Blog post by Mohd Rameez Raza (student at Integral University, India) and Raj Shekhar (student at National University of Study and Research in Law, India).*
Wrath of the Climate and Tale of Refuge: Brief Glance at the Past and Present
Among all the International issues, climate change remains prominent when it comes to affecting the lives of people in the modern and ancient days alike. In the modern period the climate has taken a turn for the worse and we are witnessing a catalyzed erosion of natural resources essential for our survival. Crops, livestock and even humans struggle to survive in climate change ‘hotspots’, where conditions have deteriorated to such an extent that they pose a threat to the livelihoods; and are a chief force responsible for exacerbating the food insecurity issues. Humans are trying hard to adapt to the changing environment, however, at the same time many are being forcibly displaced from their homes due to the effects of climate change and disasters, or are even migrating in order to survive. Such displacement patterns, and competition over depleted natural resources have been a recent reason for sparking conflict between communities around the world. Though, we recognize migration as a modern-day phenomenon arising out of modern man’s exploitative attitude, but it not something that is occurring only in the present world. The Atlas of Environmental Migration, gives examples dating as far back as 45,000 years ago, where the environmental changes and natural disasters played a role in how the population was distributed on our planet throughout history.
As a result of such large-scale migrations and displacements, a whole new category of refugees has emerged out in the recent past and are collectively termed as – ‘Climate Refugees’. These people who have been displaced across borders in the context of climate change many a times find themselves in a crisis, due to the hostility of nations, and hence are in dire need of international protection. Refugee law therefore has an important role to play in this area. There has been a growing political awareness regarding the climate refugees, however, apart from agreements such as the Paris Climate Change Agreement, the Sendai Framework for Disaster Risk Reduction and the Global Compact for Migration, not much has been done in absence of a sustainable solution for the conundrum. In light of the failure of the international community to prioritize finding solution to this existential crisis of these refugees, this paper tries to delve into the roots of the issue and the lacunae on the part of international community’s collective action, as well as the legal framework governing refugees and their rights. After a thorough analysis recommendations are provided so as to work towards a sustainable plan of action through legal means, thereby creating a safer future for everyone.
Why does the International Community need a Plan of Action?
In the year 2018 alone, climate-related factors resulted in the displacement of around 16.1 million people. As per the recent report on estimates, if no sustainable plan of action is found to the existing crisis by 2050, between 150 to 200 million people are at risk of being forced to leave their homes as a result of desertification, rising sea levels and extreme weather conditions. Crises creating ‘climate refugees’ are generally seen as issues affecting fragile under-developed or developing states, but this is not the case. With the changing patterns of human migration, it is deduced that more and more people are forced to flee their communities in search of safe places where they could dwell. Ironically, the world’s most vulnerable people are made to bear the brunt of climate change, despite the fact that they are the least responsible for causing it, whereas the people of the developed countries who are majorly responsible, do not face the same direct implications.
With the growing menace of climate change and the humanitarian needs that are being associated with it, international agencies which fight such issues, such as UNHCR, are overwhelmed, not just by the intensity and the number of cases, but majorly by the lack of funding which is required to address these issues and the continued apathy that international community continues to display. We can see that the United Nations Sustainable Development Goals which are committed to “leave no one behind” are blatantly failing at the face of this crisis. Another issue that has constantly haunted the “climate refugees and migrants” is the issue of double predicament: not only do they have to flee their homes as a result of natural disaster and climate change, but they also have very little legal protection. As of today, there exists no international convention protecting the rights of the internally displaced refugees. While on the other hands’ terms such as “climate refugee” and “environmental migrant” are still not accepted as legal categorisations, and hence even in presence of anti-oppression laws fail to protect these people owing to non-recognition. As per the speculations, the huge impact of climate displacement, coupled with the absence of any robust legal framework, needs to be addressed at the earliest by sustainable plan to help in reducing the plight of climate refugees by aiding them in resettling with dignity. It’s high time that the international community realizes its responsibilities and started working towards prioritizing climate-induced humanitarian problems. It also needs to work towards accumulating a full range of resources to tackle this major issue, so that no one is left behind to suffer.
