Alapakkam, Sanjay --- "Protecting People Displaced By Climate Change: Why The Refugee Convention Does Not Need An Update" [2021] UNSWLawJlStuS 24; (2021) UNSWLJ Student Series No 21-24

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PROTECTING PEOPLE DISPLACED BY CLIMATE CHANGE: WHY THE REFUGEE CONVENTION DOES NOT NEED AN UPDATE

SANJAY ALAPAKKAM

I INTRODUCTION

‘[T]here’s one issue that will define the contours of this century more dramatically than any other, and that is the urgent and growing threat of a changing climate’^[1] - Barack Obama

Climate change has heightened the incidence, and in some instances, severity,^[2] of sudden onset disasters, such as tropical storms, landslides and earthquakes, and of slow-onset disasters such as drought, melting permafrost and rising sea levels,^[3] thereby forcing people away from their homes.^[4] The World Bank estimates that the migration of 143 million more people from developing states will be driven by climate change, by 2050.^[5] The primary international legal instrument at the heart of refugee protection is the Convention Relating to the Status of Refugees (‘the Convention’).^[6] The Convention places obligations on state parties against refouling refugees to countries where their life or freedom would be threatened.^[7] Despite common usage of the terms ‘climate refugees’ or ‘climate change refugees’ in public discourse, ^[8] they are not terms of art,^[9] and climate change displacement, without more, does not give rise to refugee status under art 1A(2) of the Convention.^[10] A key question is whether art 1A(2), in not providing for climate change related displacement alone to give rise to refugee status, is effectively out of date and needs to be updated. This essay will examine the nature and scale of climate change displacement, and then explain why people displaced by climate change (PDCC) are not covered by art 1A(2).^[11] This essay will then argue that art 1A(2) should not be updated to cover climate change related displacement, for three reasons. First, the recognition of PDCCs as refugees under the auspices of art 1A(2) may be incongruent with the purpose of the Convention. Secondly, amending art 1A(2) would be fraught with practical difficulties including the elaborate nature of the treaty amendment process, and the potential for the debate or amendment processes to be hijacked by political interests that may exploit the opportunity to roll back existing protections of refugees.^[12] Thirdly, the emergence and recognition of other viable alternatives to offer protection to PDCC^[13] renders redundant, efforts to amend art 1A(2) to include PDCC. Although most climate induced displacement occurs internally within a country,^[14] this essay will focus only on PDCC displaced outside their country of nationality or former habitual residence, since this is the same requirement for people to be recognised as a refugee under art 1A(2).^[15]

II CLIMATE CHANGE AND DISPLACEMENT: THE NATURE AND SCOPE OF THE CRISIS

In 2020, approximately 30.7 million people were newly displaced as a result of natural disasters, accounting for 75% of all displacements in the year,^[16] and it is estimated that the migration of over 143 million more people from Latin America, sub-Saharan Africa and Southeast Asia, by 2050, will be driven by climate change.^[17] Wide scientific and public policy consensus contend that climate change has heightened the frequency and severity,^[18] of both sudden and slow-onset disasters,^[19] thereby presenting hazards that force people away from their homes.^[20] The Nansen Initiative recognised that people most seriously affected by climate change induced disasters include ‘sick and wounded persons, children, particularly when orphaned or unaccompanied, women headed households, people with disabilities, older persons, migrants, and indigenous peoples’.^[21] ‘The least developed countries, developing states situated on small islands, and middle-income countries, and their respective populations are hardest hit’.^[22] In most cases, the circumstances leading to displacement do not encompass every adverse incident such as a fire or drought, but rather, as Berringer explains, are characterised by disasters, either slow or sudden onset, ‘which exceed a society’s ability to cope and where external aid is required’.^[23]

Neither climate change nor its impacts exclusively influence PDCC’s decisions to migrate.^[24] However, climate change plays a primary factor in creating the circumstances that effectively displace people and force their migrate.^[25] Climate change and its impacts may be viewed as ‘threat-multipliers’, exacerbating existing circumstances such as poverty^[26] or worsening people’s capacity to subsist, for instance, farmers experiencing droughts or floods in an already struggling economy.^[27] In some cases, the imminent threat to life, particularly through hazards arising from sudden onset disasters, may result in displacement or movement.^[28] In other cases still, movements may result from a combination of both sudden and slow onset impacts.^[29] Climate change-induced scarcity of vital resources may itself ‘trigger violence and armed conflict that forces people to flee to other countries’,^[30] or lend itself to further eroding the survival prospects of people in existing theatres of conflict.^[31]

Although most instances of climate change related displacement occur within countries when compared to cross-border displacement,^[32] there are myriad international human rights obligations on state parties and relief measures to address the former.^[33] This essay’s subsequent references to PDCC will be confined to cross-border displacement alone. The devastating nature and scale of climate change displacement, predicted to worsen over time^[34] requires a robust solution. However, as explored below, art 1A(2) does not cover PDCC, rendering them unable to avail themselves of the protection of the Convention.^[35] This approach is also grounded on the premise that the rate at which PDCC embarked upon cross-border migration could be stunted by the lack of robust cross-border solutions actually in place to address climate change displacement.

III APPLYING ARTICLE 1A(2) TO PEOPLE DISPLACED BY CLIMATE CHANGE

The principal attraction of the Convention as an avenue for protection is the fact that it provides a strong protection, for people who satisfy the definition of a refugee, through non-refoulement obligations. These obligations prevent the Convention’s state parties, including the receiving state, from forcibly returning or turning people away to a country where their life or freedom would be threatened.^[36] However, the Convention as formulated in 1951, and then widened in 1967, was not created with climate change displacement in mind. Article 1A(2), when interpreted in light of the Convention’s 1967 Protocol,^[37] stipulates that claimants must have a well-founded fear of persecution, and this persecution must be for at least one of the five ‘convention grounds’: race, religion, nationality, membership of a particular social group or political opinion.^[38] Claimants must also be unable to or due to the well-founded fear, unwilling engage the protection of their country of nationality.^[39] They must also be outside the country of their nationality or, if they do not have a nationality, the country of former habitual residence, and must be unable to, or due to the well-founded fear, unwilling to return to it.^[40] This section will not delve into the requirement to be outside her country of nationality or former habitual residence^[41] given this is already met by PDCC facing on cross-border displacement who form the focus of this essay. Two aspects of this definition present barriers for PDCC seeking the protection of the Convention. First, establishing that the claimant is being persecuted and second, establishing the nexus between persecution and the convention grounds.^[42] State practice is instructive in this endeavour.^[43]

At the outset of this analysis, this essay acknowledges that art 1A(2) may be enlivened where the impacts of climate change are felt more acutely by certain classes of people within a state, and this is a result of discrimination. For instance, a situation where state relief for a natural disaster amongst a region experiencing a natural disaster is only provided to one racial group but not another, leading to the latter crossing borders to survive, would enliven the ‘race’ ground.^[44] Leading doctrinal scholars including Hathaway and Foster have endorsed the view that, in such instances, a refugee status claim must succeed since ‘the harm feared is serious and connected to the state, and the requisite element of civil and political differentiation is present’.^[45] Moreover, the state, in withholding relief for a convention reason, thereby exacerbating the effects of climate change upon the group that is discriminated against, would be the persecutor.^[46] It is already accepted by scholars and jurists alike, including the High Court of Australia, in the context of law enforcement ‘officers’ refusal to assist a woman facing family violence’, that the state’s withholding of protection for a Convention reason, from serious harm, even if that harm is ‘not Convention related’, can amount to persecution.^[47]As a result, this essay will heed the approach of prior scholars in focusing primarily on people fleeing the effects of climate change itself rather than ‘a state or non-state actor exacerbating, facilitating or directing these effects to target certain groups’.^[48]

A Persecution

In the first instance, the concept of a ‘climate change refugee’ appears to be a departure from the normative conception of a refugee in the Convention, which is centralised around the concept of persecution,^[49] an act committed by state or non-state actors, necessitating a level of human agency.^[50] Applications for protection have sought to frame climate change displacement as rising from persecution in light of the widespread scientific consensus that climate change has been significantly driven by human activity,^[51] and have cast the international community, and in particular, industrialised states as the persecutors.^[52]This was the approach taken by Mr Teitiota, in his internationally known claim for refugee status, and subsequent unsuccessful appeals before the New Zealand High Court (NZ High Court) and Court of Appeal, on the basis of fearing the effects of climate change in Kiribati, his home country.^[53] Primarily, runs this argument, it has been industrialised states in their disproportionately high consumption of natural resources at an unsustainable level and contribute to the highest levels of greenhouse gas emissions. This has led to harms faced by people, in low lying countries such as Kiribati which have been most affected by climate change.^[54] This argument has failed in the past for two reasons. First, its reversal of the traditional refugee paradigm, and secondly, the lack of persecutory intention.

