A. The Limits of Global Institutions

Several international organizations have expressed concerns about environmental migration and shown their readiness to take action to combat it. Conceived as an informal platform for co-ordination, the Climate Change, Environment, and Migration Alliance put together international organizations (the International Organization for Migration, the United Nations Environment Programme (UNEP), and the United Nations Office for the Coordination of Humanitarian Affairs (OCHA)), research centres (the United Nations University Institute for Environment and Human Security (UNU-EHS) and the University of Sussex), and non-governmental organizations (NGOs) (the Munich Re Foundation, the Stockholm Environment Institute, and the WWF).Footnote ⁴⁴

For international organizations, migration generally appears as a last resort for coping with a degraded environment, and very rarely as an early preventive adaptation strategy. IOM has made significant efforts in terms of generating awareness. In particular, it published a study in 2010 to support migration as an adaptation to climate change.Footnote ⁴⁵ Yet IOM did not include many programmes that really promoted migration in a compendium of its activities on migration, climate change, and the environment published in 2009.Footnote ⁴⁶ Instead, its actions generally seem to aim to prevent or avoid migration, rather than facilitate it. Thus, numerous projects of the IOM in Asia and the Pacific aim at building resilience to climate changeFootnote ⁴⁷ and developing disaster risk reduction, management and preparedness,Footnote ⁴⁸ rehabilitation,Footnote ⁴⁹ and “human security and stabilization”.Footnote ⁵⁰ “Adaptation”, in this context, is sometimes conceived as an antonym of “migration”, the latter being considered at best as a solution of last resort—a necessary ill. On the other hand, IOM has often put forward the Colombian Temporary and Circular Labour Migration (TCLM) as an example of its actions, although this example is not representative of other scenarios. The TCLM allowed a few hundred individuals to work temporarily and receive training in Spain to “bolster their capacity as potential agents of development”.Footnote ⁵¹ The underlying idea seemed to be that controlled migration, through remittances and development, would avoid larger or longer displacements, hence reinforcing the conception of sedentariness as the norm. In only one country (Bangladesh), a programme conducted by IOM aimed at “[a]dvocating for a policy framework”.Footnote ⁵²

In addition, both the United Nations High Commissioner for Refugees (UNHCR) and IOM carried out more conventional humanitarian operations to rescue individuals displaced by natural disasters.Footnote ⁵³ For the UNHCR, these actions were taken on pragmatic grounds, despite the fact that it has no formal mandate with respect to people affected by natural disasters; the commissioner intervened simply because of its capacity to act.Footnote ⁵⁴ Thus, at the time of the 2004 tsunami, UNHCR was already present in Sri Lanka as part of its mandate on conflict-induced displacement, while IOM was carrying out missions in Myanmar and Aceh; therefore, both organizations could quickly respond to the disaster in those areas.Footnote ⁵⁵

The climate change negotiations were no more successful than migration organizations in promoting normative frameworks on climate migration. For the first time, in 2010, state representatives at the sixteenth session of the Conference of the Parties to the United Nations Framework Convention on Climate Change (UNFCCC) in Cancun called for “[m]easures to enhance understanding, coordination and cooperation with regard to climate change induced displacement, migration and planned relocation, where appropriate, at the national, regional and international levels”.Footnote ⁵⁶ With such vague language and without further clarification, the eligibility of migration or resettlement programmes to adaptation funding remains uncertain.

Although no single organization is in charge of regulating climate migration, existing institutions with relevant know-how, such as IOM and UNHCR, may come to play a role as long as there is some political will to support them. Yet the practice of the international community of states, through IOM, UNHCR, and UNFCCC, reflects a reluctance to allow environmental migration. International action has been limited to either purely humanitarian programmes, or programmes aiming at avoiding migration, excluding actions aimed at ensuring the dignity of the potential migrant. The greatest hurdle to global regulation of environmental migration does not lie in institutional flaws, which could be corrected if there was political will, but precisely in the global hostility towards migration in general. In the dominant paradigm of migration control, “migration” and “law” just do not go together, and climate change has not (yet) fundamentally changed this notion.

B. The Deadlock of Universal Standards

Existing international legal standards are also part of the problem. For lack of a “well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion”, and, in most cases, for lack of cross-border displacement, environmentally displaced persons generally do not fall within the scope of the 1951 Convention Relating to the Status of Refugees (Refugee Convention) and its protocol.Footnote ⁵⁷ On the other hand, the international status of stateless persons could conceivably apply to environmentally displaced persons leaving the sinking islands of a disappearing state, even though such a hypothesis raises many legal issues.Footnote ⁵⁸

Of more immediate practical importance, however, it has been argued that international human rights law may protect environmentally displaced persons. At stake for internal migrants is the freedom of movement within one's own state, and, for international migrants, state prohibition “from sending people back to places where they risk being tortured, exposed to cruel, inhuman, or degrading treatment or punishment, or subjected to the death penalty or arbitrary deprivation of life”.Footnote ⁵⁹ Alternatively, “soft” legal instruments, such as the Guiding Principles on Internally Displaced Persons, are relevant in guiding domestic policies.Footnote ⁶⁰ In addition, many Western scholars and activists have pleaded for new rights-protecting instruments to be adopted specifically for environmental migrants.Footnote ⁶¹

