Climate Migration: A Proposal for a Multitrack Approach in International Law
By Miguel Filipe Guerreriro
Editor: Veronica Corcodel
Abstract
This blogpost proposes a climate migration multitrack approach that considers what has been possible so far (soft law mechanisms), what is necessary (regional agreement), and what would be desirable (multilateral agreement). It is argued that the international community can provide feasible and appropriate protection of the rights of climate migrants through this three-step approach.
Keywords: climate change, climate migration, international Law, multi-track approach
Introductory Remarks
The varying pace of climate change consequences, ranging from the gradual increase in temperature and sea levels to the sudden onset of extreme weather phenomena, has rendered certain areas uninhabitable and unsafe for human existence. These tangible hardships in human life and living conditions have led to the emergence of a new group of people: individuals displaced due to climate change effects. Data shows that millions of people have left their homes and nations voluntarily or forcibly, and analysts point to a significant escalation of people displaced by climate change in the future.
There is no binding international legal instrument specifically dedicated to climate migration. This legal void has led to human rights violations, rejection of refugee applications, unorganized internal displacement, and risks of statelessness. Considering these regrettable circumstances, this blogpost provides some reflections on how to go about the international protection gap and move in the direction of effective solutions. Migration is used here as an umbrella term that includes both internal displacement and transboundary movements, and includes forced displacement.
1. A Multi-track Approach in International Law
Three main solutions have been proposed in the literature to protect climate migrants: soft law instruments, regional agreements, and international multilateral treaties. While each of these solutions deserves consideration, existing proposals fall short of assessing them from a strategic governance point of view. This might explain why an important part of the literature has placed excessive faith in international treaties as a solution. As noted by Fisher and others, “the international treaty process is seen as the ultimate panacea.” Barnett points out that the amount of effort and resources invested in the establishment of an international treaty misdirects the debate away from alternative approaches to climate migration. Moreover, an international treaty might not be suitable for all issues and at any point in time. Climate migration being a multi-dimensional phenomenon accompanied by global political tensions, a more pragmatic approach would have to carefully appraise what has been possible to achieve so far, what is still necessary to achieve, and what would be desirable in the long term.
2. What has been Possible: Soft Law Instruments
Global governance efforts to develop protection mechanisms for climate migrants have primarily relied on soft law frameworks. The Cancún Adaptation Framework (2010) marked a significant step, where member states agreed that climate migration deserved the same attention and enforcement as climate adaptation. Following this, the Nasen Principles (2011) introduced ten key principles with an overarching aim to highlight the need for legal and practical actions, shedding light on the creation of a global guiding framework for disaster-induced cross-border displacement. This connection between the environment and human movements has been reiterated in various soft law mechanisms from the UN, urging states and other stakeholders to identify measures to protect and assist those displaced by disasters across borders. In 2018, the Global Compact for Safe, Orderly, and Regular Migration (GCM) was the first international non-legally binding cooperative framework on migration, in which environmental disasters are recognized as drivers of forced migration, underscoring the urgency to protect those affected.
Soft law instruments have contributed to highlighting the human face of climate change and elucidating the nexus between climate change and human mobility. They have spurred debates, galvanized political will, and laid the foundational framework for regulating climate migration and protecting climate migrants. Nevertheless, although soft law arrangements can yield positive outcomes, this approach should be seen as a temporary mechanism, as their effects are neither guaranteed nor fully reliable. The present urges for more robust action.
3. What is Necessary: A Regional Approach Through Free Movement Agreements
In the face of existing climate challenges and political disagreements, it is high time to tackle crucial issues concerning internal displacement and the vulnerability of citizens from Small Island Developing States (SIDS) to climate-induced migration. Internal displacement, largely driven by domestic concerns, has led countries to address the challenge individually, creating disparities in the protection of Internally Displaced Persons (IDPs) from climate change. While rudimentary solutions such as land acquisition, artificial islands, and sea walls have been suggested, they fail to fully tackle the fundamental issue of protecting the rights of climate migrants from SIDS. A rights-based approach is crucial for safeguarding the displaced population. Consequently, while a multilateral agreement across regions is deemed essential, it is equally important to recognize climate change as a complex issue that requires comprehensive national and regional responses.
