Political Will

At this stage, the question is whether there is a political will between Nation-States to reach a consensus to give a real and meaningful solution to climate migration. The answer somehow has been influenced by the on-going debate among Nation-States, NGOs, scholars, and International Organizations around the intensity of the effects of climate change, which causes alterations to the decision-making process of Nation-States in relation to possible solutions. The ^{Intergovernmental Panel on Climate Change (2014)} has pointed out that “[…] responding to climate-related risks involves decision making in a changing world, with continuing uncertainty about the severity and timing of climate-change impacts and with limits to the effectiveness of adaptation” (^{Intergovernmental Panel on Climate Change, 2014, p. 9}). In this respect, the debate among scholars is composed by those who consider that one of the impacts of climate change is forced migration (maximalist) and those who consider that migration on account of climate change will be only “indirect or multifaceted” (minimalist) (^{Gogarty, 2011, p. 175}; ^{Thornton, 2012, p. 149}; ^{Mayer, 2013, p. 3}).

Consequently, while there is recognition by Nation-States regarding climate change as a new factor of migration, the uncertainty about the scope of the problem has prevented them from reaching a consensus over possible solutions from the financial and legal viewpoint.

According to ^{Wyman (2013)}, precisely, these two aspects are gaps in the law and policy on climate change migration. ^{Wyman (2013)} describes them as the “rights gap” and the “funding gap,” where the first refers to the “lack of a right in existing law to remain permanently in another country due to environmental conditions in the home country” and the latter to the “lack of a dedicated source of international funding to help offset the costs that developing countries may incur in dealing with climate change migration” (2013, p. 169).

In this respect, putting the topic of climate change and forced migration at the center of the political discussion will set the path policy makers should follow in order to design methods that will provide financial and legal protection to the populations vulnerable to these situations. In addition, it is necessary to consider migration as an adaptation strategy:

“[…] where key policy responses to environmental migration should include protection and supportive services for migrants, such as investing in the environmentally impacted regions to reduce the flow of migrants, investing in host regions to help relieve them of the burdens on infrastructure due to receiving a substantial number of migrants, and considering rights-based resettlement efforts for populations directly displaced by the effects of climate change” ( ^{Toscano, 2017, pp. 474-475} ).

Legal Framework

Building a new legal framework to address climate migration, in which there is recognition of a new category of persons worthy of international protection or finding legal protection for environmentally displaced people within the international refugee law framework has been proven extremely difficult.

In the first place, political will is needed, as explain by ^{Feijen (2012)}, to get Nation-States to agree to share burdens and to accept to give immigration status to those people displaced across borders because of climate change (2012, pp. 63-64). In the second place, even though some commentators such as ^{Burleson (2010)} have affirmed that amending the existing refugee law framework will “[…] end the legal limbo that future ecomigrants face” (2010, p. 22), the lack of political will is evident and this option seems less plausible.⁵ Nowadays, the fundamental structure of refugee protection is in crisis, and rather than being willing to negotiate a new agreement to offer more protection to vulnerable populations, governments are negotiating agreements that allow them to circumvent principles as important as the principle of non-refoulement.⁶ In the third place, the legal possibility or even the convenience of using international refugee law to afford protection to climate migrants, also called by some scholars as “climate refugees,”⁷ is highly controversial.

With regard to this last issue, it is important to point out that under international refugee law, mostly the 1951 Convention on the Status of Refugees (hereinafter the 1951 Convention) and the 1967 Protocol Relating to the Status of Refugees, the concept of refugee is very restrictive and even more so if it is considered that many States “tend to establish policies to keep refugees outside their jurisdiction, and, consequently, imperil the protection set up by the 1951 Convention” (^{Llain, 2015, p. 289}). Consequently, it does not include persons in need of international protection beyond those individuals who possess a well- founded fear of being persecuted because of their race, religion, nationality, membership in a particular social group or political opinion, and who for one of these reasons, are outside their country of nationality or habitual residence, and are unable or unwilling to avail themselves of the protection of that country.

The report of the Nansen Conference on Climate Change and Displacement stresses that “A fundamental concern is that while refugees from war and persecution are protected by international conventions, it is unclear what laws and policies protect people displaced across international borders by extreme weather events” (^{Norwegian Refugee Council, 2011, p. 3}).