Yet many states in Asia and the Pacific remain outside the geographical scope of existing “universal standards”—and the same would probably apply to any new such standards. For instance, no state in South Asia is among the 145 parties to the Refugee Convention or its protocol.Footnote ⁶² Among the ten Member States of the Association of Southeast Asian Nations (ASEAN), this treaty was only ratified by the Philippines and Cambodia, with the latter repeatedly failing to comply with its obligations.Footnote ⁶³ As for the 1954 Convention Relating to the Status of Stateless Persons,Footnote ⁶⁴ the only state parties in Asia and the Pacific are Australia, Fiji, Kiribati, South Korea, and, most recently, the Philippines.Footnote ⁶⁵ The International Covenant on Civil and Political RightsFootnote ⁶⁶ has been more widely ratified in Asia and the Pacific, although exceptions remain, including China, Myanmar, Malaysia, and Singapore.Footnote ⁶⁷ Some have argued that international standards on refugees, stateless persons, and human rights have become part of customary international law, thus applying to defiant states as well.Footnote ⁶⁸ However, the sole reluctance to ratify these instruments, let alone implement them, reflects their limited influence in Asia and the Pacific. This reluctance by states in the Asia-Pacific region to follow rights standards is a major hurdle to normative arguments for the global governance of environmental migration through some form of existing or new universal standards.

In this context, the debate on the governance of environmental migration cannot ignore the region's perspectives on international law. For instance, theoretical works on “Asian values” typically conceptualize the emphasis by Asian states on sovereignty in the discourse on international human rights norms,Footnote ⁶⁹ the importance of economic and social rights,Footnote ⁷⁰ and the need to balance rights with the promotion of social harmony, traditional order, and growth.Footnote ⁷¹ In this debate, however, it increasingly appeared that culture-centrism, political discourses, and, perhaps, regionalist prides, have led to extreme positions on both sides. According to Tay, Asia's distinctiveness regarding human rights does not stem from an essential cultural particularism, but rather from the region's “will to differ” and to “evolv[e] on its own path”,Footnote ⁷² or even a certain “public mood … of disgruntlement with the west”.Footnote ⁷³ In contrast, the Western side, as Panikkar argued in 1982, claimed that universalism

The reader may or may not agree with the argument on “Asian values”, and would probably disagree with the way it might have been used to justify certain illiberal policies, but the development of this discourse and its relative success in regional political spheres reflect a certain regional defiance vis-à-vis “universal standards” developed by the West. This defiance at the root of the “Asian values” may impede any global, “top-down” normative approach towards environmental migration. Therefore, if such rules are to be respected by the states of the Asia-Pacific region, they probably have to be created by these states themselves.

A. “Anyone from the South”? A Predominantly Western Concept

Legal reasoning, generally, is based on the implementation of general rules to specific circumstances.Footnote ⁷⁵ If rules are deemed inadequate with regard to paralegal criteria (ethical norms, or dominant interests), law may be changed; here again, law provides for specific processes to amend the law. The governance debate on environmental migration has generally been conceived within such a framework. If international institutions are not appropriate, new institutions should be established; if universal standards are not appropriate, new universal standards should be found. Two distinct ethical notions, in particular, have influenced calls for new international norms, namely solidarity between wealthy states with those populations affected by climate change, and the responsibility of polluting states towards people suffering from climate change.Footnote ⁷⁶Figure 1 shows the idealized process through which law would adapt to the new challenges brought by environmental migration.

Figure 1

Compliance Model

Following the simplicity of this approach to law in isolation from social and political processes, identifying law-making institutions is not necessary. After all, it seems, rights-based approaches towards environmental migration do not aim at doing anything other than help environmental migrants. Critical approaches to law, however, show that who makes law does matter, because it has a decisive influence on how laws are made and, finally, on what laws are made.

Chimni recently highlighted “the problems of doing research in the poor world” and “the academic domination of Northern academic institutions”.Footnote ⁷⁷ In many fields, Western institutions—American, European, and Australian universities, research institutes, and NGOs—are defining the world's research agenda. This gap is obvious within studies concerning environmental migration. As one example out of many, a top Western researcher, having recently edited a significant book, circulated an email amongst fellow researchers asking if anyone knew “anyone from the South” knowledgeable about environmental migration to participate in a public event.Footnote ⁷⁸ The Asian Development Bank Regional Conference on Policy Responses to Climate-Induced Migration in Asia and the Pacific, held in Manila in September 2011, was important at least because it was probably the first time such a major international event on environmental migration was organized in a developing country; however, once again, the overwhelming majority of the participants came to represent European, American, and Australian institutions. This reflects a system-wide vicious circle, whereby lack of research capacities impedes the recognition of Third World researchers in the global West, thus limiting access to resources that would develop capacity.

This is paradoxical—to say the least—for environmental migration is, or is perceived as, a phenomenon that concerns the developing world almost exclusively. Lack of development certainly impedes in situ adaptation—living under the sea level is not much of an issue for the Netherlands, but low elevation leads to much more critical situations in Bangladesh. Even when people are massively displaced by a hurricane in Louisiana or by a nuclear accident in Japan, researchers rarely perceive these displacements to be similar to those occurring in Bangladesh or in Ethiopia. An artificial dichotomy is assumed between “survivors” of environmental disasters in the West and “environmental refugees” in the Third World.