Regional mechanisms, tailored to the needs of groups with shared interests and challenges, offer a platform to address specific climate migration challenges within their respective areas. A regional response is crucial for addressing immediate issues. This approach should target areas most affected by climate change and establish or reinforce assistance mechanisms. An important avenue for progress would be to explore Free Movement Agreements (FMA) on the regional level, which liberalize migration restrictions between participating member states. These agreements should prioritize protecting and assisting climate migrants, respecting human rights, taking positive action, and fostering cooperation. Innovatively, the proposal advocates for the creation of a Climate Migration Regional Alliance. Such alliance, would aim to establish common rules or principles for regulating internal displacement, address challenges in partnerships, coordination, data analysis, protracted displacement, and ensure the participation of displaced persons.
From a regional perspective, an important concern is the unequal allocation of responsibilities for adapting and mitigating climate change. Countries contributing less to climate change are disproportionately affected by such change, and past GHG emissions are mainly connected to today´s developed countries, these are ultimately better positioned to deal with their climate effects, including migration. The Regional Alliance could implement the principle of common but differentiated responsibilities, taking into account the financial capacity of countries and identifying significant contributors to greenhouse gas emissions. This assessment of climate contributors should consider that poorer nations that face significant emissions were integrated into a development scheme created by developed countries. In this model, basic infrastructure, economic growth, and cost-effective mechanisms and raw materials are heavily reliant on processes that generate greenhouse gas emissions. Achieving a fair distribution of responsibilities is crucial for supporting regional relocation planning, developing tracking mechanisms for climate migrants, and creating damage compensation schemes.
4. What Would be Desirable: A Preventive Climate Migration Convention
Establishing a new multilateral agreement appears commendable for safeguarding climate migrants globally, but its feasibility remains uncertain under current circumstances. The prevailing conjecture, fraught with political disagreements and tensions, is not conducive to such an agreement. As noted by the UN Secretary-General’s Report on Climate Change and Displacement, however, a comprehensive multilateral agreement across regions would be the most effective means to address challenges of climate migration, creating regimes of permissible movements and legal status for affected populations. A pragmatic approach suggests a gradual transition from regional mechanisms to global action. At least two key aspects would have to be addressed by the treaty: ensuring that communities can remain in their homes whenever possible, and secondly, coordinating an organized distribution of climate migrants among nations. Additionally, the agreement should establish a long-term framework addressing the underlying causes of climate migration and implement effective coping strategies.
Implementing such complexity requires considerable strategic planning and coordination. The international community should establish a dedicated coordination mechanism responsible for managing migration through quota distribution for climate migrants via the principle of common but differentiated responsibilities within a structured relocation scheme.
While proposals often advocate for a new coordination institution, leveraging an existing body proves more pragmatic. The UN Framework Convention on Climate Change (UNFCCC), as the principal international legal framework combatting climate change, stands out as an established platform for future agreement endorsements. Critics have discredited UNFCCC processes concerning climate migration, referring to failures in emission reduction and its primary focus on state-to-state relations rather than individual or community duties. Nevertheless, the UNFCCC stands out as the prime candidate for a coordination platform, aspiring to ensure a high level of representation of States while maintaining a central focus on climate change. Moreover, States have acquired significant experience in climate-related negotiations under the umbrella of the UNFCC. Although the UNFCCC has not traditionally focused on human rights, recent developments, such as the approval of the Loss and Damage regime, indicate a shifting perspective.
