LLM Khanh-Linh Ta, Founder of the Green Path Migrants project
Defining the Category: Who is a ‘Climate Migrant’?
The debate on whether or not ‘climate change migrants’ should be classified as a separate category of migrants has been going on for decades. In particular, the complete lack of distinction between voluntary and forced movements due to climate change as well as differentiation between internal and external climate displacements has led to various interpretations of the concept by scholars, legal practitioners and lawmakers.[1] Considering the different perspectives out there, this blog leans into Lauren Nishimura’s broad definition of ‘climate migrants’ as those whose movement is triggered, in part or exclusively, by the effects of climate change.[2]
Southeast Asia as the ‘Hotspot’ for ‘Climate Migrants’
Almost one-third of the population of Southeast Asia lives in areas that are deemed in danger, with climate change-induced coastal flooding and rising sea levels posing the biggest risk.[3] Particularly dense concentrations of climate-vulnerable people can be found in Thailand, Vietnam, Indonesia, Myanmar, and the Philippines.[4] Given the physical geography of Southeast Asia’s region and the Greater Mekong sub-region, cross-border movement and external displacement would become an issue as the effects of climate change worsen. It is worth noticing that according to the World Bank’s Groundswell Reports, the number of internal climate migrants in the East Asia and Pacific region will reach 36.2 million by 2050, accounting for 1.9% of the regional population.[5] Moreover, between now and 2050, the lower Mekong subregion in Southeast Asia is expected to experience between 3.3 million and 6.3 million new climate-induced displacements (1.4% to 2.7% of the nation’s population).[6] As the count of climate migrants continues to rise, the most pressing concern revolves around how their rights and interests will be safeguarded.
Approaching ‘Climate Migrants’ from International Environmental Law
Despite the Intergovernmental Panel on Climate Change (IPCC) designating ‘human movement’ as the most significant and immediate consequence of global warming since 1990[7], it was not untile the UNFCCC Conference of Parties (COP) of 2010 in Cancun that displacement brought on by climate change was first recognised in climate documents.[8] Taking that position, the 2010 Cancun Adaptation Framework[9] encourages states to take measures to address climate-induced displacement, migration and planned relocation.[10] The establishment of the Adaptation Committee the same year as part of the Warsaw International Mechanism on Loss and Damage further supports the idea that migration is an adaptation strategy to climate change.[11]
Since then, the UNFCCC has made gradual efforts to include concern for migration while regulating climate change mitigation and adaptation.[12] Accordingly, at COP21, the parties requested the Executive Committee on Loss and Damage to create a Task Force on Displacement (hereby ‘TFD’).[13] Such a task force is established to develop recommendations and integrated approaches to avert, minimize and address displacement related to the adverse impacts of climate change.[14] This is reflected by TFD’s report in 2018 before COP 24.[15] As part of the execution of the TFD’s work plan, the UNHCR developed a ‘Mapping of existing international and regional guidance and tools to address displacement related to the adverse impacts of climate change’.[16] The UN Special Rapporteur on Climate Change in 2023 noted that COP27 considered the creation of a new Loss and Damage fund for climate impact in developing countries, including displaced people. The operationalization of this fund was a major objective of COP28.[17]
Finding Protection for ‘Climate Migrants’ in ASEAN’s Climate Regime
Under International Environmental Law, Southeast Asian states are obligated to address the issue of climate migrants under two regimes, international and regional.[18] At the international level, all eleven members of the Association of Southeast Asian Nations (ASEAN) – including Timor-Leste’s as a member candidate[19] – are parties to the 1922 UNFCCC and have ratified both the 1997 Kyoto Protocol and the 2015 Paris Agreement.[20] As such, all Southeast Asian States have obligations to protect the rights and interests of climate migrants according to their respective commitments under climate mitigation and adaptation obligations. In particular, respective Southeast Asian States are required to mitigate climate change and its impacts, the root cause of climate migration, and adopt adaptative measures that protect the rights and interests of climate-induced migrants. However, in the specific regional context, Southeast Asian States’ obligations in the case of climate migration are governed by two distinctive frameworks, ASEAN’s joint commitment to COP and ASEAN’s own climate regime.
The commitment of ASEAN Member States to the Framework, Protocol and Agreement is reaffirmed in the ASEAN’s most recent Joint Statement on Climate Change to COP 27.[21] In that document, the ASEAN recognised that climate change could adversely impact essential human needs.[22] Accordingly, it urged Member States to step up their adaptation efforts by implementing ecosystem-based strategies and solutions, putting a special emphasis on safeguarding the livelihoods of the most vulnerable groups. On the other hand, the ASEAN has also indirectly acknowledged the existence of climate migrants.[23]While these joint statements are not binding, they act as a vehicle for political discourse, consensus-building and the finding of a common position among ASEAN Member States on climate migrants. As such, they have a significant impact on shaping ASEAN’s cooperative policies and actions as well as its Member States’ respective domestic regulations on the issue.