McAdam argues that the putative ‘persecutors’, developed and industrialised States, are ultimately states to which PDCC may seek to move as a result of their displacement.^[55] This line of thinking was reflected by Priestly J in Teitiota, but in relation to the international community at large which the applicant had argued was the persecutor. This was found to be a reversal of the ‘traditional refugee paradigm’^[56] under the Convention, and in particular art 1A(2), which envision a refugee seeking the protection of ‘State A’ and to not be returned to ‘State B’ where they face persecution. It is paradoxical for a refugee to seek protection from his or her persecutor.^[57]

Furthermore, the NZ High Court, in endorsing an Australian Refugee Review Tribunal (RRT) decision outlining the need for an ‘element of attitude or motivation’ behind the persecution, presents another barrier.^[58] The RRT Decision, pertained to an applicant who, like Mr Teitiota, was from Kiribati and displaced by climate change.^[59]A persecutory intent is likely absent in claims for refugee status relying on climate change related displacement alone. Even if accepted, as supported by wide scientific consensus, that the actions of industrialised nations have been significant drivers of climate change,^[60] negative impacts of climate change cannot be classed as being intentionally inflicted on PDCC.^[61] Therefore, PDCC claims for refugee status will be unlikely to establish the element of persecution.

B Nexus between Persecution and the Convention Grounds

The persecution feared must be ‘for reasons’ pertaining to at least one of the five Convention grounds.^[62] Discrimination is central to this nexus. It does not, however, necessitate that a claimant must show ‘she has been personally “singled out” for persecution’.^[63] This is reflected in the example by Hathaway and Foster that was canvassed earlier.^[64] There have been unsuccessful efforts by PDCC, at a domestic level, to claim refugee status, primarily using the ‘membership of a particular social group’ ground,^[65] in relation to climate change displacement. It is widely accepted by both scholars and superior courts of record, including in Australia, that the impacts of climate change are prima facie, indiscriminate, and are not ‘tied to particular characteristics such as a person’s ethnicity’.^[66] The same was held in Teitiota.^[67] There have also been efforts to argue that impacts of climate change bear more harshly on some countries, primarily due to their geography and limited resources. This efforts have also been unsuccessful since, as McAdam highlights, the impacts of climate change outlined are not premised on the convention grounds outlined under art 1A(2), including particular social group for which the basis for a group must be ‘a fundamental, immutable characteristic’ rather than the purported persecution.^[68]

Scott offers a compelling perspective that challenges what he describes as the dominant, hazard paradigm of disasters.^[69] He adopts Hewitt’s description of the hazard paradigm, which involves viewing and responding to disasters as though they are caused entirely by external factors, removed from society to the effect of depicting societies and communities as ‘passive victims of natural and technological agents’.^[70] Scott posits a twin-paradigm approach of trying to define and view disasters with reference to both the hazards caused by disasters and the social factors that play a causal role in how disasters unfold.^[71] To this end, the social paradigm views natural disasters as resulting from the interaction between natural hazards and social vulnerability, and in light of this, some groups of people may be relatively more vulnerable due to ‘pre-existing patterns of discrimination’.^[72] On this basis, Scott, argues that the experience of discrimination fundamentally cannot be decoupled from the impacts of natural disasters, given that precautionary strategies to deal with disasters are reflective of the broader social structures.^[73] However, as Scott concedes, this perspective does not amount to a reading of art 1A(2) that is sufficiently expansive to allow for climate change displacement alone to give rise to refugee status.

Therefore, it is unlikely that a nexus to the convention grounds would be met. As a result, claims for refugee status under the Convention because of climate change displacement alone are unlikely overcome the barriers of persecution and the nexus requirement, and as held in past refugee status determination matters in various settings, will likely be unsuccessful.

IV WHY EXPANDING THE ARTICLE 1A(2) DEFINITION IS NOT THE ANSWER

Efforts to expand the art 1A(2) to include PDCC are, while well-intentioned, misguided for three primary reasons. First, art 1A(2) is not outdated in its treatment of PDCC, since recognising climate change displacement, without state or non-state actors engaging in persecution for a convention ground, would be incongruent with the Convention’s purpose. Second, amending art 1A(2) would be fraught with practical difficulties associated with a complex treaty amendment process, and the potential for a movement for reform to be subverted by political interests seeking to limit or undermine existing protections of refugees provided for in the Convention.^[74] Third, more effective and fit-for-purpose avenues for the protection of PDCC, are ascendant,^[75] and would render redundant any efforts to amend art 1A(2) to provide for climate change displacement.

A Compatibility with the Aims of the Convention

The recognition of PDCC as refugees under art 1A(2) would be irreconcilable with the aims and philosophy underpinning Convention, primarily, the principle of surrogate protection and the purpose of remedying a ‘breakdown in the relationship between an individual and her state’.^[76] A view to ensure that the contents of art 1A(2) is incompatible with the broader purpose of the Convention is grounded on the central status being given to the object and purpose of a treaty, in the operation of a treaty is embedded at the heart of the Vienna Convention on the Law of Treaties (VCLT),^[77] which regulates treaties between states. This is evident, inter alia, in relation to treaty interpretation.^[78] The reticence to legitimise the term ‘climate change refugees’ under the auspices of the Convention is shared not only by many leading scholars, practitioners and jurists, but also the Convention’s own treaty body, the UNHCR, which does not endorse the term.^[79] Nevertheless, it advocates for new protections to be developed for people driven to move because of environmental changes, who may not be covered by existing legal frameworks.^[80] This nuanced position is key to exploring the incongruence between PDCC and art 1A(2). Although there is an overwhelming willingness for mechanisms to be created to protect PDCC, but the Convention is not seen as the most appropriate or legitimate avenue for achieving this.

As McAdam explains, various superior courts have taken the position that the Convention scope does not extend to victims of natural disasters, even in instances where ‘the home is unable to provide assistance’.^[81] This applies, to a large subset of circumstances affecting PDCC where the government of the home state is ‘embarking on measures’ to protect its people from the harmful impacts of climate change but is nevertheless, ineffective.^[82] This is reflective of the principle of surrogacy or surrogate protection that underpins the Convention. This principle is intertwined with the Convention’s concept of a refugee, which Shacknove explains, is predicated on the notion of that the ‘bond of trust, loyalty, protection and assistance’ between an individual and her state has been severed, and is characterised by persecution and alienage.^[83] This explains why the Convention does not operate with a view to provide a form of ‘universal protection to asylum seekers’^[84] or provide protection from every risk, ‘however severe’.^[85] Its aims are recognised as being limited to the stipulated convention grounds and the antecedent elements.^[86]

This limitation applies to other circumstances of acute generalised risk including famine, civil war, isolated acts of violence of ill-treatment.^[87] This discussion is enriched by considering the operation of the Convention in relation to armed conflicts.^[88] The UNHCR Handbook states that ‘persons compelled to leave their country of origin as a result of international or national armed conflicts are not normally considered refugees under the 1951 Convention or 1967 Protocol’, and recommends that the protection needs of such persons should be addressed via international humanitarian law.^[89] Jaeger’s comments provide further insight in the context of poverty. As he explains, where economic oppression and deprivation, particularly if they amount to ‘destitute’ or are otherwise of a ‘serious nature’ and strike a particular group that is characterised by one of the Convention grounds, either ‘through active measures or resulting from a policy of neglect’, art 1A(2) will likely be satisfied.^[90] This is similar to the earlier example used regarding discrimination in the context of access to emergency relief during a natural disaster. The applicability of the Convention in that context turned on the actions of state actors who exacerbated the effects of a calamity on a minority group. Outside the circumstances that constitute discriminatory persecution, it is unclear why refugee status should be ascribed to PDCC when it is not currently extended to people who are affected by poverty alone.

B Practical Difficulties and Geopolitical Risks

An attempt to expand art 1A(2) would invariably the practical difficulties inherent within the elaborate amendment process for a treaty and the risks of that process leading to a curtailing of existing scope of protection afforded by the provision and the Convention more broadly. Any process of amending the treaty would have to contend with both the elaborate nature of treaty amendment and the lack of political will for members to expand their obligations under the Convention. No guidance is provided for an amendment process within the Convention itself. However, pt IV of the VCLT is instructive for this purpose.^[91] Based on the VCLT, proposals to amend the Convention as it stands between all its state parties, requires them all to be notified of such a proposals.^[92] All parties to the Convention can be involved in the decision regarding the actions to be taken with respect to the proposal, and the negotiation and conclusion of any agreements for the Convention’s amendment.^[93] Although the provisions governing the amendment process appear simple, the actual process ought to be envisioned. Every one of the 146 parties to the Convention has the right to be involved in deciding actions and negotiating and concluding upon agreements. This will invariably give rise to the need to balance various states’ interests.

