Sinking islands? formulating a realistic solution to climate change displacement

New York University Law Review

Volumn 87, Issue 4, 2012, Pages 1172-1209

  McAnaney, Sheila C ^a  

^a UNIVERSITY OF VIRGINIA   (United States)

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[No Author keywords available]

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EID: 84867407664     PISSN: 00287881     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Note

References (211)

1. Claudio Guler, The Climate Refugee Challenge, ISN SECURITY WATCH (Apr. 14, 2009), http://www.isn.ethz.ch/isn/Security-Watch/Articles/Detail/?lng=en&id =98861 (last visited Aug. 8, 2012).
2. NORMAN MYERS & JENNIFER KENT, ENVIRONMENTAL EXODUS: AN EMERGENT CRISIS IN THE GLOBAL ARENA 1 (1995).
3. Colette Mortreux & Jon Barnett, Climate Change, Migration and Adaptation in Funafati, Tuvalu, 19 GLOBAL ENVTL. CHANGE 105, 106 (2009) (noting "sensationalist accounts" of the situation in the Pacific Islands).
4. For deceptive images, see, for example, An Inconvenient Truth (Lawrence Bender Productions 2006), which plays commentary about flight to Australia and New Zealand over images of seasonal flooding on the Pacific.
5. See also Mortreux & Barnett, supra, at 106 (discussing the imagery in the film).
6. Jon Shenk recently made a documentary focusing on (now former) President Mohamed Nasheed of the Maldives in order "to give a human face to climate change." Vikas Bajaj, Climate Prophet in Hot Water, N.Y. TIMES, Apr. 1, 2012, at AR12
7. see also Neil MacFarquhar, Islanders Fearing Climate Change Press a U.N. Debate, N.Y. TIMES, May 29, 2009, at A4 (describing issues and Pacific Islanders' attitudes torward migration resulting from sea level rise)
8. Nicholas Schmidle, Wanted: A New Home for My Country, N.Y. TIMES, May 10, 2009, (Magazine) at 38 (discussing the efforts of the former President of the Maldives to find a new country for the Maldives in the event of sea level rise).
9. Adaptive capacity can be defined as the ability to change one's livelihood or situation to survive in a changed environment.
10. The Intergovernmental Panel on Climate Change (IPCC), established by the United Nations Environment Programme and the World Meteorological Organization, is a scientific body dedicated to "provid[ing] the world with a clear scientific view on the current state of knowledge in climate change and its potential environmental and socio-economic impacts." Organization, INTERGOVERNMENTAL PANEL ON CLIMATE CHANGE, http://www.ipcc.ch/organization/organization.shtml#.Tzg5ZUxSSqY (last visited Aug. 8, 2012).
11. INTERGOVERNMENTAL PANEL ON CLIMATE CHANGE, SYNTHESIS REPORT 39 (2007) [hereinafter IPCC REPORT].
12. Id. at 45.
13. The IPCC Report assesses uncertainty in specified outcomes across the following likelihood ranges: virtually certain (>99%), extremely likely (>95%), very likely (>90%), likely (>66%), more likely than not (>50%), about as likely as not (33%-66%), unlikely (33%), very unlikely (<10%), extremely unlikely (<5%), and exceptionally unlikely (<1%).
14. Id. at 27.
15. Id. at 46, 49.
16. See John Schwartz, Courts Emerging as Battlefields for Fights over Climate Change, N.Y. TIMES, Jan. 27, 2010, at A1 (noting that whereas the sea ice formerly accumulated as early as October, it still had not developed as late as January in 2010).
17. Kivalina, a native Alaskan village located on a barrier reef, has been left unprotected from sea surges after the thawing of sea ice and is now seeking to relocate.
18. Id.
19. See IPCC REPORT, Supra Note 7, at 46 (noting the "very likely" increase in hot extremes and heat waves and that "decreases are likely in most subtropical land regions" (emphasis removed)).
20. Id. at 48, 50.
21. Shuaizhang Feng, Alan B. Krueger & Michael Oppenheimer, Linkages Among Climate Change, Crop Yields and Mexico-U.S. Cross-Border Migration, 107 PROC. NAT'L ACAD. SCI. 14,257, 14,257 (2010).
22. IPCC REPORT, Supra Note 7, at 46.
23. See Robert A. McLeman & Lori M. Hunter, Migration in the Context of Vulnerability and Adaptation to Climate Change: Insights from the Analogues, 1 WILEY INTERDISCIPLINARY REVIEWS: CLIMATE CHANGE 450 (2010) (manuscript at 2-4), available at http://www.ncbi.nlm.nih.gov/pmc/articles/PMC3183747/pdf/nihms317400.pdf (last visited Aug. 8, 2012) (noting that other factors, including vulnerability and demographics, provided "push" factors in migration following sudden onset weather events).
