ANALYSIS Abiy Ashenafi 30 April 2022
Because of the impacts of climate change, millions of people are being uprooted from their homes and countries. It is estimated that, by 2050, ‘climate change related events’ will cause the forced migration of, at minimum, 1.2 billion people.[1] This clearly calls for determined action to mitigate human-caused climate change and to prevent the resultant forced migration of individuals and communities in vulnerable situations.
It is important to underscore that, while preventing the root causes of climate change-induced displacement is of paramount significance, such efforts should not obscure the indispensability of providing protection to persons that have already been displaced. One of the crucial steps to protecting them is by putting in place a protective legal framework.
At the global level, the United Nations Convention relating to the Status of Refugees (UN Refugee Convention) is the principal treaty dealing with refugees. However, its definition of the term ‘refugee’ is narrow and does not recognise climate change related events as valid grounds for refugee status claims unless the requisite elements of its definition of ‘refugee’ are met. For this reason, scholars, civil society organisations and various stakeholders have called for the adoption of a new protocol to the UN Refugee Convention. Conversely, it has also been argued that such a protocol is not needed, at least now, because such efforts could divert attention from the prevention of climate change – which solves the underlying problem that causes displacement – to adopting a treaty, which is not a solution to the underlying problem.[2] McAdam recommends that, instead of a global treaty, efforts for the adoption of a treaty should be pursued at the regional level.[3]
At the African regional level, as far as I am aware, no recommendation has been made for the adoption of a treaty to protect ‘climate refugees.’ But calls for the clarification of the OAU Convention Governing the Specific Aspects of Refugee Problems in Africa (OAU Refugee Convention) have been made.[4] Yet, there is need to state specific legal rationales justifying the demand for the clarification of the Convention’s definition in the context of climate change. This piece attempts to interpret the phrase ‘events seriously disturbing public order’ under the OAU Refugee Convention’s definition with a view to making it relevant to address the problem that refugees displaced by the impacts of climate change might face.
The African regional legal framework on climate change-induced displacement
There are two African regional treaties that deal with forced displacement. The first is the OAU Refugee Convention, and the second is the African Union Convention for the Protection and Assistance of Internally Displaced Persons (Kampala Convention).
The Kampala Convention recognises and protects persons displaced due to the adverse effects of climate change. In its definition of internally displaced persons (IDPs), where it mentions ‘natural or human-made disasters,’[5] it comes close to explicitly recognising these persons.[6] More importantly, because the list of causes of displacement in the Convention’s definition of the term ‘IDPs’ is not exhaustive, it can certainly be said that the Convention applies to IDPs displaced due to climate change. The fact that the Convention explicitly mentions climate change in its substantive provisions, where it lays down obligations on state parties and sets out the rights of IDPs, further attests to the applicability of the Convention to IDPs displaced due to climate change.[7]
In contrast, the OAU Refugee Convention does not explicitly mention climate change either in its definition or in its substantive provisions. However, the expanded definition of the Convention, which is one of its remarkable features, contains a general term that can be of use to protect persons displaced across borders due to the impacts of climate change provided that the impacts cause, or constitute, a serious disturbance of public order.[8] More precisely, the phrase ‘events seriously disturbing public order’ in the Convention’s definition is all-encompassing in the sense that it does not make distinction between ‘events’ that cause forced displacement, as long as they ‘seriously disturb public order’.[9]
Because the focus of this phrase is on the effect of the events – whether the events seriously disturb public order –, it is crucial to clarify the meaning of the operative word, i.e., ‘public order’. Nevertheless, there is no consensus on the precise scope of the term ‘public order’. The narrow interpretation, put forward by Wood, regards this term merely as ‘law and order.’[10] Edwards’ suggestion that the term encompasses ‘administrative, social, political and moral order’[11] lays the ground for a broader interpretation – although she seems to favour a narrow interpretation. Broader interpretations include Mkwananzi’s sociological approach.[12] Sharpe suggests that the rationale for the incorporation of the term may have been for its ‘ability to function as a “basket clause” capturing a generic set of refugee producing situations’.[13]
All the same, it is evident that persons displaced due to the impact of climate change are eligible for protection if the impact of climate change seriously disturbs public order – even in the narrow sense of the term.
Despite favouring a narrow interpretation of this term, Wood mentions that the French version ‘ordre public’ has a meaning broader than the English version (law and order), and encompasses ‘all those universally accepted fundamental principles, consistent with respect for human rights, on which a democratic society is based’.[14] One may thus argue that ordre public refers to both horizontal relations among people and ‘vertical’ relationship between a state and its people. An event that leads to a serious disturbance of the vertical order, for example, the inability or refusal of the state to provide emergency assistance to disaster affected people may constitute a disturbance of public order.
Since the object and purpose of the OAU Refugee Convention, as outlined in its preamble, is ‘through an essentially humanitarian approach’ to ‘[find] ways and means of alleviating [refugees’] misery and suffering’,[15] a narrow interpretation that excludes ‘climate refugees’ from legal protection would be contrary to the object and purpose of the Convention.
