The “Research Handbooks on Climate Law” are intended to be a “timely series [bringing] together critical and thought-provoking contributions on the most pressing topics and issues in the field of climate law.” This title in the series covering Climate Change, Migration and the Law does that, and more.
The contributors to this Research Handbook are drawn from institutions from different parts of the world. The editors, Benoît Mayer and François Crépeau, are law professors from the Chinese University of Hong Kong and McGill University, Canada respectively. Mr. Crépeau was the United Nations Special Rapporteur on the Human Rights of Migrants from 2011–2017. The chapters they commissioned are written by professors, practitioners, researchers, and international program officers from Australia, Belgium, Brazil, France, the Netherlands, South Africa, Spain, the United Kingdom, and the United States, and organizations such as the Climate and Migration Coalition, the International Organization for Migration (IOM), the International Labour Organisation (ILO), the South American Network for Environmental Migration (RESAMA), and the World Bank. This global perspective enriches the book.
In the first chapter, editors Mayer and Crépeau provide a wonderful introduction that summarizes the ideas and debates on climate change, migration, and the law set forth by the contributors. The remaining twenty chapters of the book are split into three parts. The content of each part is summarized below. The book concludes with an “Afterword” by James C. Hathaway and an Index.
Part I: Perspectives on the Climate-Migration Nexus
Robert McLeman's chapter on “Climate-related Migration and its Linkages to Vulnerability, Adaptation, and Socio-Economic Inequality: Evidence From Recent Examples” focuses on drought-related migration in West Africa, flood-related migration in Bangladesh, and post-hurricane migration in Central America. This chapter importantly demonstrates the complexity of the climate-migration nexus with social, economic, political, technological, and cultural processes interacting on multiple levels.
In his chapter, “‘Climate-induced Migration’: Ways Forward in the Face of an Intrinsically Equivocal Concept,” Calum T. M. Nicholson argues from a review of the existing literature that “climate migration” is a “meaningless abstraction.” The incoherence and equivocation of “climate migration” cripples empirical analysis, is pathological, and disaggregates power from accountability.
Carol Farbotko's chapter on “Representation and Misrepresentation of Climate Migrants” sets forth the complexity of defining “climate migration” and “climate migrants.” Pacific islanders do not consider themselves passive victims or “climate refugees.” They have agency, as is evidenced by the Kiribati government's “Migration with Dignity” policy. Perspectives on climate migration may reflect Eurocentric cultural and political values and not those of the populations affected.
Part II: Existing Laws and Institutions
This part has eleven chapters. Below are the titles followed by summaries of the relevant content.
Christel Cournil's chapter on “The Inadequacy of International Refugee Law in Response to Environmental Migration” focuses on the 1951 Geneva Convention relating to the Status of Refugees and its inadequacy for addressing environmental migration issues. The Geneva Convention is outdated as it focuses on the fear of personal persecution and not “environmental persecution” for refugee status, which is difficult to prove in climate-induced migration cases.
Elizabeth Ferris describes “The Relevance of the Guiding Principles on Internal Displacement for the Climate Change-Migration Nexus.” She argues that the 1998 Guiding Principles should be the primary normative framework for protecting climate migrants. She outlines the difficulties in determining the multiple causes of displacement: temporary, cyclical, permanent, forced, voluntary, and anticipatory. She discusses how the Guiding Principles would apply to sudden-onset and slow-onset disasters.
Siobhán McInerney-Lankford argues in her chapter on “Climate Change, Human Rights and Migration: A Legal Analysis of Challenges and Opportunities” that, while legal protection gaps exist, human rights law can be used to provide real substantive protection to climate migrants.
Ademola Oluborode Jegede's chapter on “Indigenous Peoples, Climate Migration and International Human Rights Law in Africa, with Reflections on the Relevance of the Kampala Convention” generally describes the indigenous peoples-climate change/migration nexus, United Nations human rights instruments and frameworks for the protection of indigenous peoples, and the provisions of the Kampala Convention that can be used to protect climate migrants.
