Challenges and Prospects

TA Khanh-Linh

Abstract

Since 1990, the Intergovernmental Panel on Climate Change (IPCC) has identified human mobility as a significant consequence of climate change. Despite this acknowledgment, individuals referred to as “climate refugees” remain excluded from protection under the 1951 Refugee Convention. Furthermore, national and international responses to this crisis have been inadequate, leaving those displaced by climate change without sufficient safeguards. Southeast Asia, where over one-third of the population resides in regions highly vulnerable to coastal floods and rising sea levels, faces heightened risks from severe weather events and ongoing environmental degradation.

This paper addresses the regulatory gaps concerning “climate refugees” in Southeast Asia by building on Beatriz Felipe Pérez’s four categories of migration in the context of climate change. It examines the potential application of ASEAN’s climate and labour migration policies, as well as human rights and statelessness frameworks, to assess their effectiveness in providing regional governance for climate-induced displacement. The analysis highlights the mutual reinforcement of these regimes and evaluates their practical significance in enhancing the protection of “climate refugees” in the region. Finally, it considers the challenges and opportunities for ASEAN in advancing the rights and welfare of affected individuals, providing a forward-looking perspective on regional cooperation.

Keywords: ASEAN, Climate change, Human mobility, Regional governance, Labour migration, Refugees, Statelessness.

Résumé

Depuis 1990, le Groupe d’experts intergouvernemental sur l’évolution du climat (GIEC) a identifié la mobilité humaine comme une conséquence majeure du changement climatique. Malgré cette reconnaissance, les individus qualifiés de « réfugiés climatiques » restent exclus de la protection offerte par la Convention de Genève de 1951 relative au statut des réfugiés. Par ailleurs, les réponses nationales et internationales à cette crise se révèlent insuffisantes, laissant les personnes déplacées en raison du changement climatique sans protection adéquate. En Asie du Sud-Est, où plus d’un tiers de la population vit dans des zones particulièrement vulnérables aux inondations côtières et à l’élévation du niveau de la mer, les risques liés aux catastrophes climatiques et à la dégradation environnementale sont particulièrement élevés.

Cet article aborde les lacunes réglementaires concernant les « réfugiés climatiques » en Asie du Sud-Est en s’appuyant sur les quatre catégories de migration dans le contexte du changement climatique proposées par Beatriz Felipe Pérez. Il examine l’application potentielle des politiques de l’ASEAN en matière de climat et de migration de main-d’œuvre, ainsi que des cadres relatifs aux droits de l’Homme et à l’apatridie, pour évaluer leur efficacité à établir une gouvernance régionale en faveur des déplacements causés par le changement climatique. L’analyse met en lumière les interactions entre ces régimes et évalue leur importance pratique pour renforcer la protection actuelle des « réfugiés climatiques » dans la région. Enfin, l’article explore les défis et les opportunités pour l’ASEAN afin de mieux garantir les droits et les intérêts des individus affectés, en offrant une perspective tournée vers l’avenir sur la coopération régionale.

Mots-clés : ASEAN, changement climatique, mobilité humaine, gouvernance régionale, migration de main-d’œuvre, réfugiés, apatridie.

  

The effects of climate change can interact with and potentially amplify pre-existing threats and other sources of instability, making it a “threat multiplier” that increases security vulnerabilities.^[1] As such, it has become one of the major reasons that people migrate. The Intergovernmental Panel on Climate Change (IPCC) issued a warning in 1992, emphasising the potential severity of climate change’s impact on human mobility, that one of the most important effects could be the displacement of millions of people due to shoreline erosion, coastal flooding, and severe drought.^[2] Moving forward, the International Organization for Migration (IOM) recognises that the projections for environmental migrants by 2050 can range from 25 million to 1 billion with 200 million being the most widely cited estimate.^[3]

1. Climate Change, Human Mobility and Southeast Asia

Southeast Asia is a “hotspot” for severe weather outbreaks and persistent environmental degradation.^[4] Hence, 1.4% to 2.7% of the population of the Association of Southeast Asian Nations (ASEAN) Member States (AMS) anticipate significant effects from climate change, including human migration and relocation due to increasing sea levels, coastal flooding, and powerful storms^[5]. The Philippines, Myanmar, Thailand, and Vietnam are among the top 10 nations in the world most affected by climate change, according to the Global Climate Risk Index (CRI)^[6]. The predicted rise in sea levels by 70 cm by 2100 will particularly affect Southeast Asian countries like Indonesia, the Philippines, Thailand, and Vietnam.^[7] Future settlement crises are a real threat, especially in densely populated coastal cities like Jakarta, Manila, Bangkok, Yangon, and Can Tho.

