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New Zealand Law Students' Journal |
Last Updated: 7 April 2024
A Multilateral Agreement for
Climate-Induced
Migration: Common but Differentiated Responsibilities
LAUREN ARGYLE[*]
Abstract—Climate-induced migration is a phenomenon that the
international community has become increasingly concerned about over the last
two
decades. The community has acknowledged the increased frequency of extreme
weather events and natural disasters, as well as evidence
of the significant
impact environmental degradation will have overtime. These consequences of
climate change have displaced, and
will further displace, many people. The
international community is yet to decide on an appropriate and equitable
multilateral response
to the phenomenon. Affected individuals and communities
must, therefore, find their own pathways to migrate or prepare to endure
the
consequences of climate change. Such ad hoc responses to climate-induced
migration are inadequate. A multilateral agreement is
necessary. It must do two
things: define a clear response to climate-induced migration; and establish a
mechanism to equitably allocate
responsibility for contributing to the response.
Common but differentiated responsibilities has been used as a principled
approach
to burden sharing throughout the international climate change
mitigation regime. This principle is also the appropriate burden sharing
approach to employ in relation to climate-induced migration. Although existing
multilateral agreements could be employed, a bespoke
agreement is preferable. A
fresh agreement will be best placed to incorporate the principle of common but
differentiated responsibilities
along with other concepts from multiple
disciplines of international law. Political will for any multilateral response
to the phenomenon,
or climate change generally, is low. A proactive response
must, however, be prioritised to ensure that action is anticipatory, principled
and comprehensive.
Climate-induced migration (CIM) is a phenomenon that has risen
to prominence in climate change discourse over the last two decades.
The
international community has observed an increase in the frequency of natural
disasters and serious weather events, along with
evidence of the future
devastation that long term environmental degradation will
cause.[1]
These circumstances, caused by climate
change,[2] have displaced, and will
continue to displace, millions of
people.[3] The international community
is hence posed the challenge of relocating and supporting affected people. There
is currently no multilateral
agreement on how this challenge should be
approached. Some agreements encourage parties to acknowledge the issue or to
consider it
when acting on related
matters,[4]
but none squarely address CIM. Instead, CIM is handled on an ad hoc basis.
Climate-induced migrants tend to self-relocate to nations
or regions that
neighbour their
own.[5]
Alternatively, people affected by slow-onset events, such as rising sea levels,
may attempt to migrate through typical immigration
methods or to adapt in an
effort to endure the impacts of climate change and avoid relocating.
The
current responses to CIM are inadequate. They do not offer clear or reliable
pathways for migrants to relocate or become resilient
to climate change.
Additionally, the status quo places undue burdens on nations who support those
affected. Vulnerable countries
and their neighbours bear the brunt of CIM
despite the international community’s collective responsibility in causing
the phenomenon.
The international community’s failure to adequately
respond to climate change in the past, such as by failing to curb extreme
carbon
emissions, has exacerbated the consequences of climate change, including
CIM.[6] The international community,
therefore, must accept shared responsibility for responding to this issue.
A
multilateral agreement is necessary to determine a clear international response
to CIM. Such an agreement would enable a sharing
of responsibility among the
international community—a concept known as burden
sharing.[7] In another climate
change-related context, the international climate change mitigation regime
employed the principle of common but
differentiated responsibilities (CBDR) to
distribute responsibility among
parties.[8]
This burden sharing approach should also be employed in responding to
CIM.[9]
There are various ways in which the international community could
multilaterally respond to CIM. A bespoke multilateral agreement
specifically
targeting CIM is preferable, as it would best incorporate CBDR, and enable the
use of valuable principles from other
international law areas, such as refugee,
international climate change and human rights law. However, there is little
political will
for a multilateral response to CIM. Eventually, the
ever-increasing urgency of the situation and the anticipated International Court
of Justice Advisory Opinion on the extent of countries’ obligations to
respond to climate change will compel action. Despite
this, a proactive response
must be prioritised to ensure action is anticipatory, principled and
comprehensive.
Climate-induced migration is a complex phenomenon.
The term has no precise definition or
scope,[10]
but scholars generally use it to refer to the departure of people from their
homes due to the negative effects of climate
change.[11] This amorphous
definition means estimates of the number of current or anticipated
climate-induced migrants vary greatly. However,
it is clear that the numbers
are, and will be, significant. For example, between 2008 and 2014, 185 million
people were displaced
due to sudden natural
disasters.[12]
Climate change will continue to increase the frequency and severity of natural
disasters, which will cause the number of subsequently
displaced people to rise
from this already extreme
number.[13]
The impacts of
climate change that induce migration can be categorised as either slow- or
rapid-onset
events.[14]
Slow-onset events involve environmental degradation over a long period of
time.[15] This can include sea-level
rise, desertification, drought or general ecosystem
degradation.[16] Rapid-onset events
appear suddenly and have immediate negative effects on the environment and
communities.[17] These events are
typically natural disasters or extreme weather events such as heatwaves, floods,
hurricanes, or mudslides.[18]
Slow-onset events allow time for affected people to consider how to respond to
the environmental degradation before they are compelled
to
flee.[19] People may choose to stay
in their homes and prepare to endure the consequences of the degradation or they
may migrate away from
the area to avoid experiencing the degradation altogether.
By contrast, rapid-onset events have an immediate impact, leaving no time
to
consider a response other than fleeing
urgently.[20]
Those at risk of
CIM are often simultaneously experiencing other challenging circumstances. Many
developing countries, particularly
small island developing states, will be the
worst affected by the consequences of climate
change.[21]
Because these nations are both developing and vulnerable to climate change,
decisions to migrate are often made in the context of
high unemployment,
economic turmoil or war.[22] Climate
change is, therefore, often not the sole factor in a decision to
migrate.[23] This raises
difficulties in attempting to categorise migrants as climate-induced migrants.
Migration decisions are multifactorial,
and the extent to which climate change
contributed to a person’s decision to relocate is usually
unclear.[24]
The wide range of negative consequences of climate change means that people
in many different situations may be compelled to migrate.
Some climate-induced
migrants may return to their home, while others will
not.[25] Some may be displaced
domestically, while others are forced to migrate
internationally.[26] Some may choose
to move in anticipation of future
events,[27] while others are
compelled to do so immediately.
The multi-causal nature and varying forms of
CIM mean there is no universally accepted definition of the phenomenon.
Nevertheless,
the causal link between climate change and migration is widely
accepted.[28] It is, therefore, no
longer sustainable to acknowledge the problem of CIM, but not respond to it
because the international community
cannot decide how to categorise
migrants.[29] If a definition is
required, the International Organization for Migration’s definition should
be used. This definition is often
cited by
scholars,[30] and
includes:[31]
... persons or groups of persons who, for compelling reasons of sudden or
progressive changes in the environment that adversely affect
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.
This broad definition is valuable because it acknowledges the
different situations climate migrants might be
in.[32]
Climate-induced migration was first officially acknowledged internationally in in a 1985 United Nations Environmental Programme report.[33] However, academics and politicians continued to debate the severity¾and even the existence¾of the problem.[34] By the late 2000s, the legal community had become much more interested in “climate refugees” and the threat posed by climate change to their homes and wellbeing.[35] Despite this, there has been no international agreement developed regarding CIM. Some other regimes refer to the issue, but do not offer any clear or binding response.[36]
The United
Nations Framework Convention on Climate Change (UNFCCC) concerns climate change
mitigation, adaptation and
response.[37] The regime is not
squarely focussed on CIM, but rather the root of the issue: climate change. The
regime first acknowledged CIM in
2010 at its 16th Conference of the Parties
(COP) in
Cancún.[38]
The international community acknowledged the need for enhanced
“understanding, coordination and cooperation” of adaptations
to
climate change, including
CIM.[39]
The UNFCCC has continued to acknowledge CIM. At the COP18 in 2012, the
Executive Committee of the Warsaw International Mechanism for
Loss and Damage
adopted a work programme which acknowledged displacement as a consequence of
climate
change.[40]
The 2015 Paris Agreement’s preamble states that parties are expected to
respect and consider their responsibilities to climate-induced
migrants.[41] The 2015 COP21
requested that the Task Force on Displacement create recommendations on how to
mitigate CIM.[42] However, despite
these efforts to increase awareness of CIM, the UNFCCC regime does not impose
any obligations on states to respond
to the
issue.[43]
The 1951 Refugee Convention is a binding agreement
that creates a framework for the international approach to treatment of
refugees.[44] People displaced by
climate change are not included in the Convention’s definition of
“refugee”, which requires
persecution due to social or political
factors.[45] Despite this, later
refugee-related documents do reference CIM. The General Assembly adopted the New
York Declaration for Refugees
and Migrants in
2016.[46] The Declaration emphasised
the need to support and prioritise migratory issues generally and involved a
commitment to create two
relevant compacts.
The first is the Global Compact
on Refugees, which was signed in
2018.[47] Section D of the Compact
discusses the need not only to support refugees, but also to address the root
causes of international displacement,
such as climate
change.[48] However, the Compact
does not create binding obligations for the benefit of climate-induced migrants,
or even refugees generally.[49]
The second relevant compact stemming from the New York Declaration is the
2018 Global Compact for Safe, Orderly and Regular Migration.
This Compact
recognises the need to limit the harms of phenomena, such as climate change,
that force people to migrate
internationally.[50] The Compact
also seeks to increase the flexibility of pathways for regular migration,
including migration due to climate
change.[51] Finally, the Compact
emphasises the need to improve international cooperation, and lists climate
change as one of the reasons such
improvement is
necessary.[52] However, the Compact
followed the trend of earlier refugee agreements by emphasising the need for
international cooperation in relation
to CIM, while failing to propose any
approach to achieving this. Thus, current international refugee agreements
provide no legal
rights, and indeed little support at all, for climate migrants.
The International Organization for
Migration was created in 1951 in response to the displacement occurring in
Western Europe after
World War
Two.[53] Today, the International
Organization for Migration responds to migration generally. It has acknowledged
the relationship between
migration and climate change, and in 2015 created a
Migration, Environment and Climate Change
Division,[54]
becoming the first intergovernmental organisation to create a section dedicated
to CIM.[55] The Division has set
three related goals: to prevent forced CIM; to protect and assist populations
displaced due to climate change;
and to support migration and
resilience-building as forms of adaptation to climate
change.[56] This focus is promising,
but it does not create any binding commitments on states relating to CIM.
The UNFCCC, refugee agreements and the International Organization for Migration acknowledge CIM, yet do not take meaningful action to support those who experience it. Instead, states and affected people are left to deal with the phenomenon on an ad hoc basis. This article considers three such ad-hoc responses: (1) affected people self-relocating to neighbouring areas;[57] (2) affected people avoiding the harms of slow-onset events by relocating using official immigration routes; and (3) communities adapting to endure the anticipated adverse effects of climate change, and avoiding the need to relocate.
Rapid-onset events such as extreme weather
compel people to leave their homes. With no international agreement on how to
respond to
CIM, those displaced are forced to flee without an approved
destination. This results in many displaced people fleeing to nearby
areas or
countries as this is where they can self-relocate to. For example, Central
Americans affected by climate change often flee
to the United States via Mexico.