The proposed multilateral agreement should incorporate a Climate Change Immigration Visa Program, in a manner that complies with the principle of common but differentiated responsibilities. This would involve allocating visas based on countries’ greenhouse gas emissions percentages, where developed countries would receive migrants from developing nations. Moreover, the agreement should thoroughly assess the financial capacity and human rights protection levels of receiving countries, ensuring a just and equitable approach. Also, balancing autonomy and cultural integrity within climate migration is crucial to providing a just solution. Relocated individuals should be allowed to have a say in their move, ensuring recognition of their family, language, historical, or cultural ties to countries of destination. In summary, the proportional allocation of migrants should take into account the conditions in host countries, while also respecting the values and the willingness of climate migrants to relocate or stay.
Conclusion
This blogpost has argued for the need for a multitrack pragmatic approach as the most viable and effective means to protect climate migrants. Soft law instruments have a historical significance and foundational role in shaping climate migration protection. However, recognizing their temporal nature, a regional ‘hard’ approach would be an important intermediary step before establishing a multilateral regime across nations. This would involve the signing of Free Movement Agreements to regulate climate displacement and safeguard citizens of SIDS. Proposing the establishment of a Regional Alliance, the approach engages the international community by financially addressing greenhouse gas emissions focusing on internal mobility and SIDS citizens issues. Looking ahead, a desirable future entails the development of an international agreement with long-term measures to protect climate migrants. Simultaneously, structured international relocations should be undertaken when deemed necessary. The UNFCCC is posited as a suitable platform for this strategy, incorporating allocation quotas guided by the principle of common but differentiated responsibilities.
Future policies must uphold the principle of common but differentiated responsibilities, recognizing that climate migration requires a comprehensive, multi-faceted approach. While pragmatism and feasibility should guide policy development, experts must remain mindful that climate migration stems from the global challenge of climate change. Focusing only on the consequences, without addressing the root causes, risks perpetuating a cycle of human rights violations and increased vulnerability. Though the window for meaningful action is rapidly closing, there remains an opportunity to intervene decisively and prevent an impending humanitarian catastrophe. However, this will demand a level of political will and global cooperation that has so far proven elusive.
Guerreriro, Miguel Filipe, “Climate Migration: A Proposal for a Multitrack Approach in International Law”. NOVA Refugee and Migration Clinic Blog, December 2024, available at:
Climate Migration: A Proposal for a Multitrack Approach in International Law
Abstract
This blogpost proposes a climate migration multitrack approach that considers what has been possible so far (soft law mechanisms), what is necessary (regional agreement), and what would be desirable (multilateral agreement). It is argued that the international community can provide feasible and appropriate protection of the rights of climate migrants through this three-step approach.
Keywords: climate change, climate migration, international Law, multi-track approach
Introductory Remarks
The varying pace of climate change consequences, ranging from the gradual increase in temperature and sea levels to the sudden onset of extreme weather phenomena, has rendered certain areas uninhabitable and unsafe for human existence. These tangible hardships in human life and living conditions have led to the emergence of a new group of people: individuals displaced due to climate change effects. Data shows that millions of people have left their homes and nations voluntarily or forcibly, and analysts point to a significant escalation of people displaced by climate change in the future.
There is no binding international legal instrument specifically dedicated to climate migration. This legal void has led to human rights violations, rejection of refugee applications, unorganized internal displacement, and risks of statelessness. Considering these regrettable circumstances, this blogpost provides some reflections on how to go about the international protection gap and move in the direction of effective solutions. Migration is used here as an umbrella term that includes both internal displacement and transboundary movements, and includes forced displacement.
1. A Multi-track Approach in International Law
Three main solutions have been proposed in the literature to protect climate migrants: soft law instruments, regional agreements, and international multilateral treaties. While each of these solutions deserves consideration, existing proposals fall short of assessing them from a strategic governance point of view. This might explain why an important part of the literature has placed excessive faith in international treaties as a solution. As noted by Fisher and others, “the international treaty process is seen as the ultimate panacea.” Barnett points out that the amount of effort and resources invested in the establishment of an international treaty misdirects the debate away from alternative approaches to climate migration. Moreover, an international treaty might not be suitable for all issues and at any point in time. Climate migration being a multi-dimensional phenomenon accompanied by global political tensions, a more pragmatic approach would have to carefully appraise what has been possible to achieve so far, what is still necessary to achieve, and what would be desirable in the long term.
