Szymon Kucharski (S.K.J.), PhD candidate, Doctoral School for Social Sciences, Jagiellonian University (Kraków)

Climate migrations, or climate mobilities, have been the subject of legal research for some time already. Many scholars have proposed numerous ways to aid persons in dire situations of that phenomenon including  international conventions, protocols to the United Nations Framework Convention on Climate Change (UNFCCC), or a mix of UNFCCC’s Coordinating Facility with United Nations Security Council’s resolutions, to name but a few. None of those solutions, however, truly resembles Nassim Nicholas Taleb’s antifragile approach. “Antifragility” in Taleb’s philosophy is a quality truly opposite to fragility; unlike durable objects, which remain the same under changing circumstances, antifragile ones transform under pressure, to become better, more equipped to new realities. As already discussed on this blog, the European Union (EU) has recently debated whether its new Qualification Directive could regulate this novel phenomenon. This blogpost asks the ambitious question of whether the EU could itself regulate climate migrations by concluding international agreements with climate vulnerable states, and therefore accommodate climate migrations in a pre-emptive, differentiated manner. Arguably, while this solution carries certain hindrances, it has the potential to excel.

International cooperation and EU-law 

Granted, the EU is seldom credited with an ambitious action concerning migration politics. Rather, it is criticized for  some  problematic experiences with this topic, such as the creation of “Fortress Europe,” or the “brain drain.” Nonetheless, the EU has certain qualities, which makes it a worthy choice as a “policy venue”. De Witte and Thies, for instance, point out the prominent level of the Union’s legislative acts, its openness to technocratic arguments, and existing executive mechanisms, as the reasons for choosing the EU for the realisation of the political change. In short, the EU combines the interest in science-based solutions, typical of international organizations, with actual powers that ensure the implementation of said solutions. And, as such, promises more than any other international entity, at least theoretically. 

The choice of bilateral treaties with states directly experiencing climate change simply can be explained in three ways. Firstly, an inherent quality of an international agreement is the legal equality of its parties (see preamble to the Vienna Convention on the Law of Treaties, and the rule of sovereign equality in article 2(1) of the UN Charter). Therefore, the risks of the EU being accused of exploitative politics over less affluent states suffering from climate change are minimized, as they have the same legal position, and their agreement is a sine qua non condition for said treaty to enter into force. Understandably, those risks are only minimized, not eliminated, as legal equality does not transcribe automatically into political or negotiating position. Therefore, additional caution would be still required whilst concluding those proposed agreements. Secondly, the EU framework is well equipped with robust treatymaking powers, especially when compared to the regions adjacent to Europe. Thirdly, similar attempts have already been made – with Australia concluding the Falepili Union Treaty with Tuvalu on climate migration regulation, among other subjects.

Under EU law, such agreements would be allowed by articles 209-211 of the Treaty on the Functioning of the European Union, alone or in conjunction with article 78. Most likely, they would be concluded as facultatively mixed treaties. In essence, because the competences of the EU from the above articles are shared with the Member States, both the EU and the Member States have the right to be separately represented as a party in an international treaty. An agreement may be concluded by a third country on one side, and the EU and the 27 Member States, on the other. While this has its disadvantages (mainly a risk of a one-sided veto by a single Member State), it could be also a pathway for additional legitimation of EU’s decision in the field of migration policy. 

Methods of aiding climate migrants – “three-pronged approach” 

If such treaties between the EU and climate-vulnerable states were to be created, what would their content be? Arguably, to comply with the antifragile approach, this discussion must be conducted at a certain level of abstraction, so that the future implementation(s) of proposed treaties could shapeshift into a variety of different, yet similar, instruments, tailored to the needs of populations experiencing global warming and the interrelated migration firsthand. This section presents a variety of substantive provisions that the proposed agreement could include, and it should be up to the parties to determine which ones would end up in the final text. 

To do so, this blogpost argues for a regulation of climate migrations in a so-called “three-pronged approach”. The first prong is the most obvious: the promotion of adaptation in the home areas of potential climate migrants, which remains one of the only clear guidelines that international law gives on that topic (e.g. article 14(f) of the decision 1/CP.16 of the Cancun COP Agreement, objective 5 of the Global Compact for Migration, recommendations of the Task Force on Development at p. 40-43). People affected by the manifestations of global warming often prefer to remain in their homes as long as it is possible. Moreover, their situation might often start to deteriorate not because human limits of adaptation were met, but because funds, political will, or other “soft” factors got depleted. Finally, as the Intergovernmental Panel on Climate Change acknowledged in its latest report, Local Knowledge and Indigenous Knowledge [p.148] are valuable in building resilience to climate change. 

Another solution should consist of international relocation of most vulnerable communities, suffering already from severe impacts of climate change. The Falepili Union Treaty included that element in its Article 3. The status of a person eligible for relocation should be decided in cooperation between the EU, and the climate-vulnerable third state. This way, it is not a European state finding a potential violation in its counterpart combating global warming, but both parties agreeing that particular people are in a predicament dire enough to justify intercontinental relocation. 

Usually, legal scholars stayed within those two main prongs, debating whether to focus on relocations, or adaptation in situ. Nonetheless, social scientists have repeatedly stated that most climate-related migrations happen internally on short distances. In the framework proposed here, the last potential solution would be the promotion of and adaptation to – in an “antifragile” manner – those internal migrations. In essence, after the hard limits to local adaptation are met, but before the need to move internationally appears, there are still plenty of solutions which the EU could fund and help with managing, such as governmentally mandated relocations and “green grabbing”. Innovative and more community-oriented ideas might also be generated in the future, so the wording of this provision must be intentionally open, so that it could evolve with the progressing state of knowledge. 

Conclusion 

The idea of the EU regulating the matter of climate migrations seems promising. The EU remains a preferred venue choice for regulating this matter, owing to its openness towards technical resources of interest groups, and its great image receptivity. Bilateral agreements between the EU and climate vulnerable third countries inherently possess a certain degree of respect, belief in solidarity, and readiness to consult solutions to climate migrations (or their possibilities of happening) with local populations (or their representatives). The proposed “three-pronged approach” offers a variety of options to regulate climate-related movements and, in certain cases, allow most vulnerable populations to relocate to safety with dignity. 

I wanted express my greatest gratitude to Dr Andrea Pelliconi, Dr Sara Arapiles, and Dr Pratik Purswani, for their insight and aid while preparing this paper. All errors are my own.