Identification and Obligations under International Law: Addressing the Lacunae
The present world puts forth us a picture where every state is increasingly paranoid about its borders and anything which may pose a potential threat to its national security or sovereignty. Unfortunately, any form of migrants or refugees are seen as potential security threats, and when it comes to uncategorized refugees like the ‘climate refugees’ the stance is even grimmer. With the gradually worsening climate patterns and on account of various severe weather disasters, and an unprecedented global hike in human mobility, people who choose to migrate on pretext of climatic reasons would do so but with negligible to none legal protection. The existing system of international law is in no way sufficient to protect the basic rights of climate refugees. All this is on account of non-existence of any legally binding agreements which may subdue ratifying countries to support climate refugees and refrain from committing atrocities on them. Thus, the first major step towards creating a better and friendly future for climate refugees should be tweaking of International Law to firstly recognize them as a distinct form of refugee, followed by subduing member nations to protect them.
In its existing form, international law governs only political refugees which are those people who are fleeing persecution and does not extend to climate refugees. According to the 1951 Geneva Convention on Refugees, a refugee is defined as a person who:
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, or owing to such fear, is unwilling to avail himself of the protection of that country, or who, not having a nationality and being outside the country of his former habitual residence as a result of such events, is unable or, owing to such fear, is unwilling to return to it.
If we go by the definition of internal displacement under the UN Guiding Principles and the Kampala Convention, they consider them under wider ambits and cover those who are fleeing situations of generalized violence and natural or human-made disasters, but again there is currently no legal framework which specifically defines and governs any “climate refugees”. Even the UN Agency in charge of refugees, the United Nations High Commissioner for Refugees (UNHCR), refused to acknowledge that climate refugees needed to be recognized as a distinct category needing protection and a former High Commissioner for Refugees, Sadako Ogata, have gone to the lengths of calling the term “environmental refugee” a misnomer. On face of the reports which show the huge number of displaced refugees due to climate change, this legal lacuna is quite worrying for the community.
Sustainable Development Goals (SDGs) and Collective Action: Paving the way for a better future
While it’s the hard truth that there exists no legally binding international treaty or agreement that protects climate refugees, however, there still exists various voluntary compacts that could be used to support them and protect their rights. Among all these, the most prominent one is the 2030 Sustainable Development Goals (SDGs), which 193 countries adopted, and which seeks to address both migration and climate change. Several of the 169 targets established by the SDGs lay out general goals that could be used to protect climate refugees. Among all these, the SDG 13 on climate action outlines several targets that address the climate crisis. SDG target 13.1 aims at strengthening resilience and adaptive capacity to climate-related hazards and natural disasters in all countries. Whereas, SDG target 13.2 works towards integrating climate change measures into national policies, strategies, and planning. And finally, SDG target 13.3 which aims to Improve education, awareness-raising and human and institutional capacity on climate change mitigation, adaptation, impact reduction, and early warning. Although the SDG target 10.7 does not explicitly link climate change and migration it indeed provided for signatories to “facilitate orderly, safe, and responsible migration of people, including through implementation of planned and well-managed policies.”
Even though such obligations exist, to effectively meet these goals, an extensive bilateral and multilateral development assistance is required. To achieve this assistance the international community must create a strategic approach to focus development assistance and multilateral organizations on these targets. International development financial institutions need to redirect their development assistance to incorporate today’s unfolding climate crisis. Significantly more resources will need to be channelled to the Green Climate Fund, UNHCR, as well as to other critical international bodies, in particular those that make up the International Red Cross and Red Crescent organizations. The current security implications of the migration crisis and the implications of legal lacunae has forced the international community to re-examine its policies. There needs to be a bipartisan support, particularly in the security community, for reducing the conditions that accelerate international migration and a prompt action needs to be taken to address the issue at the earliest.
Reforming the Current Stand of Law: Analysis and Recommendations
As of now, the best option available to the Climate refugees under the International law is the non-refoulement principle. Under this principle, a country is prevented from expelling or returning (‘refouler’ is a French term) a person, if doing so would send the person back to certain dangers (“persecution, torture or cruel, inhuman or degrading treatment or punishment”). The best implementation of this non-refoulement principle can be seen in the 1951 Refugee Convention’s Article 33 which reads as:
no Contracting State shall expel or return (‘refouler’) a refugee in any manner whatsoever to the frontiers of territories where his life or freedom would be threatened on account of his race, religion, nationality, membership of a particular social group or political opinion.