This geographical distance has led to a Western bias because it came hand in hand with an intellectual isolation. Western researchers working on environmental migration have generally been isolated from their “objects” of study; some of them have never visited any of the affected countries. Here, the asymmetrical posture of Western institutions looking at the Third World means that researchers may start with flawed preconceptions leading to wrong analyses. Several authors have recently identified the foreseeable consequence of this geographical gap—the construction of the environmental “refugee” as a poor, dark-skinned, and vulnerable, but dangerous, “other”,Footnote ⁷⁹ leading to certain forms of securitization of the discourse on environmental migration. While the recent emphasis of Western research institutions on empirical research is important, it is probably not enough to correct fundamentally flawed perceptions, especially for legal or other policy-relevant research, which has often remained isolated from empirical elements. For instance, suggesting the ratification of a convention on “climate refugees” does not make much sense when dealing with countries that are not willing to ratify the Refugee Convention;Footnote ⁸⁰ by contrast, the possibility of India extending its own (generous) refugee protection regime to international environmental migrants has rarely, if ever, been explored. In addition, the fact that most studies on migration, development, and security are written in the West has also impeded the development of transdisciplinary and holistic approaches to migration, security, and development.Footnote ⁸¹ Thus, geographical isolation has also led to disciplinary isolation. For instance, legal analyses of environmental migration that suggest a status for the “climate refugees” have paid little attention to the many works on migration studies highlighting, from the early 1990s, that environmental factors can rarely be isolated from other factors that cause environmental migration.Footnote ⁸²

Also, the emphasis in the normative debate on theoretical questions with little immediate relevance is another symptom of the intellectual isolation from descriptive studies. Despite the fact that most environmental migrants are displaced within national borders, relatively little research has yet been carried out on the application of the guiding principles on internal displacement,Footnote ⁸³ or, with regards to African countries, the role of the African Union Convention for the Protection and Assistance of Internally Displaced Persons in Africa, adopted in 2009.Footnote ⁸⁴ In contrast, the sensational scenario of a whole state submerged by a rising sea, thus disappearing as a state, recalling legends such as Atlantis, has attracted much curiosity on the legal status of possible “stateless” islanders.Footnote ⁸⁵ This is in spite of the obvious fact that all inhabitants of such a state would hopefully have left (or, if not, would have drowned) well before the total disappearance of the whole national territory. The (political) organization of a resettlement would, therefore, precede—and in practical terms at least contribute to solving—the (legal) issues of climate-induced statelessness.

B. Three Grounds for a Post-Colonialist Critique of the Governance of Environmental Migration

The disconnect between the normative research carried out in Western institutions and the reality of environmental migration mostly occurring in the Third World has impeded the policy-oriented debate to date. I am certainly not arguing that Western researchers intended to establish a post-colonial structure of governance. Rather, my argument is that certain elements in the debate reflect a drift towards favouring post-colonial structures of law and governance.

A few authors have already suggested post-colonial critiques of governance proposals relating to environmental or climate migration. Responding to Biermann and Boas's “case for a global protocol”,Footnote ⁸⁶ Hulme submitted that, “[e]stablishing a protocol that would be supervised by an international executive committee would open up a new front in the emerging debate about green neo-colonialism”.Footnote ⁸⁷ He argued that an exogenous management of environmental migration would likely be “paternalistic and centralizing”.Footnote ⁸⁸ Similarly, Kolmannskog recognized the possibility of a post-colonialist critique

I can see at least three points of entry to a post-colonialist critique of the current normative debate; namely, the notion of the “environmental refugee”, the growing influence of security-based approaches, and the policy priority given to preventing displacement.

First, the “climate refugee” has been constructed by the Western media and some NGOs as a vulnerable, passive “other”, unable to leave his (more often than “her”) “sinking islands”.Footnote ⁹⁰ Gemenne and Shen showed that this construction of islanders ran the risk of “enclos[ing] them into a relativist trap and prevent[ing] them from developing adequate adaptation strategies”.Footnote ⁹¹ Gayoom also underscored that this perception could deny the willingness of most Pacific islanders to “stand up and fight”.Footnote ⁹² Additionally, little was made of the islanders’ unreadiness to be called “refugees”.Footnote ⁹³ Often, Western environmentalists have used the image of sinking islands to push for actions to mitigate climate change; exotic “environmental refugees” were called to play the role of a canary in the coalmine.Footnote ⁹⁴

A symptom of a post-colonial construct, the very term “refugee” is reserved for people of the Third World.Footnote ⁹⁵ Following Dalby, Barnett showed that the perception of environmental change as a security issue relies on the discourse of “barbaric Southern Others residing in decaying natural environs (over there)”.Footnote ⁹⁶ In contrast to the discourse on Pacific islanders, the term “refugee” “was unanimously rejected when 1.2 million New Orleanians were displaced by Hurricane Katrina in 2005, and the victims insisted on being called ‘evacuees’ or ‘survivors’”.Footnote ⁹⁷ Former US President Bush had to intervene in the debate to assess that the displaced New Orleanians “are not refugees. They are Americans, and they need the help and love and compassion of our fellow citizens.”Footnote ⁹⁸