Article 1A(2) was amended via the 1967 Protocol Relating to the Status of Refugees (1967 Protocol). Prior to the 1967 Protocol, art 1A(2) applied only to people ‘fleeing events before 1 January 1951 and within Europe’.^[94] The Protocol removed the geographic and temporal limits of the Refugee Convention to enable its universal application.^[95] This change in the scope of the Convention’s application was an acknowledgment of the ongoing asylum needs arising from events taking place after January 1951, and the fact that people from around the world both needed and deserved protection from persecution, thereby challenging to an extent, the underlying eurocentrism of art 1A(2). Nevertheless, that the Convention has only been subject to one amendment since its inception,^[96] via the 1967 Protocol, is a prima facie indicator of the state parties’ reticence for the alteration of the instrument. Even in that case, the purpose of the Convention in relation to the circumstances attracting protection, was largely left intact. The change did not remove an understanding that to be a refugee, one must have a well-founded fear of persecution for at least one of the five convention grounds and be outside the country of former habitual residence or nationality. Moreover, while the Protocol ensured the universal application of art 1A(2), an option to recognise events occurring outside Europe already existed for member states.^[97] In essence, the 1967 Protocol amendment in relation to the scope of art 1A(2), despite the revolutionary development it brought to the Convention, is relatively conservative when compared to the idea of expanding the definition of a refugee to include people displaced by climate change. In light of this hypothesis, an analysis of the emergence of the Convention and the Protocol from a ‘Third World and International Law (TWAIL)’ perspective is compelling.^[98] It recognises that the refugee definition in art 1A(2) is individualistically oriented, and is not built respond to mass movements.^[99] This is seen below in relation to the OAU Convention. Consequently, the individualistic nature of the definition empowers states ‘with the maximum opportunity to refuse entry [to refugees and migrants] now that times of mass displacement in Europe have passed’.^[100] Climate change displacement, which overwhelmingly affects people from developing nations, could be viewed by Western and other developed states as an issue for developing nations alone to resolve. ^[101] This leads to two key issues. First, the limited scope for reforming an international treaty level when compared to a regional treaty. Second, the fact that PDCC are primarily from developing nations coincides with a period marked by nationalist domestic policies in many states, that indicate the risk of a reform process being hijacked.

The OAU Convention Governing the Specific Aspects of Refugee Problems in Africa (‘OAU Convention), governs refugee protection among its African member states.^[102] It emerged during a period of decolonisation in Africa, that was marked with policies of apartheid, political instability and military uprisings,^[103] with a view to protecting refugees fleeing these circumstances. The OAU Convention’s art I(1) replicates art 1A(2) of the 1951 Convention.^[104] However, art I(2) extends the refugee definition to include persons who are ‘compelled to leave’ his or her ‘place of habitual residence in order to seek refuge’ outside their ‘country of origin or nationality’ as a result of ‘external aggression, occupation, foreign domination or events seriously disturbing public order in either part or the whole of his country of origin or nationality’.^[105] The art I(2) circumstances do not require claimants to show persecution and the antecedent factors, including persecutory intent. It allows for the recognition of, as refugees, people at risk due to circumstances that have indiscriminate effect. Unlike the 1951 Convention, the words ‘every person who’, enables the collective appraisal of refugee claims to facilitate mass movements, since the art I(2) grounds could affect entire regions or localities.^[106] This is particularly ideal in the context of emergencies and mass movements across state borders. The scope for to recognise as refugees, persons fleeing disasters such as drought and famine are also being prospected.^[107] The innovations of the OAU Convention demonstrate the lost opportunities for similar reform in the 1951 Convention itself which may have been hampered by its international, as opposed to region-specific operation and the need to balance the interests of all regions.

Efforts to amend the Convention risks the process being hijacked by nationalistic and xenophobic interests which may seek to and succeed in limiting the existing refugee protections^[108] and undermining the legitimacy of the Convention.^[109] As Shacknove explains, an overly inclusive definition of a refugee could ‘impugn the credibility’ of existing refugees’ status as those in need of the protection and antecedent rights granted by their host state.^[110]

The terms ‘climate migrants’ and ‘climate refugees’ have been exploited by political actors, primarily in developed nations, to signal that setting up migration or refugee protection schemes oriented around climate change may give rise to mass migration to their states.^[111] This strategy has enabled the transformation and legitimisation of domestic refugee policies that further securitise domestic borders and ‘keep climate migrants in their places of origin’.^[112] The rhetoric of climate migrants and refugees is the latest instalment of broader efforts by political actors and parties with nationalist leanings, in various states, to dehumanise refugees and limit existing recognition and protection offered to them.^[113]Anti-refugee attitudes may be particularly potent in the current context given the economic downturns experienced by many states as a result of COVID-19, which could spark the further de-prioritisation of refugee protection efforts on a domestic level that either limit intakes, decrease social support or impose more punitive policies upon refugees.^[114] These examples serve to highlight the potential for amendment proposals attempting to limit operation or scope of art 1A(2). Opening a debate about art 1A(2) may come at an unsalvageable cost of reducing the scope of the people whom the Convention protects. Even if the text of the Convention itself remains unscathed, further rollbacks in domestic legislative frameworks governing refugee protection may be triggered. Therefore, embarking upon a process to amend art 1A(2) is unlikely to yield the desired result of recognising PDCC as refugees and could risk jeopardising the existing scope of the Convention.

C Viable Alternative Solutions

Despite the increasingly consolidated position against viewing climate change alone as giving rise to refugee status, comprised of the views of myriad leading scholars, jurists and the UNHCR itself,^[115] there remain a persistent subset of activists and scholars to recognise PDCC as refugees under the auspices of art 1A(2).^[116] At the outset, the consideration of viable alternative solutions to cover displacement not stemming from discrimination and persecution, is not an endorsement of a wholesale ruling out of the Convention’s relevance to all instances of climate change displacement.^[117] As alluded earlier by drawing on examples elucidated by Hathaway and Foster, and the High Court of the Australia, discriminatory state responses to emergencies can trigger the coverage of art 1A(2).^[118] There are myriad examples of this occurring in the context of climate change, such as inadequate government support provided for relief and recovery efforts within Dalit communities in India in the aftermath climate catastrophes.^[119] The Nansen Initiative’s Protection Agenda indicates that the Convention likely extends to effects of a disaster which generate violence and persecution, ‘such as when a collapse of a governmental authority by the disaster leads to violence and unrest or when a government uses a disaster as pretext to persecute its opponents’.^[120] The applicability of art 1A(2) has been found by state authorities in Panama and Peru to extend to instances of persecution by non-State actors stemming from a ‘vacuum of governmental authority’ following an earthquake in Haiti.^[121]

Ultimately, the core premise behind calls to reform art 1A(2) is the intention to ensure they are covered by non-refoulement obligations since meeting the definition of a refugee under the article would achieve this end,^[122] rather than relying on discriminatory persecution arising. This would ensure that climate change displacement alone could attract the Convention’s protections. Despite this well-intended push, it is an error to assume that the Refugee Convention is the only hope for triggering these obligations or the only avenue for providing durable solutions for PDCC. Recent milestones in international discussions and agreements, and jurisprudential developments reflect an increasing recognition of the applicability of non-refoulement obligations towards PDCC by drawing upon broader human rights obligations.^[123] Additionally, ‘complementary protection’, which can extend the scope of circumstances enlivening non-refoulement obligations, beyond the Convention, for instance, when undertaking refugee status determination claims, may apply in particular contexts. While complementary protection can be a tool to circumvent the need to demonstrate discriminatory persecution, its effectiveness on a global scale is hampered since it is dependent on the domestic legal framework of a receiving state, including the extent to which the state has implemented other international human rights treaties. Moreover, these protections largely emerge where one’s lives are threatened, a very high threshold, which may be difficult for claimants to prove in cases where there are state responses to climate emergencies and in the context of slow-onset disasters.^[124]

On an aspirational level, Sustainable Development Goal 10.7 outlines the need for signatories to ‘facilitate orderly, safe and responsible migration of people, including through implementation of planned and well-managed policies’.^[125] This is paired with efforts including novel proposals for humanitarian visa pathways for PDCC in the case of sudden onset disasters,^[126] and ‘planned relocation and visa pathways’ for people who need to move from regions that greatly susceptible to ‘slow onset natural disasters, the adverse effects of climate change, and environmental degradation’.^[127] This opens the door for region-focused solutions, which are best suited to address the protection needs of people from regions that are simultaneously at higher risk of facing the impacts of climate change and have a lower capacity to withstand them either due to the nature of their domestic markets or ill-equipped disaster response mechanisms. Consideration of migratory schemes have also further gained validation as they could provide safe and secure cross-border relocation from slower onset impacts of climate change, without constructing a narrative of persecution.^[128] Refugee law will continue to have considerable utility in informing the principles and methodologies that ought to underpin these alternative solutions. Adopting the system of assessing a mass cohort of persons as seen in the OAU Convention can enable timely movements of large swathes of persons from one region to another.

