Edited by Anna Grear and Louis J. Kotzé
Chapter 20: Protecting the human rights of climate displaced persons: the promise and limits of the United Nations Framework Convention on Climate Change
AbstractThis Chapter confronts the definitional controversy that has endured for three decades over precisely how to define people who are displaced by climate change. Are they to be ‘refugees’, ‘migrants’ or ‘displaced persons’ and do these people need to be displaced internally or across borders, and should their displacement be voluntary or forced? The answer is not simply semantic, for depending on the definition adopted, authors propose the application of different international law instruments in order to protect the human rights of those in question. There is even some suggestion that definitions have been adopted in order to pursue explicitly political agendas. The author of the present Chapter, relying on a thorough literature review and on recently emerging empirical evidence, prefers the term ‘climate displaced persons’, which can apply to those displaced internally and across borders whether voluntarily or by force, including by the force of disasters. This choice reflects the best current evidence, which suggests that people are generally displaced internally by climate extremes and disasters and that, even if they have been displaced across borders, they will want to return ‘home’ once the danger has passed. Accordingly, the terms ‘refugees’ or ‘migrants’ are less accurate as reflections of the situation of climate displaced persons and the patterns of their movement. The author proposes that climate displaced persons should be formally recognized and protected under the United Nations Framework Convention on Climate Change (UNFCCC), as is already beginning to occur. The author argues, however, that while the existing institutions of the UNFCCC can be invoked to satisfy most of the concerns raised, there needs to be continuing convergence between various international law instruments and institutions in order to move beyond the ‘path dependency’ or ‘path exclusivity’ that has existed to date. Finally, the author is cognizant of the fact that even the finest international legal instruments can fail to achieve their goals and that in the case of climate displaced persons there is a great risk of failure unless the international community ensures that sufficient funds are made available for adaptation and for the Warsaw Loss and Damage Mechanism.
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