24. Gordon McGranahan, Deborah Balk & Bridget Anderson, The Rising Tide: Assessing the Risks of Climate Change and Human Settlements in Low Elevation Coastal Zones, 19 ENV'T & URBANIZATION 17, 25 tbl.2 (2007) (noting that of the 618 million people living in these areas, 474 million are from low or lower-middle income as opposed to 144 million from upper-middle and high income groups).
25. See IPCC REPORT, Supra Note 7, at 45 ("Because understanding of some important effects driving sea level rise is too limited, this report does not assess the likelihood nor provide a best estimate or an upper bound for sea level rise.").
26. Id. at 72.
27. "Vulnerability," in terms of this Note, can be defined as the inability to withstand the impacts of climate change due to the location of residence or livelihood.
28. See NORMAN MYERS, ORG. FOR SEC. & COOPERATION IN EUR., 13TH ECONOMIC FORUM, PRAGUE, ENVIRONMENTAL REFUGEES: AN EMERGENT SECURITY ISSUE 1 (2005), available at http://www.osce.org/eea/14851 (last visited Aug. 8, 2012) ("When global warming takes hold, there could be as many as 200 million people overtaken by disruptions of monsoon systems..., by droughts ..., and by sea-level rise and coastal flooding.")
29. U.N. DEV. PROGRAMME, HUMAN DEVELOPMENT REPORT, CLIMATE CHANGE AND FORCED MIGRATION: OBSERVATIONS, PROJECTIONS AND IMPLICATIONS 2007/17, at 5 (2007) (Oli Brown) [hereinafter DEVELOPMENT REPORT] (noting Myers's estimate of "200 million climate migrants by 2050").
30. See DEVELOPMENT REPORT, Supra Note 22, at 6 (quoting personal communication with Professor Myers).
31. SIR NICHOLAS STERN et al., STERN REVIEW: THE ECONOMICS OF CLIMATE CHANGE 77 (2006).
32. See, e.g., Frank Biermann & Ingrid Boas, Preparing for a Warmer World: Towards a Global Governance System To Protect Climate Refugees, 10 GLOBAL ENVTL. POL. 60, 68 (2010) (discussing Myers's estimates and finding that "most estimates currently appear to expect an additional number of climate refugees of about 200-250 million by 2050")
33. Bonnie Docherty & Tyler Giannini, Confronting a Rising Tide: A Proposal for a Convention on Climate Change Refugees, 33 HARV. ENVTL. L. REV. 349, 353 (2009) (relying on estimates ranging from 50 million to 200 million in 2100, using Myers's estimates as the upper range)
34. Jessica B. Cooper, Note, Environmental Refugees: Meeting the Requirements of the Refugee Definition, 6 N.Y.U. ENVTL. L.J. 480, 485 (1997-1998) (relying on Myers's then-current estimate of 100 million by the year 2050, which was later revised to 200 million).
35. See, e.g., Docherty & Giannini, Supra Note 25, at 354-57 (noting that "[t]he displaced will include both those who relocate within a country and those who leave their home state," but focusing on transboundary migration that "may overwhelm not only receiving states but also the international legal system").
36. Jane McAdam, Swimming Against the Tide: Why a Climate Change Displacement Treaty Is Not the Answer, 23 INT'L J. REFUGEE L. 2, 11 (2011).
37. For fieldwork and empirical evidence regarding sudden migration from natural disasters, see Jane McAdam & Ben Saul, Displacement with Dignity: International Law and Policy Responses to Climate Change Migration and Security in Bangladesh (Sydney Law Sch., Legal Studies Research Paper No. 10/113, 2010), available at http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1701486 (last visited Aug. 8, 2012).
38. See DEVELOPMENT REPORT, Supra Note 22, at 15 ("Even in the most extreme, unanticipated natural disasters-migrants, if they have any choice, tend to travel along preexisting paths ").
39. Cf. Lisa Friedman, How Will Climate Refugees Impact National Security?, SCIENTIFIC AMERICAN (Mar.23, 2009), http://www.scientificamerican.com/article.cfm?id=climage-refugees-nation al-security (describing international climate migration from Bangladesh as "the most feared global consequence of climate change" in terms of security interests).
40. See Maryanne Loughry & Jane McAdam, Kiribati-Relocation and Adaptation, 31 FORCED MIGRATION REV. 51, 52 (2008) (noting a movement of the population of Kiribati to the atoll of South Tarawa).
41. Schwartz, Supra Note 11.
42. See McLeman & Hunter, Supra Note 17, at 3 ("[D]rought does not necessarily lead to sudden increases in levels of migration along these established transnational migrant networks.").
43. As discussed Supra Note 29, migration tends to follow pre-existing migratory paths. Therefore, the absence of increased traffic along traditional migratory routes from the Sahel to Europe suggests external migration is not increasing during these periods of drought.