In November 2020, repetitive extreme storms in Honduras, Guatemala and El
Salvador displaced many
citizens. Two Category 4 hurricanes affected the area
within two weeks of each
other,[58]
resulting in 2.8 million people requiring humanitarian support, and
approximately 1.5 million people being
displaced.[59] With no official
response or support available, those displaced were forced to be self-sufficient
in their plans to escape the adverse
consequences of the hurricanes. It is
estimated that in the four months following the two hurricanes approximately
10,000 people
attempted to migrate to the United
States.[60] This demonstrates how
rapid-onset events such as extreme weather can compel migration to nearby
countries. Because rapid-onset events
create an urgent need to migrate and no
process exists for meeting migrant need, some displaced people are forced to
attempt to migrate
through illegal pathways. Approximately 55 per cent of
Central Americans who migrate to the United States use a
smuggler.[61]
A further 22 per cent travel illegally independently, with only around 19 per
cent using “regular migration
pathways”.[62]
Leaving
climate-induced migrants to self-relocate is an inadequate response to CIM due
to its unplanned, uncertain and sometimes illegal
nature. Self-relocation leaves
displaced people fleeing their homes with no approved destination. It also
predominantly burdens neighbouring
countries to support and receive migrants.
The international community has collectively caused climate change, so it is
unfair for
the burden of responding to CIM to fall only on countries that are
directly affected by it and their neighbours.
Climate-induced migrants may also attempt
to migrate using official immigration pathways. Such migration usually occurs in
response
to slow-onset events, as only then do impacted communities have time to
investigate official immigration processes or to consider
where to migrate.
People who undertake anticipatory CIM often migrate to nations that have
linguistic or cultural similarities to
their home
state.[63] For example, migration
occurs from the Pacific to New Zealand in anticipation of slow-onset
events.[64] New Zealand has a close
relationship and cultural ties to the Pacific. In the 2018 census, 8.1 per cent
of the New Zealand population
identified as Pasifika, and Auckland was
identified as having the largest Polynesian population of any city in the
world.[65] This Part analyses
anticipatory CIM from the Pacific to New Zealand as an example of the use of
official immigration pathways.
Despite New Zealand’s strong
relationship and geographic proximity to the Pacific, CIM from the Pacific to
New Zealand is not
without its challenges. There is no official mechanism for
CIM from Pacific nations to New Zealand. In 2017, the government considered
establishing 100 visas annually under an experimental humanitarian visa category
to target CIM.[66] However, this
proposal was dismissed. Pacific representatives expressed that it was
inappropriate to prioritise and normalise CIM,
rather than to continue to reduce
carbon emissions with the goal of maintaining Pacific islands as hospitable
environments.[67]
In the absence of a CIM-specific scheme, Pacific nationals wanting to
migrate to New Zealand due to environmental degradation must
apply for entry
through general immigration schemes. There are several visa categories reserved
for applicants from Pacific states.
The Pacific Access Category is a balloted
resident visa for which English-speaking citizens of Kiribati, Tuvalu, Tonga and
Fiji who
have job offers from New Zealand employers can
apply.[68]
In total, there are 1,300 of these visas available for 2022 and 2023, but the
scheme prescribes the amount allocated to citizens
from each
nation.[69] Similarly, the Samoan
Quota Resident Visa regularly provides 1,100 resident visas per year to
English-speaking Samoans with New Zealand
job
offers.[70]
From 2023 to 2026 there will be an additional 550 Samoan Quota Resident Visas
available.[71] The Recognised
Seasonal Employer scheme also enables citizens from nine Pacific nations to
travel to New Zealand to work in the horticulture
or farming industries. That
scheme brought 16,000 workers to New Zealand in the 2021/2022
season.[72]
The Pacific Access Category and the Samoan Quota Resident Visa both have
relatively restricted and prescribed availability. While
the Recognised Seasonal
Employer scheme has greater availability, it does not offer long term residence
in New Zealand. The Scheme
allows the majority of successful applicants to work
in New Zealand for seven months, and those from Kiribati or Tuvalu for nine
months, in an eleven-month
period.[73] Additionally, it is not
equally available to all Pacific citizens. In the 2019/2020 year, 76 per cent of
participants were from just
three nations: Vanuatu, Samoa and
Tonga.[74] All three schemes aim to
enable Pacific nationals to contribute to the New Zealand work force, so they
tend to favour young, skilled,
and able-bodied
applicants.[75] Consequently, many
who wish to migrate pre-emptively for fear of the adverse effects of climate
change in their home state may not
be eligible or selected for any of these
schemes. The various official immigration schemes are therefore inadequate
pathways for
people who wish to migrate to New Zealand due to climate change.
The situation has caused some Pacific people to attempt to gain residence in
New Zealand in unorthodox ways. In Re AF (Kiribati), the applicant
attempted to gain rights to be in New Zealand under two claims: (i) a claim for
refugee status under the 1951 Refugee
Convention; and (ii) a claim for protected
person status under either the United Nations Convention Against Torture or the
International
Covenant on Civil and Political Rights
(ICCPR).[76]
Both claims were unsuccessful.[77]
Notably, the Immigration and Protection Tribunal confirmed that to fall within
the definition of “refugee” there must
be a failure of state
protection, and the persecution experienced must have been
discriminatory.[78]
Climate-vulnerable states like Kiribati have not caused climate change due to
any failure of their own. Additionally, environmental
degradation is not
discriminatory as it affects whole populations, rather than
individuals.[79] The applicant
sought leave to appeal the Tribunal’s decision to the High Court. Both the
High Court and Court of Appeal denied
leave,[80]
and the Supreme Court denied an appeal of these
decisions.[81]
The Supreme Court confirmed that despite the validity of the applicant’s
concerns about future environmental degradation in
Kiribati, the
applicant’s circumstances neither met the requirement for persecution
under the Refugee Convention nor qualified
the applicant as a protected
person.[82]
In AD
(Tuvalu), the applicants—a family from Tuvalu—argued that they
should remain in New Zealand due to the adverse effects of climate
change on
their home nation, and alternatively because of their exceptional humanitarian
circumstances due to the father’s
role in taking care of his family in New
Zealand.[83]
The Tribunal found that the applicant family were not refugees or protected
persons under the ICCPR,[84] but
that exceptional humanitarian circumstances existed and thus it was unjust to
remove them from New Zealand.[85]
These cases demonstrate that despite New Zealand’s close
relationship with the Pacific and the specific migration channels that exist for
Pacific people, the current pathways are inadequate for those migrating in
anticipation of the adverse effects of climate change.
Despite New Zealand
courts acknowledging the impact that climate change will have on Pacific
nations, they have held that international
law does not afford climate-induced
migrants any rights or protections in New
Zealand.[86]
Interestingly,
however, neither AF (Kiribati) nor AD (Tuvalu) closed the door on
CIM-related claims. In AF (Kiribati), the Tribunal and Courts
specified that these decisions do not necessarily mean that the adverse effects
of climate change could never
justify a successful refugee or protected person
claim.[87] In AD (Tuvalu),
the Tribunal did not make a decision on the basis of climate change, and
hence did not rule out this
finding.[88] While these cases show
the courts are alive to the issue of CIM, they primarily demonstrate that the
current pathways for CIM to
New Zealand are inadequate.
The World Bank has
suggested that the developed Pacific nations of Australia and New Zealand should
create more comprehensive immigration
mechanisms for people from Pacific states
in anticipation of their mass climate change-induced
displacement.[89] However, while
these nations should be obligated to take some action, the burden must be
distributed more widely. The whole international
community is responsible for
climate change and its consequences and thus should not rely just on those
nations with cultural connections
or geographic proximity to receive all Pacific
climate-induced migrants.
Overall, ordinary immigration pathways are
inadequate to provide all people who wish to migrate due to climate change a
path to do
so, and they unfairly burden only a few nations to receive migrants.
Another
contemporary response to the negative impacts of climate change is in situ
adaptation in attempt to avoid CIM. In situ adaptation involves the
bolstering of infrastructure in climate-vulnerable states to prevent citizens
needing to leave due to the
impacts of slow-onset
events.[90] Because climate change
is usually just one of many reasons people may be compelled to
migrate,[91] in situ
adaptation may include efforts to address these other factors as well. In
situ adaptation in developing climate-vulnerable countries, therefore, often
aims to assist
development.[92]
New Zealand
financially supports in situ adaption programmes. In 2017, New Zealand
contributed NZD 19.61 million towards adaptation in nations vulnerable to
climate
change.[93]
Such funding has contributed to adaptation projects including building
resilience to ocean acidification, improving water security,
and maintaining
National Disaster Management Offices in five Pacific
countries.[94] One notable
adaptation project partially funded by New Zealand is the Temaiku Land and Urban
Development Project. This project will
raise a 300 hectare swamp area in
Kiribati’s capital island, Tarawa, two meters above the predicted 2200 sea
level.[95]
This area will be reclaimed and become an urban development that can home 35,000
people.[96] Additionally, New
Zealand financially supports the Fiji Relocation Trust Fund, which domestically
resettles Fijian villages affected
by climate
change.[97]
Created in 2019,[98] the Trust Fund
is the first fund dedicated to supporting the relocation of climate-induced
migrants.[99] By 2020, the Fund
had already supported the relocation of five communities, with a further 42
communities having applied for support
by that
time.[100]
In
situ adaptation is valuable because it enables climate-vulnerable nations to
build resilience to climate change, which may allow their
populations to remain
in their home country.[101] While
migration can be a necessary safety net in severe situations, it comes with
major social and cultural adjustments that make
it an undesirable
option.[102] Mass migration
especially has been found to result in significant unemployment, homelessness
and social isolation.[103] Forced
mass migration is therefore unattractive and has been labelled the “worst
case scenario” for many Pacific
peoples.[104] Furthermore, land
has a great cultural significance to Pacific peoples, so it is important that
they are able to remain on their
homeland so far as is
possible.[105]
However, while
supporting Pacific communities to stay in their home nations should be
prioritised, in situ adaptation may not be sufficient to protect all
Pacific peoples from the adverse effects of climate
change.[106] Some nations,
particularly small island developing states, may simply be too vulnerable to
climate change for adaptation to be viable.
Additionally, adaptation may not be
financially accessible for developing states without international
support.[107] For example, the
Temaiku Land and Urban Development Project is expected to cost approximately USD
273 million—more than Kiribati’s
entire gross domestic
product—and thus is only possible with significant external
funding.[108]
The ad hoc pathways available to those displaced due to climate change are inadequate to address the issue of CIM. These pathways neither effectively support migrants nor fairly distribute the burden of providing this support. Therefore, a multilateral agreement is necessary, and must settle two issues. First, it must determine an approach to responding to CIM. This approach should include funding in situ adaptation, and where necessary, relocating climate-induced migrants either internationally or domestically. Secondly, the agreement must provide a mechanism for distributing the responsibility for contributing to these responses. The lack of principled burden sharing has resulted in current responses inequitably burdening climate-vulnerable nations and their neighbours. If many nations were attributed a share of responsibility, rather than individual states having to volunteer independently, this would encourage collective international action.[109] A clear system of allocating responsibility is necessary to ensure widespread participation and equitable distribution of contributions among the international community.
