In refugee law, serious harm and a lack of state protection is not enough.
Discrimination is also required as an element of persecution, and such discrimination must be for at least one of five grounds specified in the Convention: race, religion, nationality, membership of a particular social group, or political opinion. Thus, even if persecution can be established, it must also link to one of the five Convention grounds.
Indeed, it is not the risks to individuals caused by climate change that would create a cognizable social group, but some shared attribute independent of this risk. Cases rejecting the application of refugee law to climate change have highlighted the fact that even if a person faces serious harm, this harm or the failure of state protection is not related to the protected characteristics listed in the Convention. Climate change contributes to situations that have been recognized as triggering refugee movement. First, the impacts of climate change include drought and desertification, which often cause resource constraints.
Conflict may occur alongside or be aggravated by such impacts. Competition over resources can turn to conflict, which in turn can lead to increased movement.
But they would be classified as refugees on grounds relating to persecution without respect to whether the underlying causes of that persecution involve climate change. Second, there may be some instances where a government discriminates in the provision of assistance or protection from the impacts of climate change. Similarly, if a state is unable to protect individuals from non-state persecution in an area experiencing significant climate change impacts, then a claim for refugee protection could be warranted. Climate change may also be used as a pretext to target certain groups or individuals, through inter alia policies that affect access to food, agriculture, and water, or via more direct action that destroys resources.
These scenarios, though limited, show that international refugee law provides protection for some who cross borders in the context of climate change. Although there will be limitations, international refugee law may have additional relevance to climate change beyond those situations already identified as contributing to refugee movement. Greater scope for its application hinges on an understanding of the refugee definition that takes a predicament approach to connecting persecution to one of the five Convention grounds.
It does not require that a persecutor intend to cause serious harm, that such harm is the direct consequence of discrimination based on a characteristic protected by the Convention, or that the harm and discrimination experienced come from the same source. Instead, the predicament approach shifts the focus to the link between the risk of persecution and whether this risk is due to one of the five Convention grounds.
The predicament approach is consistent with the argument that proof of persecutor intent is not necessary to establish persecution under the Convention. As discussed, this evidentiary hurdle has been questioned or abandoned.
There is also no need for the serious harm—in this case climate change—and the discrimination an individual faces to come from a single source or actor. Nor must serious harm be directly caused by discrimination based on a Convention ground. Nothing in the Refugee Convention text necessitates these connections. Thus, the impact or serious harm stems from a general source that is not on its face discriminatory, but that may be in effect or because of existing marginalization. Examples cited as relying on the predicament approach include cases involving conscientious objectors or children.
The former set of cases find persecution based on a law of general application that results in harm to those with a political belief opposed to conscription; the latter focus on the risk of persecution due to the vulnerability that can ensue by virtue of being a member in the particular social group of children. Likewise, the impacts of climate change are in themselves indiscriminate, but will place the greatest stress on those who are already vulnerable, some of whom may be marginalized, in precarious situations, or lacking state protection.
For these individuals, serious harm could occur if a state fails to take measures to prevent foreseeable harm from disasters or climate change impacts, the measures it takes are insufficient, or it is unable to address impacts. Under this approach, a person who finds him or herself in a particularly vulnerable situation and at risk of serious harm their predicament because of one of the Convention grounds race, religion, nationality, membership of a particular social group, or political opinion , and who then moves across a state border in the wake of climate events or disasters, could qualify as a refugee.
While the Convention was adopted at a time before climate change was contemplated, it is a living instrument that must evolve in order to remain effective. Hugo, Graeme. Jamieson, Dale. Kaime, Thoko. Knox, John H. Kolmannskog, Vikram. Leckie, Scott, et al editors. Earthscan, Lin, Jolene. Routlege, , pp. Lowe, Vaughan. McAdam, Jane. McAdam, Jane editor.
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Responses to Climate Migration , by Katrina M. Wyman, 37 Harvard International Law Review Yu, Guangha editor. Routlege, Zetter, Roger. There are several types of cookies: Technical cookies that facilitate user navigation and use of the various options or services offered by the web as identify the session, allow access to certain areas, facilitate orders, purchases, filling out forms, registration, security, facilitating functionalities videos, social networks, etc.. Customization cookies that allow users to access services according to their preferences language, browser, configuration, etc..
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Allow this favorite library to be seen by others Keep this favorite library private. Find a copy in the library Finding libraries that hold this item This is a key study into whether 'climate change refugees' are protected by international law. It examines the reasons why people do or do not move; how far climate change is a trigger for movement; and whether traditional international responses, such as creating new treaties and new institutions, are appropriate solutions in this context.
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