even if pre-emptive environmental migrants would have been considered as stateless,
the 1961 Convention on the Reduction of Statelessness provides only that it is: ‘[D]esirable to
reduce statelessness by international agreement’.91 Thus, the convention does not provide any
enforceable right to a nationality and cannot be materialized into some concrete right to
protection under international law.
Similarly, the Convention relating to the Status of Stateless Persons cannot be considered to
offer adequate protection to environmental migrants. The convention only prohibits expulsion
of stateless persons lawfully staying on the territory, except on ground of national security or
public order.92 This provision might be contrasted with the provision of the 1951 Refugee
Convention that instead provides that states:
[S]hall not impose penalties, on account of their illegal entry or presence, on

refugees who, coming directly from a territory where their life or freedom was
threatened in the sense of article 1, enter or are present in their territory without
authorization.93
Thus, the law on stateless persons does not offer any right of protection to persons
environmentally displaced, even if this group of people would have been defined as stateless.
It only provides that persons that are already lawfully present in a receiving state cannot be
expelled if they have no state to return to.
Redefining Environmental Refugees, p 562; McAdam, Climate Change, Forced Migration, and International
Law, p 19.
87
p 356; Bush, Redefining Environmental Refugees, p 562; McAdam, Climate Change, Forced Migration, and
International Law, p 19.
88
IDLO, Mayer, Sustainable Development Law and Climate Change: International Law and Climate Migrants:
A Human Rights Perspective, p 6.
89
Law, p 9.
90
IDLO, Mayer, Sustainable Development Law and Climate Change: International Law and Climate Migrants:
A Human Rights Perspective, p 6.
91
The 1961 Convention on the Reduction of Statelessness, preamble, recital 2. See also: The Universal
Declaration on Human Rights, art 15.
92
The 1954 Convention relating to the Status of Stateless Persons, art 31.
93
The 1951 Refugee Convention, art 31.
17
Additionally, according to McAdam and Saul, the island citizens would not be protected
under the 1954 Convention Relating to the Status of Stateless Persons,94 because the
definition of statelessness in that convention is premised on the denial of nationality through
the operation of the law of a particular state, rather than through the disappearance of a state
altogether.95 Thus, for a person to be considered stateless under the 1954 Convention Relating
to the Status of Stateless Persons, a government must actively have withdrew the citizenship
of the person concerned, or denied the person citizenship initially, and that person would
therefore be considered stateless because he or she is not considered a national by any state
under the operation of its law. A person that is rendered de facto stateless, because the state in
which this person was considered a national has disappeared, is consequently not covered by
the definition of a stateless person in the 1954 Convention Relating to the Status of Stateless
Persons.
Thus, even in the case where an environmentally displaced person would have become de
facto stateless due to the submerging of an island where this person was a resident, the law on
stateless persons would not apply. Further, if the definition would have included de facto
statelessness, the convention does not offer adequate protection because it is not rights-
oriented and requires that the person is already lawfully staying on the territory of the
receiving state. The instruments’ narrowness leaves little scope for arguing for a broader
interpretation through which people whose State disappears would be encompassed. 96 This
would be the case only if the submerging state formally withdrew nationality and thereby
brought them within the legal concept of statelessness.
3.4 International human rights law

Climate change has an impact upon people’s enjoyment of their human rights. 97 Slow onset
environmental events such as desertification, sea level rise, coastal erosion, and drought as
well as rapid onset environmental events such as storms, floods, and tropical cyclones affect
agriculture, infrastructure and habitability of certain areas of the world. 98 In turn, these events
might threaten socio-economic human rights as for instance the right to life, food, water,
health, housing or culture.99
International human rights law provides minimum standards of treatment that states are
obliged only to afford persons within its jurisdiction, 100 or within its territory.101 A handful of
human rights principles are also recognized as giving rise to a duty for the receiving state not
94
Note: According to Article 1 of the 1954 Convention Relating to the Status of Stateless Persons, a stateless
person is ‘not considered as a national by any State under the operation of its law’.
95
Law, p 9.
96
Law, p 9.
97
98
99
UNFCCC, The Cancun agreements: Outcome of the work of the Ad Hoc Working Group on Long -Term
Cooperative Action under the Convention, in Report of the Conference of the Parties on its sixteenth session,
para 18; McAdam, Climate Change, Forced Migration, and International Law , 52; Nishimura, ‘Environmental
migrants’: Impediments to a Protection Framework and the Need to Incorporate Migration into Climate Change
Adaptation Strategies, p 11.
100
The European Convention for the Protection of Human Rights and Fundamental Freedoms, art 1.
101
The International Covenant on Civil and Political Rights, art 2 (1); McAdam, Climate Change, Forced
Migration, and International Law, p 52.
18
to expel persons from its territory.102 Human rights could accordingly offer some protection as
it would prevent expulsion of the environmental migrant through the principle of non-
refoulement.103 Yet, even though non-refoulement under contemporary treaty law and
customary international law includes non-return to persecution, torture, or cruel, inhuman, or
degrading treatment or punishment,104 it is far from evident that the principle would assist a
person displaced by environmental factors.105 On the contrary, it seems like this principle
would not be of assistance at all.
Environmentally induced displacement does not meet the international definition of torture,
which is defined as the intentional infliction of severe pain or suffering by a public official for
an enumerated purpose such as punishment or obtaining a confession. 106 Environmental
migration clearly does not meet any of the prerequisites of intentional infliction, public
official or enumerated purpose. It is equally difficult to define the environmental events that
are causing people to migrate as cruel, inhuman, or degrading treatment or punishment. This
is because inhuman treatment requires actual bodily injury or intense physical or mental
suffering, and degrading treatment means the humiliating or debasing of an individual and his
or her human dignity.107 There must accordingly be a risk that the person in question would be
subjected to these kinds of acts by the public authorities in the state of origin if expelled, or
else by people that the government in question is not capable of protecting the person from.108
If there is no such risk, as in the case of environmental migration, the principle of non-
refoulment does not apply.
Furthermore, despite the fact that environmental migration indeed jeopardizes a plurality of
economic and social human rights, current jurisprudence put forward that violations of such
rights would be inadequate to find a protection claim.109
When socio-economic human rights are violated as a result of climate change, there are
difficulties as to holding anyone responsible for these violations. 110 For the principle to apply
there is the pre-condition of the existence of a persecutor. Here, the same issue arises as arose
in the attempt to label environmental migrants as refugees: Namely, the lack of a persecutor.
If anyone would be considered a persecutor in this context, it would be the industrialized
countries that most affect the global warming. In this case, the receiving countries would then
be considered persecutors, as opposed to traditional protection which responds to flight from
harm that is inflicted or sanctioned by the home state. 111 Accordingly, international human
rights law does not have much to offer in the context of migration induced by environmental
factors.
102
Edwards & Ferstman, Human Security and Non-Citizens: Law, Policy and International Affairs, p 378.
103
Note: The principle of Non-refoulement in international law prohibits the returning of a victim of persecution
to his or her persecutor. Generally, the persecutor in mind is a state actor. See: Goodwin -Gill & McAdam, The
Refugee in International Law, p 344-345; IASC, Climate Change, Migration and Displacement: Who will be
Affected?, p 11.
104
Goodwin-Gill & McAdam, The Refugee in International Law, p 347-348.
105
106
The Convention against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment, art 1.
107
108
109
110
111
19
3.5 The system of Temporary Protected Status
As will be provided in this section, there exists some domestic and regional law, and
potentially even customary international law, that may allow for temporary protection of
certain groups of people environmentally displaced.
Numerous countries have encompassed provisions in their disaster management legislation