The principle of CBDR is an approach to burden
sharing that has been employed in the international climate change mitigation
regime.
The principle aims to equitably distribute obligations among parties
where they share common objectives, but have varying levels
of responsibility
and ability to meet the shared
objectives.[110] The principle can
be broken into three features: common responsibility, differentiated
responsibility, and differentiated
capability.[111]
First, the global community has acknowledged that climate change is a shared
issue to which all states have contributed, and that
domestic decisions have
global
impacts.[112]
Thus, countries should cooperate and share common responsibility for responding
to its
consequences.[113]
Secondly, despite this common responsibility, some nations have developed and
industrialised to a greater extent than
others.[114]
Through their industrialisation, these nations have emitted more carbon and
contributed to environmental issues more than others.
They hence have a
differentiated, greater, responsibility to respond to climate change than those
states that have emitted
less.[115] Finally, due to their
increased development, developed countries also have the greatest capacity to
combat environmental issues.[116]
Employing CBDR acknowledges that all parties have shared responsibility for
climate change issues, but means that developed nations
should take the greatest
environmental action.[117] Other
states which bear less responsibility for, and have less capacity to respond to,
climate change issues should have obligations
that reflect this
difference.
There is no universal approach to implementing
CBDR,[118]
so it has been employed in various ways. Employing different interpretations of
CBDR can result in different allocations of
responsibility.[119]
Some multilateral environmental agreements (MEAs) refer to CBDR as a guiding
principle to which parties should adhere in observing
the
document.[120] The principle can
also be incorporated into specific obligations. Scholars such as Hey and
Paulini, and Stone have identified five
ways that MEAs implement CBDR in
relation to specific obligations. An MEA may delay the date by which developing
nations must comply
with its obligations (Delayed
Obligations).[121]
MEAs may impose different obligations on developing countries than on developed
countries (Different
Obligations).[122] Developed
countries can be required to transfer funds and technology to developing
countries to assist them in their compliance (Transfer
of Funds and
Technology).[123] An MEA may
govern interactions between developing and developed state parties
(Interactions).[124] Finally, in
the event of non-compliance by a developing party, an MEA can enable developed
countries to assist developing parties
in returning to compliance
(Non-compliance Assistance).[125]
Generally, developed parties will receive the heightened or default obligation,
and it will be varied in some way to make compliance
less challenging for
developing parties. Understanding the various types of CBDR obligations provides
a useful starting point to
consider the principle’s potential use in the
realm of CIM.
The
principle of CBDR has most famously been incorporated into the international
climate change mitigation regime. The causal link
between the issues of climate
change and CIM means that the issues are similar in nature. Therefore, the
methodologies applied in
the former will be useful in responding to the latter.
Both are issues that require international collaboration, because no individual
state or region can halt climate change or absorb all climate-migrants on its
own.[126] In both climate
mitigation and migration, the high cost of responding to the issue and the
reluctance of other states to contribute
discourages states from
acting.[127] In both contexts, a
clear allocation of responsibility is necessary to avoid “free
riders”. One difference between climate
change mitigation and CIM is that
the international community has accepted shared responsibility for climate
change, whereas it has
not for CIM specifically—although CIM has been
accepted as a consequence of climate
change.[128] The international
community should therefore be obliged to respond to it.
The use of CBDR in
the series of climate mitigation agreements illustrates how it may be used to
respond to CIM. This Part sets out
how CDBR has been used in each iteration of
the climate change mitigation regime.
The UNFCCC saw
195 nations agree to cooperate to combat climate change and its
effects.[129] The UNFCCC
incorporated CBDR to implement an equitable and ethical approach to burden
sharing in international climate change
law.[130] The UNFCCC uses CBDR
both as a general principle as well as a tool in implementing specific
obligations.
First, the Convention lists CBDR as the first of five guiding
principles.[131] The Convention
states plainly that CBDR means developed nations are to take the lead in climate
action.[132] Secondly, the UNFCCC
further emphasises that CBDR is to apply throughout the Convention by
referencing it in the preface of art 4(1).
Article 4(1) contains substantive
commitments for all parties, notably: recording and publishing inventories of
greenhouse gas emissions;
formulating programmes to reduce such emissions; and
promoting the creation and sharing of scientific developments relating to
climate
change.[133] Article 4
requires that, in fulfilling these obligations, parties must take “into
account their common but differentiated responsibilities
and their specific
national and regional development priorities, objectives and
circumstances”.[134]
This
demonstrates a nuanced aspect of CBDR. Not only do developing countries have
less capacity to combat climate change, but many
have other pressing development
goals,[135] such as eradicating
poverty and encouraging economic
growth.[136] Where developing
nations prioritise these development goals, it limits their capacity to respond
to climate change.
The Convention additionally imposes further specific
obligations. Article 4(2) employs the second type of CBDR obligation identified
by Hey and Paulini, and Stone, Different Obligations, by imposing additional
obligations on developed and transitioning parties.
These parties are listed in
Annex 1. Annex 2 lists the OECD member countries alone, while developing nations
are referred to as “non-Annex
1”. Article 4(3) provides that Annex 2
parties will also provide financial resources to assist non-Annex 1 countries in
fulfilling
their obligations. This demonstrates the third and fifth types of
CBDR obligations: the Transfer of Funds and Technology, and Non-Compliance
Assistance.
The UNFCCC employs the CBDR principle by creating both universal
and targeted obligations.[137] The
Convention categorises countries according to their economic position and
assigns obligations accordingly. All parties have obligations,
but some are more
onerous than others. This honours CBDR because it encapsulates both the
“common” and “differentiated”
aspects of the
principle.[138] Although the
principle is complied with ostensibly, its implementation is more
controversial.[139] The
developed–developing categorisation regards the global community as
static, homogenous
groups.[140]
This undermines the effective application of CBDR. The principle intends to
consider parties’ differentiated positions and
assign responsibility
accordingly. Categorising states into just two groups does not accurately
consider each party’s specific
socioeconomic positions, historical
emissions or current capacity to contribute to a response to climate change. The
Convention therefore
employs CBDR, but the principle’s effectiveness is
undermined because the differentiation disregards the individual positions
of
parties.
The member states of the UNFCCC agreed to the Kyoto
Protocol at the Convention’s COP3 in 1997. The Protocol aimed to further
implement the principle of CBDR in two ways. First, art 4 employs the second
type of CBDR obligation, Different Obligations. The
article imposes mandatory
emission reduction goals onto Annex 1 countries, but not non-Annex 1
parties.[141]
Secondly, the
Protocol also implements CBDR through financial mechanisms. Article 6 creates
“emission reduction units”
that Annex 1 parties can earn from
funding emissions reductions projects in other
party-nations.[142] Additionally,
art 12 provides a “clean development mechanism” where Annex 1
countries may fund emission reduction projects
that support development in
non-Annex 1 parties.[143] The
non-Annex 1 party will reap the benefit of the reduction, and the Annex 1 party
may use the reductions achieved to contribute
toward their own
targets.[144] Both arts 6 and 12
align with the third and fifth types of CBDR obligations, Transfer of Funds and
Technology and Non-compliance
Assistance, which involve developed parties
assisting other parties—financially or otherwise—to comply with the
Protocol.
Article 3 of the Protocol makes the same
developed–developing distinction as the UNFCCC and so is subject to the
same critiques.
Article 3 is additionally criticised for not imposing any
obligations on non-Annex 1
parties.[145] While it is
important to prescribe heightened responsibility to developed parties, it is
unusual not to impose any commitments on
other
parties.[146] The Montreal
Protocol is widely regarded as an example of an MEA successfully employing CBDR
in relation to the use of ozone-depleting
substances.[147] It employed the
first type of CBDR obligation, Delayed Obligations, by requiring action from all
parties, but giving non-Annex 1
parties a 10 year grace period to comply. The
Kyoto Protocol could have similarly imposed lower or delayed reductions targets
on
non-Annex 1 countries. Failing to do so means that nations can be party to
the Protocol without having to make any emissions
reductions.[148] This has been
especially criticised because there were several non-Annex 1 parties, such as
China,[149]
who were, and continue to be, major
emitters.[150]
By not imposing any obligations on developing parties, the Kyoto Protocol is
less ambitious than it would be if all countries had
some level of obligation.
The Kyoto Protocol goes too far in attempting to acknowledge
differentiated responsibilities, and in doing so undermines the benefit
of common responsibilities.
Additionally, despite both the UNFCCC and
the Kyoto Protocol encouraging the financial support of developing countries by
developed
countries, the latter goes further by rewarding developed countries
for doing so. This allows developed countries to effectively
“buy the
right to pollute”.[151] In
the Kyoto Protocol, an emission reduction unit neutralises the emission of one
tonne of carbon.[152] This means
that parties may comply with the Protocol while continuing to emit at their
pre-Protocol or an increased rate by offsetting
these emissions with units earnt
in developing countries.[153] It
is typically less expensive to achieve reductions in non-Annex 1 nations as they
are at earlier stages of implementing sustainable
infrastructure. This mechanism
therefore empowers Annex 1 countries to comply with the Protocol more easily by
outsourcing their
reductions and offsetting their emissions, rather than
genuinely achieving domestic climate action. The Kyoto Protocol has
operationalised
CBDR in many ways that have aimed to increase and compel climate
action, but in doing so has undermined the effectiveness of the
Protocol.
The Paris Agreement was adopted at COP21 in 2015 and
is based on the fundamental goal of limiting global warming to “well
below”
2 ˚C, but preferably to 1.5 ˚C, above pre-industrial
levels.[154] The Agreement
aimed to employ CBDR differently to its predecessors. The Agreement similarly
revolves around Hey and Paulini, and
Stone’s second type of CBDR
obligation—Different Obligations—but aims to impose obligations
according to parties’
individual positions rather than through a static
binary categorisation.[155] By
2015 the international community had acknowledged that developing and developed
countries were not homogenous
groups.[156] The international
community had recognised it was important to evaluate countries’
capacities based on current economic circumstances
rather than the Annex
1–non-Annex 1 distinction that had been developed two decades
earlier.[157]
It was also important to strike a compromise between the two groups. Developed
countries sought to avoid taking full responsibility
for emissions reductions as
they had in
Kyoto.[158]
Conversely, developing countries had benefitted from the Kyoto
arrangement.[159] While it was
necessary to move away from the developed–developing distinction, it was
important to do so in a way that balanced
the goals of these groups, but still
obliged parties to act ambitiously.
