A law that sides with climate displaced people

Though current legal frameworks are unprepared to protect the interests of those displaced by climate change-related events, project benefit-sharing could help countries manage these risks, providing they select the right projects in the first place, Susanna Price writes.

The Intergovernmental Panel on Climate Change’s (IPCC) 2018 report starkly differentiates impacts arising from global warming of 1.5 degrees Celsius from that of 2 degrees. Even if political will holds for the former, global warming could trigger tipping points that rapidly increase climate change displacement risks.

People are already moving on a forced-voluntary continuum due to slow and rapid onsets of climate change – both as internal displacees and cross-border refugees.

Mobility triggers are interrelated and complex to disentangle. The IPCC anticipates water stress and food insecurity, as well as severe damage to terrestrial and marine ecosystems.

Such impacts will only exacerbate the IPCC’s estimate that 2 degrees of warming will directly force an extra 10 million people to move through sea-level rise. Elsewhere, estimates of the scale of likely displacement vary wildly.

Though globally-endorsed Sustainable Development Goals (SDGs) set disaster risk reduction measures and emissions targets for specific sectors – the transport and industry sectors, for example – they do not directly address climate change-induced displacement.

The extreme uncertainty around the events to come will affect responses. Those with fewer skills and resources may find themselves trapped and unable to migrate. Others may move or be moved unnecessarily if adaptive measures exceed expectations.

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Some areas may become more habitable, while others may see widespread catastrophic displacement. People may be moved, ostensibly to pre-empt climate change, but actually for political reasons.

But what happens to trapped and forcibly moved populations? As of yet, there are no legally binding agreements – neither on a national nor an international level – that address the losses they experience or the efforts necessary to rebuild their lives and livelihoods.

Past experiences of those displaced by development projects – and their subsequent resettlement – may provide some insight into how things could pan out, though they guarantee no solutions.

What’s more, national legal and administrative frameworks move slowly to address development displacement risks to people. Whilst in Asia-Pacific, India, Indonesia, Timor Leste, Laos, and others have approved often brilliant new expropriation legislation, its implementation has been uneven.

Several Pacific countries are farsightedly and holistically introducing policies addressing displacement from climate change, disasters, and development, but these policies may risk exonerating those directly responsible for forced evictions.

More generally, gaps abound in recognising and compensating losses in income, access to resources and common property, and opportunity, as well as transfer costs and emotional distress – especially for those lacking a legal land title.

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Having recognised those gaps, many lenders financing development projects – like the World Bank – forged international resettlement standards requiring that displaced people achieve enhanced – or at least restored – wellbeing and livelihoods. These policies supplement national legal frameworks with project-specific, negotiated resettlement plans.

The 40-year old World Bank-initiated involuntary resettlement policy, adopted by successive multilateral development banks and some private developers, has successfully resettled some of these displaced groups.

But there is no guarantee that, overall, resettlement will occur without human rights violations, impoverishment, and marginalisation.

Evaluations made by lenders show that, despite legally covenanted resettlement plans, many development projects drop back to country standards during implementation. Further, some projects neglect plans aimed at securing livelihoods as well.

With this being the reality for development-induced displacees, it’s almost impossible to say that current resettlement policy will successfully assist those displaced by climate events. What’s worse, ill-thought-out development projects may exacerbate climate change risks – some may even needlessly intensify displacement.

For example, in choosing between renewable energy alternatives, resettlement-intensive hydropower generated from large dams could be replaced with decentralised, small-scale in-stream or off-river turbo-hydro energy.

The latter neither displaces people, nor disrupts aquatic ecology, nor damages downstream water use. Alternatively, decentralised, low-displacing renewable sources such as solar, wind, and tidal power are proving increasingly cost-effective and secure by comparison to large dams.

On the other hand, distributing the gains from carefully-selected development projects to displacees may provide a solution. Otherwise known as ‘benefit-sharing’, this strategy focuses mainly on economic add-ons, but could be expanded to encompass wellbeing and quality of life.

The benefits must be additional to compensation and may be monetary – revenue-sharing, leasing land access, taxes, trust funds, for example – or non-monetary – which includes providing information, improved infrastructure, social services, and employment opportunities.

More on this: Are there climate change refugees in the Pacific?

This strategy offers only qualified hope for the displaced. Legally-mandated benefit-sharing is currently limited to a few countries mainly for hydropower reservoir displacees.

Currently, advantages may go to area-wide government priorities instead of to displacees directly. International treaties setting rights to free, prior informed consent for indigenous people before their resettlement may be ignored. Moreover, project developers may offer to share benefits but, in negotiating, the displaced rarely have access to legal advice or third-party monitoring.

As a result, they are exposed to asymmetries of information and power compared to their displacers. On top of this, developers don’t necessarily honour agreements they’d already negotiated with communities, and governments may not back them in disputes either.

Applying this to the issue of climate displacees, climate change may also radically change planning assumptions, damage infrastructure or otherwise undermine project viability and sustainability. There may be no benefits to share.

Attributing responsibility for anthropometric climate change-induced displacement is far more uncertain than for project-induced displacement – nonetheless, breaching SDG emissions targets should arguably be fined.

Selecting the right projects is vital. Independent social and environmental impact assessments are essential. Transparent and informed public deliberations must scrutinise development projects, weigh full costs against benefits, and offer meaningful consent opportunities to those potentially displaced. This applies especially those projects which displace people and those projects affecting or affected by climate change.

International and national powers must institute a strong policy and legal response – one that proactively respects the human rights of the displaced. Without such efforts, displacees face a future wrought with nothing but uncertainty.