concerning assistance and protection for people that are affected by natural disasters in their
country.112 The EU has similarly developed a system that has the potential of offering
temporary protection to some people displaced due to environmental factors. 113 There is also
circumstantial evidence that states in the past have allowed for and actually received displaced
persons on their territory as a temporary measure on an ad hoc basis, such as in the context of
a flooding or storm.114 In these situations, such measures have been taken on humanitarian
grounds, not to adhere to obligations held under a particular domestic law or international
treaty.115 Thus, there are grounds for examining whether there might be a customary
international law based obligation to offer temporary protection to people fleeing
environmental disasters
3.5.1 Temporary Protected Status in domestic systems
Several states have enacted a legislative system of temporary protection for disaster-induced
cross-border displaced persons.116 For example, the US Immigration and Nationality Act
provides for the possibility to grant Temporary Protected Status for nationals of a foreign state
if:
(i) there has been an environmental disaster in the foreign state resulting in a substantial,
but temporary, disruption of living conditions; (ii) the foreign state is unable, temporarily,
to handle adequately the return of its own nationals; (iii) and the foreign state officially
has requested such designation. 117
At a first glance, this provision seems suitable to provide protection to people displaced due to
rapid onset environmental events, and the system has indeed been used for that purpose. For
example, Temporary Protected Status was granted in the case of Hurricane Mitch that affected
large parts of Central America in 1998. 118 Yet, in other situations of similar severity, such as
the floods in Haiti in 2008, this system was not activated. 119 The system is thus discretionary
and unreliable. Temporary Protected Status is thus not a strong, legal obligation to protect the
112
UNHCR, Protecting People Crossing Borders in the Context of Climate Change: Normative Gaps and
Possible Approaches, p 45.
113
Council Directive 2004/83/EC of 29 April 2004 on Minimum Standards for the Qualification and Status of
Third Country Nationals or Stateless Persons as Refugees or as Persons who Otherwise Need International
Protection and the Content of the Protection Granted, Article 2 (e).
114
115
116
UNHCR, High Commissioner’s Dialogue on Protection Challenges, Protection Gaps and Responses, p 4.
117
The Immigration and Nationality Act (USA) 8 USC, section 244.
118
119
20
individual, but rather an optional measure to take. 120 It is therefore an insufficient system as it
is not first and foremost a duty towards the individual.121 Further, the contemporary system in
the US is inadequate as it is only available to designated nationals already in the US at the
time of the disaster, and not to those fleeing subsequent to an environmental event. 122
There are similar systems that offer temporary protection for people displaced due to
environmental disaster in the Finnish Aliens Act,123 as well as in the Swedish Aliens Act.124
The Finnish legislation is the only domestic legislation in the EU explicitly granting
temporary protection.125 The Finnish legislation could thus serve as a model for filling the
protection gap at the domestic level to persons who cannot return safely to their home country
or country of permanent residence because of an environmental disaster. However, other
domestic progress can similarly be seen. Argentina recently adopted legislation that provides
for the possibility of access to provisional residence permits for those who do not have the
opportunity to return to their country of origin as a result of an environmental disaster. 126
Even though these models have the potential of covering migration due to rapid onset events,
their common problem is that their granting of protection depends on the discretion of
competent authorities rather than being based on a legal entitlement of persons concerned.127
Thus, the models do not provide any predictable protection. Further, even if applied, the
system is only capable of covering those displaced due to rapid onset events such as
environmental disasters. Those displaced due to slow onset events or other sorts of permanent
environmental harm is still left without protection.
3.5.2 Temporary Protected Status within the EU system
The EU Directive on ‘minimum standards for giving temporary protection in the event of a
mass influx of displaced persons and on measures promoting a balance of efforts between
Member States in receiving such persons and bearing the consequences thereof’128 would
have had the potential of providing protection for at least certain environmentally displaced.
However, this system has never been activated.129 Even if it would be, the directive requires
qualified majority of the council to be implemented, and it is unlikely for that to happen apart
120
121
122
123
The Aliens Act 2004 (Finland) 301/2004, Section 88 (1): ‘Aliens residing in the country are issued with a
residence permit on the basis of a need for protection if the requirements for granting asylum under section 87
are not met but the aliens are in their home country or country of permanent residence under the threat of death
penalty, torture or other inhuman treatment or treatment violating human dignity, or if they c annot return there
because of an armed conflict or environmental disaster. (emphasis added)
124
The Aliens Act 2005 (Sweden), 716/2005, Chapter 4, Section 2 (3) & Chapter 5, Section 1.
125
Kolmannskog & Trebbi, Climate change, Natural Disasters and Displacemen t: a Multi-track Approach to
126
UNHCR, High Commissioner’s Dialogue on Protection Challenges, Protection Gaps and Responses, p 4.
127
128
Council Directive 2001/55/EC of 20 July 2001 on Minimum Standards for Giving Temporary Protection in
the Event of a Mass Influx of Displaced Persons and on Measures Promoting a Balance of Efforts Between
Member States in Receiving such Persons and Bearing the Consequences Thereof.
129
Goodwin-Gill & McAdam, The Refugee in International Law, p 342.
21
from under very exceptional circumstances.130 Also, the directive would not take effect unless
the Council of the EU designates a particular flow as constituting a ‘mass influx’.131 Thus,
individuals will not be covered under this system, unless they arrive as part of a ‘mass influx’,
which must be considered as a great weakness of this system if the goal is protection for
displaced individuals.132
Another EU directive, namely the one ‘on minimum standards for the qualification and status
of third country nationals or stateless persons as refugees or as persons who otherwise need
international protection and the content of the protection granted’,133 has as its main objective