In the particular case of climate-induced displacement, the lower Mekong subregion of Southeast Asia is expected to experience internal displacement owing to climate-related reasons for 3.3 million to 6.3 million people between now and 2050, according to the 2021 World Bank’s Groundswell Reports.^[8] Although there have been few attempts to estimate the number of people in the region who are forced to relocate across borders due to climate change, the physical geography of Southeast Asia and the Greater Mekong sub-region indicates that cross-border migration may become a major concern as the effects of climate change worsen.^[9]

2. From “Climate Refugees” to “Climate Migration”

Despite the gravity of the issue, both national and international responses to this challenge for the past 30 years remain constrained and the protection offered to those affected is inadequate.^[10] At the forefront of the matter lies the absence of a commonly agreed-upon definition. The term “climate refugees” which is frequently used in mass media, has sparked heated debates among scholars, activists, and policymakers.^[11] This term while particularly linked to the initial phases of contemplating the relationship between climate change and human mobility, bears no legal significance.^[12]

Individuals displaced due to climate-related circumstances are not protected under the 1951 Refugee Convention. This Convention specifically addresses people who are unable or unwilling to seek shelter in their home countries and who fear persecution because of their race, religion, nationality, membership in a particular social group, or political opinion.^[13] Hence, climate-related reasons are currently not recognised as grounds for seeking asylum or refugee status.^[14]

In this context, the paper draws on Beatriz Felipe Pérez’s four categories of climate migration to encompass a broad range of human mobility scenarios influenced by climate change. This framework aims to “provide insight into the extent to which each relevant branch of international law could be better applied to the different climate migration scenarios”.^[15] Pérez distinguishes between four key types of migration (i) climate-emergency migration, (ii) climate-induced migration, (iii) climate-forced migration and (iv) migration in/ from small island states.^[16]

Accordingly, “Climate-emergency migration” occurs either before or immediately after sudden‑onset disaster events. In contrast, “Climate-induced migration” takes place in gradually changing environments, where economic and livelihood impacts become evident early. In both cases, migrants retain some degree of choice in their decision to relocate. However, “Climate‑forced migration” arises in the context of severely deteriorated environments, where staying is no longer a viable option. Finally, “Migrants in/from small island states” face the most extreme scenario, characterised by the complete loss of their environment due to rising sea levels and other irreversible impacts.^[17]

Taking into account Pérez’s approach, this paper will employ the overarching terms “Climate migration” and “Climate-induced displacement” interchangeably to address the broadest scope of the issue. While doing so, it aims to evaluate the extent to which international environmental law and ASEAN’s general climate regime can play a role in setting up political climate discourse surrounding the root cause of “Climate migration”. To be more specific, this paper will use the term “Climate-emergency migration” when addressing the relevance of particular disaster risk reduction and climate change adaptation (DRR-CCA) policies. This paper will also explore the applicability of ASEAN’s labour framework in the case of “Climate-induced migration”. In addressing the relevance of international and regional human rights frameworks, the paper will focus on “Climate-forced migration”. Moreover, the concern regarding the applicability of ASEAN’s statelessness law will arise in the context of “Migration to/from small island states”.

3. ASEAN for “Climate Migration”

The absence of a comprehensive regulation on internal climate migration by individual AMS and the lack of regional measurement on climate cross-border migration among all AMS are the two key issues with the current condition of ASEAN’s climate migration management.^[18] However, the current ASEAN system does offer a certain degree of hope for affected migrants seeking protection for their rights and interests as well as a temporary framework of support and assistance that reflects the collective commitment of AMS toward alleviating the immediate challenges arising from their displacement. These efforts are reflected in the 4 interlinked regimes in accordance with each group of climate migrants as categorised.

