By: Chandril Chattopadhyay [1]& Satyaki Paul [2]
“Shifting house during floods or river erosion is hard but losing your land is a completely different experience, it is indescribable pain”[3]
-Kestiar Char, Sariakandi, India
Environmentalist, Mr. Lester R. Brown introduced the term “Environmental Refugees” in 1923 which was later adapted as “Environmental Migrants”. According to him, Environmental Refugees are “people who are forced to leave their home region due to sudden or long-term changes to their local environment.”[4] This terminology later entered the 1985 United Nations Environment Program Policy paper titled “Environmental Refugees”. However, the 1951 Convention Relating to the Status of Refugees still only defines a refugee as “someone who is unable or unwilling to return to their country of origin owing to a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group, or political opinion, is outside the country of his nationality, and is unable to or, owing to such fear, is unwilling to avail himself of the protection of that country”.[5] Clearly, this definition does not include climate refugees even though such individuals are also forced to flee their home as a result of a serious threat coming from a change in their natural ecosystems. It is only at the 2015 UN Climate Change Conference (COP21) that this gap was acknowledged and followed by a reinforced call for recognition of such migrants and prevention of their rapid displacement.
As per the new reports by the World Bank, climate change can displace more than 250 million people by 2050.[6] Change in climate is probably an equivocal term to use as it indicates a lot of things, such as extreme weather events, hurricanes and floods, drought and desertification, and many more. Most climate refugees are internal migrants who move to different places inside their own country. There have been many instances where a massive number of climate refugees from the rural areas have been forced to migrate to urban areas and live a life of extreme hardship. Such urban areas can be an environment which is absolutely unknown for the people who are reliant on farming. The climate refugees who are forced to leave their country deal with problems that are much larger in nature, such as a completely different world with differences in language, culture, law, etc. At the end of 2020, the number of refugees was almost 7 million, most of them belonging to more than 104 countries who were living in displacement due to the extreme level of environmental changes.
The islands which were once massive tourist attractions and a major source of income have seen huge damages due to the extreme rise in sea levels. For example, Maldives thrives on their booming tourism sector which contributes a greater part of their GDP. This could almost range to about 25 percent, as is recorded by Diane Boudreau, Melissa McDaniel, Erin Sprout, and Andrew Turgeon.[7] As the sea level rises gradually the country has seen huge losses in tourism. The rise in sea level might sink all 1,200 islands of Maldives. Not the only Maldives, but also countries such as China, Japan, India, Vietnam, Bangladesh, Thailand, Philippines, Brazil, the urban areas of Venice, and Italy are at great risk due to the rising sea levels.
Just as the rise in sea level is a problem in the coastal regions, droughts have also created inland climate refugees. When people cannot grow crops or have access to drinkable water, the most important objects to inhabit, they are forced to leave their residence and move somewhere else to survive. Desertification is yet another environmental crisis and countries like Morocco, Tunisia, Libya, Croatia, Cyprus, Bulgaria, Italy, Greece, etc., have declared themselves as victims of desertification just like the residents near the Horn of Africa. Years of severe drought have impacted subsistence agriculture in Africa.[8] The situation has worsened especially since 2020 during the COVID-19 pandemic,[9] as many people were forced to stay in their exposed homes due to inadequate assistance from the government. The number of disasters rose as well, mostly weather-related hazards such as storms and floods.
