As I begin to write this on Earth Day 2021, with world leaders’ commitments to net-zero and green economies ringing in my ears, I cannot help but notice the absence of two vital topics from the discussions: migration and gender. Both are crucial considerations in our fight against climate change. What’s more, addressing these issues could in fact present solutions to the challenges our earth faces.
We are all well aware of the looming climate catastrophe: the IPCC’s Fifth Assessment Report asserts the unequivocal impact of anthropogenic emissions on our human and natural systems. The tragedy is that even if states’ mitigation commitments were to limit global warming to the 1.5 ̊C needed to avoid the worst climate-related impacts, we cannot reverse the huge changes that are already well underway.
This is why mitigation objectives need to be supplemented with adaptation, which refers to the preparations states need to make to ensure their populations are protected from the effects of a warming world. Notably, this must include measures to provide safe and orderly migration for those inevitably displaced by climate change, whether due to slow- or sudden-onset disasters. Climate change and migration have an uneasy relationship in the international legal arena: as a relatively recent phenomenon, climate change was never envisaged under the 1951 Refugee Convention as a driver of displacement that might require international protection. Moreover, it is difficult to point to climate change as the unequivocal cause, as opposed to one of numerous triggers, of migration, raising difficult questions about the different standards of protection forced and voluntary migrants should be entitled to.
Irrespective of these complexities, there is no question that climate change harms are being felt, and this is leading to displacement. Although impossible to predict with certainty, the IPCC did note as early as 1990 that the single biggest impact of climate change might be on human migration: some estimate that up to 1.2 billion people will be displaced by climate change by 2050.
This prompts two questions for adaptation policymakers: where efforts should be directed to have the biggest positive impact and how we may ensure these efforts are equally distributed. There is no doubt climate change will most impact those who are already vulnerable. Owing to substantial structural inequalities in many areas prone to climate change destruction, one group which will be particularly impacted is women. This is not to say women are the only vulnerable group worthy of attention – it is simply that the feminist legal framework provides a useful vehicle to present the embedded inequities that see parallels in climate change and migration. Structural inequalities are, unsurprisingly, a feature that plagues the international legal arena just as much as the domestic. This means that any commitment to the empowerment of women in the international climate change regime will remain inconsequential until we resolve the fundamental flaws at its heart. The aim of this piece is to show how structural inequality, exacerbated when the most exposed individuals are made to suffer the worst effects of a catastrophe of our own creation, must guide adaptation policymaking in the migration context. This must begin with attacking the source of inequality head on, as opposed to the current approach of relieving the symptoms and hoping no-one will notice the perpetuation of an international legal system founded on wealth and privilege.
How are structural gender disparities impacted by migration and climate change?
The public/private divide is a central element of feminist legal literature: its principal tenet is that there is a gendered division between state regulation, most commonly managed by men, and family relations, traditionally handled by women. In the public domestic legal sphere, it is evidenced in difficulty women face in raising issues that impact them in the political process. In the public international legal sphere, it is reflected in the absence of state responsibility for failure to protect women from the forms of harm that disproportionately affect them, whether resulting from gender-based violence or structural inequalities.
In the sphere of migration, its consequences become astonishingly acute. One of the main problems is the established understanding of ‘persecution’ under the 1951 Refugee Convention as a ‘serious harm’ and a ‘sustained or systemic failure of State protection’. The systematic failure of the State to protect women is prompted by a perception that rape is an inherently ‘private’ act. Considering ‘serious harm’, we perceive that the harm women suffer is different from that experienced by men. Not only does it frequently happen in the private domestic sphere, but it is often perceived to be perpetrated by individuals for private gain. Sexual violence often leaves no physical trace and the stigma surrounding it makes victims reluctant to report it, making it difficult to evidence. Consequently, the State will not take responsibility as the agent of the harm, nor will it take responsibility for failure to protect if evidential difficulties inhibit such a finding. Such a narrow conception of sexual violence fails to capture its pervasive use as part of a wider oppressive regime of subordination, frequently motivated by religion, politics, and culture. We have seen in conflict regions how rape is used as a tool to destroy and devastate, in the knowledge that the internal damage suffered by the victim will have a ripple effect through communities. Thus it is this combined exclusion, of types of violence experienced by women from the concept of ‘serious harm’ and from the types of harm for which the State must take responsibility, that poses an impossible hurdle for migrant women.