3.1. ASEAN Environmental Framework for “Climate Migration” and “Climate-emergency Migration”

3.1.1. ASEAN General Climate Framework for “Climate Migration”

Although ASEAN’s current climate policies do not specifically address climate migration, its effort to help mitigate and adapt to climate change helps alleviate the root cause of the issue.^[19]

Considering ASEAN’s stance in the ongoing climate discussions, all eleven members of the ASEAN – including Timor-Leste’s current in-principle membership status^[20] – are parties to the 1922 United Nations Framework Convention on Climate Change (UNFCCC or Framework) and have ratified both the 1997 Kyoto Protocol and the 2015 Paris Agreement.^[21] Therefore, following their different commitments under the obligations for climate mitigation and adaptation, all Southeast Asian States must safeguard the rights and interests of climate migrants. Particularly, each AMS is required to mitigate climate change and its impacts as the root cause of climate migration and implement adaptation strategies that safeguard the rights and interests of the impacted migrants.

ASEAN has reaffirmed AMS’s commitment to the 1922 Framework, 1997 Protocol, and 2015 Agreement at the regional level in its most recent Joint Statement on Climate Change to COP27.^[22] There, ASEAN attempted to acknowledge that climate change would negatively affect basic human necessities.^[23] In the process, it called on AMS to intensify its adaptation efforts by putting ecosystem-based policies and solutions into practice, among other things, with a particular focus on protecting the livelihoods of the most vulnerable populations. In a sense, ASEAN did not specifically voice concerns about climate migration. However, by welcoming the Working Group II contribution to the IPCC AR6 on Impacts, Adaptation, and Vulnerability in November 2022, ASEAN has indirectly acknowledged the existence of climate migrants in the region.^[24]

In particular, Working Group II has acknowledged that catastrophic weather and climatic events have caused displacement and involuntary migration and that these events have been made more likely by climate change, which has created and maintained vulnerability.^[25] It strongly suggested that there will be a surge in climate-related displacement as a result of the mid-to-long-term intensification of severe precipitation and the concomitant flooding, tropical cyclones, drought, and, gradually, sea level rise.^[26] Therefore, Working Group II urged governments to strengthen their capacity for adaptation to reduce the adverse effects of climate change on both home and host countries.^[27] By increasing the degree of choice available for migration, AMS can promote safer and more orderly migrations of people between countries by assisting individuals engaged in climate-sensitive economic activities. The Working Group recommended states to address vulnerabilities that represent obstacles to in situ adaptation and livelihood options, as well as to implement current migratory accords and development targets, to decrease future risks of displacement and involuntary migration.^[28]

Through ASEAN’s joined acknowledgement of these findings, AMS subtly demonstrated its agreement and common values when it comes to tackling the problem of climate migration. These joint statements serve as a platform for future political discourse, the creation of consensus, and the negotiation of an AMS policy on climate migration, even though they are not legally binding. As a result, they will greatly influence the development of both AMS’s national rules and ASEAN’s collaborative policies and initiatives regarding climate migration.

3.1.2. ASEAN Disaster Risk Reduction and Climate Change Adaptation (DRR-CCA) Framework for “Climate-emergency Migration”

ASEAN demonstrates a prompt response to severe and recurrent environmental issues. While Marthin and Budiman regard this as a major issue of ASEAN in arranging long-term environmental priority,^[29] the best applicable ASEAN framework for addressing climate-emergency migration is found under the current disaster management and emergency response system.

In this context, ASEAN Member States (AMS) are obligated under ASEAN’s Disaster Risk Reduction and Climate Change Adaptation (DRR-CCA) framework to collaborate in addressing mass population influxes caused by environmental disasters. Such collaboration should align with ASEAN’s shared objective of mitigating the adverse effects of climate change to foster safer communities and promote sustainable development. This commitment is enshrined in the 2005 ASEAN Agreement on Disaster Management and Emergency Response (AADMER). As a legally binding regional framework guiding ASEAN’s disaster management and response efforts, the 2005 AADMER stands as the most suitable tool for addressing climate-emergency migration.^[30]

Although the 2005 AADMER does not include a specific clause addressing climate-emergency migration, it provides a vital framework for collaboration among ASEAN Member States (AMS). It facilitates the monitoring of hazards with transboundary impacts and supports the preparation of Standard Operating Procedures for the transboundary movement of military and civilian personnel, transportation and communication equipment, facilities, goods, and services. These measures aim to minimize losses and enhance disaster response capabilities across the region.^[31]