44. See id. at 9 ("[E]xisting research strongly suggests that environmentally influenced migration is closely linked with adaptive capacity.").
45. See id. at 4 ("[P]articular socioeconomic and demographic groups that were economically disadvantaged or marginalized were more likely to permanently relocate elsewhere.").
46. Sergio O. Saldaña-Zorrilla & Krister Sandberg, Impact of Climate-Related Disasters on Human Migration in Mexico: A Spatial Model, 96 CLIMATIC CHANGE 97, 101 (2009) (noting that increased frequency of natural disasters adversely affects income, which can further predict increased out-migration).
47. Id. at 98.
48. See Mortreux & Barnett, Supra Note 3, at 107 (noting both the importance of remittances and the already high level of migration by young people in the Pacific Islands).
49. Id. at 108 (internal quotation marks omitted).
50. This has been shown to happen in past environmental disasters. For example, in the Dust Bowl Migration of the 1930s, those most likely to leave were those whose families or friends had already gone to California, providing social capital and access to networks, while those who stayed behind were more often poor and landless. McLeman & Hunter, Supra Note 17, at 4.
51. See generally DONALD WORSTER, DUST BOWL: THE SOUTHERN PLAINS IN THE 1930S (2004) (describing the Dust Bowl Migration resulting from a four-year drought in the Southern Plains states of the United States).
52. See A McAdam, Supra Note 27, at 12 ("Those who move in a regular or lawful manner across borders will tend to be wealthier professionals, or less skilled workers who are nonetheless financially able to migrate for work abroad.").
53. See, e.g., JARED DIAMOND, COLLAPSE: HOW SOCIETIES CHOOSE TO FAIL OR SUCCEED (2005) (recounting histories of civilizations destroyed by environmental degradation)
54. Jon Barnett & W. Neil Adger, Climate Change, Human Security and Violent Conflict, 26 POL. GEOGRAPHY 639 (2007) (arguing that both direct and indirect impacts of climate change on human security may heighten the risk of violent conflict)
55. Hans G. Brauch, Climate Change, Environmental Stress and Conflict, in CLIMATE CHANGE AND CONFLICT 9, 19 (Ger. Fed. Ministry for the Env't ed., 2002) (analyzing "the conflict dimension of societal and political implications of climate change")
56. Neville Brown, Climate, Ecology and International Security, 31 SURVIVAL: GLOBAL POL. & STRATEGY 519 (1989) (explaning that ecological instability across the planet poses a fundamental threat to the international world order).
57. Katrina M. Wyman, Responses to Climate Migration, 37 HARV. ENVTL. L. REV. (forthcoming 2013).
58. Sujatha Byravan & Sudhir Chella Rajan, Providing New Homes for Climate Change Exiles, 6 CLIMATE POL'Y 247, 249 (2006).
59. Id. at 248.
60. Id. at 249.
61. Sujatha Byravan & Sudhir Chella Rajan, The Ethical Implications of Sea-Level Rise Due to Climate Change, 24 ETHICS & INT'L AFF. 239, 242 (2010).
62. Id. at 253.
63. Id. at 256.
64. Cooper, Supra Note 25, at 486. The Convention Relating to the Status of Refugees entered into force on April 22, 1954. Convention Relating to the Status of Refugees, July 28, 1951, 19 U.S.T. 6223, 189 U.N.T.S. 137 [hereinafter Refugee Convention].
65. Cooper, Supra Note 25, at 484 n.19.
66. Refugee Convention, Supra Note 50, art. 33(1).
67. Docherty & Giannini, Supra Note 25, at 392.
68. Id. at 361.
69. Id. at 379.
70. David Hodgkinson & Lucy Young, 'In the Face of Looming Catastrophe': A Convention for Climate Change Displaced Persons, CCDPCONVENTION.COM, 11 (Jan. 20, 2012), http://www.ccdpconvention.com/documents/A%20Convention%20for%20Climate%2 0Change%20Displaced%20Persons%20(January%202012).pdf. This is the latest paper on Hodgkinson's proposed convention. A number of previous chapters, some of which are published, are available at his website: http://www.ccdpconvention.com.
71. Id.
72. See id. (proposing to define climate change displaced persons as "groups of people whose habitual homes have or will become temporarily or permanently uninhabitable as a consequence of a climate change event").
73. Id. at 17.
74. Id. at 18.
75. Biermann & Boas, Supra Note 25, at 81.
76. Principle 7 of the Rio Declaration establishes the principle of common but differentiated responsibilities: "States have common but differentiated responsibilities. The developed countries acknowledge the responsibility that they bear... in view of the pressures their societies place on the global environment and of the technologies and financial resources they command." United Nations Conference on Environment and Development, Rio de Janiero, Braz., June 3-14, 1992, Rio Declaration on Environment and Development, U.N. Doc. A/CONF.151/5/Rev.1 (June 13, 1992).