to make member states apply an uniform criteria when identifying individuals that should be
offered international protection and to provide them certain benefits. The directive grants
subsidiary protection to a:
[T]hird country national or a stateless person who does not qualify as a refugee but in
respect of whom substantial grounds have been shown for believing that the person
concerned, if returned to his or her country of origin, or in the case of a stateless person,
to his or her country of former habitual residence, would face a real risk of suffering
serious harm […] and is unable, or, owing to such risk, unwilling to avail himself or
herself of the protection of that country. 134
There is an uncertainty in this definition concerning whether the term ‘serious harm’ is
capable of covering an environmental disaster. Kolmannskog and Myrstad maintain that
people displaced due to environmental reasons could be protected by applying this regime of
temporary protection in the case of a sudden influx of people due to an environmental
disaster. 135 This is because there is no exhaustive list as to who may be covered. However,
the system has not yet been applied in such way. 136 Further, even if people displaced as a
result of an environmental crisis would be covered under this system, the same issue arises as
with the Temporary Protected Status as provided by domestic systems,137 namely that people
displaced due to permanent or long-lasting environmental damage would still not receive any
protection.
130
IDLO, Mayer, Sustainable Development Law and Climate Change: International Law And Climate Migrants:
A Human Rights Perspective, p 14; Kolmannskog & Trebbi, Climate change, Natural Disasters and
Displacement: a Multi-track Approach to Filling the Protection Gaps, p 727.
131
Council Directive 2001/55/EC of 20 July 2001 on Minimum Standards for Giving Temporary Protection in
the Event of a Mass Influx of Displaced Persons and on Measures Promoting a Balance of Efforts Between
Member States in Receiving such Persons and Bearing the Consequences The reof, arts 15 (2), (3).
132
133
Council Directive 2004/83/EC of 29 April 2004 on Minimum Standards for the Qualification and Status of
Protection and the Content of the Protection Granted.
134
Council Directive 2004/83/EC of 29 April 2004 on Minimum Standards for the Qualificat ion and Status of
Protection and the Content of the Protection Granted, Article 2 (e). (Emphasis added)
135
Kolmannskog & Myrstad, Environmental displacement in European asylum law, p 317.
136
Kolmannskog & Myrstad, Environmental displacement in European asylum law, p 317.
137
Note: As described in sub-section 3.5.1.
22
3.5.2 Temporary Protected Status under customary international law
Even in the absence of legislation, some countries have the practice of granting some form of
temporary protection to people who have been displaced due to a natural disaster.138 This
temporary protection is especially offered by neighboring states. 139 In some cases, state
practice is guided by human rights considerations, while in other cases practice explicitly
refers to natural disasters.140 The general practice of states to protect people fleeing due to
environmental events may be seen as a contribution to the developing of a right of temporary
protection on humanitarian grounds under customary international law.141
For various reasons, states may prefer ad hoc humanitarian responses, that permit them to
discretionary determine on a case-by-case basis whether or not to offer protection to migrants
fleeing due to environmental causes, and also what kind of protection that may be offered in
each case.142 However, this practice is an unpredictable protection tool due to this
discretionary ad hoc approach. Further, this practice of ad hoc protection seems to exist only
as a response to environmental disasters rather than covering also pre-emptive migration for
projected longer-term impacts. Thus, even if this practice would turn into a more reliable
basis of protection it would only cover certain types of environmental migration. Also, it is
dominated by humanitarian considerations rather than a rights-based approach and might
therefore not be the best solution to cover the issue of environmentally induced displacement.
Besides, even if some countries offer this kind of protection to environmental migrants fleeing
environmental disasters, article 38 of the Statute of the International Court of Justice defines
international custom as ‘evidence of a general practice accepted as law’.143 The protection
offered by states responding to environmental disasters has differed in its application and
extent. There seems to be dissenting opinions concerning whether such a right to protection
exists at all, in what cases the protection should be offered, and how the protection should be
construed. Thus, it is hard to define this practice as ‘evidence of a general practice’ which is
one of the two elements required for customary international law to be created. It is likewise
widely uncertain whether the second element of opinio juris144 exists. For a customary
international law norm to be created:
Not only must the acts concerned amount to a settled practice, but they must also be such,
or be carried out in such a way, as to be evidence of a belief that this practice is rendered
obligatory by the existence of a rule of law requiring it. 145
Accordingly, despite the fact that some people that have migrated cross-border due to
environmental disaster seem to have enjoyed at least some kind of temporary protection, there
138
139
Note: For example, the Congolese fleeing the eruption of Mount Nyiragongo in 2002 received refuge in
Uganda. See: Edwards, Refugee status determination in Africa, p 227.
140
The Nansen Conference: Climate Change and Displacement in the 21st Century, Chairperson’s summary,
para 22.
141
142
McAdam, Climate Change, Forced Migration, and International Law , p 106-107.
143
Statute of the International Court of Justice, art 38 1 (b).
144
Note: Under customary international law, opinio juris is the second element, along with state practice,
necessary to establish a legally binding custom. Opinio juris denotes a subjective obligation, a sense on behalf of
a state that it is bound to the law in question. Article 38 1 (b) of the Statute of t he International Court of Justice
requires that the general practice is ‘accepted as law’ for it to constitute customary international law, and it is this
element that shows opinio juris.
145
North Sea Continental Shelf Cases, para 77.
23
is not enough support to conclude that there is a norm under customary international law to
grant such protection. Even if not considered binding as custom, the practice is commendable,
but needs to be carried out in a systematic and less discretionary way.
3.6 A synopsis of the protection gaps reviewed