Immunities available to Climate Refugees
So, we might ask: what kind of protection do climate refugees get? Unfortunately, the answer is “none”. So much so that even the calculation of the number of climate refugees is uncertain. Moreover, as noted above, no precise definition exists to clarify the status of climate refugees. To that end, International Refugee Law is still inefficient in recognizing climate refugees and unfortunately, the whole concept of climate refugees has still not become a pressing issue for lawmakers around the world.[10]
The only probable breakthrough is Global Compact for Safe, Orderly, and Regular Migration[11] (GCM); the first intergovernmental agreement prepared under the auspices of the United Nations to cover the issue of environmental migration in a holistic way. The problem, however, is that many states have refrained from adopting the GCM, hence, neglecting the most amicable way of dealing with the issue. The Sustainable Development Goals Report of 2020[12] has claimed that only 54 percent of the countries of the world have adopted any suitable migration policies.[13] India stands among one of the most threatened regions[14] in the world in terms of the number of people internally displaced due to climate change. Almost 3,856,000 people were displaced in India in 2020, which is 989 times more than the 3,900 persons displaced by conflicts, according to data of the Internal Displacement Monitoring Centre (IDMC.) [15]
India is the seventh country most affected by climate change and the laws here have been inadequate so far in dealing with the involuntary resettlement tactics employed in consideration of the removal of indigenous people in their traditional habitats. For example, 2013 The Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, and the 2005 Disaster Management Act have been quoted as the ones that regulate the compensation aspect for the people who are displaced due to development activities or because of a preparation of a roadmap to mitigate the damages during an impending disaster. However, none of these acts in the context of the Indian legislation tend to provide specific relief to the climate refugees, especially those coming from other countries. Article 12 of the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013 talks about the personal status of a refugee that “shall be governed by the law of the country of his domicile or, if he has no domicile, by the law of the country of his residence.” This shows that the status of refugees is undermined and their own sovereign rights over the land are somehow absent, therefore, depending upon the mercy of the government of the domiciled country or the host country as is the case.
On the other hand, Article 35 of the Refugee Convention, 1951 places the responsibility on the United Nations to look after the Refugees. The cooperation of the National authorities with the United Nations is sought whereby the contracting states undertake to co-operate with the Office of the United Nations High Commissioner for Refugees, or any other agency of the United Nations. Additionally, and the contracting states must provide the statistical data and report to the competent organs of the United Nations pertaining to the:
(a) The condition of refugee;
(b) The implementation of this Convention, and;
(c) Laws, regulations, and decrees which are, or may hereafter be, in force relating to refugees.
India has seen this provision as a threat to its sovereignty and thus, has depended more on bilateral agreements in the South Asian polity. The SAARC Convention On Cooperation On Environment was signed in Thimphu, Bhutan on 29th April 2010 between the Islamic Republic of Afghanistan, the People’s Republic of Bangladesh, the Kingdom of Bhutan, the Republic of India, the Republic of Maldives, Nepal, the Islamic Republic of Pakistan and the Democratic Socialist Republic of Sri Lanka to protect the environment. Yet far from addressing the question of local integration of refugees instead of repatriation, the ideas of climate refugees remained distant to the governments and their policymakers.
Dealing with climate refugees: An international perspective
There needs to be a better integration and complementary play between the International Human Rights Law and the Refugee Convention in recognizing the problem areas dealing with the Environmental Refugees. The famous case of Ioane Teitiota V. New Zealand[16] referred to Articles 6(1) of ICCPR and Articles 1 and 2 of the Optional Protocol. This case reinforced the principle of non-refoulment, whereby States are prevented from sending back the refugees to places with harmful or life-threatening climatic conditions. This constitutes a positive obligation, thus, making the States liable to prevent such displacement and provide proper relocation of those climatic refugees who are under threats of dangerous climate conditions.
On the other hand, countries in the Scandinavian region have shown a greater empathy for the plight of the Environmental Refugees. Specifically, the Norwegian Refugee Council implored the need to set up an International Environment Migration Fund, to be backed by the industrialized nations. The Norwegian Refugee Council has also supported the necessity for the UN pact that shall help in socially rehabilitating the climate refugees.
Sustainability and the protection of the environment is a very participative concept and it is the local laws that act as a major structural growth to the existing legislation. The environment protection laws after the 1972 Stockholm Conference, that enabled the insertion of Article 51A and Article 48A to the Indian Constitution making the state responsible for the protection and improvement of the environment as a Fundamental Duty, must be amended for the inclusion of the rights of the indigenous locals who are climate refugees.[17] This shall serve to protect their habitat and serve their interests.