In addition, even though “climate refugees” have a well-founded fear for fleeing their countries and can be considered as members of a particular social group, (one can argue they share as a common characteristic being affected by climate change, e.g. extreme weather or some other extreme event), authors like ^{McAdam (2011)} have stated that the concept provided by the 1951 Convention does not apply to climate refugees because climate change cannot be characterized as “persecution.” Thus, persecution is a fundamental element of the concept of refugees. In this case, there is not a “persecutor” who may be identified,⁸ and the persecution needs to be on account of one of the five motives set in the 1951 Convention. ^{McAdam (2011)}, also reasoned that “[…] an argument that people affected by its impacts could constitute a ‘particular social group’ would be difficult to establish, because the law requires that the group must be connected by a fundamental, immutable characteristic other than the risk of persecution itself” (2011, p. 13).

Statehood and Climate Change

As explained above, there is a probability that statelessness will increase due to the disappearance of certain States. Under Customary International Law, a State is considered as such, when it has: 1) a defined territory, 2) a permanent population, 3) a government, and 4) capacity to enter relations with other States. This concept has been established in international instruments such as the ^{1933 Montevideo Convention on the Rights and Duties of States}.

In these terms, territory is a key element in the concept of State. Therefore, according to the terms set out by International Law, an entity cannot claim statehood without a territory. (^{Crawford, 1977}; ^{Zounuzy, 2012}). Furthermore, it should be considered that without it, there is an impossibility to meet the other elements in the concept of State, especially because of the relationship between the territory and the permanent population, as inhabitants share an intimate bond with the territory they live in. This does not mean that the entire population must live in the territory of the State; considering that the criteria in the Convention are independent, at least a portion of the population must live in the territory, and that is why an implied nexus between the State’s territory and the permanent population exists (^{Jan, 2011}).

In this regard, the Sinking Island States case is unique, because of the lack of a successor State to replace the preceding one. Even when International Law applies to the continuity presumption, there are no precedents for the loss of the entire territory of a State or the migration of its entire population (McAdam, 2010), creating de jure statelessness for the people involved because they could not become nationals of other States according to the receiving State’s laws (^{Park & UNHCR, 2011}).

International law has not developed any precedence for the disappearance of a State; it has only regulated cases of: “(i) absorption (by another State), merger (with another State) and dissolution (with the emergence of successor States)” (^{McAdam, 2010, p. 2}), and the difference between these cases and the extinction of a State because of climate change is that “[…] the territory it abandons will not (cannot) be assumed by any other State” (^{McAdam, 2010, p. 2}). In this sense, the principle of presumption of continuity of State existence cannot overrule that the territory becomes uninhabitable, a necessary condition of statehood. If the population of a Nation-State with uninhabitable or disappeared territory has no other nationality, they will be de jure stateless, and the difficulty regarding statelessness is not just the right to nationality, but other rights that depend on the recognition as a national of a certain State (^{Alexander & Simon, 2014}).

On the other hand, international human rights law has established the duty of readmission as an obligation regarding statelessness. The duty of readmission relates to the capability of Nations-States to readmitting their nationals as a minimal requirement to prevent statelessness. Considering this duty, it would be impossible for States with an uninhabitable or disappeared territory to have the capability of readmitting their nationals who suffered from the impacts of climate change (^{Alexander & Simon, 2017}).

To Explore Opportunities of Protection Within the International Human Rights Law Framework

Nation-States have concentrated their efforts on the design of prevention, mitigation, and adaptation plans to cope with climate change and its adverse impacts. In addition, international cooperation has been set in terms of funding those plans and projects in least developed countries. However, the main issue, concerning human lives, is how to provide legal protection to the populations affected by climate change to guarantee their fundamental human rights.

In this context, providing legal protection means not only establishing policies to ensure financial, logistical and technical assistance for adaptation, or even relocation, but also interpreting migration policies in accordance with international human rights obligations to facilitate the exercise of the climate migrant’s rights. Therefore, it is important to explore opportunities of protection within the international human rights law framework, which will not need political will for amendments or the creation of new rules and which can be implemented through the regional human rights systems.

Concurring with this idea, ^{Chapman (2010)} stated that regional systems (European, Inter- American and African systems) have the potential to be used to address issues in regard to climate change and, “[…] in evaluating the potential fate of a petition based on human rights violations resulting from climate change, each of the three established systems has its own strengths” (2010, p. 37).