In 2020, to incorporate AADMER with (i) ASEAN Vision 2025 on Disaster Management, (ii) ASEAN Declaration on One ASEAN One Response, and (iii) ASEAN ICT Roadmap on Disaster Management for 2025, ASEAN developed the AADMER Work Programme.^[32] The 2020 Work Programme is designed to span between 2021 and 2025 with a plan to create a region of disaster-resilient nations, mutually assisting and complementing one another, sharing a common bond in minimising the adverse effects of disasters for safer communities and sustainable development. Crucially, it is the first ASEAN document to indirectly acknowledge the influence of climate change on migration.^[33]

Shortly thereafter, ASEAN formally recognized the high propensity for migration resulting from climate change in the 2021 ASEAN State of Climate Change Report. The Report highlights that the rising rate of migration could soon pose a significant threat to the region, as a considerable portion of the population resides in areas highly vulnerable to natural disasters and sea-level rise.^[34] While the Report itself carries no legally binding obligations for ASEAN Member States (AMS), it signals a pivotal step toward further discussion and regulation of climate-related emergency migration.

ASEAN’s enforcement framework for disaster management and emergency response also plays an important role in aiding climate-emergency migration. Chesterman states that networking, mutual accommodation, consultation, and consensus define ASEAN’s strategy for carrying out these commitments and monitoring AMS’s compliance.^[35] The 2007 ASEAN Charter defined the Secretary-General’s responsibilities, including facilitating and overseeing the implementation of the ASEAN Socio-Cultural Community Blueprint 2025 and reporting annually to the ASEAN Summit on ASEAN’s activities.^[36] At the same time, the 2005 AADMER specifically required AMS to “transmit to the Secretariat reports on the measures taken for the implementation of this Agreement in such form and at such intervals as determined by the Conference of the Parties”.^[37]

As a result, it created a more robust enforcement mechanism, compelling ASEAN to shift from primarily depending on consensus and cooperation to a reporting and monitoring structure akin to those made at the global level. In that sense, it strengthens AMS’s already-existing international climate duties and provides a related incentive for them to adequately manage both climate migration in general and climate-emergency migration in particular.

3.2. ASEAN Labour Framework for “Climate-induced Migration”

According to Pérez, “climate-induced migration” often takes the form of labour/economic migration.^[38] Hence, Pérez believed that although the 1990 International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families (Migrant Convention) does not explicitly mention environmental or climatic causes for migration, they offer those who fit in the definition protection for not only themselves but also their family.^[39] This protection includes a safeguard mechanism to uphold these climate-induced migrant labourers and their families’ right to life, not to be subjected to torture, inhuman or degrading treatment, freedom of thought, conscience and religion and the right to not be subject to measures of collective expulsion.^[40] However, Indonesia and the Philippines are the only two ASEAN countries which ratified the 1990 Migrant Convention.^[41] As such, the majority of Southeast Asian climate-induced migrants are left out of the equation. This selective ratification or endorsement of international migration instruments as a whole indicates ASEAN’s disengaged stance regarding the particular issue of climate-induced migration.^[42]

Such a reluctance attitude of the region is reflected in almost every ASEAN’s labour migration initiative. Accordingly, while the 2007 ASEAN Declaration on the Protection and Promotion of the Rights of Migrant Workers (DPPRMW)^[43] is believed to formulate a potential right-based approach to climate-induced migration that fits within its scope, the reality is much different.^[44] However, Petcharamesree noted that the Preamble of the 2007 DPPRMW weakens the agreement. This is because it acknowledges and prioritises state autonomy in deciding their migration policies including regulating entry into their territory and the terms under which migrant workers may remain^[45]. Therefore, it excludes any possibility of a regional strategy for climate-induced migrant workers because each state has complete control over the issue despite the well-stated acknowledgement to address “cases of abuse and violation against migrant workers whenever such cases occur”.^[46]

Bypassing the hope for a common regional approach to climate-induced migration, ASEAN’s subsequent advancements in migrant regulation post-2007 also indicate a tendency to restrict the scope of migrant labourers eligible for ASEAN’s protection. The 2012 Agreement on Movement of Natural Persons, which eases the temporary migration of highly skilled individuals, is mainly connected to business and investment activities.^[47] Considering that approximately nine out of every ten migrants seeking employment within ASEAN are categorized as low-skilled or semiskilled^[48] these new provisions only cover a fraction of the total labour migration flows in the Southeast Asian region. Moreover, applying the current context where climate-induced migrants are often categorised as unskilled labourers, the chance for them to be protected under the scope of this agreement is even thinner.

