Ian Brownlie, in reference to State responsibility for pollution, wrote, “I think it is still true to say that in a general way, both the layperson and the lawyer pay more attention to policy issues if somewhere ahead there is the defined possibility of liability or responsibility.” This short piece looks at how the narrative of planned relocations in the context of climate change must be firmly recognised as a matter of loss rather than adaptation. This is a critical distinction to ensure that the possibility of liability and responsibility does not get diluted by cheers of adaptation and resilience.
The literature on displacement in the context of climate change and disasters too often frames these movements as adaptation strategies. This is even more prevalent when one looks at literature on planned relocations. (For relocation in different contexts, see Cantor’s 2023 article.) Planned relocations are rarely, if ever, situated within the context of displacement but are, instead, framed more as voluntary migrations in many writings. This misrepresentation is not only inaccurate but it risks negatively impacting the rights of those displaced through planned relocations. Although it has broad implications for the rights of displaced persons, this article focuses primarily on two: the specific differences between ‘adaptation’ and ‘loss and damage’ in the climate regime and, second, the implications for potential legal remedies outside the climate regime. For the purposes of this discussion, it is sufficient to understand the ‘climate regime’ in terms of the international system created by the UN Framework Convention on Climate Change (UNFCCC), the subsequent annual meetings of its Conference of Parties (COP), and the protocols and agreements developed within this framework.
The arguments presented are, first, that planned relocations are a form of displacement and, second, that such involuntary movements should not be considered ‘adaptation strategies’ in the context of climate change as they are more appropriately understood as examples of ‘loss and damage’. Finally, an explanation of the importance of properly framing this narrative is offered in regards to the difference between adaptation and loss and damage within the climate regime, the potential legal consequences outside the regime, and the significant symbolism of recognising loss.
Are Responses to Harm ‘Voluntary’?
In order to avoid any unnecessary detours in the discussion, it should be noted that this post does not deny that there are different types of involuntary displacement, including flight, evacuation, planned relocation, etc., and that each of these requires unique considerations. The limited assertion here is that the symbolic, legal and policy implications of displacement compared to voluntary migration are of such significance that these categorisations matter. This point is not meant to contradict the reality that the voluntariness of human mobility is understood on a spectrum between completely forced and completely voluntary. Being forced by State actors, for example, would surely be less voluntary than being included in the decision-making process and discussing options.
However, it is important that movements not be misrepresented as more voluntary than they are just because the displaced exercised some degree of agency. Flight and evacuation may be more readily recognised as involuntary, but planned relocations are too often framed as more voluntary. This is due to the imminence of harm being incorrectly used to measure the extent to which movements are voluntary. Further, inclusion of affected people in the process does not necessarily negate the reality that the movement was forced by the adverse effects of the climate crisis. While imminence and/or agency may create a façade of voluntariness, the reality for many is that there is no other choice. For many reasons it is important that the extent to which these are involuntary movements (displacement), despite time to prepare and inclusion in the process, be recognised.
There is, of course, extensive literature on human mobility, and it overwhelmingly misrepresents climate displacement. An analysis of over seven thousand scholarly works found that “migration literature suggest that migration is the ultimate effect of climate change, and the researchers termed this an ‘adaptation strategy‘.” This framing seems to be due, in part, to a reaction to the inaccurate use of terms like ‘climate refugee’ and attempts to describe climate-induced migration in unique, non-refugee, language. As loss and damage has only recently become a policy ‘pillar’ within the climate regime, perhaps the language of ‘adaptation’ had traditionally seemed appropriate. While it is right to recognise that environmentally-displaced persons do not necessarily qualify as refugees, the reason has nothing to do with the voluntariness of the movement but, rather, with the driver of the movement. Relevant to this article is the degree to which the movement is voluntary. It is important to recognise that when adverse effects of climate change (e.g. sea-level rise) are important drivers, the only choice for many is when, not if, to move. In such circumstances, movement is appropriately understood on the involuntary end of the scale and, therefore, as ‘loss’ rather than ‘adaptation’.