For instance, in the Inter-American Human Rights System, the general duty of prevention is well developed in the doctrine and jurisprudence of both the Inter-American Commission on Human Rights (IACHR) and the Inter-American Court of Human Rights (IACtHR). The IACtHR has ruled that the Contracting States (of the American Convention on Human Rights) have the obligation to take reasonable steps to prevent violations of human rights.⁹ This means that in a situation of real, actual, and immediate risk of violation of human rights, known by the State and its authorities, the State must take all the necessary and reasonable legal, political, administrative, and cultural measures to prevent and avoid that risk.¹⁰

Applying this reasoning, climate change can be considered a genuine, present, and immediate risk to the human rights of the individuals forced to flee their places of origin on account of this factor: a risk that is known by Nation-States. Therefore, they have the responsibility to take actions to prevent the impacts of climate change (^{United Nations, 2015}) in regard to forced migration, adopting legal norms as well as other types of acts to assist those affected in maintaining their rights.¹¹

In addition, regional instruments such as the Additional Protocol to the American Convention on Human Rights in the Area of Economic, Social and Cultural Rights “Protocol of San Salvador” in its Article 11, recognizes the right to a healthy environment, which also had been used as the base for petitions before the African Commission on Human and Peoples Rights (ACHPR), an entity that has found States in violation of their associated obligations (^{Chapman, 2010}).

In the Inter-American System, although few cases exist on this subject,¹² the IACtHR has noted that an undeniable link between the protection of the environment and the enjoyment of other human rights can be found.¹³ Also, the ^{IACtHR (2009)} has said that “the ways in which the environmental degradation and the adverse effects of climate change have impaired the effective enjoyment of human rights in the continent has been the subject of discussion by the General Assembly of the Organization of American States and the United Nations”¹⁴ (para. 148).

Furthermore, as explained by the Asociación Americana para la Defensa del Ambiente (Inter-American Association for Environmental Defense) (2008), the recognition of this right, as a human right, implies that States must make resources available and take actions to guarantee this. In addition to the above, it is noteworthy that in the Inter-American Human Rights System, the right to a healthy environment reaches a connotation beyond being a human right, as the Inter-American Democratic Charter, in its Article 15, also recognizes it as an aim of democracy (^{Asociación Americana para la Defensa del Ambiente, 2008}).

Consequently, an approach based on human rights needs to guide the design and implementation of the law and policy as well as the political discourse. According to ^{Aminzadeh (2007)}, this approach “[…] would integrate the theoretical and advocacy approaches of environmental law and human rights law” (2007, p. 258). In this respect, strategies such as “[…] 1) the application of procedural rights found in International Human rights Law to climate change litigation; 2) the recognition of a distinct right to environmental well-being; and 3) the re-interpretation of existing human rights in the environmental context” may be viable to offer an effective solution for the aforementioned protection of climate migrants (^{Aminzadeh, 2007, p. 245}).

Evolutionary Interpretation of the Principle of Non-Refoulement

As explained earlier the current international refugee law framework does not fit climate migrants. Under this scenario, the most cost-effective solution is to give the principle of non- refoulement an evolutionary interpretation, in order to expand the protections offered by the principle to climate migrants.¹⁵ In this regard, it is important to point out that for purposes of the interpretation of international human rights law treaties, the same should be done attending the pro homine principle “[…] that is, that they should be interpreted in the way which is most protective of human rights” (^{Lixinski, 2010, p. 588}).

Thus, an evolutionary interpretation of the principle of non-refoulement, based on the concept of respect to human dignity, may lead to the establishment of international responsibility of States in this topic and to create a cause of action for climate migrants when they are denied protection. Regarding this topic, the IACHR has stated that respect for the inherent dignity of the person is the principle on which the fundamental protections of the right to life and the preservation of physical well-being are based. The conditions of severe environmental pollution, which can cause serious physical illness, disability, and suffering to the local population, are incompatible with the right to be respected as a human being (^{Asociación Americana para la Defensa del Ambiente, 2008, p. 54}).

Accordingly, the evolutionary interpretation of the rights consecrated in international human rights law instruments must play an important role in giving the principle of non- refoulement an extended scope. International human rights bodies, such as the ^{IACtHR (1999)}, have used this form of interpretation, explaining that “[…] human rights treaties are living instruments whose interpretation must consider the changes over time and present- day conditions”¹⁶ (1999, para. 114).

As a consequence, when considering the protection that may be provided to climate migrants, the applicable international instruments should be connected with the circumstances of the case; that climate change is a real and imminent risk, as explained earlier, known by States; and that these circumstances cause several violations to human rights. According to ^{Naser (2010)}, migrants in this situation are especially affected in their rights to life, health, food, and shelter. For that reason, there is a growing insistence that a “policy framework should be developed to protect, respect, and promote the human rights of the affected people” (2010, p. 119).