One huge reason explaining the lack of a definite refugee policy from the Indian Government’s side is the fact that climate migration is a diverse problem. It seems that the whole world has shown a blind eye to this issue. Hence, it is massively required that state-wise distinctive treatment be adopted urgently. An area affected by drought and another affected by rising sea levels demand different research attention. The Asylum Bill[18] and the Protection of Refugees and Asylum Seekers Bill[19] are some of the notable efforts made by the Indian Government to cope with the migration situation although none of these are associated with climate refugees. In addition to that, concern should also be given to the fact that generalized law might not cater to the diverse level of issues associated with climate refugees. Much advanced level of research is necessary. Although it might be late to prevent changes in the climate, it is not too late to anticipate the areas which are about to get affected and become inhospitable and work on those. In a report named “Costs of Climate inaction: Displacement and Distress Migration[20]” by ActionAid CANSA it was assessed that over 4.5 people will be forced to be displaced from their homes in India by 2050 due to climate disasters. Today, on a global level the number of displaced persons stands at 7.8 million and the number of climate refugees is 3 times more than the conflict refugees (in accordance with the number documented by IDMC). It’s a problem faced by a massive number of people; it is a global crisis and it demands immediate attention.
The unsuccessful attempts of migration from the point of view of international legal order have somehow been tried to be mitigated by the UNFCCC’s Paris Agreement ( 2015)[21] and UNFCCC Warsaw International Mechanism for Loss and Damage associated with Climate Change Impacts (2013)[22] that has been deemed as an institutional home by scholars like Avidan Kent and Simon Behrman in their seminal work, “Facilitating the Resettlement and Rights of Climate Refugees – An Argument for Developing Existing Principles and Practices”. These have been possible only after decades of failure to recognize the plight of environmental refugees.[23] Nonetheless, one must understand, as Jane McAdam notes, that due to the lack of political appetite and interest in dealing with climate refugees, there will be a delay in providing remedies to those displaced as a result of the climatic erraticness.[24] Furthermore, strict measures against non-compliance by various states perhaps cannot be done at the earliest. It is, however, important to reiterate that beyond the sizable measures of the international conventions, one must understand that due to the nature of most of such migrations being intra-state, the municipal laws must be reformed. This must also be amended to suit the need of the hour and protect the Human Rights of such individuals displaced due to the havoc of climatic vengeance.
[1] M.A, LL.B.(Hons.) final year student, Department of Law, The University of Burdwan, West Bengal
[2] B.Sc., LL.B.(Hons.) pre-final year student, George School of Law, West Bengal.
[3] Dina Ionesco,’Let’s Talk About Climate Migrants, Not Climate Refugees’(un.org, 6 June 2019)
<https://www.un.org/sustainabledevelopment/blog/2019/06/lets-talk-about-climate-migrants-not-climate-refugees/> accessed 13 may 2022.
[4] L R Brown, P L McGrath, B Stokes, Twenty-two dimensions of the population problem (Worldwatch paper) (Worldwatch Inst, 1976).
[5] Convention Relating to the Status of Refugees (adopted 28 July 1951, entered into force 22 April 1954) 189 UNTS 137 (Refugee Convention) art 1.
[6] The World Bank, ‘Climate Change Could Force 216 Million People to Migrate Within Their Own Countries by 2050’ (Press Release No. 2022/12/CCG, 2021) <https://www.worldbank.org/en/news/press-release/2021/09/13/climate-change-could-force-216-million-people-to-migrate-within-their-own-countries-by-2050> accessed 13 May 2022.