Having reviewed current international law, there is an evident lack of protection for
environmental migrants. There are accordingly several protection gaps under all studied
legislations as well as under the system of Temporary Protected Status.
First, environmental migrants are not protected under international refugee law because they
do not usually experience the sort of persecution that is necessary to fulfill the requirement of
refugee. Further, the de-linking of the persecutor from the territory from which the migration
occurs, as would be required to cover environmental migrants by the refugee concept, is
unknown to current international refugee law. Second, environmental migrants are not
protected under current international environmental law agreements, as these tend to focus on
the relationships and rights of states rather than individuals. 146 This system may thus be
capable of preventing environmental migration and perhaps of supporting the protection of
environmental migrants economically, but does not address the protection of individuals
displaced due to environmental factors. Third, the concept of statelessness does not extend to
the situation of de facto statelessness as would be required in order to encompass
environmentally induced displacement. The definition of statelessness in the 1954 Convention
Relating to the Status of Stateless Persons is premised on the denial of nationality through the
operation of the law of a particular state, rather than through the disappearance of a state
altogether.147 Fourth, there are today no explicit human rights protections for environmentally
induced displaced and little recourse for potential violations.148 Also, it seems farfetched that
the principle of non-refoulment would assist a person displaced by environmental factors,149
especially since current jurisprudence put forward that violations of socio-economic rights
would be inadequate to find such a protection claim. Fifth, the system of Temporary Protected
Status is discretionary and varies significantly among different domestic systems, EU
legislation and customary international law. Another major concern with the US system of
Temporary Protected Status is that it is only available to migrants that are already in the US at
the time of the disaster, and not to those fleeing subsequent to an environmental event. The
EU system requires ‘mass influx’ in order to be applied, and are thus not available to
individual situations. Even if this system were to be applied, people displaced due to
permanent or long-lasting environmental damage would still not receive any protection.
In the next chapter, the most prominent protection gaps will be addressed further, and
different means of filling these gaps will be provided and discussed in detail.
146
Migration into Climate Change Adaptation Strategies, p 8; Docherty & Giannini, Confronting a Rising Tide: A
Proposal for a Convention on Climate Change Refugees, p 358.
147
Law, p 9.
148
149
IASC, Climate Change, Migration and Displacement: Who will be affected ?, p 12.
24
Part IV: Possible means of filling the protection gaps
In the prior chapter this paper concluded that current international law does not adequately
address the protection needs of environmental migrants. This section consequently explores
possible ways of doing so.
Some academics have proposed an extension of the scope of the 1951 Refugee Convention in
order to encompass environmental migrants in the refugee definition. 150 Other academics
have instead proposed a protocol to the UNFCCC, or drafting of a new convention similar to
the 1951 Refugee, in order to increase the protection under international law of people
displaced due to environmental factors. 151 Despite the different approaches as to the solution
of the issue, the scholars seem to agree on the fact that some kind of drastic action is
warranted due to the scale of the problem and the lack of effective response to the problem.152
The advantages and disadvantages of these proposed means of filling the protection gaps will
be examined hereinafter. Furthermore, the prospects of filling protection gaps by extending
the system of Temporary Protected Status will similarly be examined.
4.1 Extending the scope of the 1951 Refugee Convention