V CONCLUSION

Climate change displacement is a crisis of incredible scale that demands robust solutions. This need has been further exacerbated by the alarming findings of the Sixth Assessment report Intergovernmental Panel on Climate Change that urgent action is needed to be undertaken by the international community to prevent a climate catastrophe and arrest global warming. Although art 1A(2) could provide coverage for PDCC with particular circumstances such as the discriminatory exclusion from being able access emergency relief, it does not recognise climate change displacement alone as being able to give rise to refugee status. This is attributable to two primary reasons. First, the inability for claimants to prove that there is persecution, given the lack of persecutory intent and the risk of reversing the refugee paradigm, by casting as persecutors, the international community or industrialised states which emit high levels of greenhouse gases. Secondly, the impacts climate change within a given region are largely indiscriminate, amounting to a generalised risk. This essay contends that despite this lack of recognition, art 1A(2) is not outdated and does not need to be updated. There are three pillars to this position. First, the recognition of PDCCs as refugees under art 1A(2) is inconsistent with the aims and philosophy underpinning the Convention which was established in order to address persecution for discriminatory reasons rather than addressing instances of generalised risks. Secondly, attempts to amend art 1A(2) would carry practical difficulties such as the convoluted nature of the treaty amendment and modification process and, the need to secure support from member states in order to ensure that state parties also recognise PDCC as refugees under an amended art 1A(2). There is also the potential for reform efforts, including the negotiation process, to be hijacked by political interests that may exploit the opportunity to roll back existing protections of refugees.^[129] The Convention may be sought to be delegitimised by states with nationalist, anti-refugee agendas, and at the very least, adverse developments to refugee protection are likely to precipitate at a domestic level amongst state parties. Thirdly, although the Convention offers a pathway to protection via non-refoulement obligations it is not the only pathway to achieve this. New, purpose-built solutions to ensure the protection needs of PDCC are emerging.^[130] These pathways will render redundant any efforts to amend art 1A(2) for the purpose of covering PDCC who are not fleeing ‘persecution’.

VI BIBLIOGRAPHY

A Articles/Books/Reports

Baird, Rachel, ‘The Impact of Climate Change on Minorities and Indigenous Peoples’ (Briefing Paper, Minority Rights Group International, 2008)

Barnett, Jon and Natasha Chamberlain, ‘Migration as Climate Change Adaptation: Implications for the Pacific’ in Bruce Burson (ed) Climate Change and Migration: South Pacific Perspectives (Institute of Policy Studies, Victoria University, Wellington, 2010) 51

Berringer, Andrea C.S, ‘Possible Framework for Climate Change IDPs: Disaster and Development Induced Displacement and Resettlement Models and their Integration’ (2011) 2(4) The International Journal of Climate Change Impacts and Responses 89

Boas, Ingrid, et al, ‘Climate Migration Myths’ (2019) 9 Nature Climate Change 898

Browder, Greg et al, ‘An EPIC Response: Innovative Governance for Flood and Drought Risk Management’ (Report, World Bank, 2021)

El-Hinnawi, Essam, ‘Environmental Refugees’ (Report, United Nations Environment Programme, 1985)

Fraser, Selwyn, ‘Climate Persecutors: Climate Change Displacement and the International Community as Persecutor’ (2016) 20 New Zealand Journal of Environmental Law 107

Goodwin-Gill, Guy S. and Jane McAdam, The Refugee in International Law (3^rd ed, Oxford University Press, 2007)

Hathaway, James and Michelle Foster, The Law of Refugee Status (Cambridge University Press, 2^nd ed, 2014)

Hewitt, Kenneth, ‘Excluded Perspectives in the Social Construction of Disaster’ (1995) 13 International Journal of Mass Emergencies and Disasters 317

Høeg, Elida and Christopher D. Tulloch, ‘Sinking Strangers: Media Representations of Climate Refugees on the BBC and Al Jazeera’ (2019) 43(3) Journal of Communication Inquiry 225

Intergovernmental Panel on Climate Change, ‘Climate Change 2021 The Physical Science Basis: Summary for Policymakers’ (Sixth Assessment Report of the Intergovernmental Panel on Climate Change, 7 August 2021)

Internal Displacement Monitoring Centre (IDMC), GRID 2021: Global Report on Internal Displacement (2021)

International Committee of the Red Cross, ‘When Rain Turns to Dust: Understanding and Responding to the Combined Impact of Armed Conflicts and the Climate and Environment Crisis on People’s Lives’ (Report, July 2020)

Kälin, Walter and Nina Schrepfer, ‘Protecting People Crossing Borders in the Context of Climate Change: Normative Gaps and Possible Approaches’ (Legal and Protection Policy Research Series, Division of International Protection, UNHCR, February 2012)

McAdam, Jane, Climate Change, Forced Migration and International Law (Oxford University Press, 2012)

McAdam, Jane, ‘Climate Change Displacement and International Law: Complementary Protection Standards’ (Report PPLA/2011/03, Legal and Protection Policy Research Series, Division of International Protection, UNHCR, May 2011)

McAdam, Jane, ‘Current Developments – Protecting People Displaced by the Impacts of Climate Change: The UN Human Rights Committee and the Principle of Non-Refoulement’ (2020) 114:4 American Journal of International Law 708

McAdam, Jane, ‘The Normative Framework of Climate Change-Related Displacement’ (Conference Paper, Addressing the Legal Gaps in Climate Change Migration, Displacement and Resettlement: From Sinking Islands to Flooded Deltas, The Brookings Institution, 3 April 2012)

McAdam, Jane, ‘Swimming Against the Tide: Why a Climate Change Displacement Treaty is Not the Answer’ (2011) 23 International Journal of Refugee Law 2

McAdam, Jane and Marc Limon, ‘Human Rights, Climate Change and Cross-Border Displacement: The Role of the International Human Rights Community in Contributing to Effective and Just Solutions’ (Policy Report, Universal Rights Group, August 2015)

The Nansen Initiative, Agenda for the Protection of Cross-Border Displaced Persons in the Context of Disasters and Climate Change (Volume 1, December 2015)

Oliver-Smith, Anthony, “What is a Disaster?’ Anthropological Perspectives on a Persistent Question’ in Andrew Oliver-Smith and Susannah M. Hoffman (eds), The Angry Earth: Disaster in Anthropological Perspective (Routledge, 2019) 29

Okello, J O Moses, ‘The 1969 OAU Convention and the Continuing Challenge for the African Union’ (2014) 48 Forced Migration Review 70

Podesta, John, ‘The Climate Crisis, Migration and Refugees’ (Policy Brief, 2019 Brookings Blum Roundtable, 25 July 2019)

Report of the United Nations High Commissioner for Refugees Part II: Global Compact on Refugees, UN Doc A/73/12 Part II (17 December 2018)

Rigaud, Kumari, et al, Groundswell: Preparing for Internal Climate Migration (The World Bank, 2018)

Scott, Matthew, Climate Change, Disasters, and the Refugee Convention (Cambridge University Press, 2020)

Shacknove, Andrew, ‘Who is a Refugee?’ (1985) 95(2) Ethics 274

Weerasinghe, Sanjula, ‘In Harm’s Way: International Protection in the Context of Nexus Dynamics between Conflict or Violence and Disaster or Climate Change’ (Report, UNHCR Legal and Protection Policy Research Series PPLA/2018/05, 2018)

B Cases

0907346 [2009] RRTA 1168

Applicant A v Minister of Immigration and Ethnic Affairs (1997) 190 CLR 225

Canada (Attorney General) v Ward [1993] 2 SCR 689

Horvath v Secretary of State for the Home Department [2000] UKHL 37; [2001] AC 489

Human Rights Committee, Views: Communication No 2728/2016, 127^th sess, UN Doc CCPR /C/127/D/2728/2016 (23 September 2020) (‘Teitiota v New Zealand’)

Minister for Immigration and Multicultural Affairs v Khawar [2000] FCA 1130; (2000) 101 FCR 501

Minister for Immigration and Multicultural Affairs v Khawar [2002] HCA 14; (2002) 210 CLR 1

Teitiota v The Chief Executive of the Ministry of Business, Innovation and Employment [2013] NZHC 3125

Teitiota v The Chief Executive of the Ministry of Business, Innovation and Employment [2014] NZCA 173

Yan Xu v Minister for Immigration and Multicultural Affairs [1997] FCA 276

C Treaties

Convention Relating to the Status of Refugees, opened for signature 28 July 1951, 189 UNTS 150 (entered into force 22 April 1954)