Other Misrepresentations of “Voluntary” vs. “Forced” Movements
Whether and to what extent planned relocations are voluntary are also misrepresented in policy and literature. The Sydney Declaration adopts the common language of involuntary movements with phrases like ‘forced or obliged’ and adds reference under Definitions (b) to causes associated with “sudden-onset natural hazards and/or slower, cumulative pressures occurring in the context of sea level rise”. This seemingly acknowledges the more involuntary nature of planned relocations in such contexts. However, the Declaration goes on to define (“Definitions (f)”) planned relocations as when people “voluntarily move or are forced to move”, which seems to contradict the earlier definition. It must be argued that suggesting planned relocations are somehow voluntary ignores the reality that these are in response to ‘slower, cumulative pressures’. If the movement, albeit planned, is in response to the adverse effects of climate change or other environmental pressures, then it should not be characterised as voluntary and would more accurately be categorised as a form of displacement. As noted above, asserting that planned relocations represent voluntary movements appears to be a case of assuming that the less imminent the risk of harm, the more voluntary the movement. However, that is not how ‘real risk’ of harm is to be understood. (For a discussion on ‘real risk’ and ‘imminence’ see Cantor, et al., 2024.)
Another inaccurate framing of planned relocations is found in the Nansen Initiative’s Agenda for the Protection of Cross-Border Displaced Persons in the Context of Disasters and Climate Change, in which a priority area is identified as “Improving the use of planned relocation as [a] preventative or responsive measure to disaster risk and displacement” [emphasis added]. This fails to clearly recognise planned relocations as displacements, instead implying that they are a means of avoiding displacement. Again, this inaccurately suggests a level of voluntariness that cannot be assumed in relocations related to the adverse effects of climate change or the likelihood of future disasters, even those that are planned.
Legal Definitions of ‘Displacement’
Other sources, by contrast, offer a definition of displacement and evidence of the appropriateness of situating planned relocations within it. Primarily, the significance of the term ‘displacement’ is that it is understood separately from other forms of migration. There is not a singular legal definition for ‘displacement’ in the same way that there is, for example, for ‘refugee’. However, it should be entirely uncontroversial to assert that the primary distinction is on the grounds that it is involuntary. It is also generally accepted that the cause must be for reasons such as conflict, violence, human rights violations, disasters, or events seriously disturbing public order. While one might reason that factors like economics, educational opportunities, or family connections drive movements, those movements are not typically recognised as involuntary. In short, the less voluntary the movement, the more clearly identifiable it is as displacement. Likewise, the more voluntary the movement, the more appropriately it can be understood as voluntary migration.
One of the most authoritative definitions might be found in UNHCR’s Guiding Principles on Internal Displacement, which defines displaced persons as those “forced or obliged to flee or to leave their homes or places of habitual residence, in particular as a result of or in order to avoid the effects of armed conflict, situations of generalized violence, violations of human rights or natural or human-made disasters.” Clearly ‘forced or obliged’ establishes the expectation that the movement is towards the involuntary end of the scale. The qualifier ‘in particular’ seems to indicate that the list of grounds is not necessarily exhaustive, in contrast to the refugee definition’s list of grounds. Additionally, the Guiding Principles explicitly reference ‘natural or human-made disasters’, establishing that movements driven by environmental factors fall within this definition and are, therefore, a form of displacement. Importantly for the discussion of planned relocation is the clarification that movements are “as a result of or in order to avoid” [emphasis added] disasters. The clear intention of this definition is to include those fleeing natural and human-made disasters even when those movements are pre-emptive. Therefore, the fact that some displaced persons have time to prepare, plan, and relocate purposefully is not an indicator of voluntariness. As noted, the immediacy of the potential danger is not determinant of the ‘real risk’ of harm. Those persons are still displaced and should be recognised as such.
