Blog post by Dr Tamara Wood (Visiting Fellow, Andrew & Renata Kaldor Centre for International Refugee Law, UNSW Sydney) and Cleo Hansen-Lohrey (PhD Candidate, Faculty of Law, University of Tasmania).
Disasters, climate change and refugee law
Refugee law has often been thought ill-fitting for addressing the protection needs of people displaced in the context of disasters and climate change – better suited to protecting those fleeing ‘human’ rather than ‘natural’ causes of harm. However, an increasing awareness of the nature and impact of disasters and climate change – which are not ‘natural’ but rather the combined effects of natural hazards and human factors – has opened the way for a more nuanced understanding of the potential application of refugee law.[1] In this context, regional refugee definitions in Africa and Latin America may have a particularly important role to play.
In October 2020, the UN Refugee Agency (UNHCR) published its first official guidance on the application of refugee law in the context of disasters and climate change in its Legal Considerations Regarding Claims for International Protection Made in the Context of the Adverse Effects of Climate Change and Disasters (Legal Considerations). UNHCR’s Legal Considerations explicitly recognise (in paragraphs 6 and 14) that persons displaced by disasters and climate change may be eligible for refugee protection under the 1951 Convention relating to the Status of Refugees (1951 Convention) and its regional counterparts – the 1969 Convention Governing the Specific Aspects of Refugee Problems in Africa (1969 OAU Convention) and the 1984 Cartagena Declaration on Refugees (1984 Cartagena Declaration) in Latin America. This is because climate change and disasters frequently interact with other factors – including poor governance, socio-economic inequality, and political and religious tensions – to produce displacement.
According to UNHCR, in determining whether a person displaced in the context of a disaster or climate change qualifies for refugee protection, decision-makers ‘should not focus narrowly on the climate change event or disaster as solely or primarily natural hazards’. Rather, they should also take into account the effect that such hazards have on ‘State and societal structures and individual well-being and the enjoyment of human rights’.
Not every person who moves in the context of disasters and climate change will be a refugee. In the short term at least, there may be only a small minority who qualify. But nor should the application of refugee law in the context of disasters and climate change be considered unusual, or exceptional. Rather, the criteria for refugee status should be applied to disaster and climate change-related refugee claims the same way as any other claims: in a principled manner and with a recognition of the complex and multi-causal nature of displacement.
In light of this, particular attention should be paid to regional refugee law frameworks in Africa and Latin America, where the expansion of the term ‘refugee’ from that of the 1951 Convention provides greater scope for protecting people who move in the context of disasters and climate change. The principled interpretation and application of regional refugee definitions to disaster and climate change-related refugee claims is particularly important given both regions’ vulnerabilities to climate change.
Regional refugee definitions
While the universal refugee definition in Article 1A(2) of the 1951 Convention defines a refugee as an individual with ‘a well-founded fear of being persecuted’ for reasons relating to their race, religion, nationality, membership of a particular social group or political opinion, regional refugee definitions in Africa and Latin America extend refugee protection more broadly – to include those at risk of generalised conflict, widespread human rights abuses and serious disturbances to public order.
By focusing on events or circumstances in the refugee’s country of origin, rather than on his or her personal characteristics and circumstances, and by omitting any discrimination (or ‘nexus’) requirement, the regional refugee definitions are better suited to protecting people fleeing more generalised and widespread forms of harm. As a result, they may be more likely to protect people fleeing the widespread impacts of natural hazards, disasters and the adverse effects of climate change.
Recognition of the potential application of regional refugee definitions in the context of climate change and disasters is growing. At a recent workshop on disaster and climate change-related human mobility in Africa, Justice John M. Mativo of the High Court of Kenya stated that the phrase ‘events seriously disturbing public order’ under the 1969 OAU Convention ought to be interpreted and applied in an evolutionary manner to address current causes of displacement in Africa, including climate change. At the same workshop, Professor Walter Kälin, Special Envoy of the Platform on Disaster Displacement and former Representative of the United Nations Secretary-General on the human rights of internally displaced persons (IDPs), also noted the potential for ‘mega-disasters’ to seriously disturb public order.
Indeed, the regional refugee definitions have already been applied to people forced to leave their homes by natural hazards and disasters. For example, Mexico has recognised some Haitians affected by the catastrophic earthquake in 2010 as refugees under the 1984 Cartagena Declaration’s expanded refugee definition. In Ethiopia and Kenya, Somalis fleeing drought, food insecurity, famine and violence in 2011-2012, were recognised as refugees under the 1969 OAU Convention’s expanded definition. In both contexts, the recognition of refugees was not the result of natural hazards – ie earthquake or drought – alone. Rather it was the consequences of such hazards, and their impact on public order, that brought those displaced within the scope of refugee protection.
Can climate change and disasters seriously disturb public order?
The central question in the application of regional refugee definitions is whether, or when, the impacts of disasters and climate change will qualify as ‘events seriously disturbing public order’ (1969 OAU Convention) or ‘circumstances which have seriously disturbed public order’ (1984 Cartagena Declaration).
Historically, this question has been framed as a debate between those who assert that the phrase is broad enough to encompass environmental, or ‘natural’, events, and those who argue it is more limited, applying only to ‘man-made’ disasters or events.[2]
As understandings of the complex nature of disasters and climate change have increased, this debate has shifted to considering when, or under what conditions, disasters and climate change will meet the relevant threshold – that is, when will they seriously disturb public order. As UNHCR’s Legal Considerations emphasise, the adverse effects of climate change and disasters do not occur in isolation. They are frequently exacerbated by factors such as ‘poor governance… scarce natural resources, fragile ecosystems, demographic changes, socio-economic inequality, xenophobia, and political and religious tensions’ – all factors which can significantly undermine public order.