OAU Convention Governing the Specific Aspects of Refugee Problems in Africa, opened for signature 10 September 1969, 1001 UNTS 45 (entered into force 20 June 1974)

Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of International Armed Conflicts (Protocol I), adopted 8 June 1977, 1125 UNTS 3 (entered into force 7 December 1978)

Protocol Relating to the Status of Refugees, adopted 31 January 1967, 606 UNTS 267 (entered into force 4 October 1967)

Vienna Convention on the Law of Treaties, opened for signature 23 May 1969, 1155 UNTS 331 (entered into force 27 January 1980)

D Other

Adcox, Grace, ‘Climate “Refugees” Explained’, Novel Hand (online, 28 January 2020) <https://novelhand.com/climate-refugees-explained/>

Administrative Appeals Tribunal (Cth), Guide to Refugee Law in Australia: Chapter 4 Persecution (August 2020)

Australian Associated Press, ‘Refugee Convention Withdrawal ‘an Option’’, The Sydney Morning Herald (online, 19 July 2013) <https://www.smh.com.au/politics/federal/refugee-convention-withdrawal-an-option-20130719-2q7xs.html>

Australian Associated Press and Staff Writers, ‘Pauline Hanson, Cory Bernardi to Call for Australia’s Withdrawal from the United Nations Refugee Convention’, Herald Sun (online, 20 June 2017) <https://www.heraldsun.com.au/news/national/pauline-hanson-cory-bernardi-to-call-for-australias-withdrawal-from-united-nations-refugee-convention/news-story/75b889c791e8277195ca3ed035a3f6e5>

Ki-Moon, Ban, ’70 Years Ago, the World Made a Pact to Protect Refugees. Too Many of our Leaders are Failing to Uphold that Promise’, Time (online, 26 July 2021) <https://time.com/6083151/1951-refugee-convention-anniversary/>.

Baussan, Cristina et al, ‘When Climate Change and Xenophobia Collide’, The New Yorker (online, 16 February 2021) <https://www.newyorker.com/news/dispatch/when-climate-change-and-xenophobia-collide>

Bayer, Lili, ‘Hungary’s ‘Zero Refugee Strategy’’, Politico (online, 20 September 2016) <https://www.politico.eu/article/hungary-zero-refugee-strategy-viktor-orban-europe-migration-crisis/>

‘“Climate Commitments Not on Track to Meet Paris Agreement Goals” as NDC Synthesis Report is Published’, UN Climate Changes (online, 26 February 2021) <https://unfccc.int/news/climate-commitments-not-on-track-to-meet-paris-agreement-goals-as-ndc-synthesis-report-is-published>

Editorial, ‘The Guardian View on Fortress Europe: A Continent Losing its Moral Compass’, The Guardian (online, 2 August 2021) <https://www.theguardian.com/commentisfree/2021/aug/01/the-guardian-view-on-fortress-europe-a-continent-losing-its-moral-compass>

Global Compact for Safe, Orderly and Regular Migration, GA Res 73/195, UN Doc A/RES/73/195 (11 January 2019, adopted 19 December 2018)

Goodfellow, Maya, ‘How Helpful is the term ‘Climate Refugee’?’, The Guardian (online, 31 August 2020) <https://www.theguardian.com/world/2020/aug/31/how-helpful-is-the-term-climate-refugee>

Harvey, Fiona, 'Climate Breakdown ‘is Increasing Violence Against Women’, The Guardian (online, 30 January 2020) <https://www.theguardian.com/environment/2020/jan/29/climate-breakdown-is-increasing-violence-against-women>

Inter-Parliamentary Union and United Nations High Commissioner for Refugees, ‘A Guide to International Refugee Protection and Building State Asylum Systems’ (Handbook for Parliamentarians No 37, 2017)

McAdam, Jane, ‘Do Climate Change Refugees Exist?’ (40^th Anniversary Professorial Lecture Series, UNSW Faculty of Law, 29 July 2011) <https://www.youtube.com/watch?v=c7fICabMHzg>

Nayar, Ranvir S, ‘Code Red on Climate Change as Warnings Fall on Deaf Ears’, Arab News (online, 13 August 2021) <https://www.arabnews.com/node/1910706>

Obama, Barack, ‘No Nation is Immune’ (Speech, 2014 Climate Summit, United Nations, 23 September 2014).

Samaras, Georgios, ‘Cyprus: What is Elam, the Far-Right Nationalist Party Seeking Success after the Golden Dawn?’, The Conversation (online, 6 August 2021) <https://theconversation.com/cyprus-what-is-elam-the-far-right-nationalist-party-seeking-success-after-the-demise-of-golden-dawn-165639>

ten Hove, Dali, ‘The UN Refugee Agency’s Bold Plan to Manage the Crisis of Climate Migrants’, PassBlue (online, 1 August 2021) <https://www.passblue.com/2021/08/01/the-un-refugee-agencys-bold-plan-to-manage-the-crisis-of-climate-migrants/>

Transforming Our World: The 2030 Agenda for Sustainable Development, GA Res 70/1, UN Doc A/RES/70/1 (21 October 2015, adopted 15 September 2015)

United Nations, ‘Climate Change ‘Biggest Threat Modern Humans Have Ever Faced’, World-Renowned Naturalist Tells Security Council, Calls for Greater Global Cooperation’ (Press Release, United Nations Security Council, SC/14445, 23 February 2021)

---

^[1] Barack Obama, ‘No Nation is Immune’ (Speech, 2014 Climate Summit, United Nations, 23 September 2014).

^[2] Intergovernmental Panel on Climate Change, ‘Climate Change 2021 The Physical Science Basis: Summary for Policymakers’ (Sixth Assessment Report of the Intergovernmental Panel on Climate Change, 7 August 2021) 36, 38; Matthew Scott, Climate Change, Disasters, and the Refugee Convention (Cambridge University Press, 2020) 10.

^[3] Inter-Parliamentary Union and United Nations High Commissioner for Refugees, ‘A Guide to International Refugee Protection and Building State Asylum Systems’ (Handbook for Parliamentarians No 37, 2017) 253; The Nansen Initiative, Agenda for the Protection of Cross-Border Displaced Persons in the Context of Disasters and Climate Change (Volume 1, December 2015) 6.

^[4] Jane McAdam, ‘The Normative Framework of Climate Change-Related Displacement’ (Conference Paper, Addressing the Legal Gaps in Climate Change Migration, Displacement and Resettlement: From Sinking Islands to Flooded Deltas, The Brookings Institution, 3 April 2012) 1.

^[5] Kumari Rigaud et al, Groundswell: Preparing for Internal Climate Migration (The World Bank, 2018) 2 cited in John Podesta, ‘The Climate Crisis, Migration and Refugees’ (Policy Brief, 2019 Brookings Blum Roundtable, 25 July 2019) 2.

^[6] Convention Relating to the Status of Refugees, opened for signature 28 July 1951, 189 UNTS 150 (entered into force 22 April 1954) (‘Convention’).

^[7] Ibid art 33(1).

^[8] Maya Goodfellow, ‘How Helpful is the term ‘Climate Refugee’?’, The Guardian (online, 31 August 2020) <https://www.theguardian.com/world/2020/aug/31/how-helpful-is-the-term-climate-refugee>; Elida Høeg and Christopher D. Tulloch, ‘Sinking Strangers: Media Representations of Climate Refugees on the BBC and Al Jazeera’ (2019) 43(3) Journal of Communication Inquiry 225, 227-8.

^[9] Jane McAdam, ‘Do Climate Change Refugees Exist?’ (40^th Anniversary Professorial Lecture Series, UNSW Faculty of Law, 29 July 2011) <https://www.youtube.com/watch?v=c7fICabMHzg>.

^[10] Convention (n 6) art 1A(2); Essam El-Hinnawi, ‘Environmental Refugees’ (Report, United Nations Environment Programme, 1985) 2-3; James Hathaway and Michelle Foster, The Law of Refugee Status (Cambridge University Press, 2^nd ed, 2014) 175-6.

^[11] James Hathaway and Michelle Foster, The Law of Refugee Status (Cambridge University Press, 2^nd ed, 2014) 175-6; Jane McAdam, ‘Current Developments – Protecting People Displaced by the Impacts of Climate Change: The UN Human Rights Committee and the Principle of Non-Refoulement’ (2020) 114:4 American Journal of International Law 708, 712.