77. Biermann & Boas, Supra Note 25, at 81.
78. See id. at 65-66 (proposing a definition of "climate refugees").
79. Docherty & Giannini, Supra Note 25, at 386.
80. In situ is defined to mean "situated in the original, natural, or existing place or position." RANDOM HOUSE WEBSTER'S UNABRIDGED DICTIONARY 987 (2d ed. 2001). I use the term "in situ adaptation measures" to refer to measures taken within home countries to reduce the impacts of climate change.
81. See Docherty & Giannini, Supra Note 25, at 387 (describing how the authors' proposed fund would award aid for measures designed to reduce the impact of foreseeable refugee crises).
82. Id. at 384.
83. Hodgkinson & Young, Supra Note 56, at 13 (further describing Hodgkinson's proposed fund and noting that developed state parties would make mandatory financial contributions to it).
84. Id. at 13-14.
85. McAdam, Supra Note 27
86. Angela Williams, Turning the Tide: Recognizing Climate Change Refugees in International Law, 30 LAW & POL'Y 502 (2008).
87. McAdam, Supra Note 27, at 26 ("[I]nternational law retains sufficient flexibility to respond to particular scenarios through bilateral and regional agreements. In my view, this is where attention would best be focused initially.").
88. See Williams, Supra Note 71, at 518-19.
89. See id. at 519 (describing the UNFCCC's conception of adaptation strategies).
90. Id. at 522.
91. Table 1 sets out the proposals examined here and compares their provisions against each of the principles.
92. See Supra Note 66 (defining in situ adaptation measures).
93. See IPCC REPORT, Supra Note 7, at 57. tbl.4.1 (referring to these examples)
94. Australia is investing heavily in recycled water plants and desalination facilities to address water scarcity. Norimitsu Onishi, Arid Australia Sips Seawater, but the Drink May Be Costly, N.Y. TIMES, July 11, 2010, at A6.
95. Meanwhile, the Netherlands has undertaken an extensive (and expensive) infrastructure project to protect itself from widespread flooding and sea level rise. David Wolman, Turning the Tides, WIRED, Jan. 2009, at 108.
96. See infra notes 128 (describing the willingness of countries to devote foreign aid in the aftermath of disasters), 142 (describing the United Nations High Commissioner of Refugees's (UNHCR) resistance to expanded refugee obligations), and 148 (describing immigration limitations by the United States and other countries).
97. Home countries may not devote sufficient resources to the costs of external migration since the migrants provide them with no political capital and the costs of resettlement and assimilation will be shifted to the receiving country. Although it is nearly impossible to accurately predict relative costs, it seems uncontroversial to suggest that the combination of negotiating a novel, multilateral resettlement treaty and the resettlement and transition costs for affected individuals will exceed the cost of in situ adaptation projects, many of which are already funded through the UNFCCC.
98. See Docherty & Giannini, Supra Note 25, at 384 (listing "assistance... to support preventive measures" as one of three types of assistance the international community should provide).
99. United Nations Framework Convention on Climate Change, Conference of the Parties, Cancun, Mex., Nov. 29-Dec. 10, 2010, The Cancun Agreements: Outcome of the Work of the Ad Hoc Working Group on Long-Term Cooperative Action Under the Convention, U.N. Doc. FCCC/CP/2010/7/Add.1 (Mar. 15, 2011) [hereinafter Cancun Agreements].
100. See Funding for Adaptation, UNITED FRAMEWORK CONVENTION ON CLIMATE CHANGE, http://unfccc.int/adaptation/implementing_adaptation/adaptation_funding_ interface/items/4638.php (last visited Aug. 8, 2012) (listing the worldwide resources for adaptation funding in chart form).
101. See Cancun Agreements, Supra Note 83, 13, 20 (establishing the Adaptation Framework and Committee, respectively).
102. See United Nations Framework Convention on Climate Change, Durban, S. Afr., Nov. 28-Dec. 11, Decisions Adopted by the Conference of the Parties, 55, 8, FCCC/CP/ 2011/9/Add.1 (Mar. 15, 2012) [hereinafter Durban Decisions], available at http://unfccc.int/files/meetings/durban_nov_2011/decisions/application/p df/cop17_gcf.pdf (requesting the Board of the Green Climate Fund (GCF) to allocate funding between adaptation and mitigation activities).
103. See, e.g., Williams, Supra Note 71, at 519 (describing the commitment to adaptation in both the UNFCCC and the Kyoto Protocol and how regional initiatives could work within these established frameworks to address migration).
104. Biermann & Boas, Supra Note 25, at 61
105. see also Byravan & Rajan, Supra Note 44, at 249 ("No doubt... adaptation measures, e.g. improving coastal defences, will probably provide adequate security for many against climate change. But there will almost certainly remain one class of vulnerable populations for whom such actions cannot possibly suffice, simply because they have no place to go."(internal citations omitted)).
