Climate change-related migration and gender-specific consequences. Addressing the legal gap.


Climate Change is a modification in the state of the climate that can be identified by transformations in the average conditions and/or the variability of its properties and that persists for an extended period.[1] It may be due to natural internal processes or external forcing, or to persistent anthropogenic changes in the composition of the atmosphere or in land use.[2] However, climate change changes more than just the weather patterns in a region: the effect of physical modifications due to global warming is also likely to affect human migrations and intensify associated human challenges. More frequent extreme events may, indeed, force people to migrate when traditional adaptation and coping mechanisms are not enough. Climate change therefore adds new complexities to human mobility and settlement.



When whole regions are affected and environmental resources can no longer support the livelihoods of local populations, the traditional risk-sharing mechanisms, which are based on families and social groups, may no longer be sufficient for populations to adapt to the changed conditions. According to the Intergovernmental Panel on Climate Change (IPCC) findings, people who are already most vulnerable and marginalized will also experience the greatest impacts. Both women and men working in natural resource sectors, such as farming, are likely to be affected.[3] However, women and girls are more vulnerable primarily as their livelihoods are more dependent on natural resources threatened by climate change[4] than men’s are. They also face social, economic, and political barriers that limit their coping capacity.


Worldwide, women face more difficulties than men to access resources and opportunities such as land, credit, agricultural inputs, decision-making structures, technology, training, and services that would enhance their capacity to adapt to climate change. Women and girls also face, inter alia, a higher exposure to violence from strangers. Natural disasters like droughts, floods, hurricanes, or cyclones can wipe out homes and neighborhoods; as a result, women may be forced to move to camps for displaced people and live in temporary shelters where they are at a higher risk of experiencing physical and sexual violence. Moreover, when a disaster strikes, girls can be more at risk of child marriage than usual; families in serious economic distress due to consequences of a natural calamity may see child marriage as a way out of poverty, or, at least, a way to reduce it. Additionally, in times of crisis, girls are often forced to drop out of school or miss classes to take care of family members, or to help with domestic duties. Finally, women and girls are more vulnerable to death and injury when facing devastating natural events: due to their traditional roles as caretakers, women and girls often stay back to protect their children or adults in their care while men are more able to flee.[5]


Women facing unequal access to resources and to decision-making processes, limited mobility, discrimination, and violence may therefore decide to relocate. Migration can be an important method of adaptation and may offer many individuals and families the opportunity to ensure better homes, livelihoods, and access to resources. However, there are serious risks associated with migration, especially for women. As climate change impacts physical and social environments, and natural disasters become more frequent, more people will migrate and may be at risk of being trafficked. On their way to the destination countries, many migrants endure dangerous routes and are forced to rely on smugglers and traffickers. Women and girls may be forced to trade sex with border guards and others in return for permission to pass, and they face a greater risk of being trafficked for sex work and other types of bonded labor.[6] Climate change affects livelihoods, intensifies poverty and can potentially cause situations of conflict and instability. These conditions, if combined with a gap between the demand for labor and supply and the proliferation of criminal recruitment agencies, increases high-risk behaviors and other negative coping strategies among affected populations. People may therefore seek employment in less stable environments and increase their risk of being trafficked.[7]


The impacts of climate change often extend across borders: families may migrate multiple times as the affected area expands, and with each migration, women and girls may face new or continued risks. Women may also spend years in displacement, living in camps, integrating into urban areas, or working in remote regions. In refugee and internally displaced person camps, women usually have inadequate access to employment opportunities, lack privacy, and have limited participation in decision-making processes. Sexual and gender-based violence, including domestic violence, is known to be widespread in such camps. Limited access to healthcare can also hinder women’s access to life-saving health services, including reproductive and mental health services.[8] Women who instead settle in urban areas often live with the threat of arrest and deportation and may lack identification papers.


While displaced internally or internationally, trading sex for money or precious resources may be the only way for women and girls to support themselves and their families. Additionally, female migrants in destination countries are also in unsafe situations; deprived of human and labor rights and adequate pay, and are at risk of suffering sexual violence.[9]


Despite the complexity of the situation and the vulnerability of environmental migrants, there is a visible lack of legal instruments under current international legal frameworks. Climate refugees are not recognized under existing international human rights law and the lack of an internationally shared definition can increase the risk of formulating inappropriate policies and targeting unsuited groups of people.[10] The International Organization for Migration (IOM) defines environmental migrants as “persons or groups of persons who, for compelling reasons of sudden or progressive change in the environment that adversely affects their lives or living conditions, are obliged to leave their habitual homes, or choose to do so, either temporarily or permanently, and who move either within their country or abroad.[11] However, this definition provides no legal protection or rights to those who migrate because of climate change impacts and refugee law has little relevance to most of them. In order to be considered a refugee under the 1951 Geneva Convention,[12] a causal nexus between the risk of being persecuted and at least one protected ground (race, religion, nationality, membership in a particular social group, and political opinion) must be established. Effects of climate change affect individuals and populations indiscriminately, regardless of their identity or any particular membership.Therefore, most climate change forced migrants, will not recognised as refugees according to the 1951 Geneva Convention definition.[13]