This definition, and similar iterations, are found in other sources, too. The African Union’s Kampala Convention uses the exact phrasing of the Guiding Principles (in Article 1(k)) to define ‘internally displaced persons (IDPs)’, and adds a specific definition of ‘internal displacement’ in Art. 1(l) as “involuntary or forced movement, evacuation or relocation”. This may be the most explicit recognition of planned relocations as involuntary displacements. Similarly, the Guiding Principles, in Principle 7(3), specifically addresses cases occurring “in situations other than during the emergency stages of armed conflicts and disasters”. Planned relocations would rightly be situated in this category of displacements occurring at a time other than the ‘emergency stages’. By continuing to refer to these situations as ‘displacements’, both UNHCR and OAU clearly took the position that the immediacy of a movement was not indicative of its voluntariness. This reinforces the idea that planned relocations are displacements, not voluntary, adaptive, migrations.
Why ‘Loss and Damage’ and not ‘Adaptation’
Perhaps some of the confusion comes from the strong emphasis on the participation of affected persons in the decision-making processes surrounding planned relocations. The Sydney Declaration’s Principle 6 calls on the “full, free, and informed consent” of affected persons, and this may be misconstrued by some to imply a degree of voluntariness. However, consenting to relocation, or even playing an active part in the planning process, is still distinct from voluntary movement in cases where the adverse effects of climate change have left no possibility of remaining in place. Refugees, for example, may consent to flee in order to preserve their lives or freedoms, but no one could reasonably suggest this was voluntary migration. Planned relocations occur under a similar sense of duress. The primary difference between evacuation and planned relocation is in the imminence of the threat, or the immediacy with which one must move. There is no legal basis for imposing an imminence requirement on threats to life or freedom beyond being an indicator of the ‘real risk’ of harm. This is further supported by the inclusion of clauses and phrases like “in order to avoid”, “slow-onset”, and “cumulative pressures” found in the Sydney Declaration, the Guiding Principles, and the Kampala Convention. These clearly signal an intention to pre-empt any arguments about imminence and create a space within the understanding of displacement for planned relocations. Similarly, the degree of agency exercised by those displaced is not determinative of voluntariness in planned relocations any more than it is in evacuation. A danger is pending, and moving to safer ground is required.
Following on from the recognition that displacement is understood as distinct from other migrations because it is less voluntary, it is inappropriate to view displacement as an ‘adaptation’ strategy. It is important, instead, to ensure the narrative shifts towards one of displacement as ‘loss and damage’ within the climate regime and for potential legal consequences beyond the climate regime.
Since the signing of the UNFCCC in 1992, the climate regime has evolved to include three pillars: Mitigation, Adaptation, and most recently, Loss and Damage. Mitigation focuses on preventing further climate change through reducing greenhouse gas (GHG) emissions. Where mitigation is no longer possible and the adverse effects of climate change are occurring, Adaptation is then concerned with enabling communities and individuals to cope with the new conditions. Where adaptation fails, the third pillar, Loss and Damage, aims to provide remedies. Obviously, Mitigation is not the appropriate place for addressing displacement, so it is often under the Adaptation pillar that discussions begin. However, even a brief look at how Adaptation is understood will highlight why displacement does not fit into this category.
Adaptation refers to the process of adjusting to the changing climate conditions to reduce vulnerability and build resilience. It involves actions such as restructuring cities, implementing new technologies, and changing practices to cope with the impacts of climate change. In the context of sea-level rise, for example, one might consider planting mangroves or building sea walls as efforts to adapt to the changing conditions. While the rhythms of life may change, the community remains in place and maintains its structure and its way of life. There can clearly be positive outcomes from relocations carried out through Adaptation mechanisms. Similarly, a refugee may enjoy new opportunities from resettling in a new country. But in neither case does that make the initial displacement voluntary, or in some way preferable. Like resettlement programmes, one might argue that positive outcomes may result from planned relocations being included in National Adaptation Plans (NAPs), but that should not obscure the fact that such NAPs were only necessary because of failures to mitigate the climate crisis. (For more on Adaptation see Persson.)