106. See David Hodgkinson et al., Copenhagen, Climate Change 'Refugees' and the Need for a Global Agreement, CCDPCONVENTION.COM, 9 (2009) ("Adaptive capacity is integral to displacement decisions"), available at http://www.ccdpconvention.com/documents/Copenhagen_And_CCDPs.pdf
107. see also McAdam, Supra Note 27, at 21 (noting the importance of local adaptation mechanisms).
108. Cooper, Supra Note 25, at 488.
109. See Supra Note 25 and accompanying text for a discussion of Myers's estimate.
110. See supra Part I.B.1 (explaining that displacement is primarily internal, rather than transnational).
111. See, e.g., Byravan & Rajan, Supra Note 47, at 241 (limiting coverage to climate exiles whose original state and its territory have ceased to exist)
112. Docherty & Giannini, Supra Note 25, at 349 n.2 (limiting coverage to those crossing international borders).
113. See Byravan & Rajan, Supra Note 44, at 249 ("Under our proposed framework, people living in areas that are likely to be obliterated or rendered uninhabitable would be provided the early option of migrating legally ").
114. See Richard B. Stewart, International Trade and Environment: Lessons from the Federal Experience, 49 WASH. & LEE L. REV. 1329, 1346-47 (1992) (discussing the "slow and cumbersome" process of negotiating multilateral environmental agreements and the issues of free riders).
115. See U.N. Charter art. 2 (basing the U.N. on "the principle of the sovereign equality of all its Members" such that "[n]othing contained in the present Charter shall authorize the United Nations to intervene in matters which are essentially within the domestic jurisdiction of any state").
116. The Guiding Principles on Internally Displaced Persons is a non-binding soft law instrument produced by the UNHCR and is treated as customary law. It is primarily a human rights document. See generally Representative of the U.N. Secretary-General, Guiding Principles on Internal Displacement, U.N. Doc. E/CN.4/1998/53/Add. 2 (Feb. 11, 1998).
117. Hodgkinson et al., Supra Note 89, at 12-13.
118. See Biermann & Boas, Supra Note 25, at 67 (restricting climate change refugees to victims of sea level rise, extreme weather events, drought, and water scarcity)
119. Byravan & Rajan, Supra Note 47, at 242 (limiting coverage to victims of sea level rise).
120. Docherty & Giannini, Supra Note 25, at 361.
121. Hodgkinson et al., Supra Note 89, at 8-9.
122. The traditional idea that scientists and scientific research is apolitical or objective has been undermined in recent years, particularly in the area of climate change. See generally David Demeritt, The Construction of Global Warming and the Politics of Science, 91 ANNALS ASS'N AM. GEOGRAPHERS 307 (2001).
123. See Docherty & Giannini, Supra Note 25, at 369 (describing why "the proposed definition limits itself to migration that is forced due to threats to a refugee's survival").
124. Biermann & Boas, Supra Note 25, at 65.
125. See Williams, Supra Note 71, at 522 (suggesting a scaled solution where scenarios at one end represent an acute form of refugee status and scenarios at the other end represent chronic displacement).
126. See Biermann & Boas, Supra Note 25, at 81 (proposing to cover full incremental costs for those affected by sea level rise and partial incremental costs for other impacts).
127. For further discussion, see infra notes 123-26 and accompanying text.
128. The decisions adopted in Durban included an agreement for all members of the UNFCCC, including developing countries, to commit to a legally binding regime by 2020 with no mention of common but differentiated responsibilities.
129. See Dan Bodansky, The Negotiations that Would Not Die, OPINIO JURIS (Dec. 11, 2011, 10:28 AM), http://opiniojuris.org/2011/12/11/the-negotiations-that-would-not-die (last visited Aug. 8, 2012) ("[T]he Durban Platform does not include any mention of the principle of 'common but differentiated responsibilities'").
130. Numerous commentators have noted that the Durban Conference may signal a departure from the previous allocations of responsibility and the entire framework of climate negotiations. See, e.g., Robert Stavins, The Platform Opens a Window: An Unambiguous Consequence of the Durban Climate Talks, ROBERT STAVINSBLOG.ORG (Jan. 1, 2012), www.robertstavinsblog.org/2012/01/01/the-platform-opens-a-window-an-unam biguous-consequence-of-the-durban-climate-talks (last visited Aug. 8, 2012) (noting that the elimination of differing responsibilities between developed and developing countries is a "dramatic departure from some seventeen years of U.N. hosted international negotiations on climate change")
131. Elliot Diringer, Durban-How Big a Deal?, CENTER FOR CLIMATE AND ENERGY SOLUTIONS (Dec. 11, 2011, 2:27 PM), www.c2es.org/blog/diringere/durban-how-big-a-deal (last visited Aug. 8, 2012) ("Only time will tell whether the Durban climate talks produced an historic breakthrough. It's possible.").