This limited approach continues to be reflected in the 2017 ASEAN Consensus on The Protection and Promotion of The Rights of Migrant Workers. Asis and Maningat observed that this newly proposed instrument while strengthens the legality of the 2007 ASEAN Declaration on the Protection and Promotion of the Rights of Migrant Workers, still only addresses legally resident migrant workers, a scope considerably narrower than the majority of international instruments at the moment.^[49] Most significantly, these instruments are mainly concerned with the processes for controlling the flow of workers and typically ignore the fundamental problem of migrant rights protection. This leads to the fact that even in the unlikely event that some climate-induced skilled migrant workers fall under the purview of this current protection, their rights and interests are not guaranteed.^[50]

At the same time, the likelihood of ASEAN successfully implementing its labour framework to protect the rights of all workforce migrants inside the area is also increasingly uncertain. This is because the enforcement mechanism of ASEAN’s labour migration framework lacks substantial follow-up on member states’ commitments^[51] due to its longstanding principle of non-interference.^[52]

In particular, to oversee the declaration’s implementation, ASEAN established the ASEAN Committee on the Implementation of the ASEAN Declaration on the Protection and Promotion of the Rights of Migrant Workers (ACMW) in 2007. The responsibilities of the ACMW include organising the annual ASEAN Forum on Migrant Workers, developing an ASEAN instrument on migrant workers’ rights, preparing pre-departure materials for ASEAN migrant workers, working with relevant international organisations on “Safe Migration” campaigns and pre-departure materials for migrants, and promoting communication between itself and those engaged in smuggling and human trafficking.^[53] However, the sensitivity of the subject and the lack of agreement among AMS have made progress in carrying out this specialised Committee’s mandates noticeably slow.^[54]

Given that migration continues to be regarded by AMS as a sensitive issue^[55] and the enforcement of ASEAN’s labour migration application framework is limited, the prospect of ASEAN adopting a broader perspective to recognize the role of climate change in the migration context is certainly not any time soon.

3.3. ASEAN Human Rights Framework for “Climate-forced Migration”

The responsibility of each ASEAN Member State (AMS) to address the issue of climate-forced migration depends on its individual signatory status, ratification of relevant treaties, and adherence to applicable human rights agreements. In this context, climate-forced migration intersects with rights protected under the 1966 International Covenant on Civil and Political Rights (ICCPR) and the 1966 International Covenant on Economic, Social and Cultural Rights (ICESCR). Specifically, seven out of the eleven ASEAN members – excluding Brunei Darussalam, Myanmar, Malaysia, and Singapore – are parties to the 1966 ICCPR.^[56] Additionally, Brunei Darussalam, Malaysia, and Singapore have not signed or ratified the 1966 ICESCR, meaning only eight out of eleven AMS are parties to the ICESCR.^[57]

As a result, while the majority of AMS have obligations to protect the rights of climate-forced migrants under the ICCPR and ICESCR, not all of them are bound by these commitments. For those AMS to whom these obligations apply, the expectation is to respect, protect, and fulfill human rights by: (1) strengthening climate actions to prevent foreseeable harms associated with climate‑forced migration, (2) providing for climate-forced migrants in line with the non‑refoulement principle, and (3) ensuring minimum standards of living and health for displaced individuals. Protection.

Although this does not lead to a single unified ASEAN strategy for climate-forced migration, it offers a valuable framework for developing common practices among AMS to address the growing crisis in the region.

Stange et al. noted that within the particular regional context, ASEAN lacks a cooperative regional framework on the issue of forced migration in general or climate-forced migration in specific.^[58] However, given its broad coverage and flexibility, there is no denying that ASEAN’s human rights regime can offer some protection for climate-forced migrants.^[59] Yet, this does not imply that it is entirely adequate.