In practice as well, applying the narrow interpretation of the term ‘public order’ would lead to problems because a significant portion of ‘climate refugees’ will not be recognised as refugees under the OAU Refugee Convention’s expanded definition. It is important to note that the impacts of climate change, despite their severity, do not necessarily lead to the disturbance of law and order. For example, the crime rate in an area hit by a climate change-fuelled disaster may remain the same or may even decrease. The government of the country hit by a climate change-induced disaster may still exercise effective control of its country but may be unwilling or unable to carry out many of its critical duties – for example, the provision of emergency assistance in the form of emergency shelter, food, and other relief items to affected communities. Interpreting the term ‘public order’ in its narrow sense would render the OAU Refugee Convention’s expanded definition inapplicable to persons compelled to flee their countries in the above scenarios. Therefore, from a practical point of view too, the term ‘public order’ needs to be interpreted broadly so that persons at risk of harm will not be arbitrarily denied of protection. This is what may require further interpretation by African regional quasi-judicial and judicial bodies and progressive domestic courts.
Conclusion
The answer to the question posed in the title of this piece depends on how the OAU Refugee Convention is interpreted. The phrase ‘events seriously disturbing public order’ under the OAU Refugee Convention’s definition of the term ‘refugee’ is amenable to progressive interpretation. Thus, because it is more feasible to interpret this phrase in a manner that recognises ‘climate refugees’, it appears that advocacy for the adoption of a new treaty should not be pursued. Ideally, it would be helpful if the political organs of the African Union express their commitment through a declaration. Amending the Convention can be an option, given the fact that the Convention’s amendment procedure is not cumbersome. But above all, interpreting the Convention in line with the object and purpose should be preferred.
Abiy Ashenafi is the Acting Manager of the Migration Unit at the Centre for Human Rights at the University of Pretoria. The Centre for Human Rights, University of Pretoria, is an internationally recognised university-based institution combining academic excellence and effective activism to advance human rights, particularly in Africa. It aims to contribute to advancing human rights, through education, research and advocacy.
[1] World Economic Forum ‘Climate refugees – the world’s forgotten victims’ available at Climate refugees – the world’s forgotten victims | World Economic Forum (weforum.org) (18 June 2021) accessed on 26 April 2022.
[2] J McAdam ‘Swimming against the tide: Why a climate change displacement treaty is not the answer’ (2011) 23 International Journal of Refugee Law 5-6.
[3] McAdam (as above) 26.
[4] M Addaney et al ‘The protection of climate refugees under the African human rights system: Proposing a value driven approach’ (2019) 3 African Human Rights Yearbook 251.
[5] Kampala Convention, article 1 (k).
[6] Natural or man-made disasters are not synonyms of climate change, but they have correlation with the impacts of climate change.
[7] Kampala Convention, article 5 (4).
[8] The Convention’s expanded definition states that ‘[t]he term “refugee” shall also apply to every person who, owing to external aggression, occupation, foreign domination or events seriously disturbing public order in either part or the whole of his country …is compelled to leave his place of habitual residence in order to seek refuge in another place outside his country …’ (emphasis added). See article 1 (2) of the OAU Refugee Convention.
[9] Rwelamira, for example, states that ‘[i]n the African context, the expanded definition was more than timely, providing the necessary flexibility to include even victims of ecological changes such as famine and drought, which remain among the most challenging situations on the continent’. See MRK Rwelamira ‘Two decades of the 1969 OAU Convention Governing the Specific Aspects of Refugee Problems in Africa’ (1989) 1 International Journal of Refugee Law 558. See also Rankin, who asserts that the term ‘events seriously disturbing public order’ is a ‘basket clause capturing a generic set of refugee-producing situation’. However, Rankin contends that this term refers to man-made events and not to natural events. See B Rankin 16, 20.
[10] T Wood ‘In search of the African refugee: A principled interpretation of Africa’s expanded refugee definition’ (2018) 178, 193 (Unpublished PhD thesis, University of New South Wales).
[11] A Edwards ‘Refugee status determination in Africa’ (2006) 14 African Journal of International and Comparative Law 218-220.
[12] G Mkwananzi ‘Conceptualising poverty as a ground for refugee status under the 1969 OAU Refugee Convention’ (2018) 22 – 24 (Unpublished LLM dissertation, Centre for Human Rights, University of Pretoria).
[13] M Sharpe ‘The regional law of refugee protection in Africa (2018) 49 cited in S Weerasinghe ‘Refugee law in a time of climate change, disaster and conflict’ (2020) UNHCR, Legal and Protection Policy Research Series 22.
[14] M Nowak UN Covenant on Civil and Political Rights: CCPR Commentary (1993) 212 cited in Wood (n 10 above) 193.
[15] OAU Convention preamble, paragraphs 2 & 3.