^[12] See, eg, Australian Associated Press and Staff Writers, ‘Pauline Hanson, Cory Bernardi to Call for Australia’s Withdrawal from the United Nations Refugee Convention’, The Herald Sun (online, 20 June 2017) <https://www.heraldsun.com.au/news/national/pauline-hanson-cory-bernardi-to-call-for-australias-withdrawal-from-united-nations-refugee-convention/news-story/75b889c791e8277195ca3ed035a3f6e5>; Editorial, ‘The Guardian View on Fortress Europe: A Continent Losing its Moral Compass’, The Guardian (online, 2 August 2021) <https://www.theguardian.com/commentisfree/2021/aug/01/the-guardian-view-on-fortress-europe-a-continent-losing-its-moral-compass>; Lili Bayer, ‘Hungary’s ‘Zero Refugee Strategy’’, Politico (online, 20 September 2016) <https://www.politico.eu/article/hungary-zero-refugee-strategy-viktor-orban-europe-migration-crisis/>; Australian Associated Press, ‘Refugee Convention Withdrawal ‘an Option’’, The Sydney Morning Herald (online, 19 July 2013) <https://www.smh.com.au/politics/federal/refugee-convention-withdrawal-an-option-20130719-2q7xs.html>.

^[13] Global Compact for Safe, Orderly and Regular Migration, GA Res 73/195, UN Doc A/RES/73/195 (11 January 2019, adopted 19 December 2018) obj 5, para 21(g); Jane McAdam, ‘Current Developments – Protecting People Displaced by the Impacts of Climate Change: The UN Human Rights Committee and the Principle of Non-Refoulement’ (2020) 114:4 American Journal of International Law 708, 722.

^[14] Jon Barnett and Natasha Chamberlain, ‘Migration as Climate Change Adaptation: Implications for the Pacific’ in Bruce Burson (ed) Climate Change and Migration: South Pacific Perspectives (Institute of Policy Studies, Victoria University, Wellington, 2010) 51, 54; Selwyn Fraser, ‘Climate Persecutors: Climate Change Displacement and the International Community as Persecutor’ (2016) 20 New Zealand Journal of Environmental Law 107, 110; Ingrid Boas et al, ‘Climate Migration Myths’ (2019) 9 Nature Climate Change 898, 902.

^[15] Convention (n 6) art 1A(2).

^[16] Internal Displacement Monitoring Centre (IDMC), GRID 2021: Global Report on Internal Displacement (2021) 7.

^[17] Kumari Rigaud et al, Groundswell: Preparing for Internal Climate Migration (The World Bank, 2018) 2 cited in John Podesta, ‘The Climate Crisis, Migration and Refugees’ (Policy Brief, 2019 Brookings Blum Roundtable, 25 July 2019) 2.

^[18] Matthew Scott, Climate Change, Disasters, and the Refugee Convention (Cambridge University Press, 2020) 10.

^[19] Inter-Parliamentary Union and United Nations High Commissioner for Refugees, ‘A Guide to International Refugee Protection and Building State Asylum Systems’ (Handbook for Parliamentarians No 37, 2017) 253; The Nansen Initiative, Agenda for the Protection of Cross-Border Displaced Persons in the Context of Disasters and Climate Change (Volume 1, December 2015) 6.

^[20] McAdam (n 4) 1.

^[21] The Nansen Initiative, Agenda for the Protection of Cross-Border Displaced Persons in the Context of Disasters and Climate Change (Volume 1, December 2015) 14.

^[22] Ibid.

^[23] Andrea C.S. Berringer, ‘Possible Framework for Climate Change IDPs: Disaster and Development Induced Displacement and Resettlement Models and their Integration’ (2011) 2(4) The International Journal of Climate Change Impacts and Responses 89, 91 (emphasis added).

^[24] Jane McAdam, ‘Swimming Against the Tide: Why a Climate Change Displacement Treaty is Not the Answer’ (2011) 23 International Journal of Refugee Law 2, 11.

^[25] Selwyn Fraser, ‘Climate Persecutors: Climate Change Displacement and the International Community as Persecutor’ (2016) 20 New Zealand Journal of Environmental Law 107, 110.

^[26] Jane McAdam, Climate Change, Forced Migration and International Law (Oxford University Press, 2012) 24.

^[27] Greg Browder, et al, ‘An EPIC Response: Innovative Governance for Flood and Drought Risk Management’ (Report, World Bank, 2021) 3-4.

^[28] Jane McAdam, ‘Current Developments – Protecting People Displaced by the Impacts of Climate Change: The UN Human Rights Committee and the Principle of Non-Refoulement’ (2020) 114:4 American Journal of International Law 708, 711.

^[29] Ibid.

^[30] Inter-Parliamentary Union and United Nations High Commissioner for Refugees, ‘A Guide to International Refugee Protection and Building State Asylum Systems’ (Handbook for Parliamentarians No 37, 2017) 134; Fiona Harvey, 'Climate Breakdown ‘is Increasing Violence Against Women’, The Guardian (online, 30 January 2020) <https://www.theguardian.com/environment/2020/jan/29/climate-breakdown-is-increasing-violence-against-women>.

^[31] See, eg, International Committee of the Red Cross, ‘When Rain Turns to Dust: Understanding and Responding to the Combined Impact of Armed Conflicts and the Climate and Environment Crisis on People’s Lives’ (Report, July 2020) 15.

^[32] Jon Barnett and Natasha Chamberlain, ‘Migration as Climate Change Adaptation: Implications for the Pacific’ in Bruce Burson (ed) Climate Change and Migration: South Pacific Perspectives (Institute of Policy Studies, Victoria University, Wellington, 2010) 51, 54; Selwyn Fraser, ‘Climate Persecutors: Climate Change Displacement and the International Community as Persecutor’ (2016) 20 New Zealand Journal of Environmental Law 107, 110.

^[33] Madison Wu, ‘Addressing Cross-Border Climate Change-Related Displacement: Problems and Solutions for the Pacific Region’ (2020) 31 UNSW Law Journal Student Series 5 citing Jane McAdam and Marc Limon, ‘Human Rights, Climate Change and Cross-Border Displacement: The Role of the International Human Rights Community in Contributing to Effective and Just Solutions’ (Policy Report, Universal Rights Group, August 2015) 15.

^[34] ‘“Climate Commitments Not on Track to Meet Paris Agreement Goals” as NDC Synthesis Report is Published’, UN Climate Change (online, 26 February 2021) <https://unfccc.int/news/climate-commitments-not-on-track-to-meet-paris-agreement-goals-as-ndc-synthesis-report-is-published>; Ranvir S. Nayar, ‘Code Red on Climate Change as Warnings Fall on Deaf Ears’, Arab News (online, 13 August 2021) <https://www.arabnews.com/node/1910706>.

^[35] Sanjula Weerasinghe, ‘In Harm’s Way: International Protection in the Context of Nexus Dynamics between Conflict or Violence and Disaster or Climate Change’ (Report PPLA/2018/05, Legal and Protection Policy Research Series, Division of International Protection, UNHCR, December 2018) 10; Scott (n 18) 47.

^[36] Walter Kälin and Nina Schrepfer, ‘Protecting People Crossing Borders in the Context of Climate Change: Normative Gaps and Possible Approaches’ (Legal and Protection Policy Research Series, Division of International Protection, UNHCR, February 2012) 31; Guy S. Goodwin-Gill and Jane McAdam, The Refugee in International Law (3^rd ed, Oxford University Press, 2007) 201.

^[37] Protocol Relating to the Status of Refugees, adopted 31 January 1967, 606 UNTS 267 (entered into force 4 October 1967) arts 1(2)-(3) (‘Protocol’).

^[38] Convention (n 6) art 1A(2).

^[39] Ibid.

^[40] Ibid.

^[41] Ibid.

^[42] Fraser (n 25) 113, 131.

^[43] Vienna Convention on the Law of Treaties, opened for signature 23 May 1969, 1155 UNTS 331 (entered into force 27 January 1980) art 31(3)(b) (‘Vienna Convention’).

^[44] James Hathaway and Michelle Foster, The Law of Refugee Status (Cambridge University Press, 2^nd ed, 2014) 176.

^[45] Ibid; see also Walter Kälin and Nina Schrepfer, ‘Protecting People Crossing Borders in the Context of Climate Change: Normative Gaps and Possible Approaches’ (Legal and Protection Policy Research Series, Division of International Protection, UNHCR, February 2012) 32.

^[46] Fraser (n 25) 111.

^[47] Administrative Appeals Tribunal (Cth), Guide to Refugee Law in Australia: Chapter 4 Persecution (August 2020) 18 citing Minister for Immigration and Multicultural Affairs v Khawar [2002] HCA 14; (2002) 210 CLR 1, [30] (Gleeson CJ) confirming Minister for Immigration and Multicultural Affairs v Khawar [2000] FCA 1130; (2000) 101 FCR 501.

^[48] Fraser (n 25) 111.

^[49] Convention (n 6) art 1A(2) (emphasis added).

^[50] McAdam (n 4) 2.