Also, the term “refugee” conveys an inexact conception of people displaced by environmental change. It seems to imply an international, forced movement, which is at odds with the reality of environmental migration. On the one hand, most environmental migrants are displaced within their state,Footnote ⁹⁹ and this prevalence of internal migrants is not likely to change even in worst-case scenarios of global environmental change.Footnote ¹⁰⁰ On the other hand, environmental inducement to migration has increasingly been described as spanning a long continuum between forcedness and voluntariness. As explained above, in most circumstances, environmental factors are only one in a cluster of causes.Footnote ¹⁰¹ The notion of “climate refugee” is a symptom of an isolation of normative research from more descriptive research on environmental migration. Further, “refugee” has a connotation of internationality and violence that reflects and further conveys the dominant perspective on environmental migration: the “environmental refugee” is essentially constructed as a threat to the highly guarded and yet fragile prosperity of the global West.

Second, the securitization of environmental migration also reflects a post-colonialist drift in normative studies.Footnote ¹⁰² Ideally, international law, if it purports to convey “neutral” norms, should take the interests of all states into account. Yet the discourse on security is mainly focused on the interests of dominant states where this discourse is developed. The focus is generally on the possible risks that transnational crime, human trafficking or terrorism, and failing states could pose for Australia, the United States, and (perhaps to a lesser extent) Europe. Replacing the solidarity or responsibility-based narratives, “security” concerns have become more and more influential, and the fear of a human tide of “environmental refugees” in Western countries became the single most influential argument for political action. Countries of the Third World may have concerns of a similar nature, but what is at stake in most Western literature on environmental migration is the security of the West. Here again, however, the securitization of environmental migration relies on an alarmist discourse denounced by contemporary descriptive research;Footnote ¹⁰³ in particular, it is based on the misleading assumption that environmental migrants will try to cross borders and “invade” developed countries. Such security-based perspectives displace the assumed neutrality of “universal standards”, as the security agenda looks at developing states exclusively with the interests of the developed world in mind.

Third, the Western bias in normative discussions on environmental migration has been reflected in an oft-heard hostility towards any form of displacement, as Western states perceived that they had much to lose and little to gain in allowing any form of migration. Far from searching for a sustainable solution for environmental migration, many policy-makers consider all forms of migration to be wrong.Footnote ¹⁰⁴ Therefore, the emphasis has often been put on increasing resilience to avoid migration. As shown above, the action of the IOM in the Third World aimed mainly at building resilience and helping populations to face natural disasters without displacement, or at providing humanitarian support to those who had already moved, but not much at ensuring the dignity of potential migrants. To this extent, the IOM distances itself from its purpose, as defined by its constitution, which is to facilitate “orderly migration”, not to avoid migration.Footnote ¹⁰⁵

While migration is a constant adaptation strategy, the dominant paradigm on migration “management” (i.e. control) is certainly the greatest hurdle to successful adaptation to climate change. Indeed, it is often because they cannot migrate that vulnerable populations cannot adapt. The paradigm of migration management, which depicts the immigrant as an economic burden and a threat to national identity,Footnote ¹⁰⁶ aims at protecting Western interests in a fundamentally unequal world. This paradigm can accommodate certain forms of migration only when those forms of migration are considered as a lesser evil. In this context, the rapid development of a discourse on migration as adaptationFootnote ¹⁰⁷ may not have been entirely emancipated from the structural influence of this paradigm. On the one hand, internal or South-South migration may be perceived as a means to avoid mal-development and international migration. The Nansen Principles, reflecting a consensus amongst researchers, adopted the goal of “preventing displacement” before “assisting and protecting people and communities affected by such displacement” and “finding durable solutions”.Footnote ¹⁰⁸ On the other hand, the development of temporary and circular migration provides cheap labour to Western countriesFootnote ¹⁰⁹ (cf. Figure 2 for a representation of the post-colonial model).

Figure 2

Post-Colonial Model

A. A Theory of Resistance

Chimni fairly insists that a critique of the dominant ideology in order to defend the interests of Third World peoples “has to go hand in hand with a theory of resistance”.Footnote ¹¹⁰ Accordingly, “we need to study and suggest concrete changes in existing international legal regimes”.Footnote ¹¹¹ Two different avenues can be followed in order to re-empower the Third World in general, and Asia and the Pacific in particular, with the legal frameworks applicable to the issue of environmental migration. The first option would be for the Third World to oppose Western domination and establish a symmetrical Southern or Eastern domination. The second, “softer” option would be to build up the capacity of states of the Third World to develop regional normative frameworks, which can apply to environmental migration.

The first option is unlikely to succeed in the foreseeable future. While some states in Africa, Asia, the Pacific, and Latin America may wish to push for global co-operation regarding environmental migration, the West has no such direct incentive, and would likely oppose any exogenous “universal standards”. Also, this option is impeded by the lack of political unity amongst states of the Third World and, as a consequence, by their lack of influence over the global political agenda. Experience highlights the striking differences between central and peripheral states regarding their ability to define issues and to impose a global agenda, in particular, regarding the issue of migration. In 1990, developing countries succeeded in having the General Assembly adopt the International Convention on the Protection of the Rights of All Migrant Workers and Members of their Families.Footnote ¹¹² The main innovation of the treaty consisted in recalling the fundamental rights of undocumented migrants and the treaty does not contain any right to migrate. Twenty-one years after its adoption, the convention is now ratified by forty-five states, mostly sending countries in Latin America and Western Africa; no Western state and few significant countries of destination have ratified it.Footnote ¹¹³ To this extent, it is highly unlikely that some peripheral states would succeed in imposing any form of international governance regarding environmental migration globally or even upon other developing countries. International efforts on climate change mitigation or adaptation are supported by powerful civil society organizations, but even these organizations may be unable to affect state behaviour over the control of their borders. To this extent, global adoption of any binding instrument on environmental migration is unlikely,Footnote ¹¹⁴ even if it is supported by a significant number of states from the Third World.