In “International Climate Change Law Perspectives,” Maxine Burkett asserts that there is a paucity of law on climate-related migration and displacement. She describes existing laws such as the law of cross-border migration, the law governing statelessness, and the United Nations Framework Convention on Climate Change (UNFCCC) framework. She suggests other legal instruments, such as human rights-related instruments, that could be useful in assisting climate migrants.
Sébastian Jodoin, Kathryn Hansen, and Caylee Hong's chapter on “Displacement Due to Responses to Climate Change: The Role of a Rights-Based Approach” focuses on how global efforts to fight climate change, such as renewable energy initiatives, can lead to climate-induced displacement and migration, and to human rights instruments that can be used to protect climate migrants.
Benoît Mayer's contribution on “Climate Change, Migration and the Law of State Responsibility” delves into the international law aspects of the climate-migration issue. He concludes that “there is little justification for international governance on climate change migration.” The states in questions should be responsible for paying reparations to injured individuals, whether or not they are climate migrants. He does not wish to bring the “ill-defined concept of ‘climate migration’” to international scrutiny.
Erika Pires Ramos and Fernanda de Salles Cavedon-Capdeville's chapter covers “Regional Responses to Climate Change and Migration in Latin America.” They describe the work of the many organizations involved in protecting climate migrants. They also discuss national responses, which include using pre-existing migration categories or creating new ones such as Cuba's regulation that states that people displaced by natural disasters are refugees.
Gervais Appave, Alice Sironi, Mariam Traore Chazalnoël, Dina Ionesco, and Daria Mokhnacheva focus on the IOM's work in their chapter on “Organizational Perspectives: International Organization of Migration's Role and Perspectives on Climate Change, Migration and the Law.” A major development noted is that IOM became part of the UN system in 2016. The IOM will have expanded opportunities to help climate migrants in that institutional setting.
Another institution involved with protection climate migrants is the ILO. Sophia Kagan, Meredith Byrne, and Michelle Leighton discuss the impact of climate change on labor markets and the ILO's complementary work to provide research, policy advice, and technical support for organizations involved in labor migration and environmental change in their chapter on “Organization Perspective from the International Labour Organization.”
Finally, Alex Randall covers “Engaging Media on Climate-Linked Migration” and discusses the importance of journalists crafting representative stories by considering diversity of location, diversity of movement type, talking about solutions, and about migration as a solution.
Part III: Ways Forward?
In her chapter on “Ethical Duties to Climate Migrants,” law professor Katrina M. Wyman surveys the philosophical literature. The main arguments grounding ethical obligations of countries to assist climate migrants are corrective justice, “the rescue principle,” and the right of necessity/proviso. The literature also includes discussion of whether it is better to resettle or provide monetary compensation for climate migrants, and decentralized or centralized ways for states to allocate responsibility among themselves to assist climate migrants. She notes in her conclusion that the literature seems to be sometimes “divorced from political realities” and “preoccupied with…the small island states.” She suggests that the focus of the literature should be broadened to cover ethical obligations to climate migrants from other developing countries as well as internal migration from a human rights-based perspective, and poses further questions for future research analysis.
Professor Chloé Anne Vlassopoulos addresses whether political activities to address climate migration definitional issues are stalling in her chapter on “When Climate-induced Migration Meets Loss and Damage: A Weakening Agenda-Setting Process?” She traces the history of attempts to define the problem of climate-induced migration from its inception in the 1970s as part of “environmental migration” to the introduction of the concept of “loss and damage” by the Alliance of Small Island States (AOSIS) in 1991 to the inclusion of both climate migration and “L&D” in the Cancún Agreements in 2010 and the Paris Agreements of 2015, with climate migration being recognized as a part of L&D. She concludes that there is no consensus on how to define “climate migration.” And, after “climate migration” was integrated into L&D and considered a case of non-economic loss and damage, it risks not being recognized as a specific issue for a global policy response.