We similarly see the consequences of the public/private divide augmenting vulnerability in areas prone to climate change harm. Climate change disproportionately affects marginalised groups as they are more exposed to its impacts, more susceptible to suffering its worst consequences and have less capacity to recover from the harm. Socio-cultural norms in many rural regions leave women with less capacity to make decisions for their families, despite them also being the main providers of food, water, and fuel. As the effects of climate change are felt through prolonged droughts and damaging extreme weather events, resource scarcity makes the job of providing for their families increasingly difficult and perilous. Furthermore, the need to provide for their families deprives them of access to educational and economic opportunities. This resource scarcity is also predicted to be a forceful driver of conflict in the years to come. States’ failure to effectively incorporate women’s concerns with regard to climate change harms into their adaptation policies – despite their commitment in the Paris Agreement to the empowerment of women – is where the public/private divide becomes particularly apparent in the climate change regime. Economic, political, and social marginalisation hinders women’s ability to both influence the system that is meant to protect them, and to protect themselves.
So, what happens when female victims of climate change, already disadvantaged by a host of factors, are compelled to migrate? The problem we run into here is that the Refugee Convention – deficient though it may be – does not even cover climate change migrants. Only if it can be demonstrated that they satisfy a ground of ‘persecution’, due to the authorities refusing to assist them in the context of disasters, violence or armed conflict caused by climate change, may they be entitled to refugee status. Such a causal link will be almost impossible to establish, especially owing to the dubious ‘forced’ nature of climate change displacements. Despite the absence of a protective framework the particular risks for migrant women still persist, now magnified by the limitations on their adaptive capacities and increased hardship climate change harms have provoked.
The recognition that the international protection of women should encourage their self-sufficiency fails to acknowledge how their systematic portrayal as victims greatly undermines any such efforts. The representation of the archetypal female asylum seekers as mothers and children from developing countries gives rise to two obstacles to their adequate protection. First, asylum is implicitly dependent on women fulfilling that stereotype of the ‘essential’ woman, excluding all other single or non-cisgender women who might be fleeing for the same reasons as their male counterparts. Moreover, the attempts to fit women into protective frameworks often presents them as passive, dependent, and vulnerable victims, at the periphery of public international law and without agency.
This brings us back to the above mentioned problem of the public/private divide: despite the efforts of the UNHCR, their limited view of female protection perpetuates a paternalistic narrative of the state as a ‘saviour’. In doing so, all they achieve is a vicious circle, whereby every attempt to further protection for this narrow group of victims simultaneously reinforces the patriarchal structures and continues to exclude the women who, in the state’s eyes, are not the quintessential victim. The climate change context evidences a dichotomous thinking akin to the feminist legal public/private divide in its developed/developing country divide: the North, as the dominant, capitalist ‘male’ saviour, is exploiting the natural resources of the South, as the dominated, inferior ‘female’ victim, for its own gain. Thus, the hope for these two structurally flawed regimes coming together to combat the climate change migration crisis, in a way that champions social justice and equality, might seem dismal. In spite of this, I would view the absence of a protective regime for climate change displacement as an opportunity to finally get it right and, for once, defeat the entrenched inequalities in battling the greatest social justice threat we have yet to face.
From gender sensitivity to female leadership: why women are the solution to combatting climate change
The international legal community has long been cognizant of need for ‘gender-sensitive’ law-making, which acknowledges the privilege and discrimination entrenched in all institutions. The climate change regime is no different: the IPCC’s Fifth Assessment Report recommends adaptation policies that increase the decision-making power of women, insurance, and social protection programmes to improve the resilience of marginalised groups and the expansion of migratory pathways to minimise women’s vulnerability. The UNHCR has since 2014 introduced many such gender-responsive measures to address the safety of women, to advance their independence and economic and social inclusion. This has included measures in both the departing communities most prone to climate change, to eliminate the need for displacement in the first place, and in the receiving communities, to enhance their capacity to protect the migrants inevitably displaced by climate change. The Renewable Energy for Refugees (RE4R) project is one such example, conducting four renewable energy interventions to improve women’s energy access, protection, wellbeing, and livelihoods in refugee camps in Rwanda. The access to energy has enabled the economic empowerment of women, granting them opportunities to establish their own businesses and creating jobs. Such initiatives are undoubtedly beneficial to minimise the economic marginalisation of women: it allows them to provide for themselves, thus mitigating the effects of the public-private divide to the extent that they can better provide themselves with the protection their state fails to guarantee them.