From the point at which adaptation fails, then Loss and Damage becomes the appropriate mechanism within which to address the issue. One may reasonably ask why it matters under which pillar displacements are framed, and a complete answer is beyond the scope of this article. Here are three reasons why it matters, each of which will be discussed in detail below. Within the climate regime, Adaptation and Loss and Damage are addressed through different mechanisms, and the latter is more appropriate. Second, there may be legal options for reparations or other remedies outside the climate regime that could be weakened by framing movements as adaptation strategies and failing to recognise the losses suffered. Third, there is value in recognising an injustice, even if it is symbolic.
Looking at the first point, there are practical implications for where in the climate regime these displacements are situated. For example, Article 12(8) of the Kyoto Protocol requires developed States “to assist developing country Parties that are particularly vulnerable to the adverse effects of climate change to meet the costs of adaptation.” It is significant that the Kyoto Protocol is a legally-binding treaty, but the language does not include any specific obligations other than to generally ‘assist’.
Loss and Damage, by contrast, involves identifying duty bearers (responsible States) and rights holders (injured States). This third pillar of the climate regime only found equal status with mitigation and adaptation in Article 8 of 2015’s Paris Agreement. It is worth mentioning that Article 8 specifically identifies ‘slow-onset events’ and ‘irreversible losses’, including ‘non-economic losses’, as areas under this pillar. Loss and Damage mechanisms are still emerging, and there is extensive debate to be had about its strengths and weaknesses. However, ‘slow-onset events’ and ‘irreversible losses’, including ‘non-economic losses’, are explicitly noted as being within the purview of the original Loss and Damage Mechanism, the Warsaw International Mechanism (WIM), in the Paris Agreement (Article 8(4)). This reflects an understanding that planned relocations represent losses, and that this is the appropriate pillar within which to address those losses.
The Loss and Damage approach certainly has its shortcomings, not least of which is the failure to thus far see the mechanisms fully up and running. After including Loss and Damage in the Paris Agreement, it took another six years before the Loss and Damage Fund (LDF) was finally agreed. Even then it only recognised broad goals like ‘addressing loss and damage’ and providing ‘additional resources’ to developing countries. One positive for developing States suffering internal displacements in the form of planned relocations, was an agreement that the LDF would be governed by a board with a majority of members from developing States. Another positive was that various countries pledged initial contributions totalling around USD770 million. Of course, this is only a fraction of the funding needed. While these shortcomings of Loss and Damage mechanisms are discouraging, there is still hope that the governance of the fund might mean some form of justice for the developing States disproportionately faced with providing for displaced persons and carrying out planned relocations.
In addition to the pledged funding being insufficient, another shortcoming is that, like Adaptation assistance, Loss and Damage mechanisms are emerging as systems of voluntary aid, not reparations. Voluntary aid is given at the discretion of the donor, like charity. Reparations, by contrast, are compulsory and owed due to a wrongful act, which represents justice for the injured State. (See more on justice v. charity in climate change context.) The exclusion of references to ‘justice’ in the Loss and Damage Fund agreement is not accidental. For example, John Kerry, the US Climate Envoy at the time, stated that ‘under no circumstances’ would the US agree to reparations. As the States most responsible for the climate crisis refuse to accept accountability or make reparations, developing States suffering the worst effects have only the options of charitable grants at best, or loans at worst. In fact, the ‘majority of climate finance is still leveraged through debt’. By omitting responsibility and liability, the Loss and Damage pillar fails to address the imbalance of power between donor and recipient States. Providing reparations for the loss and damage caused by climate change would empower developing States to control their own responses while also recognising the responsibility of the States contributing most to climate change. Despite these shortcomings, Loss and Damage does offer an alternative framing to the assertion that displacement is a voluntary adaptation strategy. This, in turn, allows advocates for the displaced to continue arguing for reparations in some form.