The critical issue in determining whether particular events or circumstances amount to a serious disturbance of public order is therefore not whether they are the result of ‘natural’ or ‘human’ causes. Rather, it is whether their effects are significant enough to constitute a serious disturbance to public order. In turn, this depends on how ‘public order’ is interpreted and assessed, and how decision-makers decide when it has been seriously disturbed.
‘Public order’
Determining whether, or when, public order has been disturbed depends largely on the meaning of ‘public order’ itself. To date, there has been little rigorous analysis, either in the literature or in practice, of this term and how public order ought to be measured, or assessed, under regional refugee law frameworks.[3] Public order is not defined in either of the regional instruments and there is no consensus amongst states or scholars on the meaning of the term.
In its Legal Considerations, UNHCR proposes that ‘public order’ in both regional instruments refers to:
prevailing level of the administrative, social, political and moral order as assessed according to the effective functioning of the State in relation to its population and based on respect for the rule of law and human dignity to such an extent that the life, security and freedom of people are protected.
This guidance on the meaning of public order is a welcome contribution to the interpretation and application of a phrase that is little understood and has been subject to varying approaches within both literature and practice. Despite this, it still leaves a number of ambiguities and unanswered questions.
In particular, how does this interpretation reflect or cohere with the meaning of public order elsewhere in international law? This includes in the 1951 Convention (Articles 2, 28(1) and 32(1)) – which the regional instruments are intended to complement – as well as instruments in international humanitarian and human rights law.
In addition, how does UNHCR’s proposed interpretation reconcile, or harmonise, the English ‘public order’ with ‘ordre public’ in the equally authoritative French version of the 1969 OAU Convention and ‘orden público’ in Spanish, the language in which the 1984 Cartagena Declaration was originally drafted? Preliminary research suggests that the term has its own unique history, context and meaning in each of these languages.
Finally, and most importantly, how can the various components of UNHCR’s proposed interpretation be applied in practice? ‘Administrative, social, political and moral order’ are, in essence, building blocks for the overarching stability and security of the state and its society. While they undoubtedly have the potential to disturb public order, how should these concepts be understood and applied in practice? What is the relevant threshold for determining, in a given situation, that ‘the life, security and freedom of people are protected’?
The principled and consistent application of regional refugee law in the context of disasters and climate change (as in all contexts) requires clear criteria, ascertainable via objective evidence, that enable refugee status decision-makers to determine, in any given case, whether public order has in fact been seriously disturbed.
One approach would be the articulation of a set of indicia that include concepts recognised as inherent in ‘public order’ and which could be assessed and weighed by decision makers with respect to each factual situation. For example, such indicia could include: the effective operation of, and respect for, the rule of law; respect for human rights and fundamental freedoms of people; and the existence of mechanisms for individuals to meaningfully engage with government.
Whatever these indicia are, they must be developed in a manner which is legally justified (that is, consistent with international law principles of treaty interpretation) and, importantly, must be clear enough to facilitate principled, consistent and transparent application.
Realising protection under regional refugee definitions in practice
Not all persons fleeing disasters and climate change will be refugees. But nor do disasters or climate change constitute some kind of exception to eligibility for refugee protection. People displaced in these contexts are entitled to have their claims assessed in the same manner as everyone else: via a robust application of existing criteria for refugee status in accordance with established principles of treaty interpretation and in recognition of the fact that displacement is rarely attributable to a single, isolated cause, but is the result of tightly interwoven social and political contexts and factors.
The principled application of regional refugee law frameworks in Africa and Latin America is fundamentally the responsibility of those states that have adopted them. However, a range of other international, regional and national actors can also assist with this task, in addition to UNHCR. In particular, regional and national courts could play a critical role in developing jurisprudence that demonstrates how a principled interpretation of regional refugee criteria can be applied on a case-by-case basis to disaster and climate change-related claims. Ultimately, such an approach could ensure that those who are entitled to refugee protection are afforded it in practice.
The application of regional refugee law in the context of disasters and climate change is part of discussions in a workshop series on ‘Developing a Research and Policy Agenda for Addressing Displacement and Migration in the Context of Disasters and Climate Change in Africa’, running April-July 2021. For further information on the series, see here.
[1] See eg Matthew Scott, Climate Change, Disasters and the Refugee Convention (CUP, 2020); Sanjula Weerasinghe, ‘Refugee Law in a Time of Climate Change, Disaster and Conflict (UNHCR, 2020); Tamara Wood, ‘Defining ‘Refugees’: The International and Regional Definitions Compared and Contrasted’ in Cathryn Costello, Michelle Foster, and Jane McAdam (eds), Oxford Handbook of International Refugee Law (OUP, 2021).
[2] See generally Micah Bond Rankin, ‘Extending the Limits or Narrowing the Scope: Deconstructing the OAU Refugee Definition Thirty Years On’ (2005) 21 SAJHR 406; Alice Edwards, ‘Refugee Status Determination in Africa’ (2006) 14 AJICL 204; Michael Reed-Hurtado, ‘The Cartagena Declaration on Refugees and the Protection of People Fleeing Armed Conflict and Other Situations of Violence in Latin America’ (2013) UNHCR Legal and Protection Policy Research Series.
[3] This is the subject of current doctoral research by one of the authors (Hansen-Lohrey).
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