^[51] Intergovernmental Panel on Climate Change, ‘Climate Change 2021 The Physical Science Basis: Summary for Policymakers’ (Sixth Assessment Report of the Intergovernmental Panel on Climate Change, 7 August 2021) 36, 38.

^[52] Fraser (n 25) 108; Teitiota v The Chief Executive of the Ministry of Business, Innovation and Employment [2013] NZHC 3125 [55].

^[53] Fraser (n 25) 108; see Teitiota v The Chief Executive of the Ministry of Business, Innovation and Employment [2013] NZHC 3125; Teitiota v The Chief Executive of the Ministry of Business, Innovation and Employment [2014] NZCA 173.

^[54] McAdam (n 4) 2; Fraser (n 25) 113, 115-6, 130.

^[55] McAdam (n 4) 2.

^[56] Ibid; see also Teitiota v The Chief Executive of the Ministry of Business, Innovation and Employment [2013] NZHC 3125, [55] (Priestley J); 0907346 [2009] RRTA 1168, [51].

^[57] McAdam (n 4) 2.

^[58] Teitiota v The Chief Executive of the Ministry of Business, Innovation and Employment [2013] NZHC 3125, [55]; 0907346 [2009] RRTA 1168, 1179 [51].

^[59] 0907346 [2009] RRTA 1168, 1171-4 [19]-[24].

^[60] Intergovernmental Panel on Climate Change (n 57) 36, 38

^[61] Fraser (n 25) 113.

^[62] Convention (n 6) art 1A(2) (emphasis added).

^[63] Hathaway and Foster (n 11)174.

^[64] Ibid 176.

^[65] See Scott (n 18) 2 citing Applicant A v Minister of Immigration and Ethnic Affairs (1997) 190 CLR 225; Horvath v Secretary of State for the Home Department [2000] UKHL 37; [2001] AC 489; Canada (Attorney General) v Ward [1993] 2 SCR 689.

^[66] Hathaway and Foster (n 11) 176 citing Yan Xu v Minister for Immigration and Multicultural Affairs [1997] FCA 276; Applicant A v Minister of Immigration and Multiethnic Affairs [1998] INLR 1, 19; Walter Kälin and Nina Schrepfer, ‘Protecting People Crossing Borders in the Context of Climate Change: Normative Gaps and Possible Approaches’ (Legal and Protection Policy Research Series, Division of International Protection, UNHCR, February 2012) 31.

^[67] Teitiota v The Chief Executive of the Ministry of Business, Innovation and Employment [2013] NZHC 3125, [55] (Priestly J).

^[68] Jane McAdam, ‘Climate Change Displacement and International Law: Complementary Protection Standards’ (Report PPLA/2011/03, Legal and Protection Policy Research Series, Division of International Protection, UNHCR, May 2011) 13 citing Guy S. Goodwin-Gill and Jane McAdam, The Refugee in International Law (3^rd ed, Oxford University Press, 2007) 79-80; Applicant A v Minister for Immigration and Ethnic Affairs (1997) 190 CLR 225, 341 (Dawson J).

^[69] Scott (n 18) 10-31.

^[70] Kenneth Hewitt, ‘Excluded Perspectives in the Social Construction of Disaster’ (1995) 13 International Journal of Mass Emergencies and Disasters 317, 320 cited in Matthew Scott, Climate Change, Disasters, and the Refugee Convention (Cambridge University Press, 2020) 14.

^[71] Scott (n 18) 13, 26.

^[72] Ibid 15.

^[73] Ibid; Anthony Oliver-Smith, “What is a Disaster?’ Anthropological Perspectives on a Persistent Question’ in Andrew Oliver-Smith and Susannah M. Hoffman (eds), The Angry Earth: Disaster in Anthropological Perspective (Routledge, 2019) 29, 34.

^[74] See, eg, Australian Associated Press and Staff Writers, ‘Pauline Hanson, Cory Bernardi to Call for Australia’s Withdrawal from the United Nations Refugee Convention’, The Herald Sun (online, 20 June 2017) <https://www.heraldsun.com.au/news/national/pauline-hanson-cory-bernardi-to-call-for-australias-withdrawal-from-united-nations-refugee-convention/news-story/75b889c791e8277195ca3ed035a3f6e5>; Editorial, ‘The Guardian View on Fortress Europe: A Continent Losing its Moral Compass’, The Guardian (online, 2 August 2021) <https://www.theguardian.com/commentisfree/2021/aug/01/the-guardian-view-on-fortress-europe-a-continent-losing-its-moral-compass>; Lili Bayer, ‘Hungary’s ‘Zero Refugee Strategy’’, Politico (online, 20 September 2016) <https://www.politico.eu/article/hungary-zero-refugee-strategy-viktor-orban-europe-migration-crisis/>; Australian Associated Press, ‘Refugee Convention Withdrawal ‘an Option’’, The Sydney Morning Herald (online, 19 July 2013) <https://www.smh.com.au/politics/federal/refugee-convention-withdrawal-an-option-20130719-2q7xs.html>.

^[75] Global Compact for Safe, Orderly and Regular Migration, GA Res 73/195, UN Doc A/RES/73/195 (11 January 2019, adopted 19 December 2018) obj 5, para 21(g); Jane McAdam, ‘Current Developments – Protecting People Displaced by the Impacts of Climate Change: The UN Human Rights Committee and the Principle of Non-Refoulement’ (2020) 114:4 American Journal of International Law 708, 722.

^[76] Hathaway and Foster (n 11) 288; Andrew E. Shacknove, ‘Who is a Refugee?’ (1985) 95(2) Ethics 274, 275.

^[77] Vienna Convention (n 43).

^[78] Ibid art 31(1).

^[79] Maya Goodfellow, ‘How Helpful is the term ‘Climate Refugee’?’, The Guardian (online, 31 August 2020) <https://www.theguardian.com/world/2020/aug/31/how-helpful-is-the-term-climate-refugee>

^[80] Goodfellow (n 75).

^[81] Jane McAdam, ‘Climate Change Displacement and International Law: Complementary Protection Standards’ (Report PPLA/2011/03, Legal and Protection Policy Research Series, Division of International Protection, UNHCR, May 2011) citing Canada (Attorney General) v. Ward [1993] 2 SCR 689, 732; Applicant A v. Minister for Immigration & Ethnic Affairs (1997) 190 CLR 225, 248 (Dawson J).

^[82] Hathaway and Foster (n 11) 308.

^[83] Andrew E. Shacknove, ‘Who is a Refugee?’ (1985) 95(2) Ethics 274, 275.

^[84] Applicant A v. Minister for Immigration & Ethnic Affairs (1997) 190 CLR 225, 248 (Dawson J).

^[85] Horvath v. Secretary of State for the Home Department [2000] UKHL 37; [2001] 1 AC 489, 499–500 (Lord Hope) cited in Jane McAdam, ‘Climate Change Displacement and International Law: Complementary Protection Standards’ (Report PPLA/2011/03, Legal and Protection Policy Research Series, Division of International Protection, UNHCR, May 2011) 13.

^[86] Horvath v. Secretary of State for the Home Department [2000] UKHL 37; [2001] 1 AC 489, 499–500 (Lord Hope).

^[87] Ibid.

^[88] Hathaway and Foster (n 41) 177.

^[89] Ibid; UNHCR, Handbook on Procedures and Criteria for Determining Refugee Status under the 1951 Convention and the 1967 Protocol relating to the Status of Refugees (2019) 38 [164]; see Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of International Armed Conflicts (Protocol I), adopted 8 June 1977, 1125 UNTS 3 (entered into force 7 December 1978).

^[90] Gilbert Jaeger, ‘The Definition of ‘Refugee’: Restrictive versus Expanding Trends’ (1983) World Refugee Survey 5, 7 cited in James Hathaway and Michelle Foster, The Law of Refugee Status (Cambridge University Press, 2^nd ed, 2014) 176-7.

^[91] Vienna Convention (n 43) pt IV.

^[92] Ibid arts 40(1)-(2).

^[93] Ibid art 40(2).

^[94] Office of the United Nations High Commissioner for Refugees, ‘Introductory Note’ in Convention Relating to the Status of Refugees, opened for signature 28 July 1951, 189 UNTS 150 (entered into force 22 April 1954) 2, 2.

^[95] Protocol (n 37) art I(2).

^[96] Office of the United Nations High Commissioner for Refugees, ‘Introductory Note’ in Convention (n 6).

^[97] Convention (n 6) art 1B(1)(b).

^[98] Samuel Berhanu Woldemariam, Amy Maguire and Jason von Meding, ‘Forced Human Displacement, the Third World and International Law: A TWAIL Perspective’ [2019] MelbJlIntLaw 2; (2019) 20 Melbourne Journal of International Law 1.

^[99] Ibid 19.

^[100] Ibid.