2. What has been Possible: Soft Law Instruments
Global governance efforts to develop protection mechanisms for climate migrants have primarily relied on soft law frameworks. The Cancún Adaptation Framework (2010) marked a significant step, where member states agreed that climate migration deserved the same attention and enforcement as climate adaptation. Following this, the Nasen Principles (2011) introduced ten key principles with an overarching aim to highlight the need for legal and practical actions, shedding light on the creation of a global guiding framework for disaster-induced cross-border displacement. This connection between the environment and human movements has been reiterated in various soft law mechanisms from the UN, urging states and other stakeholders to identify measures to protect and assist those displaced by disasters across borders. In 2018, the Global Compact for Safe, Orderly, and Regular Migration (GCM) was the first international non-legally binding cooperative framework on migration, in which environmental disasters are recognized as drivers of forced migration, underscoring the urgency to protect those affected.
Soft law instruments have contributed to highlighting the human face of climate change and elucidating the nexus between climate change and human mobility. They have spurred debates, galvanized political will, and laid the foundational framework for regulating climate migration and protecting climate migrants. Nevertheless, although soft law arrangements can yield positive outcomes, this approach should be seen as a temporary mechanism, as their effects are neither guaranteed nor fully reliable. The present urges for more robust action.
3. What is Necessary: A Regional Approach Through Free Movement Agreements
In the face of existing climate challenges and political disagreements, it is high time to tackle crucial issues concerning internal displacement and the vulnerability of citizens from Small Island Developing States (SIDS) to climate-induced migration. Internal displacement, largely driven by domestic concerns, has led countries to address the challenge individually, creating disparities in the protection of Internally Displaced Persons (IDPs) from climate change. While rudimentary solutions such as land acquisition, artificial islands, and sea walls have been suggested, they fail to fully tackle the fundamental issue of protecting the rights of climate migrants from SIDS. A rights-based approach is crucial for safeguarding the displaced population. Consequently, while a multilateral agreement across regions is deemed essential, it is equally important to recognize climate change as a complex issue that requires comprehensive national and regional responses.
Regional mechanisms, tailored to the needs of groups with shared interests and challenges, offer a platform to address specific climate migration challenges within their respective areas. A regional response is crucial for addressing immediate issues. This approach should target areas most affected by climate change and establish or reinforce assistance mechanisms. An important avenue for progress would be to explore Free Movement Agreements (FMA) on the regional level, which liberalize migration restrictions between participating member states. These agreements should prioritize protecting and assisting climate migrants, respecting human rights, taking positive action, and fostering cooperation. Innovatively, the proposal advocates for the creation of a Climate Migration Regional Alliance. Such alliance, would aim to establish common rules or principles for regulating internal displacement, address challenges in partnerships, coordination, data analysis, protracted displacement, and ensure the participation of displaced persons.
From a regional perspective, an important concern is the unequal allocation of responsibilities for adapting and mitigating climate change. Countries contributing less to climate change are disproportionately affected by such change, and past GHG emissions are mainly connected to today´s developed countries, these are ultimately better positioned to deal with their climate effects, including migration. The Regional Alliance could implement the principle of common but differentiated responsibilities, taking into account the financial capacity of countries and identifying significant contributors to greenhouse gas emissions. This assessment of climate contributors should consider that poorer nations that face significant emissions were integrated into a development scheme created by developed countries. In this model, basic infrastructure, economic growth, and cost-effective mechanisms and raw materials are heavily reliant on processes that generate greenhouse gas emissions. Achieving a fair distribution of responsibilities is crucial for supporting regional relocation planning, developing tracking mechanisms for climate migrants, and creating damage compensation schemes.