Yet I cannot help but view this economic empowerment as treating the symptoms of structural inequality in climate change displacement, whilst leaving untouched the defects at its core. It follows the neoliberal – more recently labelled the ‘rule of law’ - development path, whereby the promotion of economic growth without more becomes a substitute for making difficult political, social, and distributional choices. Such a narrowing of the ideological range of policy choices limits the ability of these initiatives to influence the social marginalisation of climate change displaced women, and most certainly does not facilitate their political inclusion. The attempt to resolve structural inequality through the neoliberal vision deceives us into thinking the attainment of equality, social inclusion, democratic deliberation, and justice are automatic consequences of economic growth, when development projects have long demonstrated the contrary. Equally, the climate regime currently driven by this neoliberal vision fails to adequately incorporate human values like social justice and equality into its approach. The UNFCCC, the Kyoto Protocol, the Paris Agreement and whatever the outcome of COP26 may be, are at the end of the day still products of a neoliberal, hegemonic global political economy, if a little ‘greener’.
But there is still hope. At COP26, states have the opportunity to, of course, build on the vital emissions reduction commitments, but more crucially to make the adaptation commitments necessary to survive a warming world and the impending migration crisis. Leaders have the opportunity to determine who will be the winners and the losers of this climate catastrophe. The influence of alternative movements – such as ‘ecofeminism’ - must shake the neoliberal status quo. An extensive restructuring of our approach to climate change from the bottom up is desperately needed, and at the heart of the reforms should be those most likely to suffer the worst harms. What we need is to fulfil the much-needed political integration of the concerns of those typically excluded by bringing them to the negotiating table. What we do not need is another wave of specious, token commitments to protect the most vulnerable and guarantee equality. Allowing the voices of the marginalised to be heard is the first step to ensuring their effective inclusion into a regime that will determine their futures. Only through a participatory, representative, and candid presentation of the severity of the climate change migration crisis can we hope to craft a regime that protects us all equally.
I, for one, join the ranks of ecofeminists – alongside the advocates for indigenous communities, the Global South, decolonisation, disabled people, racial and ethnic minorities, and LGBTQ+ - in calling for structural change. The absence of a protective regime for the climate change migration crisis presents a unique opportunity to address one of the biggest impacts of climate change in a way that prioritises social justice and sees us through to a better world. If this nightmare of a year has taught us anything, it is the dire consequences of living in societies that eschew an equitable social justice approach in favour of profit and privilege in all areas of policy making. It is about time we realised the human potential for creating effective solutions for those who need it the most, and that begins with letting their voices be heard.
Anna Sofia Bregstein has an undergraduate degree in law from Emmanuel College, the University of Cambridge, and is currently studying for a postgraduate degree in Public International Law at the London School of Economics and Political Sciences. She has always had an avid interest in migration and asylum law, having collaborated with a number of immigration charities on research projects in the past, and hopes to pursue a career in migrant protection and climate change displacement.
Notes:  Intergovernmental Panel on Climate Change, Fifth Assessment Report (AR5) (2014)https://www.ipcc.ch/site/assets/uploads/2018/02/SYR_AR5_FINAL_full.pdf accessed 22 April 2021.  Ibid.  IPCC, First Assessment Report Overview and Policymaker Summaries and 1992 IPCC Supplement (1992).  The Institute for Economics and Peace, Global Peace Index 2020: Measuring Peace in a Complex World https://www.economicsandpeace.org/wp-content/uploads/2020/08/GPI_2020_web-1.pdf accessed 22 April 2021.  J. C. Hathaway, The Law of Refugee Status (2nd edn CUP 2014) 103.  R. Haines, ‘Gender-Related Persecution’, in Erika Feller, Volker Türk and Frances Nicholson (eds.) Refugee Protection in International Law: UNHCR’s Global Consultations on International Protection (CUP 2003) 330.  CEDAW, General Recommendation no. 35, Gender based violence against women updating General Recommendation no 19, para 14.  Chapter II World Economic and Social Survey (2016).  AR5 above at (1).  Paris Agreement (2015) Preamble.  UNHCR Executive Committee, Refugee Women and International Protection No. 39 (XXXVI) (1985), para (k).  Smith, Rethinking gender in the international refugee regime (Forced Migration Review 53 2016) 65–66.  AR5 above at (1).  Mboya, An Eco-Feminist Perspective on the Climate Change Regime (Emory University, 2016).  AR5 above at (1).  UNHCR, Gender, Displacement and Climate Change (July 2020).  Kennedy, ‘The ‘Rule of Law’, Political Choice and Development Common Sense’ in David M Trubek and Alvaro Santos (eds), The New Law and Economic Development: A Critical Appraisal (CUP 2006).  Mboya above at (13).  Ecofeminism: The confluence of the ecological movement with women’s liberation fighting for a “radical reshaping of the basic socioeconomic relations and underlying values of society” (Ruether, New Woman, New Earth: Sexist Ideologies and Human Liberation (Beacon Press, 1995)).