[7]Diane Boudreau, Melissa McDaniel, Erin Sprout and Andrew Turgeon, ‘Environmental Refugee’ (nationalgeographic.org 17 June 2011) <https://www.nationalgeographic.org/encyclopedia/environmental-refugee/> accessed 15 May 2022
[8]‘Subsistence Farming in India? Cultivation, Types And Characteristics’(tractorjunction.com, 29 November 2021)
<https://www.tractorjunction.com/blog/what-is-subsistence-farming> accessed 13 May 2022.
[9] Andrew Harper, Dr. Kira Vinke, ‘COVID-19, Displacement and Climate Change’ (unhcr.org , June 2020) <https://www.unhcr.org/protection/environment/5ef1ea167/covid-19-displacement-climate-change.html> accessed 13 May 2022.
[10] John Podesta ‘The climate crisis, migration, and refugees’(brookings.edu, July 2019)
<https://www.brookings.edu/research/the-climate-crisis-migration-and-refugees/>accessed 13 May 2022.
[11] ‘Global compact for migration’ (Refugees and Migrants)
<https://refugeesmigrants.un.org/migration-compact> accessed 13 May 2022.
[12] United Nations, The Sustainable Development Goals Report 2020 (United Nations Publication 2020).
[13] UNGA ‘The Sustainable Development Goals Report 2020’<https://unstats.un.org/sdgs/report/2020/The-Sustainable-Development-Goals-Report-2020.pdf> accessed 13 May 2022.
[14] Kota Sriraj, ‘India’s Climbing Rate of Climate Refugees’ (dailypioneer.com, 13 December 2021) <https://www.dailypioneer.com/2021/columnists/india—s-climbing-rate-of-climate-refugees.html#:~:text=The%20Internal%20 Displacement%20Monitoring%20 Centre,from%20their%20 homes%20by%202050> accessed 13 May 2022.
[15] Madhusree Goswami,’ As Extreme Weather Events Rise, More People Are Being Displaced’ (thelogicalindian.com, 29 July 2021)
<https://thelogicalindian.com/environment/as-extreme-weather-events-rise-more-people-are-being-displaced-29946> accessed 13 May 2022.
[16] Loane Teitiota v. New Zealand [2015] CCPR 2728/2016, [2016],
[17] Mirian Masaquiza Jerez, ‘Challenges and Opportunities for Indigenous Peoples’ Sustainability’ (un.org, 23 April 2021) <https://www.un.org/development/desa/dspd/2021/04/indigenous-peoples-sustainability/> accessed 14 April 2021
[18] The Asylum Bill 2015 (Ind).
[19] Protection of Refugees and Asylum Seekers Bill 2015 (Ind).
[20] Harjeet Singh, Jessica Faleiro, Teresa Anderson and Sanjay Vashist, ‘Costs Of Climate Inaction: Displacement and Distress Migration’ (December 2020) <https://actionaid.org/sites/default/files/publications/ActionAid%20CANSA%20-%20South%20Asia%20Climate%20Migration%20-%20Dec%202020%20-Final.pdf> accessed 13 May 2022.
[21] ‘The Paris Agreement’ (unfccc.int) <https://unfccc.int/process-and-meetings/the-paris-agreement/the-paris-agreement> accessed 13 May 2022.
[22]‘ Warsaw International Mechanism for Loss and Damage associated with Climate Change Impacts’(unfccc.int)
<http://unfccc.int/adaptation/workstreams/loss_and_damage/items/8134.php>accessed 13 May 2022.
[23] It is to be noted that the Inter-Agency Standing Committee (IASC) of 1992 was formed in response to UN General Assembly Resolution 46/182 or The United Nations International Strategy for Disaster Reduction (UNISDR) that formulates synergies for such risk mitigation, but they never took in cognizance the legal rights of the Climatic migrants in any part of the world or provided any sort of legal remedy.
[24] Jane McAdam, Climate Change Displacement and International Law’ (May 2011) <https://www.unhcr.org/4dff16e99.pdf> accessed 15 May 2022.
Corax Foundation 