As has previously been provided, the current regime for protection of refugees does not cover
environmentally induced migrants. This is, among other factors discussed under previous
sections,153 because the international definition of a refugee requires the element of
persecution. However, it might be argued that the definition of refugee could be extended in
order to provide this needed protection.
However, such solution is problematic for several reasons. The greatest problem with this
solution is that the existing refugee regime is already overstretched and it is difficult to
compel states to adhere to its principles. Due to the scale of the problem, many states are
unwilling to extend the protection to such an extent or even to protect the people already
covered by the convention.154
Additionally, there is institutional resistance with regard to an extending of the refugee

concept to cover environmental migration. UNHCR as well as other international agencies are
of the position that the terms ‘climate refugee’ and ‘environmental refugee’ should be avoided
as the terms are misleading and undermines the international legal regime for the protection of
refugees.155 The 2011 Nansen Conference similarly stressed that misleading and inaccurate
terms such as ‘climate refugee’ or ‘environmental refugee’ should be avoided. However, the
150
Refugees, p 296.
151
p 350.
152
p 350.
153
See section 3.1.
154
McAdam, Climate Change, Forced Migration, and International Law , p 199; Piguet & Pécoud, Migration
and Climate Change, p 141.
155
UNHCR, Climate Change, Natural Disasters and Human Displacement: a UNCHR Perspective, p 7.
25
need to clarify terminology was clearly emphasized.156 There seems to be an agreement that
term ‘refugee’ as defined under the Refugee Convention might lose some of its significance if
environmental migrants would be covered by the definition.
Another essential argument is that the concepts and mechanisms set out in the 1951 Refugee
Convention, such as the persecution concept, is not suitable in the context of climate change
and natural disaster. This is because of three main reasons. First, persecution entails human
rights violations that are especially grave owing to the inherent nature of the violation or
because of repetition of violations.157 There are great difficulties with covering environmental
changes under this perception first and foremost because no violations of human rights have
usually occurred in the context of environmentally induced migration. If any human rights
violations have occurred it would be violations of socio-economic rights, and such violations
have not previously been held to amount to persecution. The second issue is the defining of
the persecutor. Refugees within the Refugee Convention definition migrate as a result of
persecution either executed by their own government or by actors that the government is
unable or unwilling to protect them from. 158 Such a persecutor is challenging to define when it
comes to environmental migration. Third, the underlying idea of the refugee regime is that
refugee status substitutes for protection from the home states. Such perception is not suitable
for environmentally induced migration.
As the prerequisite of ‘persecution’ cannot be met by environmental migrants, an extension of

the definition of refugee under the 1951 Refugee Convention to include environmental
migrants would mean a total transformation of the refugee concept. Critics including the
UNHCR have therefore pointed out that any initiative to extend the refugee definition in the
1951 Convention would mean risking a full renegotiation of the Convention. In the current
political climate, such renegotiation could undermine the international refugee protection
regime altogether.159 Any such weakening should be avoided and therefore other options must
be explored.
4.2 Creating a new framework that encompasses environmental migration

As contemporary refugee law has been shown to be unsuitable in the context of protecting
environmentally displaced persons, it might seem appropriate to negotiate a new agreement
more suitable for this purpose. The advantages as well as disadvantages of such solution will
consequently be examined hereinafter. More specifically, this section will survey whether
international treaties, regional treaties, or soft law treaties would best serve the needs of
environmental cross-border migrants.
156
The Nansen Conference on Climate Change and Displacement in the 21st Century was an important step in
creating a closer dialogue between climate change scientists , humanitarian actors and policy makers, and brought
together 230 delegates from national governments, civil society, the humanitarian community and the scientific
community to explore the pressing need for policies and operational capacities to manage climate-change-
induced displacement.. See: The Nansen Conference: Climate Change and Displacement in the 21st Century,
Chairperson’s summary, para 21.
157
158
159
Filling the Protection Gaps, p 720; UNHCR, Climate Change, Natural Disasters and Human Displacement: a
UNCHR Perspective, p 9.
26
4.2.1 Creating a broad international hard law convention
Several authors argue that the protection gaps would be best filled by creating a new
international convention.160 The largest problem with this approach is the complexity of
environmental migration. As was shown above, environmental change will rarely be the sole
reason for flight and several factors that lead to displacement interact with each other.161
Thus, it is a difficult task to determine whether a person has fled due to environmental factors
rather than economic or other factors and a one-size fits all approach may therefore be
unviable. For the operation and application of a new environmentally-induced-displacement-
convention that would cover all different types of environmental migration, one must be able
to prove that environmental factors has caused the displacement in question, thus many would
be left in a legal vacuum.
Further, it seems probable that states will be reluctant to sign a treaty that encompasses all
different types of environmental migration. In fact, states presently seem to lack the political
will to negotiate a new instrument requiring them to provide international protection to
additional groups of people,162 and a group of people encompassing all environmental
migrants will be a particularly big group of people requiring protection. Thus, such a
convention would probably experience difficulties when it comes to getting signature states.
Another related problem is the question of definition. As previously provided,163 there is no

current universal definition covering the environmentally induced displaced. A convention
encompassing the complete group of ‘environmental migrants’ as defined in this study would
be a very wide convention, requiring states to offer protection to a large amount of people.
For all these reasons, it seems more likely that a different approach would lead to a successful
outcome, such as the creating of regional treaties more specified on the different needs and
impacts of environmental change in different regions.
4.2.2 Creating regional customized conventions
As most displacement will occur regionally and every region will be affected differently, 164 a
single worldwide convention might not be an optimal solution. There might therefore be a
greater possibility of developing regional treaties than international treaties to fill protection
gaps in the context of environmental migration. Environmental changes will certainly affect
different areas of the world in different ways, and there may be more political will at the
regional level to deal with the impact of it.165
Furthermore, in the present context, it is likely that negotiating an international convention on

