Navigating Uncharted Waters: Redefining Liability in the Age of Climate Migration

As climate-induced migration intensifies, individuals and communities are relocating around the world due to the increasingly dangerous effects of climate change. Those affected by this phenomenon, often referred to as “climate migrants” or “climate refugees,” frequently find themselves without formal legal recognition. This oversight deprives them of the protections that these frameworks allege to offer, leaving many vulnerable amid this global dilemma.

While climate migrants navigate a treacherous path, it becomes evident that society’s legal safeguards fall short. The inability to formally recognize climate refugees and the absence of effective resettlement mechanisms highlight these deficiencies, as do gaps in equitable climate justice compensation and the enforcement of international cooperation. To address these issues, there is a pressing need for new legislation tailored to the intricacies of climate-induced migration—laws that prioritize clear resettlement strategies, fair compensation measures, and enhanced global collaboration, all reinforced by stringent enforcement. Beyond merely protecting climate migrants, these reforms are essential to bolster the resilience and well-being of the global community facing an unparalleled environmental crisis.

Current frameworks, like the Guiding Principles on Internal Displacement, the Global Compact for Safe, Orderly, and Regular Migration (CGM), and the United Nations Framework Convention on Climate Change (UNFCCC), attempt to address these difficulties; however, their limitations are glaring: The Guiding Principles neglect the specific concerns of climate-induced displacements; the GCM lacks actionable measures and consistent enforcement; and the UNFCCC, preoccupied with mitigation and adaptation, overlooks the distinct needs of climate refugees. These gaps underline the urgent demand for a refined legal perspective that truly understands the inner-workings of climate-induced migration.

International agreements currently governing climate change and migration suffer from ambiguity and enforceability. At the forefront are the Guiding Principles on Internal Displacement, endorsed by the United Nations in 1998. These principles address displacement caused by armed conflict and generalized violence. [1] However, their recognition of environmental disasters, while present, is somewhat muted.

For instance, Principle 6, in its thirty total principles, outlines every individual’s right to protection against arbitrary displacement from their habitual residence. Yet, the scenarios it presents for such displacements—raging from large-scale development projects and conflicts to natural disasters—do not place a direct spotlight on climate-induced events. [2] As a result, this generalized approach significantly minimizes urgent climate concerns

As global discussions on migration evolved, the 2018 United Nations’ GCM emerged as a response to international migration challenges. One of its foundational objectives under Objective 2, out of its twenty-three objectives, expressly commits to creating conditions to ensure that “deteriorating environments” do not compel individuals to seek migration outside their home countries. [3] Despite this, the GCM’s actionable measures appear to be broad and indirect, emphasizing investments in areas like the 2030 Agenda for Sustainable Development, the Paris Agreement, and general economic growth to deter migration, rather than direct interventions for the current and immediate protection of climate refugees. [4]

Moreover, Objective 23, which speaks to strengthening international cooperation, mainly focuses on enhanced international dialogue and capacity building. It predominantly relies on voluntary reporting and fails to introduce concrete enforcement mechanisms, evidenced by its emphasis on “supporting other States” and “mobilizing technical, financial, and human resources.” [5] These phrases suggest a focus on encouragement and resource pooling rather than describing strict, binding measures or penalties for states failing to protect and assist climate migrants. Consequently, without robust enforcement mechanisms, the compact’s effectiveness remains uncertain, particularly in ensuring consistent international responses to the challenges of climate-induced migration.

The UNFCCC, a treaty adopted in 1992, is frequently regarded as the foundation of global climate policy, aimed at addressing the escalation of greenhouse gas concentrations and their ensuing consequences. Yet, amidst its high notoriety and influence, it strikingly omits any mention of the term ‘climate migrant’ or ‘climate refugee’ in its twenty-five total pages of text. [6] This conspicuous absence has had profound implications, especially for Pacific Island states Tuvalu and Kiribati, which often bear the immediate brunt of climate change and climate-induced migration in today’s age. While they grapple with a loss of livable land due to rising sea levels, increasing saltwater intrusion damaging freshwater sources, and heightened cyclonic events pushing their citizens to consider relocation, many look to the UNFCCC for international backing. [7] However, the absence of a defined term or status for climate refugees means their concerns are often overlooked or ineligible to be addressed, leaving hundreds to fend for themselves. This glaring omission not only underscores the vulnerability of these specific populations, but also raises questions about the comprehensive nature of the convention itself in addressing all facets of climate change.

Beyond the immediate call for a stringent international legal framework to manage climate-induced migration, there is an imperative to confront the web of corporate liability for climate-induced damages. Addressing this issue is not a side note; it is the main narrative. Being that state policies are frequently interwoven with corporate actions, understanding the responsibility of major corporations becomes crucial. The intricacies of this task become evident in cases such as Kivalina v. ExxonMobil Corp. (2008), where the balance of power, responsibility, and accountability can be highlighted between corporations and the vulnerable communities affected by their actions.