The Agreement primarily aimed to satisfy
the varying priorities of states in art 3, under which parties may set
nationally determined
contributions
(NDCs).[160] NDCs allow parties to
form their own targets while taking into account their socio-economic positions
and other relevant
circumstances.[161] The Agreement
states that NDCs should become progressively ambitious as national circumstances
allow.[162] The
developed–developing distinction is still present in the Paris Agreement
to supplement this nuanced
approach.[163] Article 4(4)
clarifies that developed countries are expected to take the lead by ultimately
aiming for absolute reductions, while
developing parties may “move over
time” towards this absolute reduction
goal.[164] Finally, the Agreement
implements CBDR by qualifying many obligations with the phrase, “in the
light of different national
circumstances”.[165] This
qualification acknowledges the parties’ differing capacities to contribute
to efforts to meet the goals of the
Agreement.[166]
The Agreement
incorporates a nuanced approach to CBDR. Rather than relying on binary economic
categorisation,[167] this approach
is dynamic and flexible, and acknowledges that parties have individual positions
that can change over time.[168]
This approach encourages broad participation as parties can individually select
suitable targets, thereby upholding the idea of common
responsibility.[169]
However,
increased flexibility may not be appropriate in the context of climate change
where the consequences for a lack of ambitious
action are extremely dire. The
Agreement’s flexibility allows all parties to subjectively determine their
required contributions
according to their national
circumstances.[170] This means
that developed parties can justify setting lower reductions targets than if they
were not taking their circumstances into
account. This contrasts with the UNFCCC
and Kyoto Protocol where developed parties did not have this ability, and hence
were bound
by their more ambitious targets. This weakens the “leadership
role” of developed parties that is fundamental to
CBDR.[171] The issue this presents
is highlighted by the finding that the NDCs agreed on at the most recent meeting
of the parties at COP26
2021, if met, will not be sufficient to achieve the
ultimate goal of the Paris Agreement: to limit global warming to less than 2
˚C, let alone the preference for 1.5
˚C.[172] The flexibility
afforded by the NDC approach to CBDR undermines the ability to achieve the goals
that the Agreement is based on.
Within the climate change mitigation regime,
the Paris Agreement best reflects the differentiated positions of parties.
However, by
allowing all parties to mitigate their obligations according
to national circumstances, the Paris Agreement is less ambitious than it would
have
been if developed parties were denied this ability.
Utilising the CBDR principle would be a valuable approach to international burden sharing in responding to CIM. However, there are lessons to be learnt from its previous use in the climate change mitigation regime. Despite the variation in both the method of distinguishing parties, and the types of obligations imposed, each iteration of the mitigation regime has struggled to uphold all aspects of CBDR. This reflects the ultimate challenge of operationalising CBDR: to ensure widespread but equitable state participation while maintaining sufficient ambition to comprehensively respond to the issue.
Scholars disagree at what level
agreements to respond to CIM should be negotiated. Some scholars argue that a
multilateral agreement
is not the preferable response to
CIM.[173] Notably, McAdam argues
that future CIM will largely occur domestically and gradually, and an
international treaty may not be the
best response to respond to domestic matters
or the needs of specific
communities.[174] McAdam further
argues a multilateral agreement is an inappropriate response due to the
difficulty in establishing a clear causative
link between climate change and
migration, saying that it would be impracticable to determine when a migrant
falls within the terms
of a CIM
treaty.[175]
Others have
argued that existing regional agreements, rather than a multilateral approach,
should be employed to respond to
CIM.[176]
This regional approach would empower regional groups to craft bespoke responses
that are appropriate for their
region.[177] Additionally, a
regional approach would be easier to agree upon, because there are fewer
parties’ positions to
compromise.[178]
However, a
multilateral agreement is imperative as it would enable international
burden-sharing through the implementation of CBDR.
Any response to CIM that does
not compel the participation of the entire international community would
unfairly burden states that
contribute voluntarily. In the interests of equity,
it is important to move away from the status quo of only climate-vulnerable
states
and their neighbours participating in responding to CIM. A multilateral
agreement is necessary to ensure that the burden of responding
is equitably
shared, though such a treaty could be supplemented by domestic or regional
approaches.
This Part considers two options under which a multilateral CIM
agreement could be pursued: either by utilising existing multilateral
conventions or creating a bespoke sui generis agreement. The preferred
approach is a bespoke agreement as this provides the best scope to implement
CBDR as well as other beneficial
principles from multiple areas of law.
Several agreements relate to or acknowledge CIM without creating meaningful commitments on states to respond to CIM.[179] This Part examines the Refugee Convention and the UNFCCC and considers how they could be adapted to respond to CIM. While these agreements could have mechanisms added to them, such additions will not allow the existing agreements to properly address CIM. A bespoke agreement that can squarely consider the issue, but can draw inspiration from existing agreements, is more appropriate.
The Refugee Convention could be amended so that
climate-induced migrants are captured by its
definition.[180]
As it stands, the Convention applies only to those who are unable or unwilling
to return to their home nation due to a well-founded
fear of being persecuted
due to race, religion, nationality, political opinion, or membership of a
particular social group.[181] This
definition could be extended by an amendment to capture CIM. For example, a term
such as “vulnerability to climate change”
could be added to the list
of factors to be included by the
definition.[182] However, courts
have interpreted persecution to require both human agency and state failure,
neither of which are present in
CIM,[183] and so a person cannot
be said to be persecuted due to their vulnerability to climate
change.[184]
A more suitable amendment would not reference CIM specifically, but would expand
and loosen the definition of refugee. For example,
in 1969 the Organisation of
African Unity broadened the definition of refugee in the Convention Governing
the Specific Aspects of
Refugee Problems in Africa to include people fleeing
“events seriously disturbing public
order”.[185] This definition
has been adopted in other regional
documents.[186] Employing a
similar definition would broaden the class of people captured by the Convention
to include climate-induced migrants.
Bringing climate-induced migrants
within the scope of the Refugee Convention would be valuable as it would entitle
such migrants to
the significant rights afforded by the
Convention.[187] For example, the
Convention grants refugees the rights to employment, education and housing in
the state in which they
settle.[188] Additionally, the
Convention obliges states to protect claimants of refugee status upon arrival in
their territory, for example,
by forbidding expulsion to their home state while
their refugee status is pending and forbidding penalties for claimants’
unlawful
entry.[189]
However,
the Convention is not the preferable framework to employ to support
climate-induced migrants as it does not effectively incorporate
any approach to
burden sharing. The Convention’s preamble recognises the need to
distribute the burden of offering
asylum,[190] but the agreement
does not prescribe any approach to doing
so.[191]
Observers have hence described burden sharing as merely “soft law”
in the context of refugee
law.[192]
Additionally,
scholars have discussed how climate-induced migrants would benefit from
protections different to those in the Refugee
Convention.[193] First, the
Convention responds to individual refugees who have been persecuted by
their state.[194] By contrast, it
would be preferable for the multilateral response to CIM to be able to consider
the needs of collectives and relocate
entire communities together where
possible.[195] Second, the
Convention does not have the scope to support internal relocation or in situ
adaptation as it deals only with those fleeing internationally. A response
to the phenomenon should be sufficiently comprehensive
to support CIM in a
plurality of contexts.
In any event, advocates for states vulnerable to
climate change have indicated their desire to avoid being categorised as
“refugees”.[196] For
example, former president of Kiribati, Anote Tong, described the term as
“undignified”.[197] It
is therefore likely inappropriate and unhelpful for climate-induced migrants to
be classified as
refugees.[198]
The UNFCCC
could be employed to protect climate-induced
migrants.[199]
This could be achieved by creating a new protection mechanism or protocol at a
COP.[200] This approach is
preferrable to amending the Refugee Convention. The UNFCCC has the necessary
scope to support CIM occurring domestically
and internationally and to allow for
different types of contributions from parties. For example, some parties could
commit to receiving
migrants, whereas others could financially support those
parties or fund in situ
adaptation.[201]
The UNFCCC is
centred around CBDR, which would enable easy implementation of this
burden-sharing approach to
CIM.[202] Annex 1 parties would be
obliged to take greater action than non-Annex 1 because of their historical
contributions to climate change
and their increased capacity to respond to
climate change. Burden sharing according to CBDR could be achieved in two ways.
First,
parties could make their own pledges of commitment to support the
response, similar to the NDCs evident in the Paris Agreement. However,
as with
the Paris Agreement, this would likely result in widespread participation, but a
weak commitment to act. A second, and more
effective, approach would be to
oblige Annex 1 parties that are not vulnerable to climate change to receive
climate-induced migrants.
The commitment could be modelled off the Kyoto
Protocol, which enabled Annex 1 parties to meet their obligations primarily by
reducing
domestic emissions, but also by supporting reductions in, or
transferring finances to, other parties. Here, Annex 1 parties could
meet their
commitments primarily by receiving climate-induced migrants, but also by
supporting other countries to receive migrants
or financing in situ
adaptation. This demonstrates that the same types of CBDR obligations
employed in the mitigation regime would be useful in this context.
However,
while preferable to the Refugee Convention, the UNFCCC is not the appropriate
vehicle for a response to CIM. The Convention
is intended to interact with state
parties,[203] but in some
situations CIM affects just specific regions or communities. The use of the
UNFCCC would also require major financial
commitments from developed countries,
in addition to their existing financial responsibilities under the Convention.
This is likely
unattractive to Annex 1 parties.
The UNFCCC has struggled to
gain widespread participation without compromising its
ambition.[204] This was identified
as an obstacle when negotiating the terms of the Paris Agreement. At the 2011
COP, it was clear parties were
not prepared to agree on binding commitments
based on CBDR.[205] To ensure
party membership remained strong, negotiators had to settle for the bottom-up
NDC approach that allowed parties to select
their own
targets.[206] This removed both
the legal obligation and social pressure to commit to ambitious
action.[207] The same issue would
likely arise in negotiating a UNFCCC protocol on CIM. A protocol under the
UNFCCC would likely be weak and fail
to create an effective, meaningful approach
to burden sharing for responding to CIM.
In sum, adapting an existing
convention to capture CIM is not the preferable approach to creating a
multilateral agreement responding
to CIM. Neither the Refugee Convention nor the
UNFCCC have the necessary scope to respond to the multi-faceted and diverse
problems
CIM raises.
The Refugee Convention and UNFCCC are not
suitable to respond to CIM independently. A bespoke agreement could
cross-fertilise, and
draw helpful concepts and principles from these adjacent
areas of law while incorporating additional
ideas.[208] Cross-fertilisation
occurs where knowledge and principles from various disciplines are employed in
one context.[209] International
issues usually benefit from the jurisprudence of multiple disciplines, as they
can be used to fill in one another’s
gaps.[210] Principles from refugee
law will be useful for cross-border migration and migration in response to
sudden-onset events. The burden
sharing and cooperation principles from
international environmental law will also be
valuable.[211]
Additionally,
concepts stemming from human rights law would be an invaluable inclusion in a
bespoke agreement. Incorporating a rights-based
approach would compel the
international community to respond to CIM to promote the rights of climate
migrants.[212] There are numerous
human rights instruments that the rights could stem from, but two provide a
fundamental starting point. The right
to life afforded in art 4(2) of the ICCPR
provides a basis for the rights of victims of
disasters.[213]
Importantly, the right to life cannot be compromised, even in times of public
danger.[214] Additionally, art 11
of the International Covenant on Economic, Social and Cultural Rights
establishes the right to food, shelter
and
clothing.[215] This article has
been interpreted in a General Comment as applying even during periods of
emergency.[216] Acknowledging the
human rights of climate-induced migrants and the likelihood that these rights
will be breached during displacement
adds weight to the call for the
international community to commit to responding to support these people. The
ability to cross-fertilise
and employ these valuable principles from multiple
disciplines cements a bespoke agreement as the preferred approach.