In comparison, the second option is more realistic. It consists of building up the capacities of states of the Third World to develop regional legal frameworks which can apply to environmental migration. While climate change is a global phenomenon, environmental migration, given that it occurs mainly within states and, at times, in a regional context,Footnote ¹¹⁵ does not necessarily justify a globally harmonized normative response. Overall, global regulation would be impeded by the isolation of normative research from empirical understanding of environmental migration. A bottom-up collection of best practices and an interregional forum, which may foster innovative policies, should be preferred to a top-down application of standards developed in disconnection from empirical experience. In such a bottom-up approach of regional best practices, actors in Asia and the Pacific are likely to play a major role, as this region is largely affected by environmental migration and has a growing research capacity in this area (cf. Figure 3 for a representation of the participative model).

Figure 3

Participative Model

Several normative studies on environmental migration have submitted that regional negotiations are more likely to succeed at pushing states to co-operate and take action than global negotiations.Footnote ¹¹⁶ This is not only because global engagement seems unfeasible at this stage, but also because past experience of legal development in the fields of migration and environmental protection have shown regional co-operation to be more efficient in establishing normative frameworks.

In migration matters, in particular, regional law has often proven to be an efficient tool for peripheral states to develop further co-operation and higher standards of protection in legal fields where the West has been reluctant to improve “universal standards”. Famously, instruments broadening the definition of the refugee were adopted in both Latin America and Africa.Footnote ¹¹⁷ Moreover, the 2009 African Union Convention for the Protection and Assistance of Internally Displaced Persons in Africa will give a binding force to a set of norms similar to the UN Guiding Principles on Internal Displacement.Footnote ¹¹⁸ Similarly, in 2007, ASEAN adopted the Declaration on the Protection and Promotion of the Rights of Migrant Workers (Cebu Declaration) and established a committee on its implementation.Footnote ¹¹⁹ Although this has not yet led to any binding instrument, this step may be of more significance than the International Convention on the Protection of the Rights of All Migrant Workers and Members of their Families, ratified by only one state (the Philippines) among the ten Member States of ASEAN.Footnote ¹²⁰ Last, but not least, many states in Asia and the Pacific have engaged in regional consultative processes on migration organized by IOM, in particular the Colombo ProcessFootnote ¹²¹ and some local academic events,Footnote ¹²² with a view to facilitating regional co-operation between researchers, states and local authorities, and potential donors.

Similarly, on environmental matters, strong arguments have been developed in favour of regional governance. Tay highlighted that the incentive to co-operate may be stronger within a regional community of proximate and interdependent states with a relatively homogenous level of development.Footnote ¹²³ Again, the Centre for Strategic and International Studies (CSIS) emphasized the ability of regional co-operation in Asia to “shar[e] and coordinat[e] physical infrastructure”, to “harmoniz[e] standards and policies”, and to “establish … norms and expectations for regional policies”.Footnote ¹²⁴ Overall, the CSIS argued that regional organizations may “develop … networks of cooperation” where “officials and leaders from nearby countries who have to interact on border issues or other common problems are more likely to develop close working relationships than those whose home countries are distant and very different”.Footnote ¹²⁵

Nonetheless, regional negotiations are certainly not the panacea. They may be an obstacle to financial contribution from the polluting developed states to the affected, developing states as should follow from the principle of a common but differentiated responsibility.Footnote ¹²⁶ Furthermore, even at the regional level, states may be unwilling to adopt binding instruments. However, the flexibility of regional governance is desirable when dealing with environmental migration, where new policies need to be invented, evaluated, and circulated, and where excessive reliance on Western research capacities can be avoided. Moreover, no general definition of “environmental migrants” has been agreed upon that could be used to define a specific legal category of individuals.Footnote ¹²⁷ Due to the complex causes of migration, applying such an abstract definition would face major practical hurdles.Footnote ¹²⁸ Yet without a legal definition, there is a need for international co-operation. Therefore, a regional forum of decision-makers sharing good practices and agreeing upon non-binding principles could raise awareness, foster intraregional and interregional debates on specific issues, and thus contribute in substantially improving the lot of environmental migrants.

