As global climate change and the resulting implications on ecosystems and livelihoods affect the viability of traditional lifestyles in many parts of the world, some global bodies are taking notice of the already substantial exodus of populations out from areas that are most vulnerable to climate change. While much of environmental law, globally and at national levels, has developed in piecemeal fashion, the urgency of climate migrants may cause governments and institutions develop legal and infrastructural solutions with an ad hoc approach. Nonetheless, guidelines and responsibilities provided by international organizations such as the International Bar Association, the United Nations Framework Convention for Climate Change and the United Nations High Commission for Refugees may offer some norms for the global community to address the migration caused by global environmental change, and in doing so create a space where environmental laws and humans rights laws and discourses are no longer treated in separate silos, and a paradigm shift occurs when this entanglement is publicly and widely acknowledged. However, in order for this change to occur, approach to any logistical problems that are now faced by nations must be approached with legal intersectionality in mind; that is to say, the paradoxes, divergences and conflicts between different legal regimes need to be actively acknowledged to address the complex non-linear issues of climate change and human rights. In fact, any kind of legal infrastructure should always have an explicit cognizance of climate change as a fundamental condition in the Anthropocene.
One of the key challenges in preparing for the expected humanitarian crisis triggered by climate change is understanding the ways in which environmental laws and human rights laws may intermingle, especially when it concerns migrants driven out by environmental change. While it is expected that due to unfeasible living conditions caused by climate change many communities will be forced to move elsewhere, the designation of these communities as “refugees” still causes contention. Traditionally, refugees are identified as people leaving conflict areas or escaping persecution by seeking asylum in another country. However, climate change refugees present several challenges to this traditional definition. Firstly, many of these communities are expected to flee their places of residence not because of armed conflict among humans, states, communities, tribes or organizations, nor because of persecution based on their lifestyles, sexualities, gender, religion and other identities, but because of natural circumstances that threaten their livelihood and security. Of course, many of the social threats they may face like persecution or armed conflict may be exacerbated by the effects of climate change such as food insecurity, drought, floods and other naturally-derived phenomenon, the essential cause of their emigration will remain something that is anthropogenic in nature, and yet still outside of human political and social control. Consequently, the notion of climate change refugees poses various paradoxes in the understanding of agents and actors within the realm of international environmental law as well as the understanding of refugees in the framework of international human rights laws.
For instance, the number of people fleeing their localities due to environmental change has been estimated to be between 25 million to 1 billion people, however, “’climate refugee’ and ‘environmental refugee’ are still not classified as legal categorisations…[It is] difficult to determine whether a person is fleeing their home because of an environmental disaster, lack of work, or the established, long-term impacts of climate issues like drought or rising sea levels” (Lieberman 2016). Thus, it is particularly challenging to ascertain the nature of climate change-driven migrants, and provide for their needs and safety through formal international legal and logistical means. Although many cities, namely, Mumbai, Dhaka, Kolkata, Bangkok, Shanghai, Miami and many others are expected to receive many of these migrants over the next several decades, environmental and climate migrants are sill not considered as part of urban development plans, and there are no binding global agreements among states to address this impending issue, even though the Intergovernmental Panel on Climate Change has explicitly outlined mass human migration as one of the major impacts of climate change (McPherson 2015). While international legal norms and procedures exist to ensure the “right to life”, and by extension, right to food, water, shelter and safety of communities around the world, there has yet to be an explicit set of norms established between states to handle what will eventually be an enmeshment of environmental and human rights laws. This is perhaps driven by the nature of the perceived separation between the different international legal regimes and the illusion that environmental laws, trade laws, and human rights laws can operate separately without impacting the overall survival and sustainability of societies. The immediate and most obvious result of this is many individuals who are trapped in deteriorating environmental conditions do not have the legal means, resources or capacities to escape their conditions by either adapting to climate change or by migrating as a refugee elsewhere. Many of these problems would be addressed by international systems in much easier terms if an explicit acknowledgement of intersectionality between different legal regimes were put in place and made widespread.