4. What Would be Desirable: A Preventive Climate Migration Convention
Establishing a new multilateral agreement appears commendable for safeguarding climate migrants globally, but its feasibility remains uncertain under current circumstances. The prevailing conjecture, fraught with political disagreements and tensions, is not conducive to such an agreement. As noted by the UN Secretary-General’s Report on Climate Change and Displacement, however, a comprehensive multilateral agreement across regions would be the most effective means to address challenges of climate migration, creating regimes of permissible movements and legal status for affected populations. A pragmatic approach suggests a gradual transition from regional mechanisms to global action. At least two key aspects would have to be addressed by the treaty: ensuring that communities can remain in their homes whenever possible, and secondly, coordinating an organized distribution of climate migrants among nations. Additionally, the agreement should establish a long-term framework addressing the underlying causes of climate migration and implement effective coping strategies.
Implementing such complexity requires considerable strategic planning and coordination. The international community should establish a dedicated coordination mechanism responsible for managing migration through quota distribution for climate migrants via the principle of common but differentiated responsibilities within a structured relocation scheme.
While proposals often advocate for a new coordination institution, leveraging an existing body proves more pragmatic. The UN Framework Convention on Climate Change (UNFCCC), as the principal international legal framework combatting climate change, stands out as an established platform for future agreement endorsements. Critics have discredited UNFCCC processes concerning climate migration, referring to failures in emission reduction and its primary focus on state-to-state relations rather than individual or community duties. Nevertheless, the UNFCCC stands out as the prime candidate for a coordination platform, aspiring to ensure a high level of representation of States while maintaining a central focus on climate change. Moreover, States have acquired significant experience in climate-related negotiations under the umbrella of the UNFCC. Although the UNFCCC has not traditionally focused on human rights, recent developments, such as the approval of the Loss and Damage regime, indicate a shifting perspective.
The proposed multilateral agreement should incorporate a Climate Change Immigration Visa Program, in a manner that complies with the principle of common but differentiated responsibilities. This would involve allocating visas based on countries’ greenhouse gas emissions percentages, where developed countries would receive migrants from developing nations. Moreover, the agreement should thoroughly assess the financial capacity and human rights protection levels of receiving countries, ensuring a just and equitable approach. Also, balancing autonomy and cultural integrity within climate migration is crucial to providing a just solution. Relocated individuals should be allowed to have a say in their move, ensuring recognition of their family, language, historical, or cultural ties to countries of destination. In summary, the proportional allocation of migrants should take into account the conditions in host countries, while also respecting the values and the willingness of climate migrants to relocate or stay.
Conclusion
This blogpost has argued for the need for a multitrack pragmatic approach as the most viable and effective means to protect climate migrants. Soft law instruments have a historical significance and foundational role in shaping climate migration protection. However, recognizing their temporal nature, a regional ‘hard’ approach would be an important intermediary step before establishing a multilateral regime across nations. This would involve the signing of Free Movement Agreements to regulate climate displacement and safeguard citizens of SIDS. Proposing the establishment of a Regional Alliance, the approach engages the international community by financially addressing greenhouse gas emissions focusing on internal mobility and SIDS citizens issues. Looking ahead, a desirable future entails the development of an international agreement with long-term measures to protect climate migrants. Simultaneously, structured international relocations should be undertaken when deemed necessary. The UNFCCC is posited as a suitable platform for this strategy, incorporating allocation quotas guided by the principle of common but differentiated responsibilities.
Future policies must uphold the principle of common but differentiated responsibilities, recognizing that climate migration requires a comprehensive, multi-faceted approach. While pragmatism and feasibility should guide policy development, experts must remain mindful that climate migration stems from the global challenge of climate change. Focusing only on the consequences, without addressing the root causes, risks perpetuating a cycle of human rights violations and increased vulnerability. Though the window for meaningful action is rapidly closing, there remains an opportunity to intervene decisively and prevent an impending humanitarian catastrophe. However, this will demand a level of political will and global cooperation that has so far proven elusive.
Guerreriro, Miguel Filipe, “Climate Migration: A Proposal for a Multitrack Approach in International Law”. NOVA Refugee and Migration Clinic Blog, December 2024, available at: