Abstract
Environmental factors contribute significantly to human movement. Even the earliest migrations from Africa into Eurasia reflected the “push” of environmental factors.1 Yet, since at least the 1970s, terms like “environmental refugees” and “climate refugees” have been increasingly used as (legally inaccurate) labels for people forced to leave their homes due to disasters and the adverse effects of climate change.2 It is certainly true that the scale of displacement in disaster situations can be substantial. Sudden-onset disasters linked to natural hazards, such as storms, flooding, volcanic eruptions and wildfires, triggered an estimated 336.7 million incidents of internal displacement between 2009 and 2022 worldwide.3 Slow-onset disasters, such as drought and desertification, also add significantly to internal migration and displacement trends.4 Moreover, although displacement in disaster contexts appears mainly to take place within countries, international mobility dynamics are also documented in the context of both sudden-onset and slow-onset disasters.5 Unchecked global climate change is likely only to exacerbate all these displacement trends.6
In disaster contexts, displacement is linked to the interaction of sudden- or slow-onset hazards with the vulnerability and the actual or anticipated inability of those who are exposed to it to cope with associated harm and loss.7 These forms of actual and anticipated harm and loss drive the potential for displacement in disaster contexts, both as movement away from the affected zone and reluctance by those already outside it to return. But these disaster-related risks can act as direct and indirect drivers not only for displacement but also for wider migration trends and, conversely, immobility.8 Nor are these risks always the only, or even primary, factor influencing individual or collective decisions about movement in these contexts.9 Indeed, the relationship between the intersecting factors that influence movement decisions in these contexts is often highly complex and contextual.10 This “multi-causal” character of movement in disaster contexts is not unique to these situations, but reflective of human mobility processes more generally. Thus, whilst an automatic causal link cannot always be assumed between such risks of harm in disaster contexts and the occurrence of displacement,11 those risks (and others) do contribute to the potential for displacement and often underpin it in quite significant ways.
The risks of harm and loss posed by disasters are addressed principally by specialised legal and policy regimes relating to disaster risk reduction and climate change mitigation and adaptation.12 But the existence of these risks also raises questions about whether international protection regimes in refugee and human rights law apply to persons displaced outside their country or unable to return. In practice, despite an emerging body of scholarship and several policy positions by international agencies,13 legal and conceptual ambiguity persists on the eligibility for international protection of such persons. This is reinforced by the relative paucity (as yet) of jurisprudence that engages conceptually with this topic. As such, decision-makers engaged administratively or judicially in refugee status determination at the national and international levels face particular challenges in deciding claims set against the factual matrix of disasters and climate change. Accessible and practical guidance is required on the application of international refugee and human rights law to claims disclosing such facts.
The Refugee Law Initiative (RLI) Declaration on International Protection, adopted at its Annual Conference on 3 June 2024, sets out new guidance for decision-makers on determining claims from people seeking international protection due to the effects of disasters and climate change. The present paper provides analysis for the positions outlined in the Declaration, which reflects the views of a range of independent experts and scholars at the RLI.14 This paper starts by situating international protection as but one legal response to the situation of people outside their countries due to disasters (section 2). Instead, migration law will often be the primary framework for resolving mobility issues in this context. Nonetheless, for persons who do face a risk of harm, international protection law may potentially apply. The paper sets out guidance, for international protection purposes, on how to conceptualise disasters (section 3) and claims in this context (section 4), and on the application of specific elements of the universal and regional refugee definitions (section 5) and the non-refoulement principle in international human rights law (section 6).15