environmental cross-border migration would be problematic due to incompatible interests of
the prospective countries of origin and the receiving countries of migration. It is imaginable
160
Kolmannskog & Trebbi, Climate Change, Natural Disasters and Displacement: a Multi-track Approach to
161
p 359; McAdam, Climate Change, Forced Migration, and International Law , p 21.
162
163
See section 2.3.
164
Myers, N, Environmental Refugees: A Growing Phenomenon of the 21st Century, p 609.
165
27
that the former would push for the maximum of rights for the migrants in question while the
latter would probably not accept more than minimal obligations. This is highly probable
taking into account the general restrictive attitude towards the protection of refugees. 166
For instance, Glazebrook contends that a regional approach in the Asia-Pacific area is crucial
for adaptation measures and for the organizing of disaster recovery, meaning among other
factors the responsibility for relocating displaced people in the region and making sure that
their rights are both promoted and protected.167 Thus, in so far as legal gaps would be capable
of being filled with drafting new conventions, these conventions should be regional rather
than international in order to more specifically direct the specific needs and interests of
different regions. However, an important factor that may not be forgotten is the differences as
to resources and economic means of different regions. Therefore, it is crucial that the
instruments in question include economic support or that other instruments, such as the
UNFCCC, provides obligations concerning economic and humanitarian assistance. These
instruments may in turn not always benefit from being regional rather than international.
Further, the focus of the convention or conventions in question should be on the migration
due to slow onset events. Migration as a result of rapid onset events has greater prospects of
being covered by the system of Temporary Protected Status or receiving humanitarian
assistance. People affected by slow onset climate events, on the other hand, has less prospects
of being covered by such system as there are difficulties with assessing to what extent the
environmental changes contribute to migration and if the migration is voluntary or not.
Nevertheless, over time, slow onset change will accelerate environmental push factors an
increasingly important position in the migration process, and the people affected by slow
onset climate events may be just as much in need of protection. Therefore, there is a need for
conventions that encompasses people migrating due to slow onset climate events. The
definition of what situation that is covered under the respective convention could differ due to
the different needs of different regions. However, as desertification, drought, or the rising of
sea levels for example could lead to the impossibility of return to the state of origin, the
protection offered by the conventions must be more than temporary.
4.2.1 Creating soft laws that may eventually lead to hard law treaties
Hard law treaties have the obvious advantage of being legally binding and to some extent,
depending on available legal remedies, enforceable. Treaties are especially useful to fill legal
gaps where international law does not provide an answer for important questions, as in the
case of cross-border movement resulting from environmental factors.
However, especially in such situations, it may be particularly difficult to reach a consensus

and it would probably take a very long time to negotiate a complete new instrument
encompassing environmental migration. Such lack of consensus at the negotiating stage might
lead to ratification gaps which undermine the effectiveness of the treaty. Such sequence of
events might consequently leave the persons in need of protection back in the legal vacuum
where they were initially. Therefore, a soft law approach might be a more feasible solution.
As indicated by the Cancun agreements,168 political will to negotiate such an instrument may
166
167
Glazebrook, Human Rights and the Environment, p 293.
168
See section 3.2.
28
exist to some extent. Also, a soft law approach might be more appropriate where there are
factual uncertainties, as it is more flexible and can consequently adapt to the diversity of
environmental factors that might induce migration.169
4.3 Adding a protocol to the UNFCCC

A climate-change agreement within the UNFCCC framework could be important with the
view of preventing environmental disasters and displacement. However, in the context of
protection of environmental migrants, the UNFCCC process has less to offer.
The UNFCCC has in the past had little focuses on remedies, and there has also been vast
unwillingness to incorporate human rights issues within the system. 170 Even so, a climate-
change agreement that focus on the economic prevention of environmental change and
disaster could indeed play an important role in protecting people migration as a result of
environmental factors, as it may reduce the amount of migration. Further, activities that are
linked to migration qualify for funding in the latest draft texts. 171 Despite the importance of
this kind of systems of recognizing displacement and ensuring funding and co-operation, the
UNFCCC will not provide an adequate solution when it comes to the protection of people
migrating due to environmental factors.
4.4 Extending the system of Temporary Protected Status

The contemporary system of Temporary Protected Status is not adequate to completely cover
environmentally induced migration.172 However, it might have the potential of developing
into a system more adequate of protecting at least those migrating as a result of rapid onset
climate events.
Today, the system does not provide a strong, legal obligation to protect the individuals
migrating due to environmental factors. It is rather an optional measure that is discretionary
granted nationals of a certain state. 173 The contemporary system in the US is further
inadequate as it is an agreement between the US and a state affected by a crisis, rather than a
duty to the individual. Also, a major concern with the US system of Temporary Protected
Status is that it is only available to designated nationals already in the US at the time of the
disaster, and not to those fleeing subsequent to an environmental event. 174 Therefore, the
contemporary system would have little relevance to citizens of many affected countries. The
system does not offer protection to citizens of countries such as Kiribati, Tuvalu, the Maldives
and Bangladesh,175 that would be part of a pre-emptive migration due to slow onset events.
169
170
Kolmannskog & Trebbi, Climate change, Natural Disas ters and Displacement: a Multi-track Approach to
171
172
See section 3.5.
173
Filling the Protection Gaps, p 727; UNHCR, Protecting People Crossing Borders in the Context of Climate
Change: Normative Gaps and Possible Approaches, p 46.
174
175
29
Neither does the system offer protection to those migrating as a result of rapid onset events
such as storms or floods, as they would be present in the state of origin at the time of the
disaster. Thus, in order for the system to at least be capable of protecting people migrating
due to rapid onset events, the prerequisite that the person must be present in the receiving
state already, at the time when the environmental disaster occur, must be erased.
Further, the contemporary system in the EU is inadequate as it requires a qualified majority of