However, existing international and regional refugee instruments are applicable in situations where the impact of climate change exacerbates other factors, such as conflict, violence or public disorder. The 1984 Cartagena Declaration provides a definition that, compared to the one contained in the Geneva Convention, is innovative because it extends the status of refugee to individuals who suffer severe violations of human rights. This formulation could provide a legal basis to protect people displaced by disasters and extreme climate events, for whom the enjoyment of fundamental human rights is severely compromised. However, the jurists who drafted the text had not intended it to be used in such a scenario.[14] Through the adoption of subsequent Declarations, and follow-ups to the Cartagena Declaration, a recognition of the new challenges of displacement, including “displacement generated by climate change and natural disasters”, has been achieved in 2014 in the Brazil Declaration and Plan of Action endorsed at the Cartagena+30 anniversary event. The document acknowledges the phenomenon of cross-border displacement in the region caused by climate change and disasters and the need for further study It also requires the involvement of UNHCR in order to formulate adequate national and regional measures, plans and tools, like humanitarian visa programs, to tackle the issue of climate-change-induced displacement.


As the 1951 Refugee Convention proved inappropriate to deal with the African context, the Organization of African Unity (OAU) adopted, in 1969, the OAU Convention Governing the Specific Aspects of Refugee Problems in Africa (OAU Convention). Due to its legal nature, the Convention imposes binding obligations on signatory states. The most relevant contribution of the Convention is the expanded definition[15] of refugee. Such formulation provides protection to people fleeing from indiscriminate violence and applies also in circumstances of mass displacement. Some interpreters have argued that “events seriously disturbing public order” can include natural disasters caused by climate change. However, the instrument would apply when people seek refuge from conflicts arisen as a consequence of a natural disaster, given the unwillingness or inability of the State to assist the population. Therefore, the African refugee regime is not able to address climate change-related displacement.


Europe has recognized that climatic stress is exacerbating displacement in a series of documents and resolutions.[16] However, within the European legal framework there is no binding instrument explicitly allowing environmental migrants to stay temporarily or permanently in the EU territory. Since the Treaty of Lisbon came into force,[17] “Union policy on the environment shall contribute to pursuit of [the objective of, among others,] combating climate change”,[18] but, at the moment, EU migration law regulates neither the definition and acquisition of the status of environmental migrants nor the content of protection, notwithstanding Articles 77[19] to 80[20] of the Treaty on the Functioning of European Union (TFEU) are designed in a broad enough manner to handle it.[21]


Finally, as climate change is a borderless issue, it is expected that most people fleeing from environmental consequences will migrate but remain within their country and not cross any international borders. Therefore, international protection instruments cannot properly address the issue nor reduce negative consequences and protect adequately people from human rights violations and discrimination. The 1998 Guiding Principles on Internal Displacement represent an important milestone in this context as they cover environmental migrants, provide protection against arbitrary displacement, and set forth the foundation for developing normative frameworks to fill the existing protection gaps. However, they do not constitute a binding instrument and no international organization or institution is legally empowered to oversee IDPs. As climate change-induced migration becomes more common this undeniable lack of comprehensive needs to be addressed.


As outlined in this article, in recent years climate change-induced migration is becoming more common and its impacts more visible. In this context, women and girls are suffering disproportionately from the negative effects of climate-change. The existing legal framework is not able to address specific needs or to provide protection to the most vulnerable individuals. The issue of climate change-induced displacement has not yet been clearly recognized by the international community or defined in a multilateral legally binding treaty. The difficulties in reaching an international consensus are due to a set of characteristics of the phenomenon which hinders the capacity to outline a clear category of persons displaced by climate change. In fact, in most cases it is not possible to clearly identify climate change as the single cause of displacement, because of the cumulative nature of its effects and because it is only a concurrent factor adding up to existing vulnerabilities and socioeconomic problems, which are often hard to disentangle.


An integrated approach is thus necessary to further investigate and analyze social, political, and legal aspects of migrations, in the light of changing climatic conditions in both countries of origin and destination countries with the aim of identifying gender-specific consequences for climate change-related migration, developing best practices and establishing effective, specific, and binding national and international legal instruments.


This article was written by Veronica, who is a passionate jurist with a wide-ranging experience in the field of international migrations and a special qualification in dealing with vulnerable and forced migrants, including asylum seekers, victims of trafficking and victims of torture. In her professional history, she had the chance to work with both local NGOs and international organizations including UNHCR, IOM, and EASO. Her work experience enabled her to combine theoretical and practical knowledge of most relevant aspects connected with international migrations.