In an effort to address some of these gaps in international law, the International Bar Association (IBA) formed a task force to address the upcoming crisis of “climate justice”, which offers some means to reconcile the sometimes divergent aims of international, environmental and human rights legal regimes. According to the IBA, climate change justice aims:
“To ensure communities, individuals and governments have substantive legal and procedural rights relating to the enjoyment of a safe, clean, healthy and sustainable environment and the means to take or cause measures to be taken within their national legislative and judicial systems and, where necessary, at regional and international levels, to mitigate sources of climate change and provide for adaptation to its effects in a manner that respects human rights.” (International Bar Association and others 2014, 2)
Implicit in the definition of climate change justice for the IBA is the understanding that climate change does not affect populations around the world equally, and that often, the biggest perpetrators of climate ‘injustice’ (that is, the nations with the largest carbon footprints that ultimately lead to climate change) are frequently shielded from the graver impacts of climate change because of their larger pool of resources that make adaptation to climate change far more feasible. As a result, it is the nation states with smaller carbon footprints, are the ones that face tremendous logistical and socioeconomic challenges to responding effectively to climate change. Thus, climate change justice, as advocated by the IBA wishes to centre human-rights discourses within climate change mitigation and adaptation conversations. The IBA outlines their approach further:
“By adopting a justice and human rights-centred approach, the IBA intends to shift the focus of much-needed reform from purely economic and scientific considerations to the human rights and equity consequences of climate change. In doing so, the IBA hopes to advance equity and justice by listening to the human rights concerns of the communities most vulnerable to climate change. The Report reminds its audience that failure to address the challenges posed by climate change will have devastating consequences for hundreds of millions around the globe, in both the industrialized and developing world, and that, in the drive to confront this potentially existential threat to our civilization, not a moment should be lost.” (International Bar Association and others 2014, 3)
One of the key changes that the IBA is advocating here is a paradigm shift of treating climate change as an external, environmental problem in the realm of environmental laws and governance, as one that should be under consideration from all forms of governance; a move from being the realm of economic and scientific problems to one that affects all domains of society. In the past, we have observed how environmental laws sometimes came into being as an extension of human rights laws such as “right to life” discourses. Now, there is a reintegration of environmental governance with other areas of human governance, which presents an interesting turn for paradoxes previously present between the civic/human laws and environmental laws.
The reconciliation, or rather reintegration between international environmental law and human rights laws create new responsibilities for states and other governing bodies. The IBA highlights that:
“While human rights laws may provide an avenue for individuals and communities to seek redress for harms caused by global climate change. There is little doubt that climate change affects peoples’ human rights directly. Rights to life, health, food, shelter and water are all plainly affected by the ravages of climate change. These effects can be characterised as ‘rights violations’ (rather than mere bad luck) because climate change is a preventable man-made phenomenon. Nevertheless, it is not easy, as a matter of law, to join up the dots between those emitting excessive greenhouse gases and those suffering the consequences – the law is not designed to that end, and difficult questions of causation and standing arise. Possible avenues of redress may include class actions, targeting major groups of emitters or holding public officials responsible for failures of due diligence. Many of these strategies are currently being explored. Another possible avenue may be the development of ‘environmental rights’, now recognised in a number of national constitutions.” (International Bar Association and others 2014, 6)
It is not clear the clear how to set up mechanisms for provisions and accountability within international environmental law as some schisms between international law (such as each nation state’s control over its resources) and environmental law (i.e. right to good environment for neighbouring nations) and human rights laws (i.e. right health and good livelihoods, right to security), however, IBA has noted the intersectionality of these somewhat fundamentally related but ultimately divergent legal regimes. Accordingly, new procedures and mechanisms need to be proposed to account for an increasingly intertwined international legal regime.
When discussing climate change justice, in particular, that relating to the fate of climate change refugees and environmental refugees, the principles of intersectional systems thinking must be at the core of all decision-making and governance processes in both domestic and international levels. Climate change is a fundamentally multi-process development that implicates ecosystems, societies and economies of various scales thus as from a legal standpoint, it no longer makes sense to treat it as part of discrete international legal regimes. In fact, the awareness of climate change as an underlying condition should be stipulated within legal infrastructures, so that it is always considered as an important variable when making decisions. Such as approach of environmental intersectionality would revolutionize the way human rights discourses follow, especially as environmental justice concerns are intimately intertwined with those relating to social and economic equity. By removing bureaucratic hurdles presented by the narrowness of certain definitions within human rights laws, more robust processes and infrastructures may be created to address the complex human-nature relations in the Anthropocene, but fundamentally at its heart, these processes need an acknowledgement of the crucial intersections between human societies and ecosystems.
Mahmudul Hasan is Master of Laws (LL.M.) candidate 2015 at the University of Dhaka, Bangladesh.