Climate Change Induced Migration, Conceptual and Legal Overview. An Update in the Light of COP26.
Environment & Human Rights Researcher
Global Human Rights Defence
I am the same as people who are fleeing war.
Those who are afraid of dying, it is the same as me.
Mr. Ioane Teitiota 
The adverse impact of climate change on human settlement and mobility patterns is evident. The most pressing concern is that climate change has the greatest effect on the weakest and most exposed populations (IPCC, 2014) such as migrants and those who are unable and too poor to move. A changing climate can reduce people’s freedom by determining where, how, and when to move, leading to displacement or, in contrast, reducing mobility. Therefore, climate change is a major threat to human rights (Bettini, 2017).
Because people rarely migrate only for environmental reasons and given the complexity of the migration issue, it is hard to estimate exactly the number of people displaced or migrated specifically due to climate change. Available numbers are alarming. The last report released by the International Federation of Red Cross and Red Crescent Societies states that a vast majority (98%) of the 30.7 million people displaced in 2020 “was in the context of weather and climate hazards – mostly floods and storms, but also wildfires, landslides, extreme temperatures and drought” (IFRC, 2021, p. 4). The World Bank estimation suggests that there could be as many as 216 million climate migrants by 2050 (Clement et al., 2021).
The international community has recognized climate change induced migration by holding the United Nations Framework Convention on Climate Change (UNFCCC) and other mechanisms as the primary instruments to combat the issue. In the light of the 2021 United Nations Climate Change Conference (COP26), the article aims to assess how the conference addresses the challenges posed by climate-induced migration. Several preparatory steps have to be taken. First, it is necessary to understand the nature of human mobility in the context of climate change. This mobility has different forms and names which imply particular legal jurisdiction and, thus, it deserves a thorough investigation. Next, the article elaborates on the existing protection mechanisms and their limitations. Further, the general UN’s perspectives and approach to dealing with the issue at stake are formulated. Finally, we will be able to examine the praxis at COP26.
Typology of human movement in the context of climate change and implications for law
The definitions related to climate change induced migration that one might encounter are not necessarily legal terms. “Environmental refugee” is not a legal term. There are others which are used interchangeably – climate refugees, forced climate migrants, environmentally displaced persons, etc. (Deshwal & Shrivastava, 2019). Moreover, climate change induced human movement can take on many forms. Distinguishing the type of movement is important both thematically and legally. Furthermore, the choice of the terms determines applicable policy frameworks (Ferris, 2020).
Three types of human movement in the context of climate change were outlined as a result of a pivotal decision of the Conference of the Parties to the UNFCCC in Cancun (COP16) in December 2010: displacement, migration, and planned relocation. Parties recognized the potential impact of climate change on the movement of people and invited all parties to the Convention “to enhance action on adaptation under the Cancun Adaptation Framework … by undertaking inter alia, the following: … (f) Measures to enhance understanding, coordination and cooperation with regard to climate change induced displacement, migration and planned relocation, where appropriate, at national, regional and international levels” (UNFCCC, 2011)
Displacement is regarded as forced movement, whereas migration is understood as predominantly voluntary movement. Planned relocation describes a process wherein individuals or groups are physically relocated – both, forcefully or voluntarily – from homes and permanently settled in new locations (Ferris, 2020). The key consideration here is the element of choice (Warner et al. 2013). For instance, a person escaping from an upcoming cyclone and either fleeing to an evacuation center by herself or evacuated by authorities would fall into the displacement category (Ferris, 2020).
However, displacement, migration, and planned relocation are not the only mobility responses to the impacts of climate change. Immobility – or, so-called “trapped” populations – has gathered a fair amount of political attention in recent years (Weerasinghe, 2021). The term “trapped” regards those who are unable to move out of locations of high exposure to climate change and its impacts due to financial, political, or other reasons (Ferris, 2020).
Today, policymakers and scholars, as well as organizations engaging with climate change and migration (International Organization for Migration (IOM), UN High Commissioner on Refugees, among others), embrace the multifaceted character of migration and frame the issue in a nuanced manner accordingly to the four outlined forms (Bettini, 2017; Ferris, 2020).
Furthermore, for legal reasons, when relocated people remain within the boundaries of their own country they are referred to as “internally displaced people” and “refugees” when they cross national boundaries (Atapattu, 2009). The first category falls into the states’ sovereign jurisdiction and international regulatory instruments are yet to be established (Deshwal & Shrivastava, 2019). The second category is regulated by the 1951 Refugee Convention, which defines a refugee as
“[o]wing to a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable, or owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence as a result of such events, is unable or, owing to such fear, is unwilling to return to it,” (Convention relating to the Status of Refugees, 1951, art. 1(2)).
Accordingly, someone fleeing their country because of environmental reasons, in particular those imposed by climate change, does not meet the conditions necessary to be considered a refugee (Atapattu, 2009; Mayer, 2011). Further, the Refugee Convention was formulated as a result of the Second World War to provide asylum to people facing political atrocities. Since it was never intended to address any other category of migrants, the Refugee Convention cannot be interpreted as providing any relief to people threatened by environmental or climate change factors (Deshwal & Shrivastava, 2019).
