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The website of the Sydney Centre for International Law is www.law.usyd.edu.au/scil 
 
 An Insecure Climate for Human Security?Climate-Induced Displacementand International Law 
Dr Jane McAdam
 Director, International Law Programs Faculty of Law, University of New South Wales 
 
Dr Ben Saul
 Director, Sydney Centre for International Law Faculty of Law, University of Sydney 
 
The Universityof Sydney
Sydney Centre Working Paper 4
Faculty of Law
 
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I. INTRODUCTION
 Around the globe, large numbers of peopleface a credible risk of displacement due toclimate change. Island nations across theCentral Pacific, South Pacific, and the IndianOcean, as well as large tracts of land fromBangladesh to Egypt, risk partial or completesubmergence by the middle of this century.Shoreline erosion, coastal flooding, increasing salinity and the particular vulnerability of small islands to rising sea levels and increasedsevere weather events
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compromise theircontinued habitability, impacting uponagricultural viability, vital infrastructure andservices, the stability of governance, andultimately human settlement.
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 Whether, and how, people displaced by climate change are protected by internationallaw is unclear. When faced with a novelchallenge such as climate-induceddisplacement, international law might bebrought to bear in different ways. To borrow from Higgins (writing in the context of terrorism), whether one regards climate-induced displacement ‘as new internationallaw, or as the application of a constantly developing international law to new problems—is at heart a jurisprudentialquestion’.
3
On the one hand, existing internationallegal principles might be applied to thesituation of those displaced by climate change,regardless of any special characteristics of thataffected group. For example, human rightslaw and international humanitarian law protections apply to all irrespective of  whether one is displaced or at home; andthere may (or may not) be a compelling policy interest in avoiding the proliferation andfragmentation of legal regimes developed forincreasingly specialised sub-groups.
1
G. C. Hegerl and others, ‘Understanding and Attributing ClimateChange’, in S. Solomon and others (eds),
Climate Change 2007: The Physical Science Basis: Contribution of Working Group I to the Fourth  Assessment Report of the Intergovernmental Panel on Climate Change 
 (Cambridge: Cambridge University Press, 2007); IPCC, November2007; N. Stern,
The Economics of Climate Change: The Stern Review 
 (Cambridge: Cambridge University Press, 2007) vi–ix.
2
N. Mimura and others, ‘Small Islands’ in M. L. Parry and others(eds),
Climate Change 2007: Impacts, Adaptation and Vulnerability.Contribution of Working Group II to the Fourth Assessment Report of the Intergovernmental Panel on Climate Change 
(Cambridge: CambridgeUniversity Press, 2007), 689.
3
R. Higgins, ‘The General International Law of Terrorism’ in R.Higgins and M. Flory (eds.),
Terrorism and International Law 
(London:Routledge, 1997), 13.
 Alternatively, existing legal principlesmight be elongated, adapted, or particularisedto respond to new circumstances, whetherthrough creative interpretation orextrapolation by analogy. Thus, for example,norms developed to protect refugees havebeen transplanted across to address the similarsituation (but for the fact of crossing aninternational border) of some internally displaced persons;
4
 while women, children,and the disabled are entitled to specialisedtreaty rights regimes at the same time as they fall within the protection of the general‘human’ rights treaties such as the twininternational covenants of 1966.
5
 Athird strategy is to recognise thedeficiency of existing legal norms when faced with a novel and pressing challenge, and todevelop new norms in response—a route which is normally more difficult for lack of political will. That approach evidently carriesrisks, including that any agreement by States will reflect a lowest common denominatorapproach; or that any new standards will notbe matched by the will or capacity toimplement them (carrying legitimacy costs forthe law as whole, and raising false hopes andexpectations among affected groups); orconversely that efforts (and resources)favouring those displaced by climate changemay dilute or overshadow existing legalstandards and organisational mandatesproviding for the protection of other— perhaps more—vulnerable groups. The latter concern, for instance, has beenfrequently expressed by the InternationalCommittee of the Red Cross in seeking todefend its treaty mandate to protect allcivilians affected by armed conflict from any specialised regime which might seem tofavour only those civilians who have beeninternally displaced
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 —some of whom, if they 
4
See Guiding Principles on Internal Displacement, UN Doc.E/CN.4/1998/53/Add.2 (11 February 1998).
5
See respectively Convention on the Elimination of All Forms of Discrimination against Women (adopted 18 December 1979, enteredinto force 3 September 1981) 1249 UNTS 13; Convention on theRights of the Child (adopted 20 November 1989, entered into force 2September 1990) 1577 UNTS 3 (CRC); Convention on the Rights of Persons with Disabilities (adopted 13 December 2006, not yet inforce); International Covenant on Civil and Political Rights (adopted16 Dec 1966, entered into force 23 March 1976) 999 UNTS 171(ICCPR); International Covenant on Economic, Social and CulturalRights (adopted 16 December 1966, entered into force 3 January 1976) 993 UNTS 3 (ICESCR).
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International Committee of the Red Cross, ‘ICRC Position onInternally Displaced Persons (IDPs), May 2006.
 