The key
downfall of a bespoke agreement is that it would require significant and
time-consuming negotiations.[217]
With an issue so pressing, it is important that action commence as soon as
possible, and that negotiations do not distract from necessary
current
action.[218] However, a bespoke
agreement remains preferable, as adding mechanisms relating to CIM to existing
agreements may compel parties to
leave such
agreements.[219] Additional
mechanisms will add significant responsibility to parties and systems that are
already overwhelmed.[220] This is
likely unattractive to parties and may compel them to leave the existing
agreement. This would damage the international efforts
towards the issues these
conventions were designed to respond to. This is a significant concern and
should be avoided. Overall, creating
a bespoke agreement is the preferred
approach.
A new convention should first involve parties
accepting shared responsibility for CIM. Although there is already acceptance
that CIM
is a consequence of climate
change,[221] an explicit
acknowledgement of common responsibility for the issue will provide the
foundation for CBDR in this context. The agreement
should then affirm the human
rights of people who have been, or will be, displaced by climate change. This
should include communities
in areas vulnerable to climate
change.[222] This recognition,
coupled with the acceptance of shared responsibility, will add weight to the
international community’s obligation
to act.
A new convention should
then include a mechanism to establish particular communities or states as
vulnerable to climate change.[223]
Once a party has an area included in such a list, its people should become
entitled to support.[224] Further,
this categorisation should be
anticipatory.[225] The list should
not be limited to states that are currently producing climate-induced migrants,
but should also include those that
are and will experience slow-onset
environmental degradation. This will enable provision of support for in situ
adaptation and CIM in response to slow-onset events.
The convention will
need to primarily differentiate between parties that can receive climate-induced
migrants and those that cannot.
This would resemble the binary division between
developed and developing parties employed in the UNFCCC and the Kyoto Protocol.
The
Kyoto Protocol was criticised for using the binary division of parties to
exclude developing parties from having any responsibilities.
However, here it
would be inappropriate to compel parties that are developing or vulnerable to
climate change to receive climate-induced
migrants. Thus, a binary division
between countries that are suitable to receive migrants, and those that are not,
is necessary.
However, treating the two groups as homogenous, as in the
UNFCCC and the Kyoto Protocol, would be inappropriate. Countries who have
greater responsibility according to CBDR should be able to meet this
responsibility through various
methods.[226] It may be
appropriate for parties that cannot receive climate-induced migrants to
financially support domestic relocation, relocation
to other states, or in
situ adaptation efforts.[227]
Additionally, not all parties that can contribute to a response will be able to
make the same levels of commitment. A mechanism for
determining an appropriate
degree of responsibility, and a number of migrants to receive, will be
necessary. A mechanism similar
to the proposed European Union Distribution Key
may be appropriate. The Key was presented to the European Parliament in 2015
following
a major influx of refugees to the European
Union.[228]
The Key intended to determine the proportion of refugees each member-state
should be responsible for relocating. This was to be based
on several factors
including population size, gross domestic product, and the average number of
asylum applications received annually
in that
state.[229] A similar method of
allocating responsibility would be useful in this context, and could include
additional considerations, such
as historic emissions, to align more closely
with CBDR.
While the convention should create obligations for states to
contribute to a response to CIM, it must also be migrant-focused and
create a
clear and appropriate system of support for those affected. The convention
should acknowledge that CIM can affect whole
communities and should hence allow
for the relocation of communities together where
possible.[230] Additionally, the
autonomy of those who are displaced must be respected. Where international CIM
is necessary, the agreement’s
mechanisms should consider migrants’
preferred host nation.[231] The
extent of obligations owed by states will be determined primarily by CBDR, but
it should then be adjusted according to the preferences
of migrants. This does
undermine CBDR to an extent, as states may not be selected by as many migrants
as what they should equitably
be receiving. However, it is important that the
rights and autonomy of climate-induced migrants are respected so far as
possible.[232] Eckersley points
out that political refugees are not afforded these
rights.[233] She argues, however,
that because climate-induced migrants have been displaced due to the actions of
the whole international community,
as opposed to their home nation, the
community has a heightened obligation to maintain their
autonomy.[234] The choices of
climate-induced migrants are also especially important as the phenomenon of CIM
progresses. Those displaced from areas
experiencing frequent rapid-onset events,
or that will experience long-term environmental degradation, may never be able
to return
home.[235] Thus, it is
important that they are relocated somewhere where they can feel comfortable
creating a new life.[236]
This
discussion demonstrates how CBDR could be employed in a bespoke agreement
responding to CIM. Negotiators and drafters must be
mindful of the challenge of
balancing participation with ambition. It is difficult to encourage parties to
commit to acting ambitiously
in response to issues they are not directly
affected by. [237] When faced with
this dilemma, the mitigation regime floundered. In an effort to garner
participation, the regime allowed parties
so much flexibility that it undermined
the regime’s
effectiveness.[238] An agreement
for CIM will need to balance the goals of widespread engagement with achieving
meaningful commitments.
A bespoke multilateral agreement would allow the use of valuable principles from various areas of law and the incorporation of CBDR. However, achieving any form of multilateral agreement in response to CIM will be challenging due to the lack of political will.
Political will is the willingness of politicians to
create policies that would respond meaningfully to an
issue.[239]
There is little political will for any type of binding commitment relating to
climate change. This translates into a lack of political
will for a binding
response to CIM.[240] The
“windows of opportunity” theory suggests that issues are more likely
to receive an effective political response when
three things occur
simultaneously: (i) the public considers that an issue is important and requires
urgent action (public will);
(ii) there are available policies that could
respond to the issue; and (iii) there is a political commitment to act
(political will).[241] Politicians
are reluctant to tackle climate action, not because the international community
lacks the requisite science or technology,
but rather because of the lack of
public and political factors in this equation.
Political will is influenced
by public will. Leaders are unlikely to commit to action if doing so is
unpopular, as this would jeopardise
their position. For example, New Zealand
introduced an Emissions Trading Scheme (ETS) in 2008 in effort to reduce
emissions.[242] The Scheme was
originally intended to include a levy on agricultural emissions, but backlash
from the farming community meant this
levy was
removed.[243]
The inclusion of agricultural emissions would have been hugely beneficial for
New Zealand’s efforts in emissions reductions;
in 2019, the agricultural,
forestry and fishing industry produced 51 per cent of the country’s
emissions.[244] The exclusion of
this industry from the levying of the ETS thus undermined the Scheme’s
effectiveness. Discussions have continued
about whether to include this sector
in the Scheme, but until recently such proposals have been rejected due to
public resistance.[245] In October
2022, the government announced it will introduce a pricing mechanism to
agricultural emissions from
2025,[246] which has again been
met by resistance from the farming
community.[247] The recently
elected National-led government has indicated that it may further amend this
policy.[248] This example
demonstrates how political will depends on public will. It also illustrates that
even where policies may align with
government goals, such as reducing emissions,
a lack of public will can undermine political will.
The necessity of political will for effective climate action has been long acknowledged.[249] For an effective and urgent response to climate change, leaders must accept the short-term political costs of acting due to the lack of public will by acknowledging that the long-term benefit would make action worthwhile.[250] Despite knowing this, political will is still the missing ingredient for binding climate action.[251] Notably, political will has recently been acknowledged as crucial to climate action in the Intergovernmental Panel on Climate Change (IPCC) 2022 report.[252] The report acknowledged that the major obstacles to effective climate action are socio-political rather than scientific.[253] The report emphasises that the international community has the requisite technology and scientific knowledge to mitigate the effects of climate change, but that there is insufficient political will to support such action.[254]
The lack of political will to
respond to climate change generally translates to a lack of will to respond to
CIM.[255]
Discussion around a multilateral agreement to respond to the phenomenon is
predominantly driven by
scholars,[256] not political
leaders. Political leaders are hesitant to commit to protecting people outside
their jurisdictions.[257] This is
evident, for example, with many countries wanting to limit, rather than expand,
their commitments under the Refugee
Convention.[258]
Pacific
leaders are the sole group of political leaders that have repeatedly advocated
for action that would prevent mass CIM. In
2014, the Coalition of Low-Lying
Atoll Nations on Climate Change was formed so that countries particularly
vulnerable to sea-level
rise can collaborate and lobby as a
group.[259] In 2019, the Pacific
Islands Forum urged the international community to commit to targets that would
achieve 1.5 ˚C of warming,
rather than merely “well below 2
˚C”,[260] because of
the consequences of greater warming for low-lying atoll
nations.[261] The Tuvaluan Foreign
Minister famously addressed the UNFCCC’s COP26 in 2021 while knee deep in
the ocean, aiming to draw attention
to the vulnerability of low-lying atoll
states to rising sea levels.[262]
Despite these calls for action that would lessen the future rates of CIM, there
is little discussion of an agreement that would address
it squarely.
Although political and public will for a
response to CIM is limited, continued environmental degradation will soon compel
action.
The frequency of extreme weather events, natural disasters, and the rate
of environmental degradation is only set to
increase.[263] Tuvalu is expected
to experience between 17 and 37 centimetres of sea level rise by 2060, depending
on the extent of continued
emissions.[264]
This presents a significant risk to Tuvalu, which has settlements that sit at
less than 1.8 meters above sea
level.[265] Further, some
predictions foresee atolls in the Marshall Islands being uninhabitable by as
early as 2030, or at the latest
2060.[266]
The increase in severe natural events coupled with the inadequacy of the current
responses to CIM will eventually result in such
significant CIM that it will
compel the international community to establish a more effective response.
However, it would be undesirable
for the response to be reactive. An agreement
created in pressured circumstances will inevitably be rushed and less
comprehensive
than one prepared proactively. A reactive agreement would likely
struggle to garner widespread participation, and thus continue to
rely on the
participation of those directly affected. This would not distribute the burden
any further than is already the case.
A reactive agreement would neither be
capable of promoting in situ adaptation nor anticipatory CIM. To achieve
an improvement from the current ad hoc response to CIM, a proactive response is
required
so that principles like CBDR can be meaningfully incorporated, and that
anticipatory action can be taken.
Furthermore, the need to create a
multilateral response to CIM may soon be forced by the International Court of
Justice. In March
2023, Vanuatu successfully lobbied the United Nations General
Assembly to pass a resolution seeking an Advisory Opinion from the
International
Court of Justice about countries’ obligations to respond to climate
change, and the consequences for failing
to meet these
obligations.[267]
The Court will assess responsibilities stemming from several sources, such as
the UNFCCC and human rights
instruments.[268] If the opinion
confirms that existing agreements do impose binding obligations onto
parties to respond to climate change, parties may subsequently be deemed to be
non-compliant with
those agreements. Parties will likely then be obliged to
develop multilateral responses to consequences of climate change—including
CIM. This resolution has been hailed as a “turning point in climate
justice”,[269] as it could
establish the need for ambitious, urgent and equitable responses to climate
change.[270] Countries quickly
acknowledged that the Advisory Opinion will likely mean they must improve their
commitments to respond to climate
change.[271]
If the Court
finds that states are obliged to act, states will still be reluctant to do so
without public support. To encourage a
proactive multilateral agreement
responding to CIM, political and public will must be fostered. A 2022 study
found that socio-political
understandings and perceptions of climate change will
influence how effective a policy is in achieving climate change
mitigation.[272] When the public
are engaged and have a sense of urgency about the state of the climate, policies
will likely be more successful in
meaningfully mitigating climate
change.[273] These findings can be
translated to the context of CIM. If the public sense of urgency and general
awareness about the phenomenon
increases, this will assist the development of
meaningful policy responses.
