As Biden Seeks Answers on Climate’s Impact on Migration, Sydney Declaration Provides Legal Ground Rules for Action

In an executive order earlier this month, President Joe Biden ordered a report into “climate change and its impact on migration, including forced migration, internal displacement, and planned relocation,” including “options for protection and resettlement of individuals displaced directly or indirectly from climate change.”

The order links some of the main challenges that he faces as president – the continued arrival of migrants and asylum seekers at the southern border, re-building the refugee program that the Trump administration dismantled, and addressing the far-reaching impacts of the climate crisis.

Already, millions of people are displaced each year by the impacts of disasters. In fact, three times as many people are displaced internally by disasters than by conflict. These numbers may well grow as disasters become more frequent and severe because of climate change.

Despite the scale of this displacement challenge, a huge amount of work has already been done to tackle it. Just as epidemiologists had been preparing for a pandemic, experts skilled in displacement, disasters, climate change, and development have long been working on their own action plan. In fact, five years ago, 109 governments – including the United States – embraced a blueprint to ensure that people displaced in the context of climate change and disasters were protected and empowered. It is called the Nansen Initiative’s Protection Agenda and its recommendations remain just as relevant today.

Building on this is another landmark document, the Sydney Declaration of Principles on the Protection of Persons Displaced in the context of Sea Level Rise, developed without fanfare by the International Law Association in 2018. In my role as co-rapporteur of the International Law Association’s Committee on International Law and Sea Level Rise, I led the drafting of the Declaration.

The Sydney Declaration provides a set of sound, empirically based and legally progressive principles to guide governments’ actions. As the United States embarks on its own analysis of displacement and migration in the context of climate change, the Sydney Declaration provides the legal ground rules for action. It sets out governments’ obligations under human rights law, refugee law, and disaster law to protect people from foreseeable risks. Although drafted with the specific impacts of sea-level rise in mind, the principles also apply in other contexts where the impacts of climate change affect human movement.

The Sydney Declaration recognizes upfront that preventing displacement is a priority. The most effective way to do this is through cutting greenhouse gas emissions, but this won’t be enough on its own. We also need to see better disaster risk reduction and climate change-adaptation measures, including laws and policies that enable people to remain in their homes where possible and desirable, to move elsewhere if they wish, and to get help and protection if they are displaced.

The public debate often begins – and stalls – with talk of “climate refugees.” In legal terms, there is no such thing as a “climate refugee,” but there are certainly refugees whose circumstances are worsened because of the adverse effects of climate change. Conflict, persecution, and disasters are often interlinked, and disasters can exacerbate discrimination or result in a breakdown of law and order. While in some cases, people who cross borders will qualify as refugees, in many other situations, they won’t. That’s why in 2019, bills were introduced into the U.S. House and Senate to authorize, among other things, “the admission of climate-displaced persons.” And, in fact, between 1952 and 1980, U.S. law did provide protection to people fleeing “natural calamities” (although between 1965 and 1980, no one was admitted as a refugee on this basis).

What’s more relevant here is human rights law, which prevents governments from sending people to places where they face a serious risk to their life or safety. This is an area ripe for U.S. reform. The Biden administration should follow the lead of countries around the world – including in Europe, the United Kingdom, Canada, Australia, New Zealand, and parts of Latin America and Africa – and adopt legislation on complementary protection to safeguard people from return to ill-treatment, including because of climate change impacts.

International law doesn’t explicitly address the right of admission and stay of people who migrate because of the actual or anticipated effects of climate change. Migration opportunities depend on the laws and policies in place in each country. We know that migration can be an important adaptation and risk-management strategy because it enables people to move before disaster strikes, safely and on their own terms.

This is why the Sydney Declaration suggests that governments should consider creating new domestic and regional laws and agreements to facilitate temporary, circular, and permanent migration, in accordance with applicable international human rights law and international labor law standards.

Countries like the United States also have an obligation to cooperate with countries affected by disaster and climate change, both internationally and regionally. As the Sydney Declaration notes, this may include: providing technical and financial support; strengthening disaster risk reduction and climate change adaptation; evacuating people to save lives; providing humanitarian assistance; and enabling cross-border migration.

At the same time, the United States mustn’t forget the risks of disaster displacement faced by its own citizens. The devastating impacts of Hurricane Katrina (2005) and Hurricane Sandy (2012) showed that people can be left homeless, jobless, and at heightened risk, particularly in minority and low-income communities. As the Sydney Declaration notes, where sheltering in place isn’t possible, the government must evacuate people whose lives are at imminent risk from a disaster – and even relocate communities permanently when their land is no longer safe. The United States is already facing this predicament, with four coastal tribes and one Alaska Native Village complaining to the United Nations that the U.S. government’s failure to respond to their repeated requests for relocation placed them “at existential risk.” President Barack Obama had started to tackle the issue; Biden will now need to pick up the slack.

It’s clear that Biden has his work cut out for him: Displacement is a complex issue that strikes at the heart of identity and belonging. But it’s equally clear that there’s a wealth of experience and experts to guide him and his administration – and we stand ready to do so.

Image: People walk near the remains of burned homes after Hurricane Sandy on October 31, 2012 in the Breezy Point neighborhood of the Queens borough of New York City. Photo by Mario Tama/Getty Images

 

About the Author(s)

Jane McAdam

Scientia Professor of Law and Director of the Kaldor Centre for International Refugee Law at the University of New South Wales. Follow her on Twitter (@profjmcadam).