In Kivalina, the villagers of a Native Alaskan community, named Kivalina, found themselves grappling with the escalating impacts of climate change. Faced with a surge in sea levels, hey were compelled to seek sanctuary in Kiniktuuraq, a region situated roughly two miles southeast of their original land. Though, this was no simple migration, but a desperate retreat from a home irrevocably altered by climate change. In the midst of this displacement, they sued the major fossil fuel corporation, ExxonMobil. [8]

The villagers contended that ExxonMobil, due to their disproportionate contribution to global greenhouse gas emissions, should bear the monetary burden of their forced relocation. The basis of their legal claim hinged on the concept of public nuisance, a term generally employed within the rights of the public to be protected from actions that unreasonably interfere with public health, safety, and general welfare. Yet, in this particular context, the villagers of Kivalina used this legal term innovatively; they argued that the emissions produced by ExxonMobil constituted a public nuisance that had directly led to the endangerment, and ultimately, destruction of their village. [9]

However, the lawsuit was ultimately dismissed. The Court asserted that the regulation of greenhouse gasses should be viewed as a political issue, with remedies sought from the legislative and executive branches rather than the judiciary. [10] This decision demonstrates the limitations of current legal avenues available to those seeking climate justice compensation and the lack of effective mechanisms designed to hold corporations accountable for their unduly contributions to climate change.

Though, by looking back at the UNFCCC’s treaty, it is poised for a more refined interpretation. Drawing inspiration from the Kivalina villagers’ attempt to hold corporations legally accountable, we can consider a more inclusive use of the existing legal tools. Specifically, a detailed reading of Article 3 found in the treaty, which emphasizes principles of equity and “common but differentiated responsibilities and respective capabilities,” could more distinctly define the shared, yet distinct, obligations of states and corporations. [11] By doing so, states would be urged to regulate corporate actions while corporations would be pressed to amend their practices. This does not necessitate crafting an entirely new framework, but calls for an evolved understanding and application of an existing treaty. As a result, such a legal interpretation could pave the way for holding significant greenhouse gas emitters, including corporations like ExxonMobil, directly accountable.

In the pursuit of climate justice, different legal battles across the globe highlight the complexity of the challenge. While the Kivalina case in the U.S. showcases the barriers communities face when confronting corporate giants, a landmark case in Europe offers a distinct narrative on state’s accountability. The 2015 case of Urgenda Foundation v. The State of the Netherlands (2019) hinged upon the European Convention on Human Rights (ECHR). Established in 1950 by the Council of Europe, the ECHR serves as a foundational treaty, protecting human rights, democracy, and the rule of law across its 47 member states. The convention’s enforcement mechanism, the European Court of Human Rights, allows individuals, groups, and other member states to bring complaints about breaches of these civil and political rights. [12]

Against this context, the Urgenda Foundation, a notable Dutch environmental entity, challenged the Dutch government, taking issue with the Dutch government’s 2020 climate target which, in their view, was futile, let alone an attempt at mitigating climate change. The government had set a reduction target for greenhouse gas emissions that was deemed to be below the minimum required to prevent dangerous climate change, as advised by climate scientists and the IPCC. [13] Using the provisions of the ECHR, Urgenda argued that such a limp response not only jeopardized the environmental future of the Netherlands, but also violated the rights to life, privacy, and family life of Dutch citizens, as protected by Articles 2 and 8 of the ECHR. [14]

Ultimately, the Court mandated that the Dutch government enhance their efforts to combat climate change, setting a new benchmark for the 2020 climate target. Additionally, they called for vital new precautions, including more rigorous regulations on industrial emissions, emergency strategies for extreme climatic events, and fortifying coastal defenses against rising sea levels. [15] Though specific to the Netherlands, this judgment serves as a significant legal reference, highlighting the potential for national courts to recognize and uphold state responsibilities in the face of climate crises.

While the Urgenda case successfully held the Dutch government accountable for its climate commitments, it was largely framed within the context of national policies and specific emission targets. This scope left unaddressed broader challenges, such as transboundary pollution, corporate accountability, and the protection of climate migrants. The case did not delve into creating legal obligations for international cooperation, nor did it touch upon mechanisms to hold multinational corporations liable for their global emissions. Moreover, while the ruling provided measures to counteract climate change within the Netherlands, it stopped short of establishing safeguards for those already affected, like climate-driven migrants. The judgment, therefore, serves as a stark reminder that individual cases, while impactful, might not be comprehensive enough. To truly tackle the multifaceted challenges of climate change, a more global and encompassing legal framework is imperative.

