Blog post by Monica Namanya, Doctoral Researcher, Irish Centre for Human Rights, University of Galway; RLI Research Affiliate
The African continent continues to grapple with some of the most severe impacts of climate change, leading to widespread displacement in the region. As of the end of 2022, over 3.7 million people were internally displaced due to disasters in Sub-Saharan Africa alone, with Nigeria accounting for the highest number of IDPs. These figures only cover internal displacements, but the number of persons crossing international borders due to climate-related disasters could be equally high, considering that migration within the continent is primarily intra-African, as per the latest Africa Migration Report. While international protection options for persons displaced across borders due to the adverse impacts of climate change remain limited, the African Commission has made some tremendous and commendable steps towards protecting disaster-displaced persons.
In 2021, the African Commission on Human and People’s Rights passed Resolution 481 of 2021, in which it resolved to conduct a study to assess responses to migration, with a view to developing guidelines after the Study. The Study on African Responses to Migration, which was launched in 2023, demonstrates the crucial need for the freedom of movement of people within the continent. Additionally, the Study on African Responses to Migration also revealed the need for a soft law document that clearly articulates the rights of migrants in Africa and caters to unique categories of migrants like ‘climate migrants’. Notably, the Study represents the recognition of cross-border mobility as an adaptation to climate change.
The outcome of the Study on African Responses to Migration was the launch of the African Guiding Principles on the Rights of All Migrants, Refugees and Asylum Seekers during the Commission’s recently concluded 77th Ordinary Session in October 2023. The Guiding Principles are based on regional African treaty law, international human rights and refugee law. Various aspects of migration are addressed in the Guiding Principles, but key to this blog are the Principles relating to the rights of persons displaced in the context of climate change. The Guiding Principles recognise the evolving nature and challenge of human mobility in the context of climate change, and define human mobility in this context as “displacement motivated by the adverse effects of sudden- or slow-onset climate impacts, whether within and across national borders”.
The Guiding Principles further define ‘climate migrants’ as persons displaced across international borders as a result of climate change-induced human mobility. In addition, the African Guiding Principles consider that the term refugee “may also apply to those compelled to seek refuge outside their country of origin, nationality or habitual residence as a result of climate change that affects their fundamental rights, regardless of whether such effects seriously disturb public order”. As has been noted by experts who worked on drafting these Guiding Principles, this is the first time we have seen an intergovernmental body recognise and define the term ‘climate migrants’, and define refugees to include climate refugees. Notably, in the explanatory note following the above definitions, the drafters of the Guiding Principles indicate that the inclusion of climate migrants as refugees is based on the broader refugee definition in the OAU Convention Governing the Specific Aspects of Refugees.
Principle 21(2) of the African Guiding Principles is especially pertinent to climate change-induced human mobility. The above Principle is to the effect that, “Every climate migrant has the right to seek and to obtain asylum in other countries in accordance with laws of those countries, regional, and international conventions”. This provision recognises that persons displaced across borders due to climate change have a legal avenue for seeking asylum, which could result in increased protection for climate migrants. Building on the expanded definition of “refugee” outlined in the Guiding Principles to encompass climate migrants, it follows that individuals displaced by climate change may seek asylum in other countries and potentially be granted refugee status based on the impact of climate change on their fundamental rights.
The African Commission’s guidance on international protection for individuals displaced by climate change appears to complement but also diverge from the UNHCR’s legal considerations regarding claims for international protection made in the context of the adverse effects of climate change and disasters. In its legal considerations document, the UNHCR offers guidance to governments and other stakeholders concerning international protection claims related to the adverse effects of climate change, and clarifies the application of international and regional refugee law, including the 1969 OAU Refugee Convention. The UNHCR’s guidelines affirm that under regional refugee law, individuals displaced by the adverse effects of climate change may have legitimate claims for refugee status if they are forced to leave their country owing to events seriously disturbing public order. The African Commission’s Guiding Principles, on the other hand, appear to go further, in that they indicate that climate migrants can qualify as refugees, regardless of whether the effects of climate change seriously disturb public order.
Additionally, and importantly, the African Guiding Principles go further to recognise the need for states to mitigate climate change, considering that it is the adverse effects of climate change that drive displacement as an adaptive measure to climate change (Principle 32). Re-echoing the provisions of the Global Compact for Migration, the Guiding Principles encourage States to develop adaptation strategies to the impacts of climate change, in order to reduce risks and vulnerability, and to create pathways for migration. Specific mention is made in the explanatory note to the Intergovernmental Authority on Development’s (IGAD) Protocol on Free Movement of Persons, which guarantees disaster-displaced persons access to territory, thereby creating a regular pathway for migration in the context of disasters and climate change.
While the Guiding Principles are to be lauded in as far as recognition and protection of climate migrants is concerned, it is essential to remember that they are only a soft law instrument, and therefore, unenforceable and non-binding. In the absence of political will to offer climate migrants much-needed protection, the above provisions may be rendered ineffective regarding, for instance, climate migrants’ right to seek asylum. Moreover, subjecting climate migrants’ right to seek asylum to domestic legislation means that regional and international conventions at work in a given country may result in disparities in the treatment of climate migrants, and potentially leave room for discrimination against this unique category of migrants, with some states potentially providing more favourable protection than others. Nonetheless, the African Guiding Principles are very distinctive and promising overall. It would be imperative if these Guiding Principles could prompt the development of clearer and binding legal frameworks and mechanisms for addressing climate-induced displacement at national, regional, and international levels.
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