Accordingly, the foundational defence of human rights in ASEAN was taken in 2009 with the creation of the ASEAN Intergovernmental Commission on Human Rights (AICHR). As an ASEAN charter-based body, the AICHR is mandated to promote and protect the human rights of all groups within the ASEAN population.^[60] However, not only climate-forced migration isn’t in any of its focus policies, but the AICHR has also been criticised for the limitation of its legal personality and the reduction of its effectiveness when concerned with cross-border human mobility issues. Its reaction to the Rohingya-Myanmar Crisis is an alarming example.^[61]

The adoption of the 2012 ASEAN Human Rights Declaration provided a seemingly better ground for the protection of climate-forced migrants.^[62] Accordingly, Article 15 of this Declaration requires states to respect the right to freedom of movement and residence within the borders of each State and provides that every person can leave any country including his or her own, and to return to his or her country^[63]. However, Petcharamesree highlighted that this right does not ensure that migrants compelled by climate change can pass or enter another state in the region.^[64] Another instance is Article 16 of the Declaration which recognises the right to seek and receive asylum in another State.^[65] Yet, this right is also limited to what is permitted by the laws of such states and any applicable international agreements. Consequently, the protection and promotion of the rights of climate-forced migrants under the ASEAN regime are up to each state’s mercy and discretion.

In this regard, while certain policies and regulations for the protection of forced migrants compelled by climate change are in place within ASEAN’s human rights regime; the recognition and protections of climate-forced migrants would mostly be left largely to the will of national governments which may not comply with international human rights standards. Hence, the ASEAN human rights regime does little to build stronger incentives or impose greater human rights responsibilities on AMS to address the problem of climate-forced migration.^[66]

Moreover, Petcharamesree contended that the lack of a human rights court and regional authorities to hear complaints or carry out investigations makes the ASEAN human rights regime a poor venue for pursuing protection and remedies for climate-forced migrants.^[67] At the same time, Stange et al. noted that in addressing the problem of climate-forced migration, AMS has primarily taken a unilateral approach^[68]. According to Amer, this is mostly because of the very strong guiding principles of ASEAN, which include respecting state sovereignty, abstaining from meddling in member states’ internal affairs, consulting and reaching consensus, and limiting the scope to which certain rights are applicable.^[69] Such an approach prevents ASEAN from taking any legally binding actions toward AMS’s non-compliance with any human rights obligation related to climate-forced migration.

Because of this, there is no shared regional incentive within ASEAN to carry out its human rights commitment to safeguarding the rights and interests of climate-forced migrants. Instead, the organisation functions mainly as a forum for its eleven member states, each of which is motivated by its own dominant national approach to the problems.^[70] Thus, ASEAN does not significantly increase AMS’s motivation to carry out its human rights duties concerning climate-related forced migration in the region.

3.4. ASEAN Stateless Framework for “Migration to/from Small Island States”

The 1954 Convention relating to the Status of Stateless Persons^[71] (Status of Stateless Convention) and the 1961 Convention on the Reduction of Statelessness^[72] (Reduction of Statelessness Convention) are international treaties specifically designed to protect stateless persons. Though it is still unclear if people who migrate to or from small island nations could lose their statehood de jure as a result of the loss of state territory,^[73] it is evident that since the 1961 Reduction of Statelessness Convention establishes specific obligations to prevent and reduce statelessness, it should be enforced to prevent the state from collapsing due to the loss of land brought about by sea level rise.^[74] In this current case, those in the category of migration to/from Small Island States confront the unprecedented risk of seeing their territory become entirely uninhabitable in the short term or permanently submerged under ocean waters in the long term.^[75] As such, where climate migration might potentially end in statelessness, the applications of these provisions are crucial to address this growing issue.^[76]

Among AMS, the Philippines, Singapore, Indonesia, East Timo, Brunei Darussalam and East Timo are island states. Hence, their inhabitants face heightened vulnerability to rising sea levels and other environmental degradation linked to climate change.^[77] However, ASEAN exhibits the lowest degree of adherence to the two Statelessness Conventions as compared to other regions.^[78] The Philippines, which became a party to the 1954 Status of Stateless Convention in 2011, is the only AMS that has remained a party to it. None of all AMS have accepted the 1961 Reduction of Statelessness Convention.