the council to vote for the decision that an environmental disaster requires the invoking of the
Temporary Protection Directive mechanisms. Additionally, the unconditional linking of
Temporary Protected Status to ‘mass influx’ is a tremendous weakness of the EU system if it
aims at protecting displaced individuals. An individual might be in just as much need of
protection even though that person is not part of a ‘mass influx’.
Additionally, Temporary Protected Status may provide some protection for certain groups but
does not meet the needs of people who need to stay longer or permanently. That is one of the
reasons why the system ought to be developed to serve the needs of people migrating due to
rapid onset events. People migrating as a result of slow onset events are more probable of
requiring permanent protection as desertification, drought, or sea level rise for example is
most probably permanent procedures.
Despite its many weaknesses, the system of Temporary Protected Status has a great potential
of covering people migrating due to rapid onset climate events. It provides an opportunity to
protect people fleeing due to environmental disasters, which is a broad term capable of being
interpreted differently and thus adapt to a diversity of situations and needs, and it has in fact
proven to be flexible in the past. It has the potential of granting protection to people in need,
who does not have the opportunity to return to his or her state of origin for different reasons.
A great advantage, which also to some extent can be found in the refugee regime, is that the
regime is forward-looking in its assessment of who should be granted protection. Rather than
focusing on the question of why people moved, a more relevant approach in the context of
environmentally induced displacement is the focus on whether the migrants has the
opportunity to return to the state of origin or if there is a need to stay where they have
relocated. With regard to the assessment of the capability of return, such assessment should
concern the determining of the extent to which the area that the migrant left are habitable,
whether any sustainable source of livelihood remains, the extent to which national and local
governments continue to function effectively, whether their rights would be protected at
home, and other similar issues. If these prerequisites are replied in the negative, there is an
apparent need for the migrant in question to stay where relocated, and this need should also
mirror a right to do so until the time that this changes. This focus might eliminate some of the
difficulties of assessing slow onset disasters, including the voluntary-forced continuum.
The system of Temporary Protected Status also lack the prerequisite of persecution, which is a
requirement that is not met by environmental migrants, unless they have been exposed to
persecution in addition to the environmental push factor that caused the migration.
However, under the contemporary system of Temporary Protected Status, there is a

widespread discretion concerning who receives protection and who does not. The system
consequently needs to develop into a more reliable system under which people fleeing rapid
onset environmental events unquestionable are granted protection. To accomplish this, there
must be legal obligations requiring states to offer Temporary Protected Status to those in
need. One option might be the construction of a new convention, alternatively a soft law
instrument that provides guidelines on the subject.
30
Accordingly, the current system of Temporary Protected Status has a vast amount of gaps in
its protection of environmental migrants under EU legislation, domestic legislation, and state
practice respectively. However, the system would most probably be capable of covering those
displaced due to rapid onset events if it would be developed into a more comprehensive
system with clear obligations for the receiving states. As the contemporary system has been
shown to be discretionary and vary significantly, there is a great need to address this issue at a
regional and global level. A more systematic approach to Temporary Protected Status such as
a binding international framework is first and foremost envisaged, though it would require
concerted action and political will among States.
However, it would most probably be difficult to establish consensus concerning a hard law
instrument in the context, especially since this study has revealed that there is a vast amount
of different approaches and practice regarding the offering of protection to people migrating
due to rapid onset climate events. A soft law approach might therefore be more viable. A soft
law approach might also be more appropriate because there are factual uncertainties in the
context of environmental migration, and such instrument is often more flexible and would
thus be capable of adapting to the diversity of environmental factors that might induce
migration. A first step might be limited to systematic Temporary Protected Status for
nationals of countries recently affected by natural disasters who are already present in a given
country, which is comparable to the system already existing in the US, despite the fact that the
US system has proven to be rather discretionary than systematic. However, the international
community should in the long run aim for a more ambitious approach that would include the
granting of systematic Temporary Protected Status also to those arriving at national borders
following natural disaster in their home countries.
31
Part V: Concluding remarks
This paper has examined the rising phenomena of environmental migration. It has found that
environmentally induced migration is a widespread and complex issue that accordingly
requires reliable and flexible responses. It has examined sea level rise, rapid onset climate
events and slow onset climate events respectively, as people migrating due to these diverse
environmental factors have different protection needs under international law.
Next, the paper has examined the extent to which current international law provides
international protection in such cases. It has found that none of the existing treaties
specifically deal with the protection needs of such migrants.
Inter alia, it has been provided that environmental migrants are not protected under
international refugee law because they have usually not been exposed to persecution. Further,
environmental migrants are not protected under current international environmental law
agreements, as these tend to focus on the relationships and rights of states rather than
individuals. The law on stateless persons does not cover environmental migration because the
concept of statelessness does not extend to the situation of de facto statelessness. Also, the
definition of statelessness in the 1954 Convention Relating to the Status of Stateless Persons
is premised on the denial of nationality through the operation of the law of a particular state,
rather than through the disappearance of a state altogether. Human rights law cannot be
considered to adequately cover environmentally induced migration as there are no explicit
human rights protections for this specific group, and the principle of non-refoulment does not
seem to assist a person displaced by environmental factors, as current jurisprudence put
forward that violations of socio-economic is insufficient to find such a protection claim. The
paper thus concluded that current international treaty law does not address the protection
needs of this population.
The paper also explored the ad hoc practice of some states to provide temporary humanitarian
protection. This practice, defined as Temporary Protection Status in some domestic legislation
as well as in EU law, has been proven to be discretionary and to vary significantly in
application and content. Another major concern with the US system of Temporary Protected
Status is that it is only available to migrants that are already in the US at the time of the
disaster, and not to those fleeing subsequent to an environmental event. The EU system
requires ‘mass influx’ in order to be applied, and are thus not available to individual
situations. Further, even if this system were to be systematically applied, it would only offer
temporary protection and people displaced due to permanent or long-lasting environmental
damage would thus still not receive any protection.
The paper next explored a multitude of potential means of filling the identified legal gaps.
However, choosing a combination of the solutions examined in the previous chapter would
probably prove to be the most effective way of filling the protection gaps. Such complex issue
as environmental migration needs to be dealt with in several forums and at several levels.
The system of Temporary Protected Status has proven to be the system with the highest
potential of providing building blocks for new means of offering protection to environmental
migrants that migrate due to rapid onset climate events. This system primarily offers
protection to those that cannot return to their state of origin because a return is not possible,
permissible, or reasonable owing to circumstances in their state of origin and possibly to
32
personal conditions. Accordingly, the system is flexible and therefore capable of adapting to a
diversity of situations, as is necessary for a protection system in this context. Yet, the system
benefits primarily those who migrate due to rapid onset events and therefore require
temporary protection until being able to return to their state of origin. This system thus has
great potential to offer protection to people migrating as a result of environmental disasters,
especially if it would be developed into a less discretionary and more systematic and reliable
system. This paper therefore suggests that the system of Temporary Protected Status would be
converted into an international treaty system.
This paper has further provided that some kind of permanent protection status would be
necessary in some cases in addition to temporary protection. Thus, there needs also to be
adequate protection to those migrating due to slow onset climate events. The creation of an
instrument capable of addressing the needs of people migrating as a result of slow onset
climate events needs to start at numerous levels and in a number of forums. First, states must
adapt their domestic legislation in order to better respond to environmentally induced
displacement. In this regard, the Finnish legislation might serve as a good model because it
focus more on the impossibility or unwillingness to return to the state of origin, rather than on
the harm and impacts already experienced. The paper has then envisaged a soft law document
is as a first initiative, or at least an initiative that might work as a substitute during the
negotiation phase of a new convention or new conventions. Such a document would
advantageously outline the existing law as interpreted in a context oriented and dynamic way,
and also list examples of recommended practice and domestic legislation that at least put
political pressure on states to follow good practice. The instrument needs must be forward-
looking in its assessment of harm because, in the context of slow onset climate events, the
already experienced harm might not be severe. However, there might still be an impossibility
of return to the state of origin due to a variety of factors.
Independently of what means are chosen to address this widespread and complex issue, there
is a fundamental challenge with regard to the implementation and access to protection in the
current political climate. Thus, even if there would be appropriate instrument in place to
address this issue, the concern is that the people in the most need might nevertheless not
receive the protection offered. In Europe, for example, there is already elaborate asylum
legislation. Despite this, many prospective asylum seekers never gets the opportunity to file
an application because of strict visa regimes, agreements between certain European and North
African countries on the Mediterranean, and security forces at sea or on land. Access may
become even more difficult if the quantities of legitimate asylum seekers increase further.
This is an issue beyond law, and a hot topic in politics, especially during economic
downturns. It is also a matter of how people perceive their moral duties. A necessity in order
to solve this issue is consequently public communication and the rising of awareness
concerning environmentally induced migration.
Hopefully, such awareness will remind us of that we are all vulnerable and this will give rise
to a new solidarity.
33
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JURIDICUM