Besides, the regional normative debate on environmental migration in the Third World needs to steer clear of Western discourse on the issue. Admittedly, many regional initiatives in the Third World do not differ significantly from the dominant Western discourse. For instance, many rights advocates and state representatives from Bangladesh support the idea of a convention on “climate refugees”, which is often inspired by Western normative works.Footnote ¹²⁹ There are three ways of explaining this. First, some leaders and researchers in the Third World have close links with the West; they may, for instance, be influenced by their Western education when analyzing local issues. This may explain their resort to security-based approaches towards environmental migration or preventive approaches towards migration that are similar to those developed in the West. Second, local researchers lacking access to research tools may have no choice but to rely on simplistic conceptions of environmental migration in the dominant Western scholarship. Third, Floremont showed that national authorities might have used Western security language to put environmental migration issues on the forefront as part of fund-seeking strategies.Footnote ¹³⁰

Thus, the disconnect between research and empirical studies may be replicated within the Third World under the influence of Western education, the domination of Western research, and the demands of Western donors. Therefore, normative research needs to be carried out with a constant view of defending the interests of the Third World. A theory of resistance needs to take these important obstacles into account. Yet it would be wrong to conclude, in view of these difficulties, that scholarship on environmental migration should continue to be developed almost exclusively in the West, as this would only result in perpetuating the unfairness and inefficiency of post-colonial forms of governance. Due to geographical proximity, researchers and leaders of the Third World in general are more likely to understand the phenomenon and its challenges, and to identify possible solutions for the benefit of those affected, as compared to their Western counterparts. In the long term, increasing the capacity of research in the Third World can help avoid over-dependence on Western research institutions and enable the development of much-needed critical scholarship in the Third World.

B. Regional Endeavours in the Asia-Pacific Region

While there is no legal or governance framework applicable to environmental migration in the Asia-Pacific region as yet, the situation may be changing. First, a transnational civil society is progressively emerging and playing an increasing role in fostering regional debate and pushing for different kinds of formal or informal regional co-operation.Footnote ¹³¹ The Asian Disaster Preparedness Centre, for instance, aims at pushing for “safer communities and sustainable development through disaster risk reduction”.Footnote ¹³² Two Christian organizations have also been among the few civil society organizations that have actively addressed the issue of environmental migration at the regional level. They are the Pacific Conference of Churches and the World Council of Churches (Oikumene).Footnote ¹³³ Elliott recently highlighted that

In a step by state authorities, the Asia Pacific Forum of National Human Rights Institutions, established in 1996, is currently implementing an advocacy programme on the rights of migrant workers.Footnote ¹³⁵ It may soon push further to formulate public policies on environmental migration.

Regional legal frameworks on environmental migration or regional governance require that states accept certain restrictions on their sovereignty. In this regard, the South Asian Association for Regional Cooperation (SAARC) and ASEAN are two models of regional organizations that could open the way to normative discussions on environmental migration. SAARC started committing itself to environmental issues as early as 1991, when it recognized that the “region's ecology is such that it makes it one of the most disaster-prone regions in the world, exposed to a substantial share of the world's floods, droughts, cyclones, landslides, and earthquakes”.Footnote ¹³⁶ Later, in April 2010, the Thimphu Statement on Climate Change took note of the region's particular vulnerability to “climate change and related disasters making the need for a regional response to meet the challenge of climate change more urgent and compelling”.Footnote ¹³⁷ Accordingly, a regional programme could consist of “cooperative regional initiatives and approaches, exchange of experiences, knowledge, transfer of technology, [and] best practices to address the challenges posed by climate change”.Footnote ¹³⁸

ASEAN is another possible normative framework. As an “imagined community”Footnote ¹³⁹ in the making, ASEAN has gone further than any other regional organization in Asia and the Pacific in dealing with the rights of migrant workers or with the protection of the environment.Footnote ¹⁴⁰ However, progress has been limited; no binding agreement has yet been adopted on the rights of migrant workers,Footnote ¹⁴¹ and the Agreement on Trans-boundary Haze Pollution was not ratified by Indonesia, which is the main regional source of haze pollution.Footnote ¹⁴² Generally speaking, ASEAN Member States have been reluctant to accept significant restrictions on their sovereignty, thus significantly limiting the prospects of an approach based on compulsory rights-based standards.Footnote ¹⁴³ Nonetheless, Koh and Robinson highlighted that “ASEAN has emphasized programmatic cooperation”.Footnote ¹⁴⁴ Accordingly, “ASEAN appears to have sustained a regional system for collaboration” and “has been remarkably successful in shaping a common regional environmental policy framework”.Footnote ¹⁴⁵ Indeed, the possibility of a regional dialogue on migration is itself an achievement, as discussing the issue of state control on its borders within ASEAN could not have been imagined two or three decades ago.Footnote ¹⁴⁶

Yet some degree of international funding may also be necessary for successful negotiations on environmental migration in the Asia-Pacific region. If not for its own sake—after all, some Asian countries are becoming increasingly wealthy, while Western states are facing financial difficulties—international funding is at least a moral responsibility as developed states which bear historical responsibility for climate change should pay for the consequences of climate change incurred by developed countries. In some cases, the apparently insurmountable financial obstacles to regional co-operation have led regional leaders to turn away from regional governance, and regional co-operation has at times been reduced to a fund-seeking strategy. For instance, despite the promising project of a regional governance through SAARC, Bangladesh Prime Minister Hasina proposed in September 2012 to use South Asian co-operation only to co-ordinate a “united call … to consider and adopt a new legal regime under the UNFCCC Protocol to ensure social, cultural and economic rehabilitation” for environmentally displaced persons.Footnote ¹⁴⁷ Regional co-operation is, in this proposal, only to plead for an international regime that can channel North-South financial flows through a climate change fund.