A bespoke agreement is the preferred
multilateral response to CIM. However, the political will for any type of
response is low. This
is detrimental to progress, as political will is the
missing link to climate action generally. If no urgent efforts are made to
respond
to CIM, action will eventually be compelled by continued increasing
environmental degradation and the subsequent increase of displaced
people. The
current systems are inadequate to respond to the impending demand, and so action
will simply become unavoidable. Furthermore,
action may soon be compelled by the
confirmation of countries’ obligations to respond to climate change.
Reactive action is
undesirable. A proactive multilateral agreement is necessary
for anticipatory measures, such as in situ adaptation and CIM in response
to slow-onset events. A proactive agreement is also necessary to properly
incorporate an equitable
response to CIM. Political will must therefore be
garnered to ensure that states establish a proactive response.
The
phenomenon of CIM is now well-established and is forecast to become more
prevalent in the future. The current ad hoc responses
of self-relocation,
official immigration, and in situ adaptation are insufficient to support
climate-induced migrants. These approaches also unfairly burden states directly
affected by
CIM, as well as their neighbouring states. The international
community has now accepted shared responsibility for climate change.
Given
climate change causes CIM, it is appropriate that the international community in
its entirety, not only those nations directly
impacted by CIM, be tasked to
respond to it.
A multilateral agreement is necessary to set out a
comprehensive international response to CIM and to distribute responsibility to
parties according to the principle of CBDR. The best approach would be to create
a bespoke agreement that squarely addresses CIM.
This approach will have the
scope to allow parties to support domestic and international relocation, along
with in situ adaptation. It will also best incorporate CBDR and allow for
the cross-fertilisation of other valuable principles from several disciplines
of
international law, such as refugee law, international environmental law and
human rights law.
There is little political will for any binding commitments
relating to climate change, let alone an agreement addressing CIM. If there
is
no proactive action towards a response to the phenomenon, the consequences of
slow-onset events like sea-level rise, or the anticipated
Advisory Opinion of
the International Court of Justice, will soon compel reactive action. A
proactive response is preferable, as
it would enable the international community
the time to comprehensively consider the best approach, to support people in
anticipation
of urgency, and to implement CBDR to ensure there is equitable
state participation. The requisite political will must be garnered
so that a
multilateral response to CIM can be established as soon as possible.
[*] LLB(Hons), BA Wgtn. Law Clerk, Meredith Connell. The views expressed in this article are the author’s.
[2] Seneviratne, above n 1; and Ionesco, Mokhnacheva and Gemenne, above n 1, at 36.
[3] See for example Ionesco, Mokhnacheva and Gemenne, above n 1, at 2–6.
[4] See for example United Nations Framework Convention on Climate Change 1771 UNTS 107 (opened for signature 9 May 1992, entered into force 21 March 1994); Convention Relating to the Status of Refugees 189 UNTS 137 (opened for signature 28 July 1951, entered into force 22 April 1954); United Nations Global Compact on Refugees (New York, December 2018); and Global Compact for Safe, Orderly and Regular Migration GA Res 73/195 (2018).
[5] Philipp Lutz, Anna Stünzi and Stefan Manser-Egli “Responsibility-Sharing in Refugee Protection: Lessons from Climate Governance” (2021) 65 ISQ 476 at 477.
[6] Edward Maibach, Teresa Myers and Anthony Leiserowitz “Climate scientists need to set the record straight: There is a scientific consensus that human-caused climate change is happening” (2014) 2(5) Earth’s Future 295 at 295‑‑–296.
[7] Burden sharing involves distributing the responsibility for responding to an issue between parties: see Rainer Bauböck “Refugee Protection and Burden-Sharing in the European Union” 56 J Com Mar St 141 at 148.
[8] United Nations Framework Convention on Climate Change, above n 4; Kyoto Protocol to the United Nations Framework Convention on Climate Change 2303 UNTS 162 (opened for signature 11 December 1997, entered into force 16 February 2005) [Kyoto Protocol]; and Paris Agreement Under the United Nations Framework Convention on Climate Change 3156 UNTS (opened for signature 16 February 2016, entered into force 4 November 2016) [Paris Agreement].
[9] Frank Biermann “Global Governance to Protect Future Climate Refugees” in Simon Behrman and Avidan Kent (eds) Climate Refugees: Beyond the Legal Impasse? (Routledge, London, 2018) 265 at 270–271.
[10] Elin Jakobsson “How Climate-induced Migration Entered the UN Policy Agenda in 2007–2010: A Multiple Streams Assessment” (2021) 9(4) Politics Gov 16 at 17; Oriane Jolly “Climate Change-Induced Migration — The Protection Gap and Pacific Island States” (2020) 24 NZJEL 125 at 126; and Ionesco, Mokhnacheva and Gemenne, above n 1, at 3.
[11] Jakobsson, above n 10, at 17.
[13] Seneviratne, above n 1; and Ionesco, Mokhnacheva and Gemenne, above n 1, at 36.
[15] At 1.
[16] Jakobsson, above n 10, at 17; Rosignoli, above n 14, at 1; and Ionesco, Mokhnacheva and Gemenne, above n 1, at 20.
[17] Rosignoli, above n 14, at 1.
[18] Jakobsson, above n 10, at 17; Rosignoli, above n 14, at 1; and Ionesco, Mokhnacheva and Gemenne, above n 1, at 17.
[19] Rosignoli, above n 14, at 1.
[20] At 1.
[21] Robyn Eckersley “The common but differentiated responsibilities of states to assist and receive ‘climate refugees’” (2015) 14 EJPT 481 at 482.
[23] Jakobsson, above n 10, at 17.
[24] Andreas Neef and Lucy Benge “Shifting responsibility and denying justice: New Zealand’s contentious approach to Pacific climate mobilities” (2022) 22 Reg Environ Change 94 at 96.
[25] Rosignoli, above n 14, at 1.
[27] Jakobsson, above n 10, at 17.
[28] Biermann, above n 9, at 268; and Jolly, above n 10, at 154.
[29] Biermann, above n 9, at 268.
[30] Ionesco, Mokhnacheva and Gemenne, above n 1, at 3
[31] Walter Kälin and Sanjula Weerasinghe “Environmental Migrants and Global Governance: Facts, Policies and Practices” in M McAuliffe and M Kleine Solomon (eds) Ideas to Inform International Cooperation on Safe, Orderly and Regular Migration (International Organization for Migration, Geneva, 2017) 1 at 1.
[32] Mariam Taore Chazalnoel and Dina Ionesco “Advancing the Global Governance of Climate Migration through the United Nations Framework Convention on Climate Change and the Global Compact on Migration” in Simon Behrman and Avidan Kent (eds) Climate Refugees: Beyond the Legal Impasse? (Routledge, London, 2018) 103 at 105–106.
[33] Jakobsson, above n 10, at 16.
[34] At 16.
[35] At 16 and 20.
[36] Harriet Farquhar “‘Migration with Dignity’: Towards a New Zealand Response to Climate Change Displacement in the Pacific” (2015) 46 VUWLR 29 at 32; and Jolly, above n 10, at 136.
[37] United Nations Framework Convention on Climate Change, above n 4.
[38] António Guterres “Migration, Displacement and Planned Relocation” (31 December 2012) United Nations Refugee Agency <www.unhcr.org>.
[39] United Nations Framework Convention on Climate Change Outcome of the work of the Ad Hoc Working Group on Long-term Cooperative Action under the Convention CP 16 (2010) at [14(f)]; and Guterres, above n 38.
[40] Julia Taub and others “From Paris to Marrakech: Global Politics around Loss and Damage” (2016) 72 India Q 317 at 320.
[41] Paris Agreement, above n 8, preamble.
[42] Jakobsson, above n 10, at 17.
[43] At 16.
[44] Convention Relating to the Status of Refugees, above n 4.
[45] Article 1(a)(2).
[46] New York Declaration for Refugees and Migrants GA Res 71/1 (2016); and United Nations Refugee Agency “New York Declaration for Refugees and Migrants” <www.unhcr.org>.
[47] Global Compact on Refugees, above n 4, at [1]; and Lutz, Stünzi and Manser-Egli, above n 5, at 483.
[48] Global Compact on Refugees, above n 4, at [9].
[49] Lutz, Stünzi and Manser-Egli, above n 5, at 477 and 484.
[50] Global Compact for Safe, Orderly and Regular Migration, above n 4, at [18(b)].
[51] At [21(h)].
[52] At [39(b)].
[53] International Organization for Migration “History” <www.iom.int>.
[54] International Organization for Migration “Migration, Environment and Climate Change” <www.iom.int>.
[55] Chazalnoel and Ionesco, above n 32, at 105.
[56] International Organization for Migration, above n 54.
[57] Lutz, Stünzi and Manser-Egli, above n 5, at 477.
[58] Nicole Narea “Migrants are heading north because Central America never recovered from last year’s hurricanes” (22 March 2021) Vox <www.vox.com>; and María Rubi “In Honduras, climate change is one more factor sparking displacement” (9 November 2021) UNHCR <www.unhcr.org >.
[59] International Federation of Red Cross “Communities affected by Hurricanes Eta and Iota are threatened by food insecurity, displacement and the climate crisis” (11 November 2021) <www.ifrc.org>.
[60] Jeff Berardelli and Katherine Niemczyk “‘We have to go’: Climate change driving increased migration from Central America” (17 February 2021) CBS News <www.cbsnews.com>.
[61] United Nations “Poverty and violence push 378,000 Central Americans north each year” (23 November 2021) UN News <www.news.un.org>; and World Food Programme “Charting a New Regional Course of Action” (November 2021) <www.docs.wfp.org> at 2.
[62] World Food Programme, above n 61, at 2.
[63] Eckersley, above n 21, at 495.
[64] Ministry of Business, Innovation and Employment “Pacific Migrants Trends and Settlement Outcomes report” <www.mbie.govt.nz>; and Neef and Benge, above n 24, at 94.
[65] Ministry of Foreign Affairs and Trade “Pasifika New Zealand” <www.mfat.govt.nz>; and Statistics New Zealand “Ethnic group summaries reveal New Zealand multicultural make up” (3 September 2020) StatsNZ <www.stats.govt.nz>.
[66] “NZ considers developing climate change refugee visa” (31 October 2017) RNZ <www.rnz.co.nz>; and Charles Anderson “New Zealand considers creating climate change refugee visas” The Guardian (online ed, London, 31 October 2017).