With regard to the ASEAN non-codified climate regime, the 2005 ASEAN Agreement on Disaster Management and Emergency Response (AADMER) is the most relevant instrument regarding the issue of climate migration. It is a legally binding regional agreement guiding ASEAN’s regional cooperation in the field of disaster management and response.[24] While it does not include any provision specifically addressing climate migrants, it establishes an important foundation for cooperation between ASEAN Member States by requiring them to monitor hazards that have transboundary effects and prepare Standard Operating Procedures for transboundary movements of personnel, equipment, facilities, goods and services to reduce losses from disasters.[25] In 2020, ASEAN Member States developed the AADMER Work Programme 2021-2025.[26] This Work Programme aims to build a region of disaster-resilient nations, mutually assisting and complementing one another, sharing a common bond in minimising the adverse effects of disasters for safer communities and sustainable development.[27]
The lack of any legal instruments on the issue presents a difficulty in mapping the binding and non-binding obligations vested upon ASEAN Member States to address the issue of climate migrantion. Yet, it is possible that their obligations under the current disaster management and emergency response regime can assist with a part of the issue. Accordingly, under ASEAN’s climate regime member states are required to cooperate to respond to any mass population influx situations as a result of environmental disasters. Such cooperation should take into consideration ASEAN’s common purpose to minimise the adverse effects of climate change for safer communities and more sustainable development. In that sense, climate migrants are given a temporary framework of support and assistance that reflects the collective commitment of ASEAN Member States toward alleviating the immediate challenges arising from their displacement.
Has ASEAN done enough?
The fact remains that ASEAN has not directly provided recognition to climate migrants. Initially, the state, not the individual, is the focus of International Environmental Law (IEL).[28] It has been argued that such a broad approach limits the extent to which IEL can cater to the particular needs and rights of climate migrants, especially the marginalised ones.[29] At the same time, IEL in general operates mainly on voluntary terms with a focus on international cooperation between Parties as the main enforcement strategy.[30] In the specific case of ASEAN, any obligations regarding the protection of climate migrants will only be implemented and monitored through state networking, mutual accommodation, consultation and consensus.[31] As such, they lack a legally binding mechanism to hold states responsible for any potential wrongdoing at the regional or global level, either with regard to climate change or climate migrants. In that sense, IEL in general and ASEAN’s climate commitment, in particular, may only be a promise rather than a solution to the issue of climate migration in the region. Therefore, it is submitted that each ASEAN Member State should lead its own initiative to integrate migration concerns into national climate change adaptation strategies as well as set up bilateral commitments to tackle cross-border displacement brought on by climate change. Incorporating and accounting for migration in adaptive strategies will enable discussions on how best to address the needs of specific migrant populations and provide political space to decide how to best manage the issue of climate migrants. Thus, offering a certain hope for potential climate migrants in the Southeast Asia region.
Photo by Brigitte Leoni / UNISDR via climate visuals : Coastal areas, especially heavily populated megadelta regions in south, east and south-east Asia, will be at greatest risk due to increased flooding from the sea and, in some megadeltas, flooding from the rivers. Climate change is projected to compound the pressures placed on natural resources and the environment by rapid urbanization, industrialization and economic development. Thailand saw record floods in late 2011, but nevertheless life had to go on – though at great cost.
[1] Giovanni Sciaccaluga, International Law and the Protection of “Climate Refugees” (Springer International Publishing 2020) 64.
[2] Lauren Nishimura, ‘“Climate Change Migrants”: Impediments to a Protection Framework and the Need to Incorporate Migration into Climate Change Adaptation Strategies’ (2015) 27 International Journal of Refugee Law 107, 114.
[3] Soo-Chen Kwan and David McCoy, ‘Climate Displacement & Migration in South East Asia’ (OCHA – ReliefWeb Blog, 28 February 2023) <https://reliefweb.int/report/viet-nam/climate-displacement-migration-south-east-asia> accessed 3 July 2023
[4] Asian Development Bank, Addressing Climate Change and Migration in Asia and the Pacific (Asian Development Bank 2012) 29.
[5] Clement Viviane and others, Groundswell Part 2: Acting on Internal Climate Migration (The World Bank 2021) 81.
[6] Kwan and McCoy (n 3).
[7] See also: Lonergan Steve, ‘The Role of Environmental Degradation in Population Displacement’ (1998) 4 Environmental Change and Security Project Report 5.