Prime Minister Hasina's proposal for a united call contrasts with the statement by the Pacific Islands Forum in 2008, which seemed to expect more from regional co-operation. This statement encouraged “the Pacific's Development Partners to increase their technical and financial support for climate change action on adaptation, mitigation and, if necessary, relocation … and to ensure their assistance aligns with regional and national priorities and supports existing regional and national delivery mechanisms”.Footnote ¹⁴⁸ Thus, while regional co-operation remains contingent to external funding, the statement by the Pacific Islands Forum implies that its regional co-operation could extend to defining the necessity of migration policies. Other groups of states merely aim at pushing the international community to act. Thus, the Declaration of the Climate Vulnerable Forum, adopted just before the Copenhagen Climate Change Conference, expressed the determination of those states most vulnerable to climate change, exhorting them “as low-emitting countries that are acutely vulnerable to climate change, to show moral leadership on climate change through actions as well as words, by acting now to commence greening our economies as [their] contribution towards achieving carbon neutrality”.Footnote ¹⁴⁹

In this context, the involvement of the Asian Development Bank (ADB) is particularly promising. In 2010, the ADB launched a preliminary research programme, the goal of which was to identify the “policy options to support climate-induced migration”.Footnote ¹⁵⁰ This programme consisted of an effort to improve empirical research and to realize a financial feasibility study, while developing a regional dialogue and raising awareness.Footnote ¹⁵¹ Although the programme was initially not presented as preparation for a further role for the ADB in financing national policies,Footnote ¹⁵² Dobias, a senior advisor to the programme, admitted that the ADB might nonetheless consider “enter[ing] into partnerships”Footnote ¹⁵³ with other organizations. In particular, Dobias insisted that the ADB could “provide financial expertise and capacity [and] use [its] convening power [to] support programs and projects”.Footnote ¹⁵⁴ The final report of the project, presented in March 2012, announced the establishment of an “Asia-Pacific Migration and Environment Network of researchers”,Footnote ¹⁵⁵ but did not provide for international funding on specific actions.

The ADB may become an essential element of a regional approach towards environmental migration in the Asia Pacific region, as it has the institutional capacity and know-how to channel funds from its nineteen non-regional members to its forty-eight “regional” members through loans, grants, and technical assistance.Footnote ¹⁵⁶ Its broad geographical scope, however, lacks coherence; developing member countries (DMCs) as distant as Kazakhstan and Fiji are unlikely to shape any form of imagined community. Yet this may be a necessary drawback of any organization which is able to channel multilateral funds on a global scale, and it can be mitigated by the capacity of the ADB to enter partnerships with other subregional organizations such as the SAARC, ASEAN, and the Pacific Islands Forum. However, developed states are unlikely to fund substantial programmes without having control over them, especially since donor countries do keep close control over the activities funded by the ADB.Footnote ¹⁵⁷ Here again, subregional partnerships might contribute to reducing the asymmetrical power relations between the donors and receivers of international funds if groups of Asia-Pacific states succeed in co-ordinating a coherent position.

A. “Asian Values” and Third World Approaches to International Law

The impediments to regional co-operation on environmental migration policies in Asia and the Pacific are well known. Both Third World Approaches to International Law on the liberal side and the argument based on “Asian values” on a more conservative side have traditionally put a strong emphasis on state sovereignty.Footnote ¹⁵⁸ Such a theoretical posture generally resulted in, or, perhaps, was used to justify a lack of, international or regional co-operation amongst Asian countries. As a result, it was often argued that the “Asian way” is based on pragmatism and use of consensus, the avoidance of conflicts, non-intervention in the domestic affairs of other countries, and, until recently, an emphasis on the protection of states’ sovereignty.Footnote ¹⁵⁹

However, descriptive arguments on Asian values and the “Asian way” tend to artificially reduce a complex set of civilizations to a few simple features. In the words of Amartya Sen,

For instance, while the Charter of the Association of Southeast Asian States underscores the principle of sovereignty as a limitation of the mandate of ASEAN,Footnote ¹⁶¹ so do, for instance, the Charter of the United NationsFootnote ¹⁶² and the Consolidated Version of the Treaty on European Union.Footnote ¹⁶³ The principle of state sovereignty is a constitutive feature of Westphalian international law and it is not unique to Asia. At most, it may be argued that Asian states have generally invoked sovereignty with greater insistence than states of other regions.Footnote ¹⁶⁴

Moreover, the causes for a lack of regional co-operation in the Asia-Pacific region are not to be found in any essential civilizational feature, but in contingent circumstances. On the geopolitical perspective, Weatherbee argued, “Southeast Asia is not analytically sui generis. It is a regional setting for an international relations regime that is a part of a global international order.”Footnote ¹⁶⁵ On a more sociological perspective, Tay argued that ASEAN's inability to generate broad co-operation on environmental matters stems from the fact that “[t]ies between the peoples of the region have not received much attention, whether as regards environmental concerns or other issues”.Footnote ¹⁶⁶ Accordingly, instead of an Asian civilizational particularism, the little regional co-operation within Asia may be explained by the “lack of a sense of regional community”.Footnote ¹⁶⁷

Similarly, in the debate on Third World Approaches to International Law, a recent turn has somewhat nuanced the emphasis on the notion of sovereignty. According to Anghie and Chimni,

Today, “TWAIL II” theorists argue that the protection of the individual may, and should, justify interference with sovereign states.Footnote ¹⁶⁹ Therefore, protecting environmental migrants through self-determined regional co-operation is one of the circumstances where “TWAIL II” proponents would, I believe, agree that limiting state sovereignty is in the interests of the Third World.