Despite this status, ASEAN does possess mechanisms to address the issue of statelessness in Southeast Asia.^[79] Accordingly, provisions to protect people from being stateless are recognised by the 2012 ASEAN Human Rights Declaration. Hence, the promotion and defence of human rights related to statelessness at the regional level is the mandate of both the ASEAN Intergovernmental Commission on Human Rights (AICHR) and the ASEAN Commission on the Promotion and Protection of the Rights of Women and Children (ACWC). While their efforts are also restrained by ASEAN’s consensus and non-interference principle, they still have a good influence on AMS through capacity building, promoting exchanges of good practices and relevant global norms and standards to recognise and protect the rights of stateless persons in the region.^[80]

Another relevant effort was made in 2015 with the establishment of the ASEAN Community Vision 2025. There, ASEAN’s overarching goal of creating a people-centred, people-oriented, and inclusive society by 2025 – a regional community that upholds, protects, and advances the rights of every individual provides a foundation for ASEAN statelessness efforts.^[81] Taking an example, in 2016, the ACWC suggested that ACWC Viet Nam “lead an evaluation of the progress of initiatives in promoting the right to a nationality for women and children, and consider future steps in collaboration with UNHCR, ACWC Representatives and other related bodies” to advance the ASEAN Community’s development and the fuller realisation of the rights of nationality to all ASEAN’s peoples.^[82] Such a program does demonstrate a certain degree of willingness to protect the rights of stateless persons from the ASEAN side.

However, until now, these efforts have primarily focused on addressing the immediate concerns by providing birth registration and legal identity to those affected, rather than proactively taking steps to prevent statelessness from occurring in the first place. This approach is limited to reacting rather than adopting preventive measures, which are essential in effectively addressing the issue of potential statelessness due to climate change of migration to/from small island states in the long term. In that sense, ASEAN’s stateless framework does not offer any support for the current situation of displacement due to climate change in Southeast Asia.

4. Challenges and Prospects for ASEAN

The applicability of the 4 interlinked ASEAN frameworks to each category of climate migrants presents a general landscape of ASEAN’s current and potential solution to the issue at hand. In this picture, the response offered by ASEAN is not yet adequate. This status, combined with the current struggle toward enforcing the promises made in relevant policies and declarations, highlights the existing challenges that ASEAN needs to face to effectively deal with the growing number of displacements brought on by climate change in the region. These challenges include:

4.1. Challenge 1: Including and Prioritising Climate Migration Issues in the ASEAN Agenda

Petz and Rum argued the absence of political will and proactive efforts among AMS has led to the lack of a regional convention—a crucial platform and beginning point for addressing and elevating the urgency of climate migration.^[83] These challenges have further compounded the under-discussed topic of climate migration. At the same time, AMS’s reluctance to cossSmmit to migration initiatives and low performance in climate actions create a practical challenge for ASEAN to build a strong incentive to protect Southeast Asian climate migrants.

Looking at the climate effort, human mobility and climate-induced displacement have not been directly acknowledged in any of the ASEAN climate core instruments as well as joint declarations to COP despite the growing urgency of the issue. ASEAN has also been too focused on the “big goal” of achieving net zero and simply managing disasters and their casualties to see the need to govern mobility in the context of climate change. At the same time, Marthin and Budiman asserted that ASEAN’s current governing mechanism of its environment is too restricted to the generation of knowledge based on major urges and acceptance by its AMS to determine which issue continues to be a priority.^[84] As such, some aspects of environmental concerns like human mobility and displacement continue to be left out of ASEAN’s future vision while some other issues are given too much attention.

While AMS is generally agreed about climate change, the topic of migration is often contested. It is undeniable that the majority of the states in the region view migration issues as sensitive.^[85] Such a reluctance to directly discuss the topic adds to the ambiguity of the issue in the region. Hence, ASEAN’s capacity to create any policies and solutions to migration brought on by climate change is still limited if this “sensitive” viewpoint surrounding migration issues isn’t addressed. This challenge, according to Elder and Miyazawa reflects ASEAN’s fragmented and bureaucratic organisational structure which causes its Working Groups to lack substance and its decision-making process to be slow.^[86] Overcoming such designs would allow ASEAN to fulfil its role as the regional institution for climate migrants in the region.