Endnotes

[1]Intergovernmental Panel on Climate Change (IPCC), Glossary, https://www.ipcc.ch/sr15/chapter/glossary

[2] The Global Warming Policy Forum (GWPF), IPCC Introduces New ‘Climate Change’ Definition, 19/11/2011, https://www.thegwpf.com/ipcc-introduces-new-climate-change-definition/

[3]UN Chronicle, Women...In The Shadow of Climate Change, Balgis Osman-Elasha, https://www.un.org/en/chronicle/article/womenin-shadow-climate-change#:~:text=Why%20women%20are%20more%20vulnerable,households%20are%20headed%20by%20women

UN Women Fiji Multi-Country Office, Why is Climate change a gender issue?https://www.uncclearn.org/wp-content/uploads/library/unwomen704.pdf

[4]UN WomenWatch: The UN Internet Gateway on Gender Equality and Empowerment of Women, Fact Sheet: Women, Gender Equality and Climate Change, 2009 https://www.un.org/womenwatch/feature/climate_change/downloads/Women_and_Climate_Change_Factsheet.pdf

[5]ActionAid, 5 ways climate change affects women and girls, 20/11/2019 https://reliefweb.int/report/world/5-ways-climate-change-affects-women-and-girls

[6]UNHCR, Handbook for the Protection of Women and Girls, 2008, http://www.unhcr.org/47cfa9fe2.html

[7]IOM, The climate change–human trafficking nexus, 2016, https://publications.iom.int/system/files/pdf/mecc_infosheet_climate_change_nexus.pdf

[8]UNHCR, Gender, Displacement and Climate Change, July 2020, https://reliefweb.int/report/world/gender-displacement-and-climate-change-july-2020

[9]UNHCR, Handbook for the Protection of Women and Girls, 2008, http://www.unhcr.org/47cfa9fe2.html

[10]O. Dun, F. Gemenne, Defining “environmental migration”, in Forced Migration Review, 31, 2008, p. 10.

[11]IOM, Outlook on Migration, Environment and Climate Change, 2014, https://environmentalmigration.iom.int/iom-outlook-migration-environment-and-climate-change-1

[12]UNHCR, 1951 Convention relating to the Status of Refugees and its 1967 Protocol, https://www.unhcr.org/3b66c2aa10

Article 1 (A) 2: The term “refugee” shall apply to any person who: owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence as a result of such events, is unable or, owing to such fear, is unwilling to return to it.

[13]J. C. Hathaway, M. Foster, The Law of Refugee Status, 2nd ed., Cambridge University Press, 2014.

[14]UNHCR, 57th Lecture of the Americas: “From the Cartagena Declaration to the Brazil Plan of Action: The new Frontiers of Protection in the Americas”, António Guterres, UNHCR, Washington, D.C., 22 April 2015, http://www.unhcr.org/admin/hcspeeches/553a475c9/57th-lecture-americascartagena-declaration-brazil-plan-action-new-frontiers.html

[15]Organization of African Unity (OAU), Convention Governing the Specific Aspects of Refugee Problems

in Africa ("OAU Convention"), 1001 UNTS, 10 September 1969, article 1(2). According to article 1(2) of the document: “The term ‘refugee’ shall also apply to every person who, owing to external aggression, occupation, foreign domination or events seriously disturbing public order in either part or the whole of his country of origin or nationality, is compelled to leave his place of habitual residence in order to seek refuge in another place outside his country of origin or nationality”.

[16]Among the most relevant, the European Parliament resolution on “The Environment, Security and Foreign Policy” of January 1999, the first institutional document recognizing the effects of climate change on human mobility, and the 2008 paper on “Climate Change and International Security” elaborated by the High Representative and the European Commission, in which climate change is said to act as a “threat multiplier” inducing migration.

European Commission, Commission Staff Working Document “Climate Change, environmental degradation, and migration”, SWD (2013) 138 final, 16 April 2013, p. 6, available at: https://climateadapt.

[17]Consolidated version of the Treaty on European Union and the Treaty on the functioning of the European Union, https://eur-lex.europa.eu/legal-content/EN/TXT/HTML/?uri=CELEX:12016ME/TXT&from=EN

[18]Article 191 (1) TFEU - (ex Article 174 TEC):

Union policy on the environment shall contribute to pursuit of the following objectives:

- preserving, protecting and improving the quality of the environment,

- protecting human health,

- prudent and rational utilization of natural resources,

- promoting measures at international level to deal with regional or worldwide environmental problems, and in particular combating climate change.”

[19]Article 77 https://eur-lex.europa.eu/eli/treaty/tfeu_2016/art_77/oj

[20]Article 80 https://eur-lex.europa.eu/eli/treaty/tfeu_2016/art_80/oj

[21]G. C. Bruno et al. (Ed. by), Migration and the Environment: Some Reflections on Current Legal Issues and Possible Ways Forward, CNR Edizioni, Roma