132. David Miller, Distributing Responsibilities, 9 J. POL. PHIL. 453, 454 (2001).
133. Miller's article is primarily aimed at individual bodies, rather than collective bodies such as states. However, he notes that his analysis focusing on distribution of responsibility applies to collective bodies as well. For an analysis of the complications of assigning responsibility to collective bodies, see generally David Miller, Holding Nations Responsible, 114 ETHICS 240 (2004).
134. When multiple parties could be at fault, Miller favors a connection theory, which fixes responsibility on someone with a connection to the victim. In the case of climate change, finding a "connected party"-one that is more connected to victims than any other-will be difficult. Some states (e.g., England) will be connected to many, but will lack the capacity to help all of them. Additionally, it is unlikely that every affected population has a connection to a country with the capacity to provide assistance. Since Miller's proposed solution does not provide a comprehensive solution, proposals to address displacement will have to address the shortcomings of the four principles.
135. Leif Wenar, Human Rights and Equality in the Work of David Miller, 11 CRITICAL REV. INT'L SOC. & POL. PHIL. 401, 405 (2008).
136. See Tally Kritzman-Amir, Not in My Backyard: On the Morality of Responsibility Sharing in Refugee Law, 34 BROOK. J. INT'L L. 355, 370-72 (2009) (discussing David Miller's theory of responsibility sharing).
137. In fact, it has already been applied in other immigration law contexts.
138. See id. at 357 (arguing that David Miller's work is applicable to refugee policy).
139. See Miller, Distributing Responsibilities, Supra Note 109, at 464 (listing the four principles).
140. Id. at 455.
141. Id. at 456.
142. See Supra Note 62 for a description of the principle of common but differentiated responsibilities.
143. See infra notes 143-48 and accompanying text for a discussion of this problem.
144. See Byravan & Rajan, Supra Note 47, at 253 (proposing that "historically large emitters... take responsibility for providing immigration rights [granted to individuals] based on their shares of cumulative greenhouse gas emissions").
145. Miller, Distributing Responsibilities, Supra Note 109, at 459.
146. Id. at 460.
147. Id. at 461.
148. Docherty & Giannini, Supra Note 25, at 379.
149. See Biermann & Boas, Supra Note 25, at 77 ("For developing countries, a protocol on climate refugees based on the principle of common but differentiated responsibilities... could become a major negotation goal")
150. Docherty & Giannini, Supra Note 25, at 386 (arguing that the "climate change refugee instrument should allocate international contributions according to states' common but differentiated responsibilities")
151. Hodgkinson et al., Supra Note 89, at 11 (noting that common but differentiated responsibilities should be the basis upon which developed state parties make contributions to a fund).
152. For a discussion of common but differentiated responsibilities, see Supra Note 62.
153. President George W. Bush rejected the transformation of the principle into legally binding obligations when he rejected the Kyoto Protocol and rescinded the signature of the U.S. representative. See Letter from President George W. Bush to Members of the Senate on the Kyoto Protocol on Climate Change (Mar. 13, 2001) ("I oppose the Kyoto Protocol because it exempts 80% of the world, including... China and India from compliance [T]he Kyoto Protocol is an unfair and ineffective means of addressing global climate change concerns.").
154. See Hodgkinson & Young, Supra Note 56, at 14 ("We recognise, however, various problems with the principle and, in determining the hard issue of the level of specific state party contributions to the Fund, it may be... largely a matter for negotiation.").
155. See Bodansky, Supra Note 108 (describing the Durban Agreement's shift away from common but differentiated responsibilities).
156. Id.
157. In the wake of recent natural disasters, world leaders have expressed strong ties of community and solidarity with affected nations and have offered financial and other support. See, e.g., Press Release, Hillary Rodham Clinton, Secretary of State, Earthquake in Christchurch (Feb. 22, 2011), http://www.state.gov/secretary/rm/2011/02/156913.htm ("The United States stands ready to provide assistance to the government of New Zealand and to the brave people of Christchurch. Our long history of friendship and mutual support in times of need is an example of our enduring bond.")
158. President Barack Obama, Remarks on Japan (Mar. 17, 2011), available at http://www.politicsdaily.com/2011/03/17/transcript-of-president-obamas-m arch-17-remarks-on-japan-crisis/ (last visited Aug. 8, 2012) ("Across the Pacific... [the Japanese] will find a hand of support extended from the United States After all, we have an alliance that was forged more than half a century ago [We] share ties of family, ties of culture, and ties of commerce.")
159. Press Release, Dr. Manmohan Singh, Prime Minister of India, PM Condoles Loss of Life in Japan Earthquake, Offers Help (Mar. 11, 2011), http://pmindia.nic.in/press-details.php?nodeid=1205 ("India stands in full solidarity with the Government and people of Japan at this hour. We are ready to help Japan in any way required ").