^[101] Kumari Rigaud et al, Groundswell: Preparing for Internal Climate Migration (The World Bank, 2018) 2.

^[102] OAU Convention Governing the Specific Aspects of Refugee Problems in Africa, opened for signature 10 September 1969, 1001 UNTS 45 (entered into force 20 June 1974) (‘OAU Convention’).

^[103] J O Moses Okello, ‘The 1969 OAU Convention and the Continuing Challenge for the African Union’ (2014) 48 Forced Migration Review 70, 71.

^[104] OAU Convention (n 102).

^[105] Ibid art I(2).

^[106] McAdam (n 27) 87.

^[107] J O Moses Okello, ‘The 1969 OAU Convention and the Continuing Challenge for the African Union’ (2014) 48 Forced Migration Review 70, 72.

^[108] See, eg, Australian Associated Press and Staff Writers, ‘Pauline Hanson, Cory Bernardi to Call for Australia’s Withdrawal from the United Nations Refugee Convention’, The Herald Sun (online, 20 June 2017) <https://www.heraldsun.com.au/news/national/pauline-hanson-cory-bernardi-to-call-for-australias-withdrawal-from-united-nations-refugee-convention/news-story/75b889c791e8277195ca3ed035a3f6e5>; Editorial, ‘The Guardian View on Fortress Europe: A Continent Losing its Moral Compass’, The Guardian (online, 2 August 2021) <https://www.theguardian.com/commentisfree/2021/aug/01/the-guardian-view-on-fortress-europe-a-continent-losing-its-moral-compass>; Lili Bayer, ‘Hungary’s ‘Zero Refugee Strategy’’, Politico (online, 20 September 2016) <https://www.politico.eu/article/hungary-zero-refugee-strategy-viktor-orban-europe-migration-crisis/>; Australian Associated Press, ‘Refugee Convention Withdrawal ‘an Option’’, The Sydney Morning Herald (online, 19 July 2013) <https://www.smh.com.au/politics/federal/refugee-convention-withdrawal-an-option-20130719-2q7xs.html>.

^[109] John Podesta, ‘The Climate Crisis, Migration and Refugees’ (Policy Brief, 2019 Brookings Blum Roundtable, 25 July 2019) 4.

^[110] Andrew Shacknove, ‘Who is a Refugee?’ (1985) 95(2) Ethics 274, 276.

^[111] Ingrid Boas et al, ‘Climate Migration Myths’ (2019) 9 Nature Climate Change 898, 901-2; Goodfellow (n 75); Cristina Baussan et al, ‘When Climate Change and Xenophobia Collide’, The New Yorker (online, 16 February 2021) <https://www.newyorker.com/news/dispatch/when-climate-change-and-xenophobia-collide>.

^[112] Goodfellow (n 75).

^[113] Georgios Samaras, ‘Cyprus: What is Elam, the Far-Right Nationalist Party Seeking Success after the Golden Dawn?’, The Conversation (online, 6 August 2021) <https://theconversation.com/cyprus-what-is-elam-the-far-right-nationalist-party-seeking-success-after-the-demise-of-golden-dawn-165639>; Ban Ki-Moon, ’70 Years Ago, the World Made a Pact to Protect Refugees. Too Many of our Leaders are Failing to Uphold that Promise’, Time (online, 26 July 2021) <https://time.com/6083151/1951-refugee-convention-anniversary/>.

^[114] Helen Dempster, et al, ‘Locked Down and Left Behind: The Impact of COVID-19 on Refugees’ Economic Inclusion’ (Policy Paper 179, Center for Global Development and Refugees International, July 2020) 24; Joachim Vogt Isaksen, ‘The Impact of the Financial Crisis on European Attitudes Toward Immigration’ (2019) 7(24) 15.

^[115] Goodfellow (n 75); Report of the United Nations High Commissioner for Refugees Part II: Global Compact on Refugees, UN Doc A/73/12 Part II (17 December 2018) 2.

^[116] Fraser (n 25) 112; see, eg, Scott (n 10); Grace Adcox, ‘Climate “Refugees” Explained’, Novel Hand (online, 28 January 2020) <https://novelhand.com/climate-refugees-explained/>.

^[117] See Dali ten Hove, ‘The UN Refugee Agency’s Bold Plan to Manage the Crisis of Climate Migrants’, PassBlue (online, 1 August 2021) <https://www.passblue.com/2021/08/01/the-un-refugee-agencys-bold-plan-to-manage-the-crisis-of-climate-migrants/>.

^[118] Hathaway and Foster (n 44) 176; Administrative Appeals Tribunal (Cth), Guide to Refugee Law in Australia: Chapter 4 Persecution (August 2020) 18 citing Minister for Immigration and Multicultural Affairs v Khawar [2002] HCA 14; (2002) 210 CLR 1, [30] (Gleeson CJ) confirming Minister for Immigration and Multicultural Affairs v Khawar [2000] FCA 1130; (2000) 101 FCR 501.

^[119] Rachel Baird, ‘The Impact of Climate Change on Minorities and Indigenous Peoples’ (Briefing Paper, Minority Rights Group International, 2008) 1, 6-8.

^[120] The Nansen Initiative, Agenda for the Protection of Cross-Border Displaced Persons in the Context of Disasters and Climate Change (Volume 1, December 2015) 27.

^[121] Ibid 27, 54 n 48.

^[122] Convention (n 6) arts 1A(2), 33(1); see Jane McAdam, ‘Current Developments – Protecting People Displaced by the Impacts of Climate Change: The UN Human Rights Committee and the Principle of Non-Refoulement’ (2020) 114:4 American Journal of International Law 708, 709.

^[123] Jane McAdam, ‘Current Developments – Protecting People Displaced by the Impacts of Climate Change: The UN Human Rights Committee and the Principle of Non-Refoulement’ (2020) 114:4 American Journal of International Law 708, 709; Human Rights Committee, Views: Communication No 2728/2016, 127^th sess, UN Doc CCPR /C/127/D/2728/2016 (23 September 2020) 11 [9.11] (‘Teitiota v New Zealand’).

^[124] Ibid 27.

^[125] Transforming Our World: The 2030 Agenda for Sustainable Development, GA Res 70/1, UN Doc A/RES/70/1 (21 October 2015, adopted 15 September 2015) goal 10.7; Podesta (n 83) 4.

^[126] Inter-Parliamentary Union and United Nations High Commissioner for Refugees, ‘A Guide to International Refugee Protection and Building State Asylum Systems’ (Handbook for Parliamentarians No 37, 2017) 150; Global Compact for Safe, Orderly and Regular Migration, GA Res 73/195, UN Doc A/RES/73/195 (11 January 2019, adopted 19 December 2018) obj 5, para 21(g);

^[127] Global Compact for Safe, Orderly and Regular Migration, GA Res 73/195, UN Doc A/RES/73/195 (11 January 2019, adopted 19 December 2018) obj 5, para 21(h) cited in Jane McAdam, ‘Current Developments – Protecting People Displaced by the Impacts of Climate Change: The UN Human Rights Committee and the Principle of Non-Refoulement’ (2020) 114:4 American Journal of International Law 708, 722.

^[128] McAdam (n 4) 5.

^[129] See, eg, Australian Associated Press and Staff Writers, ‘Pauline Hanson, Cory Bernardi to Call for Australia’s Withdrawal from the United Nations Refugee Convention’, The Herald Sun (online, 20 June 2017) <https://www.heraldsun.com.au/news/national/pauline-hanson-cory-bernardi-to-call-for-australias-withdrawal-from-united-nations-refugee-convention/news-story/75b889c791e8277195ca3ed035a3f6e5>; Editorial, ‘The Guardian View on Fortress Europe: A Continent Losing its Moral Compass’, The Guardian (online, 2 August 2021) <https://www.theguardian.com/commentisfree/2021/aug/01/the-guardian-view-on-fortress-europe-a-continent-losing-its-moral-compass>; Lili Bayer, ‘Hungary’s ‘Zero Refugee Strategy’’, Politico (online, 20 September 2016) <https://www.politico.eu/article/hungary-zero-refugee-strategy-viktor-orban-europe-migration-crisis/>; Australian Associated Press, ‘Refugee Convention Withdrawal ‘an Option’’, The Sydney Morning Herald (online, 19 July 2013) <https://www.smh.com.au/politics/federal/refugee-convention-withdrawal-an-option-20130719-2q7xs.html>.

^[130] Global Compact for Safe, Orderly and Regular Migration, GA Res 73/195, UN Doc A/RES/73/195 (11 January 2019, adopted 19 December 2018) obj 5, para 21(g); Jane McAdam, ‘Current Developments – Protecting People Displaced by the Impacts of Climate Change: The UN Human Rights Committee and the Principle of Non-Refoulement’ (2020) 114:4 American Journal of International Law 708, 722.