The second important reason for insisting on a narrative of loss rather than adaptation is the potential for legal remedies outside the climate regime. To be clear, there are not, at the time of writing, any cases of which the author is aware of reparations being paid, or even claimed, for planned relocations or any other form of displacement. However, the potential exists that courts may one day take up such cases. Recent jurisprudence around climate change suggests a widespread agreement that State failures to act to mitigate the climate crisis are, in fact, human rights violations. 2024 has seen the first case of an international (regional) court ruling that a State was in violation of human rights obligations for failing to meet GHG reduction targets (see, KlimaSeniorinnen v Switzerland (ECtHR)). If States are committing wrongful acts, if they are in breach of international obligations, then international law requires that reparations follow. Additionally, the recent Advisory Opinion from the International Tribunal for the Law of the Sea (ITLOS) recognised some important legal principles relevant to climate justice. For example, ITLOS noted that the climate regime was not a closed system, and that it did not constitute lex specialis. That leaves open the possibility that States could be sued for damages outside of the climate regime. A more detailed look into this is beyond the scope of this article, but it is important to note that jurisprudence related to climate justice is growing, and the potential for displacement to be argued as a material injury requiring reparations, or some form of liability, is possible. Allowing the promotion of a narrative of ‘adaptation strategies’ rather than loss would weaken potential claims.
Third, there is value in recognising that relocations, whether sudden or planned, represent real losses for those displaced, even if that recognition is largely symbolic. It acknowledges that those most responsible for causing climate change failed to mitigate the adverse effects of climate change by reducing their GHG emissions in a timely manner, and that their assistance in adaptation efforts was insufficient. Beyond the purely symbolic, this positioning allows a prima facie determination that the planned relocation is predominantly involuntary and the displaced are victims. Then any claim to the contrary must be argued proactively. By contrast, maintaining the position that these are ‘adaptation strategies’ has the effect of asserting the prima facie understanding that the movement was predominantly voluntary and burdens the displaced persons or communities with establishing proof that the displacement was somehow forced. Further value to recognising planned relocations as losses rather than adaptations is that it shifts discussion away from the assistance model of adaptation, which is charitable , and towards a model of liability and responsibility, which offers justice for injuries suffered. Again, the advocates for the emerging loss and damage approach within the climate regime are battling against those who would position the Loss and Damage Fund as a form of charity, perpetuating imbalances between donors and recipients, and allowing responsible States to avoid accountability. But it is still more appropriate to insist on a persistent framing of planned relocations, or any form of climate-induced displacement, as involuntary and representing loss rather than allowing narratives that suggest that such movements are more voluntary than they are.
Conclusion
It is critical that planned relocations be recognised as primarily involuntary displacements, and that involuntary displacements be appropriately situated within the Loss and Damage framework. If the loss of a home, a village, and a culture associated with a physical place is considered an adaptation, one must wonder what could possibly constitute a loss. Framing displacements, including planned relocations, as adaptations is academically inaccurate, unfair to those being displaced, and in contrast to the established frameworks of both the climate regime and displacement policy. It is imperative that scholars and practitioners reject this mislabelling and recognise displacements, planned or otherwise, as examples of loss and damage. Further, appropriately recognising these movements as losses leaves open the potential for legal remedies outside the climate regime, even if that approach is currently on the edges of legal reasoning. Finally, properly acknowledging losses suffered is an important step toward realising justice for those suffering the worst effects of climate change.
KEYWORDS: Displacement; Planned Relocation; Loss and Damage; Adaptation; Climate change
Brian Aycock is an Assistant Professor (International Law) at International Christian University, in Tokyo. He has conducted research into planned relocations in Fiji and is currently working on issues related to climate justice for developing States.
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