The impacts of climate change are continuing to worsen, and in the Caribbean and Latin America, Haiti is the country most vulnerable to those impacts.[1] When states are already fragile from political and economic turmoil, environmental disasters and long-term climatic change further stress those systems, leading, at the extreme, to international displacement and migration. Recent Haitian migration to the United States is just one example of this phenomenon,[2] highlighting the need for international protections for climate-displaced persons.[3]

As early as 1985, the United Nations Environment Programme was working to define and categorize so-called “environmental refugees.”[4] In 2018, the Global Compact for Safe, Orderly and Regular Migration recognized environmental degradation as a serious contributor to international migration.[5] Both Latin America and the African Union have expanded definitions of “refugee” to include, among others, climate-displaced persons.[6] However, despite these and other initiatives, climate-displaced persons are not protected by any international laws or conventions and are notably missing from the United Nations Refugee Convention (1951).

Under the Refugee Convention, the protected status of “refugee” is only available to persons fleeing their country of nationality due to fears of being persecuted “for reasons of race, religion, nationality, membership of a particular social group or political opinion . . . .”[7] There are genuine problems with the international refugee regime, and adding climate-displaced persons as another category of “refugee” would undoubtedly exacerbate and further worsen current problems, particularly the lack of resources for aiding integration. Yet, the displacement, hardship, and challenges already presented by climate migration are as urgent a legal and humanitarian crisis as was the post-World War II displacement that led to the creation of the Refugee Convention. Even if not via the status of “refugee,” the kinds of protections and rights given to refugees should be extended to climate-displaced persons, too.

            Fortunately, there are examples of progress towards protecting and recognizing the plight of climate-displaced persons. Because of its geographic relation to several Small Island Developing States, the New Zealand Immigration and Protection Tribunal (“NZIPT”) has already heard several cases from citizens of these states. These families are attempting to receive international protections in New Zealand after fleeing their home countries due to environmental degradation and worsening climatic conditions.[8] While the NZIPT has thus far denied these claims, the reasoning across these cases closely aligns the status of climate-displaced persons with that of traditional refugees, expanding especially on the issues of economic and social rights and the concept of non-refoulement, protecting individuals from forced removal or return to unsafe countries.[9] In the United States, the designation of Temporary Protected Status (“TPS”) or Deferred Enforced Departure (“DED”) constitute existing, although severely inadequate, legal tools for aiding climate-displaced persons and others, similarly relying on theories of non-refoulement.[10] These judicial and legislative examples, along with the aforementioned policies and conventions, model existing theories and systems that could be codified into a single international protection scheme for the millions of people who have been, continue to be, and will be displaced by climate change.

[1] Haiti, Climate Links, https://www.climatelinks.org/countries/haiti (last visited Oct. 30, 2021).

[2] See generally Edward Alden & Alex Tippett, Why Are Haitian Migrants Gathering at the U.S. Border?, Council on Foreign Rels.: In Brief (Oct. 1, 2021, 11:35 AM), https://www.cfr.org/in-brief/why-are-haitian-migrants-gathering-us-border (stating that migrants left Haiti due, in part, to the devastation from a successive earthquake and tropical storm in August 2021).

[3] Author’s note: This piece will use the term “climate-displaced persons” in reference to people and communities displaced due to natural disasters and those people choosing to leave not in a moment of emergency, but as a result of the cascading political, economic, and environmental impacts of climate change. There is no one definition or clear categorization for the group often referred to as “climate migrants” or “climate refugees,” but as both those phrases use legally significant terms that, at least in the United States, do not regularly include the groups discussed herein, I feel that “climate-displaced persons” best represents the realities of this ever-growing population.

[4] See Essam El-Hinnawi, Environmental Refugees (1985).

[5] See G.A. Res. 73/195, Global Compact for Safe, Orderly and Regular Migration, at 10 (Dec. 10, 2018).

[6] See Cartagena Declaration on Refugees, Colloquium on the International Protection of Refugees in Central America, Mexico and Panama, art. III, ¶ 3, Nov. 22, 1984, U.N.H.C.R. (“[P]persons who have fled their country because their lives, safety or freedom have been threatened by general violence, foreign aggression, internal conflicts, massive violation of human rights or other circumstances which have seriously disturbed public order.”); OAU Convention Governing the Specific Aspects of Refugee Problems in Africa, art. I, Sept. 10, 1969, 8 I.L.M. 1288-98 (falling under “events seriously disturbing public order”).

[7] Convention Relating to the Status of Refugees, art. 1, July 28, 1951, 19 U.S.T. 6259, 189 U.N.T.S. 150.

[8] See Matthew Scott, Finding Agency in Adversity: Applying the Refugee Convention in the Context of Disasters and Climate Change, 35 Refugee Surv. Q. 26, 38-40 (2016).

[9] Id. at 13, 24.

[10] See Erol Yayboke et al., A New Framework for U.S. Leadership on Climate Migration 1, 8 (2020), https://csis-website-prod.s3.amazonaws.com/s3fs-public/publication/201022_Yayboke_ClimateMigration_Brief_0.pdf.