4.2. Challenge 2: Monitoring AMS to Perform Obligations Related to Climate Migrants

The current practices of AMS raised an alert as to how ASEAN will manage its members to uphold their commitments that are relevant to addressing the issue of climate migrants. Ding and Beh observed that although AMS has made significant efforts to protect against climate change following their climate obligations under the 1992 UNFCCC, their environmental performance is not up to par with that of other regions.^[87] With most climate instruments being non-binding, compliance with any climate obligations will depend heavily on the AMS’s willingness.^[88] As such, ASEAN is put under the question of how-to best address this “Achilles’ heel” and hold AMS accountable for any wrongdoing related to the issue of climate migrants within the climate framework.^[89]

Concerning compliance with their human rights commitments, Southeast Asian states are also not well-performed. Only two out of eleven AMS, Cambodia^[90] and the Philippines^[91] have fully engaged in the process of both ICCPR and ICESCR’s treaty report procedures. Thailand^[92] and Timor-Leste^[93] are running behind with no report submitted in due dates for their ICCPR’s report obligations while Myanmar,^[94] Thailand, Vietnam^[95] and Timor-Leste are all late in their ICESCR’s state report deadlines. As for ASEAN’s own human rights framework, there is no denying that ASEAN is without a human rights court and specialised mandates as well as under the heavy influence of the non-interference principle. Hence, there is little ASEAN can offer from the human rights perspective to the issue of climate migration despite its promising applicability.

Notwithstanding these challenges, ASEAN continues to serve as a valuable regional framework for effectively addressing crises within its purview. The existing instruments pertinent to the issue of climate migration, as discussed above, highlight what ASEAN can contribute. Such contribution offers some prospects including:

4.3. Opportunity 1: Supporting a Regional Solution to a Regional Crisis

Williams maintained that a regional arena might be a more effective way to coordinate an alternative system for resolving the situation of persons displaced by climate change.^[96] Supporting this view, Mayer asserted that regional governance offers stronger environmental cooperation to tackle issues like migration brought on by climate change.^[97] In a sense, such an approach allows ASEAN to satisfy its “will to differ” and to “evolve on its own path”^[98] in the context of applying an “ASEAN way” in dealing with an issue that sparked interest from the Western side of the international community.^[99]

At the same time, ASEAN might serve as a springboard for creating the conversation on climate migration, as well as for cooperation and communication to promote the effects of climate change on migration.^[100] By forging a greater sense of regionalism, ASEAN can facilitate a strong political will to jointly deal with other sub-national and international organisations and civil societies on the topic of migration in the context of climate change in Southeast Asia.

4.4. Opportunity 2: Strengthening the Role of ASEAN in International Forums

Koh and Robinson claim that ASEAN has maintained a regional structure for cooperation and has been extraordinarily successful in creating a shared regional framework for environmental policy.^[101] Regarding migration, the idea of a regional dialogue is a complete and hopeful novelty in and of itself. Twenty or thirty years ago, it was unimaginable to discuss foreigners’ rights or the limits of national sovereignty over borders in the ASEAN.^[102]

As ASEAN grew into its role as an intergovernmental organisation which directly deals with the issue of displacement brought on by climate change in the region, it can promote itself as the voice of Southeast Asian climate migrants in global climate and migration dialogues. Such an opportunity would in turn provide those affected by climate-induced displacement with better recognition no matter where their country of origin or destination will be.

Conclusion

The “climate refugee” issue emphasises how important it is for Southeast Asia and beyond to establish thorough and effective governance systems. This paper has examined the regulatory gaps on climate migration in the region, analysing the complexity of migration concerning climate change by utilising Pérez’s approach. Through an analysis of migration and climate policies, together with human rights and statelessness frameworks, this paper has assessed ASEAN’s potential power in creating regional governance for people affected by climate change. However, while ASEAN’s regulatory frameworks offer a partially effective avenue for addressing the needs of climate migration, significant challenges persist. Gaps in climate implementation and the need for improved AMS’s incentive to cooperate on migration issues are examples of this. As we move forward, ASEAN will need to overcome these obstacles and take advantage of chances to fortify its governance framework for displacement brought on by climate change in the region. By doing this, ASEAN can ensure that everyone has a more resilient and equitable future by protecting the rights and interests of those who are most impacted by the effects of climate change.

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