It also is within certain human rights treaties, or has been understood as applicable to them. It is now generally accepted as a principle of customary international law. Existing laws of different countries and the present judicial mind-set makes it difficult for climate refugees who use the non-refoulement principle to argue that they cannot be expelled from the country to which they have relocated. Climate change is not likely to pose harms dangerous enough for people to make use of the principle, and even if climate refugees were able to make successful non-refoulement claims, the principle only protects them from expulsion, but the problem is that it does not grant them the right of permanent residency in a country, which in most of the cases is their primary concern and in absence of which they still continue to remain as vulnerable as they were back then. However, the recent judgment in the case of Teitiota v. New Zealand has come as a welcome relief by providing the opportunity for climate refugees to be protected from deportation if essential human rights would be at risk on return.
Keeping in strict view, the limitations of existing international laws, a number of proposals for new multilateral international legal instruments to protect climate change refugees are being made on a regular basis. These proposals, though nascent, draw their arguments and firmly base them on a number of existing legal frameworks and literatures, including refugee law, human rights law, and environmental law, and the literature recommending the recognition of the concept of environmental refugees. When we look at the proposal for new multilateral conventions, we find that they all have a very distinguished streak of similarity, however, are distinct in their own ways. Some of the critics of new conventions have of late suggested that instead of developing a new multilateral instrument, countries should start to focus on improving existing migration mechanisms in national immigration laws. Another option that has been raised is developing regional responses to climate change migration, perhaps under an international framework. Thus, the ultimate belief of these critics is common and that is a regional approach would work out more effectively than a multilateral approach because individuals who move due to climate change may be more likely to move within their home country than through foreign lands.
The Draft Convention on the International Status of Environmentally-Displaced Persons, proposed by the University of Limoges, purports to be all-inclusive and is not limited to climate refugees. It defines “environmentally-displaced persons” as:
individuals, families, groups and populations confronted with a sudden or gradual environmental disaster that inexorably impacts their living conditions, resulting in their forced displacement, at the outset or throughout, from their habitual residence.
Therefore, the parties should undertake measures “to protect environmentally-displaced persons in conformity with human rights law guaranteed by international law and to ensure the full exercise of those rights specifically set forth by the present text.” The draft tries to bring under its ambit both internal and cross border displacement. While implementing this seems to be the best move, we could make towards environmentally displaced persons including climate refugees, confining the definition to “sudden or gradual environmental disasters” is very restrictive in sense. Though, these principles are aimed at recognising that climate displacement as a matter of global responsibility and advocating states action and the right to seek assistance from other states and relevant international agencies. What’s disturbing is the non-addressal of the elephant in the room – cross-border displacement due to climate change, which is occurring and is likely to keep on taking place in large numbers.
Conclusion: Implementing Future Proof Policies and Joining Hands Together
Notwithstanding natural disasters, the only positive to this issue of climate change is its slow progression. It means that participating countries have enough time to create a well laid-out plan to assist those nations which are highly vulnerable to its affects, which in turn would allow for a more effective and future ready sustainable solution. All affected countries—both island nations and those accepting refugees—should take advantage of this timeline to collaborate on a future plan of action, to tackle this issue as soon as it knocks on their territory. Effective displacement and migration policies need to be rolled out so as to allow for migrants to establish the necessary skillsets to successfully assimilate in their new countries, when required, which would also reduce the overall burden that many refugees – as well as residents of the host countries – would have to tow in absence of a strong pre-planned move. This far-sighted planning could also help us ensure that families stay together, instead of being separated or split up in cases of rapid displacement.
Climate change, as already reported many times by scientific organizations, has the potential to disrupt human lifestyle on unimaginable scales. The present state of affairs and the daily growth in industrialization as well as globalization will only accelerate this menace. Also, as long as the international community continues to dillydally in the face of its greenhouse gas emissions, relief is but a far-fetched dream. While it’s indeed true that this poses a significant upheaval on the future of the human race, it is the world’s low-lying island nations, areas on verge of desertification, etc. who are at the immediate risk of suffering the ultimate price. Wealthy, industrialized countries are the ones most responsible, and therefore, the ones who carry the moral and ethical obligation to protect the victims of climate change. Without the necessary action, the international community will have failed their fellow man and the very planet itself.
* The authors can be contacted through LinkedIn: Rameez Raza: https://www.linkedin.com/in/mohdrameezraza/, Raj Shekhar: https://www.linkedin.com/in/raj-shekhar-293557188/
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