SPRING SEMESTER 2015

RV4460 Legal Science C (Bachelor Thesis), 15 credits

1969 OAU 1969 Convention Governing the Specific Aspects

IASC Inter-Agency Standing Committee

IDLO International Development Law Organization

IOM International Organization for Migration

IPCC Intergovernmental Panel on Climate Change

OHCHR Office of the High Commissioner for Human Rights

UNFCCC United Nations Framework Convention on Climate Change

UNGA United Nations General Assembly

UNHCR United Nations High Commissioner for Refugees

Part II: The issue of environmental migration............................................................................ 4

Part III: Protection gaps in the contemporary legal framework ............................................... 11

Part IV: Possible means of filling the protection gaps ............................................................. 25

Part V: Concluding remarks ..................................................................................................... 32

1.1 Background description

1.4 Method and materials

2.1 The magnitude of the issue

Accordingly, experts in environmental communities as well as in human rights communities

2.2 The complexity of the issue

2.2.1 Sea level rise and migration

2.2.2 Rapid onset climate events and migration

2.2.3 Slow onset climate events and migration

2.3 Terminological and conceptual issues

2.3.1 The difficulties with establishing a universal definition

To define environmental migrants is complex due to a variety of factors. For example,

2.3.2 Proposed terminology

3.1 International refugee law

[O]wing to well-founded fear of persecution for reasons of race, religion, nationality,

Due to the foregoing causes, international refugee law is an inappropriate normative

3.1.2 The 1969 OAU Refugee Convention

3.2 International environmental law

[M]easures to enhance understanding, coordination and cooperation with regard to

3.3 International law on stateless persons

[S]hall not impose penalties, on account of their illegal entry or presence, on

3.4 International human rights law

Numerous countries have encompassed provisions in their disaster management legislation

3.5.1 Temporary Protected Status in domestic systems

3.5.2 Temporary Protected Status within the EU system

3.6 A synopsis of the protection gaps reviewed

4.1 Extending the scope of the 1951 Refugee Convention

Additionally, there is institutional resistance with regard to an extending of the refugee

As the prerequisite of ‘persecution’ cannot be met by environmental migrants, an extension of

4.2 Creating a new framework that encompasses environmental migration

Another related problem is the question of definition. As previously provided,163 there is no

4.2.2 Creating regional customized conventions

Furthermore, in the present context, it is likely that negotiating an international convention on

However, especially in such situations, it may be particularly difficult to reach a consensus

4.3 Adding a protocol to the UNFCCC

4.4 Extending the system of Temporary Protected Status

Further, the contemporary system in the EU is inadequate as it requires a qualified majority of

However, under the contemporary system of Temporary Protected Status, there is a

Treaties and Covenants

Convention on the Reduction of Statelessness, 30 August 1961, 989 U.N.T.S. 175

OAU Convention Governing the Specific Aspects of Refugee Problems in Africa, 10

Statute of the International Court of Justice, 26 June 1945, 33 U.N.T.S. 993

Treatises and other books

Chimni, B.S., International refugee law – A reader, Sage Publications 2000

Mayer, B, International Law and Climate Migrants: A Human Rights Perspective,