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have found safety elsewhere in their country,may well be at less risk than those who remainat home but are caught up in the midst of hostilities. Equally, it is conceivable that thoseunable to move away from the negativeeffects of climate change—whether due topoverty, insecurity, disability, infirmity, orother factors—may well be in need of moreassistance than those who are more mobileand better able to establish homes andlivelihoods elsewhere.
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 Those displaced by climate change areplainly entitled to enjoy the full range of civil,political, economic, social, and cultural rightsset out in international and regional humanrights treaties and customary internationallaw,
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along with relevant protectionsstemming from humanitarian law andaccruing indirectly from internationalenvironmental law. For the moment,however, those displaced by climate changeare not yet recognised in international law asan identifiable group whose rights areexpressly articulated,
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or as a formal legalcategory of people in need of specialprotection. This paper first outlines the phenomenonof climate-induced displacement, with a focuson displacement from small island States(particularly in the Pacific), on which theimpacts of climate change are welldocumented and keenly felt
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(although the
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 As a report prepared for the International Organization forMigration (IOM) correctly observed, ‘the ability to migrate is afunction of mobility and resources (both financial and social)’, thus‘the people most vulnerable to climate change are not necessarily theones most likely to migrate’: O. Brown, ‘Migration and ClimateChange’, IOM Migration Research Series No. 31 (Geneva:International Organization for Migration, 2008), 9.
8
Since States are obliged to respect their human rights obligations with respect to all people within their territory or jurisdiction: see
Lopez Burgos 
 v.
Uruguay 
,Communication No. R.12/52 (1981); HumanRights Committee, ‘General Comment 31 on Article 2 of theCovenant: The Nature of the General Legal Obligation Imposed onStates Parties to the Covenant’ (21 April 2004), para 10; Concluding Observations of the Human Rights Committee: Israel, UN Doc.CCPR/C/79/Add.93 (18 August 1998) para 10; Concluding Observations of the Human Rights Committee: Israel, UN Doc.CCPR/CO/78/ISR (21 August 2003) para 11.
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Cf women, children, refugees, indigenous peoples, migrant workers,stateless people.
10
See eg Mimura and others, ‘Small Islands’; J. Barnett and W. N. Adger, ‘Climate Dangers and Atoll Countries’,
Climatic Change 
,61(2003), 321; N. Myers, ‘Environmental Refugees in a Globally  Warmed World’,
BioScience 
,43 (1993), 752. Nevertheless, furtherobservational data is still needed, since many of the projections arebased on the IPCC’s first two studies based on simplistic scenarios(Mimura and others, ‘Small Islands’, 711), and understandings of adaptive capacity and adaptation options remain relatively underdeveloped: Mimura and others, ‘Small Islands’, 712.
challenges manifested there have parallels in vastly different contexts).
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  The paper next reviews how existing international law applies to those displaced orat risk of displacement from the effects of climate change. In doing so, it highlights thegaps or limitations in the relevant applicableregimes of international refugee law, humanrights law, humanitarian law, andenvironmental law. Attention is given to theprospects for legal protection in threedifferent phases: pre-displacement (as rightsare increasingly compromised and degraded);the moment of displacement and the upheaval which accompanies it; and post-displacement(in terms of what rights and legal status attachto displaced persons and what durablesolutions are available).Having identified the limitations of existing international law in responding to theneeds of those displaced by climate change,this paper then focuses on whether theemerging concept of ‘human security’ couldprovide a useful framework for identifying and analysing the rights and interests at risk and for crafting responses to those risks. Viewing climate-induced displacementthrough a human security lens may bring significant strategic advantages, not least inhelping to mobilise international action insupport of the displaced, in holistically conceptualising the needs of the displaced,and in supplying flexible political solutions which can respond to immediate needs andprovide much-needed domestic legitimationfor the reception of an exceptional category of foreigners who fall outside the contours of regular migration programmes.On the other hand, a ‘human security’approach may also counter-productively displace and undermine binding legalprotections, by substituting human rightsstandards and approaches for thediscretionary, political ‘human security’
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See eg Petition to the Inter American Commission on HumanRights Seeking Relief from Violations resulting from Global Warming caused by Acts and Omissions of the United States (7December 2005)http://www.earthjustice.org/library/legal_docs/petition-to-the-inter-american-commission-on-human-rights-on-behalf-of-the-inuit-circumpolar-conference.pdf; A. J. Dugmore, C. Keller and T. H.McGovern, ‘Have We Been Here Before? Climate Change, and theContrasting Fates of Human Settlements in the Atlantic Islands’,Human Security and Climate Change, International Workshop, Asker, 21–23 June 2005; M. Mortimore,
 Adapting to Drought: Farmers,Famines and Desertification in West Africa 
,(Cambridge: CambridgeUniversity Press, 1989).
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