[67] Neef and Benge, above n 24, at 99; and Jane McAdam and Maryanne Loughry “We aren’t refugees” (30 June 2009) Inside Story <insidestory.org.au>.
[68] Immigration New Zealand “Pacific Access Category Resident Visa” <www.immigration.govt.nz>.
[69] 150 visas per year for citizens of Kiribati and Tuvalu respectively, and 500 from Tonga and Fiji respectively. Note that the number of visas available under the Pacific Access Category in 2022–2023 doubled from the 2021–2022 availability.
[70] Immigration New Zealand “Samoan Quota Resident Visa” <www.immigration.govt.nz>.
[71] Immigration New Zealand, above n 70.
[72] New Zealand Immigration “Recognised Seasonal Employer (RSE) scheme research” <www.immigration.govt.nz>.
[73] New Zealand Immigration, above n 72.
[74] Neef and Benge, above n 24, at 99.
[75] At 99.
[76] Re AF (Kiribati) [2013] NZIPT 800413 (25 June 2013) at [36].
[77] Farquhar, above n 36, at 32.
[78] Re AF (Kiribati), above n 76, at [53] and [75].
[79] Jolly, above n 10, at 138–139.
[80] Teitiota v Chief Executive of the Ministry of Business Innovation and Employment [2013] NZHC 3125 [Teitiota (HC)]; Teitiota v Chief Executive of the Ministry of Business Innovation and Employment [2014] NZCA 173, [2014] NZAR 688.
[81] Teitiota v Chief Executive of the Ministry of Business Innovation and Employment [2015] NZSC 107 [Teitiota (SC)].
[82] At [12].
[83] AD (Tuvalu) [2014] NZIPT 501370-371 (4 June 2014).
[84] At [1].
[85] At [17] and [30]–[31]; and Immigration Act 2009, s 207.
[86] Teitiota (SC), above n 81, at [12]; and AD Tuvalu, above n 83, at [32].
[87] AF (Kiribati), above n 76, at [27]; Teitiota (HC), above n 80, at [27]; and Teitiota (SC), above n 81, at [13].
[88] AD Tuvalu, above n 83, at [33].
[89] Richard Curtain and others Labour mobility: The ten billion dollar prize (The World Bank, Washington DC, February 2017) at 10.
[90] Neef and Benge, above n 24, at 94.
[91] See Part II.A.
[92] Neef and Benge, above n 24, at 98.
[93] Ministry for the Environment New Zealand’s Fourth Biennial Report under the United Nations Framework Convention on Climate Change (ME 1481, December 2019) at 128–132.
[94] At 120.
[97] Neef and Benge, above n 24, at 100. In 2020, New Zealand pledged to contribute $2 million to the fund: see Jo Moir “New Zealand to give $2m to Fiji climate change relocation fund” (26 February 2020) RNZ <www.rnz.co.nz>.
[98] Climate Relocation of Communities Trust Fund Act 2019 (Fiji).
[99] Fijian Government “World’s First-Ever Relocation Trust Fund For People Displaced By Climate Change Launched by Fijian Prime Minister” (25 September 2019) <www.fiji.gov.fj>.
[101] Neef and Benge, above n 24, at 98.
[102] At 103.
[103] Mariya Gromilova “Revisiting Planned Relocation as a Climate Change Adaptation Strategy: The Added Value of a Human Rights Based Approach” (2014) 10(1) Utrecht L Rev 76 at 79–80; and Leandrea Fiennes “New Zealand’s Climate Refugee Visa, a Framework for Positive Change: Creating a regional framework of protections for climate migrants in the Pacific” (LLB(Hons) Dissertation, University of Otago, 2019) at 26.
[104] Anote Tong, President of Kiribati “Statement by H.E President Anote Tong” (9th Plenary Meeting, 69th Session of the General Assembly of the United Nations, New York, 26 September 2014); and Kausea Natano, Prime Minister of Tuvalu “Tuvalu National Statement for the World Leaders Summit” (UNFCCC COP26, Glasgow, 2021).
[105] Jolly, above n 10, at 128.
[106] Biermann, above n 9, at 265–266; and Neef and Benge, above n 24, at 98.
[107] Biermann, above n 9, at 265.
[108] Neef and Benge, above n 24, at 100.
[109] Jane McAdam “Swimming against the Tide: Why a Climate Change Displacement Treaty is Not the Answer” (2011) 23 IJRL 2 at 16.
[110] Ulrich Beyerlin “Different Types of Norms in International Environmental Law Policies, Principles, And Rules” in Daniel Bodansky, Jutta Brunée and Ellen Hey (eds) The Oxford Handbook of International Environmental Law (Oxford University Press, Oxford, 2008) 425 at [4.5].
[111] Armin Rosencranz and Kanika Jamwal “Common but Differentiated Responsibilities and Respective Capabilities: Did This Principle Ever Exist?” (2020) 50 EP & L 291 at 292; and Ellen Hey and Sophia Paulini “Common but Differentiated Responsibilities” in R Wolfrum (ed) Max Planck Encyclopedia of Public International Law (Oxford University Press, Oxford, 2015) at [5].
[112] Ellen Hey “Principles” in Advanced Introduction to International Environmental Law (eBook ed, Edward Edgar Publishing, 2016) ch 4 at [4.5.7].
[113] Rosencranz and Jamwal, above n 111, at 292; and Tian Wang and Xiang Gao “Reflection and operationalization of the common but differentiated responsibilities and respective capabilities principle in the transparency framework under the international climate change regime” (2018) 9 Adv Clim Chang Res 253 at 253.
[114] Hey, above n 112, at [4.5.7]
[115] At [4.5.7]; and Wang and Gao, above n 113, at 253–254.
[116] Hey and Paulini, above n 111, at [5].
[117] See for example United Nations Framework Convention on Climate Change, above n 4, art 3(1); and Paris Agreement, above n 4, art 4(4).
[118] Jutta Brunnée and Charlotte Streck “The UNFCCC as a negotiation forum: towards common but more differentiated responsibilities” (2013) 13 Clim Policy 589 at 592.
[119] Sven Bode “Equal Emissions Per Capita Over Time – A Proposal to Combine Responsibility and Equity of Rights for Post-2012 GHG Emission Entitlement Allocation” (2004) 14 Euro Env 300 at 301; Lutz, Stünzi and Manser-Egli, above n 5, at 479–480; Lucas Bretschger “Climate policy and equity principles: fair burden sharing in a dynamic world” (2013) 18 Environ Dev Econ 517 at 524; and Aaditya Mattoo and Arvind Subramanian “Equity in Climate Change: An Analytical Review” (2011) 40 World Dev 1083 at 1083–1084.
[121] Hey and Paulini, above n 111, at [7]; and Christopher D Stone “Common but Differentiated Responsibilities in International Law” (2004) 98 AJIL 276 at 278. See for example Montreal Protocol on Substances that Deplete the Ozone Layer 1522 UNTS 3 (opened for signature 16 September 1987, entered into force 1 January 1989), art 5(1).
[122] Hey and Paulini, above n 111, at [7]; and Stone, above n 121, at 277–278. See for example Kyoto Protocol, above n 8, art 3.
[123] Hey and Paulini, above n 111, at [7]; and Stone, above n 121, at 278. See for example Convention on Biological Diversity 1760 UNTS 79 (opened for signature 5 June 1992, entered into force 29 December 1993), arts 20 and 21.
[124] Hey and Paulini, above n 111, at [7].
[125] At [7].
[126] Lutz, Stünzi and Manser-Egli, above n 5, at 478; and William Nordhaus “Climate Change: The Ultimate Challenge for Economics” (2019) 109 Am Ec Rev 1991 at 1992.
[127] Lutz, Stünzi and Manser-Egli, above n 5, at 478; and McAdam, above n 109, at 16.
[128] At COP18 the Warsaw International Mechanism for Loss and Damage acknowledged displacement as a consequence of climate change: see Taub and others, above n 40, at 320.
[129] United Nations Framework Convention on Climate Change, above n 4.
[130] Neef and Benge, above n 24, at 95.
[132] Article 3(1).
[133] Article 4(1); and Wang and Gao, above n 113, at 254.
[134] United Nations Framework Convention on Climate Change, above n 4, art 4(1).
[135] Hey and Paulini, above n 111, at [5].
[136] Brunnée and Streck, above n 118, at 592.
[137] Wang and Gao, above n 113, at 254.
[138] Brunnée and Streck, above n 118, at 590.
[139] At 590.
[140] Lukas Hermwille and others “UNFCCC Before and After Paris” (2017) 17 Clim Policy 150 at 162; and Hey and Paulini, above n 111, at [8].
[142] Article 6(1).
[143] Article 12(2).
[144] Article 12(3).
[145] Hermwille and others, above n 140, at 162.
[146] At 162.
[147] Hermwille and others, above n 140, at 160. See Montreal Protocol on Substances that Deplete the Ozone Layer, above n 121.
[148] Hermwille and others, above n 140, at 160–161.
[149] Patrícia Galvão Ferreira “‘Common But Differentiated Responsibilities’ in the National Courts, Lessons from Urgenda v The Netherlands” (2016) 5 TEL 329 at 339.
[150] At 348.
[151] Rosencranz and Jamwal, above n 111, at 293.
[152] At 293.
[153] At 293.
[154] Paris Agreement, above n 8, art 2(1)(a).
[155] Hey and Paulini, above n 111, at [8].
[156] Brunnée and Streck, above n 118, at 598.
[157] Hey and Paulini, above n 111, at [8]; and Sandrine Maljean-Dubois “The Paris Agreement: A New Step in the Gradual Evolution of Differential Treatment in the Climate Regime?” (2016) 25 RECIEL 151 at 152.
[158] Lavanya Rajamani “Ambition and differentiation in the 2015 Paris Agreement: Interpretative Possibilities and Underlying Politics” (2016) 65 ICLQ 493 at 494.
[159] Rajamani, above n 158, at 494; and Brunnée and Streck, above n 118, at 590.
[161] Rosencranz and Jamwal, above n 111, at 295.
[162] United Nations Framework Convention on Climate Change, above n 4, art 3; and Rosencranz and Jamwal, above n 111, at 295.
[163] Hey and Paulini, above n 111, at [8].
[164] Paris Agreement, above n 8, art 3(1).
[165] Preamble and arts 2(2), 4(3), 4(4) and 4(19).
[166] Wang and Gao, above n 113, at 254.
[167] At 254.
[168] Rajamani, above n 158, at 511; and Maljean-Dubois, above n 157, at 154.
[169] Ferreira, above n 149, at 349.
[170] Maljean-Dubois, above n 157, at 155.
[171] Ferreira, above n 149, at 347.
[172] Intergovernmental Panel on Climate Change Climate Change 2022: Mitigation of Climate Change | Summary for Policy Makers (IPCC AR6 WG III, April 2022) at [B.6].
[173] See for example McAdam, above n 109.
[174] At 4 and 8.
[175] At 12–14.
[176] Paramjit S Jaswal and Stellina Jolly “Climate Refugees: Challenges and Opportunities for International Law” (2013) 55 JILI 45 at 56; and Jolly, above n 10, at 147.