Following the intricacies of individual cases like Urgenda, global legal mechanisms, too, present their own set of limitations. The ‘Polluter Pays Principle’ stands as a testament to this. While it offers an avenue for addressing corporate responsibility, its real-world implications are limited by the specificity of its application and enforceability. Rooted in the 1970s by the OECD, the Polluter Pays Principle has been embedded in foundational legal frameworks such as the Treaty of Lisbon. The principle's premise, that those causing environmental degradation should bear the burden of rectification, is straightforward. [16] However, the on-ground realization of this concept has been anything but. Within the realm of climate law, while it hints at holding corporations accountable, the principle has been more aspirational than operational. The challenges are manifold: from establishing a clear link between polluters and their quantifiable environmental impact, to effectively extending support for climate migrants. The Treaty of Lisbon, though endorsing the principle, grapples with nuances like singling out specific polluters and gauging their direct contributions to climate change and its aftermath, such as migration. [17] This struggle is evident in the United States, where stringent regulations under the Clean Air Act have aimed to make corporations accountable for their pollutant emissions. For instance, the Act's implementation has led to various companies incurring penalties for exceeding established emission limits, reflecting the 'Polluter Pays Principle' in action. Yet, despite these penalties, establishing a direct link between these corporate emissions, their environmental impact, and specific instances of climate-induced migration remains intricate. [18] Thus, while these legal tools project promise on paper, their tangible impact remains restrained, reinforcing the need for a more comprehensive and actionable legal framework.

While the outlined limitations of existing frameworks underscore the magnitude of the task ahead, they also emphasize the profound necessity for reform. In the face of the complex and pressing crisis of climate-induced migration, new law and policy must weave together the threads of state responsibility, corporate liability, human rights, and international cooperation to construct a comprehensive, robust, and enforceable framework that safeguards the rights of climate migrants. As society advances into an uncertain future shaped by climate change, collective action—or inaction—will undeniably shape the fate of millions of individuals and communities across the globe. The ethical and legal imperatives for reform could not be more clear. The urgency of the climate migration crisis demands nothing less than an unwavering commitment to justice, equity, and transformative change.

Edited by Zoe Beckenstein

[1] United Nations, Guiding Principles on Internal Displacement, E/CN.4/1998/53/Add.2 (New York: United Nations, 1998). https://www.unhcr.org/media/guiding-principles-internal-displacement.

[2] United Nations, Guiding Principles on Internal Displacement

[3] United Nations, Global Compact for Safe, Orderly, and Regular Migration, A/RES/73/195 (New York: United Nations, 2018). https://undocs.org/Home/Mobile?FinalSymbol=A%2FRES%2F73%2F195&Language=E&Devi ceType=Desktop&LangRequested=False

[4] United Nations, Global Compact for Safe, Orderly, and Regular Migration [5] United Nations, Global Compact for Safe, Orderly, and Regular Migration

[6] United Nations, "United Nations Framework Convention on Climate Change," adopted May 9, 1992, UN Doc. A/AC.237/18 (Part II)/Add.1; FCCC/INFORMAL/84. https://unfccc.int/resource/docs/convkp/conveng.pdf.

[7] Jane McAdam, "Climate Change, Forced Migration, and International Law," Oxford University Press, 2012.
https://academic.oup.com/book/7411

[8] Kivalina v. ExxonMobil Corp., 663 F. Supp. 2d 863 (N.D. Cal. 2009).

[9] Kivalina v. ExxonMobil Corp.

[10] Kivalina v. ExxonMobil Corp.

[11] United Nations, "United Nations Framework Convention on Climate Change”

[12] Council of Europe, "European Convention on Human Rights," signed November 4, 1950, ETS No.005.
https://www.echr.coe.int/Documents/Convention_ENG.pdf.

[13] Urgenda Foundation v. The State of the Netherlands, Supreme Court of the Netherlands, ECLI:NL:HR:2019:2007, December 20, 2019.

[14] Urgenda Foundation v. The State of the Netherlands

[15] Urgenda Foundation v. The State of the Netherlands

[16] Organization for Economic Co-operation and Development (OECD), "The Polluter-Pays Principle: OECD Analyses and Recommendations," 1992. https://www.oecd.org/officialdocuments/publicdisplaydocumentpdf/?cote=OCDE/GD(92)81&do cLanguage=En.

[17] Article 191 (ex Article 174 TEC) - Consolidated version of the Treaty on the Functioning of the European Union - PART THREE: UNION POLICIES AND INTERNAL ACTIONS - TITLE XX: ENVIRONMENT,” Official Journal 115 (09/05/2008): P. 0132-0133 https://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=CELEX%3A12008E191%3AEN%3A HTML

[18] U.S. Environmental Protection Agency. "Clean Air Act Title I - Air Pollution Prevention and Control, Parts A through D." https://www.epa.gov/clean-air-act-overview/clean-air-act-title-i-air-pollution-prevention-and-con trol-parts-through-d