On this subject, ^{McAdam (2011)} stated that the best way to apply the principle of non- refoulement to climate change is by connecting it to the right to life and the right to not to be subjected to torture or cruel, inhuman or degrading treatment or punishment because those rights “[…] are clearly recognized in International Law as giving rise to such an obligation, and which have been incorporated into a number of domestic complementary protection regimes” (2011, p. 18). As a result, States will have the general duty to protect and not return or expel vulnerable populations to places where their lives will be at risk of harm due to the effects of climate change.

Finally, changes over time and present-day conditions have been a cause to urge for an expansion of the concept of refugee. For instance, the United Nations High Commissioner for Refugees has exhorted States to implement expanded refugee definitions such as those adopted in the Cartagena Declaration or the OAU Convention Governing the Specific Aspects of Refugee Problems in Africa (^{Llain, 2015, p. 290}). Under those instruments, additional reasons may trigger the international protection available for refugees, such as external aggression, occupation, foreign domination or events seriously disturbing public order in either a part or the whole country of origin or nationality, and the massive violation of human rights (added by the Cartagena Declaration). It is an unresolved task to analyze whether factors such as “events seriously disturbing public order” may be interpreted in favor of giving international protection under the status of refugee to those suffering from the adverse impacts of climate change.¹⁷ However, ^{Warren (2016)} has pointed out that “under either expanded definition, a natural disaster could arguably constitute a circumstance that “disturb[s] the public order,” but neither was explicitly intended to cover environmental displacement” (2016, p. 2123). Consequently, it is time, once again, to call for a broader interpretation that may introduce, at both municipal and international law levels, considerations related to the status of climate migrants.

Complementary Protection, Durable Solutions: Voluntary Repatriation, Resettlement, and Integration

The principle of non-refoulement provides an additional obligation that could be a solution to climate migrants, considering the universal refugee instruments and customary international refugee law. The complementary protection refers to the mechanism to grant international protection to persons who do not meet the established requirements to be considered as a refugee in the scope of the 1951 Convention (^{Mandal, 2005}).

This obligation is based on the provisions prohibiting the expulsion of individuals from the territory of a Nation-State, and the international responsibility of a State on acts or omissions when individuals are in need of international protection because of the risk to their human rights (^{Mandal, 2005}).

In this sense, Nation-States must develop systems of complementary protection, which seek to apply international law obligations and prevent the violation of the human rights of those facing the climate change impacts. Even though the complementary protection could need a substantial development to address climate change challenges, it does not preclude climate change from being recognized as a source of inhuman treatment to obligate Nation- States to grant the protection (^{McAdam, 2011}). In the words of the ^{Inter-American Commission on Human Rights (2015)}:

The measures of complementary protection make it possible to regularize the stay of persons who are not recognized as refugees but whose return would be contrary to the general obligations of non-refoulement, contained in various human rights instruments ( ^{Inter-American Commission on Human Rights, 2015, para. 133} ).

Also, the durable solutions for refugees that could be applied to address climate forced migration, voluntary repatriation, local integration, and resettlement, are measures that may help to mitigate the climate change impacts on migration. Nation-States should operationalize solutions for climate migrants based on the needs of international protection, considering:

Preventive Measures in Case of Statelessness

As mentioned above, statelessness as a consequence of climate change will be difficult to address, considering the lack of regulation and the novelty of the new situation of statelessness. Therefore, it is particularly important to take preventive measures that involve: 1) reduction of the impact of climate change, and 2) preparation for the moment when different States become uninhabitable. The fact that climate change is a reality cannot be ignored and international law must be prepared, according to the existing regulation on international human rights laws. In this sense, “the severity of the challenges would depend on the progression of sea-level rise. Initially, drastic consequences would affect only some low-lying States—in particular, several Pacific and Indian Ocean island-States” (^{Vidas, 2014, p. 73}).

Consequently, international regulation concerning stateless persons as a result of climate change should be based on the importance of having a nationality, with the purpose of creating a special system of protection in receiving States, giving obligations and rights allowing the stateless person to keep his or her life and to adapt in the receiving State.

Also, the recognition of the stateless status is not enough to guarantee the protection of human rights of the person forced to migrate as a consequence of the uninhabitability or disappearance of the territory of their State, but it should be the beginning point for the development of legal measures to address this challenge.