[177] Jaswal and Jolly, above n 176, at 56; and Jolly, above n 10, at 147.
[178] Jolly, above n 10, at 147.
[179] See Part II.B.
[180] Neef and Benge, above n 24, at 96; and Simon Behrmann and Avidan Kent “Overcoming the legal impasse? Setting the scene” in Simon Behrman and Avidan Kent (eds) Climate Refugees: Beyond the Legal Impasse? (Routledge, London, 2018) 3 at 10.
[181] Convention Relating to the Status of Refugees, above n 4, art 1(a)(2).
[182] Jaswal and Jolly, above n 176, at 54.
[183] Re AF (Kiribati), above n 76, at [53]–[55].
[184] Michel Prieur “Towards an International Legal Status of Environmentally Displaced Persons” in Simon Behrman and Avidan Kent (eds) Climate Refugees: Beyond the Legal Impasse? (Routledge, London, 2018) 233.
[185] OAU Convention Governing the Specific Aspects of Refugee Problems in Africa 1001 UNTS 45 (opened for signature 10 September 1969, entered into force 20 June 1974), art 1(2); and Behrmann and Kent, above n 180, at 10.
[186] See Cartagena Declaration on Refugees adopted by the Colloquium on the International Protection of Refugees in Central America, Mexico, and Panama (signed 22 November 1984).
[187] Jolly, above n 10, at 146.
[188] Convention Relating to the Status of Refugees, above n 4, arts 16–24.
[189] Articles 31 and 32.
[190] Preamble.
[191] Claire Inder “The Origins of ‘Burden Sharing’ in the Contemporary Refugee Protection Regime” (2017) 29 IJRL 523 at 525.
[192] At 525–526
[193] Biermann, above n 9, at 269; and Prieur, above n 184, at 235.
[194] Biermann, above n 9, at 270.
[195] At 270.
[196] Eckersley, above n 21, at 482; and McAdam and Loughry, above n 67.
[197] Eckersley, above n 21, at 482.
[200] Neef and Benge, above n 24, at 97; and Biermann and Boas, above n 199, at 12.
[201] Eckersley, above n 21, at 491.
[202] Biermann, above n 9, at 271; and Behrman and Kent, above n 12, at 9.
[203] Neef and Benge, above n 24, at 97.
[205] Eckersley, above n 21, at 491–492.
[206] At 491–492.
[208] Neef and Benge, above n 24, at 97.
[209] Manel González-Piñero and others “Cross-fertilization of knowledge and technologies in collaborative research projects” (2021) 25(11) JKM 34 at 36.
[210] Chiara Giorgetti and Mark Pollack “Beyond Fragmentation: Cross Fertilization, Cooperation and Competition among International Courts and Tribunals” in Chiara Giorgetti and Mark Pollack (eds) Beyond Fragmentation: Cross Fertilization, Cooperation, and Competition among International Courts and Tribunals (Cambridge University Press, Cambridge, 2022) 1 at 17–18.
[211] See Part IV.B.2; and Neef and Benge, above n 24, at 97.
[212] Charter of the United Nations, arts 1(3) and 55(c); and see Jolanda van der Vliet “‘Climate Refugees’: A legal mapping exercise” in Simon Behrman and Avidan Kent (eds) Climate Refugees: Beyond the Legal Impasse? (Routledge, London, 2018) 16 at 17.
[213] International Covenant on Civil and Political Rights 999 UNTS 171 (signed 16 December 1966, entered into force 23 March 1976), art 6.
[214] Article 4(2); and Prieur, above n 184, at 236.
[215] International Covenant on Economic, Social and Cultural Rights 993 UNTS 3 (signed 16 December 1966, entered into force 3 January 1976), art 11; and Prieur, above n 184, at 236.
[216] Committee on Economic, Social and Cultural Rights General Comment 7: The right to adequate housing (art 11.1 of the Covenant): forced evictions E.1998/22 (20 May 1997); and Prieur, above n 184, at 235–236.
[217] Biermann, above n 9, at 271.
[218] McAdam, above n 109, at 5.
[219] Prieur, above n 184, at 235; and Jolly, above n 10, at 146.
[220] Jolly, above n 10, at 146.
[221] At COP18 the Warsaw International Mechanism for Loss and Damage acknowledged displacement as a consequence of climate change: Taub and others, above n 40, at 320; and Ionesco, Mokhnacheva and Gemenne, above n 1, at 112.
[222] As discussed in Part IV.B.1.
[223] Biermann, above n 9, at 272.
[224] At 272.
[225] At 270.
[226] Lutz, Stünzi and Manser-Egli, above n 5, at 480.
[228] Martin Altemeyer-Bartscher and others “On the Distribution of Refugees in the EU” (2016) 51 Intereconomics 220 at 225; and Eiko Thielemann “Why Refugee Burden-Sharing Initiatives Fail: Public Goods, Free-Riding and Symbolic Solidarity in the EU” (2018) 56 J Com Mar St 63 at 77.
[229] Altemeyer-Bartscher, above n 228, at 225; and Thielemann, above n 228, at 77.
[230] Biermann, above n 9, at 270.
[231] Eckersley, above n 21, at 494; and Jolly, above n 10, at 147.
[232] Eckersley, above n 21, at 494.
[233] At 493.
[234] At 494.
[235] At 493.
[236] Biermann, above n 9, at 270.
[237] Neef and Benge, above n 24, at 95–96.
[238] See discussion in Part III.B.3.
[239] Andy Leiserowitz “Building Public and Political Will for Climate Change Action” in Daniel C Etsy (ed) A Better Planet: Forty Big Ideas for a Sustainable Future (Yale University Press, New Haven (Conn), 2019) 155 at 155.
[240] McAdam, above n 109, at 15–16.
[241] Leiserowitz, above n 239, at 156.
[242] Climate Change Response Act 2002; Climate Change Response (Emissions Trading) Amendment Act 2008; and Environmental Protection Authority “About the Emissions Trading Scheme” <www.epa.govt.nz>.
[243] Suzi Kerr and Andrew Sweet “Inclusion of Agriculture in a Domestic Emissions Trading Scheme: New Zealand’s Experience to Date” (2008) 5(4) FPJ 19 at 19; and Nikki Mandow “Tractor protests and hot air: Our greatest emitters put up the biggest fight” (23 August 2022) Newsroom <www.newsroom.co.nz>.
[244] Statistics New Zealand “Greenhouse gas emissions (industry and household): Year ended 2019” (8 July 2021) StatsNZ <www.stats.govt.nz>.
[245] For example, agriculture was meant to be subject to price-based mechanisms from 2013: see Kerr and Sweet, above n 243, at 20.
[246] He Waka Eke Noa “About” <hewakaekenoa.nz>.
[247] Russell Palmer “Farmers, environmentalists weigh in on farm-level pricing plan” (11 October 2022) RNZ <www.rnz.co.nz>.
[248] National Party “Reducing agricultural emissions” <national.org.nz>.
[249] For example, the former OECD Secretary-General, José Ángel Gurría, accepted in his speech to the OECD Forum in 2008 that political will is fundamental to climate action: see Ángel Gurría, Secretary-General of the OECD “Climate Change: A Matter of Political Will” (speech on Mobilising Political Will at OECD Forum 2008, OECD International Conference Centre, Paris, 3 June 2008).
[251] See the discussion of the Paris Agreement in Part IV.A.2; and Eckersley, above n 21, at 491–492.
[252] Intergovernmental Panel on Climate Change Climate Change 2022: Mitigation of Climate Change (IPCC AR6 WG III, April 2022) at 44 and 46.
[253] Dana Nuccitelli “New IPCC report: Only political will stands in the way of meeting the Paris targets” (6 April 2022) Yale Climate Connections <www.yaleclimateconnections.org>; Zoya Teirstein “Scientists Identify the Missing Ingredient for Climate Action: Political Will” (8 April 2022) Grist <grist.org/politics>; and Alejandro de la Garza “We Have the Technology to Solve Climate Change. What We Need is Political Will” (7 April 2022) Time <www.time.com>.
[254] Nuccitelli, above n 253.
[255] Jane McAdam Climate Change, Forced Migration and International Law (Oxford University Press, New York, 2012) at 197.
[256] At 190–192.
[257] At 197.
[258] Marta Picchi “Climate Change and the Protection of Human Rights: The Issue of Climate Refugees” (2016) 13 US China L Rev 576 at 580.
[259] United Nations Development Project “Coalition of Low-Lying Atoll Nations on Climate Change gather in Palau” (6 July 2022) <www.undp.org>.
[260] Paris Agreement, above n 8, art 2(1)(a).
[261] Kainaki II Declaration for Urgent Climate Change Action Now PIF (19)14 (signed 16 August 2019).
[262] Lucy Handley “Pacific island minister films climate speech knee-deep in the ocean” (8 November 2021) CNBC <www.cnbc.com>; Tagaloa Cooper “COP26 Glasgow Climate Pact - ‘We didn’t come home empty handed’” (2 December 2021) RNZ <www.rnz.co.nz>; and “Tuvalu Minister to address Cop26 knee deep in water to highlight climate crisis and sea level rise” The Guardian (online ed, London, 8 November 2021).
[263] United States Environmental Protection Agency “Climate Change Indicators: Weather and Climate” (1 August 2022) <www.epa.gov>.
[264] Commonwealth Scientific and Industrial Research Organisation (CSIRO) and Secretariat of the Pacific Regional Environmental Programme (SREP) ‘NextGen’ Projections for the Western Tropical Pacific: Current and Future Climate for Tuvalu (October 2021) at iii.
[265] Michael Oppenheimer and Bruce Glavovic “Sea Level Rise and Implications for Low-Lying Islands, Coasts and Communities: Supplementary Material” in Hans-Otto Pörtner and others (eds) The Ocean and Cryosphere in a Changing Climate (Cambridge University Press, Cambridge, 2019) at 4SM-12.
[266] Robert McSweeney “Low-lying atolls could become ‘uninhabitable’ earlier than thought” (25 April 2018) Carbon Brief: Clear on Climate <www.carbonbrief.org>.
[267] “UN resolution billed as a turning point in climate justice” (31 March 2023) United Nations Environmental Programme <unep.org>; and “The Republic of Vanuatu succeeded in the adoption of UNGA Resolution calling for an Advisory Opinion on Climate Change from the International Court of Justice” Vanuatu ICJ Initiative <vanuatuicj.com>.
[268] United Nations Environmental Programme, above n 267.
[269] United Nations Environmental Programme, above n 267.
[270] See for example the United Nations High Commissioner for Human Rights Volker Türk “General Assembly votes to seek World Court’s opinion, in quest for ‘bolder’ climate action” (29 March 2023) UN News <news.un.org>.
[271] Michael Neilson “James Shaw says NZ will have to lift game on climate change after Vanuatu’s historic United Nations bid for International Court of Justice decision” The New Zealand Herald (online ed, Auckland, 30 March 2023).
[272] Frances C Moore and others “Determinants of emissions pathways in the coupled climate-social system” (2022) 603 Nature 103 at 109.
[273] Intergovernmental Panel on Climate Change, above n 252, at “Summary for Policy Makers” [E.3.3].
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