The Existing Model for Protection of Environmentally Displaced People
The United Nations Climate instruments are the key tool for dealing with the human mobility problem within the climate change context (Deshwal & Shrivastava, 2019). Here, the United Nations Framework Convention on Climate Change (UNFCCC), the Cancun Adaptation Framework, the Warsaw Loss and Damage mechanism, and the Paris Agreement are vital to the understanding of the complexity of the matter.
2.The United Nations Framework Convention on Climate Change
The United Nations Framework Convention on Climate Change does not touch upon the issue of mobility of the population affected by climate change or other environmental factors. However, as we will later see, other instruments originate in it as well as this certain provisions of the Convention impose obligations on the international community that can be interpreted as pertinent to the environmentally displaced. Articles 4(4), 4(3), 4(9) interpreted together require developed country parties to assist the developing country parties in dealing with the adverse effects of climate change, specifically, by providing them with adequate funding and transfer of technology (Deshwal & Shrivastava, 2019).
2. The Cancun Adaptation Framework
During COP 16 in 2010, the Parties established the Cancun Adaptation Framework and the Adaptation Committee. This was a very important step towards international recognition of the issue of mobility of the population affected by climate change. The international community recognized the issue of mobility induced by climate change and its adverse environmental factors and also acknowledged that the issue is transboundary (Deshwal & Shrivastava, 2019). Paragraph 14(f) of the Cancun Adaptation Framework calls on the country parties to take “measures to enhance understanding, coordination and cooperation with regard to climate change induced displacement, migration and planned relocation, where appropriate, at the national, regional and international levels” (UNFCCC, 2011, art. 2(14f)).
3.The Warsaw International Mechanism for Loss and Damage
In November 2013, the COP19 established the Warsaw International Mechanism for Loss and Damage (WIM) to address loss and damage associated with impacts of climate change in developing countries that are particularly vulnerable to them (Doelle, 2014). The origins of the WIM can be found in Article 4(4) of the UNFCCC that calls for developed country Parties to “assist the developing country Parties that are particularly vulnerable to the adverse effects of climate change in meeting costs of adaptation to those adverse effects” (UNFCCC, 1992, art. 4(4)).
Initially, WIM included nine action areas in its work plan (UNFCCC, 2013). Action 6 was specifically related to climate change induced migration and called upon the parties to observe, analyze and submit data with respect to projected migration and displacement. Thus, the WIM aimed to create a governance forum to assess the readiness to deal with climate-induced migration (Deshwal & Shrivastava, 2019).
In 2016, the Task Force on Displacement was established under the WIM and, in 2018 at COP24, states adopted the recommendations developed by the Task Force (Decision 10/CP.24). Key takeaways from the recommendations included addressing all forms of human mobility linked to climate change, integrating climate change and migration concerns when formulating laws, policies, and strategies based on evidence, connecting global climate policy to global migration policy, facilitating regular international migration pathways, and others (Environmental migration portal, 2021). It is crucial to remember that the decision to adopt the recommendations is a non-binding act.
The Paris agreement was initially adopted at COP 21 in Paris, in December 2015. It does not directly refer to climate change induced migration and consequently does not provide solutions to the issue. However, the preamble of the Paris Agreement requires parties to respect and promote the human rights of vulnerable populations, indigenous people, children, and migrants. Therefore, the agreement is meant to safeguard climate-induced migrants by giving power to the Parties to the treaty to undertake any necessary actions to address the issue.
In light of these facts, it should now become clear that the current United Nations system of protecting migrants as a result of climate change is insufficient. Despite existing instruments that recognize developed countries’ moral responsibility and obligate them to provide financial assistance, a mechanism that advocates accountability, transparency, and compliance is not yet available (Deshwal & Shrivastava, 2019).
Perspectives and response measures
UN policies retain a human security focused approach with respect to climate change and migration (Butros et al., 2021).
“Looking to the future, the human rights and protection needs of those affected by climate change must feature in national development priorities (such as agriculture, infrastructure and education), strategic planning and budgeting,” (Türk, 2014, p. 7).
The UN approach suggests climate adaptation and resilience building in countries of origin as response measures to climate induced migration. Despite this, climate adaptation does not incorporate relocation and resettlement (Butros et al., 2021). Because of increased migration across international borders, it is crucial that the mechanisms for addressing climate-induced migration have broader approaches rather than adaptation and resilience building. Relocation and resettlement must also be considered as adaptation mechanisms.
The theme of climate change induced migration at COP26
At COP26, the Task Force on Displacement presented its recommendations on climate change-induced migration. While issues of human mobility were institutionalized through the WIM, building support for the recommendations of the Task Force on Displacement is crucial. As before, COP26 represented the opportunity to enhance visibility and promote discussion on the topic. On November 4, the Executive Committee of WIM (ExCom) showcased the progress in the implementation of the work plan of the ExCom and discussed opportunities for the broad range of stakeholders to contribute to the upcoming thematic activities to assist actions in averting, minimizing, and addressing loss and damage associated with climate change.