B. The Prospects of the Regional Governance of Environmental Migration in Asia and the Pacific

Another consequence of the concentration of normative studies on environmental migration within the West is with regard to the forms of governance considered. Already, Panikkar has warned against the mistake of assessing the “progress” of Asia from a Western standpoint.Footnote ¹⁷⁰ More specifically, Alvarez has argued that the “modern” Western ideal of international law as consisting of obligations, precision, and delegation is not necessarily the only way of thinking about relations between peoples, nor even the only way of conceiving of international law.Footnote ¹⁷¹ Evaluating institutions of regional co-operation in Asia and the Pacific using the benchmark of international co-operation as carried out, say, by European institutions, is a wrong approach. According to Elliott and Breslin, “there is no single approach to regional cooperation and governance”.Footnote ¹⁷² Instead, they argued,

Any definitive statement on what an Asian or Pacific conception of international law should be like would readily fall into the “trap of cultural essentialism in characterizing and discussing the features of different civilizations”,Footnote ¹⁷⁴ not least because Asia and the Pacific, and each state within the region, have extremely little civilizational homogeneity.Footnote ¹⁷⁵ Flirting with such essentialism, however, Chimni argued that the “Asian exceptionalism … in the area of refugee protection”, in particular the lack of ratification of the Refugee Convention,Footnote ¹⁷⁶ may result from the civilizational fact that “law is not perceived as the principal response and solution to safeguarding the dignity of strangers”.Footnote ¹⁷⁷ As reflected by Chimni, “Asian cultures arguably tend to rely instead on societal values and traditional practices to ensure protection” for forced migrants.Footnote ¹⁷⁸

Even though one should refrain from generalized statements about civilizations, the recognition of their specificity is instrumental in the achievement of a “just world under law”.Footnote ¹⁷⁹ Therefore, instead of the top-down approach towards compliance of international law, Chimni has argued that civilizations should “draw … on the best practice[s]” of each other.Footnote ¹⁸⁰ In the constitution of this “multi-civilizational approach to international law”,Footnote ¹⁸¹ imports from other civilizations are legitimate as long as they “advance the cause of a peaceful, democratic, and just world order”.Footnote ¹⁸² Thus, Chimni underscores that “in the absence of a law on the status of refugees, it may be difficult to effectively protect the rights of refugees”.Footnote ¹⁸³ However, the contrary is also true, at least in theory—the most comprehensive international treaty may not be able to force the state parties to implement their obligations. All state parties to the Refugee Convention do not systematically provide better treatment to refugees than non-party states. In circumstances such as environmental migration, where the ratification of a treaty is unrealistic, international governance can only be found through a subtle mix of legal norms, political governance, and social norms—what Chimni called a “multi-civilizational … conversation on the ideal and optimal mix of legal and societal values and practices”.Footnote ¹⁸⁴

Empirical research is needed to identify the existing best practices in Asia-Pacific states. For instance, it may appear while reading Tay that one of the best practices of Southeast Asia is transnationalism, a form of governance which can be defined as “the complex web of national, local and international actors that bring attention to issues like the Bakun dam construction in Malaysia”.Footnote ¹⁸⁵ Instead of conceiving of international law as a monolithic pyramid of norms, there are many practices in Southeast Asia, in particular, with regard to the protection of migrants and the environment, whereby a plurality of public and non-public actors collaborate in the negotiation and implementation of pluralistic and hybrid systems of governance.Footnote ¹⁸⁶ It may be to the benefit of environmental migrants to develop this practice of transnational governance and share it with other regions. In this sense, the Asia-Pacific region may be more than a canary in the coalmine or a laboratory for environmental migration policies.Footnote ¹⁸⁷ The Asia-Pacific region, incentivized by a “will to differ”Footnote ¹⁸⁸ and to affirm its role in a new global order, may participate in a multi-civilizational forum where normative approaches to environmental migration are shared.

Indeed, Asian scholars’ take on the challenges brought by environmental migration may fill some of the gaps of a Western perspective. The Western notion of individualistic human rights and the emphasis on law and states as assistance providers (to the exclusion of communities) do not suffice to tackle all of the challenges raised by environmental migration. Thus, defining a category of environmental migrants may be difficult because of the complex causes of displacement.Footnote ¹⁸⁹ Similarly, a state may be unable to protect its population when affected by a vast natural disaster. In this context, something is needed beyond human rights. The so-called “Asian values” may precisely invite such a constructive discussion with the human rights regime, for instance, through its emphasis on the role and rights of communities. The importance that “Asian values” places on social and economic rights also makes sense in addressing the causes of environmental migration driven by slow-onset environmental changes, where migration is often induced by the social and economic consequences of environmental changes. Thus, if “Asian values” is something more than a pretext for some governments not to implement some generally recognized human rights standards, it should also lead to its own form of protection and assistance. Indeed, one can hardly imagine a better opportunity for the participation of the rising states in the Asia-Pacific region in the international law-making community and the affirmation of alternative positive values.