Climate Refugees and their Right to Occupancy

By Gianfranco Pellegrino - 27 November 2015
Climate Refugees and their Right to Occupancy

This column by Gianfranco Pellegrino is part of Global Policy’s e-book, ‘Climate Change and Human Rights: The 2015 Paris Conference and the Task of Protecting People on a Warming Planet’, edited by Marcello Di Paola and Daanika Kamal. Contributions from academics and practitioners will be serialised on Global Policy until the e-book’s release in November 2015. Find out more here or join the debate on Twitter using #GPclimatechange.

Climate change can cause sea-level rise that may cause the submersion of some archipelagos in the Pacific. Cross-border migrations from these areas are thus likely to take place. Many questions are elicited by this scenario: Is climate-induced submersion causing the disappearance of States (i.e. of political entities) or of nations (i.e. of ethnic or cultural groups): is it thus leaving individuals with no homeland, or with no political identity? Or is submersion merely displacing states or countries from their territory, making them similar to exiled governments or nomadic nations? Are the displaced individuals, ordinary migrants or refugees? Which rights are violated, if any? Is it the right of a State to exist that is in jeopardy here, or the right of people to self-determine? Or is it the right of individuals to enjoy shelter as well as State protection? Which duties are created by climate-induced displacement and who bears them?

I cannot consider each of these questions here. I shall therefore focus on the status of cross-border climate migrants fleeing from sinking islands, with respect to the right violated when forced displacement occurs. My conclusions are not meant to extend to other kinds of climate migrants, i.e. to internal migrants, or to migrants not coming from sinking islands, or whose territory is intact. I focus only on climate migrants from sinking islands. For simplicity, however, I shall sometimes use the shorter, unqualified expression 'climate migrants'. I shall defend two claims:

1. Climate migrants are climate refugees – they are entitled to the protection provided by art. 1(A)2 of the 1951 Convention Relating to the Status of Refugees, as modified by the 1967 Protocol Relating to the Status of Refugees, at art. 1(2);
2. Climate refugees have their right to occupancy of the territory of a legitimate State violated, and this gives them a right to relocation.

Art. 1(A)(2) of the 1951 Convention gives refugees status to any person who:

owing to 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 is unable or, owing to such fear, is unwilling to return to it.

The standard interpretation of this article is as follows. The refugee status should be granted when the following tests are jointly met:

i. displacement: the applicant is outside her country or, if she is a stateless person, she is outside the country of her habitual residence;
ii. inability/unwillingness: the applicant is unable or unwilling to return, both for objective and for well-grounded subjective reasons (e.g. because of physical impossibility, or because of reliable fears of being exposed to dangers if she returns);
iii. persecution: in the country of provenance the applicant has been, or she is likely to be, persecuted;
iv. specific grounds: this persecution is due to her “race, religion, nationality, membership of a particular social group or political opinion”;
v. lack of protection: the applicant lacks State protection against such a persecution.

On the basis of this reading, many claimed that, as climate migrants fail to meet these tests, they cannot be granted refugee status. They should certainly have some protection (possibly more than other economic migrants), but they are not entitled to the protection guaranteed by the 1951 Convention. (Call this the no extension view).

Against the no extension view, some argued that the 1951 Convention should be read differently, as implying that meeting some of the tests, and not all, is enough to have refugee status. For instance, Alexander and Simon maintained that art. 1(A)(2) contains two clauses, separated by the semi-colon, and that the second clause ascribes refugee status to stateless people who are simply unable to return under the protection of the State of their habitual residence. On the basis of this reasoning, climate migrants from sinking islands, being physically unable to return their homelands, are entitled to refugee status.

Other authors have made even bolder claims and argued that, besides the letter, also the spirit of the 1951 Convention orders granting refugee status to people meeting just one of the above tests. Many, for instance, have claimed that lacking State protection and being in dire straits is enough to claim refugee status.

Recently, Lister put forward a methodological requirement to any reading of the 1951 Convention. Any such reading, he claimed, should account for the specific duty dictated by the Convention – i.e. the duty to grant admittance on a durable basis. On the basis of this, Lister denied that mere lack of State protection is enough to qualify as a refugee (as the duty toward who lacks State protection is giving assistance in place, not giving asylum). However, Lister later maintained that migrants from sinking islands, being unable to return to their homeland and lacking State protection, are entitled to refugee status, because assistance in place is not possible, and aid can only come in the form of asylum.

Relying on Lister's requirement, I shall here raise a further question. Which feature of theirs makes refugees the holders of a specific right; the right to be admitted on a durable basis? Neither the standard reading, nor the extensionist ones can answer this question. But answering it is necessary to assess the inherent plausibility of any reading of the Convention, as the tests stated in art. 1(A)(2) pick out different features of the potential refugees – features such as being outside a State, lacking State protection, being potential or actual victims of a persecution, and so on. Then, the problem reads: is there a unifying factor able to explain why all these features, or only some of them, provide grounds for giving admittance to refugees? What's distinctively wrong with being a refugee?

My answer to this question is as follows. Refugees are not simply unable to enjoy protection from the State, and for this reason vulnerable to persecutions as well as to deprivation. Persecution, deprivation and lack of State protection also force refugees outside their State of provenance. To the wrongs constituted by persecution, deprivation and lack of State protection, a further wrong is added – forced displacement. Forced displacement is a wrong because living in a place is a right of any individual, as permanent occupancy of a place is needed to cultivate morally essential plans, relationships and projects, as well as to enjoy State protection. Political persecution, deprivation or lack of State protection are made worse when they lead to forced displacement. This is what marks a refugee's distinctive status; they suffer a further wrong, the wrong of forced displacement. Asylum is aimed at compensating people who have suffered a specific wrong, the wrong of having been forcefully displaced from their State of provenance. (Call this the right to occupancy view.)

This view accounts for the various tests listed in art. 1(A)(2). Moreover, it gives a priority rule for them. Applicants seeking refugee status should necessarily meet the first two tests, namely the displacement and the inability/unwillingness test. Only displaced people unable or unwilling to return to their State of provenance can be refugees. Displacement should be forced, not voluntary or quasi-voluntary, and the causes of this forcing are persecution or lack of State protection. Tests iii. and v. qualify tests i. and ii. (test iv. qualifies test iii.).

If the right to occupancy view is true, climate migrants from sinking islands can have refugee status. Climate migrants would be forced to move, thereby having their morally essential plans, relationships and projects seriously impaired. Moreover, they also lose State protection, because their State is at best exiled if it has not already disappeared. This suffices to make them refugees.

My argument has been that the best interpretation of the 1951 Convention regards forced displacement as the wrong of losing one's right to occupy a territory, a right necessary to pursue morally significant plans, projects and relations, as well as to enjoy State protection. On the basis of this, climate migrants from sinking islands are refugees. If their right to occupy a territory is violated, they should be compensated for this. Proper compensation could only assume the form of durable admittance, i.e. asylum.

Gianfranco Pellegrino is senior assistant professor of Political Philosophy at LUISS Guido Carli Rome. He co-edited a collection on climate change politics, with M. Di Paola (Canned Heat, Routledge). He also worked on historical and contemporary utilitarianism.

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