The International Organization for Migration (IOM) has also become increasingly involved in the matters of climate change induced migration in recent years. “As the impacts of disasters, land degradation and water scarcity become more intense and devastating, it has become critical to address the impacts of climate change on migration, displacement and health,” stated António Vitorino, Director General of IOM. “These issues are interconnected but have been addressed in a siloed manner for too long” (WHO, 2021). On November 9 at the COP26, a high-level event addressed the multidirectional linkages between the three challenges. The event included contributions from IOM and WHO Directors-General António Vitorino and Dr Tedros Adhanom Ghebreyesus as well as high-level representatives of countries affected by climate change. Dr Tedros Adhanom Ghebreyesus encouraged “including human mobility in national climate change action plans, strengthening services and systems for migrants, taking measures to keep essential services running after disasters, and prioritising access to sustainable and predictable financial resources for vulnerable countries” (WHO, 2021). The main focus of the event was on health issues and urgent inclusion of considerations of migrants’ health in policies related to environmental and climate change issues. 
These and other events were held in Glasgow (see Environmental migration portal, 2021). Ultimately, after two weeks of negotiation, the Glasgow Final Pact was signed. Under the Final Pact, parties decided “to establish the Glasgow Dialogue between Parties, relevant organizations and stakeholders to discuss the arrangements for the funding of activities to avert, minimize and address loss and damage associated with the adverse impacts of climate change” (UNFCCC, 2021). The ExCom of the WIM is requested to support the implementation of the Dialogue. Initially, the developing countries proposed to establish a “facility” that would provide financial support to communities suffering irreversible damage from climate impacts. But, as the Washington Post reports, wealthy nations avoided the language that would hold them accountable (The Washington Post, 2021).
Conclusions and recommendations
Climate change induced migration is fundamentally an issue of justice. At COP26, developed high-emissions countries acknowledged the importance of multilevel cooperation but failed to build commitments under UNFCCC to address legal, financial, and other challenges related to climate change induced migration. Being responsible for climate change, developed countries must compensate communities on the front line for irreparable losses and damage and help other nations resettle displaced people.
Under the UNFCCC umbrella, the international community must examine the challenges of climate change more thoroughly and adopt mechanisms to address climate change induced migration. First, as the current system of international law is not equipped to protect climate migrants, a clear international legal framework to account for climate change as a driver of displacement should be established. Further, the UN should expand its approach to climate adaptation and consider relocation and resettlement as a part of the approach. For this, greater resources are needed, for instance, those aimed at providing safe transportation and expanding destination countries’ integration abilities. Above that, the above-mentioned moral obligations provided under the Climate Change Convention or Paris Agreement in regards to the finances for adaptation and resilience building lack imperative. An organized devoted body should guarantee accountability. For example, creating a dedicated fund under IOM or UNHCR would allow this issue to be addressed directly (John Podesta, 2019).
The above-mentioned strategies are far-stretching but their implementation will ultimately impact the lives of millions of affected people and communities around the globe.
If you found this article interesting, we encourage you to read the other two articles in this series:
“The Inclusion of Indigenous Peoples at UN Climate Change Conferences – A View at The History and Present,” and
“Tracking the COP Approach to Gender.”
 In a landmark decision of the UN Human Rights Committee associated with the claim to protection by Mr. Teitiota seeking asylum from the effects of climate change, the committee determined that people who flee the effects of climate change and natural disasters should not be returned to their country of origin if essential human rights would be at risk on return. The quote is featured in the interview given by Mr. Teitiota to BBC (Tim McDonald, 2015).
 COP26 events related to addressing the climate-health-migration nexus are Roundtable on “Climate change, migration and health: transforming tomorrow – a call to action”; High-level policy discussion on “Climate change, migration and health: interconnected challenges for the 21st century”; UN System event: “The Health Argument of Climate Action: The COP26 Health Programme” (WHO, 2021).
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Butros, D., Gyberg, V. B., & Kaijser, A. (2021). Solidarity Versus Security: Exploring Perspectives on Climate Induced Migration in UN and EU Policy. Environmental Communication, 1-15.
Deshwal, V. S., & Shrivastava, S. (2019). The Curious Case of Environmental Refugees: Environmental Refugees May be Better Protected without Being Declared as’ Refugees’. OIDA International Journal of Sustainable Development, 12(11), 31-42.
Doelle, M. (2014). The Birth of the Warsaw Loss & Damage Mechanism: Planting a Seed to Grow Ambition?. Carbon & Climate Law Review, 35-45.
Ferris, E. (2020). Research on climate change and migration where are we and where are we going?. Migration Studies, 8(4), 612-625.
Mayer, B. (2011). The international legal challenges of climate-induced migration: Proposal for an international legal framework. Colorado Journal of International Environmental Law and Policy, 22, 357-481.
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December 21, 2021