[8] UNFCCC, ‘Report of the Conference of the Parties on Its Sixteenth Session, Held in Cancun from 29 November to 10 December 2010’ (2011) FCCC/CP/2010/7/Add.1.
[9] Cancun Adaptation Framework (adopted 15 March 2011) UN Doc.FCCC/CP/2010/7/Add.1 (Cancun Framework).
[10] Sumudu Atapattu, ‘Climate Change and Displacement: Protecting “Climate Refugees” within a Framework of Justice and Human Rights’ (2020) 11 Journal of Human Rights and the Environment 86, 88.
[11] See also: UNFCCC, ‘Adaptation Committee’ (UNFCCC) <https://unfccc.int/Adaptation-Committee> accessed 15 August 2023.
[12] Dina Ionesco and Mariam Traore Chazalnoel, ‘Advancing The Global Governance of Climate Migration Through The United Nations Framework Convention On Climate Change and The Global Compact On Migration: Perspectives from the International Organization for Migration’, in Simon Behrman and Avidant Kent (eds), Climate Refugees: Beyond the Legal Impasse? (Routledge 2018) 103.
[13] UNFCCC, ‘Report of the Conference of the Parties on Its Twenty-First Session’ (n 8) 8.
[14] Sciaccaluga (n 2) 147.
[15] TFD, ‘Report of the Task Force on Displacement’ (2018) 1.
[16] UNHCR, ‘Mapping of Existing International and Regional Guidance and Tools on Averting, Minimizing, Addressing and Facilitating Durable Solutions to Displacement Related to the Adverse Impacts of Climate Change’ (2018).
[17] UNHCR, ‘Submission by UNHCR: UN Special Rapporteur on Climate Change: Report on Addressing the Human Rights Implications of Climate Change Displacement Including Legal Protection of People Displaced across International Borders’ (2023) 14.
[18] Letchumanan Raman, ”Climate Change: Is Southeast Asia Up to the Challenge? Is There an ASEAN Policy on Climate Change?’ in Kitchen N (ed), IDEAS Reports (LSE IDEAS 2010) 53-55.
[19] ASEAN, ‘ASEAN Leaders’ Statement on the Application of Timor-Leste for ASEAN Membership’ (ASEAN Main Portal, 11 November 2022) <https://asean.org/asean-leaders-statement-on-the-application-of-timor-leste-for-asean-membership/> accessed 2 September 2023.
[20] UNFCCC, ‘Parties’ (UNFCCC) <https://unfccc.int/process/parties-non-party-stakeholders/parties-convention-and-observer-states> accessed 22 August 2023.
[21] ASEAN Secretariat, ‘ASEAN State of Climate Change Report’ (2021) 5.
[22] ASEAN, ‘ASEAN Joint Statement on Climate Change to The 27th Session of The Conference of The Parties to The United Nations Framework Convention on Climate Change’ (2022) 3.
[23] See ASEAN Joint Statement on Climate Change to COP27 (n 22) which welcomes the outcomes of the Working Group II contribution to the IPCC AR6 on Impacts, Adaptation and Vulnerability, 3.
[24] ASEAN DRR CCA, ‘AADMER – ASEAN Agreement on Disaster Management and Emergency Response’ <https://aseandrr.org/about/aadmer> accessed 16 December 2023.
[25] ASEAN Agreement on Disaster Management and Emergency Response (signed on 26 July 2005, entered into force on 24 December 2009) ASEAN Secretariat (AADMER) Article 8.
[26] ASEAN, ‘ASEAN Adopts New Disaster Management Framework for 2021-2025’ (ReliefWeb, 1 December 2020) <https://reliefweb.int/report/world/asean-adopts-new-disaster-management-framework-2021-2025> accessed 9 August 2023.
[27] ASEAN, ‘ASEAN Agreement on Disaster Management and Emergency Response (AADMER) Work Programme 2021-2025’ (PreventionWeb, 11 January 2021) <https://www.preventionweb.net/publication/asean-agreement-disaster-management-and-emergency-response-aadmer-work-programme-2021> accessed 9 August 2023.
[28] Nishimura (n 2) 114.
[29] Jolanda van der Vliet, ‘“Climate Refugees”: A Legal Mapping Exercise’ in Simon Behrman and Avidant Kent (eds), Climate Refugees: Beyond the Legal Impasse? (Routledge 2018) 21-22.
[30] See also: Lavanya Rajamani, ‘The 2015 Paris Agreement: Interplay Between Hard, Soft and Non-Obligations’ (2016) 28 Journal of Environmental Law 337.
[31] Simon Chesterman, From Community to Compliance?: The Evolution of Monitoring Obligations in ASEAN (Cambridge University Press 2015) 6.
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