François Gemenne is an environmental migration specialist. In his chapter on “The Refugees of the Anthropocene,” he argues for the use of the term “climate refugees” in spite of legal scholars (and several contributors to this book) considering the term “a misnomer, unfit to describe the situation of those displaced by the impacts of climate change or other environmental disruptions.” The 1951 Refugee Convention does not mention environmental change as a form of persecution for granting the right to refugee status. Mr. Gemenne counters that, in the Anthropocene (the “age of humans” with “humans have become the driving force of transformation of the planet”), we should not de-politicize environmental migration by refusing to use the term “climate refugees.” He writes,
[W]e should talk of climate refugees because climate change is a form of political persecution, and because the term ‘migrant’ has sadly become a life-threatening label, in a world marred by populism and xenophobia…[C]limate change is a form of persecution against the most vulnerable.
Dutch professors, Frank Biermann and Ingrid Boas, in their chapter “Towards a Global Governance System to Protect Climate Migrants: Taking Stock” argue for a sui generis regime for assisting climate migrants based on five core principles: 1) the principle of planned re-location and resettlement; 2) the principle of resettlement instead of temporary asylum; 3) the principle of collective rights for local populations; 4) the principle of international assistance for domestic measures; and 5) the principle of international burden-sharing. They suggest the principles could be folded into a Protocol on Recognition, Protection and Resettlement of Climate Migrants (“Climate Migrant Protocol”) to the United Nations Framework Convention on Climate Change (UNFCCC). The UN Development Program and the World Bank would serve as the main implementing agencies, with financial support coming from a Climate Migrant Protection and Resettlement Fund. They conclude by calling for early action on this global governance plan to help climate migrants.
Ilona Millar and Kylie Wilson from Baker & McKenzie's climate change practice group contributed a chapter on “Towards a Climate Change Displacement Facility.” They argue for establishing the facility within the UNFCCC and Paris Agreement framework as they can address the multi-causal, complex factors of climate-induced displacement. They review the history of the 2013 Warsaw International Mechanism for Loss and Damage Associated with Climate Change Impacts and its extension under Article 8 of the 2015 Paris Agreement to highlight that the UNFCCC is already discussing the causes and impacts of climate-induced displacement. They conclude with a potential mandate, sources of funds, and governance structure for the proposed climate change displacement facility.
Susan F. Martin, Professor Emerita and founder of the Institute for the Study of International Migration at Georgetown University, contributes a chapter on “Towards an Extension of Complementary Protection?” She argues that existing frameworks for protecting climate migrants are weak and few. She discusses efforts to fill the protection gap such as the complementary 2011 Nansen Initiative, its Agenda for Protection, its Platform on Disaster Displacement, and the 1998 Guiding Principles on Internal Displacement generally. She concludes by asserting the importance of state-led, inclusive complementary protection processes that are informal, ad hoc, and non-binding.
The brief afterword by James C. Hathaway, Professor of Law and Director of the Program in Refugee and Asylum Law at the University of Michigan, addresses the conceptual challenges for international lawyers in dealing with climate change-induced migration. He also supports claims by several of the contributors that climate migrants can claim refugee status as “climate change is often discriminatory in design or at least in outcome.” But he also agrees with other contributors that climate migrants can rely on general international human rights law, labor migration norms, soft law, as well as creatively re-imagining legal norms. He concludes by complimenting the book editors for commissioning contributions that present the intellectual dissonance and disorder in the issues faced to better enable everyone to move forward in protecting climate migrants.
This Research Handbook is a good candidate for purchasing as a digital copy, because the contributions mostly stand alone with few internal references to other chapters in the book. They can be read as if they were journal articles. However, read cover to cover, the reader can see the connectedness of the chapters, the different approaches to tackling similar issues, and the challenges for policy- and lawmakers.
Because this area of law is in flux, it seems as if the series editors almost need to solicit new contributions for a Research Handbook on Climate Change, Migration and the Law “Part II.”