160. McAdam, Supra Note 27, at 22.
161. Docherty & Giannini's is the only proposal examined in this Note that provides for direct participation. See Docherty & Giannini, Supra Note 25, at 388, 398-400 (discussing the importance of involving civil society and affected communities in both resettlement decisions and the negotiation phase of the treaty).
162. UNITED NATIONS HIGH COMM'R FOR REFUGEES, ENVIRONMENTAL GUIDELINES (2005), available at http://www.unhcr.org/refworld/pdfid/4a54bbd10.pdf.
163. See Biermann & Boas, Supra Note 25, at 77 (proposing the establishment of a new binding protocol under the UNFCCC).
164. UNITED NATIONS FRAMEWORK CONVENTION ON CLIMATE CHANGE SECRETARIAT, A GUIDE TO CLIMATE CHANGE CONVENTION PROCESS 33 (2d ed. 2002), available at http://unfccc.int/resource/process/guideprocess-p.pdf ("As there is no agreed voting rule, almost all decisions must be adopted by consensus. Consensus is usually interpreted to mean that there is no stated objection to a decision.").
165. Kyoto Protocol to the United Nations Framework Convention on Climate Change, Dec. 11, 1997, 37 I.L.M. 22 (entered into force Feb. 16, 2005).
166. The United States, the largest emitter of greenhouse gases at the time, did not ratify the Kyoto Protocol, causing the protocol to lose credibility. See Supra Note 124.
167. Docherty & Giannini, Supra Note 25, at 358.
168. Id. at 350.
169. See id. at 388-91 (proposing the creation of a new Global Fund, a scientific body that would make determinations related to the definition and division of financial responsibility, and a coordinating agency to oversee human rights protection)
170. see also A Hodgkinson et al., Supra Note 89, at 10-11 (suggesting a Climate Change Displacement Organization, with four core bodies: assembly, council, fund and environment, and science organization).
171. Biermann & Boas, Supra Note 25, at 80.
172. For a discussion of these funds, see infra note 160 and accompanying text.
173. Docherty & Giannini, Supra Note 25, at 388-89.
174. See Williams, Supra Note 71, at 520-22 (suggesting what a regional approach to climate change displacement might look like).
175. For example, Cooper's proposal to include climate displacement in the Refugee Convention is unrealistic due to resistance from both the human rights community and state parties who do not want to take on the additional burdens of this form of resettlement. Cooper is one of the only scholars who has attempted to fit persons displaced by climate change into a refugee framework. See generally Cooper, Supra Note 25.
176. In her note, Cooper acknowledges the resistance of the UNHCR and other groups to expanding the definition of refugee and thus the unlikeliness that her first proposal would be adopted.
177. Id. at 499-501.
178. Compare Letter from President George W. Bush, Supra Note 124 (rejecting the Kyoto Protocol's allocation of burdens)
179. with Press Release, Earthquake in Christchurch, Supra Note 128 (pronouncing the willingness of the United States to contribute foreign aid in the wake of a natural disaster)
180. Obama, Remarks on Japan, Supra Note 128 (announcing the United States's commitment to aiding Japan in the wake of its humanitarian disaster).
181. See generally Benjamin I. Page & Robert Y. Shapiro, Effects of Public Opinion on Policy, 77 AM. POL. SCI. REV. 175, 189 (1983) (finding from an empirical study that "[w]hen Americans' policy preferences shift, it is likely that congruent changes in policy will follow").
182. For a discussion of the trend away from legally binding instruments and an exploration of other possibilities, see generally Robert O. Keohane & David G. Victor, The Regime Complex for Climate Change, 9 PERSP. ON POL. 5 (2011).
183. See Daniel Bodansky, What's So Bad About Unilateral Action To Protect the Environment?, 11 EUR. J. INT'L L. 339, 344 (2000) (noting that creating a multilateral environmental agreement can be more difficult than managing one).
184. Docherty & Giannini, Supra Note 25, at 400.
185. A number of state legislatures in the United States, most notoriously Arizona, have passed laws aimed at reducing immigration. See Kevin R. Johnson, Immigration and Civil Rights: State and Local Efforts To Regulate Immigration, 46 GA. L. REV. 609 (2012) (discussing the current legal challenges to the constitutionality of numerous state and local immigration measures focusing on Arizona).
186. The federal government has also limited immigration by prohibiting non-U.S. citizens from working for the federal government. See Consolidated Appropriations Act of 2010, Pub. L. No. 111-117, 123 Stat. 3034 (2009) (prohibiting use of appropriated funds to pay noncitizens without permanent resident status, thus preventing the federal government from hiring noncitizens except in special cases).
