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This is an article that was published in the Eurasia Review in February 2011.

The below article was published in the Eurasia Review (http://www.eurasiareview.com), the article is called Climate Migrants’ and the Legal Frontier

"The Asia Pacific region is often deemed the ground zero of climate change, where the increased intensity and frequency of storms and floods, sea-level rise, and desertification threaten entire island and coastal communities. People migrating in response to these changes could soon outnumber all current refugees worldwide, and there is a pressing need to establish an international legal regime to address the cross-cutting impacts of climate change and migration, according to an East-West Center research paper by University of Hawai’i law professor Maxine Burkett.

A number of international instruments govern forced migration due to persecution, conflict, and disasters, but no one area of the law governs climate and migration, Burkett explains in the AsiaPacific Issues paper, titled “In Search of Refuge: Pacific Islands, Climate-Induced Migration, and the Legal Frontier.” From Bangladesh to Papua New Guinea, loss of homeland is already occurring and may increase as slow-onset and sudden disasters, made more frequent and intense by climate change, damage or destroy human habitats, writes Burkett, who serves as the inaugural director of the Center for Island Climate Adaptation and Policy at the University of Hawai’i Sea Grant College Program.

“Climate migrants” face painful realities, including loss of livelihood and culture and the need to adapt to a host country or community, Burkett explains. But those who live on small islands may face the greatest risk: the permanent loss not only of their own chance to go home, but of the home country itself.

She asserts that the imminent possibility that entire countries could become uninhabitable raises novel questions that challenge the foundation of nation states on which the modern world order is based: “International law addresses the deprivation of nationality following the transfer of rights, obligations, and property from a prior state to a successor state, for example. But it does not address circumstances in which a state has disappeared but no successor state exists.”

When citizens of islands states are permanently displaced to other countries, it is unclear whether, under international law, they will become stateless persons or merely landless citizens of a state that no longer exists, according to Burkett.

Even if global greenhouse gas emissions are reduced, the loss of some islands
may be unavoidable. “In these cases,” she writes, “the international community must support resettlement and ensure that displaced islanders are compensated, directly or indirectly, for any deterioration in their quality of life.”

Burkett argues that any plan for climate-induced migration by Pacific islanders—whether within their own countries or across borders—must, at a minimum, determine an appropriate governance structure to oversee migration, organize smooth transitions, and resolve the issue of statelessness and citizenship.

The planning process must actively involve the affected individuals, communities, and states, Burkett writes: “As people are forced to relocate far from their ancestral lands, their participation in resettlement arrangements may be the only way to preserve their identity and culture.”

The ideal approach to climate change governance in general, and migration in particular, would be a single integrated legal instrument, she writes, but these issues will more likely be addressed in overlapping instruments, specific to the circumstances of disparate peoples and environments.

Such a complex, interlinked regime could pose considerable legal and governance challenges, Burkett acknowledges, “yet the challenges are as great if the law is left in its current state. This is evident in the failure, despite 20 years of global awareness of the problem, to agree on a legally workable definition of migrants, much less a well-formulated legal and policy framework to govern their migration.”

Avoiding the poverty and suffering that might arise from continued inaction compels immediate implementation of policy interventions and governance systems, Burkett concludes. “Small island states, facing imminent challenges to their statehood and the likely need for substantial, if not total, relocation, deserve a swiftly executed initiative tailored to their plight” she writes. “This will not provide the kind of certainty required of the law. It will, however, set the framework for sequenced and measured responses appropriate for particular scenarios and geographical regions.”

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