Keywords: environmental migration, climate refugees, sustainable development law, international law
Abstract: No specific, consistent law deals with migration in the context of environmental phenomena (specifically of climate change) as a distinct issue. From this simple assessment, an oft-heard discourse identifies a 'legal gap' that should accordingly be filled through new norms specific to environmental migration. A new international treaty, in particular, would build such a normative monolith - an 'obelisk'. However, I argue that some existing international norms may indeed play at least a partial role. The Guiding Principles on Internal Displacement, the United Nations Framework Convention on Climate Change, and the Draft Articles on State Responsibility, among others, are part of a 'bag of marbles' - a collection of isolated norms that should be held together if possible. However, these isolated norms have little consistency and need to be woven together into a coherent synthesis. The nascent notion of an international sustainable development law helps us in conceiving such a 'tapestry' - a comprehensive analysis of a plethora of existing norms helping us to form a coherent response to the issues raised by environmental migration. Even though this cannot tackle all the issues relating to environmental migration, it should at least allow us to identify the multiple insufficiencies of international law, instead of referring simply to an incurable unique 'legal gap'.
It has become common sense in some milieus to bemoan the 'legal gap' resulting from the absence of any international legal instrument specifically conceived to govern environmentally induced migration. Those bodies tasked with formulating international law have been somewhat inattentive to the growing concern relating to the displacement of up to hundreds of millions of individuals as a consequence of environmental change, in particular in the context of climate change. At the very least, they appear to have been unaware of the forced nature of such movements. How, many scholars have asked during the last decade, could international law leave environmental 'refugees' behind and only care for those who, 'owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion',2 are unable to return to their country of origin? If the 1951 Convention Relating to the Status of Refugees (the Refugee Convention) aimed to protect forced migrants, why did it contain such a complicated and limited definition, even after 1967, when its Protocol extended the Convention to non-European, post-1951 refugees?
To a great extent, such questions are misleading. They assume that international law reflects only ethical considerations, while in reality the picture is far more complex. There is no doubt that states' interests also play an instrumental role in the negotiation of international treaties. It may simply be that the Refugee Convention did not aim to protect forced migrants, but rather was incentivised by the security concerns of states already hosting large groups of refugees in the immediate aftermath of World War II.3 As a matter of fact, the definition of a 'refugee' was extensively debated; no omission was accidental. In the context of the Cold War, commentators rapidly concluded that 'economic refugees' were not being granted the protection they needed.4 The way in which international law frames the notion of refugees is not coincidental, but is the result of a complex interplay between the interests of different states.
In this context, liberal legal researchers have two options. Most of them have engaged in the first: promoting a substantial change of the law. The way of an international lex ferenda (future law), paved by universal treaties, regional coordination, or ad hoc cooperation, has been extensively scrutinised by a number of scholars.5 It is a long and tortuous project, however, for international law is made by states anchored in concrete geopolitical circumstances and fully aware of their interests, not by abstract entities behind a veil of ignorance. To this extent, some hope may come from a security-based approach; as with the Refugee Convention, states' well-understood interests could push them to laudable forms of international cooperation.