187. New Zealand and Australia have also been reluctant to allow unlimited numbers of climate migrants into their countries. See MacFarquhar, Supra Note 4 (describing political debates and limits both Australia and New Zealand are putting on Pacific Island immigration).
188. See generally Geoffrey Hayes, Maximizing Development Benefits and Minimizing Negative Impact in the Pacific Islands Sub-Region 16-24 (Workshop on Strengthening National Capacities To Deal with International Migration, Apr. 22-23, 2010), http://test.actionbias.com/sites/test/files/Maximizing%20Development%20B enefits%20and%20Minimizing%20Negative%20Impact%20in%20Pacific%20Islands% 20Subregion.pdf (describing migration patterns from the Pacific Islands to these receiving countries).
189. See DEVELOPMENT REPORT, Supra Note 22 and accompanying text (noting that many migrants will want to go somewhere similar to their homelands in terms of available occupations and lifestyle).
190. Williams, Supra Note 71, at 518.
191. See Supra Note 86 and accompanying text (describing the focus on adaptation at the Durban Climate Change Conference)
192. see also Durban Decisions, Supra Note 86, at 80 ("Acknowledging that national adaptation planning can enable all... country Parties to assess their vulnerabilities, to mainstream climate change risks and to address adaptation ....").
193. Under the Nairobi Work Programme, the COP asked the SBSTA to organize two technical workshops, one on water, climate change impacts, and adaptation, and another on ecosystem based approaches for adaptation. United Nations Framework Convention on Climate Change, Durban, S. Afr., Nov. 28-Dec. 11, Draft Decision, Nairobi Work Programme on Impacts, Vulnerability and Adaptation to Climate Change, 1, http://unfccc.int/files/meetings/durban_nov_2011/decisions/application/p df/cop17_nairobi.pdf.
194. Durban Decisions, Supra Note 86, at 58, 2 ("[The Fund will] provid[e] support to developing countries... to adapt to the impacts of climate change, taking into account the needs of those developing countries particularly vulnerable to the adverse effects of climate change.").
195. See, e.g., Biermann & Boas, Supra Note 25, at 80 (questioning whether specialized environmental funds are "the most appropriate mechanisms for the specific funding problem of climate refuees")
196. Docherty & Giannini, Supra Note 25, at 359 ("[The UNFCCC's] adaptation efforts focus primarily on prevention and mitigation of climate change itself, rather than assistance for those who cross borders to flee climate change's effects.").
197. For a discussion of how the new adaptation window for the GCF could be structured to allow for adaptation, see Wyman, Supra Note 43, at 9-14.
198. Biermann & Boas, Supra Note 25, at 81.
199. Wyman, Supra Note 43, at 39-40.
200. See Climate-Change Summit: A Deal in Durban, THE ECONOMIST (Dec. 11, 2011), http://www.economist.com/blogs/newsbook/2011/12/climate-change-0 ("[T]here was no agreement-and little discussion-on the important question of where the money will be found.").
201. Biermann & Boas, Supra Note 25, at 78.
202. Jessica M. Ayers & Saleelmul Huq, Supporting Adaptation to Climate Change: What Role for Official Development Assistance?, 27 DEV. POL'Y REV. 675, 677-78 (identifying the four funds: the Least Developed Countries Fund, which addresses the National Adaptation Plans; the Special Climate Change Fund, which also addresses mitigation; the Global Environmental Facility Trust Fund's Strategic Priority for Adaptation; and the Kyoto Protocol's Adaptation Fund).
203. Id. at 678-79 (describing problems developing countries face from existing funds).
204. See Biermann & Boas, Supra Note 25, at 80 ("[T]he level of funding is not enough even for the current purposes of the [four] funds.").
205. Durban Decisions, Supra Note 86, 92, at 19 ("[T]he Adaptation Committee shall be the overall advisory body to the Conference of the Parties on adaptation to the adverse effects of climate change")
206. Id. 99, at 19 ("Requests the Adaptation Committee to engage and develop linkage through the Conference of the Parties with all adaptationrelated work programmes, bodies, and institutions under the Convention").
207. For a discussion of the requirement that all COP decisions be made by consensus, see Supra Note 133. It is still unclear whether the Adaptation Committee could make such a decision without agreement from the COP
208. however, one of its functions is to provide "technical support and guidance to the Parties... with a view to facilitating the implementation of adaptation activities" Durban Decisions, Supra Note 86, 93(a), at 19.
209. At the very least, in its role as "the overall advisory body to the Conference of the Parties on adaptation," the Adaptation Committee could more easily secure a recommendation to include migration as an approved adaptation strategy to the COP.
210. Id. 92, at 19. That said, given the consensus rule and other reasons outlined under Principle 5 in Part III, it seems unlikely the COP itself would approve such a move.
211. See Wyman, Supra Note 43, at 45 (discussing the temporary protection status provided by the United States and certain European countries).